Doe v. Sex Offender Registry Bd.

• Decision Date: 02 February 2021
• Docket Number: SJC-12933
• Citation: 162 N.E.3d 35,486 Mass. 749
• Parties: John DOE, Sex Offender Registry Board No. 3177 v. SEX OFFENDER REGISTRY BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 749

162 N.E.3d 35

John DOE, Sex Offender Registry Board No. 3177

v.SEX OFFENDER REGISTRY BOARD.

SJC-12933

Supreme Judicial Court of Massachusetts, Worcester..

Argued December 4, 2020.

Decided February 2, 2021.

Edward Gauthier, Greenfield, for the plaintiff.

David L. Chenail, for the defendant.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

KAFKER, J.

This case concerns the reclassification of John Doe, Sex Offender Registry Board No. 3177 (Doe), from a level two to a level three sex offender.

The Sex Offender Registry Board (board) initiated an upward reclassification of Doe, based in part on charged sex offenses of which Doe has been acquitted. After an evidentiary hearing, the board ordered Doe to register as a level three offender. Doe challenges the board's determination, arguing that it was arbitrary and capricious and unsupported by substantial evidence. Doe argues that we should require the board to prove new sex offenses by clear and convincing evidence; however, we have recently affirmed that subsidiary facts, including new sex offenses, need only be proved by a preponderance of the evidence. We decline to reconsider this holding. Further, based on review of the hearing examiner's carefully reasoned and detailed decision, we conclude that there was clear and convincing evidence supporting the level three upward reclassification, based on the new sex offenses, substantial other criminal activity, and multiple other risk factors.

Finally, Doe argues that the decision, handed down approximately three years after the sex offense charges, is improper because it was not based on "new information" and the hearing was not held within "a reasonable time." See G. L. c. 6, § 178L (3). Reviewing the totality of the circumstances, we determine that the board's decision was proper because the board initiated the reclassification process shortly after receiving information of the new sex offense charges, and the delays in reaching a final decision were not unreasonable. We therefore affirm the board's decision to upwardly reclassify Doe.

1. Background. a. Factual and procedural background. i. Sex offenses and allegations. There are three main reported instances of Doe's sexual misconduct, involving three different victims. First, when Doe was seventeen years old, he sexually assaulted a seven year old girl (victim one), rubbing her chest and vagina with his hands, and rubbing his penis on her. On March 10, 1993, Doe was found guilty of indecent assault and battery on a child under the age of fourteen. He was sentenced to one year of probation, which he did not complete, and received a 120-day sentence in a house of correction. As a result of this misconduct, he was classified as a level two sex offender in 2003.

Second, in 1995, a fifteen year old girl (victim two) reported that Doe, then twenty, sexually harassed and assaulted her. Despite her protestations and attempts to stop him, he grabbed her buttocks in a Dunkin Donuts, placed his hands on her breasts while they were driving, spit food at her, attempted to hug and kiss her, and, while they were outside, touched her buttocks and breasts. All of these acts were committed in the presence of victim two's friend, who also made a statement to the police. Doe was charged with two counts of indecent assault and battery on a person age fourteen or older for these actions, and acquitted.

Third, in 2015, a thirty-nine year old woman (victim three) reported to police that Doe had sexually harassed and assaulted her multiple times while she was driving him to work, including once when they stopped at a store.¹ Doe was charged with three counts of indecent assault and battery on a person age fourteen or older, and was acquitted.²

Victim three reported to police that for the two weeks preceding her report, she worked with Doe in order to earn a little money, driving Doe and his coworker back and forth to assist them in moving wood. She reported that against her will, Doe regularly touched her, rubbed her, and fondled her during these rides. He also made explicit sexual comments and sexual advances. Once, he exposed himself to her.

Victim three also reported that while they were in a store, Doe rubbed his semi-erect penis on her backside and grabbed her vagina. Victim three reported that two other people were in the car at the time of the store incident, Doe's friend and the friend's mother. Police contacted the mother by telephone, who stated victim three had told her that Doe had grabbed her in the crotch. Despite attempts by the police, neither person came to the police station to give a written statement. When police viewed the store video recording between the times that victim three indicated she was there, they did not see anyone matching the description she gave of herself and Doe.

At the first jury trial, victim three testified to similar incidents that she reported to the police, and expanded on the sexual comments Doe made. She testified on cross-examination that Doe told her he had a man-eating pig and a shotgun on his farm, and implied that she felt threatened by his statements. The police lieutenant who investigated her complaint testified that she was upset and crying when she spoke to him about the incidents, and that she did not report anything to him about the man-eating pig or shotgun.

At the second trial, in a different county, see note 2, supra, victim three again testified to similar details as those she reported to the police, expanding on Doe's comments and actions. She testified to the incident at the store and that Doe threatened her with his man-eating pig and gun. She further testified that Doe did not pay her for gasoline or the rental of a U-Haul truck.

The friend's mother, who had previously spoken to the police, testified that victim three told her about Doe's sexual advances but that victim three was vague as to the event in which Doe grabbed her crotch and gave three different locations for the event. The witness further testified that victim three stated she would "get even with" Doe if she did not get paid for the job.

The police officer testified that she was unable to find victim three or Doe in surveillance video recordings from the store. A clerk from the store testified that victim three and Doe were both customers at the store. The clerk was unable to recall if he was working on the day of the incident but stated that he works every morning and had no recollection of any confrontation taking place.

Doe's friend, who worked with Doe and rode in the back seat of the truck while the assaults took place, testified that he did not have any recollection of whether they had stopped at a convenience store. He testified that Doe never touched victim three inappropriately.

ii. Other criminal history. Doe has in excess of thirty adult convictions spanning from 1992 to 2016 for multiple violent and nonviolent crimes.³ He has received nine different incarceration sentences in excess of sixty days.⁴ Three different women obtained abuse prevention orders against him, in 2006, 2015, and 2017. While incarcerated in 2011, Doe waived his parole hearing, stating, "If I wanted parole I would have just stayed on probation."

iii. Procedural history. In December 2015, based on the 2015 sex offense charges, the board notified Doe of his duty to register as a level three sex offender. Doe requested a hearing challenging the recommendation, and following the hearing he was ordered to register as a level three sex offender on September 26, 2016. Doe sought judicial review, after which the case was remanded to the board to consider the trial transcripts from his criminal trials. A new hearing was scheduled for January 2018, but was delayed until September 2018 due to a procedural error: the board did not have a record of the full majority of the board's vote to reclassify. After rectifying the error, on October 12, 2018, a board hearing examiner reviewed evidence presented as to Doe's sexual misconduct, criminal history, and history in the community. He examined the allegations underlying the charges related to misconduct against victim two and victim three, and found them sufficiently detailed as to render them reliable evidence for use in the proceeding. He then found by clear and convincing evidence that Doe "presents a high risk to reoffend sexually, and a degree of dangerousness to the public such that a substantial public safety interest is served by active dissemination of his sex offender registry information," and ordered Doe to register as a level three sex offender. Doe requested judicial review of the order, and a Superior Court judge upheld the board's decision on June 19, 2019. Doe appealed from the Superior Court's decision, and we took the case sua sponte.

b. Sex offender reclassification procedure. The board is authorized to seek reclassification of a sex offender. G. L. c. 6, § 178L (3). Reclassification may be initiated based on a number of factors, including receipt of "information indicating the sex offender has ... [b]een investigated for or charged with committing a new sex offense" or has "[b]een incarcerated for more than [sixty] consecutive days at any time following final classification by the Board." 803 Code Mass. Regs. § 1.32(2) (2016). When the board seeks upward reclassification, the offender has an opportunity to respond and to challenge the board's recommendation at an evidentiary hearing. See G. L. c. 6, § 178L ; 803 Code Mass. Regs. §§ 1.06 - 1.08, 1.32(4) (2016). At that hearing, the elements supporting reclassification must be established by clear and convincing evidence.

Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314, 41 N.E.3d 1058 (2015) ( Doe No. 380316 ). See 803 Code Mass. Regs. §§ 1.14(1), 1.32(4) (2016) (procedures same in reclassification as in classification). The offender may also seek judicial review of a board hearing decision. G. L. c. 6, § 178M.

The...