Doe v. Sex Offender Registry Bd.

• Decision Date: 12 August 2020
• Docket Number: No. 19-P-899,19-P-899
• Parties: John DOE, Sex Offender Registry Board No. 390261 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 219

154 N.E.3d 1

John DOE, Sex Offender Registry Board No. 390261

v.SEX OFFENDER REGISTRY BOARD.

No. 19-P-899

Appeals Court of Massachusetts, Essex..

Argued April 2, 2020

Decided August 12, 2020

The case was submitted on briefs.

Edward Gauthier, Greenfield, for the plaintiff.

William H. Burke, Special Assistant Attorney General, & Nicole M. Nixon for the defendant.

Present: Rubin, Blake, & Wendlandt, JJ.

WENDLANDT, J.

The plaintiff, John Doe, repeatedly raped his daughter (victim) from the time she was seven until she was fifteen. The sexual onslaught continued despite investigations by authorities (during which the victim recanted her statements due to fear instilled by Doe and her mother). On one occasion, the victim's brother (brother) was lying in the same bed when Doe sexually assaulted the victim. When the victim's middle school classmate (friend) slept over at the family home, Doe (having previously announced his desire to do so) grabbed the friend's breasts while she was sleeping. Doe was convicted of two counts of indecent assault and battery on a child under the age of fourteen as a result of the assaults on the victim. While incarcerated, Doe refused to attend a sexual offender treatment program and received multiple disciplinary reports for violent conduct. Prior to his release from incarceration, the Sex Offender Registry Board (board) recommended that Doe be required to register as a level three sex offender. Following a de novo evidentiary hearing, a hearing examiner (examiner) agreed. Pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M, Doe appealed, and a judge of the Superior Court entered a judgment on the pleadings, affirming Doe's final classification by the board as a level three sex offender.

On appeal, Doe contends that the classification was arbitrary and capricious because the examiner relied on an uncharged sexual assault on the friend, improperly found that he sexually assaulted the victim in a public place, and gave "full aggravating weight" to his criminal history. Neither the examiner's reliance on the sexual assault of the friend nor his determination that the public place factor applied were error; however, we agree that the examiner erred in his treatment of Doe's criminal history. Excising from the examiner's determination any reliance on the criminal history factor, and determining from what remains that substantial evidence existed to classify Doe as a level three sex offender, we affirm.

Background. In 2001, Doe began to sexually assault his daughter, who was then seven years old. In the beginning, he would touch her vagina with his fingers; eventually, his assaults progressed to penile penetration, both oral and vaginal.¹ These assaults occurred in the home Doe shared with the victim, the victim's siblings, and the victim's mother. Sometimes, the assaults commenced while the victim slept. On one occasion, two of the victim's siblings witnessed Doe raping the victim. On another occasion, Doe raped the victim while the brother, who pretended to be asleep, was lying in the same bed. Doe also physically abused the victim and her siblings.²

Other family members also noticed Doe's inappropriate behavior with the victim.³ The victim's mother knew of the sexual abuse, and in response told the victim's siblings to "knock on the door" if Doe was in a locked room with the victim. The victim reported the abuse to her school nurse and her doctor on separate occasions, prompting investigations by the Department of Social Services (DSS).⁴ However, the victim recanted each time because she feared that she and her siblings would be removed from their home.

In December 2009, the victim again reported the sexual assaults.⁵ During the ensuing investigation, the friend reported that, while she was asleep at the victim's house, Doe had touched her breast.⁶ The friend was in either seventh or eighth grade at the time of the assault. The victim pulled Doe off the friend, pleading with Doe, "Come on[,] dad. You have to go. Stop!" Doe's niece reported that she had heard Doe state that the friend "has such big boobs and he wanted to grab them." Doe was not charged with assaulting the friend.⁷

In 2012, a jury found Doe guilty of two counts of indecent assault and battery on a child under the age of fourteen, pursuant to G. L. c. 265, § 13B, and one count of assault and battery,⁸ pursuant to G. L. c. 265, § 13A (a ).⁹ Doe was sentenced to two concurrent terms in State prison¹⁰ and ten years of probation.

As his release date neared, the board recommended that Doe register as a level three sex offender, which Doe challenged. In March 2015, a hearing examiner conducted a de novo hearing, pursuant to G. L. c. 6, § 178L, and accepted the board's recommendation, ordering a final classification of Doe as a level three sex offender. Doe appealed, and due to the Supreme Judicial Court's holding in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 41 N.E.3d 1058 (2015) ( Doe No. 380316 ),¹¹ Doe's pending matter was remanded to the board. Accordingly, a different examiner conducted a second de novo hearing in June 2017, which resulted in his level three classification now on appeal.

Hearing examiner's decision. The second examiner held a hearing pursuant to G. L. c. 6, § 178L, and applied the regulatory risk factors as promulgated in 803 Code Mass. Regs. § 1.33 (2016). He concluded that Doe must register as a level three sexual offender.

The examiner found two of the six regulatory "high-risk" factors applicable to Doe. He gave factor 2, "Repetitive and Compulsive Behavior," increased aggravating weight based on the multiple offenses on separate occasions against the victim and because Doe had also assaulted the friend. The examiner attributed increased weight to this factor because, despite being investigated by DSS on earlier occasions, Doe continued to sexually abuse the victim. The examiner gave factor 3, "Adult Offender with a Child Victim," full aggravating weight based on Doe's assaults on the victim starting at age seven and continuing "through her remaining prepubescent years" until she was fifteen years old.

The examiner next considered seven applicable "risk-elevating" factors. He gave factor 7, "Relationship between Offender and Victim," aggravating consideration based on the assault against the friend, who was an extrafamilial victim. Factor 9, "Alcohol and Substance Abuse," was given full aggravating weight based on evidence that Doe abused alcohol and other drugs as well as the role alcohol played during his assaults. The examiner gave factor 16, "Public Place," aggravating consideration because on at least one occasion, Doe sexually assaulted the victim while her brother was in the same bed. The examiner also applied factor 18, "Extravulnerable Victim," giving it aggravating consideration because Doe began sexually assaulting the victim when she was seven years old. Factor 19, "Level of Physical Contact," was given aggravating consideration based on Doe's penile penetration of the victim both orally and vaginally. The examiner gave factor 22, "Number of Victims," aggravating consideration because Doe sexually assaulted the victim and the friend. The examiner gave factor 24, "Less than Satisfactory Participation in Sex Offender Treatment," aggravating consideration because records indicated that Doe "routinely declined participation in the Sex Offender Treatment Program ... throughout this incarceration."

The examiner further found two applicable aggravating "[f]actors [r]elated to [i]ncarceration, [c]riminal [b]ehavior and [c]ommunity [s]upervision." He gave factor 10, "Contact with Criminal Justice System," "full aggravating weight" based on Doe's "lengthy criminal history." In particular, Doe was convicted in 1997 for operating a motor vehicle after license suspension. He also received two continuances without a finding for leaving the scene of property damage in 1993 and disorderly conduct in 2007. He had a guilty finding filed in 1997 for operating a motor vehicle after a revoked registration. Furthermore, between 1993 and 2010, Doe was charged with compulsory insurance violation, operating with a suspended license, assault and battery by means of a dangerous weapon (bat), assault and battery by means of a dangerous weapon (machete), home invasion, breaking and entering, and larceny over $250; these charges all were dismissed. Beyond describing the history as lengthy, the examiner did not explain why he gave this factor full aggravating weight.

The examiner gave factor 12, "Behavior While Incarcerated or Civilly Committed," moderate aggravating weight because Doe received five disciplinary reports for refusal to comply with institutional orders, fighting with another inmate, assault on a staff member, and possession of a weapon. Doe was also fired and removed from a "Reentry Program."

The examiner applied three "risk-mitigating" factors. Factor 28, "Supervision by Probation or Parole," was given full mitigating weight based on Doe's ten years of supervised probation. Factor 30, "Advanced Age," was given minimal mitigating weight because Doe was forty-five years old at the time of the hearing. The examiner gave factor 34, "Materials Submitted by the Sex Offender Regarding Stability in the Community," some mitigating consideration based on a letter from Doe's therapist.

Discussion. "An agency decision should be set aside only if a court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law" (quotation omitted). Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88, 120 N.E.3d 1263 (2019) ( Doe No. 523391 ). Our review of the Superior Court judge's decision is de novo, but our review of the underlying agency decision is more limited. See id. at 88-89, 120 N.E.3d 1263. "[W]e give due weight to the experience,...