Doe, SORB No. 523391 v. Sex Offender Registry Board , 95 Mass. App. Ct. 85 ( 2019 )

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17-P-1347 Appeals Court
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523391 vs. SEX
OFFENDER REGISTRY BOARD.
No. 17-P-1347.
Essex. October 5, 2018. - March 26, 2019.
Present: Massing, Ditkoff, & Englander, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Evidence, Sexual conduct, Hearsay,
Police report, Sex offender. Practice, Civil, Sex
offender, Hearsay. Due Process of Law, Sex offender,
Burden of proof. Administrative Law, Hearing.
Civil action commenced in the Superior Court Department on
October 7, 2016.
The case was heard by Salim Rodriguez Tabit, J., on a
motion for judgment on the pleadings.
Brandon L. Campbell for the plaintiff.
John P. Bossé for the defendant.
DITKOFF, J. The plaintiff, John Doe,1 appeals from a
Superior Court judgment affirming his final classification by
the Sex Offender Registry Board (SORB) as a level two sex
1 A pseudonym.
2
offender. We conclude that the SORB hearing examiner (examiner)
reasonably considered sufficiently reliable hearsay evidence in
the form of police reports relating to Doe's uncharged sexual
assault of a four year old boy. We conclude that, although the
classification decision must be supported by clear and
convincing evidence, subsidiary facts need be proved only by a
preponderance of the evidence. Applying these standards to
conclude that the examiner properly found by a preponderance of
the evidence that Doe had sexually assaulted the boy, and that
this and other substantial evidence supported the examiner's
decision, we affirm.
1. Background. In November, 2008, police in New Paltz,
New York, observed Doe openly watching pornography on a public
library computer.2 The officers observed that he was watching a
video recording of a child no more than three years old
performing oral sex on an adult male. The officers found other
video recordings that Doe had downloaded, depicting girls
approximately nine years old engaging in sexual acts. In
February 2009, Doe pleaded guilty to one count of possessing a
2 Approximately one year earlier, New Paltz police received
a similar complaint that Doe was viewing pornography on a
computer at the same library. Although the police discovered
nothing criminal, Doe was given a verbal warning about the
consequences of such behavior.
3
recording of a sexual performance by a child, see N.Y. Penal Law
§ 263.16.
On March 5, 2009, while awaiting sentencing,3 Doe and a work
friend decided to get drunk in the friend's apartment. The
friend resided with his girlfriend and her four year old son,
but the girlfriend was not present that evening. At some point
during the evening, Doe spontaneously confessed to his friend
that he had touched the boy. The friend responded that this
could not have happened because the two men were together all
day. Doe repeated his confession and explained that it had
occurred "when he was outside with [the] boy earlier in the
day."
The friend attempted to ask the boy, whereupon Doe forced
his way into the room, and a physical altercation ensued. When
the police arrived, Doe stated, "I shouldn't have touched the
three year old's penis, the female deputy even told me that,"
apparently mistaking a male officer for a female in his
intoxication. He then punched and kicked at the arresting
officer and, finally, feigned unconsciousness when the police
tried to interview him.
Ultimately, Doe was sentenced to one and one-third to four
3
years in prison. It appears that he was released from prison in
November 2012.
4
Later that day, at the police station, the boy told an
officer that Doe "touched Mr. Winkie." The boy explained that
"Mr. Winkie" was located "under [his] pants," and the boy's
mother confirmed that this was the boy's term for his penis.
Six days after the incident, during a children's protective
services interview, the boy disclosed that Doe touched his
genital area and that Doe also exposed his penis to the boy.
Doe was charged with sexual abuse of a minor in the first
degree, see N.Y. Penal Law § 130.65, but the charge was
ultimately nol prossed.4
In late 2014 or early 2015, Doe moved to Massachusetts to
live with his mother and, apparently, registered with SORB. In
May 2015, a SORB member recommended that Doe be classified as a
level three sex offender. Doe invoked his right to challenge
the initial classification by claiming a de novo evidentiary
hearing pursuant to G. L. c. 6, § 178L (1) (a). In June 2016,
the examiner conducted a de novo hearing on the basis of
documentary evidence submitted by both parties.5
4 The record does not reveal the precise reason for the
dismissal, but the prosecutor stated at the preliminary hearing
that "[t]he biggest problem that I have is that the victim here
is a four and a half year old child that I simply can't have
testify."
5 There was an earlier hearing at which, it appears, the
examiner classified Doe as a level three sex offender. After
the Supreme Judicial Court decision in Doe, Sex Offender
Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass.
5The examiner found that both the child pornography incident6
and the sexual assault incident actually occurred. Regarding
the sexual assault, the examiner found that the fact that Doe
"report[ed] to both the [friend] and to the police that he had
touched the [v]ictim, the [v]ictim also stated in the presence
of a police officer that [Doe] had touched him, reported the
same later on the same day, and then again when interviewed by
child protective services several days later . . . provides an
indicia of reliability such that it is reasonable to conclude
that the incident of sexual misconduct occurred." Armed with
these factual findings, the examiner found multiple risk factors
described in G. L. c. 6, § 178K (1), and 803 Code Mass. Regs.
§ 1.00 (2016), including repetitive and compulsive behavior,
adult offender with a child victim, relationship between
offender and victim, sexual misconduct in a public place, and
extravulnerable victim. See Doe, Sex Offender Registry Bd. No.
68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014)
297 (2015) (changing SORB's burden of proof to clear and
convincing evidence), the examiner allowed a motion for a new
hearing. Although the Supreme Judicial Court stated that the
examiner may consider evidence from the original hearing, id. at
300, here both parties agreed that the better course of action
would be to start anew.
6 The examiner found that SORB had jurisdiction over Doe's
out-of-State conviction because, under G. L. c. 6, § 178C, the
New York conviction constitutes a "like violation" to the
Massachusetts sex offense of possession of child pornography,
G. L. c. 272, § 29C.
6
("SORB is required to consider a list of statutory factors in
making its classification determinations"). The examiner
further concluded that mitigating factors, such as Doe's
supportive home situation and stability in the community, only
somewhat offset the aggravating factors. The examiner concluded
that Doe posed a moderate risk to sexually reoffend and a degree
of dangerousness such that a public safety interest is served by
public access to Doe's registry information, and thus classified
him as a level two sex offender.
Doe promptly filed a complaint for judicial review in the
Superior Court pursuant to G. L. c. 6, § 178M, and G. L. c. 30A,
§ 14. A Superior Court judge reviewed the administrative record
and affirmed SORB's decision. This appeal followed.
2. Standard of review. "To determine the validity of an
agency's decision, the reviewing court must determine whether
the decision is supported by substantial evidence." Doe, Sex
Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd.,
88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011), quoting Doe,
Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry
Bd., 447 Mass. 779, 787 (2006) (Doe No. 10216). 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." Doe No. 356011, supra, quoting Doe No. 10216, supra. An
7
appeal from a SORB classification decision is confined to the
administrative record. See Doe, Sex Offender Registry Bd. No.
10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 311
(2007) (Doe No. 10304). "We 'give due weight to the experience,
technical competence, and specialized knowledge of the agency,
as well as to the discretionary authority conferred upon it.'"
Doe No. 356011, supra, quoting Doe No. 10216, supra. It is
within the province of the hearing officer to assess the
reliability of such evidence and to draw all reasonable
inferences. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 638 (2011) (Doe No.
10800). We review a judge's consideration of an agency decision
de novo. See Brown-Forman Corp. v. Alcoholic Beverages Control
Comm'n, 65 Mass. App. Ct. 498, 499 (2006).
3. Examiner's reliance on hearsay. "A hearing examiner is
not bound by the rules of evidence applicable to court
proceedings." Doe No. 10800, 459 Mass. at 638. See G. L.
c. 30A, § 11 (2); 803 Code Mass. Regs. § 1.19(1) (2016).
Instead, an examiner "may admit and give probative effect to
that evidence 'which reasonable persons are accustomed to rely
in the conduct of serious affairs.'" Doe No. 356011, 88 Mass.
App. Ct. at 76, quoting G. L. c. 30A, § 11 (2). In the context
of a sex offender classification hearing, hearsay evidence may
be admissible if it bears sufficient indicia of reliability.
8
Doe No. 356011, supra at 77. See Doe No. 10800, supra at 632,
quoting G. L. c. 30A, § 1 (6) ("Substantial evidence is 'such
evidence as a reasonable mind might accept as adequate to
support a conclusion'"); Covell v. Department of Social Servs.,
439 Mass. 766, 785-786 (2003) (detailed and consistent reports
of abuse considered substantial evidence despite being presented
only through hearsay sources).
When reviewing an examiner's determination that hearsay
evidence is substantially reliable, we ask whether "it was
reasonable for the examiner to admit and credit" the facts
described in the hearsay evidence. Doe No. 356011, 88 Mass.
App. Ct. at 77. Accord Boylston-Washington, Inc. v. Alcoholic
Beverages Control Comm'n, 8 Mass. App. Ct. 396, 400 (1979).
Factors that the examiner should consider include "the general
plausibility and consistency of the victim's or witness's story,
the circumstances under which it is related, the degree of
detail, the motives of the narrator, the presence or absence of
corroboration and the like." Doe No. 356011, supra at 78,
quoting Doe No. 10304, 70 Mass. App. Ct. at 313. Common indicia
of reliability include a detailed account, see Doe No. 10800,
459 Mass. at 638; Doe, Sexual Offender Registry Bd. No. 89230 v.
Sex Offender Registry Bd., 452 Mass. 764, 778 (2008) (Doe No.
89230); Doe No. 356011, supra at 78; Doe No. 10304, supra at
312-313; the consistency of the hearsay incident with other,
9
known behavior, see Doe No. 10800, supra at 638-639; admissions
by the offender, see Doe No. 89230, supra; Doe No. 356011, supra
at 79; and independent corroboration, see Commonwealth v. Bukin,
467 Mass. 516, 520-521 (2014); Commonwealth v. Patton, 458 Mass.
119, 134 (2010). Indicia of unreliability include failure to
identify the source of information, a lack of detail, and a lack
of information about the circumstances in which the statements
were made. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex
Offender Registry Bd., 81 Mass. App. Ct. 639, 648-649 (2012)
(Doe No. 136652). Finally, other inconsistent statements by a
hearsay declarant may or may not detract from the reliability of
the hearsay, depending on the circumstances of those statements.
See Doe No. 10800, supra at 639 (earlier denial by teenage
victim not significant where explained by desire to hide other
sexual conduct).
Here, the examiner reasonably determined that the police
reports of the sexual assault bore sufficient indicia of
reliability. See Doe No. 10800, 459 Mass. at 638-639. The lack
of criminal conviction does not render information contained
within a police report inadmissible in an administrative
proceeding. See id. at 638. See also Doe No. 356011, 88 Mass.
App. Ct. at 75, 79 (acquittal of assault with intent to rape and
indecent assault and battery charges did not render report of
those charges inadmissible or unreliable). Although the sexual
10
assault is not itself described in detail, the report of the
events surrounding the assault are detailed and plausible. The
relationship between Doe and his friend, the events leading up
to the assault, the location of the assault, and the immediate
aftermath of the assault are all described in detail.
Similarly, the accusation was consistent. The boy
confirmed three times, to three different persons, that he had
been touched. First, the boy told the officer on the scene that
Doe sexually assaulted him. Later, at the police station, in
the presence of his mother, the boy stated that Doe "touched
Mr. Winkie," pointed to his penis area, and told the officer
that "Mr. Winkie" was located "under [his] pants." Finally,
during an interview with child protective services several days
later, the boy reported that Doe touched his penis and that Doe
exposed his penis to the boy.7
Finally, the sexual assault is corroborated by Doe's own
statements to multiple persons. Doe spontaneously admitted to
his friend that he had touched the four year old boy. Once the
7 Although it is, of course, true that "statements supported
with little, if any, indicia of reliability do not attain
trustworthiness through a process of repetition," Doe No.
136652, 81 Mass. App. Ct. at 649-650, quoting Edward E. v.
Department of Social Servs., 42 Mass. App. Ct. 478, 486 (1997),
the persistence of the accusation is an important factor when
the reporter is a four year old child.
11
police arrived, Doe again admitted to an officer that he
"shouldn't have touched the three year old's penis."
It was reasonable for the examiner to reject Doe's
contention that he was in a delusional state at the time he made
these admissions, and thus they should not be credited. It is
beyond cavil that Doe was intoxicated and combative at the time
he made the admissions, and intoxicated enough that he
misidentified an officer's gender. Nonetheless, Doe's
explanation that he came to believe he molested the boy because
a jail guard taunted Doe earlier strained credulity, and Doe had
the presence of mind to refuse an interview by the police. The
examiner was within her discretion to discredit Doe's
explanation for his admissions. See Doe No. 10800, 459 Mass. at
633.
Equally unpersuasive is Doe's contention that the examiner
had to find the allegations of Doe's sexual misconduct
unreliable because his friend testified at the preliminary
hearing in a New York court that he did not witness the
incident. Although the friend initially told Doe that the
molestation could not have happened because the two were
together the whole day, the friend stated that the crime was
"very possible." He explained that, although he was generally
with the friend or the boy, this was only for "most of the
time." In short, the friend did not provide an alibi for Doe.
12
Accordingly, it was reasonable for the examiner to credit the
hearsay report that Doe sexually assaulted the four year old
boy.8
4. Subsidiary findings. In addition to challenging the
underlying evidence, Doe challenges the examiner's factual
finding that he molested the boy. Due process requires SORB to
prove a sex offender's risk classification by clear and
convincing evidence. See Doe, Sex Offender Registry Bd. No.
380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015)
(Doe No. 380316). The appellate courts have not had occasion,
however, to determine whether subsidiary facts must be proved by
a preponderance of the evidence or by clear and convincing
evidence. We conclude that they must be proved by a
preponderance of the evidence.
In a criminal case, the Commonwealth must prove all
elements of the crime beyond a reasonable doubt. The standard
of proof at a criminal trial reflects the United States Supreme
Court determination that "no person shall be made to suffer the
onus of a criminal conviction except upon sufficient proof."
Jackson v. Virginia, 443 U.S. 307, 316 (1979). Despite this
The allegation that Doe exposed himself to the boy lacks
8
many of these indicia of reliability. Although the examiner
found in passing that the exposure occurred, it played no part
in her analysis of the aggravating factors and bears little
weight compared to molestation of a four year old boy.
Accordingly, any error in this finding is inconsequential.
13
heightened standard of proof, the highest known to our
jurisprudence, "preliminary questions of fact and subsidiary
facts need only be proved by a preponderance of the evidence."
Commonwealth v. Edwards, 444 Mass. 526, 543 (2005). Accord
Commonwealth v. The Ngoc Tran, 471 Mass. 179, 187 (2015)
(evidence of absence of defendant's mental impairment was
subsidiary fact that jury were not required to find beyond
reasonable doubt); Commonwealth v. Oppenheim, 86 Mass. App. Ct.
359, 366-367 (2014) (preponderance of evidence standard governs
jury's determination whether defendant authored instant message
confession); Commonwealth v. Beaz, 69 Mass. App. Ct. 500, 504
(2007) (judge gave erroneous jury instruction that inferences
must be based on facts proved beyond reasonable doubt);
Commonwealth v. Matthews, 49 Mass. App. Ct. 365, 368 n.2 (2000)
(defendant entitled to reasonable doubt instruction only with
respect to inference that is element of crime).
Similarly, in care and protection proceedings, termination
of parental rights requires clear and convincing evidence of
parental unfitness. Care & Protection of Vieri, 92 Mass. App.
Ct. 402, 404-405 (2017). Subsidiary facts underlying the
ultimate disposition, however, need not be supported by the same
standard of proof. See Care & Protection of Laura, 414 Mass.
788, 793 & n.4 (1993) (in care and protection proceedings,
subsidiary findings need be proved only by preponderance of
14
evidence); Care & Protection of Vick, 89 Mass. App. Ct. 704, 706
(2016) ("In care and protection cases, the judge's subsidiary
findings must be proved by a preponderance of the evidence").
In Care & Protection of Laura, supra at 791-793, the Supreme
Judicial Court surveyed various areas of law in which the
ultimate fact had to be proved at a higher standard of proof and
observed that, in all of these areas of law, subsidiary facts
need be proved only by a preponderance of the evidence. Like
the Supreme Judicial Court in Care & Protection of Laura, we
follow the analogy and recognize that subsidiary facts must be
proved only by a preponderance of the evidence, though the
appropriateness of the classification must be proved by clear
and convincing evidence. See Adoption of Leland, 65 Mass. App.
Ct. 580, 583 (2006), quoting Care & Protection of Laura, supra
at 793 ("While subsidiary findings must be proved by a fair
preponderance of the evidence, taken together these findings
must prove parental unfitness, which is 'the critical inquiry,'
by clear and convincing evidence"). As in Care & Protection of
Laura, this applies even where the subsidiary fact is as
consequential as an act of sexual abuse. Id.Applying this standard here, the examiner properly found by
a preponderance of the evidence that Doe molested the boy. The
hearsay reports of the incident, combined with corroboration and
other indicia of reliability, provided the examiner with an
15
adequate basis to conclude that the molestation occurred. Cf.
Bukin, 467 Mass. at 520, quoting Commonwealth v. Durling, 407
Mass. 108, 118 (1990) ("while '[u]nsubstantiated and unreliable
hearsay cannot, consistent with due process, be the entire basis
of a probation revocation,' '[w]hen hearsay evidence is reliable
. . . , then it can be the basis of a revocation'").
Doe also challenges the examiner's factual finding
regarding the warning he received about the consequences of
viewing pornography in a public library prior to the child
pornography incident. The examiner stated that the police
"concluded that 'no criminal activity was afoot'" but that the
officer "advised [Doe] of the consequences of such activity."
The examiner found aggravating the fact that Doe viewed child
pornography in the same public library approximately one year
later after being warned not to do so. These findings are well
supported by the police report recounting the warnings given.9
Doe's argument that "[t]he Examiner treated Doe as if he was
guilty of a crime" is misplaced, as the examiner found only that
the warning had been given and appeared to credit the police
9 To the extent that Doe challenges the hearsay nature of
this evidence, the examiner could find that a police report
recounting actions taken by the police themselves was
substantially reliable. See Commonwealth v. Foster, 77 Mass.
App. Ct. 444, 450 (2010) (in probation violation hearing, judge
could rely on police observations described in police report).
16
report's conclusion that Doe had committed no crime on that
occasion.
5. Substantial evidence to support classification. Doe
challenges whether there is substantial evidence to support the
examiner's classification. "Substantial evidence is 'such
evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Doe No. 10800, 459 Mass. at 632,
quoting G. L. c. 30A, § 1 (6). Because Doe was classified as a
level two sex offender, the hearing examiner had to (and did)
find clear and convincing evidence that (1) "the risk of
reoffense is moderate" and (2) "the degree of dangerousness
posed to the public is such that a public safety interest is
served by public availability of registration information."
G. L. c. 6, § 178K (2) (b). See Noe, Sex Offender Registry Bd.
No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 197
(2018). Under the clear and convincing standard, "[t]he
evidence must be sufficient to convey a 'high degree of
probability' that the contested proposition is true." Doe No.
380316, 473 Mass. at 309, quoting Callahan v. Westinghouse
Broadcasting Co., 372 Mass. 582, 588 n.3 (1977).
We review the examiner's finding that clear and convincing
evidence supported the classification to determine whether it
was supported by substantial evidence. In doing so, we may
usefully analogize to care and protection cases, where we review
17
determinations of parental unfitness made under the clear and
convincing standard. See Adoption of Anton, 72 Mass. App. Ct.
667, 673 (2008). In Adoption of Olivette, 79 Mass. App. Ct.
141, 157 (2011), we affirmed a judge's parental unfitness
finding based on hearsay reports of sexual abuse. In Adoption
of Kimberly, 414 Mass. 526, 529-530 (1993), the Supreme Judicial
Court affirmed a judge's parental unfitness finding based on the
danger of the repetition of sexual abuse if the father had
access to children he had sexually abused.
Guided by these cases, we discern substantial evidence to
support the examiner's classification decision where Doe was
convicted of a child pornography charge and, while awaiting
sentencing, molested a four year old boy in his friend's care.
These facts amply supported the high risk factors found by the
examiner, such as Doe's repetitive and compulsive behavior and
evidence that Doe sexually assaulted an extravulnerable child
victim. See G. L. c. 6, § 178K (1) (a) (ii-iii). We can
discern no error in the examiner's weighing of these aggravating
factors against the mitigating factors. Cf. Adoption of
Jacques, 82 Mass. App. Ct. 601, 608 (2012) ("Weighing strengths
against weaknesses is within the core competency of the trial
judge, who has the benefit not only of the evidence, but of
seeing and assessing the parents themselves"). Accordingly, we
conclude that the examiner's determination that Doe poses a
18
moderate risk of reoffense such that public safety would be
served by the public availability of registration information
was supported by substantial evidence.
Judgment affirmed.