MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Doe appeals from a Superior Court judgment affirming a Sex Offender Registry Board (SORB) decision to classify him as a level two sex offender. He argues that the decision must be vacated because the hearing examiner (1) failed to assign “any quantity of weight” to several regulatory factors, see 803 Code Mass. Regs. §§ 1.33 (2016), (2) improperly rejected portions of Does expert psychologists opinion regarding Does risk to reoffend and his danger to the public, and (3) misapplied factor 11 (violence unrelated to index offenses). Doe also claims that in light of the extended procedural history of this case, which we discuss below, and SORBs alleged errors, the current final decision should be applied nunc pro tunc to the date of SORBs original decision issued in 2013, thereby exempting his registry information from Internet publication. We affirm.
1. Procedural background. In May of 2002, Doe was charged with numerous criminal offenses, including five counts of aggravated rape. About three years later, on August 22, 2005, Doe pleaded guilty to three counts of aggravated rape and one count of indecent assault and battery. He was sentenced to serve three ten to eleven-year terms at the Massachusetts Correctional Institution at Cedar Junction concurrently, followed by a ten-year period of probation.
Just prior to his release from prison in 2013, Doe was classified as a level three sex offender. Doe appealed that decision, and while his appeal was pending, the Supreme Judicial Court issued its decision in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015), which changed the standard of proof in SORB decisions, and, in turn, entitled Doe to a new hearing. Accordingly, a new hearing was held in 2018, after which Doe was classified as a level two sex offender. That decision was reversed by a judge of the Superior Court on the ground that Does motion for funds to retain an expert was improperly denied. Doe subsequently retained an expert, and after a third hearing he was again classified as a level two sex offender. That decision is the subject of this appeal.
2. Does index sex offenses. Doe was in his early thirties when, on August 2, 1997, he approached a seventeen year old woman who was sleeping in a lounge chair in a cabana-like structure in her backyard. He restrained her by tying her to the chair, and then repeatedly raped her with his penis, fingers and tongue. The victim was unknown to Doe, but he had been watching or stalking her for some time, though unobserved, while he was working as a roofer on a house in the neighborhood. Doe was not charged with the crimes until 2001, when it was discovered that his deoxyribonucleic acid (DNA) matched the DNA recovered from the victim. As previously noted, he ultimately pleaded guilty to numerous offenses stemming from the sexual assault.
3. Does criminal and substance use history. Doe has an extensive criminal record that began when he was seventeen years old. There is no dispute that Doe suffers from alcohol use disorder and that some of his criminal conduct was the result of the excessive use of alcohol. He claimed that he was under the influence of alcohol when he committed the index sex offenses, and, in fact, the victim told the police that Doe smelled of alcohol when he assaulted her. Doe told his expert, Dr. Roger H. Gray, who evaluated him in 2012, 2019, and 2020, that he began drinking alcohol at the age of thirteen. In his 2020 evaluation of Doe, Dr. Gray opined that alcohol use was a major factor in the commission of the index crimes.
After his release from prison, and while on probation, Doe relapsed twice. He was convicted of operating a motor vehicle while under the influence of alcohol (OUI) fourth offense in 2014, and, in 2016, he admitted that he had consumed cocaine when questioned about substance use during a medical visit at Boston Medical Center. Dr. Gray was aware of the OUI conviction when he conducted the evaluation in 2020, but he did not know that Doe had consumed cocaine in 2016.
4. Does expert. Dr. Gray testified at Does classification hearing and opined that Does risk of reoffending was “miniscule” due to Does age, sobriety, physical condition, and lack of antisocial attitudes or sexual deviance. At the time of the hearing, Doe was fifty-five years old and had numerous health problems. He has diabetes, which requires daily insulin injections, frequent blood sugar checks, and careful monitoring of diet and activities. He walks with a significant limp and uses a cane to maintain stability. He also had steel rods surgically placed in his neck. In reaching his conclusion, Dr. Gray also considered Does stable home environment. He noted that Doe has two children with whom he has maintained a close relationship and significant support from his family and friends. Dr. Gray also testified that although Doe did not participate in sex offender treatment while incarcerated, he did not view that fact as a risk factor.
4. The hearing examiners decision. The hearing examiner applied several risk elevating factors in reaching his conclusion that Doe posed a moderate risk to reoffend and a moderate degree of dangerousness. He found that factor 7 (relationship between offender and victim), factor 8 (weapon, violence or infliction of bodily injury), factor 9 (alcohol and substance use), factor 18 (extravulnerable victim), factor 19 (level of physical contact), and factor 24 (less than satisfactory participation in sex offender treatment) applied because the victim was a stranger, Doe was intoxicated and used violence to subdue the victim, who was asleep at the time of the assault (and also, we note, a child), and Doe was noncompliant with sex offender treatment while he was incarcerated. The hearing examiner applied two additional risk elevating factors based on Does decades-long criminal history, factor 10 (contact with criminal justice system) and factor 11 (violence unrelated to sexual assaults). The hearing examiner further applied factor 13 (noncompliance with community supervision) based on the fact that Doe violated the terms of his probation multiple times.
The hearing examiner also considered several mitigating factors. He gave Doe full mitigating credit under factor 30 (advanced age), factor 33 (home situation and support systems), and factor 34 (stability in the community). The hearing examiner gave minimal mitigating weight to factor 28 (supervision by probation or parole) and factor 31 (physical condition).
Discussion. “A reviewing court may set aside or modify SORBs classification decision where it determines that the decision is in excess of SORBs statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence.” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), citing G. L. c. 30A, § 14 (7). “In reviewing SORBs decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ ” Id., quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013).
Doe first argues that the hearing examiners failure to “ascribe any quantity of weight” to seven risk elevating factors renders the decision “too general and conclusory to permit meaningful review.” Although the hearing examiner did not explicitly indicate the precise weight he attributed to certain factors, including factors 7, 8, 10, 11, 18, 19, and 24, we are not persuaded that this omission prevents us from conducting a meaningful review. As SORB notes in its brief at page 23, the first five of the seven factors referenced above do not require an attribution of weight, and while a specific weight was not attributed to factors 10 and 11, we assume without deciding that the hearing examiner gave both of those factors the maximum weight. In regard to factor 10 (contact with criminal justice system), the hearing examiner noted Does extensive criminal history, which contained sixty-one charges and demonstrated “[l]awlessness and antisocial behavior.” With regard to factor 11, as we discuss in more detail below, the hearing examiner found that there was “substantially reliable and credible evidence to conclude that [Doe] did in fact physically assault his [former] girlfriend.”
Next, Doe asserts that the hearing examiner improperly relied on hearsay contained within a police report from the Somerville police department as a basis for applying factor 11. The report was prepared by a police officer who responded to a domestic dispute on December 17, 2001, involving Doe and his former girlfriend. The girlfriend reported that Doe was “meddling in a dispute between she and her neighbor” that occurred two hours earlier. She also stated that Doe had “struck her in the face with his hand” during that altercation. The officer observed that the womans “cheek below her right eye was red and swollen.”
“A hearing examiner is not bound by the rules of evidence applicable to court proceedings.” Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019), quoting Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011) (Doe No. 10800). In the context of a sex offender classification hearing, hearsay evidence may be admissible if it bears sufficient indicia of reliability. Id. Here, the hearing examiner reasonably determined that the hearsay evidence was substantially reliable. The girlfriends allegations were corroborated by the observations of the police officer and were made under circumstances that supported her veracity. Furthermore, contrary to Does assertion, the absence of a conviction in connection with the incident did not render the information contained in the report inadmissible. Id. at 90. Accordingly, we discern no error in the application of factor 11.
Doe also contends that the hearing examiner failed to adequately consider his experts opinion. As previously noted, Dr. Gray testified as an expert witness at Does classification hearing and opined that Doe currently presented a “miniscule” risk of sexually reoffending. The “opinion of a witness testifying on behalf of a sex offender need not be accepted by the hearing examiner even where the board does not present any contrary expert testimony.” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 112 (2014), quoting Doe No. 10800, 459 Mass. at 637. Here, as the hearing examiner correctly observed, Dr. Grays opinion relied heavily on the doctors belief that Doe had maintained his sobriety since 2013. However, as Dr. Gray later acknowledged, Doe relapsed in 2014, and, unbeknownst to Dr. Gray, ingested cocaine in 2016. The hearing examiner also was skeptical of Dr. Grays reliance on Does physical condition as a factor that supported a conclusion that Doe had a low risk of reoffending. While it is true that Doe has an extensive history of severe medical problems, Doe suffered from many of these conditions at the time he committed the index sex offenses. In fact, Dr. Gray acknowledged that Doe was suffering from diabetes and lupus when he committed the index offenses in 1997. Also, as the hearing examiner noted, the fact that Does mobility is impaired does not limit his ability to sexually assault an unsuspecting victim. We therefore find no error in the hearing examiner giving this risk mitigating factor minimal weight.
Lastly, we discern no merit in Does claim that the SORBs decision classifying him as a level two offender should be applied nunc pro tunc to 2013.
2
The judge rejected this argument on the ground that Does final classification was the result of an “ongoing, continued process of classification” that culminated in a level two sex offender classification on January 21, 2020, rather than the initial level three classification issued on February 6, 2013. As the judge explained, “[i]t is thus simply not true, as a matter of fact or law, that [D]oes final classification would have properly issued [on] Feb. 6, 2013 (prior to July 12, 2013), but for ‘errors of the Board’ and two remands.” We agree with the judges analysis and, although our review of her decision is de novo, we reach the same conclusion. As a result, Doe is subject to Internet publication of his sex offender registry information.
Judgment affirmed.
FOOTNOTES
2
. On July 12, 2013, the Legislature amended the Sex Offender Registry Law and required SORB to publish on the Internet sex offender registry information of sex offenders who are classified at level two or three. The Supreme Judicial Court subsequently ruled that the amendment could not be applied to offenders who were classified as a level two prior to July 12, 2013. See Moe v. Sex Offender Registry Bd., 467 Mass. 598, 616 (2014).