By the Court (TRAINOR, GRAINGER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the decision of a judge of the Superior Court upholding a decision of the Sex Offender Registry Board (board) requiring that he register as a level three sex offender. On appeal, he argues that the hearing examiner's decision to classify him as a level three sex offender was not supported by substantial evidence, and that the hearing examiner erroneously denied both his motion to dismiss on the grounds of res judicata and his motion for expert witness funds. We affirm.
1. Substantial evidence. The board's classification “may only be set aside if the 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, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006)( Doe, No. 10216). “Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ “ Ibid., quoting from G.L. c. 30A, § 1(6). Our review of the board's decision must also accord due weight to that agency's “experience, technical competence and specialized knowledge.” Ibid., quoting from G.L. c. 30A, § 14(7). In reaching her decision, the hearing examiner in this case cited, among other factors, the plaintiff's repeated incidents of open and gross lewd and lascivious behavior and distributing obscene matter to a minor, which date back to 1993 and are as recent as 2007, his lack of success with rehabilitation, and the fact that upon his release from incarceration he will not have the benefit of probation supervision, sex offender treatment, or a stable living environment. She accordingly found that the plaintiff displayed a high degree of dangerousness, repetitive and compulsive behavior, and a high risk of reoffense.
The plaintiff argues that in reaching her decision the hearing officer ignored several factors weighing in favor of a lower level classification. However, it is within the hearing examiner's discretion to apply the regulatory factors he or she considers applicable and to determine how much weight to give each of those factors. See Doe, No. 10216, supra at 788;Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011), citing Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 812–813 (2006). The decision reflects the hearing officer's careful weighing of the relevant aggravating and mitigating factors and is well supported by substantial evidence.
2. Motion to dismiss. In his motion to dismiss, the plaintiff argued that an earlier 2004 adjudication was “res judicata” as to his classification as a level two offender and that his 2006 and 2007 sex convictions did not, as matter of law, raise his dangerousness level. The plaintiff is mistaken. First, under 803 Code Mass. Regs. § 1.37C(3) (2004), the board has the authority to conduct new hearings in light of new offenses. In this case, the plaintiff committed two new offenses following the 2004 adjudication. Second, principles of res judicata do not apply because the causes of action are not identical. The current risk of reoffense was different in 2009 than it was in 2004 due to the new offenses. See Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005).
The regulation provides that: “The [b]oard may, on its own initiative, seek to reclassify any registered and finally classified sex offender upon receipt of any information that indicates the offender may present an increased risk to reoffend or degree of dangerousness. This could be based on, but not limited to, information indicating the sex offender has ... committed a new sex offense.”
3. Expert funds. The plaintiff lastly argues that the hearing officer erred in denying his motion for funds to hire an expert in the subject of sex offender recidivism and the dangerousness of voyeuristic and exhibitionist behavior.
Expert testimony is not required in a classification hearing, and the hearing examiner is afforded discretion in applying the regulatory factors. See Doe, No. 10216, 447 Mass. at 784–786. The burden is “on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert.” Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008) ( Doe, No. 89230 ). In Doe, No. 89230, the court indicated an expert witness may be beneficial when certain factors are implicated. See id. at 772–773;803 Code Mass. Regs. § 1.40 (2002). In denying the motion, the hearing examiner specifically noted that none of the factors cited were applicable to the present case. There was no error.
Judgment affirmed.
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