NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-801
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 5976
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment
affirming his reclassification by the Sex Offender Registry
Board (SORB) as a level three sex offender. 1 On appeal, the
plaintiff claims that the hearing examiner (1) abused his
discretion by admitting and relying on certain hearsay
statements, and (2) erred by reclassifying the plaintiff as a
level three sex offender. We affirm.
1 In 2005, the plaintiff was classified as a level two sex
offender after he pleaded guilty in 1998 to indecent assault and
battery on a child under fourteen, G. L. c. 265, § 13B, and
accosting, G. L. c. 272, § 53. These charges were brought after
an eleven year old girl (victim 1) reported to police that her
neighbor, the plaintiff, commented on victim 1's breasts, pulled
her near him, kissed her on the lips, and then placed his head
on her breasts. Victim 1 attempted to pull away, but the
plaintiff held her. She also reported that the plaintiff
repeatedly made lewd comments to her and her friend regarding
their breasts.
Discussion. "Pursuant to G. L. c. 6, § 178L (3), [SORB]
may reclassify any finally classified sex offender upon receipt
of information that indicates the offender may present an
increased risk to reoffend or degree of dangerousness," 803 Code
Mass. Regs. § 1.32(1) (2016), including "information indicating
the sex offender has . . . [b]een investigated for or charged
with committing a new sex offense." 803 Code Mass. Regs.
§ 1.32(2) (2016). "A reviewing court may set aside or modify
[SORB]'s classification decision where it determines that the
decision is in excess of [SORB]'s statutory authority or
jurisdiction, is based on an error of law, is not supported by
substantial evidence, or is an arbitrary and capricious abuse of
discretion." Doe, Sex Offender Registry Bd. No. 3177 v. Sex
Offender Registry Bd., 486 Mass. 749, 754 (2021) (Doe No. 3177).
See G. L. c. 30A, § 14 (7).
In making a classification decision, it is within the
hearing examiner's discretion to determine which statutory and
regulatory factors apply and how much weight to ascribe to each
factor. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex
Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe No.
68549). See also G. L. c. 6, § 178K (1) (a)-(l); 803 Code Mass.
Regs. § 1.33 (2016). This court gives "due weight to [SORB's]
experience, technical competence, and specialized knowledge,"
G. L. c. 30A, § 14 (7), and the burden is on the plaintiff, as
2
the appealing party, to demonstrate that the decision was
invalid. See Doe No. 3177, 486 Mass. at 757.
SORB's classification decision will be upheld if supported
by "substantial evidence," which is "such evidence as a
reasonable mind might accept as adequate to support a
conclusion." G. L. c. 30A, § 1 (6). See G. L. c. 30A, § 14 (7)
(e); Doe No. 68549, 470 Mass. at 109. "It is the province of
[SORB], not this court, to weigh the credibility of the
witnesses and resolve any factual disputes." Doe, Sex Offender
Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.
603, 633 (2011) (Doe No. 10800). "The range of evidence that
may be considered by hearing examiners is not limited by the
same rules of evidence that apply in court proceedings; hearing
examiners may exercise their discretion to admit and give
probative value to evidence 'if it is the kind of evidence on
which reasonable persons are accustomed to rely in the conduct
of serious affairs.'" Doe, Sex Offender Registry Bd. No. 339940
v. Sex Offender Registry Bd., 488 Mass. 15, 26 (2021), quoting
G. L. c. 30A, § 11 (2). The hearing examiner may also consider
subsidiary facts proven by a preponderance of the evidence. See
Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender
Registry Bd., 95 Mass. App. Ct. 85, 91-93 (2019) (Doe No.
523391).
3
"In the context of administrative proceedings, hearsay
evidence bearing indicia of reliability constitutes admissible
and substantial evidence." Doe No. 10800, 459 Mass. at 638.
Such indicia of reliability 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, Sex Offender Registry Bd.
No. 10304, v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309,
312-313 (2007). The hearing examiner may also consider as
indicia of reliability "the consistency of the hearsay incident
with other, known behavior, admissions by the offender, and
independent corroboration" (citations omitted). Doe No. 523391,
95 Mass. App. Ct. at 89. On the other hand, "[i]ndicia 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." Id. at
89-90. However, "[t]he lack of criminal conviction does not
render information contained within a police report inadmissible
in an administrative proceeding." Id. at 90.
Here, the plaintiff claims that the hearing examiner abused
his discretion by admitting and relying on hearsay statements in
a Department of Children and Families' (DCF) report pursuant to
G. L. c. 119, § 51A, and a police report, in both of which the
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plaintiff's girlfriend's fifteen year old daughter (victim 2)
alleged that he sexually abused her on several occasions. In his
decision to reclassify the plaintiff, the hearing examiner found
that although the plaintiff had not yet been convicted of these
offenses at the time of the hearing, victim 2's hearsay
statements in these reports were "sufficiently detailed and
reliable to be considered as further sexual misconduct."
The § 51A report provides that victim 2's boyfriend, James
(a pseudonym), initially disclosed the sexual abuse allegations
to his school guidance counsellor -- a mandated reporter as
defined in G. L. c. 119, § 21. James showed his guidance
counsellor text messages between him and victim 2, exchanged
over Facebook, in which victim 2 stated that the plaintiff tried
to get her to take her clothes off; wanted her to sit with him
when no one was home; tried to give her a massage; and tried to
get her to "drink," although alcohol was not specified.
Following this meeting, the mandated reporter met with
victim 2 and her school guidance counsellor, and victim 2
reported that the most recent incident was about one week prior,
when the plaintiff tried to put his arm around her. During the
meeting, victim 2 was "very teary and crying," and stated that
nobody, including her mother, knew about the alleged sexual
abuse, which victim 2 reported had been occurring since she was
in seventh grade, increasing in frequency.
5
A police investigation commenced shortly after the § 51A
report was filed. The police detective's report contains a
brief summary of the § 51A report and a summary of victim 2's
subsequent forensic interview at the Children's Advocacy Center
(CAC). The detective had observed the interview via a live feed
in a nearby conference room, and the audio and video were
recorded.
When the trained forensic interviewer asked victim 2 what
brought her to CAC, victim 2 replied, "Um, my stepdad touched
me." She then explained that he is not actually her stepfather
but her mother's boyfriend of five years and identified him as
the plaintiff. When asked to explain what she meant when she
stated that the plaintiff had touched her, victim 2 asked if she
could come back to that question. After some time, victim 2 was
asked what she did not like about the plaintiff. She
immediately became emotional and stated, "What he did to me."
The forensic interviewer asked when the plaintiff had touched
her. Victim 2 provided a very detailed account of a recent
incident during which the plaintiff rubbed her shoulders and
legs, moved her underwear and shorts to her other thigh, and
then touched the outside of her vagina underneath her clothes
with his thumb in a circular motion.
Victim 2 also described incidents during which the
plaintiff told her that he would pay her twenty dollars if she
6
took nude pictures of herself for him; tried to give her
massages and get her to take her clothes off; grabbed her breast
underneath her clothes; and slapped her buttocks underneath her
clothes. In particular, victim 2 detailed an incident two years
prior where she was playing video games in her mother's room
when the plaintiff began rubbing her shoulders and back and
asked her to take her clothes off. When victim 2 refused, the
plaintiff reached underneath her shirt, began massaging her
ribs, and then grabbed her breast. The plaintiff had also told
victim 2 that he could teach her how to treat her former
girlfriend "real right," and if she ever needed to show her
girlfriend a "fun time," he could show victim 2 how to do it.
The police detective's report also summarizes James's
subsequent forensic interview at CAC, during which James stated
that victim 2 told him "a month or two ago" that the plaintiff
"tries touching her and stuff." Again, the detective observed
the interview via a live feed in a nearby conference room, and
the audio and video were recorded. Although James no longer had
the cell phone containing the text messages that he showed his
guidance counsellor and could not log onto his Facebook account,
he was able to recall what victim 2 told him.
Following the investigation, the plaintiff was charged with
two counts of indecent assault and battery on a person aged
fourteen or older, G. L. c. 265, § 13H, and one count of
7
enticing a child under the age of sixteen, G. L. c. 265,
§ 26C (b). 2 These charges were still pending at the time of the
2021 reclassification hearing.
The hearing examiner did not abuse his discretion by
admitting and relying on hearsay statements in the § 51A report
and police report. As the hearing examiner and Superior Court
judge noted, victim 2 could recall many specific details about
the sexual assaults, including what she was doing, the location
of other household members, what she and the plaintiff were
wearing, and the specific course of action the plaintiff took
during the incidents. That she could not always remember
exactly when each incident occurred or certain little details is
understandable, given that she described incidents that occurred
over the course of three years. Moreover, that victim 2 did not
tell certain people about the plaintiff's inappropriate
behavior, that some individuals expressed doubts about the
veracity of the allegations, and that the messages between James
and victim 2 were not available at the hearing is similarly
understandable under the circumstances. The incidents described
in the statements were plausible, and two such incidents were
2 One of the charges of indecent assault and battery on a person
aged fourteen or older, G. L. c. 265, § 13H, was reduced from
rape of a child with force, G. L. c. 265, § 22A, following
arraignment.
8
similar to the prior sexual offenses 3 against victim 1 -- also a
female child -- to which the plaintiff had pleaded guilty.
Additionally, the detective heard victim 2's statements
during her forensic interview via a recorded live feed, which he
inferably could have referred to in writing the police report.
James's guidance counsellor, the mandated reporter, also spoke
to victim 2 directly, and James's descriptions of what victim 2
told him were generally consistent with victim 2's own
statements. Thus, the hearsay statements bore sufficient
indicia of reliability to constitute admissible and substantial
evidence of further sexual misconduct.
The plaintiff also argues that the hearing examiner erred
by reclassifying him as a level three sex offender. We
disagree. "Where [SORB] determines that the risk of reoffense
is high and the degree of dangerousness posed to the public is
such that a substantial public safety interest is served by
active dissemination, it shall give a level [three] designation
to the sex offender." G. L. c. 6, § 178K (2) (c). See Doe No.
3177, 486 Mass. at 754.
The hearing examiner adequately explained how the presence
and application of the relevant factors in the context of the
3 Although accosting is not an enumerated sex offense under G. L.
c. 6, § 178C, the hearing examiner found that it was sexual in
nature and considered it in his overall assessment of the
plaintiff.
9
facts and circumstances in this case support, by clear and
convincing evidence, that the plaintiff should be classified as
a level three sex offender. He first noted that he applied two
high-risk factors with increased weight: repetitive and
compulsive behavior (factor 2); and adult offender with a child
victim (factor 3). See 803 Code Mass. Regs. § 1.33(2), (3)
(2016). As the regulations provide, "[SORB] may give increased
weight to offenders who have been discovered and confronted (by
someone other than the victim) or investigated by an authority
for sexual misconduct and, nonetheless, commit a subsequent act
of sexual misconduct. The most weight shall be given to an
offender who engages in sexual misconduct after having been
charged with or convicted of a sex offense." 803 Code Mass.
Regs. § 1.33(2)(a) (2016). Additionally, "[f]or purposes of
factor 3, [SORB] shall consider any victim younger than
[sixteen] years old as a 'child victim.'" 803 Code Mass. Regs.
§ 1.33(3)(a) (2016). "Offenders who target prepubescent
children, generally younger than [thirteen] years old, are more
likely to have a deviant sexual interest and, therefore, pose an
even higher risk of reoffense and degree of dangerousness and
are given greater weight." Id.
Here, the plaintiff was previously convicted of sexual
offenses with an eleven year old victim, and then engaged in
further sexual misconduct against victim 2 when she was fifteen
10
years old and younger. Thus, the hearing examiner was entitled
to apply and give increased weight to factors 2 and 3.
The hearing examiner was also entitled to apply several
risk-elevating factors: relationship between the offender and
victim (factor 7); number of victims (factor 22); contact with
the criminal justice system (factor 10); violence unrelated to
sexual assaults (factor 11); and noncompliance with community
supervision (factor 13). See 803 Code Mass. Regs. § 1.33(7),
(10) (2016).
The hearing examiner found that the relationships between
the plaintiff and his two victims were extrafamilial because
victim 1 was a neighbor and victim 2 was his girlfriend's
daughter. See 803 Code Mass. Regs. § 1.33(7)(a)(2) (2016)
("Extrafamilial Victim includes . . . [a]ny person who has a
recognizable non-intrafamilial relationship with the offender,
such as a friend, co-worker, or acquaintance. . .").
Additionally, the hearing examiner applied factor 10 with
moderate weight because although the plaintiff has a lengthy
criminal history, most of his contact with the criminal justice
system resulted in minimal sentences and dismissals. 4 The
hearing examiner also applied moderate weight to factor 11
4 It appears from the decision that the hearing examiner
implicitly recognized the plaintiff's offense-free time in the
community from 2012 to 2018. See 803 Code Mass. Regs.
§ 1.33(29) (2016). In any event, this is not significant.
11
because although the plaintiff's criminal history included
charges of intimidation of a witness and assault and battery on
a police officer, the plaintiff's last violent offense occurred
eight years prior to the hearing. Finally, the hearing examiner
applied moderate weight to factor 13 because the plaintiff had
violated his probation in 1996 and 2013, which occurred fifteen
and eight years prior to the hearing, respectively.
Regarding risk-mitigating factors, the hearing examiner
applied advanced age (factor 30) and materials submitted by the
sex offender regarding stability in the community (factor 34).
As the plaintiff was forty-four years old at the time of the
hearing and SORB only considers advanced age to have a
significant mitigating effect when the offender with child
victims is sixty years old or older, the hearing examiner only
applied minimal weight to this mitigating factor. See 803 Code
Mass. Regs. § 1.33(30)(a) (2016). For factor 34, the plaintiff
listed an address and reported that he is presently self-
employed but did not specify the business. The hearing examiner
applied moderate weight to this factor.
Contrary to the plaintiff's claims, the hearing examiner
did not apply these factors "mechanically." The hearing
examiner outlined his reasons for applying each factor and for
the weight given each factor, and he weighed all the factors in
concluding that the plaintiff's risk to reoffend, degree of
12
dangerousness, and the public safety interest are such that he
should be classified as a level three sex offender. In sum, the
decision to classify the plaintiff as a level three sex offender
did not exceed SORB's statutory authority or jurisdiction, was
not based on an error of law, was supported by substantial
evidence, and was not an arbitrary and capricious abuse of
discretion. See Doe No. 3177, 486 Mass. at 754.
Judgment affirmed.
By the Court (Meade, Singh &
Smyth, JJ. 5)
Assistant Clerk
Entered: January 5, 2024.
5 The panelists are listed in order of seniority.
13