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
23-P-177
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527405
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his final classification by the Sex Offender
Registry Board (board) as a level two sex offender. He argues
that the hearing examiner failed to properly apply the
regulatory factors, and that the decision is not supported by
substantial evidence and was arbitrary and capricious. We
affirm.
1. Governing offense. On February 27, 2019, the victim,
Doe's girlfriend of two months, reported to police that she had
been sexually assaulted by Doe. The victim went to Doe's
trailer to end their relationship. An argument followed, and
Doe took the victim's wallet, keys and phone, and wrapped his
arm around her to prevent her from leaving the trailer. The
victim tried to push him away and was "hitting him in the back
telling him to put her down." The victim also repeatedly told
Doe that she did not want to have sex. Doe threw the victim
over his shoulder, carried her to his bedroom, and penetrated
her vagina with his penis. The victim left Doe's trailer and
reported the assault to the police. She also underwent a sexual
assault examination at a local hospital. A deoxyribonucleic
acid (DNA) profile developed from a vaginal swab taken from the
victim was later linked to Doe.
Doe was arrested and charged with rape and kidnapping. He
pleaded guilty to the lesser included offense of indecent
assault and battery on a person aged fourteen or older and
kidnapping, and was sentenced to two and a half years in the
house of correction, with six months to serve and the balance
suspended for a period of two years.1
2. Other offenses. On May 20, 2007, Doe was arrested in
Rhode Island for masturbating on a public street. He was
charged with disorderly conduct, convicted, and received a six
month probation sentence. As part of the Rhode Island sentence,
Doe was ordered to undergo a sex offender evaluation with follow
up treatment if deemed necessary. In addition, Doe has a
lengthy criminal history in Massachusetts, Rhode Island, and
1 Doe also received a two year term of probation on the
kidnapping charge. Both the suspended sentence and the
probationary sentence terminated on January 7, 2022.
2
Georgia from 1990-2019. Offenses include crimes of violence,
drug and alcohol offenses, property crimes, and motor vehicle
offenses.
3. Hearing examiner's decision. The board notified Doe of
his duty to register as a level three sex offender. Doe
requested a hearing to challenge the board's decision.
Following a hearing, and after applying the regulatory factors
as promulgated under 803 Code Mass. Regs. § 1.33 (2016), the
hearing examiner found that Doe presented a moderate risk to
reoffend and a moderate degree of dangerousness, "such that a
public safety interest is served by public access and Internet
publication of his registry information." He ordered that Doe
register as a level two sex offender.
In reaching this conclusion, the hearing examiner applied
the following high risk and risk elevating factors: factor 2
(repetitive and compulsive behavior), factor 16 (public place),
and factor 20 (diverse sexual behavior).2 The hearing examiner
also applied factor 10 (contact with the criminal justice
system), factor 11 (violence unrelated to sexual assaults), and
factor 13 (non-compliance with community supervision). The
hearing examiner applied factor 9 (alcohol and substance abuse)
2 The hearing examiner’s application of factors 2 and 20
were based on both the underlying sexual assault and the 2007
disorderly conduct conviction; factor 16 was based on the
disorderly conduct conviction.
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based on Doe's history of charges for drug and alcohol related
crimes, and Doe's intoxication during the underlying sexual
assault. Finally, based on his finding that the governing
offense included penile vaginal penetration of an "extrafamilial
victim" (Doe's girlfriend), the hearing examiner considered
factor 7 (relationship between the offender and victim) and
factor 19 (level of physical contact).
The hearing examiner also considered several risk
mitigating factors. At the time of his classification, Doe was
serving a two year term of probation. However, because of his
"demonstrated difficulty with adhering to the terms of
previously sentenced probation," the hearing examiner gave
moderate weight to risk mitigating factor 28 (supervision by
probation or parole). The hearing examiner gave full weight to
factor 30 (advanced age) because Doe was fifty years old at the
time of classification.
Finally, the hearing examiner considered additional
information submitted by Doe. As to risk mitigating factor 33
(home situation and support system), the hearing examiner
considered nine letters from Doe's family and friends, as well
as Doe's girlfriend's testimony at the hearing. However,
concluding that only one of the letters indicated both knowledge
of Doe's underlying sex offense and support of his
rehabilitation, the hearing officer found that Doe "moderately
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established a positive home situation and support system."
While he credited Doe's compliance with probation conditions
related to sobriety, in applying factor 34 (materials submitted
by the sex offender regarding stability in the community), the
hearing examiner gave this risk mitigating factor minimal
consideration because of a 2020 conviction for operating under
the influence of intoxicating liquor.
4. Discussion. "We review a judge's consideration of an
agency decision de novo." Doe, Sex Offender Registry Bd. No.
523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89
(2019). Our review of the board's decision is limited, and we
will not disturb the board's classification unless we determine
"that the decision is in excess of the board'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" (citation omitted). Doe, Sex
Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490
Mass. 759, 762 (2022) (Doe No. 6729). In reviewing the board's
decision, "we 'give due weight to [its] experience, technical
competence, and specialized knowledge'" (citation omitted).
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 649 (2019).
a. Risk elevating factors. Doe argues that the hearing
examiner's application of three risk elevating factors was
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arbitrary and capricious. First, Doe contends that factor 2
(repetitive and compulsive behavior) was erroneously applied
because his 2007 conviction for disorderly conduct in Rhode
Island is not a sexual offense. "Factor 2 is applied when a sex
offender engages in two or more separate episodes of sexual
misconduct . . . The board 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." 803 Code Mass. Regs. § 1.33(2)(a) (2016).
Here, Doe's disorderly conduct charge stemmed from a police
investigation of Doe masturbating on a public street. In
determining a sex offender's risk of reoffense and
dangerousness, "the board may consider subsidiary facts that are
proved by a preponderance of the evidence." Doe, Sex Offender
Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass.
749, 757 (2021). The hearing examiner, relying on the
underlying police report, found that Doe was "sanctioned for
sexual misconduct in 2007 and then committed a sex offense."
The hearing examiner also noted that the Rhode Island judge
sentenced Doe "to six months of probation with the condition
that he undergo a sex offender program, as necessary." Where,
as here, "involvement with the criminal justice system fails to
deter the offender from offending again," we discern no error in
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the hearing examiner's application of factor 2. See Doe No.
6729, 490 Mass. at 766-767.
For similar reasons, the hearing examiner did not err in
applying factor 16 (public place). Factor 16 applies where an
offender commits a sex offense "or engage[s] in sexual
misconduct" in a public place. 803 Code Mass. Regs.
§ 1.33(16)(a) (2016). Because Doe's 2007 conviction involved
sexual misconduct, the hearing examiner did not err in assigning
weight to this factor.
Finally, Doe argues that the hearing examiner misapplied
factor 19 (level of physical contact) because Doe was not
convicted of rape. A hearing examiner may consider sexual
conduct that did not result in a criminal conviction where, as
here, the evidence of the conduct is reliable. See Doe, Sex
Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd.,
88 Mass. App. Ct. 73, 79-80 (2015). An examiner "may admit and
give probative effect to that evidence 'which reasonable persons
are accustomed to rely in the conduct of serious affairs.'" Id.
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. Doe
No. 356011, supra at 77.
In applying factor 19, the hearing examiner properly relied
on the victim's statement to police where she reported that when
7
she tried to leave Doe's trailer, he "physically prevented her"
from doing so. Further, the victim "overtly protested and
objected to sexual contact but was forced to have sex against
her will" and reported that Doe "overpower[ed] her . . . [and]
was able to put his penis into her vagina against her will."
This was corroborated by testing of a vaginal swab taken from
the victim that matched Doe's deoxyribonucleic acid (DNA)
profile. Where, as here, the victim's account was "plausible,
consistent and highly detailed," and was corroborated by DNA
testing, the hearing examiner did not err in applying factor 19.
Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender
Registry Bd., 70 Mass. App. Ct. 309, 313 (2007).
b. Stability and community support. Doe next contends
that the hearing officer did not properly apply factors 33 (home
situation and support network) and factor 34 (stability in the
community) because he failed to give them full mitigating
weight. "A hearing examiner has discretion . . . to consider
which statutory and regulatory factors are applicable and how
much weight to ascribe to each factor." Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 109-110 (2014). As to factor 33, Doe submitted nine
letters of support from family and friends, and his girlfriend
testified at the hearing. Although the letters expressed
general support of Doe, the hearing examiner found that only one
8
explained how the writer would provide the kind of support
identified by factor 33. See 803 Code Mass. Regs. § 1.33(33)(a)
(2016). Moreover, the hearing examiner found that three of the
letters did not indicate the author's "knowledge of [Doe's]
sexual offending history," and, importantly, that Doe's
girlfriend's testimony at the hearing that she "does not believe
[the sexual assault] occurred" reflected an "unwillingness to
accept the circumstances of the governing sex offense." Because
"the examiner's detailed written decision was balanced and
fair," see Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct.
803, 813 (2006), we discern no error.
Similarly, the hearing examiner did not abuse his
discretion in ascribing moderate weight to factor 34 (stability
in the community). This factor requires the board to give
"mitigating consideration to materials submitted by the offender
that demonstrate stability in the community. . . . including
. . . sustained sobriety." 803 Code Mass. Regs. § 1.33(34)(a)
(2016). The hearing examiner considered Doe's compliance with
probation conditions to abstain from alcohol and undergo regular
screenings, and his girlfriend's testimony that Doe did not
consume alcohol after moving into her home in May 2020.
However, the hearing officer noted that Doe was convicted of a
second offense of operating under the influence of liquor in
2020. Because the concept of stability inherently includes a
9
time element, and Doe's sobriety was relatively recent, the
hearing examiner did not abuse his discretion in ascribing
"minimal" weight to factor 34.
c. Substantial evidence. Finally, Doe contends that his
level two classification was not supported by clear and
convincing evidence because the hearing examiner took a
"checklist approach" in determining his risk of reoffense,
dangerousness and whether Internet publication of his
biographical information was warranted. We are not persuaded.
"Where the board determines that the risk of reoffense is
moderate and the degree of dangerousness posed to the public is
such that a public safety interest is served by public
availability of registration information, it shall give a level
2 designation to the sex offender." G. L. c. 6, § 178K (2) (b).
As discussed supra, the hearing examiner explained his
analysis of risk elevating factors and his weighing of
applicable risk-mitigating factors. Where the classification is
supported by "such evidence as a reasonable mind might accept as
10
adequate to support a conclusion," G. L. c. 30A, § 1 (6), we do
not disturb the board's decision.
Judgment affirmed.
By the Court (Rubin, Blake &
Shin, JJ.3),
Assistant Clerk
Entered: April 4, 2024.
3 The panelists are listed in order of seniority.
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