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-688
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 17938
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe (Doe), appeals from a Superior
Court judgment affirming his reclassification by the Sex
Offender Registry Board (SORB or the board) as a level two sex
offender. On appeal, Doe claims that the hearing examiner
(examiner) abused his discretion by (1) rejecting Doe's expert
witness's opinion testimony; and (2) mechanically applying
SORB's regulatory factors which resulted in a decision that was
unsupported by substantial evidence, arbitrary, and capricious.
We affirm.
Background. We summarize the facts as found by the hearing
examiner, "supplemented by undisputed facts from the record,"
and reserve certain facts for later discussion. Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 606 (2011) (Doe No. 10800). Doe's governing offense stemmed from his sexual assault of
a fifty-two year old woman when Doe was forty-four years old.
Doe entered the woman's apartment while she was sleeping,
attacked her, pinned her to her bed, struck her in the face with
the telephone after she tried to call for help, forced oral sex
upon her, and thereafter demanded that she give him money. On
June 24, 2002, Doe was convicted of three counts of indecent
assault and battery on a person fourteen years of age or older,
and one count each of burglary, assault and battery by means of
a dangerous weapon, and assault and battery.
On or about June 6, 2013, SORB classified Doe as a level
three sex offender. On December 15, 2016, following the
issuance of Doe, Sex Offender Registry Bd. No. 380316 v. Sex
Offender Registry Bd., 473 Mass. 297 (2015), in which the
Supreme Judicial Court revised the standard of proof in SORB
decisions to clear and convincing evidence, Doe was reclassified
as a level two sex offender. See G. L. c. 6, § 178K (2) (b).
On February 10, 2020, Doe filed a motion for reclassification.
The examiner conducted de novo hearings on December 16, 2020,
and January 27, 2021, during which the parties submitted
documentary evidence. In addition, Dr. Fabian M. Saleh, a
forensic psychiatrist and expert witness, opined that Doe had a
"very low" risk to reoffend. On February 25, 2021, the examiner
issued a comprehensive written decision classifying Doe as a
2 level two sex offender. Doe sought judicial review of that
decision, see G. L. c. 30A, § 14, and, following a hearing on
Doe's motion for judgment on the pleadings, a Superior Court
judge denied the motion and affirmed the level two
classification. This appeal followed.
Discussion. 1. Standard of review. A reviewing court may
set aside a decision of the board if it determines "that the
decision is unsupported by substantial evidence or is arbitrary
or capricious, an abuse of discretion, or not in accordance with
law" (citation omitted). Doe, Sex Offender Registry Bd. No.
22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801
(2022). The reviewing court shall "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, Sex Offender Registry Bd. No. 10216 v. Sex
Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L.
c. 30A, § 14 (7). Doe therefore "bears a heavy burden of
establishing that the [board]'s decision was incorrect"
(citation omitted). Doe, Sex Offender Registry Bd. No. 3177 v.
Sex Offender Registry Bd., 486 Mass. 749, 757 (2021).
2. Classification determination. a. Doe's expert's
opinion. The examiner was not required to accept Dr. Saleh's
opinion regarding Doe's risk of reoffense, see Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
3 102, 112 (2014) (Doe No. 68549), and did not abuse his
discretion in rejecting it. The examiner did not, as Doe
suggests, ignore Dr. Saleh's low risk assessment or fail to
explain his reasons for reaching a different conclusion.
Rather, as evidenced by his thorough written decision, the
examiner considered the expert's opinion and explained the basis
for his disagreement and deviation therefrom. In particular,
the examiner applied two factors that Dr. Saleh either failed to
consider or declined to apply. 1 Further, the examiner chose not
to apply or give the same weight to three factors that Dr. Saleh
applied. 2 Doe, Sex Offender Registry Bd. No. 23656 v. Sex
Offender Registry Bd., 483 Mass. 131, 137 (2019) ("Doe is not
entitled to a guarantee that SORB will reach the same conclusion
as his expert; he is entitled only to careful consideration of
his expert's testimony"). The examiner also noted that Dr.
Saleh characterized the absence of Doe's alcohol or drug use as
"significant." However, as the examiner further noted, Dr.
Saleh was confronted on cross-examination with evidence showing
that Doe used substances while incarcerated and continued to use
alcohol and marijuana after his release from custody. Although
Dr. Saleh testified that he did not feel that the use of such
1 Factor 10 (contact with the criminal justice system); factor 28 (supervision by probation or parole). 2 Factor 9 (alcohol and substance abuse); factor 19 (level of
physical contact); factor 30 (advanced age).
4 substances was sufficient to alter his opinion, the examiner was
not obligated to credit that testimony, and indeed did not. Put
simply, the examiner did address the expert opinion evidence and
it was well within his discretion to reject it or apply lesser
weight to it than Doe would prefer. See Doe No. 68549, supra at
109-110 ("A hearing examiner has discretion . . . to consider
which statutory and regulatory factors are applicable and how
much weight to ascribe to each factor").
b. Application of statutory and regulatory factors. Doe
contends that the level two reclassification was not supported
by substantial evidence because the examiner erred in the
application of board factors 9 (alcohol and substance abuse), 28
(supervision by probation or parole), 30 (advanced age), 32 (sex
offender treatment), and 33 (home situation and support system).
See 803 Code Mass. Regs. § 1.33 (2016). The claim is
unavailing.
When reviewing a decision by the board, we "must determine
whether the decision is supported by substantial evidence"
(citation omitted), Doe No.
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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-688
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 17938
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe (Doe), appeals from a Superior
Court judgment affirming his reclassification by the Sex
Offender Registry Board (SORB or the board) as a level two sex
offender. On appeal, Doe claims that the hearing examiner
(examiner) abused his discretion by (1) rejecting Doe's expert
witness's opinion testimony; and (2) mechanically applying
SORB's regulatory factors which resulted in a decision that was
unsupported by substantial evidence, arbitrary, and capricious.
We affirm.
Background. We summarize the facts as found by the hearing
examiner, "supplemented by undisputed facts from the record,"
and reserve certain facts for later discussion. Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 606 (2011) (Doe No. 10800). Doe's governing offense stemmed from his sexual assault of
a fifty-two year old woman when Doe was forty-four years old.
Doe entered the woman's apartment while she was sleeping,
attacked her, pinned her to her bed, struck her in the face with
the telephone after she tried to call for help, forced oral sex
upon her, and thereafter demanded that she give him money. On
June 24, 2002, Doe was convicted of three counts of indecent
assault and battery on a person fourteen years of age or older,
and one count each of burglary, assault and battery by means of
a dangerous weapon, and assault and battery.
On or about June 6, 2013, SORB classified Doe as a level
three sex offender. On December 15, 2016, following the
issuance of Doe, Sex Offender Registry Bd. No. 380316 v. Sex
Offender Registry Bd., 473 Mass. 297 (2015), in which the
Supreme Judicial Court revised the standard of proof in SORB
decisions to clear and convincing evidence, Doe was reclassified
as a level two sex offender. See G. L. c. 6, § 178K (2) (b).
On February 10, 2020, Doe filed a motion for reclassification.
The examiner conducted de novo hearings on December 16, 2020,
and January 27, 2021, during which the parties submitted
documentary evidence. In addition, Dr. Fabian M. Saleh, a
forensic psychiatrist and expert witness, opined that Doe had a
"very low" risk to reoffend. On February 25, 2021, the examiner
issued a comprehensive written decision classifying Doe as a
2 level two sex offender. Doe sought judicial review of that
decision, see G. L. c. 30A, § 14, and, following a hearing on
Doe's motion for judgment on the pleadings, a Superior Court
judge denied the motion and affirmed the level two
classification. This appeal followed.
Discussion. 1. Standard of review. A reviewing court may
set aside a decision of the board if it determines "that the
decision is unsupported by substantial evidence or is arbitrary
or capricious, an abuse of discretion, or not in accordance with
law" (citation omitted). Doe, Sex Offender Registry Bd. No.
22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801
(2022). The reviewing court shall "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, Sex Offender Registry Bd. No. 10216 v. Sex
Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L.
c. 30A, § 14 (7). Doe therefore "bears a heavy burden of
establishing that the [board]'s decision was incorrect"
(citation omitted). Doe, Sex Offender Registry Bd. No. 3177 v.
Sex Offender Registry Bd., 486 Mass. 749, 757 (2021).
2. Classification determination. a. Doe's expert's
opinion. The examiner was not required to accept Dr. Saleh's
opinion regarding Doe's risk of reoffense, see Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
3 102, 112 (2014) (Doe No. 68549), and did not abuse his
discretion in rejecting it. The examiner did not, as Doe
suggests, ignore Dr. Saleh's low risk assessment or fail to
explain his reasons for reaching a different conclusion.
Rather, as evidenced by his thorough written decision, the
examiner considered the expert's opinion and explained the basis
for his disagreement and deviation therefrom. In particular,
the examiner applied two factors that Dr. Saleh either failed to
consider or declined to apply. 1 Further, the examiner chose not
to apply or give the same weight to three factors that Dr. Saleh
applied. 2 Doe, Sex Offender Registry Bd. No. 23656 v. Sex
Offender Registry Bd., 483 Mass. 131, 137 (2019) ("Doe is not
entitled to a guarantee that SORB will reach the same conclusion
as his expert; he is entitled only to careful consideration of
his expert's testimony"). The examiner also noted that Dr.
Saleh characterized the absence of Doe's alcohol or drug use as
"significant." However, as the examiner further noted, Dr.
Saleh was confronted on cross-examination with evidence showing
that Doe used substances while incarcerated and continued to use
alcohol and marijuana after his release from custody. Although
Dr. Saleh testified that he did not feel that the use of such
1 Factor 10 (contact with the criminal justice system); factor 28 (supervision by probation or parole). 2 Factor 9 (alcohol and substance abuse); factor 19 (level of
physical contact); factor 30 (advanced age).
4 substances was sufficient to alter his opinion, the examiner was
not obligated to credit that testimony, and indeed did not. Put
simply, the examiner did address the expert opinion evidence and
it was well within his discretion to reject it or apply lesser
weight to it than Doe would prefer. See Doe No. 68549, supra at
109-110 ("A hearing examiner has discretion . . . to consider
which statutory and regulatory factors are applicable and how
much weight to ascribe to each factor").
b. Application of statutory and regulatory factors. Doe
contends that the level two reclassification was not supported
by substantial evidence because the examiner erred in the
application of board factors 9 (alcohol and substance abuse), 28
(supervision by probation or parole), 30 (advanced age), 32 (sex
offender treatment), and 33 (home situation and support system).
See 803 Code Mass. Regs. § 1.33 (2016). The claim is
unavailing.
When reviewing a decision by the board, we "must determine
whether the decision is supported by substantial evidence"
(citation omitted), Doe No. 10800, 459 Mass. at 632, which is
defined as "such evidence as a reasonable mind might accept as
adequate to support a conclusion." Id., quoting G. L. c. 30A,
§ 1 (6). Our review "does not turn on whether, faced with the
same set of facts, we would have drawn the same conclusion . . .
but only whether a contrary conclusion is not merely a possible
5 but a necessary inference" (quotation and citation omitted).
Doe No. 68549, 470 Mass. at 110. See Doe No. 10800, supra at
633 ("It is the province of the board, not this court, to weigh
the credibility of the witnesses and to resolve any factual
disputes"). Furthermore, the "hearing examiner has . . . to
consider which statutory and regulatory factors are applicable
and how much weight to ascribe to each factor." Doe No. 68549,
supra at 109-110.
Here, the record reveals a comprehensive and reasonable
analysis and weighing of the various board factors. First,
apart from the findings vis-à-vis the five factors now
challenged on appeal, the examiner determined that risk
elevating factors 7 (relationship between offender and victim),
8 (weapons, violence or infliction of bodily injury), 11
(violence unrelated to sexual assaults), 12 (behavior while
incarcerated or civilly committed), and 13 (non-compliance with
community supervision) applied. Furthermore, the examiner also
ascribed moderate weight to risk mitigating factors 29 (offense
free time in the community), and 31 (physical condition). He
further applied factor 34 (materials submitted regarding
stability in the community), but gave it minimal weight, as Doe
has not been able to maintain abstinence from drugs and alcohol
and had recently engaged the services of a prostitute for sexual
acts. Finally, the examiner applied additional factors 35
6 (psychological or psychiatric profiles regarding risk to
reoffend) and 37 (other information related to the nature of the
sexual behavior). The record supports the examiner's analysis
and application of these myriad factors, and Doe does not
challenge them on appeal.
With this background in mind, we return to Doe's claim that
because the examiner misapplied factors 9, 28, 30, 32, and 33,
he could not have provided a "reasoned analysis" supported by
substantial evidence. As to factor 9 (alcohol and substance
abuse), the examiner applied full weight, "considering [Doe's]
substance use contributed to his sexual offense and considering
his continued use of alcohol and marijuana in the community
despite treatment." The record demonstrates that Doe continues
to use alcohol and marijuana, despite undergoing substance use
disorder treatment. We discern no error therefrom.
As to Doe's claim that the examiner erred in applying
factor 28 (supervision by probation or parole), the examiner
applied only minimal weight "given [Doe's] history of two prior
violations of community supervision and his inappropriate sexual
behavior within the last six months while on probation." In
this regard, we reiterate that Doe reported to Dr. Saleh that he
had engaged a prostitute. Doe also claims that the examiner
erred in applying factor 30 (advanced age), by giving it
moderate weight. Here again, the record supports the examiner's
7 conclusion in view of, inter alia, "[Doe's] report to Dr. Saleh
regarding the use of a prostitute in the last six months . . .
which demonstrates . . . active interest and willingness to
engage in inappropriate sexual behavior."
Finally, there is no merit to Doe's claim that the examiner
erred in attributing moderate weight to factor 33 (home
situation and support system). Although a friend and a family
member wrote letters in support of Doe, the examiner noted that
"the level of support, guidance, and supervision they can
provide is negatively impacted by the varying degrees to which
they are aware of and willing to discuss [Doe's] sex offense."
The examiner's view is reasonable and supported by the record,
including the reference in one of the supporting letters
characterizing Doe's offense as a "foolish mistake," which could
have been viewed as downplaying or lacking insight into the
facts of Doe's behavior. In short, we discern no abuse of
discretion in the examiner's application of moderate weight to
factor 33. 3
3. Conclusion. We discern no abuse of discretion in the
examiner's treatment of the expert witness's opinion testimony,
3 We likewise discern no abuse of discretion in the hearing examiner's giving moderate weight to factor 32 (sex offender treatment) where Doe was ordered to complete sex offender treatment as a condition of probation and, at the time of the hearing, had not yet completed treatment.
8 and application of SORB's regulatory factors. The examiner's
determination that clear and convincing evidence supported a
level two classification was supported by substantial evidence,
and thus Doe's claims are unavailing.
Judgment affirmed.
By the Court (Neyman, Henry & Ditkoff, JJ. 4),
Clerk
Entered: November 2, 2023.
4 The panelists are listed in order of seniority.