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-1031
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 237044
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming a decision by the Sex Offender Registry Board
(board) classifying him as a level one sex offender. On appeal,
Doe argues that the board's classification was arbitrary and
capricious, an abuse of discretion, not supported by substantial
evidence, and a violation of his due process rights. We affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).
In September 2005, a fourteen year old boy (victim)
reported a sexual assault to Rhode Island police. The victim reported that two weeks prior he had skipped school with a
friend, Gordon.1 On the way to Gordon's home, they met up with
then twelve year old Doe and two of Doe's friends, Maxwell and
Cody. When the group got to Gordon's home, a dispute arose,
resulting in Doe holding a knife to the victim's nose and
threatening to cut him. Doe subsequently told Cody to hold the
victim in a chair and directed Maxwell to punch the victim in
the face. Doe also hit the victim in the face with a ring,
causing him to bleed.
Following their initial assault of the victim, Doe,
Maxwell, and Cody went to Gordon's mother's bedroom and put on a
pornographic film. Eventually the victim went to the bedroom
and asked the group what they were doing. When the victim
entered the bedroom, Cody demanded that the victim perform oral
sex on him, and Doe threatened to hit the victim with a hammer
he was holding if the victim did not comply. The victim did
comply, and Cody also inserted a pen into the victim's anus.
Doe and Maxwell then told the victim to go to Gordon's brother's
room. Doe and Cody told the victim that if he did not bend over
they would "go after [the victim] and [his] family." Doe then
struck the victim in the arm with the hammer, forcing him to
bend over, and Cody anally raped the victim. After this
1 All the children's names are pseudonyms.
2 assault, Doe told Maxwell to bring the victim to the bathroom
and, in so doing, Maxwell again punched the victim in the face.
Once Doe and the victim were in the bathroom, Doe also anally
raped the victim.
In November 2005, Doe admitted to sufficient facts and was
adjudicated delinquent of a single count of first-degree child
molestation and sexual assault. Doe was sentenced to probation
supervision and was eventually placed at the Stetson School in
Barre, Massachusetts.2 Then, in 2007, Doe was adjudicated
delinquent of threatening to commit a crime and attempted murder
after participating in a riot and strangulation of a staff
member at the Stetson School. In May 2009, while Doe was still
on probation, the board classified Doe as a level two sex
offender. In 2012, as an adult, Doe was convicted of three
counts of assault and battery on hospital staff.
Almost ten years later, in April 2021, Doe submitted a
motion to the board seeking to terminate his obligation to
register as a sex offender. As a result, in January 2022, the
board conducted a de novo hearing pursuant to G. L. c. 6,
§ 178L. At the hearing, Doe and the board submitted records
documenting Doe's extended psychiatric hospitalizations dating
2 The Stetson School is a licensed private residential institution that specializes in treating male children who exhibit disordered behavior or have mental health issues.
3 back to his youth. Notably, Doe has been diagnosed with
"paranoid schizophrenia, antisocial personality, impulse control
disorder, psychosis NOS, oppositional disorder and conduct
disorder." Additionally, in October 2018, Doe was admitted to a
behavioral health facility following a psychotic episode and
aggressive behavior toward his mother. After declining
treatment, Doe was civilly committed at Taunton State Hospital
in March of 2019, where he remained at the time of the 2022
hearing. Following the hearing, the examiner denied Doe's
motion to terminate his registration obligation, but reduced
Doe's classification to a level one sex offender. Doe now
appeals from the Superior Court judgment affirming this
classification.
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.
4 c. 30A, § 14 (7). As a result, Doe "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. Doe contends that the
examiner's decision was arbitrary and capricious, an abuse of
discretion, and not supported by substantial evidence, because
the examiner could not support a finding that Doe continued to
present anything but a speculative risk of reoffense or danger
to the community and unduly emphasized "Doe's mental health, and
the criminal conduct and behavioral issues he exhibited while at
the various hospitals and treatment centers he has been confined
to since his index offense." Doe also contends that the hearing
examiner's application of regulatory factor 35 was an error of
law. We disagree.
To support a level one classification, the board must
prove, by clear and convincing evidence, that Doe's "risk of
reoffense is low and the degree of dangerousness posed to the
public is not such that a public safety interest is served by
public availability" of Doe's registry information. Doe, Sex
Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd.,
482 Mass. 643, 646 (2019), quoting G. L. c. 6, § 178K (2) (a).
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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
23-P-1031
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 237044
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming a decision by the Sex Offender Registry Board
(board) classifying him as a level one sex offender. On appeal,
Doe argues that the board's classification was arbitrary and
capricious, an abuse of discretion, not supported by substantial
evidence, and a violation of his due process rights. We affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).
In September 2005, a fourteen year old boy (victim)
reported a sexual assault to Rhode Island police. The victim reported that two weeks prior he had skipped school with a
friend, Gordon.1 On the way to Gordon's home, they met up with
then twelve year old Doe and two of Doe's friends, Maxwell and
Cody. When the group got to Gordon's home, a dispute arose,
resulting in Doe holding a knife to the victim's nose and
threatening to cut him. Doe subsequently told Cody to hold the
victim in a chair and directed Maxwell to punch the victim in
the face. Doe also hit the victim in the face with a ring,
causing him to bleed.
Following their initial assault of the victim, Doe,
Maxwell, and Cody went to Gordon's mother's bedroom and put on a
pornographic film. Eventually the victim went to the bedroom
and asked the group what they were doing. When the victim
entered the bedroom, Cody demanded that the victim perform oral
sex on him, and Doe threatened to hit the victim with a hammer
he was holding if the victim did not comply. The victim did
comply, and Cody also inserted a pen into the victim's anus.
Doe and Maxwell then told the victim to go to Gordon's brother's
room. Doe and Cody told the victim that if he did not bend over
they would "go after [the victim] and [his] family." Doe then
struck the victim in the arm with the hammer, forcing him to
bend over, and Cody anally raped the victim. After this
1 All the children's names are pseudonyms.
2 assault, Doe told Maxwell to bring the victim to the bathroom
and, in so doing, Maxwell again punched the victim in the face.
Once Doe and the victim were in the bathroom, Doe also anally
raped the victim.
In November 2005, Doe admitted to sufficient facts and was
adjudicated delinquent of a single count of first-degree child
molestation and sexual assault. Doe was sentenced to probation
supervision and was eventually placed at the Stetson School in
Barre, Massachusetts.2 Then, in 2007, Doe was adjudicated
delinquent of threatening to commit a crime and attempted murder
after participating in a riot and strangulation of a staff
member at the Stetson School. In May 2009, while Doe was still
on probation, the board classified Doe as a level two sex
offender. In 2012, as an adult, Doe was convicted of three
counts of assault and battery on hospital staff.
Almost ten years later, in April 2021, Doe submitted a
motion to the board seeking to terminate his obligation to
register as a sex offender. As a result, in January 2022, the
board conducted a de novo hearing pursuant to G. L. c. 6,
§ 178L. At the hearing, Doe and the board submitted records
documenting Doe's extended psychiatric hospitalizations dating
2 The Stetson School is a licensed private residential institution that specializes in treating male children who exhibit disordered behavior or have mental health issues.
3 back to his youth. Notably, Doe has been diagnosed with
"paranoid schizophrenia, antisocial personality, impulse control
disorder, psychosis NOS, oppositional disorder and conduct
disorder." Additionally, in October 2018, Doe was admitted to a
behavioral health facility following a psychotic episode and
aggressive behavior toward his mother. After declining
treatment, Doe was civilly committed at Taunton State Hospital
in March of 2019, where he remained at the time of the 2022
hearing. Following the hearing, the examiner denied Doe's
motion to terminate his registration obligation, but reduced
Doe's classification to a level one sex offender. Doe now
appeals from the Superior Court judgment affirming this
classification.
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.
4 c. 30A, § 14 (7). As a result, Doe "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. Doe contends that the
examiner's decision was arbitrary and capricious, an abuse of
discretion, and not supported by substantial evidence, because
the examiner could not support a finding that Doe continued to
present anything but a speculative risk of reoffense or danger
to the community and unduly emphasized "Doe's mental health, and
the criminal conduct and behavioral issues he exhibited while at
the various hospitals and treatment centers he has been confined
to since his index offense." Doe also contends that the hearing
examiner's application of regulatory factor 35 was an error of
law. We disagree.
To support a level one classification, the board must
prove, by clear and convincing evidence, that Doe's "risk of
reoffense is low and the degree of dangerousness posed to the
public is not such that a public safety interest is served by
public availability" of Doe's registry information. Doe, Sex
Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd.,
482 Mass. 643, 646 (2019), quoting G. L. c. 6, § 178K (2) (a).
"[R]egistration can be required only based on an assessment 'of
the person's current level of dangerousness and risk of
5 reoffense'" (emphasis omitted). Doe, Sex Offender Registry Bd.
No. 24341 v. Sex Offender Registry Bd., 74 Mass. App. Ct. 383,
387 (2009) (Doe No. 24341), quoting Doe, Sex Offender Registry
Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787
(2008). "SORB's burden is to show that Doe presents a
'cognizable risk of reoffense,' not merely a hypothetical or
speculative potential risk." Doe No. 24341, supra at 388,
quoting Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender
Registry Bd., 447 Mass. 750, 762 (2006).
Here, the hearing examiner correctly applied and weighed
several regulatory factors that support a finding of a low risk
of reoffense. For example, the hearing examiner applied factors
7 (relationship between offender and victim) and 19 (level of
physical contact) with increased weight because Doe and the
victim were strangers, and Doe penetrated the victim with his
penis. See 803 Code Mass. Regs. § 1.33(7), (19) (2016). The
hearing examiner also appropriately applied both factor 8
(weapons, violence or infliction of bodily injury) because of
Doe's use of weapons against the victim and the violent nature
of the assaults, and factor 9 (alcohol and substance misuse)
because Doe has a history of substance misuse. See 803 Code
Mass. Regs. § 1.33(8), (9). The examiner further applied
additional risk-elevating factors such as factor 10 (contact
with the criminal justice system), factor 11 (violence unrelated
6 to sexual assaults), and factor 13 (noncompliance with community
supervision), citing Doe's criminal record that includes violent
offenses and his failure to comply with probation requirements.
See 803 Code Mass. Regs. § 1.33(10), (11), (13).
In addition to the risk-aggravating factors, the examiner
also applied three risk-mitigating factors, taking into account
Doe's offense-free time in the community, sex offender
treatment, and home situation and support systems. See 803 Code
Mass. Regs. § 1.33(29), (32), (33). The examiner also applied
factor 35 (psychological or psychiatric profiles regarding risk
to reoffend), noting that while Doe's current hospitalization is
risk mitigating, his mental health diagnoses elevate his risk to
reoffend should he be discharged. See 803 Code Mass. Regs.
§ 1.33(35). Finally, the examiner considered factor 37 (other
information related the nature of the sexual behavior), taking
into account a variety of articles that Doe submitted detailing,
inter alia, how racial bias impacts the sex offender
registration process as well as the criminal justice system more
generally. See 803 Code Mass. Regs. § 1.33(37). However, the
examiner did not give these articles any weight in her analysis.
Doe cites no case law to support his contention that the
hearing examiner's application of factors 7, 8, 9, and 19 was
improper or "stale" because her analysis focused on Doe's index
7 offense which he committed seventeen years ago as a juvenile.3
Indeed, the hearing examiner properly considered Doe's age at
the time of his offense throughout her analysis, and correctly
noted how certain factors apply to juvenile offenders. See 803
Code Mass. Regs. § 1.33. See also G. L. c. 6, § 178K (1) (e)
(acknowledging that factors relevant to person's classification
include whether offender "was a juvenile when he committed the
offense"). Furthermore, Doe's argument that the board provided
insufficient evidence to support the hearing examiner's
application of factors 10, 11, and 13 is without merit. Doe's
criminal history and failure to comply with community
supervision is readily apparent in the record.
We are further unpersuaded by Doe's contention that the
hearing examiner's application of factor 35 was an error of law
because the examiner failed to rely on any evidence that Doe's
mental health issues correlate to his risk of reoffense. Factor
35 instructs the board to "consider evaluative reports,
empirically-based risk assessment instruments, or testimony from
a licensed mental health professional that discuss psychological
and psychiatric issues, including major mental illness, as they
relate to the offender's risk of reoffense." 803 Code Mass.
Regs. § 1.33(35). Here, the record contains multiple
3 The examiner rendered her decision in 2022.
8 evaluations of Doe from licensed professionals indicating that
Doe's mental health issues have contributed significantly to his
criminal record and continue to cause Doe to be resistant to
treatment. As the judge below aptly noted:
"The record is replete with reports and assessments, including interviews with Doe, that indicate he was experiencing feelings of paranoia and concerns of what others thought of him immediately preceding the sexual offense in 2005. As Doe progressed to discussing his sexual offense with counselors and in group therapy, he himself related the thought processes that eventually led to his mental health diagnoses to the sexual assault. The evaluative reports and assessments in the record clearly and convincingly relate Doe's mental health, as it was assessed at the time of his most recent and continuing hospitalization, to his risk to reoffend."
Therefore, following her evaluation of the record evidence, the
examiner did not err in concluding that Doe may be unstable
"outside of a secure setting, thus elevating his risk to
reoffend should he be discharged."
Finally, we also disagree that the hearing examiner engaged
in a mechanical application of the factors and failed to
"provide any explanation for how she balanced them." Rather,
the examiner identified each regulatory factor applied and
explained the reason for its application; in several instances,
the examiner also specified the weight assigned to the factor
based on the specifics of Doe's case. As such, the hearing
examiner's "[analytical] path may reasonably be discerned" from
the decision, NSTAR Elec. Co. v. Department of Pub. Utils., 462
9 Mass. 381, 387 (2012), quoting Costello v. Department of Pub.
Utils., 391 Mass. 527, 535-536 (1984), and it is clear that "the
classification is based on a sound exercise of informed
discretion rather than the mechanical application of a checklist
or some other reflex." Doe, Sex Offender Registry Bd. No.
136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651
(2012).
Accordingly, the hearing examiner's level one
classification was not an abuse of discretion, arbitrary and
capricious, unsupported by substantial evidence, or a violation
of Doe's due process rights.
Judgment affirmed.
By the Court (Meade, Desmond & D'Angelo, JJ.4),
Clerk
Entered: May 8, 2025.
4 The panelists are listed in order of seniority.