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-1122
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 2534
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe No. 2534, appeals from a Superior
Court judgment affirming his classification by the Sex Offender
Registry Board (board) as a level three sex offender and the
board's denial of his motion for expert funds.
Background. Between 1985 and 1991, Doe routinely sexually
abused his stepdaughter (victim 1). Victim 1 reported that the
abuse began when she was six or seven years old. "[T]wice a
week or more," Doe would get on top of victim 1 while she was
sleeping, rub his penis on her vagina and buttocks over her
clothing, and touch her breasts. Victim 1 reported the abuse to
police when she was sixteen years old. She stated that Doe was
"high on cocaine," which he used every night, when he abused her. In 1996, Doe pleaded guilty to four counts of indecent
assault and battery on a child. He received concurrent one-year
sentences suspended with two years of probation. In 1999, Doe's
probation was revoked based on new child sexual assault offenses
and he was incarcerated for one year.
In 1999, Doe impregnated his girlfriend's ten year old
daughter (victim 2). Doe repeatedly raped victim 2 vaginally
beginning when she was seven or eight years old and ending when
her pregnancy was discovered. In 2001, Doe pleaded guilty to
four of counts of forcible rape of a child. He was sentenced to
concurrent twenty-five to twenty-seven year State prison
sentences.
In 2020, the board notified Doe of his duty to register,
preliminarily classifying him as a level three sex offender.
Doe, who was still incarcerated, requested a hearing to
challenge the preliminary classification. In 2022, after a
hearing, the hearing examiner finally classified Doe as a level
three sex offender.
Discussion. 1. Classification determination. When
reviewing a classification decision by the board, we "must
determine whether the decision is supported by substantial
evidence" (citation omitted). Doe, Sex Offender Registry Bd.
No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632
(2011). "A hearing examiner has discretion . . . to consider
2 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) (Doe No. 68549). "'Substantial evidence' is
'such evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Id. at 109, quoting G. L. c. 30A,
§ 1 (6). Classifying an offender as level three requires the
hearing examiner to determine by clear and convincing evidence
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' of the
offender's registration information." Doe, Sex Offender
Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490 Mass.
759, 768 (2022), quoting G. L. c. 6, § 178K (2) (c).
The hearing examiner found that several high-risk and risk-
elevating factors applied. Because Doe was convicted of
sexually assaulting his prepubescent stepdaughter and then
later, on multiple occasions, forcibly raping his girlfriend's
prepubescent daughter, the hearing examiner found that high-risk
factor 2 (repetitive and compulsive behavior) and factor 3
(adult offender and child victim) applied with "full weight."
See 803 Code Mass. Regs. § 1.33(2)(a), (3)(a) (2016). Based on
a determination that Doe's forcible rapes of victim 2 included
penile penetration, the hearing examiner applied factor 19
3 (level of physical contact) with "increased weight." See 803
Code Mass. Regs. § 1.33(19)(a). The hearing examiner also found
that Doe sexually assaulted his victims in bedrooms where their
siblings were sleeping and applied factor 16 (public place).
803 Code Mass. Regs. § 1.33(16)(a). The hearing examiner
applied factor 22 (number of victims) because Doe sexually
assaulted two different victims. 803 Code Mass. Regs.
§ 1.33(22)(a).
Based on Doe's criminal history, the hearing examiner
applied factor 10 (contact with the criminal justice system) and
factor 11 (violence unrelated to sexual assaults) with moderate
aggravating weight because Doe's last nonsexual criminal
arraignment occurred over thirty years prior to the hearing.1
803 Code Mass. Regs. § 1.33(10)(a), (11)(a). The hearing
examiner determined that Doe's commission of sex offenses
against victim 2 while on probation for his previous sex
offenses against victim 1 supported the application of factor 13
(noncompliance with community supervision). 803 Code Mass.
Regs. § (13)(a). The hearing examiner applied factor 9 (alcohol
and substance abuse) with full aggravating weight based on
evidence that Doe had a history of substance use issues and that
1 Doe argues, for the first time on appeal, that the hearing examiner misapplied factor 10. Although the argument was waived, we nevertheless discern no error in the hearing examiner's application of factor 10.
4 his use of cocaine contributed to his sex offenses. 803 Code
Mass. Regs. § 1.33(9)(a). Because Doe only briefly engaged in
sex offender treatment in 1997 and later refused to participate
in treatment, the hearing examiner applied risk-elevating factor
24 (less than satisfactory participation in sex offender
treatment). 803 Code Mass. Regs. § 1.33(24)(a).
The hearing examiner found that several risk-mitigating
factors applied as well. The hearing examiner gave Doe, who was
sixty-seven years old, full mitigating weight under factor 30
(advanced age). 803 Code Mass. Regs. § 1.33(30)(a). The
hearing examiner also credited Doe for his programming while
incarcerated but applied factor 34 (material submitted by the
offender regarding stability in the community) with minimal
mitigating weight because Doe had stated he would be homeless on
release from incarceration. 803 Code Mass. Regs. § 1.33(34)(a).
The hearing examiner applied factor 31 (physical condition) with
minimal mitigating weight, finding that Doe's medical issues
would not prevent him from touching or raping another
prepubescent child. 803 Code Mass. Regs. § 1.33(31)(a).
Finally, the examiner applied factor 32 (sex offender treatment)
with minimal mitigating weight because Doe presented no evidence
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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-1122
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 2534
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe No. 2534, appeals from a Superior
Court judgment affirming his classification by the Sex Offender
Registry Board (board) as a level three sex offender and the
board's denial of his motion for expert funds.
Background. Between 1985 and 1991, Doe routinely sexually
abused his stepdaughter (victim 1). Victim 1 reported that the
abuse began when she was six or seven years old. "[T]wice a
week or more," Doe would get on top of victim 1 while she was
sleeping, rub his penis on her vagina and buttocks over her
clothing, and touch her breasts. Victim 1 reported the abuse to
police when she was sixteen years old. She stated that Doe was
"high on cocaine," which he used every night, when he abused her. In 1996, Doe pleaded guilty to four counts of indecent
assault and battery on a child. He received concurrent one-year
sentences suspended with two years of probation. In 1999, Doe's
probation was revoked based on new child sexual assault offenses
and he was incarcerated for one year.
In 1999, Doe impregnated his girlfriend's ten year old
daughter (victim 2). Doe repeatedly raped victim 2 vaginally
beginning when she was seven or eight years old and ending when
her pregnancy was discovered. In 2001, Doe pleaded guilty to
four of counts of forcible rape of a child. He was sentenced to
concurrent twenty-five to twenty-seven year State prison
sentences.
In 2020, the board notified Doe of his duty to register,
preliminarily classifying him as a level three sex offender.
Doe, who was still incarcerated, requested a hearing to
challenge the preliminary classification. In 2022, after a
hearing, the hearing examiner finally classified Doe as a level
three sex offender.
Discussion. 1. Classification determination. When
reviewing a classification decision by the board, we "must
determine whether the decision is supported by substantial
evidence" (citation omitted). Doe, Sex Offender Registry Bd.
No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632
(2011). "A hearing examiner has discretion . . . to consider
2 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) (Doe No. 68549). "'Substantial evidence' is
'such evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Id. at 109, quoting G. L. c. 30A,
§ 1 (6). Classifying an offender as level three requires the
hearing examiner to determine by clear and convincing evidence
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' of the
offender's registration information." Doe, Sex Offender
Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490 Mass.
759, 768 (2022), quoting G. L. c. 6, § 178K (2) (c).
The hearing examiner found that several high-risk and risk-
elevating factors applied. Because Doe was convicted of
sexually assaulting his prepubescent stepdaughter and then
later, on multiple occasions, forcibly raping his girlfriend's
prepubescent daughter, the hearing examiner found that high-risk
factor 2 (repetitive and compulsive behavior) and factor 3
(adult offender and child victim) applied with "full weight."
See 803 Code Mass. Regs. § 1.33(2)(a), (3)(a) (2016). Based on
a determination that Doe's forcible rapes of victim 2 included
penile penetration, the hearing examiner applied factor 19
3 (level of physical contact) with "increased weight." See 803
Code Mass. Regs. § 1.33(19)(a). The hearing examiner also found
that Doe sexually assaulted his victims in bedrooms where their
siblings were sleeping and applied factor 16 (public place).
803 Code Mass. Regs. § 1.33(16)(a). The hearing examiner
applied factor 22 (number of victims) because Doe sexually
assaulted two different victims. 803 Code Mass. Regs.
§ 1.33(22)(a).
Based on Doe's criminal history, the hearing examiner
applied factor 10 (contact with the criminal justice system) and
factor 11 (violence unrelated to sexual assaults) with moderate
aggravating weight because Doe's last nonsexual criminal
arraignment occurred over thirty years prior to the hearing.1
803 Code Mass. Regs. § 1.33(10)(a), (11)(a). The hearing
examiner determined that Doe's commission of sex offenses
against victim 2 while on probation for his previous sex
offenses against victim 1 supported the application of factor 13
(noncompliance with community supervision). 803 Code Mass.
Regs. § (13)(a). The hearing examiner applied factor 9 (alcohol
and substance abuse) with full aggravating weight based on
evidence that Doe had a history of substance use issues and that
1 Doe argues, for the first time on appeal, that the hearing examiner misapplied factor 10. Although the argument was waived, we nevertheless discern no error in the hearing examiner's application of factor 10.
4 his use of cocaine contributed to his sex offenses. 803 Code
Mass. Regs. § 1.33(9)(a). Because Doe only briefly engaged in
sex offender treatment in 1997 and later refused to participate
in treatment, the hearing examiner applied risk-elevating factor
24 (less than satisfactory participation in sex offender
treatment). 803 Code Mass. Regs. § 1.33(24)(a).
The hearing examiner found that several risk-mitigating
factors applied as well. The hearing examiner gave Doe, who was
sixty-seven years old, full mitigating weight under factor 30
(advanced age). 803 Code Mass. Regs. § 1.33(30)(a). The
hearing examiner also credited Doe for his programming while
incarcerated but applied factor 34 (material submitted by the
offender regarding stability in the community) with minimal
mitigating weight because Doe had stated he would be homeless on
release from incarceration. 803 Code Mass. Regs. § 1.33(34)(a).
The hearing examiner applied factor 31 (physical condition) with
minimal mitigating weight, finding that Doe's medical issues
would not prevent him from touching or raping another
prepubescent child. 803 Code Mass. Regs. § 1.33(31)(a).
Finally, the examiner applied factor 32 (sex offender treatment)
with minimal mitigating weight because Doe presented no evidence
of progress after his 1997 sex offender treatment. 803 Code
Mass. Regs. § 1.33(32)(a).
5 Based on a careful weighing of the applicable factors, the
hearing examiner found that Doe posed a high risk of reoffense
and a high degree of danger. The evidence supported each of the
hearing examiner's findings and conclusions concerning the high-
risk, risk-elevating, and risk-mitigating factors. The weight
to be assigned to those factors was within the hearing
examiner's discretion and is entitled to deference. See Doe No.
68549, 470 Mass. at 109–110; Doe, Sex Offender Registry Bd. No.
291554 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 210, 212
(2015). We conclude that the hearing examiner did not abuse his
discretion by classifying Doe as a level three sex offender.2
See Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender
Registry Bd., 457 Mass. 53, 62 (2010) ("there is nothing in the
statute or regulations that requires the board to treat
mitigating conditions of release as superseding other
aggravating factors").
2. Internet publication. "Internet publication depends
not only on the probability of reoffense and the danger posed by
that potential reoffense, but also on the efficacy of online
publication in protecting the public from being victimized by
2 For the first time on appeal, Doe contends that the hearing examiner erred by mechanically applying the regulatory factors. Although the argument is waived, we see no error in the hearing examiner's careful application of the factors to Doe's specific case.
6 the offender." Doe, Sex Offender Registry Bd. No. 496501 v. Sex
Offender Registry Bd., 482 Mass. 643, 654 (2019) (Doe No.
496501). "Internet publication will almost invariably serve a
public safety interest by notifying potential victims of the
risks presented by the offender in their geographic area." Id.
at 655. The examiner is required "to ask whether, in light of
the particular risks posed by the particular offender, Internet
access to that offender's information might realistically serve
to protect the public against the risk of the offender's sexual
reoffense." Id.
Doe argues that public dissemination of his registration
information does not serve a public safety interest because both
victims were "intrafamilial."3 He asserts that he sexually
assaulted only daughters of dating partners, and "[t]here was no
evidence that [he] was going to or would likely engage in a
[future] dating relationship." Factor 7 (relationship between
offender and victim) defines intrafamilial victims to include
"[a]ny persons who are family member substitutes . . . who lived
in the same household with the offender for two or more years
prior to the offending behavior." 803 Code Mass. Regs.
§ 1.33(7)(a)(1)(d). Here, Doe told police that he lived in
victim 2's household for three months. Thus, the hearing
3 Although Doe raises this argument for the first time on appeal, we nonetheless address it.
7 examiner was not required to find that Doe limited his sex
offenses to intrafamilial victims. Nor was the hearing examiner
required to risk the safety of potential child victims on
speculation relative to Doe's future dating prospects.
Moreover, the risk of reoffense against victims outside Doe's
family was not only the basis for the hearing officer's
determination that Internet publication was required. The
hearing examiner also found that Doe "could not comply with
probation conditions nor was he deterred by legal consequences,
civil commitment, or his advanced age," and cited Doe's failure
to fully engage in sex offender treatment. We discern no abuse
of discretion in the hearing examiner's conclusion that Internet
dissemination of Doe's registry information was necessary to
protect the public against the risk of Doe's reoffending. See
Doe No. 496501, 482 Mass. at 655.
3. Denial of expert funds. "The hearing examiner . . .
has discretion to deny expert funds to indigent sex offenders
who offer expert opinion on factors that the board's regulations
already require the hearing examiner to consider." Doe, Sex
Offender Registry Bd. No. 234076 v. Sex Offender Registry Bd.,
484 Mass. 666, 670 (2020) (Doe No. 234076).
"When moving for expert funds, indigent sex offenders must 'identify and articulate the reason or reasons, connected to a condition or circumstance special to [them],' and, separately, 'general motion[s] for funds to retain an expert to provide an opinion on the sex offender's risk of
8 reoffense, without more, would . . . be insufficient'" (citation omitted).
Id. The articulated purpose must "assist[] the hearing examiner
in analyzing the factors" that bear on sexual recidivism. Doe,
Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry
Bd., 452 Mass. 784, 794 (2008).
Doe asserts that the examiner abused his discretion by
denying Doe's motion for funds to hire an expert to opine about
the effects of his health and age on his risk of reoffense.
According to Doe's motion, he suffered "serious medical
conditions including a heart condition and diabetes." We agree
with the hearing examiner that Doe "[did] not explain how the
medical condition or circumstance special to him [wa]s connected
to his risk of reoffense or level of dangerousness," and that
Doe's health and age concerns would be addressed by factor 30
(advanced age) and factor 31 (physical condition). See Doe, Sex
Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81
Mass. App. Ct. 610, 617 (2012). Moreover, the medical records
Doe submitted at the hearing identified his health issues but
did not state that he suffered any physical limitations from
them. Thus, the examiner did not abuse his discretion by
concluding that Doe did not articulate a reason, connected to a
circumstance specific to Doe, that the motion for expert funds
9 would have assisted the examiner in analyzing Doe's likelihood
to reoffend sexually. See Doe No. 234076, 484 Mass. at 670.
Judgment affirmed.
By the Court (Singh, Grant & Brennan, JJ.4),
Clerk
Entered: April 10, 2025.
4 The panelists are listed in order of seniority.