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-768
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 253929
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe appeals from a Superior Court judgment affirming
his classification by the Sex Offender Registry Board (SORB) as
a level three sex offender. Doe contends that the hearing
examiner improperly applied factor 31 (physical condition), that
the evidence was insufficient to support the level three
classification, and that the hearing examiner abused his
discretion in ordering Internet publication of Doe's registry
information. We affirm.
Background. We summarize the relevant facts as set forth
in the hearing examiner's decision, supplemented by undisputed
facts from the record. See Doe, Sex Offender Registry Bd. No.
10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011)
(Doe No. 10800). In June 2009 a jury in the Superior Court found Doe guilty
of six counts of rape of a child under sixteen with force, one
count of rape, seven counts of indecent assault and battery on a
child under fourteen, one count of posing or exhibiting a child
in a state of nudity, and one count of disseminating to a minor
material harmful to a minor. The charges stemmed from Doe's
repeated sexual abuse of the victim, a teenage boy living in
Doe's apartment, between 2003 and 2007. Doe committed numerous
assaults on the victim, raping him, forcing him to perform and
receive oral sex, and masturbating his penis. During the
assaults Doe showed the victim pornographic materials and took
over twenty explicit photographs of him. Doe used violence
against the victim to ensure compliance, "hit[ting] him and
throw[ing] things at him" and threatening to kill him if met
with resistance. The abuse only came to an end when the victim
moved out after he was involved in a fist fight with Doe.
Doe was sentenced to eight to twelve years in prison
followed by ten years of probation. Prior to Doe's release in
2020, SORB notified him of his obligation to register as a level
three sex offender. Doe challenged the recommendation and
received a de novo hearing, at the conclusion of which a hearing
examiner finally classified Doe as a level three offender. Doe
sought judicial review, claiming that his right to due process
was violated by his hearing counsel's failure to retain an
2 expert to opine on his medical condition -- in particular, his
diagnoses of alpha-1 antitrypsin deficiency 1 and other
respiratory conditions. A Superior Court judge agreed that Doe
was entitled to a new hearing and remanded the case so that Doe
could request expert funds.
On remand Doe moved for expert funds, which was allowed,
and retained Dr. Craig Hersh, a specialist in pulmonary
diseases. Dr. Hersh authored a report after reviewing Doe's
medical records and testified at the classification hearing. At
the conclusion of the hearing, a hearing examiner again
classified Doe as a level three sex offender. This time on
judicial review, a Superior Court judge denied Doe's motion for
judgment on the pleadings, affirming the level three
classification.
Discussion. A reviewing court can only "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).
1 Alpha-1 antitrypsin deficiency is a genetic condition that can cause serious lung and liver disease. Doe has also been diagnosed with chronic obstructive pulmonary disorder and emphysema.
3 In making this determination, we "give due weight to the
experience, technical competence, and specialized knowledge of
the agency." G. L. c. 30A, § 14 (7). Doe therefore "bears a
heavy burden of establishing that [SORB's] decision was
incorrect." Doe No. 3177, supra at 757, quoting Boston Police
Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019).
1. Factor 31. Doe first argues that the hearing examiner
misapplied factor 31. This factor provides that the hearing
examiner "shall give consideration to the offender who has a
physical condition that is documented by a treating medical
provider," but "[a]t minimum, the medical documentation must
. . . [i]dentify the physical condition [and] . . . [p]rovide a
detailed description of the offender's limitations connected to
the physical condition." 803 Code Mass. Regs. § 1.33(31)(a)
(2016). Doe had the burden of providing SORB with the medical
documentation required. See id.
The hearing examiner acted within his discretion in giving
factor 31 minimal weight. As the hearing examiner found, Dr.
Hersh never spoke to or examined Doe, leaving "many important
questions unanswered or with limited information." For example,
Dr. Hersh asserted that Doe was "profoundly limited by shortness
of breath" but admitted that the extent of Doe's "symptoms and
limitations in his daily life is not well documented." Dr.
Hersh also admitted that he did not know whether Doe's physical
4 condition prevented him from being sexually active and that it
was "not entirely clear" what Doe's "exact response" was to the
use of inhalers or the pulmonary rehabilitation program.
Because Dr. Hersh's opinion was inconclusive as to Doe's
"limitations connected to [his] physical condition," 803 Code
Mass. Regs. § 1.33(31)(a), the hearing examiner did not err in
giving this factor only limited weight. See Smith v. Sex
Offender Registry Bd., 65 Mass. App. Ct. 803, 811-813 (2006)
(hearing examiner has discretion to consider which regulatory
factors apply and how much weight to give each factor). 2
2. Level three classification. Doe next claims that the
evidence was insufficient to support his classification as a
level three offender. A level three classification is
appropriate when the hearing examiner determines, 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." Doe No. 3177, 486 Mass. at 754, quoting G. L.
c. 6, § 178K (2) (c). "We review the examiner's finding that
clear and convincing evidence supported the classification to
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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-768
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 253929
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe appeals from a Superior Court judgment affirming
his classification by the Sex Offender Registry Board (SORB) as
a level three sex offender. Doe contends that the hearing
examiner improperly applied factor 31 (physical condition), that
the evidence was insufficient to support the level three
classification, and that the hearing examiner abused his
discretion in ordering Internet publication of Doe's registry
information. We affirm.
Background. We summarize the relevant facts as set forth
in the hearing examiner's decision, supplemented by undisputed
facts from the record. See Doe, Sex Offender Registry Bd. No.
10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011)
(Doe No. 10800). In June 2009 a jury in the Superior Court found Doe guilty
of six counts of rape of a child under sixteen with force, one
count of rape, seven counts of indecent assault and battery on a
child under fourteen, one count of posing or exhibiting a child
in a state of nudity, and one count of disseminating to a minor
material harmful to a minor. The charges stemmed from Doe's
repeated sexual abuse of the victim, a teenage boy living in
Doe's apartment, between 2003 and 2007. Doe committed numerous
assaults on the victim, raping him, forcing him to perform and
receive oral sex, and masturbating his penis. During the
assaults Doe showed the victim pornographic materials and took
over twenty explicit photographs of him. Doe used violence
against the victim to ensure compliance, "hit[ting] him and
throw[ing] things at him" and threatening to kill him if met
with resistance. The abuse only came to an end when the victim
moved out after he was involved in a fist fight with Doe.
Doe was sentenced to eight to twelve years in prison
followed by ten years of probation. Prior to Doe's release in
2020, SORB notified him of his obligation to register as a level
three sex offender. Doe challenged the recommendation and
received a de novo hearing, at the conclusion of which a hearing
examiner finally classified Doe as a level three offender. Doe
sought judicial review, claiming that his right to due process
was violated by his hearing counsel's failure to retain an
2 expert to opine on his medical condition -- in particular, his
diagnoses of alpha-1 antitrypsin deficiency 1 and other
respiratory conditions. A Superior Court judge agreed that Doe
was entitled to a new hearing and remanded the case so that Doe
could request expert funds.
On remand Doe moved for expert funds, which was allowed,
and retained Dr. Craig Hersh, a specialist in pulmonary
diseases. Dr. Hersh authored a report after reviewing Doe's
medical records and testified at the classification hearing. At
the conclusion of the hearing, a hearing examiner again
classified Doe as a level three sex offender. This time on
judicial review, a Superior Court judge denied Doe's motion for
judgment on the pleadings, affirming the level three
classification.
Discussion. A reviewing court can only "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).
1 Alpha-1 antitrypsin deficiency is a genetic condition that can cause serious lung and liver disease. Doe has also been diagnosed with chronic obstructive pulmonary disorder and emphysema.
3 In making this determination, we "give due weight to the
experience, technical competence, and specialized knowledge of
the agency." G. L. c. 30A, § 14 (7). Doe therefore "bears a
heavy burden of establishing that [SORB's] decision was
incorrect." Doe No. 3177, supra at 757, quoting Boston Police
Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019).
1. Factor 31. Doe first argues that the hearing examiner
misapplied factor 31. This factor provides that the hearing
examiner "shall give consideration to the offender who has a
physical condition that is documented by a treating medical
provider," but "[a]t minimum, the medical documentation must
. . . [i]dentify the physical condition [and] . . . [p]rovide a
detailed description of the offender's limitations connected to
the physical condition." 803 Code Mass. Regs. § 1.33(31)(a)
(2016). Doe had the burden of providing SORB with the medical
documentation required. See id.
The hearing examiner acted within his discretion in giving
factor 31 minimal weight. As the hearing examiner found, Dr.
Hersh never spoke to or examined Doe, leaving "many important
questions unanswered or with limited information." For example,
Dr. Hersh asserted that Doe was "profoundly limited by shortness
of breath" but admitted that the extent of Doe's "symptoms and
limitations in his daily life is not well documented." Dr.
Hersh also admitted that he did not know whether Doe's physical
4 condition prevented him from being sexually active and that it
was "not entirely clear" what Doe's "exact response" was to the
use of inhalers or the pulmonary rehabilitation program.
Because Dr. Hersh's opinion was inconclusive as to Doe's
"limitations connected to [his] physical condition," 803 Code
Mass. Regs. § 1.33(31)(a), the hearing examiner did not err in
giving this factor only limited weight. See Smith v. Sex
Offender Registry Bd., 65 Mass. App. Ct. 803, 811-813 (2006)
(hearing examiner has discretion to consider which regulatory
factors apply and how much weight to give each factor). 2
2. Level three classification. Doe next claims that the
evidence was insufficient to support his classification as a
level three offender. A level three classification is
appropriate when the hearing examiner determines, 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." Doe No. 3177, 486 Mass. at 754, quoting G. L.
c. 6, § 178K (2) (c). "We review the examiner's finding that
clear and convincing evidence supported the classification to
2 To the extent the hearing examiner found that Doe had the same severity of symptoms at the time he offended, we agree with Doe that this was error. Nonetheless, the hearing examiner was still within his discretion in giving factor 31 limited weight, for the reasons we have stated.
5 determine whether it was supported by substantial evidence."
Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender
Registry Bd., 95 Mass. App. Ct. 85, 94 (2019). Substantial
evidence is "such evidence as a reasonable mind might accept as
adequate to support a conclusion." 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 but a
necessary inference" (quotations omitted). Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 110 (2014).
We are satisfied that there was substantial evidence to
support Doe's level three classification. The hearing examiner
carefully considered various aggravating and mitigating factors
in classifying Doe. He found that Doe's repeated assaults of an
extrafamilial fourteen year old boy involved both threats of
violence and a high degree of physical contact, which indicated
a high risk of reoffense and degree of dangerousness. In
addition, the hearing examiner noted that Doe had prior contact
with the criminal justice system, including for nonsexual
violent offenses, and incurred multiple disciplinary reports
while incarcerated. The hearing examiner also considered
factors in Doe's favor, such as his support system, age, and
participation in sex offender treatment and that he would be
6 subject to ten years of probation after release. Finally, as
discussed above, the hearing examiner properly took Doe's
physical condition into account. Taking the evidence as a
whole, the hearing examiner determined that Doe's "risk to re-
offend . . . and [degree] of dangerousness" was "high" such that
a level three classification was appropriate. The record amply
supports the hearing examiner's conclusion.
To the extent Doe asserts that the hearing examiner could
not classify him as a level three offender because SORB's
counsel argued in closing for a level two classification, we
disagree. The hearing examiner conducts an independent review
of the evidence, see Doe, Sex Offender Registry Bd. No. 3844 v.
Sex Offender Registry Bd., 447 Mass. 768, 772 (2006), and
closing argument is not evidence. We are likewise unpersuaded
by Doe's contention that SORB failed to meet its burden of proof
because it did not present an expert to counter Dr. Hersh's
testimony. There is no requirement that the hearing examiner
adopt the "opinion of a witness testifying on behalf of a sex
offender . . . even where the board does not present any
contrary expert testimony." Doe No. 10800, 459 Mass. at 637.
The hearing examiner's decision demonstrates that he considered
Dr. Hersh's opinion but ultimately ascribed it minimal weight
because of its inconclusive nature, which was within his
discretion to do. See Doe, Sex Offender Registry Bd. No. 23656
7 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").
3. Internet dissemination. Prior to ordering Internet
dissemination, a hearing examiner must make a separate finding
that public access to the offender's registry information is in
the interest of public safety. See Doe, Sex Offender Registry
Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-
657 (2019) (Doe No. 496501). Here, Doe contends that the
hearing examiner did not make adequate findings on the necessity
of dissemination and failed to consider that Doe would not have
access to potential victims given his current health condition,
living arrangements, and global positioning system monitor.
Contrary to Doe's assertions, the hearing examiner
explained how active dissemination of Doe's registry information
served public safety. The hearing examiner considered that Doe
"demonstrated that he can repeatedly sexually assault a
[fourteen]-year-old, extrafamilial boy with a high level of
physical contact over a period of years" and use threats of
"violence and death" to guarantee compliance. Finding that if
Doe were to "re-offend it would likely be against a young male
child that he is acquainted with that he brings into his home,"
the hearing examiner concluded that dissemination was
8 appropriate to allow the "parents of children that are known to"
Doe to access his information "to take steps to protect their
children." Substantial evidence supports this conclusion. Cf.
Doe No. 496501, 482 Mass. at 655 (Internet dissemination of a
level two offender's information "will almost invariably serve a
public safety interest by notifying potential victims of the
risks presented by the offender in their geographic area").
Judgment affirmed.
By the Court (Shin, Brennan & Hodgens, JJ. 3),
Clerk
Entered: December 14, 2023.
3 The panelists are listed in order of seniority.