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-2
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 29265
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming the Sex Offender Registry Board's (SORB)
decision to classify him as a level two sex offender in
accordance with G. L. c. 6, § 178K (2) (b). On appeal, Doe
maintains that (1) the hearing examiner improperly relied on
hearsay evidence of new sexual misconduct and (2) the level two
classification was not supported by substantial evidence. We
affirm.
Background. We summarize the facts set forth by the
examiner in his decision, supplemented by materials included in
the administrative record. In 1983, Doe was found guilty of
indecent assault and battery on a person under the age of fourteen and sentenced to one year of probation. According to
the police report, Doe touched the victim (victim 1), a thirteen
year old female neighbor who was babysitting Doe's child, on her
breast, "french kiss[ed]" her, unzipped her pants, and "put his
hand down inside." In 2007, SORB notified Doe of his duty to
register as a level one sex offender pursuant to G. L. c. 6,
§ 178K (2) (a); Doe accepted SORB's recommendation.
In September 2016, Doe sexually assaulted his daughter's
friend (victim 2) while she was at his home celebrating the
daughter's birthday. Victim 2, an eighteen year old woman, sent
a text message to her boyfriend indicating "she was intoxicated
and beginning to feel uncomfortable with [Doe]." Her boyfriend
arrived at Doe's home and yelled the victim's name from outside.
Victim 2 responded in a "distressed tone" and the boyfriend
entered the apartment to find the victim on the couch without a
shirt or bra on; Doe was kneeling over her. The boyfriend
helped victim 2 get dressed and drove her home. Later that
night, Doe's daughter texted the boyfriend and stated that she
found a photo of victim 2's breasts on her father's camera, she
did not believe Doe's representation that the photo was taken by
accident, and she wanted to accompany the boyfriend to the
police station.
The boyfriend reported the incident to the police. Both he
and victim 2 were interviewed. As part of the investigation,
2 the police also interviewed Doe. He admitted to providing his
daughter and the victim with alcohol, told police that victim 2
had taken her top and bra off herself, and denied touching her.
He also told police that he had accidentally taken a photo of
victim 2 in a bra, but that he deleted it from his camera. He
denied photographing her bare breasts. Doe was found guilty of
furnishing alcohol to a minor, pleaded guilty to assault and
battery, and was sentenced to concurrent one-year terms of
probation.1
Based on these new charges, on March 9, 2017, SORB notified
Doe of his duty to register as a level three sex offender
pursuant to G. L. c. 6, § 178K (2) (c). Doe requested a hearing
to review SORB's recommended classification level, and a hearing
was held on September 13, 2017. The hearing examiner issued a
final recommendation reclassifying Doe as a level two sex
offender on October 5, 2017.
Due to a procedural error discovered by SORB, Doe was
returned to his level one status in January 2018. Between that
date and November 2022, Doe had another administrative hearing,
1 Doe was initially charged with rape, two counts of indecent assault and battery, and furnishing alcohol to a minor. The judge allowed a motion for a required finding of not guilty on one charge of indecent assault and battery and a jury found Doe not guilty of rape.
3 was again reclassified as a level two sex offender, and twice
appealed to the Superior Court pursuant to G. L. c. 30A, § 14.
Standard of review. "A reviewing court may set aside or
modify SORB's classification decision where it determines that
the decision is in excess of SORB's statutory authority or
jurisdiction, violates constitutional provisions, is based on an
error of law, or is not supported by substantial evidence."
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), citing
G. L. c. 30A, § 14 (7). "Substantial evidence is 'such evidence
as a reasonable mind might accept as adequate to support a
conclusion.'" Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L.
c. 30A, § 1 (6). "We give due weight to the experience,
technical competence, and specialized knowledge of the agency,
as well as to the discretionary authority conferred upon it"
(quotation and citation omitted). Doe, Sex Offender Registry
Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct.
85, 88 (2019) (Doe No. 523391).
Discussion. 1. Admission of hearsay evidence. Doe
contends that the hearing examiner improperly relied on hearsay
evidence in concluding that Doe committed a new sexual offense.
"The range of evidence that may be considered by hearing
examiners is not limited by the same rules of evidence that
4 apply in court proceedings; hearing examiners may exercise their
discretion to admit and give probative value to evidence 'if it
is the kind of evidence on which reasonable persons are
accustomed to rely in the conduct of serious affairs.'" Doe,
Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry
Bd., 488 Mass. 15, 26 (2021) (Doe No. 339940), quoting G. L.
c. 30A, § 11 (2). "[H]earsay evidence bearing indicia of
reliability constitutes admissible and substantial evidence"
(citation omitted). Id. See Doe No. 523391, 95 Mass. App. Ct.
at 89-90.
To determine reliability, the examiner must consider the
circumstances in which the statements were made, including "the
general plausibility and consistency of the victim's or
witness's story, the circumstances under which it is related,
the degree of detail, the motives of the narrator, the presence
or absence of corroboration and the like" (quotation and
citation omitted). Doe No. 339940, 95 Mass. App. Ct. at 89.
See Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender
Registry Bd., 70 Mass. App. Ct. 309, 312-313 (2007). On appeal,
we consider whether "it was reasonable for the examiner to admit
and credit the facts described in the hearsay evidence"
(quotation and citation omitted). Doe No. 523391, 95 Mass. App.
Ct. at 89.
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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-2
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 29265
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming the Sex Offender Registry Board's (SORB)
decision to classify him as a level two sex offender in
accordance with G. L. c. 6, § 178K (2) (b). On appeal, Doe
maintains that (1) the hearing examiner improperly relied on
hearsay evidence of new sexual misconduct and (2) the level two
classification was not supported by substantial evidence. We
affirm.
Background. We summarize the facts set forth by the
examiner in his decision, supplemented by materials included in
the administrative record. In 1983, Doe was found guilty of
indecent assault and battery on a person under the age of fourteen and sentenced to one year of probation. According to
the police report, Doe touched the victim (victim 1), a thirteen
year old female neighbor who was babysitting Doe's child, on her
breast, "french kiss[ed]" her, unzipped her pants, and "put his
hand down inside." In 2007, SORB notified Doe of his duty to
register as a level one sex offender pursuant to G. L. c. 6,
§ 178K (2) (a); Doe accepted SORB's recommendation.
In September 2016, Doe sexually assaulted his daughter's
friend (victim 2) while she was at his home celebrating the
daughter's birthday. Victim 2, an eighteen year old woman, sent
a text message to her boyfriend indicating "she was intoxicated
and beginning to feel uncomfortable with [Doe]." Her boyfriend
arrived at Doe's home and yelled the victim's name from outside.
Victim 2 responded in a "distressed tone" and the boyfriend
entered the apartment to find the victim on the couch without a
shirt or bra on; Doe was kneeling over her. The boyfriend
helped victim 2 get dressed and drove her home. Later that
night, Doe's daughter texted the boyfriend and stated that she
found a photo of victim 2's breasts on her father's camera, she
did not believe Doe's representation that the photo was taken by
accident, and she wanted to accompany the boyfriend to the
police station.
The boyfriend reported the incident to the police. Both he
and victim 2 were interviewed. As part of the investigation,
2 the police also interviewed Doe. He admitted to providing his
daughter and the victim with alcohol, told police that victim 2
had taken her top and bra off herself, and denied touching her.
He also told police that he had accidentally taken a photo of
victim 2 in a bra, but that he deleted it from his camera. He
denied photographing her bare breasts. Doe was found guilty of
furnishing alcohol to a minor, pleaded guilty to assault and
battery, and was sentenced to concurrent one-year terms of
probation.1
Based on these new charges, on March 9, 2017, SORB notified
Doe of his duty to register as a level three sex offender
pursuant to G. L. c. 6, § 178K (2) (c). Doe requested a hearing
to review SORB's recommended classification level, and a hearing
was held on September 13, 2017. The hearing examiner issued a
final recommendation reclassifying Doe as a level two sex
offender on October 5, 2017.
Due to a procedural error discovered by SORB, Doe was
returned to his level one status in January 2018. Between that
date and November 2022, Doe had another administrative hearing,
1 Doe was initially charged with rape, two counts of indecent assault and battery, and furnishing alcohol to a minor. The judge allowed a motion for a required finding of not guilty on one charge of indecent assault and battery and a jury found Doe not guilty of rape.
3 was again reclassified as a level two sex offender, and twice
appealed to the Superior Court pursuant to G. L. c. 30A, § 14.
Standard of review. "A reviewing court may set aside or
modify SORB's classification decision where it determines that
the decision is in excess of SORB's statutory authority or
jurisdiction, violates constitutional provisions, is based on an
error of law, or is not supported by substantial evidence."
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), citing
G. L. c. 30A, § 14 (7). "Substantial evidence is 'such evidence
as a reasonable mind might accept as adequate to support a
conclusion.'" Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L.
c. 30A, § 1 (6). "We give due weight to the experience,
technical competence, and specialized knowledge of the agency,
as well as to the discretionary authority conferred upon it"
(quotation and citation omitted). Doe, Sex Offender Registry
Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct.
85, 88 (2019) (Doe No. 523391).
Discussion. 1. Admission of hearsay evidence. Doe
contends that the hearing examiner improperly relied on hearsay
evidence in concluding that Doe committed a new sexual offense.
"The range of evidence that may be considered by hearing
examiners is not limited by the same rules of evidence that
4 apply in court proceedings; hearing examiners may exercise their
discretion to admit and give probative value to evidence 'if it
is the kind of evidence on which reasonable persons are
accustomed to rely in the conduct of serious affairs.'" Doe,
Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry
Bd., 488 Mass. 15, 26 (2021) (Doe No. 339940), quoting G. L.
c. 30A, § 11 (2). "[H]earsay evidence bearing indicia of
reliability constitutes admissible and substantial evidence"
(citation omitted). Id. See Doe No. 523391, 95 Mass. App. Ct.
at 89-90.
To determine reliability, the examiner must consider the
circumstances in which the statements were made, including "the
general plausibility and consistency of the victim's or
witness's story, the circumstances under which it is related,
the degree of detail, the motives of the narrator, the presence
or absence of corroboration and the like" (quotation and
citation omitted). Doe No. 339940, 95 Mass. App. Ct. at 89.
See Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender
Registry Bd., 70 Mass. App. Ct. 309, 312-313 (2007). On appeal,
we consider whether "it was reasonable for the examiner to admit
and credit the facts described in the hearsay evidence"
(quotation and citation omitted). Doe No. 523391, 95 Mass. App.
Ct. at 89.
5 Here, Doe claims that the hearing examiner abused his
discretion by admitting and relying on hearsay statements from
victim 2, her boyfriend, and Doe's daughter in concluding that
Doe committed a second act of sexual misconduct in 2016. Doe
also maintains that the hearing examiner failed to make the
detailed factual findings required to support this reliance.
The hearing examiner found that "[d]espite [Doe's] plea to
the lesser charge of assault and battery . . . [there was]
sufficient evidence to consider as fact that [Doe] indecently
touched [v]ictim 2." This finding was supported by substantial
evidence. Victim 2's statement to the police that Doe took
photos of her without a shirt or bra on, approached her while
she was alone with him in a room and began "rubbing her vagina"
included substantial detail about the circumstances of the
assault and was corroborated by contemporaneous text messages
sent to her boyfriend. See Doe 523391, 95 Mass. App. Ct. at 90
(victim's account in police report reliable where events
surrounding assault described in detail).
Victim 2's account was also corroborated by the statements
that her boyfriend made to the police, by Doe's daughter, and by
Doe. See Doe 523391, 95 Mass. App. Ct. at 90. Doe's daughter
described having seen a photograph of victim 2's bare breasts on
her father's camera. The boyfriend saw Doe kneeling over victim
2's half-naked body on the couch. Moreover, Doe pleaded guilty
6 to assault and battery, which further corroborates the victim's
account of Doe's touching her without consent. See Commonwealth
v. Given, 441 Mass. 741, 747-748 (2004) ("The fact of conviction
is a powerful independent indicator of the reliability of the
statements describing the offense on which the conviction
rests"). The statements were made in circumstances that
indicate reliability: victim 2 was in distress and had sought
help from her boyfriend, see Doe No. 523391, 95 Mass. App. Ct.
90 (consistent account of assault to police and others
indicative of reliability); Doe's daughter had just discovered a
photograph of victim 2's breasts on her father's camera; and the
reporting parties went immediately to the police station after
the incident. Cf. Commonwealth v. Patton, 458 Mass. 119, 134
(2010) (promptness of sexual assault complaint relevant to
credibility determination).
Doe contends that the hearing examiner did not properly
consider Doe's daughter's affidavit, in which she averred, inter
alia, that (1) Doe did not take victim 2's bra or shirt off, and
(2) he was not "straddling" her when the daughter reentered the
apartment with victim 2's boyfriend. "[I]t is the province of
[the hearing examiner], not this court, to weigh the credibility
of the witnesses and to resolve any factual disputes" (citation
omitted). Doe, Sex Offender Registry No. 291554 v. Sex Offender
Registry Board, 87 Mass. App. Ct. 210, 213 (2015). The hearing
7 examiner did so. He addressed the daughter's affidavit in his
analysis, reasoning that "[n]otwithstanding [Doe's] daughter's
dispute of some of the subsidiary facts, she does not deny that
she had left the room at the time of the sexual assault and thus
cannot refute that [Doe] did in fact touch [v]ictim 2."
Finally, the hearing examiner's findings support his
decision to credit victim 2's and her boyfriend's accounts of
the assault. In finding that Doe "indecently touched" victim 2,
the hearing examiner noted that victim 2's account "that she was
uncomfortable with [Doe's] actions and that he photographed her
breasts," was corroborated by Doe's daughter's texts and
affidavit. On the night of the assault, Doe's daughter sent a
message to victim 2's boyfriend saying, "I think [(v)ictim 2]
had every right to feel uncomfortable around my dad I looked at
his camera and the first thing I saw was [(v)ictim 2's] boob's
[sic] [;] he said it was an accident but I don't believe him."
This contemporaneous account corroborates victim 2's discomfort
with Doe and her report that he took photos of her naked
breasts.
Where the hearing examiner thoroughly "assess[ed] the
reliability of the exhibits introduced into evidence and [the]
credibility of witnesses," we do not disturb his decision. 803
Code Mass. Regs. § 1.19(1)(h) (2016).
8 2. Substantial evidence. Doe further argues that the
level 2 classification was not supported by clear and convincing
evidence. Our conclusion that the hearing examiner properly
relied on hearsay evidence of Doe's 2016 sexual misconduct is
conclusive as to portions of this argument.
"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).
Doe maintains that the hearing examiner erred by failing to
consider the passage of time between Doe's initial sexual
offense in 1983 and his subsequent sexual misconduct under
factor 37 (other information related to the nature of the sexual
behavior). See 803 Code Mass. Regs. § 1.33(37) (2016). While
the hearing examiner did not explicitly address the time between
Doe's first and second offenses under factor 37, the decision
reflects the examiner's consideration of the nature of Doe's
criminal history, including the passage of time. In applying
factor 10 (contact with the criminal justice system), the
hearing examiner noted that, with the exception of two charges
for violation of an abuse prevention order in 2013, all of Doe's
charges were over thirty years old, and he ascribed the factor
9 minimal weight.2 See id. § 1.33(10). Even if a significant
amount of time has passed, commission of a prior sexual offense
is relevant to a "holistic assessment" of an offender's
dangerousness. See Doe, No. 496501, 482 Mass. at 651.
Moreover, the hearing examiner engaged in a detailed
analysis of two high-risk factors, seven risk-elevating factors
and four risk-mitigating and additional factors in reaching his
final classification decision.
2 Doe does not contend that factor 29 (offense-free time in the community) applies because "[f]or purposes of factor 29, the offense-free time begins on the date of an offender's most recent release from custody for a sex offense or non-sexual violent offense," and Doe pleaded guilty to assault and battery in 2018. 803 Code Mass. Regs. § 1.33(29).
10 Where the classification is supported by "such evidence as
a reasonable mind might accept as adequate to support a
conclusion," G. L. c. 30A, § 1 (6), and "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 do
not disturb the board's decision.
Judgment affirmed.
By the Court (Neyman, Hershfang & Hodgens, JJ.3),
Clerk
Entered: October 1, 2024.
3 The panelists are listed in order of seniority.