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-1043
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 29663
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe,1 appeals from a Superior Court
judgment affirming his final classification by the Sex Offender
Registry Board (SORB) as a level two sex offender. Concluding
that the hearing examiner acted within his discretion in denying
Doe's motion for expert funds and discerning no error in the
examiner's analysis, we affirm.
1. Standard of review. "[A] decision of SORB 'may only be
set aside if the court determines that the decision is
unsupported by substantial evidence or is arbitrary or
capricious, an abuse of discretion, or not in accordance with
the law.'" Doe, Sex Offender Registry Bd. No. 22188 v. Sex
1 A pseudonym. Offender Registry Bd., 101 Mass. App. Ct. 797, 801 (2022) (Doe
No. 22188), quoting Doe, Sex Offender Registry Bd. No. 6969 v.
Sex Offender Registry Bd., 99 Mass. App. Ct. 533, 537 (2021).
"We review the examiner's decision to deny a motion for expert
funds for an abuse of discretion." Doe, Sex Offender Registry
Bd. No. 58574 v. Sex Offender Registry Bd., 98 Mass. App. Ct.
307, 310 (2020) (Doe No. 58574). We review the Superior Court's
decision de novo. See Doe, Sex Offender Registry Bd. No. 22164
v. Sex Offender Registry Bd., 103 Mass. App. Ct. 431, 433
(2023).
2. Motion for expert funds. "[I]n moving for expert
witness funds, the burden [is] on the sex offender to identify
and articulate the reason or reasons, connected to a condition
or circumstance special to him, that he needs to retain a
particular type of expert." Doe, Sex Offender Registry Bd. No.
89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008)
(Doe No. 89230). Accord 803 Code Mass. Regs. § 1.16(4)(a)
(2016). "[G]eneral motion[s] for funds to retain an expert to
provide an opinion on the sex offender's risk of reoffense,
without more, would . . . be insufficient." Doe, Sex Offender
Registry Bd. No. 234076 v. Sex Offender Registry Bd., 484 Mass.
666, 670 (2020), quoting Doe No. 89230, supra. "[T]he decision
whether to grant an individual sex offender funds for an expert
2 is a discretionary one, to be based on the facts presented in an
individual case." Doe No. 89230, supra.
By regulation, an offender seeking expert funds must file a
written motion that, inter alia, "identif[ies] a condition or
circumstance special to the sex offender and explain how that
condition is connected to his or her risk of reoffense or level
of dangerousness." 803 Code Mass. Regs. § 1.16(4)(a). Here,
Doe requested funds for an expert because he "is mentally ill
and suffers from bipolar disorder," but provided no connection
other than the vague statement that "[o]ther scientific studies
have also found that the diagnosis of schizophrenia, mania or
depression is negatively, if at all, related to future violent
recidivism."
The examiner revisited the issue at the hearing, explaining
that "there needs to be some sort of sense of a connection" and
asked how Doe's bipolar disorder was relevant. Rather than
provide a connection, Doe's attorney said, "Isn't that what a
doctor would explore, that if there was some type of nexus. We
won't know that until there is an evaluation." Cf. Doe No.
58574, 98 Mass. App. Ct. at 309 ("[Doe] also cited two
scientific studies. He stated that the first study found that
'men with [Doe's condition] experienced greater sexual
3 dysfunction . . . than a control group of men without the
disease'").
Doe was unable to provide even an attenuated connection
between his mental illness and his likelihood to reoffend.
Where the hearing examiner found no basis in the motion and
provided Doe an opportunity to orally provide a basis for the
connection yet Doe was still unable to provide one, it was
reasonable for the hearing examiner to deny the motion for
funds.
3. Application of the regulatory factors. "[A] hearing
examiner has discretion . . . to consider which statutory and
regulatory factors are applicable and how much weight to ascribe
each factor." Doe, Sex Offender Registry Bd. No. 356315 v. Sex
Offender Registry Bd., 99 Mass. App. Ct. 292, 299 (2021),
quoting Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 109-110 (2014). "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.'" Doe, Sex Offender Registry Bd.
No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85,
88 (2019) (Doe No. 523391), quoting Doe, Sex Offender Registry
Bd. No. 356011, 88 Mass. App. Ct. 73, 76 (2015).
4 a. Age at first offense (factor 4). The regulation
provides that "[o]ffenders who manifest an early onset and
persistence of deviant sexual interests or behaviors are at a
higher risk to reoffend sexually." 803 Code Mass. Regs.
§ 1.33(4)(a). "Factor 4 applies to offenders convicted as
adults who committed their first detected sexual misconduct as a
juvenile and continued to engage in sexual misconduct after the
age of 21." 803 Code Mass. Regs. § 1.33(4)(a). A juvenile is
"[a]n individual younger than 18 years old at the time of
committing a sex offense." 803 Code Mass. Regs. § 1.03.
Doe argues that, because he was tried and sentenced as a
legal adult in 1997 following his sex offending behavior with
his first victim, he cannot now be considered a "juvenile" for
purposes of applying factor 4. This, however, is not what the
regulations require. Doe committed his first sex offense at age
seventeen, making him a juvenile under the regulations. His
second offense was committed at age thirty-nine. Accordingly,
it was reasonable for the examiner to apply this factor.
b. Level of physical contact (factor 19) and other useful
information (factor 37). The regulation provides that "[t]he
offender who engages in penetration, especially penile
penetration, as part of the sexual assault poses an increased
degree of dangerousness." 803 Code Mass. Regs. § 1.33(19)(a).
5 "In the case of an adult with a child victim, if the difference
in age between the offender and the victim is five years or less
and there is evidence of a consensual, although statutorily
criminal sexual act, the Board shall give limited weight to
factor 19." 803 Code Mass. Regs. § 1.33(19)(a). Additionally,
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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-1043
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 29663
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe,1 appeals from a Superior Court
judgment affirming his final classification by the Sex Offender
Registry Board (SORB) as a level two sex offender. Concluding
that the hearing examiner acted within his discretion in denying
Doe's motion for expert funds and discerning no error in the
examiner's analysis, we affirm.
1. Standard of review. "[A] decision of SORB 'may only be
set aside if the court determines that the decision is
unsupported by substantial evidence or is arbitrary or
capricious, an abuse of discretion, or not in accordance with
the law.'" Doe, Sex Offender Registry Bd. No. 22188 v. Sex
1 A pseudonym. Offender Registry Bd., 101 Mass. App. Ct. 797, 801 (2022) (Doe
No. 22188), quoting Doe, Sex Offender Registry Bd. No. 6969 v.
Sex Offender Registry Bd., 99 Mass. App. Ct. 533, 537 (2021).
"We review the examiner's decision to deny a motion for expert
funds for an abuse of discretion." Doe, Sex Offender Registry
Bd. No. 58574 v. Sex Offender Registry Bd., 98 Mass. App. Ct.
307, 310 (2020) (Doe No. 58574). We review the Superior Court's
decision de novo. See Doe, Sex Offender Registry Bd. No. 22164
v. Sex Offender Registry Bd., 103 Mass. App. Ct. 431, 433
(2023).
2. Motion for expert funds. "[I]n moving for expert
witness funds, the burden [is] on the sex offender to identify
and articulate the reason or reasons, connected to a condition
or circumstance special to him, that he needs to retain a
particular type of expert." Doe, Sex Offender Registry Bd. No.
89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008)
(Doe No. 89230). Accord 803 Code Mass. Regs. § 1.16(4)(a)
(2016). "[G]eneral motion[s] for funds to retain an expert to
provide an opinion on the sex offender's risk of reoffense,
without more, would . . . be insufficient." Doe, Sex Offender
Registry Bd. No. 234076 v. Sex Offender Registry Bd., 484 Mass.
666, 670 (2020), quoting Doe No. 89230, supra. "[T]he decision
whether to grant an individual sex offender funds for an expert
2 is a discretionary one, to be based on the facts presented in an
individual case." Doe No. 89230, supra.
By regulation, an offender seeking expert funds must file a
written motion that, inter alia, "identif[ies] a condition or
circumstance special to the sex offender and explain how that
condition is connected to his or her risk of reoffense or level
of dangerousness." 803 Code Mass. Regs. § 1.16(4)(a). Here,
Doe requested funds for an expert because he "is mentally ill
and suffers from bipolar disorder," but provided no connection
other than the vague statement that "[o]ther scientific studies
have also found that the diagnosis of schizophrenia, mania or
depression is negatively, if at all, related to future violent
recidivism."
The examiner revisited the issue at the hearing, explaining
that "there needs to be some sort of sense of a connection" and
asked how Doe's bipolar disorder was relevant. Rather than
provide a connection, Doe's attorney said, "Isn't that what a
doctor would explore, that if there was some type of nexus. We
won't know that until there is an evaluation." Cf. Doe No.
58574, 98 Mass. App. Ct. at 309 ("[Doe] also cited two
scientific studies. He stated that the first study found that
'men with [Doe's condition] experienced greater sexual
3 dysfunction . . . than a control group of men without the
disease'").
Doe was unable to provide even an attenuated connection
between his mental illness and his likelihood to reoffend.
Where the hearing examiner found no basis in the motion and
provided Doe an opportunity to orally provide a basis for the
connection yet Doe was still unable to provide one, it was
reasonable for the hearing examiner to deny the motion for
funds.
3. Application of the regulatory factors. "[A] hearing
examiner has discretion . . . to consider which statutory and
regulatory factors are applicable and how much weight to ascribe
each factor." Doe, Sex Offender Registry Bd. No. 356315 v. Sex
Offender Registry Bd., 99 Mass. App. Ct. 292, 299 (2021),
quoting Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 109-110 (2014). "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.'" Doe, Sex Offender Registry Bd.
No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85,
88 (2019) (Doe No. 523391), quoting Doe, Sex Offender Registry
Bd. No. 356011, 88 Mass. App. Ct. 73, 76 (2015).
4 a. Age at first offense (factor 4). The regulation
provides that "[o]ffenders who manifest an early onset and
persistence of deviant sexual interests or behaviors are at a
higher risk to reoffend sexually." 803 Code Mass. Regs.
§ 1.33(4)(a). "Factor 4 applies to offenders convicted as
adults who committed their first detected sexual misconduct as a
juvenile and continued to engage in sexual misconduct after the
age of 21." 803 Code Mass. Regs. § 1.33(4)(a). A juvenile is
"[a]n individual younger than 18 years old at the time of
committing a sex offense." 803 Code Mass. Regs. § 1.03.
Doe argues that, because he was tried and sentenced as a
legal adult in 1997 following his sex offending behavior with
his first victim, he cannot now be considered a "juvenile" for
purposes of applying factor 4. This, however, is not what the
regulations require. Doe committed his first sex offense at age
seventeen, making him a juvenile under the regulations. His
second offense was committed at age thirty-nine. Accordingly,
it was reasonable for the examiner to apply this factor.
b. Level of physical contact (factor 19) and other useful
information (factor 37). The regulation provides that "[t]he
offender who engages in penetration, especially penile
penetration, as part of the sexual assault poses an increased
degree of dangerousness." 803 Code Mass. Regs. § 1.33(19)(a).
5 "In the case of an adult with a child victim, if the difference
in age between the offender and the victim is five years or less
and there is evidence of a consensual, although statutorily
criminal sexual act, the Board shall give limited weight to
factor 19." 803 Code Mass. Regs. § 1.33(19)(a). Additionally,
"the Board shall consider any information that it deems useful
in determining risk of reoffense and degree of dangerousness
posed by any offender." 803 Code Mass. Regs. § 1.33(37)(a).
The examiner noted that Doe discussed with his second
victim "engaging in sexual acts including fellatio, cunnilingus,
and intercourse" and then "consider[ed] his interest in engaging
in penetrative acts, and his traveling to the hotel to do so, to
be other useful information."2 Contrary to Doe's contentions,
consideration of Doe's planned behavior would be proper under
factor 37, which allows the examiner to consider any information
which weighs on an offender's risk of reoffense and degree of
dangerousness. The examiner reasonably considered Doe's recent
behavior as an administrator of an online chat room titled
"RiTeen4Older" and travel to the hotel where the second victim
2 The examiner applied factor 19 only to Doe's offense against the first victim, where Doe penetrated the victim's vagina with his penis. Consistent with the regulation, however, the examiner appropriately applied minimal weight.
6 was said to be waiting to meet him relevant to his likelihood of
reoffense and dangerousness.
4. Substantial evidence. "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). "A level two classification
requires a finding, by clear and convincing evidence, that
'(1) the offender's risk of reoffense is moderate; (2) the
offender's dangerousness is moderate; and (3) a public safety
interest is served by Internet publication of the offender's
registry information.'" Doe, Sex Offender Registry Bd. No.
23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138 (2019),
quoting Doe, Sex Offender Registry Bd. No. 496501 v. Sex
Offender Registry Bd., 482 Mass. 643, 656 (2019). "Under the
clear and convincing standard, '[t]he evidence must be
sufficient to convey a "high degree of probability" that the
contested proposition is true.'" Doe No. 523391, 95 Mass. App.
Ct. at 94, quoting Doe, Sex Offender Registry Bd. No. 380316 v.
Sex Offender Registry Bd., 473 Mass. 297, 309 (2015).
The examiner found Doe's risk of reoffense to be moderate
given evidence of Doe's sexual deviance and antisocial
orientation. In the span of twenty-three years, Doe first
7 engaged in sexual intercourse in a public location with a
thirteen year old child, and then traveled to meet a fourteen
year old child for sex. Doe also has a long and extensive
criminal record spanning across Massachusetts and Rhode Island,
which includes nonsexual violence and hostile acts towards
multiple women. Doe violated his probation on several
occasions, including by committing both sex offenses, and has
been subject to seven restraining orders in Massachusetts
between 1995 and 2016 by six different women. The examiner
reasonably found Doe's persistent interest in young teen
victims, his long criminal record, and repeated violations of
probation to support a level two classification.
The examiner further found that a public safety interest
would be served by Internet publication given that Doe targeted
vulnerable young teens in both offenses. His use of an online
chat site to seek out stranger teens for the explicit purpose of
sexual interactions and the fact that he was undeterred by the
victim's age and the illegality of his conduct further supported
the examiner's determination.
Fundamentally, Doe takes issue with the examiner's
conclusion that Doe "shows persistent interest in underaged
girls." There is no question, however, that Doe had sexual
intercourse with an underaged girl in 1997 and then, in 2020,
8 used his control of an Internet chat group to try to convince
someone he thought was a fourteen year old girl to engage in
intercourse with him. Even if reasonable minds can derive
different conclusions from this information, we discern nothing
unreasonable in the examiner's concluding that Doe's interest in
underaged girls persisted for at least twenty-three years and
that he thereby posed a moderate risk of reoffense and moderate
dangerousness, and that a public safety interest would be served
by Internet dissemination of his registry information. See Doe,
Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd.,
472 Mass. 492, 500-501 (2015), quoting Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 110 (2014) ("Our review of a hearing examiner's decision
'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
9 inference"'").
Judgment affirmed.
By the Court (Shin, Ditkoff & Brennan, JJ.3),
Clerk
Entered: January 6, 2025.
3 The panelists are listed in order of seniority.