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-1003
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 3134
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment upholding his reclassification by the Sex Offender
Registry Board (SORB) as a level three sex offender. He claims
that the hearing examiner improperly relied on hearsay, and he
seeks a new reclassification hearing so that he can present
additional evidence. We affirm.
Background. On June 10, 2004, SORB originally classified
Doe as a level two sex offender. This classification followed
Doe's guilty pleas on two counts of indecent assault and battery
on a child under fourteen, in violation of G. L. c. 265, § 13B.
The convictions stemmed from a 1993 incident in which Doe, then age twenty-six, touched the penis of a six year old male
neighbor and had the boy touch his penis.
On or about May 20, 2020, following a hearing, SORB
reclassified Doe as a level three sex offender. This
reclassification followed guilty pleas to indecent assault and
battery, in violation of G. L. c. 265, § 13H, and kidnapping,
in violation of G. L. c. 265, § 26. These new convictions
stemmed from a police investigation that followed a routine stop
of a motor vehicle driven by Doe, then age forty-six, in
Haverhill. During the stop, a male passenger, later identified
as a sixteen year old juvenile missing from Vermont, fled from
Doe's vehicle. After the police found him (barefoot, exhausted,
unbathed, and suffering from cuts and abrasions), the juvenile
reported that Doe drugged, kidnapped, and raped him. Complaints
issued charging Doe with rape and kidnapping, and he later
pleaded guilty to indecent assault and battery and kidnapping.
Doe challenged the reclassification decision and argued
that the hearing examiner improperly credited the juvenile's
detailed accounts of the Haverhill rape, and accordingly, SORB's
decision was unsupported by substantial evidence. A Superior
Court judge denied Doe's motion for judgment on the pleadings
and affirmed the level three classification. Doe appeals.
Discussion. A reviewing court can only "set aside or
modify [SORB's] classification decision where it determines that
2 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).
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. The hearing examiner's reliance on hearsay. On appeal,
Doe contends that the hearing examiner improperly relied on the
juvenile's statement to the Haverhill police in concluding that
Doe committed a new sexual offense that warranted a level three
classification. "The range of evidence that may be considered
by hearing examiners is not limited by the same rules of
evidence that 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
3 indicia of reliability constitutes admissible and substantial
evidence" (citation omitted). Doe No. 339940, supra. See Doe,
Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry
Bd., 95 Mass. App. Ct. 85, 89-90 (2019) (Doe No. 523391).
Considering the circumstances in which the statements were made
to the police, including the general plausibility and
consistency of the juvenile's story, the degree of detail, the
motives of the narrator, and the presence of corroborating
facts, we discern no error. See id. at 89.
On the heels of fleeing from Doe's vehicle, and appearing
in need of medical evaluation, the juvenile told the police a
detailed account that bespoke reliability. Not getting along
with his family in Vermont, the juvenile stayed at Doe's
residence. After Doe climbed on top of him several times during
his stay and once performed oral sex on his penis and anus, the
juvenile left and returned to his grandparents' home in Vermont.
Unhappy in Vermont, the juvenile arranged for Doe to pick him
up. Doe picked him up and gave him a soda bottle filled with a
strange, syrup-like liquid. The juvenile passed out after
drinking the liquid and awoke in Doe's bedroom where they smoked
methamphetamine. Spending drug-fueled days with Doe, the
juvenile awakened on two occasions to find Doe attempting oral
sex, and once to Doe performing oral sex on him. On the third
occasion, the juvenile punched Doe in the head, and Doe threw
4 him against a wall and threatened to kill him. Violence
escalated after another incident when the juvenile awoke to find
Doe attempting to use "anal beads" on him. During this
incident, the juvenile stabbed Doe in the right side of his
stomach with a drill bit taken from the basement earlier. The
following day, the juvenile again awoke in Doe's bed and found
Doe "rubbing his hands up his thighs" and attempting to use a
large dildo on him.
Additional facts in the record corroborated the juvenile's
account. See Doe No. 523391, 95 Mass. App. Ct. at 89-90
(indicia of reliability include detailed account, admissions by
offender, and independent corroboration). Doe's physical
appearance was consistent with his narrative of violence and
prolonged captivity (barefoot, exhausted, unbathed, under the
influence of drugs, and suffering from cuts and abrasions).
Doe's statement to the police corroborated much of the
juvenile's account of their interactions, including a wound on
Doe's stomach -- acknowledged by Doe but attributed to a mere
burst and infected pimple. Doe's guilty pleas to the charges of
indecent assault and battery and kidnapping lent additional
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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-1003
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 3134
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment upholding his reclassification by the Sex Offender
Registry Board (SORB) as a level three sex offender. He claims
that the hearing examiner improperly relied on hearsay, and he
seeks a new reclassification hearing so that he can present
additional evidence. We affirm.
Background. On June 10, 2004, SORB originally classified
Doe as a level two sex offender. This classification followed
Doe's guilty pleas on two counts of indecent assault and battery
on a child under fourteen, in violation of G. L. c. 265, § 13B.
The convictions stemmed from a 1993 incident in which Doe, then age twenty-six, touched the penis of a six year old male
neighbor and had the boy touch his penis.
On or about May 20, 2020, following a hearing, SORB
reclassified Doe as a level three sex offender. This
reclassification followed guilty pleas to indecent assault and
battery, in violation of G. L. c. 265, § 13H, and kidnapping,
in violation of G. L. c. 265, § 26. These new convictions
stemmed from a police investigation that followed a routine stop
of a motor vehicle driven by Doe, then age forty-six, in
Haverhill. During the stop, a male passenger, later identified
as a sixteen year old juvenile missing from Vermont, fled from
Doe's vehicle. After the police found him (barefoot, exhausted,
unbathed, and suffering from cuts and abrasions), the juvenile
reported that Doe drugged, kidnapped, and raped him. Complaints
issued charging Doe with rape and kidnapping, and he later
pleaded guilty to indecent assault and battery and kidnapping.
Doe challenged the reclassification decision and argued
that the hearing examiner improperly credited the juvenile's
detailed accounts of the Haverhill rape, and accordingly, SORB's
decision was unsupported by substantial evidence. A Superior
Court judge denied Doe's motion for judgment on the pleadings
and affirmed the level three classification. Doe appeals.
Discussion. A reviewing court can only "set aside or
modify [SORB's] classification decision where it determines that
2 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).
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. The hearing examiner's reliance on hearsay. On appeal,
Doe contends that the hearing examiner improperly relied on the
juvenile's statement to the Haverhill police in concluding that
Doe committed a new sexual offense that warranted a level three
classification. "The range of evidence that may be considered
by hearing examiners is not limited by the same rules of
evidence that 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
3 indicia of reliability constitutes admissible and substantial
evidence" (citation omitted). Doe No. 339940, supra. See Doe,
Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry
Bd., 95 Mass. App. Ct. 85, 89-90 (2019) (Doe No. 523391).
Considering the circumstances in which the statements were made
to the police, including the general plausibility and
consistency of the juvenile's story, the degree of detail, the
motives of the narrator, and the presence of corroborating
facts, we discern no error. See id. at 89.
On the heels of fleeing from Doe's vehicle, and appearing
in need of medical evaluation, the juvenile told the police a
detailed account that bespoke reliability. Not getting along
with his family in Vermont, the juvenile stayed at Doe's
residence. After Doe climbed on top of him several times during
his stay and once performed oral sex on his penis and anus, the
juvenile left and returned to his grandparents' home in Vermont.
Unhappy in Vermont, the juvenile arranged for Doe to pick him
up. Doe picked him up and gave him a soda bottle filled with a
strange, syrup-like liquid. The juvenile passed out after
drinking the liquid and awoke in Doe's bedroom where they smoked
methamphetamine. Spending drug-fueled days with Doe, the
juvenile awakened on two occasions to find Doe attempting oral
sex, and once to Doe performing oral sex on him. On the third
occasion, the juvenile punched Doe in the head, and Doe threw
4 him against a wall and threatened to kill him. Violence
escalated after another incident when the juvenile awoke to find
Doe attempting to use "anal beads" on him. During this
incident, the juvenile stabbed Doe in the right side of his
stomach with a drill bit taken from the basement earlier. The
following day, the juvenile again awoke in Doe's bed and found
Doe "rubbing his hands up his thighs" and attempting to use a
large dildo on him.
Additional facts in the record corroborated the juvenile's
account. See Doe No. 523391, 95 Mass. App. Ct. at 89-90
(indicia of reliability include detailed account, admissions by
offender, and independent corroboration). Doe's physical
appearance was consistent with his narrative of violence and
prolonged captivity (barefoot, exhausted, unbathed, under the
influence of drugs, and suffering from cuts and abrasions).
Doe's statement to the police corroborated much of the
juvenile's account of their interactions, including a wound on
Doe's stomach -- acknowledged by Doe but attributed to a mere
burst and infected pimple. Doe's guilty pleas to the charges of
indecent assault and battery and kidnapping lent additional
corroborative force to the juvenile's narrative. Further police
investigation corroborated additional details mentioned by the
juvenile. Searching Doe's home, the police located the "anal
beads" described by the juvenile as well as the juvenile's
5 belongings including a Bluetooth speaker, sneakers, and a
backpack. In Doe's vehicle, the police located a brown liquid
stain on the inside of the passenger front seat where Doe gave
the juvenile the brown syrupy liquid to drink. The vehicle also
contained drugs and drug paraphernalia. Thus, the hearing
examiner properly considered the various indicia of reliability
and could properly credit the juvenile's account of Doe's
conduct. The absence of a plea to the rape charge did not
render the juvenile's statements about being raped unreliable or
otherwise preclude the hearing examiner from considering the
statements. See Doe, Sex Offender Registry Bd. No. 356011 v.
Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015)
(examiner "permitted to consider other instances of conduct that
did not result in a conviction").
The hearing examiner was also not bound to accept Doe's
evidence suggesting that the juvenile was not credible. See Doe
No. 523391, 95 Mass. App. Ct. at 89-91. For example, Doe
presented documents to the hearing examiner, including social
media posts and newspaper articles, about the juvenile's role in
a fatal motor vehicle crash several weeks after Doe's arrest and
allegations that he lied to the police about the crash and
incurred criminal charges. Even if these documents, accepted as
exhibits at the hearing, bore the requisite indicia of
reliability, it is within the province of the hearing examiner,
6 and not an appellate court, to assess the credibility and
materiality of such evidence. See 803 Code Mass. Regs.
§ 1.19(1)(h) (2016). We discern no error from the examiner
crediting the juvenile's account and thereby implicitly
declining to assign weight to Doe's exhibits.
We also reject Doe's contention that the hearing examiner
"simply '[found] as fact' all of [the juvenile's] implausible
allegations" simply because Doe pleaded guilty. Contrary to
Doe's argument, the hearing examiner did not rely merely on the
guilty pleas. As the hearing examiner explained, the juvenile's
statement contained sufficient detail including "dates, times
and events leading up to the sexual assaults" for her to
conclude that Doe raped the juvenile "[d]espite the fact that
[Doe] plead[ed] guilty to a lesser offense of indecent assault
and battery." See Covell v. Department of Social Servs., 439
Mass. 766, 785-786 (2003) (detailed and consistent reports of
abuse considered substantial evidence despite being presented
only through hearsay sources).
2. Other claims. Doe raises two additional claims.
First, he contends that without the hearsay statements of the
juvenile, the record lacks substantial evidence to support his
reclassification. We disagree with this contention because, as
previously discussed, the hearing examiner properly considered
the juvenile's reliable hearsay.
7 Second, Doe contends that he should "have an opportunity to
present the evidence he had been trying to seek out." This
claim appears to be related to a prehearing motion to continue
while Doe investigated the viability of an ineffective
assistance of counsel claim and the possibility of filing a
motion to withdraw his pleas to the Haverhill incidents. The
hearing examiner denied this motion to continue and concluded
that SORB had jurisdiction to proceed with the hearing, and Doe
could still pursue an appeal from his convictions. We discern
no "abuse of discretion." Soe, Sex Offender Registry Bd. No.
252997 v. Sex Offender Registry Bd., 466 Mass. 381, 392 (2013).
In particular, the hearing examiner properly recognized that the
continuance of the hearing for an indeterminate time would pose
a public safety risk while Doe considered challenging plea
counsel's conduct through a possible motion to withdraw his
pleas.
Judgment affirmed.
By the Court (Vuono, Englander & Hodgens, JJ.1),
Clerk
Entered: January 2, 2025.
1 The panelists are listed in order of seniority.