John Doe, Sex Offender Registry Board No. 314343 v. Sex Offender Registry Board.
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Opinion
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-710
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 314343
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe (Doe), appeals from a judgment
entered in the Superior Court upholding his classification as a
level three sex offender. He claims that the evidence did not
support the hearing examiner's classification decision. 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).
Doe has a long history of exposing himself to unsuspecting
women and masturbating in front of them. On February 17, 2011, the Sex Offender Registry Board (SORB), designated Doe as a
level two sex offender. This classification followed a 2007
conviction for indecent exposure and two separate convictions
from 2009 and 2010 for open and gross lewdness and lascivious
behavior. In December 2014, SORB sought to change Doe's
classification to level three following another conviction for
open and gross lewdness and lascivious behavior. Doe challenged
this reclassification through a de novo hearing, and on August
2, 2016, SORB ordered that he continue to register as a level
two offender.
On January 6, 2020, following numerous new incidents
resulting in criminal charges, SORB again sought to reclassify
Doe as a level three sex offender. Doe challenged the change
through a de novo hearing, and the hearing examiner reclassified
him as a level three sex offender. Doe sought judicial review,
claiming that the hearing examiner'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
the decision is in excess of [SORB's] statutory authority or
jurisdiction, is based on an error of law, is not supported by
2 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, 486 Mass. at 757, quoting Boston
Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019).
1. Level three classification. On appeal, Doe concedes
that he poses a high risk to reoffend, but given the noncontact
nature of his offenses, he claims that the evidence was
insufficient to support a finding that he poses a high degree of
dangerousness warranting a level three classification. 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 determine whether it was supported by
substantial evidence." Doe, Sex Offender Registry Bd. No.
3 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" (quotation and
citation omitted). Doe, Sex Offender Registry Bd. No. 68549 v.
Sex Offender Registry Bd., 470 Mass. 102, 110 (2014).
We are satisfied that the classification is supported by
substantial evidence. The hearing examiner considered ample
evidence showing Doe's dangerousness: he offended against
stranger victims (factor 7); he offended while on probation
(factor 13); he offended against diverse victims (factor 21);
and he offended against at least thirteen victims (factor 22).
See 803 Code Mass. Regs. §§ 1.33(7), (13), (21), (22) (2016).
Although noncontact offenses, Doe's sexualized behavior
appeared, as the examiner found, to be "escalating" to the point
of causing reasonable fear that he posed a danger of committing
a contact offense. Unlike some of Doe's prior offenses that
appeared random and desultory, over a forty-five day period in
2020, Doe committed offenses that focused attention on
particular individuals: he knocked on a woman's home window to
4 get her attention while holding a sharp object, and attempted to
open her windows; he had been near the same woman's home staring
into her bedroom window a few nights earlier; on two occasions
he followed a woman, called out her name, and masturbated in her
presence; and after calling out to a woman, seemingly to ask for
directions, he exposed himself and masturbated in front of her.
The hearing examiner could properly conclude that such
"actions are likely to place a person in reasonable apprehension
of him committing a contact offense" especially given that one
of the women "was so scared she felt the need to hide in a
neighbor's yard." See Doe, Sex Offender Registry Bd. No. 496501
v. Sex Offender Registry Bd., 482 Mass. 643, 659 (2019)
("noncontact offenders whose actions are likely to create a fear
of bodily harm are generally more dangerous than noncontact
offenders whose actions are unlikely to generate such fear").
Additionally, Doe's most recent sex offense in May 2021 provided
further evidence of conduct escalating toward violence. After
exposing himself in a public park and being confronted by a park
employee, Doe exposed himself repeatedly to persons in the park
before being confronted by park rangers. He threatened the
rangers with physical violence and fled. Viewing the record as
a whole, the hearing examiner based her decision on substantial
5 evidence, and we discern no error or abuse of discretion. See
Doe No.
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