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-777
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 34413
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Doe appeals from a Superior Court judgment affirming a Sex
Offender Registry Board (board) decision reclassifying Doe as a
level one offender and denying Doe's motion to terminate his
obligation to register as a sex offender. Discerning no error
in the hearing examiner's finding that Doe poses a low risk of
sexual reoffense and dangerousness or in the denial of Doe's
motion for relief from registration, we affirm.
Background. We summarize the facts found by the hearing
examiner, supplemented where necessary with undisputed facts
from the record. Doe committed his index offense during the
summer of 1994, when he was thirty-six years old. At the time,
Doe was living in Idaho. After befriending a fourteen year old
girl (victim) who lived in his apartment building, Doe and the victim began exchanging "love letters." One night, the victim
sneaked over to Doe's apartment after her family fell asleep.
The victim later reported that during that visit, Doe had "put
his penis into her vagina." Doe subsequently pleaded guilty in
Idaho to lewd conduct with a minor under the age of sixteen and
received a split sentence of from three to ten years in prison
with a ten-year term of probation.
Doe later moved to Massachusetts, and in September 2002,
the board ordered him to register as a level two offender. On
January 17, 2020, Doe submitted a motion pursuant to 803 Code
Mass. Regs. § 1.31 (2016), seeking to terminate his obligation
to register. Following a de novo hearing, the hearing examiner
issued a decision denying Doe's request to terminate his
registration obligation but nonetheless reducing Doe's level two
classification to a level one classification.
Doe later filed a complaint for judicial review in the
Superior Court pursuant to G. L. c. 30A, § 14. A Superior Court
judge affirmed the board's decision and this appeal followed.
Discussion. On appeal, Doe contends that the board failed
to prove by clear and convincing evidence that he continues to
pose a cognizable risk of reoffense and dangerousness. See Doe,
Sex Offender Registry Bd. No. 76819 v. Sex Offender Registry
Bd., 480 Mass. 212, 214 (2018), quoting G. L. c. 6,
§ 178K (2) (a) ("A sex offender is classified as level one where
2 'the board determines that the risk of reoffense is low and the
degree of dangerousness posed to the public is not such that a
public safety interest is served by public availability' of
registration information").
1. Standard of review. "We review a judge's consideration
of an agency decision de novo." Doe, Sex Offender Registry Bd.
No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85,
89 (2019). In reviewing the board's decision, we must "give due
weight to the experience, technical competence, and specialized
knowledge of the [board], as well as to the discretionary
authority conferred upon it." G. L. c. 30A, § 14 (7); Doe, Sex
Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd.,
447 Mass. 779, 787 (2006) (Doe No. 10216). We may only set
aside the board's decision upon a finding that the decision is
unsupported by substantial evidence, arbitrary and capricious,
an abuse of discretion, or not in accordance with the law. Doe,
Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd.,
490 Mass. 759, 762 (2022).
2. Sufficiency of the evidence. As an initial matter, we
find that Doe has waived his claims that (1) the board was
required to present expert evidence to prove that he is a level
one sex offender, and that (2) the risk-factors do not
adequately account for circumstances like Doe's, where
approximately twenty-five years have passed since his "single,
3 isolated instance of sexual misconduct," because Doe did not
raise these issues during the proceedings below. 1,2 See Doe, Sex
Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457
Mass. 53, 55-58 (2010).
After setting aside Doe's waived arguments, all that
remains are his claims that the hearing examiner improperly
applied risk-elevating factor 11 (violence unrelated to sexual
assaults) and "over-relied" on static risk factors related to
the circumstances of Doe's index offense. These claims fail to
persuade.
Factor 11 provides, in relevant part, that an offender "is
more likely to reoffend and present a greater danger if he has
previously demonstrated that he can act violently and with no
regard to the safety of others." 803 Code Mass. Regs.
§ 1.33(11)(a). The hearing examiner applied this factor upon
finding that Doe had committed four separate acts of nonsexual
1 We likewise decline to consider the research articles cited in Doe's brief, which were not submitted into evidence at his classification hearing. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 114 (2014), quoting Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 630 (2011) ("judicial review is confined to the administrative record").
2 We note, however, that a hearing examiner is not required to rely on expert testimony and may classify an offender based solely on the expertise embodied by the board's regulations. See Doe No. 10216, 447 Mass. at 785-786.
4 violence against women between 2001 and 2014. Doe does not
challenge the fact of those assaults but contends that they lack
probative value because his index offense "did not involve
violence." This argument lacks merit because the plain language
of factor 11 is clear that the circumstances of Doe's index
offense are irrelevant to whether factor 11 may be applied
because factor 11 considers an offender's propensity for
violence unrelated to sexual assaults. 803 Code Mass. Regs.
§ 1.33(11)(a).
Next, we turn to Doe's assertion that the hearing examiner
"over-relied" on static risk factors related to the
circumstances of Doe's index offense. This claim, in essence,
is a challenge to the weight the examiner gave to certain risk
factors, 3 and is unavailing because the amount of weight accorded
to each of the risk factors "was [the hearing examiner's] to
determine," and not within the purview of this panel. Doe, Sex
Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd.,
87 Mass. App. Ct. 210, 214 (2015). See Doe, Sex Offender
Registry Bd. No. 68549 v.
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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-777
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 34413
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Doe appeals from a Superior Court judgment affirming a Sex
Offender Registry Board (board) decision reclassifying Doe as a
level one offender and denying Doe's motion to terminate his
obligation to register as a sex offender. Discerning no error
in the hearing examiner's finding that Doe poses a low risk of
sexual reoffense and dangerousness or in the denial of Doe's
motion for relief from registration, we affirm.
Background. We summarize the facts found by the hearing
examiner, supplemented where necessary with undisputed facts
from the record. Doe committed his index offense during the
summer of 1994, when he was thirty-six years old. At the time,
Doe was living in Idaho. After befriending a fourteen year old
girl (victim) who lived in his apartment building, Doe and the victim began exchanging "love letters." One night, the victim
sneaked over to Doe's apartment after her family fell asleep.
The victim later reported that during that visit, Doe had "put
his penis into her vagina." Doe subsequently pleaded guilty in
Idaho to lewd conduct with a minor under the age of sixteen and
received a split sentence of from three to ten years in prison
with a ten-year term of probation.
Doe later moved to Massachusetts, and in September 2002,
the board ordered him to register as a level two offender. On
January 17, 2020, Doe submitted a motion pursuant to 803 Code
Mass. Regs. § 1.31 (2016), seeking to terminate his obligation
to register. Following a de novo hearing, the hearing examiner
issued a decision denying Doe's request to terminate his
registration obligation but nonetheless reducing Doe's level two
classification to a level one classification.
Doe later filed a complaint for judicial review in the
Superior Court pursuant to G. L. c. 30A, § 14. A Superior Court
judge affirmed the board's decision and this appeal followed.
Discussion. On appeal, Doe contends that the board failed
to prove by clear and convincing evidence that he continues to
pose a cognizable risk of reoffense and dangerousness. See Doe,
Sex Offender Registry Bd. No. 76819 v. Sex Offender Registry
Bd., 480 Mass. 212, 214 (2018), quoting G. L. c. 6,
§ 178K (2) (a) ("A sex offender is classified as level one where
2 'the board determines that the risk of reoffense is low and the
degree of dangerousness posed to the public is not such that a
public safety interest is served by public availability' of
registration information").
1. Standard of review. "We review a judge's consideration
of an agency decision de novo." Doe, Sex Offender Registry Bd.
No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85,
89 (2019). In reviewing the board's decision, we must "give due
weight to the experience, technical competence, and specialized
knowledge of the [board], as well as to the discretionary
authority conferred upon it." G. L. c. 30A, § 14 (7); Doe, Sex
Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd.,
447 Mass. 779, 787 (2006) (Doe No. 10216). We may only set
aside the board's decision upon a finding that the decision is
unsupported by substantial evidence, arbitrary and capricious,
an abuse of discretion, or not in accordance with the law. Doe,
Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd.,
490 Mass. 759, 762 (2022).
2. Sufficiency of the evidence. As an initial matter, we
find that Doe has waived his claims that (1) the board was
required to present expert evidence to prove that he is a level
one sex offender, and that (2) the risk-factors do not
adequately account for circumstances like Doe's, where
approximately twenty-five years have passed since his "single,
3 isolated instance of sexual misconduct," because Doe did not
raise these issues during the proceedings below. 1,2 See Doe, Sex
Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457
Mass. 53, 55-58 (2010).
After setting aside Doe's waived arguments, all that
remains are his claims that the hearing examiner improperly
applied risk-elevating factor 11 (violence unrelated to sexual
assaults) and "over-relied" on static risk factors related to
the circumstances of Doe's index offense. These claims fail to
persuade.
Factor 11 provides, in relevant part, that an offender "is
more likely to reoffend and present a greater danger if he has
previously demonstrated that he can act violently and with no
regard to the safety of others." 803 Code Mass. Regs.
§ 1.33(11)(a). The hearing examiner applied this factor upon
finding that Doe had committed four separate acts of nonsexual
1 We likewise decline to consider the research articles cited in Doe's brief, which were not submitted into evidence at his classification hearing. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 114 (2014), quoting Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 630 (2011) ("judicial review is confined to the administrative record").
2 We note, however, that a hearing examiner is not required to rely on expert testimony and may classify an offender based solely on the expertise embodied by the board's regulations. See Doe No. 10216, 447 Mass. at 785-786.
4 violence against women between 2001 and 2014. Doe does not
challenge the fact of those assaults but contends that they lack
probative value because his index offense "did not involve
violence." This argument lacks merit because the plain language
of factor 11 is clear that the circumstances of Doe's index
offense are irrelevant to whether factor 11 may be applied
because factor 11 considers an offender's propensity for
violence unrelated to sexual assaults. 803 Code Mass. Regs.
§ 1.33(11)(a).
Next, we turn to Doe's assertion that the hearing examiner
"over-relied" on static risk factors related to the
circumstances of Doe's index offense. This claim, in essence,
is a challenge to the weight the examiner gave to certain risk
factors, 3 and is unavailing because the amount of weight accorded
to each of the risk factors "was [the hearing examiner's] to
determine," and not within the purview of this panel. Doe, Sex
Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd.,
87 Mass. App. Ct. 210, 214 (2015). See Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 110 (2014).
3 The hearing examiner was required to consider the characteristics of Doe's index offense, regardless of the age of the offense, pursuant to G. L. c. 6, § 178K (1).
5 Moreover, after reviewing the hearing examiner's decision,
we are satisfied that his conclusion that Doe presents a low
risk of reoffense and dangerousness was not grounded solely on
the circumstances of Doe's 1994 offense. Rather, it is clear
that the decision was based on what the board's research-backed
regulations say about the significance of the characteristics of
Doe's offense, despite the passage of time, and in view of the
applicable mitigating factors, including Doe's advanced age, his
participation in sex offender treatment, his home environment
and support system, and his stability in the community. While
the examiner also granted some mitigating consideration to the
fact that Doe had not committed any new sex offenses for
approximately twenty-five years, he noted that the mitigating
weight of this factor was tempered by Doe's more recent,
nonsexual violent conduct. None of the applicable mitigating
circumstances required the examiner to find that Doe does not
present any risk of reoffense or dangerousness, particularly in
view of the high-risk and risk-elevating factors that the
6 hearing examiner also found applicable to Doe. 4,5 See Doe, Sex
Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447
Mass. 750, 764 (2006) (hearing examiner not required to find
that "risk-reducing factors completely ameliorated . . . risk of
reoffense and degree of dangerousness").
Conclusion. In view of the foregoing, we conclude that the
hearing examiner made a complete review of all the evidence
presented to him, both aggravating and mitigating, and reached a
decision that is supported by substantial evidence. See Smith
v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 813 (2006)
("As long as the [board’s] interpretation of its regulations and
statutory mandate is rational, and adhered to consistently, it
4 Specifically, the hearing examiner applied high-risk factor 3 (adult offender with child victim), and risk-elevating factors 7 (extrafamilial victim); 10 (contact with criminal justice system); 11 (violence unrelated to sexual assaults); and 19 (level of physical contact). See 803 Code Mass. Regs. § 1.33 (2016).
5 We reject Doe's assertion that his case is analogous to Doe, Sex Offender Registry Bd. No. 523671 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 1107 (2021), an unpublished decision in which a panel of this court held that the board had failed to prove that the petitioner presented a low risk of reoffense and dangerousness where the only evidence upon which the examiner based her findings of risk was Doe's guilty plea to sex offenses he committed over two decades earlier. Here, in addition to the circumstances of Doe's index offense, the hearing examiner's decision was based on evidence that Doe perpetuated acts of violence against women on multiple occasions years after he committed his index offense.
7 should be respected, and given substantial deference")
(quotation and citation omitted).
Judgment affirmed.
By the Court (Rubin, Massing & Desmond, JJ. 6),
Assistant Clerk
Entered: June 10, 2024.
6 The panelists are listed in order of seniority.