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-784
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 34664
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 classification as a level two sex
offender. He claims two errors: (1) the hearing examiner
improperly denied funds for an expert, and (2) the Sex Offender
Registry Board (board) failed to prove that he currently poses a
moderate risk to reoffend. We affirm.
Discussion. 1. Denial of motion for funds. When moving
for expert witness funds, the sex offender bears the burden of
identifying and articulating "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). "A general motion for funds to retain
an expert to provide an opinion on the sex offender's risk of reoffense, without more, would appear to be insufficient." Id.
"[T]he decision whether to grant an individual sex offender
funds for an expert is a discretionary one, to be based on the
facts presented in an individual case." Id. "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 discern no such abuse of discretion here. Although, in
his motion, the plaintiff claimed that "[m]edical records"
indicate that he suffers from "PTSD, major depression, anxiety,
and agoraphobia," the plaintiff never produced medical records
or any other proof indicating a diagnosis of these conditions.
In an affidavit, the plaintiff's anticipated expert psychologist
noted the plaintiff's "history of [] PTSD, major depression,
anxiety, and agoraphobia and other current health issues" and
indicated a need to interview the plaintiff, administer tests,
and review "medical/psychological history"; however, the expert
did not offer a diagnosis. Nor did the medical record the
plaintiff submitted relating to back pain or the letter from a
social worker referencing therapy amount to a mental health
diagnosis. While the plaintiff's own affidavit alleged that he
had been receiving social security income since 2015 for the
above-listed maladies and has attended therapy since 2013, the
2 hearing examiner was permitted to make his own assessments of
the weight of that evidence. See Doe, Sex Offender Registry
Bd., No 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138-
139 (2019) (Doe No. 23656) (in context of hearing examiner's
classification determination). In sum, the materials submitted
by the plaintiff did not require the hearing examiner to
conclude "that he had in fact been diagnosed" with a mental
health condition. Doe, Sex Offender Registry Bd. No. 339940 v.
Sex Offender Registry Bd., 488 Mass. 15, 29 (2021). See Doe,
Sex Offender Registry Bd. No. 29481 v. Sex Offender Registry
Bd., 84 Mass. App. Ct. 537, 543 n.5 (2013) (motion for funds
properly denied where plaintiff "alleged 'hallucinations'").
Contrast Doe No. 58574, supra at 311 (motion for funds
improperly denied where evidence included diagnosis of chronic
hepatitis C and physician report detailing symptoms and
treatment). Absent such evidence (or, at least, evidence
credited by the hearing examiner) the plaintiff's argument that
an "expert is necessary in this case to interpret the medical
records and perform testing" 1 fell flat. The hearing examiner
did not abuse his discretion in concluding that the request
amounted to a "general motion for funds" that did not meet the
1 The plaintiff argued that scientific studies have found depression "is negatively, if at all, related" to "violent recidivism" among individuals under psychiatric care.
3 standard under Doe No. 89230, supra at 775, or 803 Code Mass.
Regs. § 1.16 (2016).
2. Substantial evidence. The plaintiff next claims that
the evidence failed to show that he posed a moderate risk to
reoffend. The board "is constitutionally required to prove the
appropriateness of an offender's risk classification by clear
and convincing evidence." Doe, Sex Offender Registry Bd. No.
380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015)
(Doe No. 380316). "To determine the validity of an agency's
decision, the reviewing court must determine whether the
decision is supported by substantial evidence." Doe, Sex
Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd.,
88 Mass. App. Ct. 73, 76 (2015), quoting Doe, Sex Offender
Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass.
779, 787 (2006). In reviewing the board's decision, a court will
"give due weight to [its] experience, technical competence, and
specialized knowledge." Doe, Sex Offender Registry Bd. No.
496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019),
quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex
Offender Registry Bd., 466 Mass. 594, 602 (2013). "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). Based upon these standards, we
discern no error.
4 The hearing examiner thoroughly considered the relevant
aggravating factors relative to the risk to reoffend: the
plaintiff attacked strangers (factor 7 -- relationship between
the offender and the victim); he used knives in the attacks
(factor 8 -- use of weapons, violence, or infliction of bodily
injury); and he attacked two women (factor 22 -- number of
victims). These conclusions were amply supported by the
evidence shown by his record of convictions and two police
reports that detailed two events occurring just six weeks apart.
In each instance, the plaintiff lured vulnerable women to his
apartment under the pretext of helping them. As to the first
victim, he produced an eight-inch knife, prevented her from
leaving, and raped her numerous times throughout the night. As
to the second victim, he brandished a butcher knife, put it to
her face, and threatened her during a sexual assault. This
substantial evidence spoke directly to the risk to reoffend as
identified in governing regulations, 803 Code Mass. Regs.
§§ 1.33(7)(a)(3), 1.33(8)(a), and 1.33(22)(a) (2016), and
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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-784
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 34664
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 classification as a level two sex
offender. He claims two errors: (1) the hearing examiner
improperly denied funds for an expert, and (2) the Sex Offender
Registry Board (board) failed to prove that he currently poses a
moderate risk to reoffend. We affirm.
Discussion. 1. Denial of motion for funds. When moving
for expert witness funds, the sex offender bears the burden of
identifying and articulating "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). "A general motion for funds to retain
an expert to provide an opinion on the sex offender's risk of reoffense, without more, would appear to be insufficient." Id.
"[T]he decision whether to grant an individual sex offender
funds for an expert is a discretionary one, to be based on the
facts presented in an individual case." Id. "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 discern no such abuse of discretion here. Although, in
his motion, the plaintiff claimed that "[m]edical records"
indicate that he suffers from "PTSD, major depression, anxiety,
and agoraphobia," the plaintiff never produced medical records
or any other proof indicating a diagnosis of these conditions.
In an affidavit, the plaintiff's anticipated expert psychologist
noted the plaintiff's "history of [] PTSD, major depression,
anxiety, and agoraphobia and other current health issues" and
indicated a need to interview the plaintiff, administer tests,
and review "medical/psychological history"; however, the expert
did not offer a diagnosis. Nor did the medical record the
plaintiff submitted relating to back pain or the letter from a
social worker referencing therapy amount to a mental health
diagnosis. While the plaintiff's own affidavit alleged that he
had been receiving social security income since 2015 for the
above-listed maladies and has attended therapy since 2013, the
2 hearing examiner was permitted to make his own assessments of
the weight of that evidence. See Doe, Sex Offender Registry
Bd., No 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138-
139 (2019) (Doe No. 23656) (in context of hearing examiner's
classification determination). In sum, the materials submitted
by the plaintiff did not require the hearing examiner to
conclude "that he had in fact been diagnosed" with a mental
health condition. Doe, Sex Offender Registry Bd. No. 339940 v.
Sex Offender Registry Bd., 488 Mass. 15, 29 (2021). See Doe,
Sex Offender Registry Bd. No. 29481 v. Sex Offender Registry
Bd., 84 Mass. App. Ct. 537, 543 n.5 (2013) (motion for funds
properly denied where plaintiff "alleged 'hallucinations'").
Contrast Doe No. 58574, supra at 311 (motion for funds
improperly denied where evidence included diagnosis of chronic
hepatitis C and physician report detailing symptoms and
treatment). Absent such evidence (or, at least, evidence
credited by the hearing examiner) the plaintiff's argument that
an "expert is necessary in this case to interpret the medical
records and perform testing" 1 fell flat. The hearing examiner
did not abuse his discretion in concluding that the request
amounted to a "general motion for funds" that did not meet the
1 The plaintiff argued that scientific studies have found depression "is negatively, if at all, related" to "violent recidivism" among individuals under psychiatric care.
3 standard under Doe No. 89230, supra at 775, or 803 Code Mass.
Regs. § 1.16 (2016).
2. Substantial evidence. The plaintiff next claims that
the evidence failed to show that he posed a moderate risk to
reoffend. The board "is constitutionally required to prove the
appropriateness of an offender's risk classification by clear
and convincing evidence." Doe, Sex Offender Registry Bd. No.
380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015)
(Doe No. 380316). "To determine the validity of an agency's
decision, the reviewing court must determine whether the
decision is supported by substantial evidence." Doe, Sex
Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd.,
88 Mass. App. Ct. 73, 76 (2015), quoting Doe, Sex Offender
Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass.
779, 787 (2006). In reviewing the board's decision, a court will
"give due weight to [its] experience, technical competence, and
specialized knowledge." Doe, Sex Offender Registry Bd. No.
496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019),
quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex
Offender Registry Bd., 466 Mass. 594, 602 (2013). "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). Based upon these standards, we
discern no error.
4 The hearing examiner thoroughly considered the relevant
aggravating factors relative to the risk to reoffend: the
plaintiff attacked strangers (factor 7 -- relationship between
the offender and the victim); he used knives in the attacks
(factor 8 -- use of weapons, violence, or infliction of bodily
injury); and he attacked two women (factor 22 -- number of
victims). These conclusions were amply supported by the
evidence shown by his record of convictions and two police
reports that detailed two events occurring just six weeks apart.
In each instance, the plaintiff lured vulnerable women to his
apartment under the pretext of helping them. As to the first
victim, he produced an eight-inch knife, prevented her from
leaving, and raped her numerous times throughout the night. As
to the second victim, he brandished a butcher knife, put it to
her face, and threatened her during a sexual assault. This
substantial evidence spoke directly to the risk to reoffend as
identified in governing regulations, 803 Code Mass. Regs.
§§ 1.33(7)(a)(3), 1.33(8)(a), and 1.33(22)(a) (2016), and
provided "clear and convincing" proof of the level two
classification. Doe No. 380316, supra at 298.
For the first time, the plaintiff claims the examiner erred
by assigning moderate weight to risk-elevating factor 10,
requiring the examiner to consider the plaintiff's prior contact
with the criminal justice system. He argues that assigning
5 weight to older, "minor" offenses (distinct from the sex
offenses) "seems like a stretch." This claim was not raised
below and "is waived." Doe, Sex Offender Registry Bd. No.
203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320-
321 (2015). Even if considered, the claim fails. His record
shows three arraignment dates from 1990 to 1993. Two
arraignments involved possession of cocaine (nol prossed) and
the remainder involved operating after license suspension,
operating after revoked registration, compulsory insurance
violation, and attaching registration plates (ultimately
dismissed following a continuance without a finding). "[F]actor
10 is not limited to . . . a particular time frame; . . . [and]
does not confine the examiner to consider only convictions."
Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender
Registry Bd., 98 Mass. App. Ct. 219, 226 (2020). The examiner
considered the vintage of the contact and balanced it against
the mitigating factor that the plaintiff most recently lived
offense-free for eight years in the community (factor 29). We
Contrary to the plaintiff's other contention, the hearing
examiner did not employ a perfunctory "checklist" approach.
Instead, the examiner appropriately evaluated the qualitative
weight of the above factors, rejected the aggravating factor of
substance use, and considered several factors in mitigation. In
6 particular, the examiner found the following current factors in
mitigation: the plaintiff lived for eight offense-free years in
the community (factor 29 -- offense free time in the community);
the plaintiff was fifty-six years old (factor 30 -- advanced
age); the plaintiff suffered physical limitations (factor 31 --
physical condition); the plaintiff participated in, but did not
complete, treatment (factor 32 -- sex offender treatment); the
plaintiff lived in a positive and supportive home environment
(factor 33 -- home situation and support systems); and the
plaintiff remained financially stable with housing (factor 34 --
stability in the community). Giving "due weight to the
experience, technical competence, and specialized knowledge of
the [hearing examiner]," G. L. c. 30A, § 14 (7), we conclude
that the classification decision here was "based on a sound
exercise of informed discretion rather than the mechanical
application of a checklist or some other reflex" (quotation and
7 citation omitted). Doe, Sex Offender Registry Bd. No. 11204 v.
Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 574 (2020).
Judgment affirmed.
By the Court (Green, C.J., Hand & Hodgens, JJ. 2),
Assistant Clerk
Entered: March 13, 2024.
2 The panelists are listed in order of seniority.