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-1228
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 366266
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his classification by the Sex Offender
Registry Board (board) as a level three sex offender and the
board's denial of his motion for expert funds. We affirm.
Background. Relying on a police report and a Sexual
Assault Intervention Network (SAIN) interview, the hearing
examiner found the following facts. In January 2011, Doe drove
his daughter and his girlfriend's seven year old daughter
("victim 1") to a restaurant. Victim 1 later told her mother
that while in the car she fell asleep and awoke to pain in her
vaginal area and noticed that her pants were undone. Doe then
took the girls to his home, where he touched victim 1 under her clothes, spread her legs, showed her his penis, and showed her a
video of her mother fellating him. During another car ride, Doe
penetrated victim 1's vagina using his fingers while victim 1
attempted to push Doe's hand away and told him that he was
hurting her. In May 2012, Doe was convicted of one count of
dissemination to a minor of matter harmful to minors. See G. L.
c. 272, § 28. Doe was acquitted on counts of rape of a child
aggravated by age difference, rape of a child with force, open
and gross lewdness, and reckless endangerment of a child.
Relying on another police report, the examiner found the
following facts. In May 2015, a police officer stopped a
vehicle driven by Doe. A second man sat in the front passenger
seat, and an adult woman (victim 2) sat in the back seat.
During the stop, victim 2 silently mouthed to the officer, "I
need help." When the officer separated victim 2 from Doe and
his other passenger, victim 2 cried and again asked the officer
for help. Victim 2 told the officer that she was an addict and
that, for three days, Doe had force-fed her drugs and forced her
to have sex with men for money. Doe drove victim 2 to multiple
hotels and forced her to perform sexual acts on multiple
individuals. Victim 2 never received money. Instead, Doe
"compensated" her with heroin. Victim 2 feared for her life
because Doe had taken her driver's license and cell phone and
2 told her that if she tried to run away, he would kill her and
her entire family. In June 2016, Doe was convicted of one count
of deriving support from prostitution in violation of G. L.
c. 272, § 7, and one count of trafficking of a person for sexual
servitude, in violation of G. L. c. 265, § 50 (a). Doe received
a five-to-eight-year prison sentence on the latter conviction,
and a concurrent four-to-five-year sentence on the former
conviction.
In December 2019, the board's hearing examiner conducted a
de novo hearing. In January 2020, the examiner found that Doe
presented a high risk to recidivate and a high degree of
dangerousness and ordered him to register as a level three sex
offender. Doe filed a motion to vacate the decision in order to
address his motion for expert funds. Doe's motion was allowed,
and the board issued an amended decision denying his motion for
expert funds and again classifying him as a level three sex
offender. Doe sought judicial review pursuant to G. L. c. 6,
§ 178M, and G. L. c. 30A, § 14, and a judge of the Superior
Court affirmed the board's decision.
Discussion. When reviewing the board's decision, we will
not alter the decision unless it was
"(a) in violation of constitutional provisions; (b) in excess of [the board's] authority; (c) based upon an error of law; (d) made upon unlawful procedure; (e) unsupported by substantial evidence; (f) unwarranted by facts found by
3 the court, where the court is constitutionally required to make independent findings of fact; or (g) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law."
Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 108-109 (2014) (Doe No. 68549),
citing G. L. c. 30A, § 14 (7). "The court must 'give due weight
to [the board's] experience, technical competence, and
specialized knowledge . . . as well as to the discretionary
authority conferred upon it.'" Doe No. 68549, supra at 109,
quoting G. L. c. 30A, § 14 (7).
1. Reliance on hearsay. Doe asserts that the hearing
examiner erred by relying on a police report and SAIN interview
notes to make findings about Doe's sexual abuse of victim 1.
"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). "The lack of criminal conviction does
not render information contained within a police report
inadmissible in an administrative proceeding." Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 90 (2019) (Doe No. 523391). "Hearsay
4 evidence bearing indicia of reliability constitutes admissible
and substantial evidence." Doe, Sex Offender Registry Bd. No.
10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011)
(Doe No. 10800). Indicia of reliability include a high degree
of detail, independent corroboration, general plausibility and
consistency, and a lack of motive to fabricate a story. See Doe
No. 523391, supra at 89-90.
Here, victim 1's statements in the police report were
highly specific, detailed, and repeated in two separate SAIN
interviews. Victim 1 recounted where the sexual abuse occurred,
where she and Doe were driving when it occurred, that Doe
stopped for liquor during the drive, and that Doe bought her a
Justin Bieber T-shirt and Tinkerbell boots. Victim 1's
statements were also corroborated, as her mother recalled
victim 1 receiving the shirt and boots at the time. Moreover,
Doe was convicted on the dissemination of matter harmful to
minors count. Doe contends that victim 1's accounts of the
sexual abuse were inconsistent because, in a subsequent SAIN
interview, she provided details of additional sexual abuse by
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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-1228
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 366266
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his classification by the Sex Offender
Registry Board (board) as a level three sex offender and the
board's denial of his motion for expert funds. We affirm.
Background. Relying on a police report and a Sexual
Assault Intervention Network (SAIN) interview, the hearing
examiner found the following facts. In January 2011, Doe drove
his daughter and his girlfriend's seven year old daughter
("victim 1") to a restaurant. Victim 1 later told her mother
that while in the car she fell asleep and awoke to pain in her
vaginal area and noticed that her pants were undone. Doe then
took the girls to his home, where he touched victim 1 under her clothes, spread her legs, showed her his penis, and showed her a
video of her mother fellating him. During another car ride, Doe
penetrated victim 1's vagina using his fingers while victim 1
attempted to push Doe's hand away and told him that he was
hurting her. In May 2012, Doe was convicted of one count of
dissemination to a minor of matter harmful to minors. See G. L.
c. 272, § 28. Doe was acquitted on counts of rape of a child
aggravated by age difference, rape of a child with force, open
and gross lewdness, and reckless endangerment of a child.
Relying on another police report, the examiner found the
following facts. In May 2015, a police officer stopped a
vehicle driven by Doe. A second man sat in the front passenger
seat, and an adult woman (victim 2) sat in the back seat.
During the stop, victim 2 silently mouthed to the officer, "I
need help." When the officer separated victim 2 from Doe and
his other passenger, victim 2 cried and again asked the officer
for help. Victim 2 told the officer that she was an addict and
that, for three days, Doe had force-fed her drugs and forced her
to have sex with men for money. Doe drove victim 2 to multiple
hotels and forced her to perform sexual acts on multiple
individuals. Victim 2 never received money. Instead, Doe
"compensated" her with heroin. Victim 2 feared for her life
because Doe had taken her driver's license and cell phone and
2 told her that if she tried to run away, he would kill her and
her entire family. In June 2016, Doe was convicted of one count
of deriving support from prostitution in violation of G. L.
c. 272, § 7, and one count of trafficking of a person for sexual
servitude, in violation of G. L. c. 265, § 50 (a). Doe received
a five-to-eight-year prison sentence on the latter conviction,
and a concurrent four-to-five-year sentence on the former
conviction.
In December 2019, the board's hearing examiner conducted a
de novo hearing. In January 2020, the examiner found that Doe
presented a high risk to recidivate and a high degree of
dangerousness and ordered him to register as a level three sex
offender. Doe filed a motion to vacate the decision in order to
address his motion for expert funds. Doe's motion was allowed,
and the board issued an amended decision denying his motion for
expert funds and again classifying him as a level three sex
offender. Doe sought judicial review pursuant to G. L. c. 6,
§ 178M, and G. L. c. 30A, § 14, and a judge of the Superior
Court affirmed the board's decision.
Discussion. When reviewing the board's decision, we will
not alter the decision unless it was
"(a) in violation of constitutional provisions; (b) in excess of [the board's] authority; (c) based upon an error of law; (d) made upon unlawful procedure; (e) unsupported by substantial evidence; (f) unwarranted by facts found by
3 the court, where the court is constitutionally required to make independent findings of fact; or (g) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law."
Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 108-109 (2014) (Doe No. 68549),
citing G. L. c. 30A, § 14 (7). "The court must 'give due weight
to [the board's] experience, technical competence, and
specialized knowledge . . . as well as to the discretionary
authority conferred upon it.'" Doe No. 68549, supra at 109,
quoting G. L. c. 30A, § 14 (7).
1. Reliance on hearsay. Doe asserts that the hearing
examiner erred by relying on a police report and SAIN interview
notes to make findings about Doe's sexual abuse of victim 1.
"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). "The lack of criminal conviction does
not render information contained within a police report
inadmissible in an administrative proceeding." Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 90 (2019) (Doe No. 523391). "Hearsay
4 evidence bearing indicia of reliability constitutes admissible
and substantial evidence." Doe, Sex Offender Registry Bd. No.
10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011)
(Doe No. 10800). Indicia of reliability include a high degree
of detail, independent corroboration, general plausibility and
consistency, and a lack of motive to fabricate a story. See Doe
No. 523391, supra at 89-90.
Here, victim 1's statements in the police report were
highly specific, detailed, and repeated in two separate SAIN
interviews. Victim 1 recounted where the sexual abuse occurred,
where she and Doe were driving when it occurred, that Doe
stopped for liquor during the drive, and that Doe bought her a
Justin Bieber T-shirt and Tinkerbell boots. Victim 1's
statements were also corroborated, as her mother recalled
victim 1 receiving the shirt and boots at the time. Moreover,
Doe was convicted on the dissemination of matter harmful to
minors count. Doe contends that victim 1's accounts of the
sexual abuse were inconsistent because, in a subsequent SAIN
interview, she provided details of additional sexual abuse by
Doe, after she initially claimed that there was no other abuse.
We disagree. The examiner was not required to accept Doe's
argument that victim 1 was not credible because she provided
further details of sexual abuse at a follow-up SAIN interview.
5 Moreover, victim 1 had no apparent motive to fabricate a story,
nor does Doe argue that she had one. Doe was the father of
victim 1's two year old half-sister, and, prior to the sexual
abuse, victim 1 had enjoyed spending time with Doe. Thus, we
conclude that the examiner did not abuse her discretion by
relying on the challenged hearsay evidence.1 See Doe No. 339940,
488 Mass. at 26-27.
2. Factor 2. Doe argues that the examiner erred by
applying the full aggravating weight for repetitive and
compulsive behavior (factor 2) because Doe's prostitution-
related convictions were "financially driven" and not "sexual in
nature." The examiner may only apply the "full aggravating
weight" of factor 2 if the sex offender reoffends after being
"'charged with or convicted of a sex offense.'" Doe, Sex
Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96
Mass. App. Ct. 738, 741 (2019), quoting 803 Code Mass. Regs.
§ 1.33(2) (2016).
In 2012, Doe was convicted, under G. L. c. 272, § 28, of
disseminating to a minor matter harmful to a minor, which is a
1 While the board is not required to submit trial transcripts in classification proceedings, we note that doing so would resolve doubts arising from the examiner's reliance on hearsay statements contained in police reports, particularly those hearsay statements related to offenses of which a petitioner was thereafter acquitted.
6 sex offense. See G. L. c. 6, § 178C (enumerating sex offenses).
In 2016, after serving two and one-half years in a house of
correction, Doe was convicted, under G. L. c. 265, § 50, of
trafficking a person for sexual servitude. "Pimping" is defined
as a sex offense under the Static-99R rules. See G. L. c. 6,
§ 178C. Thus, the examiner did not err by applying the full
aggravating weight of factor 2.
3. Classification determination. When reviewing a
classification decision by the board, we "must determine whether
the decision is supported by substantial evidence" (citation
omitted). Doe No. 10800, 459 Mass. at 632. "A hearing examiner
has discretion . . . to consider which statutory and regulatory
factors are applicable and how much weight to ascribe to each
factor." Doe No. 68549, 470 Mass. at 109-110. "'Substantial
evidence' is 'such evidence as a reasonable mind might accept as
adequate to support a conclusion.'" Id. at 109, quoting G. L.
c. 30A, § 1 (6). Classifying an offender as level three
requires the hearing examiner to establish 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' of the offender's registration information."
Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry
7 Bd., 490 Mass. 759, 768 (2022), quoting G. L. c. 6,
§ 178K (2) (c).
Doe contends that his history of criminal offenses did not
present a high risk that he would recidivate sexually because
his first conviction was for a noncontact offense and his most
recent convictions were for nonsexual offenses. As we have
already rejected the latter contention, see section 2 supra, we
evaluate Doe's argument that his history of sex offenses did not
present a high risk of sexual recidivism.
The examiner properly found that Doe engaged in repetitive
and compulsive behavior by offending against victim 1, an
extrafamilial, child victim and then, after being convicted of
that sex offense, committing a second sex offense against
victim 2, a stranger adult victim. Repetitive and compulsive
behavior and an adult offending against a child victim are high-
risk factors. See 803 Code Mass. Regs. § 1.33(2), (3) (2016).
Offending against extrafamilial victims is a risk-elevating
factor. See 803 Code Mass. Regs. § 1.33(7)(a)(2) (2016). Doe
also threatened to kill victim 2 and her family if she attempted
to run away from him. See 803 Code Mass. Regs. § 1.33(8)
(2016). Doe's risk of reoffense was also elevated by his
offense against victim 1, an extravulnerable seven year old,
whom he forced to watch pornography and whose vagina he
8 digitally penetrated. See 803 Code Mass. Regs. § 1.33(18),
(19)(2016). Further, Doe committed a diverse array of sex
offenses against a diverse group of victims. See 803 Code Mass.
Regs. § 1.33(20), (21) (2016). The hearing examiner also
properly considered elevating factors related to Doe's history
of violence, including nonsexual violent crimes and nonsexual
violent disciplinary reports during his incarceration. See 803
Code Mass. Regs. § 1.33(10), (11), (12) (2016).
The examiner exercised her discretion by weighing these
factors against risk-mitigating factors, including Doe's
engagement with sex offender treatment and Doe's mother's
support for his rehabilitation. See 803 Code Mass. Regs.
§ 1.33(32), (33) (2016). We conclude that the examiner did not
abuse her discretion by classifying Doe as level three. See
Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry
Bd., 457 Mass. 53, 62 (2010) ("there is nothing in the statute
or regulations that requires the board to treat mitigating
conditions of release as superseding other aggravating
factors").
4. Internet publication. "Internet publication depends
not only on the probability of reoffense and the danger posed by
that potential reoffense, but also on the efficacy of online
publication in protecting the public from being victimized by
9 the offender." Doe, Sex Offender Registry Bd. No. 496501 v. Sex
Offender Registry Bd., 482 Mass. 643, 654 (2019). "Internet
publication will almost invariably serve a public safety
interest by notifying potential victims of the risks presented
by the offender in their geographic area." Id. at 655. The
examiner is required "to ask whether, in light of the particular
risks posed by the particular offender, Internet access to that
offender's information might realistically serve to protect the
public against the risk of the offender's sexual reoffense."
Id.
Doe asserts that the examiner failed to make findings that
Internet publication of Doe's offender status would serve the
public interest. To the contrary, the examiner made findings
related to the particular risks posed by Doe and the public
safety interest that Internet publication would serve. The
examiner emphasized that Doe has demonstrated that he can offend
against both children and adults, creating a "vast pool" of
potential victims. Further, Doe's then-ongoing violent behavior
while in prison suggested that Doe would not make concerted
efforts to change his behavior. For these reasons, the examiner
did not abuse her discretion by concluding that Internet
dissemination of Doe's registry information was necessary in
10 order to protect future victims. See Doe No. 496501, 482 Mass.
at 655.
5. Denial of expert funds. "The hearing examiner . . .
has discretion to deny expert funds to indigent sex offenders
who offer expert opinion on factors that the board's regulations
already require the hearing examiner to consider." Doe, Sex
Offender Registry Bd. No. 234076 v. Sex Offender Registry Bd.
484 Mass. 666, 670 (2020). "When moving for expert funds,
indigent sex offenders must 'identify and articulate the reason
or reasons, connected to a condition or circumstance special to
[them], and, separately, 'general 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'"
(citation omitted). Id. The articulated purpose must "assist[]
the hearing examiner in analyzing the factors" that bear on
sexual recidivism. See Doe, Sex Offender Registry Bd. No. 15606
v. Sex Offender Registry Bd., 452 Mass. 784, 794 (2008) (Doe No.
15606).
Doe asserts that the examiner abused her discretion by
denying Doe's motion for expert funds for the purpose of
evaluating how the "financially driven" nature of his
prostitution-related offenses impacted Doe's risk to recidivate
sexually. As we have already concluded, see section 2 supra, an
11 offender commits a sexual offense when he traffics a person for
sexual servitude, "regardless of the motivation of [his]
conduct." Doe, Sex Offender Registry Bd. No. 205614 v. Sex
Offender Registry Bd., 466 Mass. 594, 612 (2013) (Cordy, J.,
concurring). Because Doe's motivation for committing the sexual
offense was irrelevant, an expert could not have assisted the
examiner in analyzing Doe's likelihood to reoffend. Thus, the
examiner did not abuse her discretion by concluding that Doe did
not articulate a reason, connected to a circumstance specific to
Doe, that the motion for expert funds would have assisted the
examiner in analyzing Doe's likelihood to reoffend sexually.
See Doe No. 15606, 452 Mass. at 794.
Judgment affirmed.
By the Court (Englander, Hershfang & Brennan, JJ.2),
Clerk
Entered: January 31, 2025.
2 The panelists are listed in order of seniority.