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-92
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 375532
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On November 22, 2021, a Middlesex County Superior Court
judge entered a judgment affirming the final decision of the Sex
Offender Registry Board ("SORB") to classify the plaintiff as a
level three sex offender. The plaintiff now appeals, arguing
that his classification is improper because the SORB hearing
examiner breached the appearance of impartiality, misapplied
statutory risk factors, ignored relevant expert testimony, and
rendered a classification decision unsupported by clear and
convincing evidence.
Although most of his contentions are without merit, we
conclude that, because the hearing examiner did not explain or
even make explicit her apparent conclusion that the defendant,
convicted only of a noncontact offense, was likely to reoffend
by committing a contact offense against a prepubescent child, her conclusion that he poses a high degree of dangerousness was
not supported by clear and convincing evidence. We therefore
vacate the judgment and remand for further proceedings.
Background. 1. The plaintiff's history of sexually
inappropriate behavior. The plaintiff committed his index
offenses, four counts of possession of child pornography, in
2011, when he was nineteen years old. The hearing examiner
found that, in addition to those noncontact offenses, the had
plaintiff raped a fourteen year old girl in 2005, when he was
thirteen years old, and that he last committed a contact offense
in 2007, when he touched the buttock of a high school classmate,
at age fifteen.
a. 2005 incident. On January 2, 2008, a sixteen year old
girl reported to the Needham police department that in 2005,
when she was fourteen years old, the plaintiff, who was then
thirteen years old, assaulted her on three separate occasions.
The first instance occurred in October 2005. While the two were
sitting together in a small room near the plaintiff's
grandmother's kitchen, the plaintiff began rubbing the girl's
upper inner left thigh. The girl told him to stop, and he did,
but he then asked her to watch "porn" with him on his computer.
The girl refused, and she promptly left. After some time,
through an instant messaging service, the plaintiff apologized
and told the girl that it would never happen again. The girl
2 later returned to the grandmother's home to watch television
with the plaintiff who, despite her resistance, pulled her pants
down and penetrated her vagina with his fingers and a stuffed
animal. After this, the plaintiff again apologized, and the
girl believed that he was sorry. She later brought the
plaintiff into her home, believing it to be safe. However, when
the two were alone in the basement, the plaintiff pushed the
girl down onto a couch and again digitally penetrated her
vagina.
The plaintiff was arraigned on February 14, 2008, in Dedham
Juvenile Court, on one count of juvenile delinquency, to wit
rape of a child. He was placed on pretrial probation for one
year, ordered to stay away from the girl, and ordered to undergo
a sex offender evaluation and recommended treatment. After the
completion of the treatment program, his probation was
terminated, and the charge was dismissed.
The hearing examiner concluded that, despite the dismissal,
the girl's rape allegations were detailed, credible, reliable,
and supported by the plaintiff's documented apologies, in which
he admitted that he touched the girl without her consent.
b. 2006 incident. The plaintiff disclosed to his
psychologist that in September 2006, when he was in ninth grade
and aged fourteen, he had emailed his eighth-grade teacher to
ask if her chest "had gotten bigger." He believed that he had a
3 good student-teacher relationship with her that had the
potential to "be more." The hearing examiner concluded, based
on the plaintiff's admissions, that the plaintiff had engaged in
this sexually inappropriate behavior.
c. 2007 incidents. The plaintiff admitted to his
psychologist that on February 17, 2007, when he was aged
fifteen, he had touched the buttocks of a fifteen year old
female classmate during photography class at their high school.
He thought that she might "approv[e]" of his actions. The girl
quickly became upset, told him that it was "really degrading,"
and went to the vice-principal's office in tears.
On May 24, 2007, the plaintiff was arraigned in Dedham
Juvenile Court on one count of juvenile delinquency, to wit
indecent assault and battery on a person aged fourteen or older,
but that charge was dismissed three months later.
The hearing examiner found the allegations to be credible,
a conclusion the examiner found to be further supported by the
plaintiff's own admissions.
The examiner noted that while the indecent assault and
battery charge was pending, the plaintiff allegedly engaged in
additional sexually inappropriate behavior. He admitted to his
psychologist that in August 2007, when he was aged fifteen, he
had exposed himself to his stepfather's secretary in the belief
that she would "respond in a positive way."
4 2. Index offenses. The plaintiff's governing offenses
occurred four years later, when he was nineteen years old. On
January 16, 2011, a "Geek Squad" employee at Best Buy, who
worked as a technician repairing computers, contacted Needham
police and reported that a laptop that had been dropped off for
servicing at the Best Buy in Framingham, Massachusetts,
contained suspicious files depicting inappropriate behavior by
young children.
The police subsequently determined that the laptop belonged
to the plaintiff and contained twelve videos and approximately
sixty-two still images of children engaged in sexual activity.
The plaintiff was charged with four counts of possession of
child pornography, and on June 7, 2012, he pleaded guilty to all
counts. He was sentenced to twenty-five months in a house of
correction, with twenty months to serve and the balance
suspended for five years, and concurrent five-year terms of
probation. The plaintiff violated the terms of his probation
one year later and was incarcerated from May 2013 until December
2014.
3. Proceedings below. On or about August 30, 2012, the
plaintiff was classified as a level three sex offender. He
challenged the classification and requested an administrative
review. A classification hearing was held on September 28,
5 2016, and on March 7, 2017, a final decision was issued
classifying the plaintiff as a level three sex offender.
The plaintiff appealed the decision, and on March 5, 2018,
a Superior Court judge remanded the case to SORB on the basis
that the hearing examiner wrongly denied the plaintiff's request
for expert funds and failed to account for the plaintiff's age
with respect to the two sexual assaults committed by the
plaintiff when he was fourteen and fifteen years old.
Another classification hearing took place on October 30,
2018. On March 21, 2019, the plaintiff was again classified as
a level three sex offender. The plaintiff appealed. While the
appeal was pending, the Supreme Judicial Court (SJC) decided
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643 (2019) (Doe No. 496501), and the
plaintiff's case was remanded for explicit findings consistent
with that decision.
On November 19, 2020, the hearing examiner issued a final
decision classifying the plaintiff as a level three sex
offender. The plaintiff appealed, a Superior Court judge
affirmed, and that appeal is now before this panel.
Discussion. 1. SORB's decision. a. Standard of review.
"A reviewing court may set aside or modify SORB's classification
decision where it determines that the decision is in excess of
SORB's statutory authority or jurisdiction, violates
6 constitutional provisions, is based on an error of law, or is
not supported by substantial evidence." See Doe No. 496501, 482
Mass. at 649, citing G. L. c. 30A, § 14 (7).
b. Clear and convincing evidence. To impose a level three
classification, a hearing examiner must make explicit findings
that there is "a high risk of reoffense, a high degree of
dangerousness, and a public safety interest is served by active
dissemination of the offender's registry information." Doe, Sex
Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490
Mass. 759, 768 (2022) (Doe No. 6729), citing Doe No. 496501, 482
Mass. at 656-657.
To determine an individual's degree of dangerousness, the
hearing examiner must "consider what type of sexual crime the
offender would likely commit if he or she were to reoffend."
Doe No. 496501, 482 Mass. at 651. This determination is made
"based on the sexual crime or crimes that the offender committed
in the past." Id. While a hearing examiner "may consider an
offender's older sexual offenses where they are relevant to a
holistic assessment of the offender's current degree of
dangerousness," where an individual has "a history of different
sexual offenses, the primary focus would likely be on the crime
or crimes recently committed by the offender." Id.
Here, the hearing examiner made no explicit finding about
what type of sexual crime the plaintiff would likely commit if
7 he were to reoffend. As the plaintiff observes, the hearing
examiner's discussion of dangerousness did not even mention the
plaintiff's noncontact child pornography convictions -- his most
recent crimes and index offenses -- a single time. The SJC has
explained that "an individual is generally unlikely to pose
[even] a moderate degree of dangerousness -- and thus . . .
qualify as a level two sex offender -- where his or her risk of
reoffense relates only to noncontact offenses that do not put a
victim in fear of bodily harm by reason of a contact sex
offense." Doe No. 496501, 482 Mass. at 659-660.
The hearing examiner may have believed the plaintiff poses
a risk of reoffending by committing a contact offense with a
prepubescent or other child and thus presents a high degree of
dangerousness.1 See Doe No. 496501, 482 Mass. at 659 ("contact
offenders are generally more dangerous than noncontact
offenders"). But the hearing examiner's decision does not lay
out clear and convincing evidence that that is the case. The
plaintiff has never committed a contact offense with a
prepubescent child. And his only contact offenses were when he
himself was a child and they were with children his own age or
older. The hearing examiner has not explained whether and why
1 The plaintiff's older sister wrote in a letter, submitted as evidence to the hearing examiner, that she had allowed the plaintiff to babysit her four month old son.
8 these contact offenses are predictive of further contact
offenses with children now that the plaintiff is an adult. His
noncontact offenses, possession of child pornography, some of
which involved young children, inherently involves what the
plaintiff admitted to, finding these images "sexually
appealing." And it may be that his possession of child
pornography combined with his juvenile contact offenses is
predictive of future contact offenses with children. But,
again, the hearing examiner has not explained whether or why his
offenses are predictive of such behavior.
We express no opinion on these questions, or on the
question of what offenses someone with the complex sexual
offense history of the plaintiff would likely commit if he were
to reoffend. We have none of the expertise on the matter that
the hearing examiner and the experts at SORB have. But a high
risk of dangerousness must be found by clear and convincing
evidence before an individual can be classified as a level three
sex offender, and because clear and convincing evidence is not
demonstrated on the face of the hearing examiner's decision, we
must vacate it and remand the case for further proceedings,
including a new hearing should the hearing examiner conclude
that is necessary, in order for her to make a proper
determination of the plaintiff's classification.
9 2. Other matters. Although our disposition obviates the
need for discussion of some of the plaintiff's claims, some may
be relevant on remand and so we address them.
a. Recusal. The plaintiff argues that the hearing
examiner should have recused herself due to an appearance of
partiality. The plaintiff's argument stems from the hearing
examiner's conduct at the classification hearing on October 30,
2018. There, counsel for SORB arrived late and empty-handed.
He asked the hearing examiner to provide him with her copy of
SORB's evidence, a collection of documents provided to all
parties prior to the hearing. The hearing examiner did so.
Counsel for SORB proceeded to spread the documents out, directly
in front of counsel for the plaintiff, who was sitting across
from him in "very close proximity." The plaintiff's counsel did
not ask any questions about the documents or object to the
examiner's actions during the hearing, but filed a motion to
recuse, one week later, on November 6, 2018.
The examiner declined to recuse herself. In a written
decision, she said that SORB counsel came to the hearing and
asked that she provide him with her copy of the materials that
had been provided to all parties prior to the hearing. She said
she handed her copy of "SORB Exhibits 1-5" to SORB counsel.
This was done, she said, "directly in front of Counsel for the
[plaintiff]" and "[i]t was clear what the documents were and
10 Counsel for the [plaintiff] was provided copies prior to the
hearing." There were no questions or objections from the
plaintiff's counsel when SORB counsel requested the documents or
when the exhibits were entered into evidence. The examiner also
stated that she had never discussed the case with SORB counsel
and that there was no prior arrangement made for the exchange of
documents.
The plaintiff argues before us that recusal was required
because the examiner's actions created an appearance of
partiality. He notes that the hearing examiner stated that she
handed over only "SORB exhibits 1-5" but that SORB's counsel
later stated on the record that he was reading from the 2018
Superior Court remand decision -- a document not contained
within "SORB exhibits 1-5."
"The strict ethical constraints to which judges are subject
not only require a judge to examine his or her own conscience
for disqualifying bias, and to act accordingly, but also
obligate the judge to recuse himself or herself from any matter
in which 'the judge's impartiality might reasonably be
questioned.'" Adoption of Iliana, 96 Mass. App. Ct. 397, 407
(2019), quoting S.J.C. Rule 3:09, Code of Judicial Conduct,
Canon 2, Rule 2.11 (A) (1) (2016). This standard also applies
to hearing examiners. See Doe, Sex Offender Registry Bd. No.
29481 v. Sex Offender Registry Bd., 84 Mass. App. Ct. 537, 541
11 (2013) (Doe No. 29481). "[H]earing officers, like judges, are
held to 'high standards [which] are reflective of the
constitutional rights of litigants to a fair hearing.'" Id.,
quoting Police Comm'r of Boston v. Municipal Court of W. Roxbury
Dist., 368 Mass. 501, 507 (1975). Individuals like the
plaintiff, that are subject to an "adjudicative determination
that [they] must register as a sex offender," are "entitled to
an administrative proceeding where there is no significant doubt
whether the impartiality of the hearing examiner has been
compromised." Doe No. 29481, supra at 542. As in the case of
the recusal of judges, "actual impartiality alone is not
enough." Id. at 541, quoting Commonwealth v. Morgan RV Resorts,
LLC, 84 Mass. App. Ct. 1, 9 (2013). "In order to preserve and
protect the integrity of the judiciary and the judicial process,
and the necessary public confidence in both, even the appearance
of partiality must be avoided." Doe No. 29481, supra at 541-
541, quoting Morgan RV Resorts, LLC, supra.
We review the hearing examiner's decision not to recuse for
abuse of discretion. See Commonwealth v. Rivera, 473 Mass.
1003, 1005 (2015). We conclude that the examiner did not abuse
her discretion. As to the first prong of the recusal inquiry,
we are not in a position to question the examiner's finding
that, after examining her own conscience, she could be fair and
impartial.
12 The second prong, involving the appearance of partiality,
is more difficult. Obviously, SORB counsel should have been
prepared for the hearing and should have brought with him
whatever documents he intended to rely upon or otherwise needed
in order to participate fully in the hearing. The hearing
examiner also should not have provided documents to one party --
just as a judge should not -- at least without explaining on the
record what the documents were, explaining why she believed her
provision of them to that party did not prejudice the other
side, and ensuring that there was no objection to this
procedure.
In this case, however, the documents handed to SORB counsel
were "clearly visible to Counsel for the [plaintiff]." In
determining whether the examiner's impartiality might
"reasonably be questioned," it is particularly relevant that, at
the time of the hearing, the plaintiff's counsel did not
question the exchange of documents. The examiner's conclusion
is reasonable that it was "clear what the documents were." The
plaintiff's counsel had a clear view of the documents and, prior
to hearing, was provided with copies of the same documents.
The plaintiff correctly notes that the 2018 Superior Court
decision, from which SORB counsel directly read, is not
contained within "SORB exhibits 1-5." Rather, it was recorded
in the record as "Exhibit J," under the subheading "Documentary
13 Evidence." Although there is no suggestion that the plaintiff's
counsel did not have a copy of that exhibit, the plaintiff
suggests that one possible interpretation of the examiner's
mistaken recollection is that the examiner was covering up her
improper conduct. The plaintiff argues that seeing the examiner
hand the opposing attorney a stack of documents, from the point
of view of an individual in the plaintiff's position, would have
created "suspicio[n]" that something improper was afoot.
But the plaintiff's theory, again, runs headfirst into his
failure to object. The plaintiff's quiescence at the time,
coupled with his failure to identify what one might reasonably
suspect the examiner provided the SORB attorney, undermines the
picture of partiality he paints now. And, significantly,
nothing he says is inconsistent with the examiner's statements
that the documents were "clearly visible," that it was "clear
what the documents were," and that the documents consisted of
"material provided to all parties prior to the hearing." We
conclude, therefore, that the plaintiff has not met his burden
to show that the examiner's decision not to recuse was an abuse
of discretion.
b. Misapplication of statutory risk factors. The
plaintiff also argues that the hearing examiner misapplied
statutory risk factors.
14 The first alleged misapplication involves high-risk factor
two, "Repetitive and Compulsive Behavior". See 803 Code Mass.
Regs. § 1.33 (2) (2016). The examiner concluded that "[b]ased
on [plaintiff's] sexual behavior with detections, sanctions, and
charges prior to his new offenses, this high risk factor applies
with the most weight." The plaintiff argues that application of
factor two was improper because the examiner failed to
specifically find that plaintiff's behavior was "compulsive."
However, a finding that an individually sexually reoffended
following an individual's involvement with the criminal justice
system due to prior sexual offenses, is "sufficient to satisfy
the separate requirement of proving that his conduct was
compulsive as well as repetitive." Doe No. 6729, 490 Mass. at
765. This is because "while there is no predictive value for
the risk of reoffending based solely on the commission of
multiple sex offenses, there is such value '[i]f a person
offends, gets caught[,] and then goes on to reoffend again,'
particularly when 'the criminal justice system . . . doesn't
inhibit them.'" Id. at 766. That predictive value is
implicated here, where the hearing examiner found that the
plaintiff reoffended following previous "detections, sanctions,
and charges." This finding was sufficient to satisfy the
separate requirement of proving that the plaintiff's conduct was
compulsive and supported the application of factor two.
15 The plaintiff next argues that the hearing examiner erred
because she failed explicitly to ascribe particular weights to
nine separate risk factors. The plaintiff insists that the
examiner had a "duty" to assign weights. But this argument was
recently rejected by the SJC in Doe No. 6729, 490 Mass. at 767
(no error where "the hearing examiner applied certain risk
factors without denoting whether she ascribed a threshold,
moderate, or high degree of weight to each factor").
c. Failure to consider expert witness testimony. The
plaintiff also argues that the hearing examiner failed properly
to consider the testimony of an expert witness who testified on
his behalf. Specifically, the plaintiff called Dr. Laurie
Guidry, a psychologist, who evaluated the plaintiff and
concluded that he presented with only an "average" risk to
recidivate with a sexual offense. As the plaintiff
acknowledges, he "is not entitled to a guarantee that SORB will
reach the same conclusion as his expert; he is entitled only to
careful consideration of his expert's testimony." Doe, Sex
Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd.,
483 Mass. 131, 137 (2019). Where the hearing examiner departs
from conclusions drawn by an expert witness, she must explain on
the record her reasons for rejecting the expert's testimony.
See id. at 136. The hearing examiner in this case did so. In
her five-page discussion of Dr. Guidry's testimony, the examiner
16 explained that she disagreed with the expert's risk opinion
because the expert had based much of her report on what the
plaintiff had told her, "yet [the plaintiff] has been an
incredibly inconsistent reporter during more than the past
decade including statements about his offending and substance
abuse." The examiner listed a number of inconsistencies in the
plaintiff's reporting, including how the plaintiff initially
reported that he was not under the influence of any drugs during
his use of child pornography, but later told Dr. Guidry in 2018
that he was under the influence "most of the time." The
examiner highlighted the plaintiff's claim, at age fifteen, that
he had "not yet used 'street drugs,' and tried alcohol and was
drunk 'once,'" which was followed by an admission at age twenty
that he "first smoked marijuana at age [thirteen], and first
drank alcohol at age [fourteen], with his use then escalating."
The plaintiff's inconsistent reporting as described by the
hearing examiner formed a sufficient foundation for the
examiner's departure from the expert's conclusions. There was
thus no error.
d. The plaintiff's age. Finally, the plaintiff argues
that the examiner erred by failing to consider his age at the
time of his juvenile offenses. See Doe, Sex Offender Registry
Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 113
(2014) (Doe No. 68549) ("it would not have been proper . . . to
17 disregard the fact that Doe was a youth when he offended"). In
Doe No. 68549, the SJC concluded that the examiner had taken
"into consideration Doe's young age at the time of his
offenses," where the examiner applied risk factors "in the
manner that the guidelines deem[ed] appropriate for juvenile
offenders" and made references "to the fact that Doe was an
'adolescent' and a 'juvenile' at the time of his offenses." Id.
at 113-114. Here, although it appears the examiner considered
the plaintiff's age in the manner required by Doe No. 68549,
there is some ambiguity in her language. This can best be
addressed by the hearing examiner considering his age in that
manner in her decision after remand.
3. Conclusion. We vacate the judgment affirming SORB's
offender. A new judgment shall enter vacating SORB's decision
18 and remanding this matter to SORB for further proceedings
consistent with this memorandum and order.
So ordered.
By the Court (Green, C.J., Rubin & Massing, JJ.2),
Clerk
Entered: July 14, 2023.
2 The panelists are listed in order of seniority.