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-694
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 383730
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming the Sex Offender Registry Board's (SORB)
decision to classify him as a level two sex offender in
accordance with G. L. c. 6, § 178K (2) (b). On appeal, Doe
maintains that (1) the hearing examiner erroneously applied
SORB's statutory and regulatory factors; and (2) SORB failed to
prove, by clear and convincing evidence, that Internet
dissemination of Doe's personal information would serve a public
safety interest. We affirm.
Background. We summarize the facts as set forth by the
examiner in his decision, supplemented by materials included in
the administrative record, and reserve certain facts for later
discussion. The victim reported that Doe sexually assaulted her
numerous times from when she was six years old until she was fifteen. Doe is not the victim's biological father, but he was
married to the victim's mother, his name is on the victim's
birth certificate, he has known the victim since she was five
years old, and the victim called him "Dad." Doe was in his late
thirties when the assaults began.
Starting when the victim was six years old, Doe touched the
victim while she was sleeping (or while he expected she was
sleeping). Over the years, his touching escalated from touching
her breasts and vaginal area over her clothes, to touching her
under her clothes but not penetrating her vagina, to digitally
penetrating her vagina. The victim reported that this occurred
two to three times per week. For at least part of this period,
this occurred while the victim's younger brother slept in the
same room. When the victim was thirteen years old, Doe touched
the victim's vagina over her clothes while she had a friend
sleeping over in the same room, and the friend later told the
victim that she had a dream that Doe was sexually abusing the
victim. The victim's mother reported to the police, in an
affidavit, and to her pastor that Doe also frequently touched
her in her sleep and without her consent.
The victim became sleep deprived because she was afraid of
Doe assaulting her in her sleep and would try to stay awake.
She was prescribed sleep medication, and Doe would make sure
that she took the medication every night. The victim became
2 very anxious about people touching her, resulting in the
victim's entering a psychiatric unit when she was fifteen years
old.
Doe was found guilty of two counts of aggravated rape and
abuse of a child, pursuant to G. L. c. 265, § 23A. SORB
preliminarily classified Doe as a level two sex offender, and
after an administrative hearing on September 28, 2021, the
examiner issued a final decision classifying Doe as a level two
sex offender. Doe then filed a complaint for judicial review in
the Superior Court. After a hearing, the judge denied Doe's
motion for judgment on the pleadings and entered a judgment
affirming SORB's decision, from which Doe now appeals.
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 constitutional provisions, is based on an
error of law, or is not supported by substantial evidence."
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), citing
G. L. c. 30A, § 14 (7). "Substantial evidence is 'such evidence
as a reasonable mind might accept as adequate to support a
conclusion.'" Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 632 (2011) (Doe No.
10800), quoting G. L. c. 30A, § 1 (6). "We give due weight to
3 the experience, technical competence, and specialized knowledge
of the agency, as well as to the discretionary authority
conferred upon it" (quotation and citation omitted). Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391).
Discussion. 1. Statutory and regulatory factors. a.
Risk-elevating factors. Doe claims for the first time on appeal
that the examiner erred by considering Doe's sexual assault of
his wife and, as a result, applying two risk-elevating factors:
factor 21 (diverse victim type)1 and factor 22 (number of
victims).2 While Doe raised general concerns about how the
examiner weighed the regulatory factors in the Superior Court,
Doe did not make any argument or objection regarding factor 21
or factor 22, and therefore this argument is waived. See Smith
v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006).
Even if this issue had been properly preserved, Doe's claim
would fail. "The range of evidence that may be considered by
hearing examiners is not limited by the same rules of evidence
1 Factor 21 states: "Offenders whose acts of sexual misconduct traverse victim types, such as multiple ages . . . or relationship categories, present a greater risk of reoffense and danger to public safety because they have a broader victim pool." 803 Code Mass. Regs. § 1.33(21)(a) (2016). 2 Factor 22 states: "Offenders who have committed acts of sexual misconduct against two or more victims present an increased risk of reoffense and degree of dangerousness." 803 Code Mass. Regs. § 1.33(22)(a) (2016).
4 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). "[H]earsay evidence bearing indicia of
reliability constitutes admissible and substantial evidence"
(citation omitted). Doe No. 339940, supra. See Doe No. 523391,
95 Mass. App. Ct. at 89-90. To determine reliability, the
examiner must consider the circumstances in which the statements
were made, including "the general plausibility and consistency
of the . . . witness's story, the circumstances under which it
is related, the degree of detail, the motives of the narrator,
the presence or absence of corroboration and the like"
(quotation and citation omitted). Id. at 89. See Doe, Sex
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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-694
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 383730
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming the Sex Offender Registry Board's (SORB)
decision to classify him as a level two sex offender in
accordance with G. L. c. 6, § 178K (2) (b). On appeal, Doe
maintains that (1) the hearing examiner erroneously applied
SORB's statutory and regulatory factors; and (2) SORB failed to
prove, by clear and convincing evidence, that Internet
dissemination of Doe's personal information would serve a public
safety interest. We affirm.
Background. We summarize the facts as set forth by the
examiner in his decision, supplemented by materials included in
the administrative record, and reserve certain facts for later
discussion. The victim reported that Doe sexually assaulted her
numerous times from when she was six years old until she was fifteen. Doe is not the victim's biological father, but he was
married to the victim's mother, his name is on the victim's
birth certificate, he has known the victim since she was five
years old, and the victim called him "Dad." Doe was in his late
thirties when the assaults began.
Starting when the victim was six years old, Doe touched the
victim while she was sleeping (or while he expected she was
sleeping). Over the years, his touching escalated from touching
her breasts and vaginal area over her clothes, to touching her
under her clothes but not penetrating her vagina, to digitally
penetrating her vagina. The victim reported that this occurred
two to three times per week. For at least part of this period,
this occurred while the victim's younger brother slept in the
same room. When the victim was thirteen years old, Doe touched
the victim's vagina over her clothes while she had a friend
sleeping over in the same room, and the friend later told the
victim that she had a dream that Doe was sexually abusing the
victim. The victim's mother reported to the police, in an
affidavit, and to her pastor that Doe also frequently touched
her in her sleep and without her consent.
The victim became sleep deprived because she was afraid of
Doe assaulting her in her sleep and would try to stay awake.
She was prescribed sleep medication, and Doe would make sure
that she took the medication every night. The victim became
2 very anxious about people touching her, resulting in the
victim's entering a psychiatric unit when she was fifteen years
old.
Doe was found guilty of two counts of aggravated rape and
abuse of a child, pursuant to G. L. c. 265, § 23A. SORB
preliminarily classified Doe as a level two sex offender, and
after an administrative hearing on September 28, 2021, the
examiner issued a final decision classifying Doe as a level two
sex offender. Doe then filed a complaint for judicial review in
the Superior Court. After a hearing, the judge denied Doe's
motion for judgment on the pleadings and entered a judgment
affirming SORB's decision, from which Doe now appeals.
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 constitutional provisions, is based on an
error of law, or is not supported by substantial evidence."
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), citing
G. L. c. 30A, § 14 (7). "Substantial evidence is 'such evidence
as a reasonable mind might accept as adequate to support a
conclusion.'" Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 632 (2011) (Doe No.
10800), quoting G. L. c. 30A, § 1 (6). "We give due weight to
3 the experience, technical competence, and specialized knowledge
of the agency, as well as to the discretionary authority
conferred upon it" (quotation and citation omitted). Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391).
Discussion. 1. Statutory and regulatory factors. a.
Risk-elevating factors. Doe claims for the first time on appeal
that the examiner erred by considering Doe's sexual assault of
his wife and, as a result, applying two risk-elevating factors:
factor 21 (diverse victim type)1 and factor 22 (number of
victims).2 While Doe raised general concerns about how the
examiner weighed the regulatory factors in the Superior Court,
Doe did not make any argument or objection regarding factor 21
or factor 22, and therefore this argument is waived. See Smith
v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006).
Even if this issue had been properly preserved, Doe's claim
would fail. "The range of evidence that may be considered by
hearing examiners is not limited by the same rules of evidence
1 Factor 21 states: "Offenders whose acts of sexual misconduct traverse victim types, such as multiple ages . . . or relationship categories, present a greater risk of reoffense and danger to public safety because they have a broader victim pool." 803 Code Mass. Regs. § 1.33(21)(a) (2016). 2 Factor 22 states: "Offenders who have committed acts of sexual misconduct against two or more victims present an increased risk of reoffense and degree of dangerousness." 803 Code Mass. Regs. § 1.33(22)(a) (2016).
4 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). "[H]earsay evidence bearing indicia of
reliability constitutes admissible and substantial evidence"
(citation omitted). Doe No. 339940, supra. See Doe No. 523391,
95 Mass. App. Ct. at 89-90. To determine reliability, the
examiner must consider the circumstances in which the statements
were made, including "the general plausibility and consistency
of the . . . witness's story, the circumstances under which it
is related, the degree of detail, the motives of the narrator,
the presence or absence of corroboration and the like"
(quotation and citation omitted). Id. at 89. See Doe, Sex
Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd.,
81 Mass. App. Ct. 639, 649 (2012); Doe, Sex Offender Registry
Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct.
309, 313 (2007). On appeal, we consider whether "it was
reasonable for the examiner to admit and credit the facts
described in the hearsay evidence" (quotation and citation
omitted). Doe No. 523391, supra at 89.
5 Here, the examiner found the statements of the victim's
mother sufficiently credible and reliable under the
circumstances, which included consistency across her statement
to police, her affidavit, and statements to her pastor. See Doe
No. 523391, 95 Mass. App. Ct. at 90. It was not unreasonable
for the examiner to make this finding. See id.
Doe also maintains, as he did in the Superior Court, that
the examiner erroneously applied factor 16 (public place) based
on the sleepover assault.3 Doe claims that because he committed
the assault at night, at home, and while everyone in the room
was presumably sleeping, he made an effort to conceal his
conduct. Factor 16 applies where an offender has engaged in
sexual misconduct while in the presence of a sleeping person.
See Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender
Registry Bd., 98 Mass. App. Ct. 219, 225 (2020) (no expectation
of privacy where Doe assaulted victim while victim's brother was
3 Factor 16 states:
"The commission of a sex offense or engaging in sexual misconduct in a place where detection is likely reflects the offender's lack of impulse control. The Board may apply less weight to factor 16 if there is evidence that the offender made a clear and concerted effort to conceal his offending behavior from others. For purposes of factor 16, a 'public place' includes . . . any place that is open to the scrutiny of others or where there is no expectation of privacy."
803 Code Mass. Regs. § 1.33(16)(a) (2016).
6 sleeping in same bed). A room with sleeping children does not a
private place make, and thus it was within the examiner's
discretion to apply factor 16. See Doe No. 10800, 459 Mass. at
633, citing Smith, 65 Mass. App. Ct. at 812-813.
b. Risk-mitigating factors. Doe also claims that the
examiner erred by not explaining the weight given to factor 30
(advanced age)4 and by not giving factor 33 (home situation and
support systems)5 full mitigating weight.
4 Factor 30 states:
"Recidivism rates incrementally decline as sex offenders get older, especially as offenders move into their later years. While advanced age alone does not outweigh other risk-elevating factors present in an individual offender, advancing age has a mitigating effect on risk of reoffense.
"[T]he Board considers advanced age to have a significant mitigating effect[,] . . . for those with child victims, when the offender is [sixty] years of age or older. For purposes of factor 30, the Board will consider the offender's age at the time of the classification hearing."
803 Code Mass. Regs. § 1.33(30)(a) (2016). 5 Factor 33 states:
"Factor 33 is applied to an offender who is currently residing in a positive and supportive environment. The likelihood of reoffense is reduced when an offender is supported by family, friends, and acquaintances.
"The Board shall give greater mitigating consideration to evidence of a support network that is aware of the offender's sex offense history and provides guidance, supervision, and support of rehabilitation."
803 Code Mass. Regs. § 1.33(33)(a).
7 "A hearing examiner has discretion . . . to consider which
statutory and regulatory factors are applicable and how much
weight to ascribe to each factor . . . ." Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 109-110 (2014) (Doe No. 68549). "[O]ur review does not
turn on whether, faced with the same set of facts, we would have
drawn the same conclusion as an [examiner], but only whether a
contrary conclusion is not merely a possible but a necessary
inference" (quotation and citation omitted). Id. at 110.
Because it was not raised in the trial court, Doe's factor 30
claim is waived.6 See Smith, 65 Mass. App. Ct. at 810.
Doe also maintains that the examiner erred in giving factor
33 only minimal weight. Because Doe argued that the examiner
did not properly consider Doe's release plan, we will treat this
claim as preserved. The examiner gave factor 33 only minimal
mitigating weight because, at the time, Doe was still
incarcerated and therefore not "currently residing in a positive
and supportive environment." 803 Code Mass. Regs. § 1.33(33)(a)
(2016). Additionally, while Doe submitted a letter from his
6 Doe would fare no better if we considered his factor 30 claim. The examiner, in his discretion, applied factor 30 as a mitigating factor even though Doe, at fifty-eight years old, had not yet reached the threshold age of sixty at the time of the hearing. See 803 Code Mass. Regs. § 1.33(30)(a). In light of this discretionary application, any mitigating weight applied to factor 30 by the examiner could not have been too little. See Doe No. 68549, 470 Mass. at 109-110.
8 father stating that Doe could stay with his father upon his
release until he was ready to move out, the examiner found that
the letter did not constitute a home plan upon release. In
these circumstances, the examiner did not abuse his discretion
by applying factor 33 with minimal mitigating weight.
2. Internet dissemination and public safety. Doe also
maintains that requiring Internet dissemination of his personal
information was not supported by clear and convincing evidence
that it would serve a public safety interest. "Where the board
determines that the risk of reoffense is moderate and the degree
of dangerousness posed to the public is such that a public
safety interest is served by public availability of registration
information, it shall give a level 2 designation to the sex
offender." G. L. c. 6, § 178K (2) (b). "The public shall have
access to the information regarding a level 2 offender" in
accordance with the relevant statutory provisions. Id. "We
. . . require hearing examiners 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. If the answer to this question is 'no,'
classification as a level two offender is unjustified even where
the offender poses a moderate risk to reoffend and a moderate
degree of dangerousness." Doe No. 496501, 482 Mass. at 655.
9 Doe claims here that, because the victim was his
stepdaughter, these offenses took place over ten years before
the hearing, and he was almost sixty years old at the time of
the classification hearing, the pool of potential victims in the
case of reoffense is small and therefore Internet dissemination
of his information would not protect the public. The examiner
considered and rejected these arguments, finding that, "in the
interest of public safety, women, girls, and anyone who is the
caretaker of girls who may become acquainted with the
[plaintiff], have a right to know about the [plaintiff]’s past
sexual offenses." The examiner, considering these facts and
applying one high risk factor and numerous risk elevating and
risk mitigating factors, determined by clear and convincing
evidence that Doe posed a moderate risk to reoffend and a
moderate degree of dangerousness, and therefore concluded that a
public safety interest would be served by public and Internet
access to his sex offender registry information. See Doe No.
496501, 482 Mass. at 655. These findings were reasonable in
light of the circumstances and the examiner's specialized
knowledge, and the findings support the examiner's
10 classification of Doe as a level two offender such that Internet
publication is appropriate.
Judgment affirmed.
By the Court (Rubin, Singh & Hershfang, JJ.7),
Assistant Clerk
Entered: February 16, 2024.
7 The panelists are listed in order of seniority.