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-691
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526442
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe (Doe), appeals from a Superior
Court judge's decision affirming the Sex Offender Registry
Board's (board) classification of Doe as a level three sex
offender. Doe argues that the evidence did not support the
level three classification and that the hearing examiner erred
in denying his motion for expert funds. We affirm.
Background. 1. Index offenses. In July 2016 Doe, then
twenty years old, picked up a fourteen year old girl whom he had
befriended on Facebook. Doe gave the victim alcohol, and, after
she became intoxicated, drove to a back road, and had sex with
her in his car. The next day, the victim learned through Facebook posts
from friends and family that she had been reported as a missing
person. The victim asked Doe to take her home, but he began
"bugging her" for more sex. The victim said no several times.
Doe got out of the car, went to the passenger's side, and tried
to grab the victim's pants and crotch area. The victim was
holding her waistband, telling Doe to stop, and pushing his
hands away, but he persisted. Eventually, the victim stopped
resisting, and Doe had sex with her a second time. He then
dropped the victim off at her friend's workplace.
In June 2018 Doe pleaded guilty to two counts of rape and
abuse of a child and was sentenced to two-and-one-half years of
imprisonment, with eighteen months to serve and the balance
suspended for six years. He was released on parole on June 12,
2020.
2. Other inappropriate behavior. The hearing examiner
considered the following evidence as indicative of a pattern of
inappropriate behavior with girls.
In December 2012 a woman reported to the police that Doe
was harassing her fifteen year old daughter. Doe and the girl
had dated, and Doe was repeatedly sending her messages through
Facebook asking to get back together. When the girl blocked Doe
on Facebook, he created new accounts to try to contact her. Doe
persisted in this conduct despite efforts from the girl's mother
2 and his own mother to get him to stop. When the police spoke
with Doe, he agreed to cut all ties with the girl, yet a few
days later, he contacted her again. The hearing examiner
considered this information as indicative of "the start of a
pattern of persistence with . . . females even when told to
stop."
In February 2017, while the charges on the index offenses
were pending, a seventeen year old girl reported to the
Department of Children and Families that Doe forced her to
perform sexual acts, sell prescription pills, and smoke
marijuana. The girl later recanted these allegations, stating
that she and Doe had engaged in consensual activity. Although
the hearing examiner did not treat this information as evidence
of sexual abuse, she did consider it as part of "a concerning
pattern," noting that both the girl and her mother agreed that
Doe "was persistent in pursuit of sexual activity with this
girl."
In May 2018, again while the charges on the index offenses
were pending, a woman reported to the police that Doe was
attempting to entice her sixteen year old daughter to have sex
with him in exchange for marijuana. The girl disclosed that
"some weird guy" had contacted her on Snapchat, asked if she
smoked, and sent an image of a bag of marijuana and a condom.
The girl stopped interacting with Doe once she learned his age,
3 at which point he became persistent, asked if he could meet her
after school, and described the car he drove. After receiving
the report, the police went to speak with Doe, but he was not
home. That same day, the girl was at her bus stop when Doe
drove by in the car he had described and asked if she had missed
the bus. He then sent the girl a photograph of the area near
her home, said that "he sees her almost every day," and asked
her to "get out early" to meet up with him. After the girl
blocked Doe on Snapchat, he drove by her bus stop again and told
her, "Stop being so stubborn." The girl also disclosed that Doe
asked to have a "threesome" with her and her cousin, who had
received similar types of messages from Doe. Although no
charges were filed, the hearing examiner found that these
allegations were "substantially detailed, reliable, and
credible" and showed that Doe had engaged in "stalking
behaviors."
Discussion. 1. Sufficiency of the evidence. To justify a
level three classification, the board must find "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
Bd., 490 Mass. 759, 768 (2022), quoting G. L. c. 6,
4 § 178K (2) (c). "It is the province of the board, not [the]
court, to weigh the credibility of the witnesses and to resolve
any factual disputes." Doe, Sex Offender Registry Bd. No. 10800
v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe No.
10800). We will reverse a decision of the board "only if we
determine that the decision is unsupported by substantial
evidence or is arbitrary and capricious, an abuse of discretion,
or not in accordance with law." Id.
We conclude that substantial evidence supports the board's
decision in this case to classify Doe as a level three sex
offender. The index offenses triggered the application of
statutory high-risk factor 3 (adult offender and child victim)
and risk-elevating factors 7 (relationship between offender and
victim), 9 (alcohol and substance abuse), 16 (public place), and
19 (level of physical contact). The hearing examiner also
appropriately gave substantial weight to the "stalking
behaviors" that Doe committed in May 2018 while the charges on
the index offenses were pending. In addition, Doe has an
extensive criminal history, including several crimes of
violence, and has violated his probation and the conditions of
his pretrial release on several occasions. Although the hearing
examiner also found several risk-mitigating factors to be
applicable -- including that Doe was attending sex offender
treatment and had family support -- the evidence of Doe's
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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-691
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526442
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe (Doe), appeals from a Superior
Court judge's decision affirming the Sex Offender Registry
Board's (board) classification of Doe as a level three sex
offender. Doe argues that the evidence did not support the
level three classification and that the hearing examiner erred
in denying his motion for expert funds. We affirm.
Background. 1. Index offenses. In July 2016 Doe, then
twenty years old, picked up a fourteen year old girl whom he had
befriended on Facebook. Doe gave the victim alcohol, and, after
she became intoxicated, drove to a back road, and had sex with
her in his car. The next day, the victim learned through Facebook posts
from friends and family that she had been reported as a missing
person. The victim asked Doe to take her home, but he began
"bugging her" for more sex. The victim said no several times.
Doe got out of the car, went to the passenger's side, and tried
to grab the victim's pants and crotch area. The victim was
holding her waistband, telling Doe to stop, and pushing his
hands away, but he persisted. Eventually, the victim stopped
resisting, and Doe had sex with her a second time. He then
dropped the victim off at her friend's workplace.
In June 2018 Doe pleaded guilty to two counts of rape and
abuse of a child and was sentenced to two-and-one-half years of
imprisonment, with eighteen months to serve and the balance
suspended for six years. He was released on parole on June 12,
2020.
2. Other inappropriate behavior. The hearing examiner
considered the following evidence as indicative of a pattern of
inappropriate behavior with girls.
In December 2012 a woman reported to the police that Doe
was harassing her fifteen year old daughter. Doe and the girl
had dated, and Doe was repeatedly sending her messages through
Facebook asking to get back together. When the girl blocked Doe
on Facebook, he created new accounts to try to contact her. Doe
persisted in this conduct despite efforts from the girl's mother
2 and his own mother to get him to stop. When the police spoke
with Doe, he agreed to cut all ties with the girl, yet a few
days later, he contacted her again. The hearing examiner
considered this information as indicative of "the start of a
pattern of persistence with . . . females even when told to
stop."
In February 2017, while the charges on the index offenses
were pending, a seventeen year old girl reported to the
Department of Children and Families that Doe forced her to
perform sexual acts, sell prescription pills, and smoke
marijuana. The girl later recanted these allegations, stating
that she and Doe had engaged in consensual activity. Although
the hearing examiner did not treat this information as evidence
of sexual abuse, she did consider it as part of "a concerning
pattern," noting that both the girl and her mother agreed that
Doe "was persistent in pursuit of sexual activity with this
girl."
In May 2018, again while the charges on the index offenses
were pending, a woman reported to the police that Doe was
attempting to entice her sixteen year old daughter to have sex
with him in exchange for marijuana. The girl disclosed that
"some weird guy" had contacted her on Snapchat, asked if she
smoked, and sent an image of a bag of marijuana and a condom.
The girl stopped interacting with Doe once she learned his age,
3 at which point he became persistent, asked if he could meet her
after school, and described the car he drove. After receiving
the report, the police went to speak with Doe, but he was not
home. That same day, the girl was at her bus stop when Doe
drove by in the car he had described and asked if she had missed
the bus. He then sent the girl a photograph of the area near
her home, said that "he sees her almost every day," and asked
her to "get out early" to meet up with him. After the girl
blocked Doe on Snapchat, he drove by her bus stop again and told
her, "Stop being so stubborn." The girl also disclosed that Doe
asked to have a "threesome" with her and her cousin, who had
received similar types of messages from Doe. Although no
charges were filed, the hearing examiner found that these
allegations were "substantially detailed, reliable, and
credible" and showed that Doe had engaged in "stalking
behaviors."
Discussion. 1. Sufficiency of the evidence. To justify a
level three classification, the board must find "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
Bd., 490 Mass. 759, 768 (2022), quoting G. L. c. 6,
4 § 178K (2) (c). "It is the province of the board, not [the]
court, to weigh the credibility of the witnesses and to resolve
any factual disputes." Doe, Sex Offender Registry Bd. No. 10800
v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe No.
10800). We will reverse a decision of the board "only if we
determine that the decision is unsupported by substantial
evidence or is arbitrary and capricious, an abuse of discretion,
or not in accordance with law." Id.
We conclude that substantial evidence supports the board's
decision in this case to classify Doe as a level three sex
offender. The index offenses triggered the application of
statutory high-risk factor 3 (adult offender and child victim)
and risk-elevating factors 7 (relationship between offender and
victim), 9 (alcohol and substance abuse), 16 (public place), and
19 (level of physical contact). The hearing examiner also
appropriately gave substantial weight to the "stalking
behaviors" that Doe committed in May 2018 while the charges on
the index offenses were pending. In addition, Doe has an
extensive criminal history, including several crimes of
violence, and has violated his probation and the conditions of
his pretrial release on several occasions. Although the hearing
examiner also found several risk-mitigating factors to be
applicable -- including that Doe was attending sex offender
treatment and had family support -- the evidence of Doe's
5 serious crimes, his "highly concerning" behavior toward other
girls, his lengthy criminal history, and poor performance under
prior supervision supports the hearing examiner's decision to
classify him as a level three offender. See Doe No. 10800, 459
Mass. at 637.
We are unpersuaded by Doe's contention that remand is
required because the hearing examiner misapplied several
factors. As an initial matter, we note that Doe did not raise
these arguments to the Superior Court judge and, as the board
points out, issues that were not raised in the trial court are
generally deemed waived. See Royal Indem. Co. v. Blakely, 372
Mass. 86, 88 (1977). In any event, even assuming Doe's
arguments are not waived, they do not warrant a remand.
We agree that the hearing examiner misapplied factor 7
insofar as she found that the victim of the index offenses was a
"stranger victim." "[W]here the offender and victim
relationship is established via electronic communications" and
the victim is a child, the victim is considered a "stranger" if
the offender "transmit[s] sexually explicit materials or make[s]
sexually explicit comments within 24 hours of first electronic
contact." 803 Code Mass. Regs. § 1.33(7) (2016). The evidence
here did not establish whether or when Doe sent sexually
explicit materials or made sexually explicit comments after
first communicating with the victim on Facebook. Nonetheless,
6 remand is unnecessary because the victim would still qualify as
an "extrafamilial victim" under factor 7, and, as the regulation
provides, "[t]he number of potential victims substantially
increases when offenders choose to sexually offend against
extrafamilial victims." Id. Thus, because we have no doubt
that the hearing examiner would still have applied factor 7, and
in light of "the underlying facts of the case," we are able to
conclude that the error did not affect the level three
classification. Doe, Sex Offender Registry Bd. No. 22188 v. Sex
Offender Registry Bd., 101 Mass. App. Ct. 797, 804 (2022),
quoting Doe, Sex Offender Registry Bd. No. 356315 v. Sex
Offender Registry Bd., 99 Mass. App. Ct. 292, 301 (2021).
We see no merit to the defendant's remaining arguments. It
was appropriate for the hearing examiner to give only moderate
weight to risk-mitigating factor 32 (sex offender treatment)
because, as she found, Doe is "relatively new to treatment."
Factor 32 expressly provides for varying degrees of weight based
on how far the offender has progressed in treatment. 803 Code
Mass. Regs. § 1.33(32) (2016). And to the extent Doe claims
that the hearing examiner misapplied factor 28 (supervision by
probation or parole), her decision to give this factor minimal
weight is supported by the language of the regulation, which
states, "Factor 28 may be given less weight if there is a
7 history of probation violations." 803 Code Mass. Regs.
§ 1.33(28) (2016).
2. Motion for expert funds. Doe argues that the hearing
examiner should have allowed his motion for funds so that he
could retain an expert to evaluate his "risk of reoffending and
dangerousness given his diagnosis and treatment for depression."
But he did not argue this in his motion, which sought an expert
to evaluate how Doe's "immaturity" affected his risk of
reoffense and dangerousness. It was not an abuse of discretion
for the hearing examiner to fail to act sua sponte and grant
funds on a ground that was not raised in the motion. See Doe,
Sex Offender Registry Bd. No. 58574 v. Sex Offender Registry
Bd., 98 Mass. App. Ct. 307, 310 (2020) (denial of motion for
expert funds reviewed for abuse of discretion). Doe has
therefore waived the argument. See Doe, Sex Offender Registry
Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct.
313, 320 (2015).
Judgment affirmed.
By the Court (Sacks, Shin & Hershfang, JJ.1),
Clerk
Entered: December 31, 2024.
1 The panelists are listed in order of seniority.