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-860
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527087
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appellant was convicted, after a guilty plea,
of three counts of indecent assault and battery on a child under
age fourteen, see G. L. c. 265, § 13B, and one count of
providing obscene material to a minor, see G. L. c. 272, § 28.
In 2019, the Sex Offender Registry Board (SORB) notified the
appellant, pursuant to G. L. c. 6, § 178L (1) (a), that it had
preliminarily designated him as a level three sex offender. A
hearing examiner issued a decision finding that Doe currently
poses a high risk of reoffending and high level of dangerousness
and was required to register as a level three sex offender. Doe
sought judicial review, and a Superior Court judge affirmed his
level three classification. Doe then appealed. During the pendency of the appeal, however, SORB accepted
and declined to appeal Superior Court Judge Wilkins's
injunction, preventing SORB from utilizing factor 2, Doe, Sex
Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd.,
Mass. Super. Ct., No. 20-1130-B (Middlesex County April 16,
2021), concerning repetitive and compulsive behavior, in certain
circumstances.
Because that decision was relevant to Doe's classification,
by agreement of the parties, the appeal was dismissed, Doe's
classification was vacated, and he received a new hearing at
which factor 2 was not considered. The same hearing examiner
conducted the second hearing, finding by clear and convincing
evidence that Doe currently poses a moderate risk of reoffending
and moderate level of dangerousness, and that he was, therefore,
required to register as a level two sex offender. Doe brought a
complaint for judicial review pursuant to G. L. c. 6, § 178M,
and G. L. c. 30A, § 14. A judge of the Superior Court affirmed
Doe's level two classification, and he has now appealed.
Discussion. The facts of the plaintiff's underlying crimes
and of the findings and analysis of the hearing examiner are
well known to the parties and will be repeated here only as
necessary.
2 1. Factors 10, 11, and 15. Doe argues first that the
hearing examiner committed an abuse of discretion in his
treatment of regulatory factor 11, related to violence unrelated
to sexual assaults, and regulatory factor 15, related to
hostility against women. He argues that the hearing examiner
failed to provide any meaningful explanation why he assigned
minimal weight to factor 10, Contact with Criminal Justice
System, 803 Code Mass. Regs. § 1.33(10) (2016), while giving
full weight to factor 11, Violence Unrelated to Sexual Assaults,
803 Code Mass. Regs. § 1.33(11) (2016), and applying factor 15,
Hostility Towards Women, 803 Code Mass. Regs. § 1.33(15) (2016).
Doe notes that these factors all focus on the exact same
behavior, Doe's history of non-sexual criminal conduct.1
In this case, the hearing examiner assigned only minimal
weight to factor 10, concluding, after examining Doe's nominal
criminal record beyond his index offenses, that he "[did] not
1 The plaintiff asserts that an offender's criminal history lacks predictive value. He cites Hanson & Bussière, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. of Consulting & Clinical Psychol. 348, 348-362 (1998). In response, SORB states that, in promulgating the regulatory factors, SORB considered both the article cited by the plaintiff and several subsequent articles that apparently contradict it. A determination that criminal history is irrelevant to risk of recidivism would amount to a facial challenge, at least to factor 10, Contact with Criminal Justice System. Doe has not made any such challenge here, and we express no opinion on the question.
3 find evidence of a persistent disregard for rules, laws, and the
violation of the rights of others."
Contrary to the plaintiff's argument, the judge's
assignment of full weight to factor 11 is neither inexplicable
nor nonsensical, even given the minimal weight given to factor
10. That is because, although his criminal record was minimal,
the acts that led to his contact with the criminal justice
system, aside from the index offenses, were violent. Factor 11
asks whether the plaintiff "has previously demonstrated that he
can act violently and with no regard to the safety of others."
803 Code Mass. Regs. § 1.33(11)(a) (2016).
In 2014, he punched an eight and one-half months pregnant
woman in the stomach. After this altercation, he slashed the
woman's husband's car tires and stabbed one of the car doors
multiple times. When police arrived, they saw him shirtless and
in the middle of the street yelling and ranting and holding a
closed folding knife.
In 2017, another woman, Doe's girlfriend, told police that
the plaintiff had become enraged and, in the presence of their
children, slapped her face with an open hand and smashed her
cell phone.
Likewise, these events involving the pregnant woman and
Doe's girlfriend supported application by the hearing examiner
4 of factor 15, Hostility Towards Women. See 803 Code Mass. Regs.
§ 1.33(15)(a) (2016).
Notwithstanding the limited nature of his criminal history,
there was substantial evidence to support the hearing examiner's
treatment of factors 11 and 15, and we see no error in the
manner they were applied.
2. Factor 37. Doe next contends that factor 37, Other
Information Related to the Nature of Sexual Behavior, 803 Code
Mass. Regs. § 1.33(37) (2016), should not be applied, because
Doe's behavior with the sister of his prepubescent victim did
not constitute an actual act of sexual misconduct. The hearing
officer "considered," however, Doe's attempts to force his hand
into the sister's pants when evaluating Doe's dangerousness and
risk of reoffense, because the allegations were substantially
reliable, and Doe might have committed another act had she not
removed herself from the situation out of fear.
The hearing examiner is entitled to draw reasonable
inferences from the evidence, 803 Code Mass. Regs. § 1.19(1)(h)
(2016), and that Doe was attempting a sexual assault is a very
reasonable inference to draw from his attempt, around the time
he was abusing a prepubescent girl, to put his hands down her
then seven year old sister's pants.
5 3. Application of the factors. Doe next argues that the
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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-860
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527087
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appellant was convicted, after a guilty plea,
of three counts of indecent assault and battery on a child under
age fourteen, see G. L. c. 265, § 13B, and one count of
providing obscene material to a minor, see G. L. c. 272, § 28.
In 2019, the Sex Offender Registry Board (SORB) notified the
appellant, pursuant to G. L. c. 6, § 178L (1) (a), that it had
preliminarily designated him as a level three sex offender. A
hearing examiner issued a decision finding that Doe currently
poses a high risk of reoffending and high level of dangerousness
and was required to register as a level three sex offender. Doe
sought judicial review, and a Superior Court judge affirmed his
level three classification. Doe then appealed. During the pendency of the appeal, however, SORB accepted
and declined to appeal Superior Court Judge Wilkins's
injunction, preventing SORB from utilizing factor 2, Doe, Sex
Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd.,
Mass. Super. Ct., No. 20-1130-B (Middlesex County April 16,
2021), concerning repetitive and compulsive behavior, in certain
circumstances.
Because that decision was relevant to Doe's classification,
by agreement of the parties, the appeal was dismissed, Doe's
classification was vacated, and he received a new hearing at
which factor 2 was not considered. The same hearing examiner
conducted the second hearing, finding by clear and convincing
evidence that Doe currently poses a moderate risk of reoffending
and moderate level of dangerousness, and that he was, therefore,
required to register as a level two sex offender. Doe brought a
complaint for judicial review pursuant to G. L. c. 6, § 178M,
and G. L. c. 30A, § 14. A judge of the Superior Court affirmed
Doe's level two classification, and he has now appealed.
Discussion. The facts of the plaintiff's underlying crimes
and of the findings and analysis of the hearing examiner are
well known to the parties and will be repeated here only as
necessary.
2 1. Factors 10, 11, and 15. Doe argues first that the
hearing examiner committed an abuse of discretion in his
treatment of regulatory factor 11, related to violence unrelated
to sexual assaults, and regulatory factor 15, related to
hostility against women. He argues that the hearing examiner
failed to provide any meaningful explanation why he assigned
minimal weight to factor 10, Contact with Criminal Justice
System, 803 Code Mass. Regs. § 1.33(10) (2016), while giving
full weight to factor 11, Violence Unrelated to Sexual Assaults,
803 Code Mass. Regs. § 1.33(11) (2016), and applying factor 15,
Hostility Towards Women, 803 Code Mass. Regs. § 1.33(15) (2016).
Doe notes that these factors all focus on the exact same
behavior, Doe's history of non-sexual criminal conduct.1
In this case, the hearing examiner assigned only minimal
weight to factor 10, concluding, after examining Doe's nominal
criminal record beyond his index offenses, that he "[did] not
1 The plaintiff asserts that an offender's criminal history lacks predictive value. He cites Hanson & Bussière, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. of Consulting & Clinical Psychol. 348, 348-362 (1998). In response, SORB states that, in promulgating the regulatory factors, SORB considered both the article cited by the plaintiff and several subsequent articles that apparently contradict it. A determination that criminal history is irrelevant to risk of recidivism would amount to a facial challenge, at least to factor 10, Contact with Criminal Justice System. Doe has not made any such challenge here, and we express no opinion on the question.
3 find evidence of a persistent disregard for rules, laws, and the
violation of the rights of others."
Contrary to the plaintiff's argument, the judge's
assignment of full weight to factor 11 is neither inexplicable
nor nonsensical, even given the minimal weight given to factor
10. That is because, although his criminal record was minimal,
the acts that led to his contact with the criminal justice
system, aside from the index offenses, were violent. Factor 11
asks whether the plaintiff "has previously demonstrated that he
can act violently and with no regard to the safety of others."
803 Code Mass. Regs. § 1.33(11)(a) (2016).
In 2014, he punched an eight and one-half months pregnant
woman in the stomach. After this altercation, he slashed the
woman's husband's car tires and stabbed one of the car doors
multiple times. When police arrived, they saw him shirtless and
in the middle of the street yelling and ranting and holding a
closed folding knife.
In 2017, another woman, Doe's girlfriend, told police that
the plaintiff had become enraged and, in the presence of their
children, slapped her face with an open hand and smashed her
cell phone.
Likewise, these events involving the pregnant woman and
Doe's girlfriend supported application by the hearing examiner
4 of factor 15, Hostility Towards Women. See 803 Code Mass. Regs.
§ 1.33(15)(a) (2016).
Notwithstanding the limited nature of his criminal history,
there was substantial evidence to support the hearing examiner's
treatment of factors 11 and 15, and we see no error in the
manner they were applied.
2. Factor 37. Doe next contends that factor 37, Other
Information Related to the Nature of Sexual Behavior, 803 Code
Mass. Regs. § 1.33(37) (2016), should not be applied, because
Doe's behavior with the sister of his prepubescent victim did
not constitute an actual act of sexual misconduct. The hearing
officer "considered," however, Doe's attempts to force his hand
into the sister's pants when evaluating Doe's dangerousness and
risk of reoffense, because the allegations were substantially
reliable, and Doe might have committed another act had she not
removed herself from the situation out of fear.
The hearing examiner is entitled to draw reasonable
inferences from the evidence, 803 Code Mass. Regs. § 1.19(1)(h)
(2016), and that Doe was attempting a sexual assault is a very
reasonable inference to draw from his attempt, around the time
he was abusing a prepubescent girl, to put his hands down her
then seven year old sister's pants.
5 3. Application of the factors. Doe next argues that the
hearing examiner's decision is inadequate, reflecting a
mechanical application or a checklist approach, rather than
reasoned analysis for the level 2 classification. See Doe, Sex
Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97
Mass. App. Ct. 564, 575-576 (2020) (requiring hearing examiners
to engage in reasoned analysis, rather than "perfunctory
effort[s] based on a tally sheet of aggravating and mitigating
factors"). See also 803 Code Mass. Regs. § 1.33 (2016) ("The
final classification level is not based on a cumulative analysis
of the applicable factors, but rather a qualitative analysis of
the individual sex offender's history and personal
circumstances").
Although the hearing examiner does state that his
conclusion that Doe presents both a moderate risk to reoffend
and a moderate degree of dangerousness is based on consideration
of the factors, the hearing examiner's discussions of the facts
relevant to the factors considered demonstrate a qualitative
analysis of Doe's history and personal circumstances. See 803
Code Mass. Regs. § 1.33 (2016).
4. Internet publication. Finally, Doe argues that the
hearing examiner failed to make explicit factual findings
regarding the likely efficacy of publishing Doe's registration
6 information on the Internet. See Doe, Sex Offender Registry Bd.
No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 654
(2019) (Doe, No. 496501) (prohibiting SORB from classifying
offender as level two unless "a public safety interest is served
by public availability of [their] registration information"
[citation omitted]).
The hearing examiner's analysis of the public safety
interest served by Internet publication was adequate. He noted
that when the petitioner was twenty-two years old, he began
sexually assaulting his prepubescent female cousin -- actually,
the child of his first cousin -- who was then ten years old.
This involved serious sexual conduct as described by the hearing
examiner. Doe also showed the victim a pornographic video
recording and sent inappropriate photos to her. His acts were
committed despite the fact that the victim's grandmother and, in
one instance, Doe's girlfriend, were in the same residence. The
hearing examiner noted that Doe's probation had not yet started
and that Doe was participating in sex offender treatment --
although no one suggests that he had completed it.
Because any reoffence would likely be against a vulnerable
girl, the hearing examiner concluded that it is in the interest
of public safety that anyone who is the caretaker of young girls
7 and may become acquainted with Doe be able to obtain the
information that he is a registered sex offender.
This complies with the requirement of Doe, No. 496501, 482
Mass. at 654 (hearing examiners must determine "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").
The hearing examiner's conclusions that, by clear and
convincing evidence, Doe posed a moderate risk of reoffence, a
moderate degree of dangerousness, and that a public safety
interest was served by public Internet access to Doe's registry
information was not arbitrary and capricious, unsupported by
substantial evidence, an abuse of discretion, or otherwise not
in accordance with law. See G. L. c. 30A, § 14 (7).
Judgment affirmed.
By the Court (Rubin, D'Angelo & Smyth, JJ.2),
Clerk
Entered: May 23, 2025.
2 The panelists are listed in order of seniority.