John Doe, Sex Offender Registry Board No. 527089 v. Sex Offender Registry Board.

• Court: Massachusetts Appeals Court
• Decided: November 21, 2024
• Docket: 23-P-0609
• Status: Unpublished

Opinion

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-609

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527089

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 3 sex offender.

Doe argues that the hearing examiner did not adequately explain

why his risk of reoffense and degree of dangerousness warrant a

level 3 classification. We affirm.

In July 2019 Doe, then twenty-six years old, pleaded guilty

to two counts of rape and abuse of a child and two counts of

indecent assault and battery on a child under the age of

fourteen. The convictions stemmed from multiple acts of sexual

abuse that Doe committed against two prepubescent girls in the

foster care of Doe's mother. When the victims began exhibiting sexualized behaviors, an investigation was conducted, revealing

that Doe had raped and indecently touched the victims multiple

times over a two-year period from 2015 to 2017. The rapes

included penile-oral, penile-vaginal, and penile-anal

penetration.

Doe was sentenced on his convictions to four to five years

of imprisonment, followed by ten years of probation. In

September 2020 the board notified Doe that it had preliminarily

classified him as a level 3 sex offender. At Doe's request the

board provided him with a de novo hearing, after which a hearing

examiner issued a decision finally classifying Doe as a level 3

sex offender.1

In her decision the hearing examiner determined that two

statutory high-risk factors applied: factor 1 (mental

abnormality) based on Doe's diagnosis of "[p]edophilic

[d]isorder, [n]onexclusive type, [s]exually attracted to

females"; and factor 3 (adult offender with child victim) based

on Doe's offending against two prepubescent children. The

hearing examiner also applied several risk-elevating factors

with full or increased weight: factor 7 (relationship between

1 Because the original hearing examiner became unavailable before issuing a decision, the board's Chair assigned a different examiner to the case. Ex V3 211. The original hearing examiner did not take any testimony, and so the hearing was not reconvened. See 803 Code Mass. Regs. 1.20 (4) (2016).

2 the offender and the victim) based on Doe's offending against an

extrafamilial victim and while in a position of trust; factor 18

(extravulnerable victim) because both victims were younger than

eight-years old; factor 19 (level of physical contact) based on

the "multiple penile penetrative acts" committed by Doe; and

factor 22 (number of victims). The hearing examiner gave

moderate weight to risk-elevating factor 9 (alcohol and

substance abuse) and minimal weight to risk-elevating factors 10

(contact with criminal justice system) and 11 (violence

unrelated to sexual assaults). The hearing examiner also

applied several mitigating factors, giving full weight to factor

28 (supervision by probation), factor 33 (home situation and

support systems), and factor 34 (stability in the community),

while giving moderate weight to factor 32 (sex offender

treatment) based on evidence that Doe was participating in all

aspects of treatment but had not yet completed it. In the end

the hearing examiner concluded that, despite the mitigating

circumstances, Doe's risk of reoffense and degree of

dangerousness were high, warranting a level 3 classification.

On appeal Doe argues principally that the case should be

remanded to the board because the hearing examiner did not

adequately explain why Doe should be classified as a level 3,

rather than a level 2, offender. We are unpersuaded. The

hearing examiner's detailed, forty-page decision demonstrates

3 that she considered the individual facts of Doe's case, applied

the statutory and regulatory factors to those facts, and

evaluated the qualitative weight of the applicable factors. See

803 Code Mass. Regs. § 1.33 (2016) ("The final classification

level is . . . based on . . . a qualitative analysis of the

individual sex offender's history and personal circumstances").

The hearing examiner explained how much weight she assigned each

factor and why. Viewing the decision in its totality, we are

satisfied that the hearing examiner's analysis "show[s] that the

classification is based on a sound exercise of informed

discretion rather than the mechanical application of a checklist

or some other reflex." Doe, Sex Offender Registry Bd. No.

136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651

(2012).

Doe also asserts that the hearing examiner's decision is

unsupported by substantial evidence. This assertion is too

insufficiently developed to constitute adequate appellate

argument. See Mass. R. A. P. 16 (a) (9), as appearing in 481

Mass. 1628 (2019); Kellogg v. Board of Registration in Med., 461

Mass. 1001, 1003 (2011). In any event, even assuming the

argument is adequately raised, it is without merit. "Our review

of a hearing examiner's decision does not turn on whether, faced

with the same set of facts, we would have drawn the same

conclusion, . . . but only whether a contrary conclusion is not

4 merely a possible but a necessary inference" (quotation and

citation omitted). Doe, Sex Offender Registry Bd. No. 3839 v.

Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015). Here,

Doe's diagnosis of pedophilic disorder and the circumstances of

his sex offenses -- which involved numerous, fairly recent,

sexual assaults against two prepubescent victims -- supported

the hearing examiner's determination that Doe presents a high

degree of dangerousness and a high likelihood to reoffend.

Judgment affirmed.

By the Court (Sacks, Shin & Hershfang, JJ.2),

Clerk

Entered: November 21, 2024.

2 The panelists are listed in order of seniority.