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-839
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527402
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe (Doe), appeals from a Superior
Court judgment affirming the Sex Offender Registry Board's
(board) classification of Doe as a level three sex offender.
Doe argues that he is not required to register as a sex offender
because his index offenses, convictions in Arizona of attempted
sexual conduct with a minor, are not "like violations" to one of
the enumerated sex offenses in G. L. c. 6, § 178C. He also
argues that the evidence is insufficient to support a level
three classification. We affirm.
Background. In August 1997 Doe's then wife reported to
Arizona police that she had walked in on him and her six year
old daughter (Doe's stepdaughter) in the bedroom. Doe, who was then twenty-six years old, was naked with an erection, and the
child was sitting on the floor wearing underwear and a T-shirt.
The child told the mother that Doe was "trying to make [her]
hole bigger." During the ensuing investigation, the child
reported that Doe would "lick [her] and put his front in [her]
bottom," telling her that "he wanted to make her bottom 'wider'
so that when she went to the bathroom it wouldn't hurt." The
child further reported that Doe stuck his tongue in her "front,"
forced his penis into her mouth, and showed her pictures that by
her description were pornographic. The child made statements
suggesting that the abuse had occurred over several months.
In February 1998 Doe pleaded guilty in an Arizona court to
two counts of attempted sexual conduct with a minor, in
violation of Ariz. Rev. Stat. Ann. § 13-1405, for his abuse of
his stepdaughter. He was sentenced to thirteen years of
incarceration and lifetime probation.
In May 2020 the board notified Doe, who had since moved to
Massachusetts, of his duty to register as a level three sex
offender. After requesting a de novo hearing before a hearing
examiner, Doe moved to dismiss the proceedings on the ground
that the Arizona crime of attempted sexual conduct with a minor
is not a "like violation" to a Massachusetts sex offense under
G. L. c. 6, § 178C. The hearing examiner denied the motion,
2 concluding that the Arizona offense is a "like violation" to the
Massachusetts offense of attempted indecent assault and battery
on a child under the age of fourteen. See G. L. c. 265, § 13B;
G. L. c. 274, § 6. The hearing examiner then found that the
board sustained its burden of proving by clear and convincing
evidence that Doe's risk to reoffend and degree of dangerousness
were high, warranting a level three classification. On judicial
review under G. L. c. 30A, § 14, a Superior Court judge affirmed
the board's decision.
Discussion. 1. Like violation. The sex offender registry
law requires individuals to register with the board if they live
in Massachusetts and have been convicted of an enumerated sex
offense "or a like violation of the laws of another state."
G. L. c. 6, § 178C. "A 'like violation' is a conviction in
another jurisdiction of an offense of which the elements are the
same or nearly the same as an offense requiring registration in
Massachusetts." Doe, Sex Offender Registry Bd. No. 151564 v.
Sex Offender Registry Bd., 456 Mass. 612, 615 (2010) (Doe No.
151564). We determine whether a conviction in another
jurisdiction is a "like violation" by looking at the elements of
the respective offenses, and not the offender's underlying
conduct. See id. 619. The out-of-State offense need not have
"precisely the same" elements as a Massachusetts sex offense,
3 however, to qualify as a "like violation." Id. at 616. Rather,
the out-of-State offense can constitute a "like violation" if it
prohibits "essentially the same conduct" as a Massachusetts sex
offense. Id. at 617. See Doe, Sex Offender Registry Bd. No.
36870 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 246, 251
(2019) (Doe No. 36870).
Here, we agree with the hearing examiner's determination
that the Arizona offense of attempted sexual conduct with a
minor is a "like violation" to the Massachusetts offense of
attempted indecent assault and battery on a child under the age
of fourteen.1 In Arizona "[a] person commits sexual conduct with
a minor by intentionally or knowingly engaging in sexual
intercourse or oral sexual contact with any person who is under
eighteen years of age." Ariz. Rev. Stat. Ann. § 13-1405(A).
The Arizona crime of "attempt" includes "[i]ntentionally do[ing]
or omit[ting] to do anything which, under the circumstances as
[the] person believes them to be, is any step in a course of
conduct planned to culminate in commission of an offense."
Ariz. Rev. Stat. Ann. § 13-1001(A)(2).
In Massachusetts "[w]hoever commits an indecent assault and
battery on a child under the age of 14 shall be punished."
1 We therefore do not address the board's argument on appeal that the Arizona offense is a "like violation" to another Massachusetts sex offense, rape and abuse of a child.
4 G. L. c. 265, § 13B. The elements of this crime "are an
intentional touching (1) that is harmful or offensive and
committed without justification or excuse; (2) that is indecent
(i.e., that offends contemporary standards of decency and moral
values); and (3) that is committed on a child under the age of
fourteen." Doe No. 151564, 456 Mass. at 616. The Massachusetts
statute governing "attempt" states that "[w]hoever attempts to
commit a crime by doing any act toward its commission, but fails
in its perpetration, or is intercepted or prevented in its
perpetration, shall . . . be punished." G. L. c. 274, § 6.
Comparing these elements, we conclude that the Arizona
offense of sexual conduct with a minor is sufficiently similar
to the Massachusetts offense of indecent assault and battery on
a child under the age of fourteen to constitute a "like
violation." Both statutes criminalize intentionally engaging in
sexual contact with a minor. We are unpersuaded by 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-839
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527402
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe (Doe), appeals from a Superior
Court judgment affirming the Sex Offender Registry Board's
(board) classification of Doe as a level three sex offender.
Doe argues that he is not required to register as a sex offender
because his index offenses, convictions in Arizona of attempted
sexual conduct with a minor, are not "like violations" to one of
the enumerated sex offenses in G. L. c. 6, § 178C. He also
argues that the evidence is insufficient to support a level
three classification. We affirm.
Background. In August 1997 Doe's then wife reported to
Arizona police that she had walked in on him and her six year
old daughter (Doe's stepdaughter) in the bedroom. Doe, who was then twenty-six years old, was naked with an erection, and the
child was sitting on the floor wearing underwear and a T-shirt.
The child told the mother that Doe was "trying to make [her]
hole bigger." During the ensuing investigation, the child
reported that Doe would "lick [her] and put his front in [her]
bottom," telling her that "he wanted to make her bottom 'wider'
so that when she went to the bathroom it wouldn't hurt." The
child further reported that Doe stuck his tongue in her "front,"
forced his penis into her mouth, and showed her pictures that by
her description were pornographic. The child made statements
suggesting that the abuse had occurred over several months.
In February 1998 Doe pleaded guilty in an Arizona court to
two counts of attempted sexual conduct with a minor, in
violation of Ariz. Rev. Stat. Ann. § 13-1405, for his abuse of
his stepdaughter. He was sentenced to thirteen years of
incarceration and lifetime probation.
In May 2020 the board notified Doe, who had since moved to
Massachusetts, of his duty to register as a level three sex
offender. After requesting a de novo hearing before a hearing
examiner, Doe moved to dismiss the proceedings on the ground
that the Arizona crime of attempted sexual conduct with a minor
is not a "like violation" to a Massachusetts sex offense under
G. L. c. 6, § 178C. The hearing examiner denied the motion,
2 concluding that the Arizona offense is a "like violation" to the
Massachusetts offense of attempted indecent assault and battery
on a child under the age of fourteen. See G. L. c. 265, § 13B;
G. L. c. 274, § 6. The hearing examiner then found that the
board sustained its burden of proving by clear and convincing
evidence that Doe's risk to reoffend and degree of dangerousness
were high, warranting a level three classification. On judicial
review under G. L. c. 30A, § 14, a Superior Court judge affirmed
the board's decision.
Discussion. 1. Like violation. The sex offender registry
law requires individuals to register with the board if they live
in Massachusetts and have been convicted of an enumerated sex
offense "or a like violation of the laws of another state."
G. L. c. 6, § 178C. "A 'like violation' is a conviction in
another jurisdiction of an offense of which the elements are the
same or nearly the same as an offense requiring registration in
Massachusetts." Doe, Sex Offender Registry Bd. No. 151564 v.
Sex Offender Registry Bd., 456 Mass. 612, 615 (2010) (Doe No.
151564). We determine whether a conviction in another
jurisdiction is a "like violation" by looking at the elements of
the respective offenses, and not the offender's underlying
conduct. See id. 619. The out-of-State offense need not have
"precisely the same" elements as a Massachusetts sex offense,
3 however, to qualify as a "like violation." Id. at 616. Rather,
the out-of-State offense can constitute a "like violation" if it
prohibits "essentially the same conduct" as a Massachusetts sex
offense. Id. at 617. See Doe, Sex Offender Registry Bd. No.
36870 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 246, 251
(2019) (Doe No. 36870).
Here, we agree with the hearing examiner's determination
that the Arizona offense of attempted sexual conduct with a
minor is a "like violation" to the Massachusetts offense of
attempted indecent assault and battery on a child under the age
of fourteen.1 In Arizona "[a] person commits sexual conduct with
a minor by intentionally or knowingly engaging in sexual
intercourse or oral sexual contact with any person who is under
eighteen years of age." Ariz. Rev. Stat. Ann. § 13-1405(A).
The Arizona crime of "attempt" includes "[i]ntentionally do[ing]
or omit[ting] to do anything which, under the circumstances as
[the] person believes them to be, is any step in a course of
conduct planned to culminate in commission of an offense."
Ariz. Rev. Stat. Ann. § 13-1001(A)(2).
In Massachusetts "[w]hoever commits an indecent assault and
battery on a child under the age of 14 shall be punished."
1 We therefore do not address the board's argument on appeal that the Arizona offense is a "like violation" to another Massachusetts sex offense, rape and abuse of a child.
4 G. L. c. 265, § 13B. The elements of this crime "are an
intentional touching (1) that is harmful or offensive and
committed without justification or excuse; (2) that is indecent
(i.e., that offends contemporary standards of decency and moral
values); and (3) that is committed on a child under the age of
fourteen." Doe No. 151564, 456 Mass. at 616. The Massachusetts
statute governing "attempt" states that "[w]hoever attempts to
commit a crime by doing any act toward its commission, but fails
in its perpetration, or is intercepted or prevented in its
perpetration, shall . . . be punished." G. L. c. 274, § 6.
Comparing these elements, we conclude that the Arizona
offense of sexual conduct with a minor is sufficiently similar
to the Massachusetts offense of indecent assault and battery on
a child under the age of fourteen to constitute a "like
violation." Both statutes criminalize intentionally engaging in
sexual contact with a minor. We are unpersuaded by Doe's
assertion that the crimes are not sufficiently similar because
"conduct like kissing" would not be prohibited by the Arizona
statute but could violate the Massachusetts statute. An act
that would be prohibited by the Arizona statute, i.e., "sexual
intercourse" or "oral sexual contact" with a minor, would
plainly also qualify as an indecent touching of a minor in
5 Massachusetts.2 Thus, "[a]n individual convicted under the
[Arizona] statute who committed the same act in Massachusetts
could be convicted under the Massachusetts statute and
thereafter would be subject to the requirement of sex offender
registration in the Commonwealth." Doe No. 151564, 456 Mass. at
618. That the Massachusetts statute "prohibits more conduct"
than the Arizona statute does not render the crimes dissimilar.
Id. For the same reason, we are unpersuaded by Doe's argument
that the crimes are dissimilar because the Arizona statute has a
higher mens rea requirement than the Massachusetts statute.
Doe also points to the differences in the statutes
regarding the age at which a child is unable to consent.
Specifically, he asserts, without citation, that "[i]n Arizona a
minor under age 18 is unable to consent to sexual conduct," but
see Ariz. Rev. Stat. Ann. § 13-1407(F), "whereas in
Massachusetts proof a minor aged 14 or over did not consent is
required." This argument is foreclosed by Doe No. 36870, 96
Mass. App. Ct. at 253, in which we held that the out-of-State
offense was a "like violation" to the Massachusetts offense of
indecent assault and battery on a child under the age of
The Arizona statute defines "sexual intercourse" as 2
"penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva" and "oral sexual contact" as "oral contact with the penis, vulva or anus." Ariz. Rev. Stat. Ann. § 13-1401(A).
6 fourteen, even though the statutes "define[d] differently the
age whereby a child is unable to consent." In so concluding, we
underscored that "a technical comparison of crimes which are, in
all other respects, 'essen[tially] . . . the same' is not what
the Legislature intended when it passed the sex offender
registry law." Id., quoting Doe No. 151564, 456 Mass. at 615.
We likewise disagree with Doe's argument that his offenses
were not "like violations" because of differences in the Arizona
and Massachusetts crimes of attempt. The Arizona statute
defines attempt in three different ways. See Ariz. Rev. Stat.
Ann. § 13-1001(A). Doe focuses on only the first definition
while disregarding the second, which, as mentioned, provides
that a person commits attempt by intentionally taking "any step
in a course of conduct planned to culminate in commission of an
offense." Ariz. Rev. Stat. Ann. § 13-1001(A)(2). That
provision is essentially the same as the Massachusetts statute
criminalizing "attempt[ing] to commit a crime by doing any act
toward its commission, but fail[ing] in its perpetration."
G. L. c. 274, § 6.
At oral argument Doe claimed that the second definition of
attempt in the Arizona statute differs from the Massachusetts
statute because Arizona follows the model penal code approach,
whereas Massachusetts follows the proximity approach. But Doe's
7 brief does not address the second definition in the Arizona
statute at all, let alone develop any argument regarding it.
The issue is therefore waived. See Mass. R. A. P. 16 (a) (9),
as appearing in 481 Mass. 1628 (2019).
We note also that Doe's suggestion at oral argument that
one could be found guilty of attempt in Arizona merely by
thinking about committing a crime is implausible and contrary to
the language of the statute, which requires the taking of a
"step" toward the commission of a crime. Ariz. Rev. Stat. Ann.
§ 13-1001(A)(2). Moreover, if Arizona follows the model penal
code as Doe claims, an attempt would require the taking of a
"substantial step" toward the commission of a crime. Model
Penal Code § 5.01 (1) (c). In any event, we need not delve on
our own into how the Arizona courts might define attempt in some
"hypothetical set of circumstances"; we evaluate only "the
'essence' of the crimes for sufficient similarity."
Commonwealth v. Bell, 83 Mass. App. Ct. 82, 88 (2013). We
therefore cannot relieve Doe of his duty to register based on
the hypothetical possibility that "the greater stringency with
which Massachusetts defines an attempt [could] lead to an
acquittal in the Commonwealth for behavior identical to that
resulting in [an Arizona] conviction." Id. at 87.
8 2. Substantial evidence. Doe next argues that the board's
decision to classify him as a level three sex offender is
unsupported by substantial evidence. 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). The board must "prove
the appropriateness of an offender's risk classification by
clear and convincing evidence." Doe, Sex Offender Registry Bd.
No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298
(2015).
Substantial evidence supports the hearing examiner's
determination that the board met its burden in this case. In
arguing otherwise, Doe claims that his index sex offenses did
not involve penetration. That is incorrect. Although Doe's
index offenses were for attempt, the hearing examiner found that
there was reliable and credible evidence that Doe actually and
repeatedly raped and indecently touched the six year old victim
over a three-month period. The hearing examiner gave a detailed
explanation for this finding, which is supported by the record.
In addition, the hearing examiner cited evidence of other
sexual misconduct committed by Doe against a second victim in
1996. The victim, a thirteen year old babysitter, reported to
9 Arizona police that Doe touched her breasts under her clothes
and her vagina on top of her clothes on five different
occasions. The victim further reported that Doe gave her and
her friends alcohol and cigarettes. Two of the victim's friends
witnessed Doe kissing and touching her breasts and corroborated
her account that Doe gave them alcohol, as well as marijuana.
Another friend witnessed Doe kissing the victim and fondling her
breasts and told police that she had seen Doe and the victim
"making out" on other occasions. Although Doe was not charged
with any crimes for these sexual assaults, the hearing examiner
found that there was reliable and credible evidence that the
assaults occurred, given the level of detail in the victim's and
witnesses' accounts. Doe does not challenge this finding on
appeal.
The hearing examiner also considered evidence that, while
Doe was on probation in 2014, Arizona police found pornographic
materials on his cell phone, including an image of the genital
area of a girl under the age of fifteen, a video depicting the
vagina of a girl under the age of fifteen being penetrated by an
adult penis, a video depicting a penis ejaculating on children's
underwear, and several thumbnail images showing minors engaging
in sex acts. Doe was later arrested and charged in Arizona with
two counts of sexual exploitation of a minor. Although the
10 charges were ultimately dismissed, the hearing examiner found
that there was reliable and credible evidence that Doe possessed
child pornography. Again, Doe does not challenge the hearing
examiner's finding on appeal.
The index offenses and Doe's other sexual misconduct
triggered the application of two statutory high-risk factors:
factor 2 (repetitive and compulsive behavior) and factor 3
(adult offender and child victims). The hearing examiner also
applied several risk-elevating factors, including factor 18
(extravulnerable victims), factor 19 (level of physical contact,
factor 20 (diverse sexual behavior), factor 21 (diverse victim
type), and factor 13 (noncompliance with community supervision).
Although the hearing examiner gave moderate weight to the
mitigating fact that Doe had eight years of offense-free time in
the community, he ultimately concluded that this did not
outweigh the numerous high-risk and risk-elevating factors. The
hearing examiner's detailed reasoning demonstrates that he
carefully weighed the factors and that the level three
classification was "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.
356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 299
(2021), quoting Doe, Sex Offender Registry Bd. No. 136652 v. Sex
11 Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012).
Substantial evidence supports the hearing examiner's decision.
See Doe No. 10800, 459 Mass. at 637.
Judgment affirmed.
By the Court (Blake, C.J., Shin & Hand, JJ.3),
Clerk
Entered: February 11, 2025.
3 The panelists are listed in order of seniority.