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-628
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527440
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment that affirmed his final classification by the Sex
Offender Registry Board (SORB) as a level two sex offender.
Because we discern no error in the SORB hearing examiner's
weighing of the relevant factors or in her conclusion that
Internet dissemination of Doe's sex offender registry
information served a public safety interest, we affirm.
1. Discussion. a. 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), quoting G. L. c. 30A, § 1 (6). "We give due weight to
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).
b. Weight of factors 7 and 19. Doe argues that the
hearing examiner abused her discretion in weighing factors 7
(relationship between offender and victim) and 19 (level of
physical contact). To support a level two sex offender
classification, SORB must prove "by clear and convincing
evidence, that '(1) the offender's risk of reoffense is
moderate; (2) the offender's dangerousness is moderate; and (3)
a public safety interest is served by Internet publication of
the offender's registry information.'" Doe, Sex Offender
Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass.
131, 138 (2019) (Doe No. 23656), quoting Doe No. 496501, 482
Mass. at 656. Whether to apply a given statutory or regulatory
factor and, if so, the weight to be accorded to that factor are
questions within the hearing examiner's discretion. See Doe,
2 Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry
Bd., 470 Mass. 102, 109-110 (2014).
Here, the hearing examiner applied factor 7 (relationship
between offender and victim) with "greater weight." In support
of this determination, the examiner found that Doe was in a
"position of trust" with the victim at the time of the sexual
assault because Doe had been the victim's cello instructor,
music director, and "mentor" the summer before committing the
index offenses against the child victim (child), and he had
continued to socialize with the child and the child's family in
the interim. The examiner also noted that the risk of reoffense
and degree of dangerousness posed by Doe were elevated because
the child was an "extrafamilial victim." Accordingly, the
examiner's application of "greater weight" to this risk-
elevating factor was supported by the evidence. We are not
persuaded that in the circumstances, Doe's trust relationship
with the child terminated with the conclusion of Doe's role as
the child's music instructor and theater supervisor, or that the
hearing examiner misapplied factor 7.
As to factor 19, the hearing examiner found that it applied
because Doe penetrated the child's vagina digitally and with his
3 tongue.1 Accordingly, the hearing examiner applied this factor
"regarding dangerousness," and implicitly limited the weight she
gave to it based on the lack of penile penetration involved in
Doe's sexual assault on the child.2 We are not persuaded by
Doe's contention that in her assessment of the evidence relevant
to this factor, the hearing examiner failed to consider a study
that Doe submitted. First, the examiner's findings explicitly
state that she did consider the article. Second, to the extent
that Doe challenges the weight ascribed by the hearing examiner
to that article,3 we discern no abuse of discretion. This is
because the article focused on sex offenders' risk of
recidivism, while factor 19 explicitly goes to an offender's
dangerousness -- even if the examiner gave the article no
weight, her decision was not an abuse of discretion. See Doe
No. 23656, 483 Mass. at 135 n.4; 803 Code Mass. Regs.
§ 1.33(19)(a) (2016).
1 The hearing examiner also found that Doe licked the child's breasts, but did not include that finding in the discussion of factor 19. 2 When describing the governing sex offense, the hearing officer
found that the child refused Doe's request that the child put Doe's penis in the child's mouth. 3 The hearing examiner noted that as to the articles Doe
submitted, "I give those articles appropriate weight in consideration of the superintendence of the Board's regulations . . . and accordingly, only to the extent the findings are consistent with those regulations."
4 Doe's challenge to the level two classification is not
persuasive where the hearing examiner made an evenhanded
assessment of the evidence. On the one hand, the examiner found
that one high-risk factor applied where Doe offended as an adult
against a child victim (factor 3), the risk of reoffense and the
level of dangerousness were elevated by the trust relationship
between Doe and his extrafamilial victim (factor 7), and Doe's
physical contact with the child increased Doe's dangerousness
(factor 19). Against this, the hearing examiner considered in
mitigation Doe's period of postincarceration probation
supervision (factor 28), the possibility that Doe might
establish a stable and supportive home situation if he were
permitted to leave Massachusetts after his release from prison
(factors 33 and 34), and (to the extent it was consistent with
the Board's regulations) research bearing on recidivism and
dangerousness among sex offenders (factor 37). The hearing
examiner's findings were supported by the evidence and reflected
the examiner's qualitative assessment of the relevant regulatory
factors; the "examiner did not merely list these factors," but
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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-628
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527440
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment that affirmed his final classification by the Sex
Offender Registry Board (SORB) as a level two sex offender.
Because we discern no error in the SORB hearing examiner's
weighing of the relevant factors or in her conclusion that
Internet dissemination of Doe's sex offender registry
information served a public safety interest, we affirm.
1. Discussion. a. 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), quoting G. L. c. 30A, § 1 (6). "We give due weight to
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).
b. Weight of factors 7 and 19. Doe argues that the
hearing examiner abused her discretion in weighing factors 7
(relationship between offender and victim) and 19 (level of
physical contact). To support a level two sex offender
classification, SORB must prove "by clear and convincing
evidence, that '(1) the offender's risk of reoffense is
moderate; (2) the offender's dangerousness is moderate; and (3)
a public safety interest is served by Internet publication of
the offender's registry information.'" Doe, Sex Offender
Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass.
131, 138 (2019) (Doe No. 23656), quoting Doe No. 496501, 482
Mass. at 656. Whether to apply a given statutory or regulatory
factor and, if so, the weight to be accorded to that factor are
questions within the hearing examiner's discretion. See Doe,
2 Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry
Bd., 470 Mass. 102, 109-110 (2014).
Here, the hearing examiner applied factor 7 (relationship
between offender and victim) with "greater weight." In support
of this determination, the examiner found that Doe was in a
"position of trust" with the victim at the time of the sexual
assault because Doe had been the victim's cello instructor,
music director, and "mentor" the summer before committing the
index offenses against the child victim (child), and he had
continued to socialize with the child and the child's family in
the interim. The examiner also noted that the risk of reoffense
and degree of dangerousness posed by Doe were elevated because
the child was an "extrafamilial victim." Accordingly, the
examiner's application of "greater weight" to this risk-
elevating factor was supported by the evidence. We are not
persuaded that in the circumstances, Doe's trust relationship
with the child terminated with the conclusion of Doe's role as
the child's music instructor and theater supervisor, or that the
hearing examiner misapplied factor 7.
As to factor 19, the hearing examiner found that it applied
because Doe penetrated the child's vagina digitally and with his
3 tongue.1 Accordingly, the hearing examiner applied this factor
"regarding dangerousness," and implicitly limited the weight she
gave to it based on the lack of penile penetration involved in
Doe's sexual assault on the child.2 We are not persuaded by
Doe's contention that in her assessment of the evidence relevant
to this factor, the hearing examiner failed to consider a study
that Doe submitted. First, the examiner's findings explicitly
state that she did consider the article. Second, to the extent
that Doe challenges the weight ascribed by the hearing examiner
to that article,3 we discern no abuse of discretion. This is
because the article focused on sex offenders' risk of
recidivism, while factor 19 explicitly goes to an offender's
dangerousness -- even if the examiner gave the article no
weight, her decision was not an abuse of discretion. See Doe
No. 23656, 483 Mass. at 135 n.4; 803 Code Mass. Regs.
§ 1.33(19)(a) (2016).
1 The hearing examiner also found that Doe licked the child's breasts, but did not include that finding in the discussion of factor 19. 2 When describing the governing sex offense, the hearing officer
found that the child refused Doe's request that the child put Doe's penis in the child's mouth. 3 The hearing examiner noted that as to the articles Doe
submitted, "I give those articles appropriate weight in consideration of the superintendence of the Board's regulations . . . and accordingly, only to the extent the findings are consistent with those regulations."
4 Doe's challenge to the level two classification is not
persuasive where the hearing examiner made an evenhanded
assessment of the evidence. On the one hand, the examiner found
that one high-risk factor applied where Doe offended as an adult
against a child victim (factor 3), the risk of reoffense and the
level of dangerousness were elevated by the trust relationship
between Doe and his extrafamilial victim (factor 7), and Doe's
physical contact with the child increased Doe's dangerousness
(factor 19). Against this, the hearing examiner considered in
mitigation Doe's period of postincarceration probation
supervision (factor 28), the possibility that Doe might
establish a stable and supportive home situation if he were
permitted to leave Massachusetts after his release from prison
(factors 33 and 34), and (to the extent it was consistent with
the Board's regulations) research bearing on recidivism and
dangerousness among sex offenders (factor 37). The hearing
examiner's findings were supported by the evidence and reflected
the examiner's qualitative assessment of the relevant regulatory
factors; the "examiner did not merely list these factors," but
instead "provided a detailed account of the evidence she
considered and an explanation of the relative weight that she
assigned each factor." Doe No. 23656, 483 Mass. at 143.
Considered together, the statutory and regulatory risk factors
established that Doe presented a moderate risk of reoffense and
5 a moderate degree of dangerousness. See Doe, Sex Offender
Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass.
App. Ct. 639, 651 (2012) (no error where sex offender's
classification based on "a sound exercise of informed discretion
rather than the mechanical application of a checklist"). See
also Doe No. 23656, supra at 138-139.
c. Internet dissemination. After applying the statutory
and regulatory factors to the facts of Doe's case, the hearing
examiner properly moved on to the third and final step of the
classification process: determination of the need for Internet
publication of Doe's sex offender registry information. See Doe
No. 496501, 482 Mass. at 654, citing 803 Code Mass. Regs.
§ 1.20(2) (2016). In making her assessment, the examiner
properly considered "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."
Doe No. 496501, supra, at 655. As reflected in her written
decision, the examiner found that Doe's index offense was
committed against a child, involved penetration of the child's
vagina with Doe's fingers and tongue, and was effected by Doe's
exploitation of a trust relationship with the victim. She also
took into account Doe's plans to leave Massachusetts if
permitted to do so and the five-year term of his probation (and,
6 inferentially, its attendant conditions) after his release from
prison. Against that backdrop, the hearing examiner determined
that Internet publication of Doe's sex offender information
would serve the interest of public safety by alerting parents to
the need to protect their children from forming the "trusting
relationship[s]" with Doe that he exploited in committing the
index offenses. We discern no error in this conclusion and
affirm Doe's classification as a level two sex offender.
Judgment affirmed.
By the Court (Desmond, Hand & Hodgens, JJ.4),
Clerk
Entered: October 20, 2023.
4 The panelists are listed in order of seniority.