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-1421
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527515
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a judgment entered in
the Superior Court affirming his final classification by the Sex
Offender Registry Board (board) as a level two sex offender. He
claims that the board's decision is not supported by substantial
evidence and was arbitrary and capricious because the hearing
examiner engaged in a perfunctory, mechanical approach, rather
than conduct a thorough analysis of the applicable statutory and
regulatory factors. Doe also argues that because, in his view,
the board's case was weak, his liberty and privacy interests
outweighed the need for Internet publication of his registry
information. We affirm. Background. We summarize Doe's predicate sexual offenses
as follows. In July 2018, the mother of Doe's daughter reported
to the Department of Children and Families and the police that
Doe had touched the daughter inappropriately when she was
between seven and nine years old. In a subsequent forensic
interview, the daughter, who was then fourteen years old,
recalled that Doe "touch[ed] her in [in]appropriate places,"
telling her that "[e]verything will be fine. It's our little
secret." More specifically, the daughter remembered that Doe
put his mouth on her vagina, and on another occasion, he
penetrated her vagina with his fingers. On August 28, 2018, Doe
was charged with indecent assault and battery on a child under
the age of fourteen. Doe was extradited from Puerto Rico and
pleaded guilty to the charged offense on March 4, 2020. He was
sentenced to a term of eighteen months in the house of
correction, suspended with probation for three years.
Before Doe entered the change of plea described above, he
sexually assaulted his niece. On January 25, 2020, Doe, who had
just arrived from Puerto Rico, visited his twenty-five year old
niece at her home. Doe brought two bottles of alcohol, the two
became inebriated, and, as the niece later told the police, Doe
became violent. Doe slapped her with an open hand while
penetrating her mouth and vagina with his penis, and he choked
her until she couldn't breathe, also while penetrating her with
2 his penis. Doe initially was charged with rape, strangulation,
and indecent assault and battery on a person aged fourteen years
or older. Ultimately, on February 7, 2022, Doe pleaded guilty
to one count of indecent assault and battery and was sentenced
to a three-year term of probation.1
On April 7, 2022, the board notified Doe that it
recommended that he register as a level three sex offender. Doe
requested a hearing, which was held on September 30, 2022.
Thereafter, after considering all applicable statutory and
regulatory factors, the hearing examiner concluded that Doe
presented as a moderate risk offender and classified him as a
level two sex offender. The hearing examiner further concluded
that Internet publication of Doe's registry information would
serve an important public safety interest. Doe then appealed to
the Superior Court where, as noted, a judge affirmed the board's
classification.
Discussion. "We review a judge's consideration of an
agency decision de novo." Doe, Sex Offender Registry Bd. No.
523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89
(2019) (Doe No. 523391). Our review of the board's decision is
limited, and we will not disturb the board's classification
1 Doe also has a history of drug and alcohol abuse and a minor nonsexual criminal history consisting of one charge of assault and battery, which was dismissed, and property crimes such as uttering a false check and larceny.
3 unless "we determine that the decision is unsupported by
substantial evidence or is arbitrary or capricious, an abuse of
discretion, or not in accordance with law." Doe, Sex Offender
Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.
603, 633 (2011). In reviewing the board's decision, "[w]e 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 No. 523391, supra at 88.
Doe argues that the board's decision was arbitrary and
capricious because the hearing examiner's analysis was so
perfunctory he "could have just as easily found Doe a level 1
(low risk) or level 3 (high risk) offender." Before addressing
the merits of this argument, we first consider the board's
assertion that Doe waived his claim that the classification
decision was based on a mechanical checklist of factors because
he failed to make this argument in his appeal to the Superior
Court. The board is correct that Doe did not previously advance
this precise argument. Consequently, we agree that the argument
is waived. See Doe, Sex Offender Registry Bd. No. 3974 v. Sex
Offender Registry Bd., 457 Mass. 53, 57-58 (2010). That said,
although waived, we have reviewed the record to determine
whether the hearing examiner engaged in a qualitative and
objective analysis that balanced all the relevant risk factors,
4 and whether the classification is fully supported by the
evidence.
First, the hearing examiner evaluated the various risk
factors that applied in this case. He found that Doe's sexual
assaults of his niece, which occurred while he was being
investigated for committing sexual offenses against his
daughter, supported the application of two high-risk factors
with increased weight: factor 2 (repetitive and compulsive
behavior) and factor 3 (adult offender and child victim). The
hearing examiner also found that Doe's sexual assaults of his
niece supported the application of two risk-elevating factors:
factor 8 (weapons, violence, or infliction of bodily injury) and
factor 19 (level of physical contact). In addition, the hearing
examiner considered the personal trauma that Doe's daughter and
niece suffered as a result of Doe's sexual assaults, see factor
38 (victim impact statement). The hearing examiner then applied
factor 18 (extravulnerable victim) because the daughter was
under the age of eight when Doe began to sexually abuse her. He
further concluded that Doe's sexual assaults against a
prepubescent child and an adult woman supported the application
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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-1421
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527515
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a judgment entered in
the Superior Court affirming his final classification by the Sex
Offender Registry Board (board) as a level two sex offender. He
claims that the board's decision is not supported by substantial
evidence and was arbitrary and capricious because the hearing
examiner engaged in a perfunctory, mechanical approach, rather
than conduct a thorough analysis of the applicable statutory and
regulatory factors. Doe also argues that because, in his view,
the board's case was weak, his liberty and privacy interests
outweighed the need for Internet publication of his registry
information. We affirm. Background. We summarize Doe's predicate sexual offenses
as follows. In July 2018, the mother of Doe's daughter reported
to the Department of Children and Families and the police that
Doe had touched the daughter inappropriately when she was
between seven and nine years old. In a subsequent forensic
interview, the daughter, who was then fourteen years old,
recalled that Doe "touch[ed] her in [in]appropriate places,"
telling her that "[e]verything will be fine. It's our little
secret." More specifically, the daughter remembered that Doe
put his mouth on her vagina, and on another occasion, he
penetrated her vagina with his fingers. On August 28, 2018, Doe
was charged with indecent assault and battery on a child under
the age of fourteen. Doe was extradited from Puerto Rico and
pleaded guilty to the charged offense on March 4, 2020. He was
sentenced to a term of eighteen months in the house of
correction, suspended with probation for three years.
Before Doe entered the change of plea described above, he
sexually assaulted his niece. On January 25, 2020, Doe, who had
just arrived from Puerto Rico, visited his twenty-five year old
niece at her home. Doe brought two bottles of alcohol, the two
became inebriated, and, as the niece later told the police, Doe
became violent. Doe slapped her with an open hand while
penetrating her mouth and vagina with his penis, and he choked
her until she couldn't breathe, also while penetrating her with
2 his penis. Doe initially was charged with rape, strangulation,
and indecent assault and battery on a person aged fourteen years
or older. Ultimately, on February 7, 2022, Doe pleaded guilty
to one count of indecent assault and battery and was sentenced
to a three-year term of probation.1
On April 7, 2022, the board notified Doe that it
recommended that he register as a level three sex offender. Doe
requested a hearing, which was held on September 30, 2022.
Thereafter, after considering all applicable statutory and
regulatory factors, the hearing examiner concluded that Doe
presented as a moderate risk offender and classified him as a
level two sex offender. The hearing examiner further concluded
that Internet publication of Doe's registry information would
serve an important public safety interest. Doe then appealed to
the Superior Court where, as noted, a judge affirmed the board's
classification.
Discussion. "We review a judge's consideration of an
agency decision de novo." Doe, Sex Offender Registry Bd. No.
523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89
(2019) (Doe No. 523391). Our review of the board's decision is
limited, and we will not disturb the board's classification
1 Doe also has a history of drug and alcohol abuse and a minor nonsexual criminal history consisting of one charge of assault and battery, which was dismissed, and property crimes such as uttering a false check and larceny.
3 unless "we determine that the decision is unsupported by
substantial evidence or is arbitrary or capricious, an abuse of
discretion, or not in accordance with law." Doe, Sex Offender
Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.
603, 633 (2011). In reviewing the board's decision, "[w]e 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 No. 523391, supra at 88.
Doe argues that the board's decision was arbitrary and
capricious because the hearing examiner's analysis was so
perfunctory he "could have just as easily found Doe a level 1
(low risk) or level 3 (high risk) offender." Before addressing
the merits of this argument, we first consider the board's
assertion that Doe waived his claim that the classification
decision was based on a mechanical checklist of factors because
he failed to make this argument in his appeal to the Superior
Court. The board is correct that Doe did not previously advance
this precise argument. Consequently, we agree that the argument
is waived. See Doe, Sex Offender Registry Bd. No. 3974 v. Sex
Offender Registry Bd., 457 Mass. 53, 57-58 (2010). That said,
although waived, we have reviewed the record to determine
whether the hearing examiner engaged in a qualitative and
objective analysis that balanced all the relevant risk factors,
4 and whether the classification is fully supported by the
evidence.
First, the hearing examiner evaluated the various risk
factors that applied in this case. He found that Doe's sexual
assaults of his niece, which occurred while he was being
investigated for committing sexual offenses against his
daughter, supported the application of two high-risk factors
with increased weight: factor 2 (repetitive and compulsive
behavior) and factor 3 (adult offender and child victim). The
hearing examiner also found that Doe's sexual assaults of his
niece supported the application of two risk-elevating factors:
factor 8 (weapons, violence, or infliction of bodily injury) and
factor 19 (level of physical contact). In addition, the hearing
examiner considered the personal trauma that Doe's daughter and
niece suffered as a result of Doe's sexual assaults, see factor
38 (victim impact statement). The hearing examiner then applied
factor 18 (extravulnerable victim) because the daughter was
under the age of eight when Doe began to sexually abuse her. He
further concluded that Doe's sexual assaults against a
prepubescent child and an adult woman supported the application
of factors 21 (diverse victim type) and 22 (number of victims).
Doe's assaults against his niece while he was on bail for
another offense justified the application of factor 13
(noncompliance with community supervision) with increased
5 weight; and Doe's history of substance abuse, and the fact he
was consuming alcohol when he sexually assaulted his niece,
warranted the application of factor 9 (alcohol and substance
abuse). Lastly, Doe's prior nonsexual criminal history, while
not significant, supported application of factor 10 (contact
with the criminal justice system) and factor 11 (violence
unrelated to sexual assaults), with minimal aggravating weight.
The hearing examiner then applied several risk-mitigating
factors. He determined that factor 28 (supervision by probation
or parole) applied with only moderate weight. The hearing
examiner explained that although Doe was complying with his
conditions of probation at the time of the hearing, it was
appropriate to give this factor moderate weight because Doe
sexually assaulted his niece while the charge involving his
daughter was pending. The hearing examiner also applied factor
30 (advanced age) and gave it minimal weight because while Doe
was forty years old at the time of the hearing, the risk of
recidivism for offenders of child victims begins to decline
substantially when the offender reaches sixty years of age. The
hearing examiner applied factor 32 (sex offender treatment) with
moderate weight because Doe's treatment progress was slow.
Although Doe participated in sex offender treatment with some
success, he had not completed treatment at the time of his
hearing.
6 The evidence fully supported application of all these risk
factors. Furthermore, where warranted, the hearing examiner
explained the factual basis for the application of each factor.
In sum, contrary to Doe's assertions, his sex offenses, when
considered together with his substance abuse and nonsexual
criminal history, albeit minor, established that Doe poses a
moderate risk to reoffend and a moderate danger to the public,
and as a result, was properly classified as a level two sex
offender.
We further conclude that the hearing examiner engaged in
the required analysis in determining that Internet publication
of Doe's registry information serves a public interest.
Contrary to Doe's assertion, the fact that Doe is related to
both victims does not obviate the need for public dissemination.
Doe's claim that he is an "incest offender" and therefore poses
no risk to the public ignores the deviant nature of his crimes
against his daughter and the violent nature of his crimes
against his niece. We agree with the board that Doe's multiple
sexual assaults against his daughter proved that he was more
likely to have a deviant sexual interest, and that his violent
rapes of his adult niece were "indicative of his sexual arousal
to violence or an antisocial orientation," which further
elevated his risk and danger. Given these circumstances, the
hearing examiner properly determined that Internet publication
7 of Doe's sex offender registration information serves a public
safety interest of, among other things, permitting women and
caretakers of children to avoid Doe's location given their
knowledge of the nature of his crimes.
Judgment affirmed.
By the Court (Vuono, Singh & Hershfang, JJ.2),
Clerk
Entered: March 14, 2025.
2 The panelists are listed in order of seniority.