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-430
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527664
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his final classification by the Sex Offender
Registry Board (SORB or board) as a level two sex offender. Doe
argues that the hearing examiner (examiner): (1) abused his
discretion by considering hearsay evidence that lacked indicia
of reliability; (2) abused his discretion by misapplying
relevant risk-elevating factors and failing to apply and weigh
relevant risk-mitigating factors; and (3) erred in rejecting
Doe's expert witness opinion testimony. We affirm.
Background. On October 12, 2018, a twenty-seven year old
woman (hereinafter, the victim) reported to the Brewster police
department that Doe, age thirty-five at the time, sexually
assaulted her while she was at work. Doe and the victim worked
together at a farm. In her statements to the police (contained in police reports in evidence), the victim explained that around
11:30 A.M. on October 10, 2018, she was on her hands and knees
working the irrigation lines at the farm when she heard someone,
identified as Doe, "coming up directly behind her." She
reported that Doe "put his left hand over [her] mouth . . . then
used his other hand to grab [her] right arm and pulled it behind
her back." Doe then pinned the victim to the ground, "pulled
[her] pants down and tried to have sex with [her]." The victim
stated that Doe "was struggling to penetrate her vagina with his
penis, but that she could feel him trying." Doe "was having a
hard time with it and he did not finish." The victim tried to
tell him that she was menstruating, hoping it would make him
stop. Eventually, Doe "got frustrated" and walked away saying,
"[I]t wasn't worth it anyways." Immediately after the assault,
the victim saw Doe leave work in a gray Chevrolet pickup truck
"that he usually drives." When asked about potential witnesses
to the attack, the victim stated that no one else on the farm
was in the area at the time, but that she told her aunt about
the assault one day after the incident.
The victim spoke with the police again about three months
after she first reported the incident. In this second
interview, the victim again stated that Doe was "having a hard
time" penetrating her during the assault. She also confirmed
that after she told him that she was menstruating to try to stop
2 the attack, Doe anally penetrated her. The victim stated that
on October 12, she had told her primary care physician that she
was anally raped.
Doe pleaded guilty to one count of assault with intent to
commit rape and one count of indecent assault and battery on a
person over fourteen, and received a sentence of two years in
the house of correction with three years of probation to be
served from and after. One count of rape was nol prossed due to
"insufficient evidence of penetration element to sustain burden
of proof beyond a reasonable doubt."
In May 2021, SORB notified Doe of his duty to register as a
level three sex offender. Doe requested a hearing, which was
held on October 22, 2021, and November 22, 2021. At the
hearing, Doe presented, inter alia, the testimony of expert
witness Dr. Leonard Bard, and a letter from Doe's psychiatrist,
Dr. Oliver Freudenreich. Subsequently, the examiner issued a
written decision classifying Doe as a level two sex offender.
Doe sought judicial review of that decision, see G. L. c. 30A,
§ 14, and, following a hearing on Doe's motion for judgment on
the pleadings, a Superior Court judge denied the motion and
affirmed the level two classification. This appeal followed.
Discussion. 1. Standard of review. A reviewing court may
set aside a decision of the board if it determines "that the
decision is unsupported by substantial evidence or is arbitrary
3 or capricious, an abuse of discretion, or not in accordance with
law" (citation omitted). Doe, Sex Offender Registry Bd. No.
22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801
(2022). The reviewing court shall "give due weight to the
experience, technical competence, and specialized knowledge of
the agency, as well as to the discretionary authority conferred
upon it." Doe, Sex Offender Registry Bd. No. 10216 v. Sex
Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L.
c. 30A, § 14 (7). Doe therefore "bears a heavy burden of
establishing that the [board]'s decision was incorrect"
(citation omitted). Doe, Sex Offender Registry Bd. No. 3177 v.
Sex Offender Registry Bd., 486 Mass. 749, 757 (2021) (Doe 3177).
2. Classification determination. a. Hearsay evidence.
Doe claims that the examiner abused his discretion in
considering hearsay evidence contained in the police reports.
We disagree. "A hearing examiner is not bound by the rules of
evidence applicable to court proceedings." Doe, Sex Offender
Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.
603, 638 (2011) (Doe 10800). See 803 Code Mass. Regs. § 1.18(1)
(2016). "In the context of a sex offender classification
hearing, hearsay evidence may be admissible if it bears
sufficient indicia of reliability." Doe, Sex Offender Registry
Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct.
85, 89 (2019) (Doe 523391). In evaluating whether hearsay
4 evidence is substantially reliable, "[f]actors that the examiner
should consider include 'the general plausibility and
consistency of the victim's or witness's story, the
circumstances under which it is related, the degree of detail,
the motives of the narrator, the presence or absence of
corroboration and the like.'" Id., quoting Doe, Sex Offender
Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass.
App. Ct. 73, 78 (2015) (Doe 356011). Where there is an
allegation of sexual misconduct that did not result in a
conviction for a sex offense, the examiner may consider the
facts underlying the charges where such facts are proven by a
preponderance of the evidence. See Doe 3177, 486 Mass. at 754-
755. This court, in turn, asks whether "'it was reasonable for
the examiner to admit and credit' the facts described in the
hearsay evidence." Doe 523391, supra, quoting Doe 356011, supra
at 77.
Here, the examiner found that the victim's statements made
to the police were reliable and contained sufficient detail to
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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-430
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527664
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his final classification by the Sex Offender
Registry Board (SORB or board) as a level two sex offender. Doe
argues that the hearing examiner (examiner): (1) abused his
discretion by considering hearsay evidence that lacked indicia
of reliability; (2) abused his discretion by misapplying
relevant risk-elevating factors and failing to apply and weigh
relevant risk-mitigating factors; and (3) erred in rejecting
Doe's expert witness opinion testimony. We affirm.
Background. On October 12, 2018, a twenty-seven year old
woman (hereinafter, the victim) reported to the Brewster police
department that Doe, age thirty-five at the time, sexually
assaulted her while she was at work. Doe and the victim worked
together at a farm. In her statements to the police (contained in police reports in evidence), the victim explained that around
11:30 A.M. on October 10, 2018, she was on her hands and knees
working the irrigation lines at the farm when she heard someone,
identified as Doe, "coming up directly behind her." She
reported that Doe "put his left hand over [her] mouth . . . then
used his other hand to grab [her] right arm and pulled it behind
her back." Doe then pinned the victim to the ground, "pulled
[her] pants down and tried to have sex with [her]." The victim
stated that Doe "was struggling to penetrate her vagina with his
penis, but that she could feel him trying." Doe "was having a
hard time with it and he did not finish." The victim tried to
tell him that she was menstruating, hoping it would make him
stop. Eventually, Doe "got frustrated" and walked away saying,
"[I]t wasn't worth it anyways." Immediately after the assault,
the victim saw Doe leave work in a gray Chevrolet pickup truck
"that he usually drives." When asked about potential witnesses
to the attack, the victim stated that no one else on the farm
was in the area at the time, but that she told her aunt about
the assault one day after the incident.
The victim spoke with the police again about three months
after she first reported the incident. In this second
interview, the victim again stated that Doe was "having a hard
time" penetrating her during the assault. She also confirmed
that after she told him that she was menstruating to try to stop
2 the attack, Doe anally penetrated her. The victim stated that
on October 12, she had told her primary care physician that she
was anally raped.
Doe pleaded guilty to one count of assault with intent to
commit rape and one count of indecent assault and battery on a
person over fourteen, and received a sentence of two years in
the house of correction with three years of probation to be
served from and after. One count of rape was nol prossed due to
"insufficient evidence of penetration element to sustain burden
of proof beyond a reasonable doubt."
In May 2021, SORB notified Doe of his duty to register as a
level three sex offender. Doe requested a hearing, which was
held on October 22, 2021, and November 22, 2021. At the
hearing, Doe presented, inter alia, the testimony of expert
witness Dr. Leonard Bard, and a letter from Doe's psychiatrist,
Dr. Oliver Freudenreich. Subsequently, the examiner issued a
written decision classifying Doe as a level two sex offender.
Doe sought judicial review of that decision, see G. L. c. 30A,
§ 14, and, following a hearing on Doe's motion for judgment on
the pleadings, a Superior Court judge denied the motion and
affirmed the level two classification. This appeal followed.
Discussion. 1. Standard of review. A reviewing court may
set aside a decision of the board if it determines "that the
decision is unsupported by substantial evidence or is arbitrary
3 or capricious, an abuse of discretion, or not in accordance with
law" (citation omitted). Doe, Sex Offender Registry Bd. No.
22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801
(2022). The reviewing court shall "give due weight to the
experience, technical competence, and specialized knowledge of
the agency, as well as to the discretionary authority conferred
upon it." Doe, Sex Offender Registry Bd. No. 10216 v. Sex
Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L.
c. 30A, § 14 (7). Doe therefore "bears a heavy burden of
establishing that the [board]'s decision was incorrect"
(citation omitted). Doe, Sex Offender Registry Bd. No. 3177 v.
Sex Offender Registry Bd., 486 Mass. 749, 757 (2021) (Doe 3177).
2. Classification determination. a. Hearsay evidence.
Doe claims that the examiner abused his discretion in
considering hearsay evidence contained in the police reports.
We disagree. "A hearing examiner is not bound by the rules of
evidence applicable to court proceedings." Doe, Sex Offender
Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.
603, 638 (2011) (Doe 10800). See 803 Code Mass. Regs. § 1.18(1)
(2016). "In the context of a sex offender classification
hearing, hearsay evidence may be admissible if it bears
sufficient indicia of reliability." Doe, Sex Offender Registry
Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct.
85, 89 (2019) (Doe 523391). In evaluating whether hearsay
4 evidence is substantially reliable, "[f]actors that the examiner
should consider include 'the general plausibility and
consistency of the victim's or witness's story, the
circumstances under which it is related, the degree of detail,
the motives of the narrator, the presence or absence of
corroboration and the like.'" Id., quoting Doe, Sex Offender
Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass.
App. Ct. 73, 78 (2015) (Doe 356011). Where there is an
allegation of sexual misconduct that did not result in a
conviction for a sex offense, the examiner may consider the
facts underlying the charges where such facts are proven by a
preponderance of the evidence. See Doe 3177, 486 Mass. at 754-
755. This court, in turn, asks whether "'it was reasonable for
the examiner to admit and credit' the facts described in the
hearsay evidence." Doe 523391, supra, quoting Doe 356011, supra
at 77.
Here, the examiner found that the victim's statements made
to the police were reliable and contained sufficient detail to
prove, by a preponderance of the evidence, 1 that Doe anally
On appeal, Doe argues that an examiner should use the 1
higher clear and convincing evidence standard, rather than the lower preponderance of the evidence standard, when considering hearsay evidence to make a determination concerning the governing offense. At oral argument, counsel for Doe cited Doe 3177, in support of this claim. 486 Mass. at 754-757 (petitioner challenged standard by which hearing examiner may consider subsidiary facts underlying charges when sex offense
5 penetrated her with his penis. 2 The victim's initial statement
to the police indicated that she could feel Doe trying to thrust
himself forward into her. It is arguable that this statement
allowed the examiner to make the reasonable inference that Doe's
thrusting into the victim's anal area resulted in some degree of
penetration. See 803 Code Mass. Regs. § 1.19(1)(h) (2016)
(duties and powers of examiner include assessing reliability of
exhibits introduced into evidence and drawing all reasonable
inferences therefrom). Later, however, more information was
presented on this issue. Specifically, in the second interview,
the victim's statement that Doe anally penetrated her confirmed
the degree of penetration. See Commonwealth v. Lopez, 433 Mass.
unproven at trial). However, because Doe makes this argument for the first time on appeal, it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ("An issue not raised or argued below may not be argued for the first time on appeal" [citation omitted]). Even if we were to consider this argument, it would be unavailing. Contrary to Doe's claim, Doe 3177, supra at 757, upholds the existing subsidiary fact standard: "[I]n the interest of accurately determining the risk of reoffense and dangerousness to the public, the board may consider subsidiary facts that are proved by a preponderance of the evidence, including subsidiary facts resulting in acquittals, where those facts are nonetheless proved by a preponderance of the evidence."
2 Doe also contends that the examiner's conclusion that Doe anally raped the victim was improper because the rape charge was nol prossed due to "insufficient evidence of penetration." We disagree. See Doe 3177, 486 Mass. at 754-755 (where allegation of sexual misconduct does not result in conviction for sex offense, examiner may consider facts underlying charges where such facts proven by preponderance of evidence).
6 722, 726-727 (2001) (elements of rape include "sexual
intercourse," defined as "penetration of victim, regardless of
degree," and "by force and against his will" [emphasis added]).
Of further note, the victim stated in both interviews that
she told Doe that she was menstruating to try and stop the
attack. The evidence before the examiner contained added
elements of corroboration. For example, the victim's aunt
confirmed that one day after the assault, the victim told her
that Doe had raped her. The victim also told her primary care
physician that she was anally raped. Additionally, the owner of
the farm where the victim and Doe worked confirmed that Doe left
work around noon on the day of the assault, which is consistent
with the victim's statement that the assault occurred around
11:30 A.M. Finally, there are no obvious "[i]ndicia of
unreliability" surrounding the victim's statements, such as the
"failure to identify the source of information, a lack of
detail, and a lack of information about the circumstances in
which the statements were made." Doe 523391, 95 Mass. App. Ct.
at 89-90. It was reasonable in these circumstances for the
examiner to admit and credit the victim's corroborated
statements and conclude that Doe anally penetrated her. See Doe
3177, 486 Mass. at 754-755.
b. Application of the statutory and regulatory factors.
Doe contends that the level two classification was not supported
7 by substantial evidence because the examiner abused his
discretion in applying risk-elevating factors 7 (Doe's
relationship to the victim), 9 (alcohol and substance use), 10
(contact with the criminal justice system), 12 (behavior while
incarcerated), 16 (assault taking place in a public place), and
19 (level of physical contact). Doe also claims that the
examiner abused his discretion in failing to apply and weigh
risk-mitigating factors 28 (supervision by probation or parole),
33 (home and support systems), and 37 (additional information
related to the nature of the sexual behavior). See 803 Code
Mass. Regs. § 1.33 (2016). These claims are unavailing.
When reviewing a decision by the board, we "must determine
whether the decision is supported by substantial evidence"
(citation omitted), Doe 10800, 459 Mass. at 632, which is
defined as "such evidence as a reasonable mind might accept as
adequate to support a conclusion." Id., quoting G. L. c. 30A,
§ 1 (6). "[O]ur review 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 merely a possible
but a necessary inference" (quotation and citation omitted).
Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 110 (2014) (Doe 68549). See Doe
10800, supra at 633 ("It is the province of the board, not this
court, to weigh the credibility of the witnesses and to resolve
8 any factual disputes"). Furthermore, the "hearing examiner has
discretion . . . to consider which statutory and regulatory
factors are applicable and how much weight to ascribe to each
factor." Doe 68549, supra at 109-110.
Here, the record reveals a comprehensive and reasonable
analysis and weighing of the various risk-elevating factors. As
to factor 7 (Doe's relationship to the victim), the relationship
between Doe and the victim is extrafamilial, and therefore the
examiner applied this factor as it relates to his increased risk
of reoffense. See 803 Code Mass. Regs. § 1.33(7)(a)(2). It is
uncontested that Doe and the victim were coworkers and knew each
other before the offense. Thus, we discern no abuse of
discretion in the examiner's application of factor 7. As to
factor 9 (alcohol and substance use), the examiner applied
minimal weight, finding that Doe has a history of substance use.
The record demonstrates that Doe has used alcohol and marijuana,
and therefore we discern no error therefrom. Concerning factor
10 (contact with the criminal justice system), the examiner
applied minimal weight. He detailed Doe's criminal history
apart from the governing offense, and distinguished among
convictions, arrests, and dispositions other than conviction.
Because the record supports the examiner's conclusion, he did
not abuse his discretion in applying this factor.
9 Regarding factor 12 (behavior while incarcerated), the
examiner applied minimal weight due to the three disciplinary
reports that Doe received during his incarceration. Viewing
these reports in the record before us, we discern no error. As
to factor 16 (public place), the examiner applied this factor,
finding that the victim "was fixing an irrigation line that goes
to a row of trees on a farm" when she was assaulted, and
therefore the offense occurred "in an area that was outside and
open to others." Given the victim's statements to the police,
we agree that the examiner properly applied this factor.
Finally, the examiner applied factor 19 (level of physical
contact), finding that Doe "anally penetrated the [v]ictim with
his penis, thus, increasing the weight applied to this risk
elevating factor." For reasons discussed supra, the record
supports the examiner's application of this factor.
In terms of the risk-mitigating factors applied, the
examiner's decision reflects an appropriate consideration and
application of the factors based on the record. As to factor 28
(supervision by probation or parole), the examiner considered
that Doe would be on both parole and probation after his release
from incarceration, finding that "this dual supervision adds
mitigation, and I apply this factor to [Doe's] risk of
[reoffense] and dangerousness." The examiner also considered,
pursuant to factor 37 (additional information related to the
10 nature of the sexual behavior), Doe's past and future mental
health treatment with Dr. Freudenreich as a mitigating factor.
The examiner did not specify the amount of weight given to these
factors. While not required, it is helpful to our review if a
hearing examiner specifies whether he or she applies a
threshold, moderate, high, or some other degree of weight to
each applied factor. See Doe, Sex Offender Registry Bd. No.
23656 v. Sex Offender Registry Bd., 483 Mass. 131, 143 (2019)
(Doe 23656). Nevertheless, here we are satisfied that Doe's
level two classification was supported by substantial evidence.
Concerning factor 33 (home and support systems), the
examiner conducted an extensive review of the numerous support
letters and testimony from Doe's support group, finding that Doe
"has a very high level of support from family and friends, and
therefore, I give full weight to [factor 33] as it relates to
[Doe's] risk of [reoffense]." Contrary to Doe's argument, the
examiner was not required to consider the impact that Doe's
support network has on his level of dangerousness because the
application of the factor is limited to the offender's risk to
reoffend. 803 Code Mass. Regs. § 1.33(33)(a) ("The likelihood
of reoffense is reduced when an offender is supported by family,
friends, and acquaintances").
11 c. Doe's expert opinion. Doe argues that the examiner
erred by ignoring Dr. Bard's opinion testimony that Doe poses a
low risk to reoffend. We disagree.
In the context of a SORB classification hearing, a hearing
examiner must consider the "evaluative reports, empirically-
based risk assessment instruments, or testimony from a licensed
mental health professional that discuss psychological and
psychiatric issues . . . as they relate to the offender's risk
of reoffense." 803 Code Mass. Regs. § 1.33(35)(a). See Doe
23656, 483 Mass. at 135. However, the "opinion of a witness
testifying on behalf of a sex offender need not be accepted by
the hearing examiner even where the board does not present any
contrary expert testimony." Doe 68549, 470 Mass. at 112,
quoting Doe 10800, 459 Mass. at 637.
Here, the examiner did not "ignore" Dr. Bard's expert
testimony. To the contrary, after noting that the STATIC-99R
evaluation conducted by Dr. Bard addressed some, but not all of
the board's regulatory factors, the examiner nonetheless
afforded the tests "some weight" to the extent they served as "a
general indicator of risk of reoffense." It is evident from the
four-page review of Dr. Bard's testimony that the examiner
carefully considered Dr. Bard's testimony. We discern no error.
Conclusion. We conclude that the hearing examiner's
determination that clear and convincing evidence supported a
12 level two classification was supported by substantial evidence.
See Doe 10800, 459 Mass. at 632-633.
Judgment affirmed.
By the Court (Neyman, Hershfang & Hodgens, JJ. 3),
Assistant Clerk
Entered: May 6, 2024.
3 The panelists are listed in order of seniority.