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-1173
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527969
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 classification by the Sex Offender
Registry Board (SORB) as a level two sex offender in accordance
with G. L. c. 6, § 178K (2) (b). On appeal, Doe claims that the
evidence did not support the hearing examiner's classification
decision. We affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd. 459 Mass. 603, 606 (2011) (Doe No.
10800). On February 13, 2020, Doe, age fifty, grabbed his sixty-
four year old girlfriend by the throat, pushed her against the
wall and said, "I can fucking kill you if I want to you fucking
cunt." The victim obtained a restraining order and in her
affidavit in support of her petition for a restraining order,
she stated that Doe had been drinking hard liquor between 7:00
A.M. and 10:45 A.M. and became verbally and physically abusive.
The restraining order went into effect on February 20, 2020.
On February 26, 2020, Doe appeared at the victim's door
around 10:30 P.M., announcing himself as one of the victim's
neighbors with whom she is friendly. When she opened the door,
Doe pushed his way in, immediately "striking [the victim] with a
closed fist in the face." Doe continued to assault the victim
through the hallway and into her living room.
Doe took the victim into the bedroom and said, "Get on the
bed bitch and take off your pants." Doe then violently raped
her. After committing the rape, Doe told her that if she called
the police, "he'll finish [her] off." The victim suffered
numerous injuries, including bruising to various parts of her
face and body.
2 Doe was charged with aggravated rape,1 in violation of G. L.
c. 265, § 22 (a); unarmed burglary and assault on occupants, in
violation of G. L. c. 266, § 14; assault and battery on an
elderly or disabled person, in violation of G. L. c. 265, § 13K
(a 1/2); assault and battery in violation of a restraining
order, in violation of G. L. c. 265, § 13A (b); and two counts
of violation of an abuse prevention order, in violation of G. L.
c. 209A, § 7. Doe pleaded guilty to all the charges. He was
incarcerated for one year and thereafter placed on probation.
He was released from jail on January 20, 2022.
Following a SORB classification hearing on March 24, 2022,
Doe was classified as a level two sex offender. A Superior
Court judge denied Doe's motion for judgment on the pleadings
and affirmed the level two classification. Doe appeals.
Discussion. 1. Standard of review. "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). "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,
1 On July 7, 2021, the charge of aggravated rape was reduced to indecent assault and battery.
3 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). "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 No. 523391, supra at 88. Doe therefore
"bears a heavy burden of establishing that [SORB's] decision was
incorrect." Doe, Sex Offender Registry Bd. No. 3177 v. Sex
Offender Registry Bd., 486 Mass. 749, 757 (2021), quoting Boston
Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019).
2. Classification determination. Doe contends that the
hearing examiner's decision was arbitrary and capricious, and
not supported by substantial evidence, because the hearing
examiner "failed to explain how he balanced the predictive value
of Doe's prior offense against the totality of the other
circumstances." Doe also asserts that the hearing examiner's
treatment of Doe's alcohol and substance abuse was an "arbitrary
abuse of discretion." We disagree.
To support a level two classification, SORB must prove, by
clear and convincing evidence:
"(1) that the risk of reoffense is moderate; (2) that the offender's dangerousness, as measured by the severity and extent of harm the offender would present to the public in the event of reoffense, is moderate; and (3) that a public
4 safety interest is served by Internet publication of the offender's registry information."
Doe No. 496501, 482 Mass. at 644. See G. L. c. 6, § 178K
(2)(b). "A hearing examiner has discretion . . . to consider
which statutory and regulatory factors are applicable and how
much weight to ascribe to each factor." Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 109-110 (2014). "Accordingly, [o]ur review does not turn
on whether, faced with the same set of facts, we would have
drawn the same conclusion as [the] agency . . ., but only
whether a contrary conclusion is not merely a possible but a
necessary inference" (quotation and citation omitted). Id. at
110. The hearing examiner's discretion is "guided by . . .
[several] statutory risk factors" and various "aggravating and
mitigating considerations." Doe, Sex Offender Registry Bd. No.
23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019)
(Doe No. 23656). See G. L. c. 6, § 178K (1); 803 Code Mass.
Regs. § 1.33 (2016).
We are satisfied that the classification is supported by
substantial evidence. The hearing examiner had "discretion to
determine how much weight to ascribe to each statutory factor
under consideration." See Doe No. 23656, 483 Mass. at 139.
Here, the hearing examiner properly applied and analyzed the
regulatory factors. The hearing examiner considered Doe's
5 underlying sexual offense, as well as his history of violent
criminal behavior, hostility toward women, and substance abuse
in support of the application of eight regulatory risk elevating
factors.2 The hearing examiner also awarded full mitigating
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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-1173
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527969
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 classification by the Sex Offender
Registry Board (SORB) as a level two sex offender in accordance
with G. L. c. 6, § 178K (2) (b). On appeal, Doe claims that the
evidence did not support the hearing examiner's classification
decision. We affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd. 459 Mass. 603, 606 (2011) (Doe No.
10800). On February 13, 2020, Doe, age fifty, grabbed his sixty-
four year old girlfriend by the throat, pushed her against the
wall and said, "I can fucking kill you if I want to you fucking
cunt." The victim obtained a restraining order and in her
affidavit in support of her petition for a restraining order,
she stated that Doe had been drinking hard liquor between 7:00
A.M. and 10:45 A.M. and became verbally and physically abusive.
The restraining order went into effect on February 20, 2020.
On February 26, 2020, Doe appeared at the victim's door
around 10:30 P.M., announcing himself as one of the victim's
neighbors with whom she is friendly. When she opened the door,
Doe pushed his way in, immediately "striking [the victim] with a
closed fist in the face." Doe continued to assault the victim
through the hallway and into her living room.
Doe took the victim into the bedroom and said, "Get on the
bed bitch and take off your pants." Doe then violently raped
her. After committing the rape, Doe told her that if she called
the police, "he'll finish [her] off." The victim suffered
numerous injuries, including bruising to various parts of her
face and body.
2 Doe was charged with aggravated rape,1 in violation of G. L.
c. 265, § 22 (a); unarmed burglary and assault on occupants, in
violation of G. L. c. 266, § 14; assault and battery on an
elderly or disabled person, in violation of G. L. c. 265, § 13K
(a 1/2); assault and battery in violation of a restraining
order, in violation of G. L. c. 265, § 13A (b); and two counts
of violation of an abuse prevention order, in violation of G. L.
c. 209A, § 7. Doe pleaded guilty to all the charges. He was
incarcerated for one year and thereafter placed on probation.
He was released from jail on January 20, 2022.
Following a SORB classification hearing on March 24, 2022,
Doe was classified as a level two sex offender. A Superior
Court judge denied Doe's motion for judgment on the pleadings
and affirmed the level two classification. Doe appeals.
Discussion. 1. Standard of review. "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). "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,
1 On July 7, 2021, the charge of aggravated rape was reduced to indecent assault and battery.
3 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). "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 No. 523391, supra at 88. Doe therefore
"bears a heavy burden of establishing that [SORB's] decision was
incorrect." Doe, Sex Offender Registry Bd. No. 3177 v. Sex
Offender Registry Bd., 486 Mass. 749, 757 (2021), quoting Boston
Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019).
2. Classification determination. Doe contends that the
hearing examiner's decision was arbitrary and capricious, and
not supported by substantial evidence, because the hearing
examiner "failed to explain how he balanced the predictive value
of Doe's prior offense against the totality of the other
circumstances." Doe also asserts that the hearing examiner's
treatment of Doe's alcohol and substance abuse was an "arbitrary
abuse of discretion." We disagree.
To support a level two classification, SORB must prove, by
clear and convincing evidence:
"(1) that the risk of reoffense is moderate; (2) that the offender's dangerousness, as measured by the severity and extent of harm the offender would present to the public in the event of reoffense, is moderate; and (3) that a public
4 safety interest is served by Internet publication of the offender's registry information."
Doe No. 496501, 482 Mass. at 644. See G. L. c. 6, § 178K
(2)(b). "A hearing examiner has discretion . . . to consider
which statutory and regulatory factors are applicable and how
much weight to ascribe to each factor." Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 109-110 (2014). "Accordingly, [o]ur review does not turn
on whether, faced with the same set of facts, we would have
drawn the same conclusion as [the] agency . . ., but only
whether a contrary conclusion is not merely a possible but a
necessary inference" (quotation and citation omitted). Id. at
110. The hearing examiner's discretion is "guided by . . .
[several] statutory risk factors" and various "aggravating and
mitigating considerations." Doe, Sex Offender Registry Bd. No.
23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019)
(Doe No. 23656). See G. L. c. 6, § 178K (1); 803 Code Mass.
Regs. § 1.33 (2016).
We are satisfied that the classification is supported by
substantial evidence. The hearing examiner had "discretion to
determine how much weight to ascribe to each statutory factor
under consideration." See Doe No. 23656, 483 Mass. at 139.
Here, the hearing examiner properly applied and analyzed the
regulatory factors. The hearing examiner considered Doe's
5 underlying sexual offense, as well as his history of violent
criminal behavior, hostility toward women, and substance abuse
in support of the application of eight regulatory risk elevating
factors.2 The hearing examiner also awarded full mitigating
weight to Doe's advanced age of fifty-two and his current
supervision by probation.
Turning the focus to factor 9 (alcohol and substance
abuse), we conclude that the hearing examiner properly applied
this factor in the classification analysis.3 Doe argues that the
hearing examiner's determination that "[Doe's] history of
treatment, abstinence, and relapse is unknown" was refuted by
medical records. Additionally, Doe asserts that the hearing
examiner failed to consider Doe's self-reported current sobriety
and his compliance with probationary requirements of abstinence.
We find no merit to Doe's arguments.
2 Specifically, the hearing examiner applied the following factors: factor 7 (relationship between offender and victim); factor 8 (weapon, violence, or infliction of bodily injury); factor 9 (alcohol and substance abuse); factor 10 (contact with the criminal justice system); factor 11 (violence unrelated to sexual assaults); factor 15 (hostility towards women); factor 18 (extravulnerable victim); and factor 19 (level of physical contact). 3 As to SORB's assertion that Doe waived his argument as to
the hearing examiner's application of factor 9, we discern no error in the hearing examiner's classification regardless of the application of factor 9.
6 The record considered by the hearing examiner contained
twenty-four years4 of police reports that described Doe as being
intoxicated. When the victim was assaulted in 2020, Doe had
been drinking hard liquor at early hours of the morning. While
incarcerated in 2021, Doe tested positive for marijuana. This
evidence amply supports that Doe has a history of substance
abuse and that it was active at the time of the hearing.
In March 2022, approximately three months after his release
into the community, Doe wrote a letter to the hearing examiner
stating, among other things, "I am sober." The hearing examiner
was well within his discretion to disregard this evidence as
unreliable and give it no impact in his analysis of factor 9.
See Doe 23656, 483 Mass. at 138-139. See also Doe No. 10800,
459 Mass. at 638 (hearing examiner's duty "to assess the
reliability of exhibits introduced in evidence and draw
therefrom all reasonable inferences"). Similarly, since Doe had
no requirement of abstinence during probation, his compliance
with probation has no impact on factor 9.
After careful review of the hearing examiner's decision, we
determine it was supported by substantial evidence, was not
4 For instance, evidence before the hearing examiner described a 1997 incident where an intoxicated Doe assaulted a taxi driver.
7 arbitrary and capricious, and we discern no abuse of discretion.
Judgment affirmed.
By the Court (Meade, Desmond & D'Angelo, JJ.5),
Clerk
Entered: February 25, 2025.
5 The panelists are listed in order of seniority.