John Doe, Sex Offender Registry Board No. 5976 v. Sex Offender Registry Board.

• Court: Massachusetts Appeals Court
• Decided: January 5, 2024
• Docket: 22-P-0801
• Status: Unpublished

Opinion

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-801

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 5976

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment

affirming his reclassification by the Sex Offender Registry

Board (SORB) as a level three sex offender. 1 On appeal, the

plaintiff claims that the hearing examiner (1) abused his

discretion by admitting and relying on certain hearsay

statements, and (2) erred by reclassifying the plaintiff as a

level three sex offender. We affirm.

1 In 2005, the plaintiff was classified as a level two sex offender after he pleaded guilty in 1998 to indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, and accosting, G. L. c. 272, § 53. These charges were brought after an eleven year old girl (victim 1) reported to police that her neighbor, the plaintiff, commented on victim 1's breasts, pulled her near him, kissed her on the lips, and then placed his head on her breasts. Victim 1 attempted to pull away, but the plaintiff held her. She also reported that the plaintiff repeatedly made lewd comments to her and her friend regarding their breasts. Discussion. "Pursuant to G. L. c. 6, § 178L (3), [SORB]

may reclassify any finally classified sex offender upon receipt

of information that indicates the offender may present an

increased risk to reoffend or degree of dangerousness," 803 Code

Mass. Regs. § 1.32(1) (2016), including "information indicating

the sex offender has . . . [b]een investigated for or charged

with committing a new sex offense." 803 Code Mass. Regs.

§ 1.32(2) (2016). "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, is based on an error of law, is not supported by

substantial evidence, or is an arbitrary and capricious abuse of

discretion." Doe, Sex Offender Registry Bd. No. 3177 v. Sex

Offender Registry Bd., 486 Mass. 749, 754 (2021) (Doe No. 3177).

See G. L. c. 30A, § 14 (7).

In making a classification decision, it is within the

hearing examiner's discretion to determine which statutory and

regulatory factors apply and how much weight to ascribe to each

factor. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex

Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe No.

68549). See also G. L. c. 6, § 178K (1) (a)-(l); 803 Code Mass.

Regs. § 1.33 (2016). This court gives "due weight to [SORB's]

experience, technical competence, and specialized knowledge,"

G. L. c. 30A, § 14 (7), and the burden is on the plaintiff, as

2 the appealing party, to demonstrate that the decision was

invalid. See Doe No. 3177, 486 Mass. at 757.

SORB's classification decision will be upheld if supported

by "substantial evidence," which is "such evidence as a

reasonable mind might accept as adequate to support a

conclusion." G. L. c. 30A, § 1 (6). See G. L. c. 30A, § 14 (7)

(e); Doe No. 68549, 470 Mass. at 109. "It is the province of

[SORB], not this court, to weigh the credibility of the

witnesses and resolve any factual disputes." Doe, Sex Offender

Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.

603, 633 (2011) (Doe No. 10800). "The range of evidence that

may be considered by hearing examiners is not limited by the

same rules of evidence that apply in court proceedings; hearing

examiners may exercise their discretion to admit and give

probative value to evidence 'if it is the kind of evidence on

which reasonable persons are accustomed to rely in the conduct

of serious affairs.'" Doe, Sex Offender Registry Bd. No. 339940

v. Sex Offender Registry Bd., 488 Mass. 15, 26 (2021), quoting

G. L. c. 30A, § 11 (2). The hearing examiner may also consider

subsidiary facts proven by a preponderance of the evidence. See

Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender

Registry Bd., 95 Mass. App. Ct. 85, 91-93 (2019) (Doe No.

523391).

3 "In the context of administrative proceedings, hearsay

evidence bearing indicia of reliability constitutes admissible

and substantial evidence." Doe No. 10800, 459 Mass. at 638.

Such indicia of reliability 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." Doe, Sex Offender Registry Bd.

No. 10304, v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309,

312-313 (2007). The hearing examiner may also consider as

indicia of reliability "the consistency of the hearsay incident

with other, known behavior, admissions by the offender, and

independent corroboration" (citations omitted). Doe No. 523391,

95 Mass. App. Ct. at 89. On the other hand, "[i]ndicia of

unreliability include 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." Id. at

89-90. However, "[t]he lack of criminal conviction does not

render information contained within a police report inadmissible

in an administrative proceeding." Id. at 90.

Here, the plaintiff claims that the hearing examiner abused

his discretion by admitting and relying on hearsay statements in

a Department of Children and Families' (DCF) report pursuant to

G. L. c. 119, § 51A, and a police report, in both of which the

4 plaintiff's girlfriend's fifteen year old daughter (victim 2)

alleged that he sexually abused her on several occasions. In his

decision to reclassify the plaintiff, the hearing examiner found

that although the plaintiff had not yet been convicted of these

offenses at the time of the hearing, victim 2's hearsay

statements in these reports were "sufficiently detailed and

reliable to be considered as further sexual misconduct."

The § 51A report provides that victim 2's boyfriend, James

(a pseudonym), initially disclosed the sexual abuse allegations

to his school guidance counsellor -- a mandated reporter as

defined in G. L. c. 119, § 21. James showed his guidance

counsellor text messages between him and victim 2, exchanged

over Facebook, in which victim 2 stated that the plaintiff tried

to get her to take her clothes off; wanted her to sit with him

when no one was home; tried to give her a massage; and tried to

get her to "drink," although alcohol was not specified.

Following this meeting, the mandated reporter met with

victim 2 and her school guidance counsellor, and victim 2

reported that the most recent incident was about one week prior,

when the plaintiff tried to put his arm around her. During the

meeting, victim 2 was "very teary and crying," and stated that

nobody, including her mother, knew about the alleged sexual

abuse, which victim 2 reported had been occurring since she was

in seventh grade, increasing in frequency.

5 A police investigation commenced shortly after the § 51A

report was filed. The police detective's report contains a

brief summary of the § 51A report and a summary of victim 2's

subsequent forensic interview at the Children's Advocacy Center

(CAC). The detective had observed the interview via a live feed

in a nearby conference room, and the audio and video were

recorded.

When the trained forensic interviewer asked victim 2 what

brought her to CAC, victim 2 replied, "Um, my stepdad touched

me." She then explained that he is not actually her stepfather

but her mother's boyfriend of five years and identified him as

the plaintiff. When asked to explain what she meant when she

stated that the plaintiff had touched her, victim 2 asked if she

could come back to that question. After some time, victim 2 was

asked what she did not like about the plaintiff. She

immediately became emotional and stated, "What he did to me."

The forensic interviewer asked when the plaintiff had touched

her. Victim 2 provided a very detailed account of a recent

incident during which the plaintiff rubbed her shoulders and

legs, moved her underwear and shorts to her other thigh, and

then touched the outside of her vagina underneath her clothes

with his thumb in a circular motion.

Victim 2 also described incidents during which the

plaintiff told her that he would pay her twenty dollars if she

6 took nude pictures of herself for him; tried to give her

massages and get her to take her clothes off; grabbed her breast

underneath her clothes; and slapped her buttocks underneath her

clothes. In particular, victim 2 detailed an incident two years

prior where she was playing video games in her mother's room

when the plaintiff began rubbing her shoulders and back and

asked her to take her clothes off. When victim 2 refused, the

plaintiff reached underneath her shirt, began massaging her

ribs, and then grabbed her breast. The plaintiff had also told

victim 2 that he could teach her how to treat her former

girlfriend "real right," and if she ever needed to show her

girlfriend a "fun time," he could show victim 2 how to do it.

The police detective's report also summarizes James's

subsequent forensic interview at CAC, during which James stated

that victim 2 told him "a month or two ago" that the plaintiff

"tries touching her and stuff." Again, the detective observed

the interview via a live feed in a nearby conference room, and

the audio and video were recorded. Although James no longer had

the cell phone containing the text messages that he showed his

guidance counsellor and could not log onto his Facebook account,

he was able to recall what victim 2 told him.

Following the investigation, the plaintiff was charged with

two counts of indecent assault and battery on a person aged

fourteen or older, G. L. c. 265, § 13H, and one count of

7 enticing a child under the age of sixteen, G. L. c. 265,

§ 26C (b). 2 These charges were still pending at the time of the

2021 reclassification hearing.

The hearing examiner did not abuse his discretion by

admitting and relying on hearsay statements in the § 51A report

and police report. As the hearing examiner and Superior Court

judge noted, victim 2 could recall many specific details about

the sexual assaults, including what she was doing, the location

of other household members, what she and the plaintiff were

wearing, and the specific course of action the plaintiff took

during the incidents. That she could not always remember

exactly when each incident occurred or certain little details is

understandable, given that she described incidents that occurred

over the course of three years. Moreover, that victim 2 did not

tell certain people about the plaintiff's inappropriate

behavior, that some individuals expressed doubts about the

veracity of the allegations, and that the messages between James

and victim 2 were not available at the hearing is similarly

understandable under the circumstances. The incidents described

in the statements were plausible, and two such incidents were

2 One of the charges of indecent assault and battery on a person aged fourteen or older, G. L. c. 265, § 13H, was reduced from rape of a child with force, G. L. c. 265, § 22A, following arraignment.

8 similar to the prior sexual offenses 3 against victim 1 -- also a

female child -- to which the plaintiff had pleaded guilty.

Additionally, the detective heard victim 2's statements

during her forensic interview via a recorded live feed, which he

inferably could have referred to in writing the police report.

James's guidance counsellor, the mandated reporter, also spoke

to victim 2 directly, and James's descriptions of what victim 2

told him were generally consistent with victim 2's own

statements. Thus, the hearsay statements bore sufficient

indicia of reliability to constitute admissible and substantial

evidence of further sexual misconduct.

The plaintiff also argues that the hearing examiner erred

by reclassifying him as a level three sex offender. We

disagree. "Where [SORB] determines that the risk of reoffense

is high and the degree of dangerousness posed to the public is

such that a substantial public safety interest is served by

active dissemination, it shall give a level [three] designation

to the sex offender." G. L. c. 6, § 178K (2) (c). See Doe No.

3177, 486 Mass. at 754.

The hearing examiner adequately explained how the presence

and application of the relevant factors in the context of the

3 Although accosting is not an enumerated sex offense under G. L. c. 6, § 178C, the hearing examiner found that it was sexual in nature and considered it in his overall assessment of the plaintiff.

9 facts and circumstances in this case support, by clear and

convincing evidence, that the plaintiff should be classified as

a level three sex offender. He first noted that he applied two

high-risk factors with increased weight: repetitive and

compulsive behavior (factor 2); and adult offender with a child

victim (factor 3). See 803 Code Mass. Regs. § 1.33(2), (3)

(2016). As the regulations provide, "[SORB] may give increased

weight to offenders who have been discovered and confronted (by

someone other than the victim) or investigated by an authority

for sexual misconduct and, nonetheless, commit a subsequent act

of sexual misconduct. The most weight shall be given to an

offender who engages in sexual misconduct after having been

charged with or convicted of a sex offense." 803 Code Mass.

Regs. § 1.33(2)(a) (2016). Additionally, "[f]or purposes of

factor 3, [SORB] shall consider any victim younger than

[sixteen] years old as a 'child victim.'" 803 Code Mass. Regs.

§ 1.33(3)(a) (2016). "Offenders who target prepubescent

children, generally younger than [thirteen] years old, are more

likely to have a deviant sexual interest and, therefore, pose an

even higher risk of reoffense and degree of dangerousness and

are given greater weight." Id.

Here, the plaintiff was previously convicted of sexual

offenses with an eleven year old victim, and then engaged in

further sexual misconduct against victim 2 when she was fifteen

10 years old and younger. Thus, the hearing examiner was entitled

to apply and give increased weight to factors 2 and 3.

The hearing examiner was also entitled to apply several

risk-elevating factors: relationship between the offender and

victim (factor 7); number of victims (factor 22); contact with

the criminal justice system (factor 10); violence unrelated to

sexual assaults (factor 11); and noncompliance with community

supervision (factor 13). See 803 Code Mass. Regs. § 1.33(7),

(10) (2016).

The hearing examiner found that the relationships between

the plaintiff and his two victims were extrafamilial because

victim 1 was a neighbor and victim 2 was his girlfriend's

daughter. See 803 Code Mass. Regs. § 1.33(7)(a)(2) (2016)

("Extrafamilial Victim includes . . . [a]ny person who has a

recognizable non-intrafamilial relationship with the offender,

such as a friend, co-worker, or acquaintance. . .").

Additionally, the hearing examiner applied factor 10 with

moderate weight because although the plaintiff has a lengthy

criminal history, most of his contact with the criminal justice

system resulted in minimal sentences and dismissals. 4 The

hearing examiner also applied moderate weight to factor 11

4 It appears from the decision that the hearing examiner implicitly recognized the plaintiff's offense-free time in the community from 2012 to 2018. See 803 Code Mass. Regs. § 1.33(29) (2016). In any event, this is not significant.

11 because although the plaintiff's criminal history included

charges of intimidation of a witness and assault and battery on

a police officer, the plaintiff's last violent offense occurred

eight years prior to the hearing. Finally, the hearing examiner

applied moderate weight to factor 13 because the plaintiff had

violated his probation in 1996 and 2013, which occurred fifteen

and eight years prior to the hearing, respectively.

Regarding risk-mitigating factors, the hearing examiner

applied advanced age (factor 30) and materials submitted by the

sex offender regarding stability in the community (factor 34).

As the plaintiff was forty-four years old at the time of the

hearing and SORB only considers advanced age to have a

significant mitigating effect when the offender with child

victims is sixty years old or older, the hearing examiner only

applied minimal weight to this mitigating factor. See 803 Code

Mass. Regs. § 1.33(30)(a) (2016). For factor 34, the plaintiff

listed an address and reported that he is presently self-

employed but did not specify the business. The hearing examiner

applied moderate weight to this factor.

Contrary to the plaintiff's claims, the hearing examiner

did not apply these factors "mechanically." The hearing

examiner outlined his reasons for applying each factor and for

the weight given each factor, and he weighed all the factors in

concluding that the plaintiff's risk to reoffend, degree of

12 dangerousness, and the public safety interest are such that he

should be classified as a level three sex offender. In sum, the

decision to classify the plaintiff as a level three sex offender

did not exceed SORB's statutory authority or jurisdiction, was

not based on an error of law, was supported by substantial

evidence, and was not an arbitrary and capricious abuse of

discretion. See Doe No. 3177, 486 Mass. at 754.

Judgment affirmed.

By the Court (Meade, Singh & Smyth, JJ. 5)

Assistant Clerk

Entered: January 5, 2024.

5 The panelists are listed in order of seniority.