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-990
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 61214
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming a classification by the Sex Offender Registry
Board (the board) classifying him as a level three sex offender.
On appeal, Doe argues that the board's classification was both
arbitrary and capricious and an abuse of discretion because the
board failed to prove, by clear and convincing evidence, that he
poses a high risk of reoffending. We affirm.
Background. Doe committed two separate governing sex
offenses that served as the basis for his classification. He
also has an extensive history of criminal conduct unrelated to
his sexual offenses. We summarize these offenses below. 1. 2020 sex offense. On July 18, 2020, a fourteen year
old girl walked to a public park to wait for her mother to
finish her appointment at a hair salon. While she waited in the
park, Doe, age fifty-three, attempted to get her attention by
calling out to her. The girl walked to where Doe was sitting,
and he told her that he wanted to dance and grabbed her hand.1
The girl pulled her hand away and Doe kissed her on the neck.
The girl went back to the hair salon, where she waited for her
mother in the first-floor entryway of the building due to COVID-
19 restrictions. Doe followed the girl, stepped into the
entryway of the building where she was waiting, and told her
that he called out to her earlier because he wanted to see "if
[he] could tickle that kitty's tail." Doe then proceeded to put
his hands on the girl's breasts and buttocks over her clothing.
Doe was convicted in Northampton District Court on one
count of indecent assault and battery and one count of assault
and battery. He received a two-year committed sentence for
indecent assault and battery and a two and one-half year
suspended sentence with four years of probation for assault and
battery.
1 The hearing examiner found that Doe walked to the victim. Nothing turns on this discrepancy. 2 2. 1980 sex offense. On April 4, 1980, Doe was found
delinquent in the Worcester Juvenile Court as to one count of
rape and one count of unarmed assault with an intent to rob.
The police report related to those convictions reflect that on
February 18, 1980, Doe, then age thirteen, approached a thirteen
year old boy at an arcade within a mall. Doe told the boy to
follow him outside and led the boy behind the mall. Once
outside, Doe told the boy he had a knife and would kill him if
he did not give him money. The boy gave Doe three dollars and
twenty cents. Doe then forced the boy to enter and old train
station nearby, where they proceeded up a flight of stairs and
into an empty room. Doe then took off the boy's clothes, forced
the boy to fellate him, and then twice anally raped the boy with
his penis.
3. Criminal history. Doe has a long criminal history that
includes, inter alia, convictions for assault with an intent to
rob, assault and battery by means of a dangerous weapon, assault
with an intent to kill, burglary, and carjacking. Doe has
served multiple terms of incarceration over the last forty
years. Notably, many of which were a result of probation
revocations.
Discussion. 1. Standard of review. A level three
classification is warranted where the hearing examiner "make[s]
3 explicit" findings, supported by clear and convincing evidence,
that the offender presents "a high risk of reoffense, a high
degree of dangerousness, and a public safety interest is served
by active dissemination of the offender's registry information."
Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry
Bd., 490 Mass. 759, 768 (2022) (Doe No. 6729). "A reviewing
court may set aside or modify [the board's] classification
decision where it determines that the decision is in excess of
[the board'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), citing G. L. c. 30A, § 14 (7).
In assessing the offender's dangerousness and likelihood to
reoffend, the hearing examiner 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). See G. L.
c. 6, § 178K (1) (a)-(l); 803 Code Mass. Regs. § 1.33 (2016).
Ultimately, "[t]he final classification level is not based on a
cumulative analysis of the applicable factors, but rather a
qualitative analysis of the individual sex offender's history
and personal circumstances." 803 Code Mass. Regs. § 1.33
4 (2016). "An abuse of discretion occurs where the hearing
examiner makes 'a clear error of judgment in weighing the
[relevant] factors . . . such that the [outcome] falls outside
the range of reasonable alternatives.'" Doe, Sex Offender
Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass.
App. Ct. 292, 299 (2021), quoting L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014).
2. Doe's risk of reoffending. Doe asserts that the board
failed to prove that he poses a high risk of reoffending. We
disagree.
As an initial matter, Doe does not challenge the risk
factors applied by the hearing examiner or their application.
For example, while Doe correctly points out that risk mitigating
factors 28, 30, 33, and 34 apply to his case, he does not argue
that the hearing examiner abused his discretion by assigning
only minimal weight to these factors. Indeed, after reviewing
the hearing examiner's application of the relevant risk factors,
we agree with the judge below that the determination that Doe
has a high risk to reoffend and his level three classification
were supported by clear and convincing evidence. Doe No. 6729,
490 Mass. at 768.
Doe also argues, without citing supporting case law, that
it was "extremely unfair" for the hearing examiner to consider
5 Doe's 1980 sex offense in determining his classification because
it occurred "four decades ago -- when Doe . . . was a juvenile."
However, it is well established that a hearing examiner is
permitted to consider juvenile sex offenses when determining an
adult offender's classification, and many of the regulatory
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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-990
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 61214
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming a classification by the Sex Offender Registry
Board (the board) classifying him as a level three sex offender.
On appeal, Doe argues that the board's classification was both
arbitrary and capricious and an abuse of discretion because the
board failed to prove, by clear and convincing evidence, that he
poses a high risk of reoffending. We affirm.
Background. Doe committed two separate governing sex
offenses that served as the basis for his classification. He
also has an extensive history of criminal conduct unrelated to
his sexual offenses. We summarize these offenses below. 1. 2020 sex offense. On July 18, 2020, a fourteen year
old girl walked to a public park to wait for her mother to
finish her appointment at a hair salon. While she waited in the
park, Doe, age fifty-three, attempted to get her attention by
calling out to her. The girl walked to where Doe was sitting,
and he told her that he wanted to dance and grabbed her hand.1
The girl pulled her hand away and Doe kissed her on the neck.
The girl went back to the hair salon, where she waited for her
mother in the first-floor entryway of the building due to COVID-
19 restrictions. Doe followed the girl, stepped into the
entryway of the building where she was waiting, and told her
that he called out to her earlier because he wanted to see "if
[he] could tickle that kitty's tail." Doe then proceeded to put
his hands on the girl's breasts and buttocks over her clothing.
Doe was convicted in Northampton District Court on one
count of indecent assault and battery and one count of assault
and battery. He received a two-year committed sentence for
indecent assault and battery and a two and one-half year
suspended sentence with four years of probation for assault and
battery.
1 The hearing examiner found that Doe walked to the victim. Nothing turns on this discrepancy. 2 2. 1980 sex offense. On April 4, 1980, Doe was found
delinquent in the Worcester Juvenile Court as to one count of
rape and one count of unarmed assault with an intent to rob.
The police report related to those convictions reflect that on
February 18, 1980, Doe, then age thirteen, approached a thirteen
year old boy at an arcade within a mall. Doe told the boy to
follow him outside and led the boy behind the mall. Once
outside, Doe told the boy he had a knife and would kill him if
he did not give him money. The boy gave Doe three dollars and
twenty cents. Doe then forced the boy to enter and old train
station nearby, where they proceeded up a flight of stairs and
into an empty room. Doe then took off the boy's clothes, forced
the boy to fellate him, and then twice anally raped the boy with
his penis.
3. Criminal history. Doe has a long criminal history that
includes, inter alia, convictions for assault with an intent to
rob, assault and battery by means of a dangerous weapon, assault
with an intent to kill, burglary, and carjacking. Doe has
served multiple terms of incarceration over the last forty
years. Notably, many of which were a result of probation
revocations.
Discussion. 1. Standard of review. A level three
classification is warranted where the hearing examiner "make[s]
3 explicit" findings, supported by clear and convincing evidence,
that the offender presents "a high risk of reoffense, a high
degree of dangerousness, and a public safety interest is served
by active dissemination of the offender's registry information."
Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry
Bd., 490 Mass. 759, 768 (2022) (Doe No. 6729). "A reviewing
court may set aside or modify [the board's] classification
decision where it determines that the decision is in excess of
[the board'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), citing G. L. c. 30A, § 14 (7).
In assessing the offender's dangerousness and likelihood to
reoffend, the hearing examiner 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). See G. L.
c. 6, § 178K (1) (a)-(l); 803 Code Mass. Regs. § 1.33 (2016).
Ultimately, "[t]he final classification level is not based on a
cumulative analysis of the applicable factors, but rather a
qualitative analysis of the individual sex offender's history
and personal circumstances." 803 Code Mass. Regs. § 1.33
4 (2016). "An abuse of discretion occurs where the hearing
examiner makes 'a clear error of judgment in weighing the
[relevant] factors . . . such that the [outcome] falls outside
the range of reasonable alternatives.'" Doe, Sex Offender
Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass.
App. Ct. 292, 299 (2021), quoting L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014).
2. Doe's risk of reoffending. Doe asserts that the board
failed to prove that he poses a high risk of reoffending. We
disagree.
As an initial matter, Doe does not challenge the risk
factors applied by the hearing examiner or their application.
For example, while Doe correctly points out that risk mitigating
factors 28, 30, 33, and 34 apply to his case, he does not argue
that the hearing examiner abused his discretion by assigning
only minimal weight to these factors. Indeed, after reviewing
the hearing examiner's application of the relevant risk factors,
we agree with the judge below that the determination that Doe
has a high risk to reoffend and his level three classification
were supported by clear and convincing evidence. Doe No. 6729,
490 Mass. at 768.
Doe also argues, without citing supporting case law, that
it was "extremely unfair" for the hearing examiner to consider
5 Doe's 1980 sex offense in determining his classification because
it occurred "four decades ago -- when Doe . . . was a juvenile."
However, it is well established that a hearing examiner is
permitted to consider juvenile sex offenses when determining an
adult offender's classification, and many of the regulatory
factors expressly contemplate the effect that juvenile sexual
misconduct has on an adult offender's risk of reoffense.2 See
803 Code Mass. Regs. § 1.33(2)(c) (2016) ("offender who engages
in sexual misconduct after having been charged with . . . a
prior sex offense [as a juvenile] presents an even higher risk
to reoffend"). See also 803 Code Mass. Regs. § 1.33(4) (2016)
("Offenders who manifest an early onset and persistence of
deviant sexual interests or behaviors are at a higher risk to
reoffend sexually"). Additionally, Doe's vast criminal history,
that includes numerous convictions for violent conduct, also
supports the hearing examiner's conclusion that he has a high
risk to reoffend. See 803 Code Mass. Regs. § 1.33(10)(a) (2016)
("Lawlessness and antisocial behavior correlate with risk of
reoffense and degree of dangerousness"). See also 803 Code
Mass. Regs. § 1.33(11)(a) (2016) ("offender is more likely to
reoffend . . . if he has previously demonstrated that he can act
2 Doe also does not challenge the validity of the regulations. 6 violently"). As such, the hearing examiner's decision was
supported by substantial evidence.
Judgment affirmed.
By the Court (Henry, Desmond & Englander, JJ.3),
Clerk
Entered: February 20, 2025.
3 The panelists are listed in order of seniority. 7