John Doe, Sex Offender Registry Board No. 187531 v. Sex Offender Registry Board. ( 2023 )

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
21-P-968
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 187531
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment
affirming his classification by the Sex Offender Registry Board
(SORB) as a level 3 sex offender. On appeal, the plaintiff
claims the hearing examiner erred by (1) applying risk elevating
factors that were not supported by substantial evidence, and (2)
denying the plaintiff's motion for expert funds. We affirm.
Discussion. "When analyzing the validity of a decision by
[SORB], a reviewing court must determine whether the decision is
supported by substantial evidence" (quotation and citation
omitted). Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 632 (2011). "Substantial
evidence is such evidence as a reasonable mind might accept as
adequate to support a conclusion" (quotation and citation
omitted). Id. We give due weight to SORB's experience,
technical competence, and specialized knowledge, and the burden
is on the plaintiff to demonstrate that the decision was
invalid. See id. at 632-633
Factors 10, 18 and 19. The plaintiff claims the hearing
examiner abused his discretion by applying risk-elevating factor
10. Specifically, he claims that the hearing examiner
erroneously applied factor 10 because he failed to acknowledge
that some of the "charges [and] convictions" on the plaintiff's
record resulted in dismissals. See 803 Code Mass. Regs.
§ 1.33(10) (2016). We disagree.
In his application of factor 10, the hearing examiner
analyzed the plaintiff's contact with the criminal justice
system. He described the plaintiff's criminal history, the
multiple states in which it occurred, and the different types of
crimes for which the plaintiff was charged or convicted.
Although the hearing examiner did not denote the disposition of
each charge, some of which were dismissed, it was clear that the
plaintiff had substantial contact with the criminal justice
system. See Doe, Sex Offender Registry Bd. No. 390261 v. Sex
Offender Registry Bd., 98 Mass. App. Ct. 219, 226 (2020) (Doe
No. 390261) ("factor 10 does not confine the examiner to
consider only convictions"). Indeed, between 2002 and 2004, the
plaintiff had eleven different criminal charges in Massachusetts
and New York. Given the plaintiff's extensive contact with the
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criminal justice system, factor 10 was appropriately applied,
which increased both his risk to reoffend and his degree of
dangerousness.
The plaintiff also claims the hearing examiner erred by
applying aggravating weight to factors 18 and 19 without
discussing how those factors affect risk of recidivism. The
plaintiff is correct that the hearing examiner discussed factors
18 and 19 in connection with the plaintiff's risk of reoffense,
even though the text of those regulatory factors mentions only
the offender's degree of dangerousness. See 803 Code Mass.
Regs. § 1.33(18)-(19). However, we do not agree that this
discrepancy requires reversal. The hearing examiner applied
four other risk-elevating factors when analyzing the plaintiff's
risk of reoffense. His analysis took into account the extreme
violence of the plaintiff's sexual assaults (factor 8), the
public location of one of the assaults (factor 16), and the
plaintiff's criminal history and disciplinary record (factors 10
and 12). Therefore, even if factors 18 and 19 were excised from
the analysis, there was still clear and convincing evidence that
the plaintiff's risk of reoffense was high. See Doe No. 390261,
98 Mass. App. Ct. at 227.
We also do not agree with the plaintiff that the hearing
examiner took a "checklist approach" in applying factors 18 and
19. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex
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Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012)
(classification may not be based on "mechanical application" of
checklist). Factors 18 and 19 are considered static factors
because they pertain to an offender's original offense and do
not change over time. See 803 Code Mass. Regs. § 1.33. Given
the facts of this case, SORB's regulations required the hearing
examiner to apply both factors and did not require him to assign
them a specific weight. Further, the hearing examiner explained
why factors 18 and 19 elevated the plaintiff's degree of
dangerousness. Factor 18 defines an extravulnerable victim to
include a victim in a circumstance that renders her more
susceptible to sexual assault or unable to effectively defend
herself. Here, the hearing examiner determined that because the
plaintiff raped the victim while she was asleep, she was
prevented from defending herself at that moment. Factor 19 is
applied where the offender's sex offenses include penetration of
the victim. Here, the hearing officer applied this factor
because during the commission of his sex offense, the plaintiff
penetrated the victim's vagina with his penis three times. The
hearing officer therefore explained his reasoning adequately and
properly applied both factors.
Expert funds. The plaintiff also claims that the hearing
examiner abused his discretion by denying the plaintiff's motion
for expert funds. Specifically, he maintains that his motion
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should have been allowed because he provided medical
documentation that identified a diagnosed mental health
condition, adjustment disorder, and identified the type of
expert that would testify on his behalf if funds were allowed.
We disagree.
"[T]he decision whether to grant an individual sex offender
funds for an expert is a discretionary one, to be based on the
facts presented in an individual case." Doe, Sex Offender
Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.
764, 775 (2008) (Doe No. 89230). "[I]n moving for expert
witness funds, the burden [is] on the sex offender to identify
and articulate the reason or reasons, connected to a condition
or circumstance special to him, that he needs to retain a
particular type of expert. A general motion for funds to retain
an expert to provide an opinion on the sex offender's risk of
reoffense, without more, would appear to be insufficient." Id.To meet the necessary burden of proof in a motion for
expert funds, an offender must explain how the identified
condition or circumstance is connected to his risk of reoffense
or level of dangerousness or provide evidence to support such a
connection. Doe, Sex Offender Registry Bd. No. 339940 v. Sex
Offender Registry Bd., 488 Mass. 15, 29-30 (2021). See 803 Code
Mass. Regs. § 1.16(4) (a) (2016). The plaintiff's motion failed
to meet this burden.
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The plaintiff sought an expert to address the relationship
between his 2019 diagnosis of adjustment disorder and his risk
of reoffense and degree of dangerousness. However, the
plaintiff did not provide evidence that sufficiently addressed
the nexus between the adjustment disorder and his risk of
reoffense or his dangerousness. In fact, the plaintiff admitted
that the diagnosis came after his offending behavior, and merely
offered speculation that his offenses "seem" to be related and
that he "may" have further stressors that "may" develop into the
persistent form of the disorder. This was insufficient. See
Doe No. 89230, 452 Mass. at 775. Without a nexus between the
mental health condition and the plaintiff's current risk or
degree of danger, the hearing examiner's denial of the motion
for expert funds was neither error nor an abuse of discretion.
Judgment affirmed.
By the Court (Green, C.J.,
Meade & Blake, JJ.1),
Clerk
Entered: February 17, 2023.
1 The panelists are listed in order of seniority.
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