John Doe, Sex Offender Registry Board No. 524724 v. Sex Offender Registry Board. ( 2024 )

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-342
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524724
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. On appeal,
Doe challenges the classification on various grounds, including
by arguing that the hearing examiner failed to provide an
adequate explanation for how Doe presents a moderate risk of
reoffense. For the reasons set forth below, we vacate the
Superior Court judgment and remand for entry of a new judgment
vacating the final classification and remanding the matter to
SORB for further proceedings consistent with this memorandum and
order.
Background. On May 6, 2014, a nurse at a skilled nursing
center walked into a patient room and discovered Doe, a
certified nursing assistant, with a female dementia patient
(victim). The nurse saw Doe with the victim behind a curtain
and that the victim was naked from the waist down with her legs
spread open. The nurse asked Doe what he was doing, to which
Doe responded, "I know I'm in trouble, this looks bad, I'm
sorry." Doe claimed that he was changing the victim's diaper,
but the nurse checked and noticed that the diaper was clean.
The nurse immediately took the diaper and secured it in a paper
bag. Another nursing center employee responded to the incident
and testified at trial that she saw blood in the victim's vagina
immediately after the incident.
When questioned by the police on June 10, 2014, Doe
admitted to putting his fingers inside the victim's vagina
during the incident in question, as well as on another occasion
in January 2014 while he was working an overnight shift.1
Doe was indicted in Superior Court on two counts of rape;
after a bench trial on April 12, 2017, Doe was found guilty of
one count of rape. Doe was sentenced to six to eight years in
State prison.
In the SORB classification proceedings, Doe raised several
risk-mitigating factors, see 803 Code Mass. Regs. § 1.33 (2016):
(1) factor 28 (supervision by probation or parole) for having
Doe was advised of his Miranda rights and agreed to be
1
interviewed by the police. Miranda v. Arizona, 384 U.S. 436(1966).
2
strict parole conditions; (2) factor 32 (sex offender treatment)
because of Doe's completion of sex offender treatment; (3)
factor 33 (home situation and support systems) due to Doe's
robust support network of family and friends; and (4) factor 34
(materials submitted by the sex offender regarding stability in
the community) as a result of Doe's course completions,
continued education, and anticipated housing and employment on
release. The hearing examiner agreed that these factors applied
and that three of the four were to be given "full weight." He
ultimately concluded that Doe nevertheless presented a moderate
risk of reoffense and a moderate degree of danger. On this
basis, the hearing examiner classified Doe as a level two
offender. Although the hearing examiner's written decision
included an extensive explanation of how Doe presented a
moderate degree of dangerousness, it included little explanation
of why he presented a moderate risk of reoffending. In fact,
the hearing examiner's discussion of Doe's risk of reoffense
cited to only one risk-elevating factor that bore on that issue
(factor 16, public place).2
2 The examiner's original decision applied factors 7, 18,
and 19 to conclude that Doe had an increased risk of reoffense.
As SORB's brief acknowledges, the examiner then issued an
amended decision treating these three factors as bearing only on
Doe's degree of dangerousness. This appears to reflect that
factor 7's "position of trust" provision refers only to
"increased level of dangerousness," factor 18 refers only to
3
Discussion. Our review is narrow. We may set aside or
modify SORB's decision only if we determine "that the decision
is in excess of SORB'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) (Doe No. 496501). Moreover, hearing examiners
have been delegated extensive 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). Our review is principally limited to whether the
hearing examiner examined the relevant factors and provided an
adequate explanation for his or her conclusions. See Doe No.
496501, supra at 657 (hearing examiner is required to "make
explicit his or her findings" regarding degree of dangerousness
and risk of reoffense, and "make clear that each determination
"danger to public safety," and factor 19 refers only to
"increased degree of dangerousness." 803 Code Mass. Regs.
§ 1.33(7)(a)(2), (17), (18). We note that in the background
section of his decision, the hearing examiner did touch on
factor 35 (psychological or psychiatric profiles regarding risk
to reoffend), by referencing Doe's scores on the Static-99R and
Stable-2007 models and attaching "some weight" to those scores,
but "only to the extent they may be seen as general indicators
of risk of re-offense." The examiner did not, however, cite
this factor in his overall assessment of Doe's risk of
reoffense.
4
is supported by clear and convincing evidence"). See also Doe,
Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry
Bd., 81 Mass. App. Ct. 639, 651 (2012) ("SORB's decision must
show that the classification is based on a sound exercise of
informed discretion rather than the mechanical application of a
checklist or some other reflex").
Our review leads us to conclude that while the hearing
examiner adequately engaged in the required qualitative and
objective review that balanced all the relevant risk-aggravating
and risk-mitigating factors as to Doe's degree of dangerousness,
he failed to provide sufficient analysis as to Doe's risk of
reoffense. As noted, the hearing examiner concluded that the
four risk-mitigating factors Doe raised applied and that three
of them should be given "full weight." In the face of this, the
perfunctory analysis in which the hearing examiner engaged
failed adequately to explain how he concluded, by clear and
convincing evidence, that Doe presented a moderate risk of
reoffense."3
3 To be clear, we do not accept Doe's contention that the
hearing examiner erred in concluding that factor 16 (public
place) applied. See Doe, Sex Offender Registry Bd. No. 390261
v. Sex Offender Registry Bd., 98 Mass. App. Ct. 219, 225 (2020),
quoting 803 Code Mass. Regs. § 1.33(16)(a) ("public place"
includes "any place that is open to the scrutiny of others or
where there is no expectation of privacy"). Here, Doe assaulted
the victim in the presence of another patient in a nursing
center, despite the likely detection by the patient occupying
5
The judgment affirming SORB's decision is vacated, and the
case is remanded for entry of a new judgment vacating the final
classification and remanding the matter to SORB for further
proceedings consistent with this memorandum and order.4
So ordered.
By the Court (Milkey, Sacks &
Smyth, JJ.5),
Clerk
Entered: August 12, 2024.
the room and nursing center staff. In addition, Doe did not
raise this argument before the agency, and therefore waived it.
See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803,
810 (2006). Nor do we discern any error in the hearing
examiner's concluding that Doe presented a moderate degree of
dangerousness. That conclusion is supported by clear and
convincing evidence and adequately explained.
4 In light of this disposition, we need not address Doe's
argument that a remand is necessary under Doe No. 496501, 482
Mass. at 655-657, for a particularized finding whether Internet
dissemination is warranted, making Doe's sex offender registry
data available to healthcare providers with whom Doe might seek
employment. The hearing examiner will be able to consider that
issue on remand. Nothing in this memorandum and order should be
interpreted as stating any substantive position on how Doe
should be classified.
5 The panelists are listed in order of seniority.
6