JOHN DOE, SEX OFFENDER REGISTRY BOARD No. 5322 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-75
JOHN DOE, SEX OFFENDER REGISTRY BOARD No. 5322
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a judgment entered in
the Superior Court upholding his classification as a level three
sex offender. He claims the evidence did not support the
hearing examiner's classification decision and did not warrant
Internet publication of his classification. We affirm.
Discussion. 1. Substantial evidence. The plaintiff first
claims that the hearing examiner abused his discretion by
mechanically applying the regulatory factors and rendering a
decision that was arbitrary, capricious, and not supported by
substantial evidence. The Sex Offender Registry Board (board)
"is constitutionally required to prove the appropriateness of an
offender's risk classification by clear and convincing
evidence." Doe, Sex Offender Registry Bd. No. 380316 v. Sex
Offender Registry Bd., 473 Mass. 297, 298 (2015) (Doe No.
380316). "To determine the validity of an agency's decision,
the reviewing court must determine whether the decision is
supported by substantial evidence." Doe, Sex Offender Registry
Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct.
73, 76 (2015), quoting Doe, Sex Offender Registry Bd. No. 10216
v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006). In
reviewing the board's decision, a court will "give due weight to
[the board's] experience, technical competence, and specialized
knowledge." Doe, Sex Offender Registry Bd. No. 496501 v. Sex
Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No.
496501), quoting Doe, Sex Offender Registry Bd. No. 205614 v.
Sex Offender Registry Bd., 466 Mass. 594, 602 (2013). "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). Based upon these
standards, we discern no error.
Contrary to the plaintiff's contentions, the hearing
examiner carefully considered the evidence that was highly
probative of both the risk of reoffending and the degree of
dangerousness and included the following: the plaintiff
sexually assaulted two female children after having been
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convicted of a previous sex offense against a male child (factor
2 -- repetitive and compulsive behavior); all his offenses
involved children (factor 3 -- adult offender with child
victim); his relationship with the male victim was extrafamilial
(factor 7 -- relationship between offender and victim); he
committed his offenses against the female victims while others
were present (factor 16 -- public place); the three victims were
of varying ages, genders, familial status (factor 21 -- diverse
victim type); and the plaintiff sexually assaulted three victims
(factor 22 -- number of victims). The examiner also considered
the offense against a male victim (factor 17 –- male against
male) as bearing on the risk to reoffend as well as the offense
against a child under the age of eight (factor 18 --
extravulnerable victim) as bearing on the degree of
dangerousness. Supporting and substantial evidence included the
police interview of the male victim that led to the charge of
indecent assault and battery of a child under 14 (G. L. c. 265,
§ 13B), the plaintiff's subsequent guilty plea to that charge,
and the trial testimony of the female victims. In each
instance, the plaintiff took advantage of his trusted positions
to abuse young children. This substantial evidence spoke
directly to the risk to reoffend and the degree of dangerousness
as identified in the governing regulations and provided "clear
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and convincing" proof of the level three classification. Doe
No. 380316, supra at 298.
The plaintiff takes specific issue with the weight the
examiner accorded to the offense against the male. In his
analysis, the examiner gave "full weight" to repetitive and
compulsive behavior (factor 2) based upon the plaintiff sexually
assaulting the female victims in 2016 and 2017 following his
conviction for sexually assaulting the male victim in 1996. The
plaintiff contends that full weight should not have been given
because he remained offense-free for almost twenty years between
the offense against the male and the offenses against the
females. The plaintiff further disputes the examiner's
consideration of factors 7, 17, 18, 21, and 22, in connection
with the offense against the male victim "because the supporting
evidence is extremely dated." "A hearing examiner, however, may
consider an offender's older sexual offenses where they are
relevant to a holistic assessment of the offender's current
degree of dangerousness." Doe No. 496501, supra at 651. We do
not substitute our judgment for such an assessment that falls
squarely within the experience, technical competence, and
specialized knowledge of the examiner. Id. at 649.
The plaintiff next contends that the offense against the
females occurred in a bedroom that should not have been
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considered a public place (factor 16). We disagree. A public
place includes any area "that is open to the scrutiny of
others." 803 Code Mass. Regs. § 1.33(16)(a) (2016). Given the
potential for detection of the offense by the mother and
siblings who were present within the bedroom when the assaults
occurred, the examiner could logically conclude that the
plaintiff exhibited a "lack of impulse control" that bore
directly on his risk to reoffend. See Doe, Sex Offender
Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass.
779, 789 (2006).
We also disagree with the plaintiff's contention that the
examiner engaged in a mere "mechanical listing of the regulatory
factors rather than the required reasoned analysis." The
hearing examiner prepared a carefully reasoned and factually
supported decision spanning forty pages. The examiner also
considered the following risk-mitigating factors in his
decision: the plaintiff's age, forty six, at the time of the
decision (factor 30 -- advanced age); his support network of
family and friends (factor 33 -- home situation and support
systems); and his stability in the community (factor 34 --
materials submitted by the sex offender regarding stability in
the community). In addition, the examiner rejected
consideration of additional allegations of sexual abuse by the
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plaintiff. We conclude that the classification decision here
was "based on a sound exercise of informed discretion rather
than the mechanical application of a checklist or some other
reflex" (quotation and citation omitted). Doe, Sex Offender
Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass.
App. Ct. 564, 574 (2020).
2. Internet publication. Finally, the plaintiff contests
Internet publication and argues that the examiner erred by not
focusing on the sexual offenses that he recently committed. He
further contends that Internet publication "would not have any
efficacy in warning his potential victim pool" because his
latest victims were intrafamilial and he is not likely to have
access to any additional intrafamilial potential victims given
the stability of his current family situation. Upon review of
the record, we discern no error.
"The efficacy of Internet publication in protecting
potential victims must be determined based on the facts of each
individual case." Doe No. 496501, 482 Mass. at 655. The
examiner here considered the specific facts surrounding the
offenses and concluded that Internet publication served a public
safety interest: "I consider that if the [plaintiff] were to
reoffend, it would likely be against an unsuspecting child who
knows him and is engaging in what the child believes to be non-
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sexual play. The child might be the child of a caregiver who
has a relationship with [the plaintiff]." This rationale is
well supported by the record that showed the plaintiff sexually
assaulted three children by taking advantage of his special
access and relationship of trust.
Judgment affirmed.
By the Court (Meade,
Englander & Hodgens, JJ.1),
Clerk
Entered: August 26, 2024.
1 The panelists are listed in order of seniority.
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