John Doe, Sex Offender Registry Board No. 523873 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
22-P-555
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523873
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
(board) as a level three sex offender. Doe argues that the
hearing examiner erroneously applied a high-risk factor,
impermissibly disregarded Doe's expert's testimony, and arrived
at a classification decision unsupported by clear and convincing
evidence. We affirm.
Background. In June 2014, after dinner and drinks at a
restaurant with friends, a woman hailed a taxi driven by Doe.
Doe drove to a secluded location, got in the back seat next to
the woman, and began kissing her and touching her breasts and
buttocks, then lifted her dress and digitally penetrated her
vagina. The victim resisted, saying "no" and "stop," and asking
Doe to take her to her destination. As the victim struggled
with Doe, he grabbed her by the throat. When he was finished,
Doe returned to the driver's seat, drove to State Street in
Boston, and dropped the victim off, yelling, "Get the fuck out,
I didn't do anything wrong." The victim later discovered she
was missing her wallet and cell phone. Through surveillance
video, detectives saw Doe make several purchases using the
victim's debit card.
As a result of this assault, in September 2015 Doe was
convicted of kidnapping, aggravated rape, indecent assault and
battery on a person aged fourteen or over, assault and battery,
unarmed robbery, and credit card fraud over $250.1 He was
sentenced to a State prison term of six to eight years for
aggravated rape, followed by concurrent ten-year terms of
probation for the remaining counts; he was also required to
register as a sex offender.
In July 2020, prior to Doe's release from prison, the board
notified him of his preliminary classification as a level three
sex offender. Doe requested an evidentiary hearing, which was
held in March 2021. The hearing examiner found clear and
convincing evidence that Doe posed a high risk to reoffend and a
high degree of dangerousness, which justified classifying him as
a level three sex offender and publishing his sex offender
1 The kidnapping conviction was vacated on appeal as duplicative
of the aggravated rape conviction.
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status online. Doe timely filed a complaint for judicial review
in the Superior Court. In April 2022, a Superior Court judge
issued a decision affirming the classification decision. This
appeal followed.
Discussion. 1. Factor 2. The hearing examiner applied
one high-risk factor: "Repetitive and Compulsive Behavior," 803
Code Mass. Regs. § 1.33(2) (2016) (factor 2).2 Doe argues that
the hearing examiner should not have applied factor 2 because
the term "sexual misconduct" used in the regulation is
"impermissibly vague," and also because his sexual misconduct
was not predictive of future sex offenses.
The hearing examiner applied factor 2 based on Doe's 2001
arrest for engaging in sexual conduct for a fee, see G. L.
c. 272, § 53A, after he offered to pay a female undercover
police officer to perform a sexual act. Doe admitted to
2 The relevant language of factor 2 is as follows:
"The Board 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). The hearing examiner did not
rely on the questioned language of factor 2, "which provided for
a finding of repetitive and compulsive behavior based only on
repetitive offenses occurring after enough time for reflection."
Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry
Bd., 490 Mass. 759, 765 (2022).
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sufficient facts, and the case was dismissed after being
continued without a finding (CWOF). The hearing examiner
considered the conduct underlying Doe's 2001 arrest to be
"sexual misconduct"; because Doe committed that sexual
misconduct in 2001 and then committed the rape in 2014, the
hearing examiner gave factor 2 "increased weight."
As to Doe's vagueness challenge, because he did not raise
this claim before the hearing examiner or the Superior Court
judge, it is waived. See Doe, Sex Offender Registry Bd. No.
203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320-
321 (2015). Even if the issue were not waived, however, we are
not persuaded that the term "sexual misconduct" in factor 2 is
vague as applied to Doe's act of engaging in sexual conduct for
a fee. The board's use of the term "sexual misconduct," which
appears in factor 2 and elsewhere in the regulations, as opposed
to the defined term "sex offense," see G. L. c. 6, § 178C, which
is also used throughout the regulations, is clearly intentional.
It is obviously meant to include a broader range of conduct than
the specific offenses enumerated in the definition of "sex
offense." We have no doubt that any reasonable person would
understand that the criminal conduct of attempting to pay a
stranger to perform a sexual act, though not a defined "sex
offense," is encompassed by the term "sexual misconduct."
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Doe next argues that the act of solicitation is not
predictive of sexual recidivism. Doe posits that only the sex
offenses enumerated by the Legislature have such predictive
value. In the absence of any precedent supporting this view, we
are not persuaded. Doe's contention that only designated sex
offenses are relevant under factor 2 in effect questions the
board's determination, in the regulation itself, that sexual
misconduct not rising to the level of a "sex offense" is
indicative of a risk of reoffense.3 We accord deference to the
board's judgment, expressed in its regulations, concerning the
type of conduct that presents a high risk of reoffense. See
Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender
Registry Bd., 99 Mass. App. Ct. 292, 297-298 (2021) (Doe No.
356315).
Turning to the hearing examiner's weighing of factor 2 in
this case, we discern no error or abuse of discretion. The
regulation distinguishes between offenders who have been
investigated by authorities for "sexual misconduct" and
subsequently engage in additional sexual misconduct and those
3 The fact that several of the risk-elevating factors identified
in the regulations are not associated with either sex offenses
or sexual misconduct suggests that Doe's narrow reading of
factor 2 is not consistent with the board's broader assessment
of risk and danger. See, e.g., 803 Code Mass. Regs. § 1.33(9)
(alcohol and substance abuse); § 1.33(10) (contact with criminal
justice system); § 1.33(11) (violence unrelated to sexual
assaults).
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who are charged with or convicted of a "sex offense" and
subsequently engage in additional sexual misconduct. For the
first category, which includes Doe, factor 2 may be accorded
"increased weight." 803 Code Mass. Regs. § 1.33(2)(a). For the
second category, factor 2 may be given "[t]he most weight." Id.
As the Superior Court judge aptly put it, "The thrust of Factor
2 is that, even after Doe was held to account (via the charge
and the CWOF) for his sexual misconduct, in 201[4] he engaged in
additional and more serious sexual misconduct." The hearing
examiner properly applied factor 2, giving it "increased," but
not "most," weight based on the finding that although Doe was
investigated by authorities and charged for sexual misconduct,
he nonetheless went on to commit a subsequent act of sexual
misconduct -- an aggravated rape.4
2. Expert testimony. At the hearing, Doe submitted a
psychological assessment report written by Dr. Joseph Plaud, a
specialist in evaluating and treating sex offenders. Plaud
4 We are not persuaded that the fleeting and conclusory testimony
of Doe's expert, that "paying for sex" is "a different quality
or type of offense that puts it out of the realm" in predicting
future contact sex offenses, provided an adequate basis for the
hearing examiner to disregard factor 2 or to find it
inapplicable. We find more persuasive Doe's argument that the
thirteen-year gap between offenses suggests a lack of
compulsivity; it is not our place, however, to substitute our
judgment for that of the hearing examiner or the board where the
examiner's application of the board's regulation is supported by
the evidence. See Doe No. 356315, 99 Mass. App. Ct. at 300.
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wrote and testified that Doe presented only a moderate risk and
should be classified as a level two sex offender. The hearing
examiner credited Plaud's expertise and the validity of Plaud's
methods, but noted that the testing process underlying the
report "did not reflect an assessment based on the Board's
comprehensive regulatory factors." Although the hearing
examiner generally agreed with Plaud's "application of the
factors," the hearing examiner attached weight to the high-risk
and risk-elevating factors that Plaud did not consider and
concluded that Doe presented a high risk to the public.
Doe claims that the hearing examiner abused his discretion
by assigning "limited weight" to Plaud's opinion and erred by
instead limiting his analysis to the regulatory factors. We
discern no error or abuse of discretion. The hearing examiner
was required to, and did, explain his reasons for partially
disregarding Plaud's expert opinion and reaching a different
conclusion based on the applicable risk factors. See Doe, Sex
Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447
Mass. 750, 764 (2006). This is not a case where the plaintiff's
expert presented reliable evidence that was not addressed in the
board's regulations. See Doe, Sex Offender Registry Bd. No.
205614 v. Sex Offender Registry Bd., 466 Mass. 594, 604 (2013);
Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender
Registry Bd., 456 Mass. 612, 622-623 (2010). The hearing
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examiner was required to consider Plaud's testimony; he was not
required to accept it or substitute Plaud's risk assessment for
his own. See Doe No. 205614, supra at 595.
3. Classification as level three offender. Finally, Doe
contends that because most of the risk-elevating factors arose
from a single event and there were multiple mitigating factors,
the hearing examiner's classification decision was not supported
by clear and convincing evidence. Rather, Doe contends that the
hearing examiner merely "engaged in a perfunctory effort based
on a tally sheet of aggravating and mitigating factors,
concluding in the end simply that the former outweighed the
latter." Doe, Sex Offender Registry Bd. No. 11204 v. Sex
Offender Registry Bd., 97 Mass. App. Ct. 564, 575-576 (2020).
We disagree.
Hearing examiners are required to consider the thirty-eight
high-risk, risk-elevating, risk-mitigating, and additional
factors set forth in the regulations. See 803 Code Mass. Regs.
§ 1.33. Nonetheless, "[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." Id., third par. Hearing
examiners have discretion, and enjoy substantial deference upon
review, to choose and weigh the applicable factors so long as
their interpretation and application of the regulations are
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rational. See Smith v. Sex Offender Registry Bd., 65 Mass. App.
Ct. 803, 813 (2006), citing Midland States Life Ins. Co. v.
Cardillo, 59 Mass. App. Ct. 531, 537 (2003). See also Doe, Sex
Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd.,
482 Mass. 643, 649 (2019) ("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").
As to Doe's risk to reoffend, the hearing examiner
concluded Doe presented a high risk to reoffend based on the
fact that he raped a stranger in a public place and strangled
her during the assault. The attack came after Doe had
previously been investigated and charged for sexual misconduct,
supporting the application of high risk factor 2, and his
criminal history, albeit short, and minor disciplinary reports
while incarcerated increased the risk he presented. The hearing
examiner considered, but gave only limited weight, to Doe's
expert's classification recommendation; gave moderate weight to
Doe's age and participation in sex offender therapy; and gave
full weight to his support system. The hearing examiner
likewise found that Doe presented a high degree of dangerousness
based on the facts that he strangled the victim during the
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assault, that the victim was vulnerable because she was
intoxicated, and that the attack involved vaginal penetration,
notwithstanding the fact that Doe would be subject to probation
supervision for ten years after release. In short, the hearing
examiner considered and balanced the relevant factors, and his
decision was supported by substantial evidence. We see no basis
to disturb the examiner's conclusions.
Judgment affirmed.
By the Court (Blake,
Massing & Hand, JJ.5),
Clerk
Entered: December 1, 2023.
5 The panelists are listed in order of seniority.
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