John Doe, Sex Offender Registry Board No. 460386 v. Sex Offender Registry Board.

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-948
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 460386
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe appeals from a Superior Court judgment on the
pleadings affirming his classification by the Sex Offender
Registry Board (SORB) as a level three (high risk) sex offender.
See G. L. c. 6, § 178K (2) (c). Doe claims error in the SORB
hearing examiner's application of the statutory and regulatory
factors1 and argues that there was not clear and convincing
evidence to support a level three classification. We discern no
error and therefore affirm.
Background. On July 20, 2015, Doe was convicted on four
counts of indecent assault and battery for sexually abusing two
victims in June or July of 2011. Victim 1 was Doe's seven year
old daughter, who was the child of Doe and his ex-wife, and
1 See G. L. c. 6, § 178K (1); 803 Code Mass. Regs. § 1.33 (2016).
victim 2 was an eight year old friend of victim 1, and the
daughter of Doe's then-girlfriend. Both victims reported Doe
penetrating their vaginas with his hands and tongue and showing
them pornographic movies on his cell phone.2 Doe also slept in
the same bed as victims 1 and 2 when neither child was wearing
underwear. Doe received concurrent three to four year committed
sentences on his convictions, followed by five years of
probation.
Around the time Doe committed the index offenses, he was
convicted of stalking and sentenced to probation. He later
violated probation and was incarcerated for thirty days. Doe
also "had a disorderly charge" continued without a finding in
1987 and two assault and battery charges filed and dismissed in
1993.
In March 2020, SORB notified Doe of his preliminary level
three classification and Doe requested a hearing. At the
hearing, fifty-one year old Doe testified that his criminal
history was the result of misunderstandings, but acknowledged
that he had violated the conditions of his pretrial release for
his index offenses. Specifically, Doe admitted to breaching the
condition that prohibited him from contacting his victims'
mothers. Even though only one violation had ever officially
2 Doe was acquitted of disseminating obscene matter to a child.
2
been reported, Doe testified that he had contacted the victims'
mothers, who were his ex-wife and ex-girlfriend, between six and
eight times while the order was in effect, stating that "my
emotions did get to me," as an explanation for his behavior. As
to his sex offenses, Doe stated that the victims were looking at
pornography on their own and he did not lick the vaginas of
victim 1 or 2, but he did accidentally "poke" each victim's
vagina with his finger after waking up to both girls "grabbing
at" him. Doe later took "responsibility for touching them" by
saying, "I regret what happened. At the time I struggled with
why it would even be conceived sexual, but it is what it is."
Doe testified he understood the reason "why I'm here" is "I
didn't advocate for myself."
In addition to this testimony, the hearing examiner
considered evidence of psychological or psychiatric profiles
regarding Doe's risk to reoffend (factor 35), and victim impact
statements from victim 1 and her mother (factor 38).3 The
examiner then applied risk aggravating factor 3 "with greater
weight," risk elevating factors 7, 10, 11, 13, 18, 19, 21, and
22, and risk mitigating factors 28, 30, and 32, before finding
on balance that the risk mitigating factors "do not ameliorate
3 The hearing examiner acknowledged research articles Doe had
submitted pursuant to factor 37 (other information related to
the nature of sexual behavior) but declined to "consider them
beyond what is already contemplated within [SORB's] [f]actors."
3
[Doe]'s high risk of sexual reoffending" or "high risk of
dangerousness." Further finding that Internet dissemination of
Doe's registry information was warranted, the examiner ordered a
level three classification. A Superior Court judge affirmed
"[a]fter careful review of the full administrative record in
light of the standards applicable under G. L. c. 30A, § 14 (7)."
Discussion. "Our inquiry on appeal is similar to the
inquiry conducted by [the] Superior Court judge." Doe, Sex
Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 108 n.3 (2014) (Doe No. 68549). 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). We give due weight to
SORB's experience, technical competence, and specialized
knowledge, as well as to the discretionary authority conferred
upon it, mindful that SORB hearing examiners have discretion "to
consider which statutory and regulatory factors are applicable
and how much weight to ascribe to each factor." Doe No. 68549,
supra at 109-110.
A level three classification is appropriate where SORB
determines that the offender's risk of reoffense is high and the
4
degree of dangerousness posed to the public is such that a
substantial public safety interest is served by active
dissemination of the offender's registry information. See Doe,
Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry
Bd., 488 Mass. 15, 30 (2021), citing Doe, Sex Offender Registry
Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 754
(2021). Three elements must be established by clear and
convincing evidence: "(1) the offender's risk of reoffense,
(2) the offender's dangerousness as a function of the severity
and extent of harm the offender would present to the public in
the event of reoffense, and (3) the public safety interest
served by public access to the offender's information" (citation
omitted). Id.Doe argues that the examiner erred in his application of
factor 10 (contact with criminal justice system) because he
"made no findings of fact as to how [Doe’s 1987 disorderly
conduct charge and 1993 assault and battery charges], [which
were] minor and remote in time, go to predicting Doe's future
sexual misconduct." We do not agree that Doe's contacts were
minor and remote in time. In addition to the disorderly conduct
and assault and battery charges, in 2011, Doe was convicted of
stalking and placed on probation, which he later violated. Doe
also violated a no contact order when he was on pretrial
5
release. There was no error in the hearing examiner's
consideration of this factor.
Doe also argues that the examiner erred in failing to give
him any credit for risk mitigating factor 33 (home situation and
support systems) and factor 34 (stability in community),
ignoring his lack of disciplinary issues while incarcerated,
completion of sex offender treatment, his job prospects
attributable to his educational and professional background, and
support from his brother. As an initial matter, Doe's lack of
disciplinary issues and completion of sex offender treatment are
not relevant to factors 33 and 34. SORB's regulations only
required the hearing examiner to consider Doe's behavior while
incarcerated when determining whether to apply risk-elevating
factor 12, which states that offenders who exhibit poor behavior
while in custody present an increased degree of dangerousness.4
See 803 Code Mass. Regs. § 1.33(12). The regulations did not
mandate the consideration of Doe's good behavior as a risk
mitigating factor. Similarly, the hearing examiner was only
required to consider Doe's completion of sex offender treatment
with respect to risk mitigating factor 32, which she did, in
fact, apply "with full weight."
4 It is worth noting that the hearing examiner did not apply
factor 12 to Doe.
6
Doe's job prospects and familial support stand on different
footing to the extent these circumstances may be considered
under factors 33 and 34. However, the only evidence of Doe's
job prospects and familial support was Doe's uncorroborated
testimony. The examiner was not required to give it credit.
Here, the examiner found a level three classification
appropriate because Doe committed multiple high-contact sex
offenses against prepubescent children in his care who were and
were not related to him, suggesting a large victim pool and
potential for harm. Doe also had a criminal history that
included willfully violating no contact orders many times. The
examiner gave "full weight" to Doe's participation in sex
offender treatment and considered Doe's age, but, after hearing
from him, found that Doe, "still almost a decade from the
prerequisite [sixty] years of age for child sex offenders, . . .
would be unlikely to volitionally exercise the impulse control
necessary for inhibiting and self-monitoring his inappropriate
sexual urges towards potential [v]ictims in the future including
such [v]ictims as extravulnerable prepubescent girls."
7
This finding, based on the examiner's assessment of Doe's
credibility, is entitled to deference, see Doe, Sex Offender
Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass.
131, 138 (2019), and supports a level three classification.
Judgment affirmed.
By the Court (Ditkoff,
Singh & Grant, JJ.5),
Clerk
Entered: March 8, 2023.
5 The panelists are listed in order of seniority.
8