John Voe, Sex Offender Registry Board No. 6615 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-1083
JOHN VOE, SEX OFFENDER REGISTRY BOARD NO. 6615
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Voe (Voe), 1 appeals from a Superior
Court judgment affirming the Sex Offender Registry Board's
(board or SORB) final decision classifying him as a level two
sex offender. 2 On appeal, Voe asserts that the examiner
erroneously determined that Voe raped one of his victims, and
that the examiner improperly weighted several risk mitigating
factors. Thus, Voe argues, the board's decision was unsupported
1 A pseudonym.
2 "A level two classification requires a finding, by clear and
convincing evidence, that '(1) the offender's risk of reoffense
is moderate; (2) the offender's dangerousness is moderate; and
(3) a public safety interest is served by Internet publication
of the offender's registry information.'" Doe, Sex Offender
Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass.
131, 138 (2019), quoting Doe, Sex Offender Registry Bd. No.
496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656 (2019).
See G. L. c. 6, § 178K (2) (b).
by substantial evidence, arbitrary or capricious, and an abuse
of discretion. We affirm.
Background. We summarize the facts as found by the hearing
examiner, "supplemented by undisputed facts from the record,"
and reserve certain facts for later discussion. Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 606 (2011) (Doe No. 10800).
a. Index sex offenses. Offense #1. On July 16, 1989, Voe
approached a thirty-two year old woman from behind while she was
walking home from church with her seven year old daughter. 3 Voe
grabbed the victim's breasts and groped her vagina while
stating, in Spanish, that he was "going with" her. On October
5, 1989, Voe pleaded guilty to indecent assault and battery; he
was sentenced to a term of four to five years in prison.
Offense #2. On July 20, 1989, Voe approached two women
while they were walking on a street in Holyoke. After one of
the women rebuffed Voe's request to "make love," Voe pushed the
woman against a wall, grabbed her by the hair, and tried to
force his penis into her mouth. The victim kicked Voe in the
groin and attempted to run away. Voe caught the victim, threw
her to the ground, and "pulled her skirt and underpants off and
3 The hearing examiner based his findings on documentary
materials, including certain police reports, indictments, and
Voe's probation report; no witnesses testified at the
classification hearing.
2
got on top of her and put his penis into her vagina." Police
officers then arrived on the scene and arrested him. On October
4, 1989, Voe pleaded guilty to, among other things, assault with
intent to rape, and was sentenced to five to seven years in
prison.
Offense #3. On January 16, 1997, Voe and two companions
forced a fourteen year old girl into their vehicle and drove her
to an apartment where they threatened to hurt her. Voe's
accomplices then held the victim down on a bed while Voe
penetrated the victim's vagina with his penis. On September 22,
1998, Voe pleaded guilty to charges of kidnapping and rape and
abuse of a child. He was sentenced to two and one-half years
committed with seven years of probation.
b. Relevant procedural history.
Doe originally was notified of his obligation to register
as a level three offender in 2003; he did not respond to the
preliminary recommendation letter and, in February 2004, he was
so classified. In 2019, in response to Voe's petition for
reclassification, the board preliminarily recommended that Voe
be reclassified as a level two offender. Voe challenged that
recommendation and, on July 20, 2020, a hearing examiner held a
de novo evidentiary hearing. On September 16, 2020, the hearing
examiner issued a written decision finally classifying Voe as a
3
level two sex offender. 4 Voe sought review in the Superior Court
pursuant to G. L. c. 6, § 178M. See G. L. c. 30A, § 14 (7). A
judge denied Voe's motion for judgment on the pleadings and
allowed SORB's cross-motion for the same. Voe now appeals
therefrom.
Voe contends that SORB's decision was arbitrary,
capricious, and an abuse of discretion because the hearing
examiner: (1) erroneously found that he raped one of the
victims of the second 1989 incident; (2) improperly evaluated
risk mitigating factors 32 and 33 by assigning only moderate
weight to those factors; and (3) failed to indicate how much
weight he gave to risk mitigating factor 34.
Discussion. 1. Standard of review. A reviewing court may
set aside a decision of the board if it determines "that the
decision is unsupported by substantial evidence or is arbitrary
4 In so doing the hearing examiner applied twelve risk
aggravating factors, including factors 2 (repetitive and
compulsive behavior); 3 (adult offender with child victim); 7
(relationship between offender and victim); 8 (weapons,
violence, or infliction of bodily injury); 10 (contact with
criminal justice system); 11 (violence unrelated to sexual
assaults); 13 (noncompliance with community supervision); 15
(hostility toward women); 16 (public place); 19 (level of
physical contact); 21 (diverse victim types); and 22 (number of
victims). See 803 Code Mass. Regs. § 1.33 (2016). The hearing
examiner also applied six risk mitigating factors, including
factors 29 (offense free time in the community); 30 (advanced
age); 32 (sex offender treatment); 33 (home situation and
support systems); 34 (materials submitted by the sex offender
regarding stability in the community); and 37 (other information
related to the nature of the sexual behavior). Id.
4
or capricious, an abuse of discretion, or not in accordance with
law [quotation omitted]." Doe, Sex Offender Registry Bd. No.
22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801
(2022). While we review the board's decision de novo, Brown-
Forman Corp. v. Alcoholic Beverages Control Comm'n, 65 Mass.
App. Ct. 498, 504 (2006), we "give due weight to the experience,
technical competence, and specialized knowledge of the agency,
as well as to the discretionary authority conferred upon it."
Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender
Registry Bd., 447 Mass. 779, 787 (2006) (Doe No. 10216), quoting
G. L. c. 30A, § 14 (7). Voe therefore "bears a heavy burden of
establishing that the [board]'s decision was incorrect
[quotation omitted]." Doe, Sex Offender Registry Bd. No. 3177
v. Sex Offender Registry Bd., 486 Mass. 749, 757 (2021).
When reviewing a decision by the board, we "must determine
whether the decision is supported by substantial evidence
[quotation omitted]," Doe No. 10800, 459 Mass. at 632, which is
defined as "such evidence as a reasonable mind might accept as
adequate to support a conclusion." Id., quoting G. L. c. 30A,
§ 1 (6).
Our review "does not turn on whether, faced with the same
set of facts, we would have drawn the same conclusion . . . but
only whether a contrary conclusion is not merely a possible but
a necessary inference [quotation omitted]." Doe, Sex Offender
5
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 110 (2014).
2. Hearing examiner's alleged errors. a. Erroneous
finding of rape of victim during second 1989 incident.
Voe argues that the examiner erred in finding that he raped
the victim of the July 20, 1989 incident (index offense #2)
because the evidence was insufficient to establish that Voe
penetrated the victim's vagina. Voe points to the victim's
statement, as reported by the police, that Voe was "trying to
rape her" and argues this is conclusive proof that the rape was
not consummated since penetration was not established.
Additionally, Voe argues that he pleaded guilty only to
attempted rape, not the charge of rape. Voe's argument omits
the fact that the victim, in addition to reporting that Voe
attempted to rape her, told the police that Voe "put[] his penis
into [her] vagina." We thus reject Voe's claim of error and
find the hearing examiner acted within his discretionary
authority by relying upon the victim's statement to the police
in concluding that Voe had raped the victim. See Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 89-90 (2019) (finding police reports of
sexual assault relied upon by hearing examiner bore sufficient
indicia of reliability).
6
Even if Voe were correct that the hearing examiner erred by
finding penetration for this offense, the fact that his attempt
to rape the victim may not have been successful has little if
any bearing on the degree of risk he presents when considering
his other predicate index offenses 5 as well as the additional
relied-upon risk factors underlying Voe’s level two
classification. See New Palm Gardens, Inc. v. Alcoholic
Beverages Control Comm'n, 11 Mass. App. Ct. 785, 794-795 (1981)
(determining that a remand would be waste of time because no
real doubt the commission would reach same conclusion).
b. Examiner's application of regulatory factors. Voe
asserts that the examiner erroneously applied mitigating factors
32, 33, and 34 in determining his classification level. See 803
Code Mass. Regs. § 1.33 (2016).
Factor 32. Voe claims it was error for the examiner to
give decreased risk mitigating weight to this factor. We
disagree. The hearing examiner acted well within his discretion
in assigning moderate weight after observing that: (1) other
than the board's classification report no "other documents were
submitted that speak to [Voe's] level of participation and
progress in" sex offender treatment or otherwise that
5 That Voe committed an offense involving penetration was
established when he pleaded guilty to the rape of a minor in
1998 (index offense #3).
7
demonstrated that Voe completed treatment; and (2) both Voe's
partner and his sister indicated that they believed that he did
not commit the index offenses to which he pleaded guilty.
Though participation in or successful completion of sex
offense-specific treatment properly can be viewed as reducing an
offender's risk of recidivism and/or dangerousness, the hearing
examiner's finding here of moderate weight for factor 32 was not
an abuse of discretion because it was based on the lack of
evidence Voe presented on the issue of whether he completed
offender treatment. To fulfill his responsibility under this
factor, 6 Voe proffered (1) a letter from a provider dated
December 27, 2003, indicating that Voe entered treatment in
February 2002 and was "a consistent participant in the group";
(2) a "Form-10" sex offender treatment status report dated
November 27, 2002; and (3) a single page from Voe's prior board
classification report apparently dated January 6, 2003. The
classification report indicated Voe's enrollment in sex offender
treatment while incarcerated, but does not support an inference
that Voe completed treatment. Likewise, the Form 10 report
indicated Voe's attendance and participation in treatment
sessions, but ultimately served only as evidence of Voe's
6 Relevant here, factor 32 provides that for this factor "to
apply, it shall be the responsibility of the offender to provide
documentation from a treatment provider verifying his treatment
participation or completion." 803 Code Mass. Regs. § 1.33(32).
8
partial participation in treatment, which, as the hearing
examiner indicated, does not by itself "signify any measure of
substantial achievement."
We agree with Voe that it was error for the hearing
examiner to include Voe's partner's and his sister's mistaken
belief that Voe was wrongly convicted as a basis for his weight
determination. Even so, that Voe never finished the treatment
provided the hearing examiner a sufficient basis to assign only
moderate weight to this factor; thus any error was harmless.
See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender
Registry Bd., 447 Mass. 750, 765 n.12 (2006) (finding examiner's
mistake in considering irrelevant fact as part of factor
analysis harmless because conclusion supported by substantial
evidence).
Factor 33. Regarding Voe's home situation and support, Voe
believes the examiner erred by not giving him full weight. We
disagree. Factor 33 7 calls for "greater mitigating
consideration" where the offender's "support network . . . is
7 Relevant here, factor 33 provides that it is to be "applied to
an offender who is currently residing in a positive and
supportive environment. The likelihood of reoffense is reduced
when an offender is supported by family, friends, and
acquaintances. [Par.]The Board shall give greater mitigating
consideration to evidence of a support network that is aware of
the offender's sex offense history and provides guidance,
supervision, and support of rehabilitation." 803 Code Mass.
Regs. § 1.33(33)(a).
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aware of the offender's sex offense history and provides
guidance, supervision, and support" to the offender. 803 Code
Mass. Regs. § 1.33(33)(a). Here, Voe's longtime partner
indicated in her affidavit to SORB that Voe was "wrongfully
convicted." Additionally, letters written in support of Voe by
his friend and his sister reveal no knowledge of Voe's sex
offense convictions and are devoid of any indication of how
either individual could help Voe remain offense free. Based on
this evidence, we see no error in the examiner's decision to
give factor 33 moderate weight since this court gives due weight
to the agency's "experience, technical competence, and
specialized knowledge . . . as well as to the discretionary
authority conferred upon it." Doe No. 10216, 447 Mass. at 787,
quoting G. L. c. 30A, § 14 (7).
Factor 34. Lastly, Voe argues that the examiner failed to
indicate the weight he assigned to risk mitigating factor 34.
This claim is incorrect. The examiner clearly articulated in
his decision that Voe received moderate weight for his support
system and stability in the community.
We conclude that the hearing examiner's determination that
clear and convincing evidence supported a level two
10
classification was supported by substantial evidence. See Doe
No. 10800, 459 Mass. at 632-633.
Judgment affirmed.
By the Court (Milkey,
Neyman & Smyth, JJ. 8),
Clerk
Entered: August 2, 2023.
8 The panelists are listed in order of seniority.
11