John Doe, Sex Offender Registry Board No. 366266 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

23-P-1228

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 366266

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 (board) as a level three sex offender and the

board's denial of his motion for expert funds. We affirm.

Background. Relying on a police report and a Sexual

Assault Intervention Network (SAIN) interview, the hearing

examiner found the following facts. In January 2011, Doe drove

his daughter and his girlfriend's seven year old daughter

("victim 1") to a restaurant. Victim 1 later told her mother

that while in the car she fell asleep and awoke to pain in her

vaginal area and noticed that her pants were undone. Doe then

took the girls to his home, where he touched victim 1 under her
clothes, spread her legs, showed her his penis, and showed her a

video of her mother fellating him. During another car ride, Doe

penetrated victim 1's vagina using his fingers while victim 1

attempted to push Doe's hand away and told him that he was

hurting her. In May 2012, Doe was convicted of one count of

dissemination to a minor of matter harmful to minors. See G. L.

c. 272, § 28. Doe was acquitted on counts of rape of a child

aggravated by age difference, rape of a child with force, open

and gross lewdness, and reckless endangerment of a child.

Relying on another police report, the examiner found the

following facts. In May 2015, a police officer stopped a

vehicle driven by Doe. A second man sat in the front passenger

seat, and an adult woman (victim 2) sat in the back seat.

During the stop, victim 2 silently mouthed to the officer, "I

need help." When the officer separated victim 2 from Doe and

his other passenger, victim 2 cried and again asked the officer

for help. Victim 2 told the officer that she was an addict and

that, for three days, Doe had force-fed her drugs and forced her

to have sex with men for money. Doe drove victim 2 to multiple

hotels and forced her to perform sexual acts on multiple

individuals. Victim 2 never received money. Instead, Doe

"compensated" her with heroin. Victim 2 feared for her life

because Doe had taken her driver's license and cell phone and

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told her that if she tried to run away, he would kill her and

her entire family. In June 2016, Doe was convicted of one count

of deriving support from prostitution in violation of G. L.

c. 272, § 7, and one count of trafficking of a person for sexual

servitude, in violation of G. L. c. 265, § 50 (a). Doe received

a five-to-eight-year prison sentence on the latter conviction,

and a concurrent four-to-five-year sentence on the former

conviction.

In December 2019, the board's hearing examiner conducted a

de novo hearing. In January 2020, the examiner found that Doe

presented a high risk to recidivate and a high degree of

dangerousness and ordered him to register as a level three sex

offender. Doe filed a motion to vacate the decision in order to

address his motion for expert funds. Doe's motion was allowed,

and the board issued an amended decision denying his motion for

expert funds and again classifying him as a level three sex

offender. Doe sought judicial review pursuant to G. L. c. 6,

§ 178M, and G. L. c. 30A, § 14, and a judge of the Superior

Court affirmed the board's decision.

Discussion. When reviewing the board's decision, we will

not alter the decision unless it was

"(a) in violation of constitutional provisions; (b) in
excess of [the board's] authority; (c) based upon an error
of law; (d) made upon unlawful procedure; (e) unsupported
by substantial evidence; (f) unwarranted by facts found by

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the court, where the court is constitutionally required to
make independent findings of fact; or (g) arbitrary or
capricious, an abuse of discretion, or otherwise not in
accordance with law."

Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender

Registry Bd., 470 Mass. 102, 108-109 (2014) (Doe No. 68549),

citing G. L. c. 30A, § 14 (7). "The court must 'give due weight

to [the board's] experience, technical competence, and

specialized knowledge . . . as well as to the discretionary

authority conferred upon it.'" Doe No. 68549, supra at 109,

quoting G. L. c. 30A, § 14 (7).

1. Reliance on hearsay. Doe asserts that the hearing

examiner erred by relying on a police report and SAIN interview

notes to make findings about Doe's sexual abuse of victim 1.

"The range of evidence that may be considered by hearing
examiners is not limited by the same rules of evidence that
apply in court proceedings; hearing examiners may exercise
their discretion to admit and give probative value to
evidence 'if it is the kind of evidence on which reasonable
persons are accustomed to rely in the conduct of serious
affairs.'"

Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender

Registry Bd., 488 Mass. 15, 26 (2021) (Doe No. 339940), quoting

G. L. c. 30A, § 11 (2). "The lack of criminal conviction does

not render information contained within a police report

inadmissible in an administrative proceeding." Doe, Sex

Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,

95 Mass. App. Ct. 85, 90 (2019) (Doe No. 523391). "Hearsay

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evidence bearing indicia of reliability constitutes admissible

and substantial evidence." Doe, Sex Offender Registry Bd. No.

10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011)

(Doe No. 10800). Indicia of reliability include a high degree

of detail, independent corroboration, general plausibility and

consistency, and a lack of motive to fabricate a story. See Doe

No. 523391, supra at 89-90.

Here, victim 1's statements in the police report were

highly specific, detailed, and repeated in two separate SAIN

interviews. Victim 1 recounted where the sexual abuse occurred,

where she and Doe were driving when it occurred, that Doe

stopped for liquor during the drive, and that Doe bought her a

Justin Bieber T-shirt and Tinkerbell boots. Victim 1's

statements were also corroborated, as her mother recalled

victim 1 receiving the shirt and boots at the time. Moreover,

Doe was convicted on the dissemination of matter harmful to

minors count. Doe contends that victim 1's accounts of the

sexual abuse were inconsistent because, in a subsequent SAIN

interview, she provided details of additional sexual abuse by

Doe, after she initially claimed that there was no other abuse.

We disagree. The examiner was not required to accept Doe's

argument that victim 1 was not credible because she provided

further details of sexual abuse at a follow-up SAIN interview.

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Moreover, victim 1 had no apparent motive to fabricate a story,

nor does Doe argue that she had one. Doe was the father of

victim 1's two year old half-sister, and, prior to the sexual

abuse, victim 1 had enjoyed spending time with Doe. Thus, we

conclude that the examiner did not abuse her discretion by

relying on the challenged hearsay evidence.1 See Doe No. 339940,

488 Mass. at 26-27.

2. Factor 2. Doe argues that the examiner erred by

applying the full aggravating weight for repetitive and

compulsive behavior (factor 2) because Doe's prostitution-

related convictions were "financially driven" and not "sexual in

nature." The examiner may only apply the "full aggravating

weight" of factor 2 if the sex offender reoffends after being

"'charged with or convicted of a sex offense.'" Doe, Sex

Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96

Mass. App. Ct. 738, 741 (2019), quoting 803 Code Mass. Regs.

§ 1.33(2) (2016).

In 2012, Doe was convicted, under G. L. c. 272, § 28, of

disseminating to a minor matter harmful to a minor, which is a

1 While the board is not required to submit trial
transcripts in classification proceedings, we note that doing so
would resolve doubts arising from the examiner's reliance on
hearsay statements contained in police reports, particularly
those hearsay statements related to offenses of which a
petitioner was thereafter acquitted.

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sex offense. See G. L. c. 6, § 178C (enumerating sex offenses).

In 2016, after serving two and one-half years in a house of

correction, Doe was convicted, under G. L. c. 265, § 50, of

trafficking a person for sexual servitude. "Pimping" is defined

as a sex offense under the Static-99R rules. See G. L. c. 6,

§ 178C. Thus, the examiner did not err by applying the full

aggravating weight of factor 2.

3. Classification determination. When reviewing a

classification decision by the board, we "must determine whether

the decision is supported by substantial evidence" (citation

omitted). Doe No. 10800, 459 Mass. at 632. "A hearing examiner

has discretion . . . to consider which statutory and regulatory

factors are applicable and how much weight to ascribe to each

factor." Doe No. 68549, 470 Mass. at 109-110. "'Substantial

evidence' is 'such evidence as a reasonable mind might accept as

adequate to support a conclusion.'" Id. at 109, quoting G. L.

c. 30A, § 1 (6). Classifying an offender as level three

requires the hearing examiner to establish by clear and

convincing evidence that "'the risk of reoffense is high and the

degree of dangerousness posed to the public is such that a

substantial public safety interest is served by active

dissemination' of the offender's registration information."

Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry

7
Bd., 490 Mass. 759, 768 (2022), quoting G. L. c. 6,

§ 178K (2) (c).

Doe contends that his history of criminal offenses did not

present a high risk that he would recidivate sexually because

his first conviction was for a noncontact offense and his most

recent convictions were for nonsexual offenses. As we have

already rejected the latter contention, see section 2 supra, we

evaluate Doe's argument that his history of sex offenses did not

present a high risk of sexual recidivism.

The examiner properly found that Doe engaged in repetitive

and compulsive behavior by offending against victim 1, an

extrafamilial, child victim and then, after being convicted of

that sex offense, committing a second sex offense against

victim 2, a stranger adult victim. Repetitive and compulsive

behavior and an adult offending against a child victim are high-

risk factors. See 803 Code Mass. Regs. § 1.33(2), (3) (2016).

Offending against extrafamilial victims is a risk-elevating

factor. See 803 Code Mass. Regs. § 1.33(7)(a)(2) (2016). Doe

also threatened to kill victim 2 and her family if she attempted

to run away from him. See 803 Code Mass. Regs. § 1.33(8)

(2016). Doe's risk of reoffense was also elevated by his

offense against victim 1, an extravulnerable seven year old,

whom he forced to watch pornography and whose vagina he

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digitally penetrated. See 803 Code Mass. Regs. § 1.33(18),

(19)(2016). Further, Doe committed a diverse array of sex

offenses against a diverse group of victims. See 803 Code Mass.

Regs. § 1.33(20), (21) (2016). The hearing examiner also

properly considered elevating factors related to Doe's history

of violence, including nonsexual violent crimes and nonsexual

violent disciplinary reports during his incarceration. See 803

Code Mass. Regs. § 1.33(10), (11), (12) (2016).

The examiner exercised her discretion by weighing these

factors against risk-mitigating factors, including Doe's

engagement with sex offender treatment and Doe's mother's

support for his rehabilitation. See 803 Code Mass. Regs.

§ 1.33(32), (33) (2016). We conclude that the examiner did not

abuse her discretion by classifying Doe as level three. See

Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry

Bd., 457 Mass. 53, 62 (2010) ("there is nothing in the statute

or regulations that requires the board to treat mitigating

conditions of release as superseding other aggravating

factors").

4. Internet publication. "Internet publication depends

not only on the probability of reoffense and the danger posed by

that potential reoffense, but also on the efficacy of online

publication in protecting the public from being victimized by

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the offender." Doe, Sex Offender Registry Bd. No. 496501 v. Sex

Offender Registry Bd., 482 Mass. 643, 654 (2019). "Internet

publication will almost invariably serve a public safety

interest by notifying potential victims of the risks presented

by the offender in their geographic area." Id. at 655. The

examiner is required "to ask whether, in light of the particular

risks posed by the particular offender, Internet access to that

offender's information might realistically serve to protect the

public against the risk of the offender's sexual reoffense."

Id.

Doe asserts that the examiner failed to make findings that

Internet publication of Doe's offender status would serve the

public interest. To the contrary, the examiner made findings

related to the particular risks posed by Doe and the public

safety interest that Internet publication would serve. The

examiner emphasized that Doe has demonstrated that he can offend

against both children and adults, creating a "vast pool" of

potential victims. Further, Doe's then-ongoing violent behavior

while in prison suggested that Doe would not make concerted

efforts to change his behavior. For these reasons, the examiner

did not abuse her discretion by concluding that Internet

dissemination of Doe's registry information was necessary in

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order to protect future victims. See Doe No. 496501, 482 Mass.

at 655.

5. Denial of expert funds. "The hearing examiner . . .

has discretion to deny expert funds to indigent sex offenders

who offer expert opinion on factors that the board's regulations

already require the hearing examiner to consider." Doe, Sex

Offender Registry Bd. No. 234076 v. Sex Offender Registry Bd.

484 Mass. 666, 670 (2020). "When moving for expert funds,

indigent sex offenders must 'identify and articulate the reason

or reasons, connected to a condition or circumstance special to

[them], and, separately, 'general motion[s] for funds to retain

an expert to provide an opinion on the sex offender's risk of

reoffense, without more, would . . . be insufficient'"

(citation omitted). Id. The articulated purpose must "assist[]

the hearing examiner in analyzing the factors" that bear on

sexual recidivism. See Doe, Sex Offender Registry Bd. No. 15606

v. Sex Offender Registry Bd., 452 Mass. 784, 794 (2008) (Doe No.

15606).

Doe asserts that the examiner abused her discretion by

denying Doe's motion for expert funds for the purpose of

evaluating how the "financially driven" nature of his

prostitution-related offenses impacted Doe's risk to recidivate

sexually. As we have already concluded, see section 2 supra, an

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offender commits a sexual offense when he traffics a person for

sexual servitude, "regardless of the motivation of [his]

conduct." Doe, Sex Offender Registry Bd. No. 205614 v. Sex

Offender Registry Bd., 466 Mass. 594, 612 (2013) (Cordy, J.,

concurring). Because Doe's motivation for committing the sexual

offense was irrelevant, an expert could not have assisted the

examiner in analyzing Doe's likelihood to reoffend. Thus, the

examiner did not abuse her discretion by concluding that Doe did

not articulate a reason, connected to a circumstance specific to

Doe, that the motion for expert funds would have assisted the

examiner in analyzing Doe's likelihood to reoffend sexually.

See Doe No. 15606, 452 Mass. at 794.

Judgment affirmed.

By the Court (Englander,
Hershfang & Brennan, JJ.2),

Clerk

Entered: January 31, 2025.

2 The panelists are listed in order of seniority.

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