John Doe, Sex Offender Registry Board No. 375532 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

22-P-92

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 375532

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On November 22, 2021, a Middlesex County Superior Court

judge entered a judgment affirming the final decision of the Sex

Offender Registry Board ("SORB") to classify the plaintiff as a

level three sex offender. The plaintiff now appeals, arguing

that his classification is improper because the SORB hearing

examiner breached the appearance of impartiality, misapplied

statutory risk factors, ignored relevant expert testimony, and

rendered a classification decision unsupported by clear and

convincing evidence.

Although most of his contentions are without merit, we

conclude that, because the hearing examiner did not explain or

even make explicit her apparent conclusion that the defendant,

convicted only of a noncontact offense, was likely to reoffend

by committing a contact offense against a prepubescent child,
her conclusion that he poses a high degree of dangerousness was

not supported by clear and convincing evidence. We therefore

vacate the judgment and remand for further proceedings.

Background. 1. The plaintiff's history of sexually

inappropriate behavior. The plaintiff committed his index

offenses, four counts of possession of child pornography, in

2011, when he was nineteen years old. The hearing examiner

found that, in addition to those noncontact offenses, the had

plaintiff raped a fourteen year old girl in 2005, when he was

thirteen years old, and that he last committed a contact offense

in 2007, when he touched the buttock of a high school classmate,

at age fifteen.

a. 2005 incident. On January 2, 2008, a sixteen year old

girl reported to the Needham police department that in 2005,

when she was fourteen years old, the plaintiff, who was then

thirteen years old, assaulted her on three separate occasions.

The first instance occurred in October 2005. While the two were

sitting together in a small room near the plaintiff's

grandmother's kitchen, the plaintiff began rubbing the girl's

upper inner left thigh. The girl told him to stop, and he did,

but he then asked her to watch "porn" with him on his computer.

The girl refused, and she promptly left. After some time,

through an instant messaging service, the plaintiff apologized

and told the girl that it would never happen again. The girl

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later returned to the grandmother's home to watch television

with the plaintiff who, despite her resistance, pulled her pants

down and penetrated her vagina with his fingers and a stuffed

animal. After this, the plaintiff again apologized, and the

girl believed that he was sorry. She later brought the

plaintiff into her home, believing it to be safe. However, when

the two were alone in the basement, the plaintiff pushed the

girl down onto a couch and again digitally penetrated her

vagina.

The plaintiff was arraigned on February 14, 2008, in Dedham

Juvenile Court, on one count of juvenile delinquency, to wit

rape of a child. He was placed on pretrial probation for one

year, ordered to stay away from the girl, and ordered to undergo

a sex offender evaluation and recommended treatment. After the

completion of the treatment program, his probation was

terminated, and the charge was dismissed.

The hearing examiner concluded that, despite the dismissal,

the girl's rape allegations were detailed, credible, reliable,

and supported by the plaintiff's documented apologies, in which

he admitted that he touched the girl without her consent.

b. 2006 incident. The plaintiff disclosed to his

psychologist that in September 2006, when he was in ninth grade

and aged fourteen, he had emailed his eighth-grade teacher to

ask if her chest "had gotten bigger." He believed that he had a

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good student-teacher relationship with her that had the

potential to "be more." The hearing examiner concluded, based

on the plaintiff's admissions, that the plaintiff had engaged in

this sexually inappropriate behavior.

c. 2007 incidents. The plaintiff admitted to his

psychologist that on February 17, 2007, when he was aged

fifteen, he had touched the buttocks of a fifteen year old

female classmate during photography class at their high school.

He thought that she might "approv[e]" of his actions. The girl

quickly became upset, told him that it was "really degrading,"

and went to the vice-principal's office in tears.

On May 24, 2007, the plaintiff was arraigned in Dedham

Juvenile Court on one count of juvenile delinquency, to wit

indecent assault and battery on a person aged fourteen or older,

but that charge was dismissed three months later.

The hearing examiner found the allegations to be credible,

a conclusion the examiner found to be further supported by the

plaintiff's own admissions.

The examiner noted that while the indecent assault and

battery charge was pending, the plaintiff allegedly engaged in

additional sexually inappropriate behavior. He admitted to his

psychologist that in August 2007, when he was aged fifteen, he

had exposed himself to his stepfather's secretary in the belief

that she would "respond in a positive way."

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2. Index offenses. The plaintiff's governing offenses

occurred four years later, when he was nineteen years old. On

January 16, 2011, a "Geek Squad" employee at Best Buy, who

worked as a technician repairing computers, contacted Needham

police and reported that a laptop that had been dropped off for

servicing at the Best Buy in Framingham, Massachusetts,

contained suspicious files depicting inappropriate behavior by

young children.

The police subsequently determined that the laptop belonged

to the plaintiff and contained twelve videos and approximately

sixty-two still images of children engaged in sexual activity.

The plaintiff was charged with four counts of possession of

child pornography, and on June 7, 2012, he pleaded guilty to all

counts. He was sentenced to twenty-five months in a house of

correction, with twenty months to serve and the balance

suspended for five years, and concurrent five-year terms of

probation. The plaintiff violated the terms of his probation

one year later and was incarcerated from May 2013 until December

2014.

3. Proceedings below. On or about August 30, 2012, the

plaintiff was classified as a level three sex offender. He

challenged the classification and requested an administrative

review. A classification hearing was held on September 28,

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2016, and on March 7, 2017, a final decision was issued

classifying the plaintiff as a level three sex offender.

The plaintiff appealed the decision, and on March 5, 2018,

a Superior Court judge remanded the case to SORB on the basis

that the hearing examiner wrongly denied the plaintiff's request

for expert funds and failed to account for the plaintiff's age

with respect to the two sexual assaults committed by the

plaintiff when he was fourteen and fifteen years old.

Another classification hearing took place on October 30,

2018. On March 21, 2019, the plaintiff was again classified as

a level three sex offender. The plaintiff appealed. While the

appeal was pending, the Supreme Judicial Court (SJC) decided

Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender

Registry Bd., 482 Mass. 643 (2019) (Doe No. 496501), and the

plaintiff's case was remanded for explicit findings consistent

with that decision.

On November 19, 2020, the hearing examiner issued a final

decision classifying the plaintiff as a level three sex

offender. The plaintiff appealed, a Superior Court judge

affirmed, and that appeal is now before this panel.

Discussion. 1. SORB's decision. a. Standard of review.

"A reviewing court may set aside or modify SORB's classification

decision where it determines that the decision is in excess of

SORB's statutory authority or jurisdiction, violates

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constitutional provisions, is based on an error of law, or is

not supported by substantial evidence." See Doe No. 496501, 482

Mass. at 649, citing G. L. c. 30A, § 14 (7).

b. Clear and convincing evidence. To impose a level three

classification, a hearing examiner must make explicit findings

that there is "a high risk of reoffense, a high degree of

dangerousness, and a public safety interest is served by active

dissemination of the offender's registry information." Doe, Sex

Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490

Mass. 759, 768 (2022) (Doe No. 6729), citing Doe No. 496501, 482

Mass. at 656-657.

To determine an individual's degree of dangerousness, the

hearing examiner must "consider what type of sexual crime the

offender would likely commit if he or she were to reoffend."

Doe No. 496501, 482 Mass. at 651. This determination is made

"based on the sexual crime or crimes that the offender committed

in the past." Id. While a hearing examiner "may consider an

offender's older sexual offenses where they are relevant to a

holistic assessment of the offender's current degree of

dangerousness," where an individual has "a history of different

sexual offenses, the primary focus would likely be on the crime

or crimes recently committed by the offender." Id.

Here, the hearing examiner made no explicit finding about

what type of sexual crime the plaintiff would likely commit if

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he were to reoffend. As the plaintiff observes, the hearing

examiner's discussion of dangerousness did not even mention the

plaintiff's noncontact child pornography convictions -- his most

recent crimes and index offenses -- a single time. The SJC has

explained that "an individual is generally unlikely to pose

[even] a moderate degree of dangerousness -- and thus . . .

qualify as a level two sex offender -- where his or her risk of

reoffense relates only to noncontact offenses that do not put a

victim in fear of bodily harm by reason of a contact sex

offense." Doe No. 496501, 482 Mass. at 659-660.

The hearing examiner may have believed the plaintiff poses

a risk of reoffending by committing a contact offense with a

prepubescent or other child and thus presents a high degree of

dangerousness.1 See Doe No. 496501, 482 Mass. at 659 ("contact

offenders are generally more dangerous than noncontact

offenders"). But the hearing examiner's decision does not lay

out clear and convincing evidence that that is the case. The

plaintiff has never committed a contact offense with a

prepubescent child. And his only contact offenses were when he

himself was a child and they were with children his own age or

older. The hearing examiner has not explained whether and why

1 The plaintiff's older sister wrote in a letter, submitted as
evidence to the hearing examiner, that she had allowed the
plaintiff to babysit her four month old son.

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these contact offenses are predictive of further contact

offenses with children now that the plaintiff is an adult. His

noncontact offenses, possession of child pornography, some of

which involved young children, inherently involves what the

plaintiff admitted to, finding these images "sexually

appealing." And it may be that his possession of child

pornography combined with his juvenile contact offenses is

predictive of future contact offenses with children. But,

again, the hearing examiner has not explained whether or why his

offenses are predictive of such behavior.

We express no opinion on these questions, or on the

question of what offenses someone with the complex sexual

offense history of the plaintiff would likely commit if he were

to reoffend. We have none of the expertise on the matter that

the hearing examiner and the experts at SORB have. But a high

risk of dangerousness must be found by clear and convincing

evidence before an individual can be classified as a level three

sex offender, and because clear and convincing evidence is not

demonstrated on the face of the hearing examiner's decision, we

must vacate it and remand the case for further proceedings,

including a new hearing should the hearing examiner conclude

that is necessary, in order for her to make a proper

determination of the plaintiff's classification.

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2. Other matters. Although our disposition obviates the

need for discussion of some of the plaintiff's claims, some may

be relevant on remand and so we address them.

a. Recusal. The plaintiff argues that the hearing

examiner should have recused herself due to an appearance of

partiality. The plaintiff's argument stems from the hearing

examiner's conduct at the classification hearing on October 30,

2018. There, counsel for SORB arrived late and empty-handed.

He asked the hearing examiner to provide him with her copy of

SORB's evidence, a collection of documents provided to all

parties prior to the hearing. The hearing examiner did so.

Counsel for SORB proceeded to spread the documents out, directly

in front of counsel for the plaintiff, who was sitting across

from him in "very close proximity." The plaintiff's counsel did

not ask any questions about the documents or object to the

examiner's actions during the hearing, but filed a motion to

recuse, one week later, on November 6, 2018.

The examiner declined to recuse herself. In a written

decision, she said that SORB counsel came to the hearing and

asked that she provide him with her copy of the materials that

had been provided to all parties prior to the hearing. She said

she handed her copy of "SORB Exhibits 1-5" to SORB counsel.

This was done, she said, "directly in front of Counsel for the

[plaintiff]" and "[i]t was clear what the documents were and

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Counsel for the [plaintiff] was provided copies prior to the

hearing." There were no questions or objections from the

plaintiff's counsel when SORB counsel requested the documents or

when the exhibits were entered into evidence. The examiner also

stated that she had never discussed the case with SORB counsel

and that there was no prior arrangement made for the exchange of

documents.

The plaintiff argues before us that recusal was required

because the examiner's actions created an appearance of

partiality. He notes that the hearing examiner stated that she

handed over only "SORB exhibits 1-5" but that SORB's counsel

later stated on the record that he was reading from the 2018

Superior Court remand decision -- a document not contained

within "SORB exhibits 1-5."

"The strict ethical constraints to which judges are subject

not only require a judge to examine his or her own conscience

for disqualifying bias, and to act accordingly, but also

obligate the judge to recuse himself or herself from any matter

in which 'the judge's impartiality might reasonably be

questioned.'" Adoption of Iliana, 96 Mass. App. Ct. 397, 407

(2019), quoting S.J.C. Rule 3:09, Code of Judicial Conduct,

Canon 2, Rule 2.11 (A) (1) (2016). This standard also applies

to hearing examiners. See Doe, Sex Offender Registry Bd. No.

29481 v. Sex Offender Registry Bd., 84 Mass. App. Ct. 537, 541

11
(2013) (Doe No. 29481). "[H]earing officers, like judges, are

held to 'high standards [which] are reflective of the

constitutional rights of litigants to a fair hearing.'" Id.,

quoting Police Comm'r of Boston v. Municipal Court of W. Roxbury

Dist., 368 Mass. 501, 507 (1975). Individuals like the

plaintiff, that are subject to an "adjudicative determination

that [they] must register as a sex offender," are "entitled to

an administrative proceeding where there is no significant doubt

whether the impartiality of the hearing examiner has been

compromised." Doe No. 29481, supra at 542. As in the case of

the recusal of judges, "actual impartiality alone is not

enough." Id. at 541, quoting Commonwealth v. Morgan RV Resorts,

LLC, 84 Mass. App. Ct. 1, 9 (2013). "In order to preserve and

protect the integrity of the judiciary and the judicial process,

and the necessary public confidence in both, even the appearance

of partiality must be avoided." Doe No. 29481, supra at 541-

541, quoting Morgan RV Resorts, LLC, supra.

We review the hearing examiner's decision not to recuse for

abuse of discretion. See Commonwealth v. Rivera, 473 Mass.

1003, 1005 (2015). We conclude that the examiner did not abuse

her discretion. As to the first prong of the recusal inquiry,

we are not in a position to question the examiner's finding

that, after examining her own conscience, she could be fair and

impartial.

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The second prong, involving the appearance of partiality,

is more difficult. Obviously, SORB counsel should have been

prepared for the hearing and should have brought with him

whatever documents he intended to rely upon or otherwise needed

in order to participate fully in the hearing. The hearing

examiner also should not have provided documents to one party --

just as a judge should not -- at least without explaining on the

record what the documents were, explaining why she believed her

provision of them to that party did not prejudice the other

side, and ensuring that there was no objection to this

procedure.

In this case, however, the documents handed to SORB counsel

were "clearly visible to Counsel for the [plaintiff]." In

determining whether the examiner's impartiality might

"reasonably be questioned," it is particularly relevant that, at

the time of the hearing, the plaintiff's counsel did not

question the exchange of documents. The examiner's conclusion

is reasonable that it was "clear what the documents were." The

plaintiff's counsel had a clear view of the documents and, prior

to hearing, was provided with copies of the same documents.

The plaintiff correctly notes that the 2018 Superior Court

decision, from which SORB counsel directly read, is not

contained within "SORB exhibits 1-5." Rather, it was recorded

in the record as "Exhibit J," under the subheading "Documentary

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Evidence." Although there is no suggestion that the plaintiff's

counsel did not have a copy of that exhibit, the plaintiff

suggests that one possible interpretation of the examiner's

mistaken recollection is that the examiner was covering up her

improper conduct. The plaintiff argues that seeing the examiner

hand the opposing attorney a stack of documents, from the point

of view of an individual in the plaintiff's position, would have

created "suspicio[n]" that something improper was afoot.

But the plaintiff's theory, again, runs headfirst into his

failure to object. The plaintiff's quiescence at the time,

coupled with his failure to identify what one might reasonably

suspect the examiner provided the SORB attorney, undermines the

picture of partiality he paints now. And, significantly,

nothing he says is inconsistent with the examiner's statements

that the documents were "clearly visible," that it was "clear

what the documents were," and that the documents consisted of

"material provided to all parties prior to the hearing." We

conclude, therefore, that the plaintiff has not met his burden

to show that the examiner's decision not to recuse was an abuse

of discretion.

b. Misapplication of statutory risk factors. The

plaintiff also argues that the hearing examiner misapplied

statutory risk factors.

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The first alleged misapplication involves high-risk factor

two, "Repetitive and Compulsive Behavior". See 803 Code Mass.

Regs. § 1.33 (2) (2016). The examiner concluded that "[b]ased

on [plaintiff's] sexual behavior with detections, sanctions, and

charges prior to his new offenses, this high risk factor applies

with the most weight." The plaintiff argues that application of

factor two was improper because the examiner failed to

specifically find that plaintiff's behavior was "compulsive."

However, a finding that an individually sexually reoffended

following an individual's involvement with the criminal justice

system due to prior sexual offenses, is "sufficient to satisfy

the separate requirement of proving that his conduct was

compulsive as well as repetitive." Doe No. 6729, 490 Mass. at

765. This is because "while there is no predictive value for

the risk of reoffending based solely on the commission of

multiple sex offenses, there is such value '[i]f a person

offends, gets caught[,] and then goes on to reoffend again,'

particularly when 'the criminal justice system . . . doesn't

inhibit them.'" Id. at 766. That predictive value is

implicated here, where the hearing examiner found that the

plaintiff reoffended following previous "detections, sanctions,

and charges." This finding was sufficient to satisfy the

separate requirement of proving that the plaintiff's conduct was

compulsive and supported the application of factor two.

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The plaintiff next argues that the hearing examiner erred

because she failed explicitly to ascribe particular weights to

nine separate risk factors. The plaintiff insists that the

examiner had a "duty" to assign weights. But this argument was

recently rejected by the SJC in Doe No. 6729, 490 Mass. at 767

(no error where "the hearing examiner applied certain risk

factors without denoting whether she ascribed a threshold,

moderate, or high degree of weight to each factor").

c. Failure to consider expert witness testimony. The

plaintiff also argues that the hearing examiner failed properly

to consider the testimony of an expert witness who testified on

his behalf. Specifically, the plaintiff called Dr. Laurie

Guidry, a psychologist, who evaluated the plaintiff and

concluded that he presented with only an "average" risk to

recidivate with a sexual offense. As the plaintiff

acknowledges, he "is not entitled to a guarantee that SORB will

reach the same conclusion as his expert; he is entitled only to

careful consideration of his expert's testimony." Doe, Sex

Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd.,

483 Mass. 131, 137 (2019). Where the hearing examiner departs

from conclusions drawn by an expert witness, she must explain on

the record her reasons for rejecting the expert's testimony.

See id. at 136. The hearing examiner in this case did so. In

her five-page discussion of Dr. Guidry's testimony, the examiner

16
explained that she disagreed with the expert's risk opinion

because the expert had based much of her report on what the

plaintiff had told her, "yet [the plaintiff] has been an

incredibly inconsistent reporter during more than the past

decade including statements about his offending and substance

abuse." The examiner listed a number of inconsistencies in the

plaintiff's reporting, including how the plaintiff initially

reported that he was not under the influence of any drugs during

his use of child pornography, but later told Dr. Guidry in 2018

that he was under the influence "most of the time." The

examiner highlighted the plaintiff's claim, at age fifteen, that

he had "not yet used 'street drugs,' and tried alcohol and was

drunk 'once,'" which was followed by an admission at age twenty

that he "first smoked marijuana at age [thirteen], and first

drank alcohol at age [fourteen], with his use then escalating."

The plaintiff's inconsistent reporting as described by the

hearing examiner formed a sufficient foundation for the

examiner's departure from the expert's conclusions. There was

thus no error.

d. The plaintiff's age. Finally, the plaintiff argues

that the examiner erred by failing to consider his age at the

time of his juvenile offenses. See Doe, Sex Offender Registry

Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 113

(2014) (Doe No. 68549) ("it would not have been proper . . . to

17
disregard the fact that Doe was a youth when he offended"). In

Doe No. 68549, the SJC concluded that the examiner had taken

"into consideration Doe's young age at the time of his

offenses," where the examiner applied risk factors "in the

manner that the guidelines deem[ed] appropriate for juvenile

offenders" and made references "to the fact that Doe was an

'adolescent' and a 'juvenile' at the time of his offenses." Id.

at 113-114. Here, although it appears the examiner considered

the plaintiff's age in the manner required by Doe No. 68549,

there is some ambiguity in her language. This can best be

addressed by the hearing examiner considering his age in that

manner in her decision after remand.

3. Conclusion. We vacate the judgment affirming SORB's

decision classifying the plaintiff as a level three sex

offender. A new judgment shall enter vacating SORB's decision

18
and remanding this matter to SORB for further proceedings

consistent with this memorandum and order.

So ordered.

By the Court (Green, C.J.,
Rubin & Massing, JJ.2),

Clerk

Entered: July 14, 2023.

2 The panelists are listed in order of seniority.

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