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).

9
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