John Doe, Sex Offender Registry Board No. 523873 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-555

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523873

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment

affirming his classification by the Sex Offender Registry Board

(board) as a level three sex offender. Doe argues that the

hearing examiner erroneously applied a high-risk factor,

impermissibly disregarded Doe's expert's testimony, and arrived

at a classification decision unsupported by clear and convincing

evidence. We affirm.

Background. In June 2014, after dinner and drinks at a

restaurant with friends, a woman hailed a taxi driven by Doe.

Doe drove to a secluded location, got in the back seat next to

the woman, and began kissing her and touching her breasts and

buttocks, then lifted her dress and digitally penetrated her

vagina. The victim resisted, saying "no" and "stop," and asking

Doe to take her to her destination. As the victim struggled
with Doe, he grabbed her by the throat. When he was finished,

Doe returned to the driver's seat, drove to State Street in

Boston, and dropped the victim off, yelling, "Get the fuck out,

I didn't do anything wrong." The victim later discovered she

was missing her wallet and cell phone. Through surveillance

video, detectives saw Doe make several purchases using the

victim's debit card.

As a result of this assault, in September 2015 Doe was

convicted of kidnapping, aggravated rape, indecent assault and

battery on a person aged fourteen or over, assault and battery,

unarmed robbery, and credit card fraud over $250.1 He was

sentenced to a State prison term of six to eight years for

aggravated rape, followed by concurrent ten-year terms of

probation for the remaining counts; he was also required to

register as a sex offender.

In July 2020, prior to Doe's release from prison, the board

notified him of his preliminary classification as a level three

sex offender. Doe requested an evidentiary hearing, which was

held in March 2021. The hearing examiner found clear and

convincing evidence that Doe posed a high risk to reoffend and a

high degree of dangerousness, which justified classifying him as

a level three sex offender and publishing his sex offender

1 The kidnapping conviction was vacated on appeal as duplicative
of the aggravated rape conviction.

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status online. Doe timely filed a complaint for judicial review

in the Superior Court. In April 2022, a Superior Court judge

issued a decision affirming the classification decision. This

appeal followed.

Discussion. 1. Factor 2. The hearing examiner applied

one high-risk factor: "Repetitive and Compulsive Behavior," 803

Code Mass. Regs. § 1.33(2) (2016) (factor 2).2 Doe argues that

the hearing examiner should not have applied factor 2 because

the term "sexual misconduct" used in the regulation is

"impermissibly vague," and also because his sexual misconduct

was not predictive of future sex offenses.

The hearing examiner applied factor 2 based on Doe's 2001

arrest for engaging in sexual conduct for a fee, see G. L.

c. 272, § 53A, after he offered to pay a female undercover

police officer to perform a sexual act. Doe admitted to

2 The relevant language of factor 2 is as follows:

"The Board may give increased weight to offenders who have
been discovered and confronted (by someone other than the
victim) or investigated by an authority for sexual
misconduct and, nonetheless, commit a subsequent act of
sexual misconduct. The most weight shall be given to an
offender who engages in sexual misconduct after having been
charged with or convicted of a sex offense."

803 Code Mass. Regs. § 1.33(2)(a). The hearing examiner did not
rely on the questioned language of factor 2, "which provided for
a finding of repetitive and compulsive behavior based only on
repetitive offenses occurring after enough time for reflection."
Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry
Bd., 490 Mass. 759, 765 (2022).

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sufficient facts, and the case was dismissed after being

continued without a finding (CWOF). The hearing examiner

considered the conduct underlying Doe's 2001 arrest to be

"sexual misconduct"; because Doe committed that sexual

misconduct in 2001 and then committed the rape in 2014, the

hearing examiner gave factor 2 "increased weight."

As to Doe's vagueness challenge, because he did not raise

this claim before the hearing examiner or the Superior Court

judge, it is waived. See Doe, Sex Offender Registry Bd. No.

203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320-

321 (2015). Even if the issue were not waived, however, we are

not persuaded that the term "sexual misconduct" in factor 2 is

vague as applied to Doe's act of engaging in sexual conduct for

a fee. The board's use of the term "sexual misconduct," which

appears in factor 2 and elsewhere in the regulations, as opposed

to the defined term "sex offense," see G. L. c. 6, § 178C, which

is also used throughout the regulations, is clearly intentional.

It is obviously meant to include a broader range of conduct than

the specific offenses enumerated in the definition of "sex

offense." We have no doubt that any reasonable person would

understand that the criminal conduct of attempting to pay a

stranger to perform a sexual act, though not a defined "sex

offense," is encompassed by the term "sexual misconduct."

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Doe next argues that the act of solicitation is not

predictive of sexual recidivism. Doe posits that only the sex

offenses enumerated by the Legislature have such predictive

value. In the absence of any precedent supporting this view, we

are not persuaded. Doe's contention that only designated sex

offenses are relevant under factor 2 in effect questions the

board's determination, in the regulation itself, that sexual

misconduct not rising to the level of a "sex offense" is

indicative of a risk of reoffense.3 We accord deference to the

board's judgment, expressed in its regulations, concerning the

type of conduct that presents a high risk of reoffense. See

Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender

Registry Bd., 99 Mass. App. Ct. 292, 297-298 (2021) (Doe No.

356315).

Turning to the hearing examiner's weighing of factor 2 in

this case, we discern no error or abuse of discretion. The

regulation distinguishes between offenders who have been

investigated by authorities for "sexual misconduct" and

subsequently engage in additional sexual misconduct and those

3 The fact that several of the risk-elevating factors identified
in the regulations are not associated with either sex offenses
or sexual misconduct suggests that Doe's narrow reading of
factor 2 is not consistent with the board's broader assessment
of risk and danger. See, e.g., 803 Code Mass. Regs. § 1.33(9)
(alcohol and substance abuse); § 1.33(10) (contact with criminal
justice system); § 1.33(11) (violence unrelated to sexual
assaults).

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who are charged with or convicted of a "sex offense" and

subsequently engage in additional sexual misconduct. For the

first category, which includes Doe, factor 2 may be accorded

"increased weight." 803 Code Mass. Regs. § 1.33(2)(a). For the

second category, factor 2 may be given "[t]he most weight." Id.

As the Superior Court judge aptly put it, "The thrust of Factor

2 is that, even after Doe was held to account (via the charge

and the CWOF) for his sexual misconduct, in 201[4] he engaged in

additional and more serious sexual misconduct." The hearing

examiner properly applied factor 2, giving it "increased," but

not "most," weight based on the finding that although Doe was

investigated by authorities and charged for sexual misconduct,

he nonetheless went on to commit a subsequent act of sexual

misconduct -- an aggravated rape.4

2. Expert testimony. At the hearing, Doe submitted a

psychological assessment report written by Dr. Joseph Plaud, a

specialist in evaluating and treating sex offenders. Plaud

4 We are not persuaded that the fleeting and conclusory testimony
of Doe's expert, that "paying for sex" is "a different quality
or type of offense that puts it out of the realm" in predicting
future contact sex offenses, provided an adequate basis for the
hearing examiner to disregard factor 2 or to find it
inapplicable. We find more persuasive Doe's argument that the
thirteen-year gap between offenses suggests a lack of
compulsivity; it is not our place, however, to substitute our
judgment for that of the hearing examiner or the board where the
examiner's application of the board's regulation is supported by
the evidence. See Doe No. 356315, 99 Mass. App. Ct. at 300.

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wrote and testified that Doe presented only a moderate risk and

should be classified as a level two sex offender. The hearing

examiner credited Plaud's expertise and the validity of Plaud's

methods, but noted that the testing process underlying the

report "did not reflect an assessment based on the Board's

comprehensive regulatory factors." Although the hearing

examiner generally agreed with Plaud's "application of the

factors," the hearing examiner attached weight to the high-risk

and risk-elevating factors that Plaud did not consider and

concluded that Doe presented a high risk to the public.

Doe claims that the hearing examiner abused his discretion

by assigning "limited weight" to Plaud's opinion and erred by

instead limiting his analysis to the regulatory factors. We

discern no error or abuse of discretion. The hearing examiner

was required to, and did, explain his reasons for partially

disregarding Plaud's expert opinion and reaching a different

conclusion based on the applicable risk factors. See Doe, Sex

Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447

Mass. 750, 764 (2006). This is not a case where the plaintiff's

expert presented reliable evidence that was not addressed in the

board's regulations. See Doe, Sex Offender Registry Bd. No.

205614 v. Sex Offender Registry Bd., 466 Mass. 594, 604 (2013);

Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender

Registry Bd., 456 Mass. 612, 622-623 (2010). The hearing

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examiner was required to consider Plaud's testimony; he was not

required to accept it or substitute Plaud's risk assessment for

his own. See Doe No. 205614, supra at 595.

3. Classification as level three offender. Finally, Doe

contends that because most of the risk-elevating factors arose

from a single event and there were multiple mitigating factors,

the hearing examiner's classification decision was not supported

by clear and convincing evidence. Rather, Doe contends that the

hearing examiner merely "engaged in a perfunctory effort based

on a tally sheet of aggravating and mitigating factors,

concluding in the end simply that the former outweighed the

latter." Doe, Sex Offender Registry Bd. No. 11204 v. Sex

Offender Registry Bd., 97 Mass. App. Ct. 564, 575-576 (2020).

We disagree.

Hearing examiners are required to consider the thirty-eight

high-risk, risk-elevating, risk-mitigating, and additional

factors set forth in the regulations. See 803 Code Mass. Regs.

§ 1.33. Nonetheless, "[t]he final classification level is not

based on a cumulative analysis of the applicable factors, but

rather a qualitative analysis of the individual sex offender's

history and personal circumstances." Id., third par. Hearing

examiners have discretion, and enjoy substantial deference upon

review, to choose and weigh the applicable factors so long as

their interpretation and application of the regulations are

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rational. See Smith v. Sex Offender Registry Bd., 65 Mass. App.

Ct. 803, 813 (2006), citing Midland States Life Ins. Co. v.

Cardillo, 59 Mass. App. Ct. 531, 537 (2003). See also Doe, Sex

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

482 Mass. 643, 649 (2019) ("A reviewing court may set aside or

modify [the board]'s classification decision where it determines

that the decision is in excess of [the board]'s statutory

authority or jurisdiction, violates constitutional provisions,

is based on an error of law, or is not supported by substantial

evidence").

As to Doe's risk to reoffend, the hearing examiner

concluded Doe presented a high risk to reoffend based on the

fact that he raped a stranger in a public place and strangled

her during the assault. The attack came after Doe had

previously been investigated and charged for sexual misconduct,

supporting the application of high risk factor 2, and his

criminal history, albeit short, and minor disciplinary reports

while incarcerated increased the risk he presented. The hearing

examiner considered, but gave only limited weight, to Doe's

expert's classification recommendation; gave moderate weight to

Doe's age and participation in sex offender therapy; and gave

full weight to his support system. The hearing examiner

likewise found that Doe presented a high degree of dangerousness

based on the facts that he strangled the victim during the

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assault, that the victim was vulnerable because she was

intoxicated, and that the attack involved vaginal penetration,

notwithstanding the fact that Doe would be subject to probation

supervision for ten years after release. In short, the hearing

examiner considered and balanced the relevant factors, and his

decision was supported by substantial evidence. We see no basis

to disturb the examiner's conclusions.

Judgment affirmed.

By the Court (Blake,
Massing & Hand, JJ.5),

Clerk

Entered: December 1, 2023.

5 The panelists are listed in order of seniority.

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