John Doe, Sex Offender Registry Board No. 22661 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-1273

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22661

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals a judgment of the Superior

Court affirming the decision of the Sex Offender Registry Board

(SORB) to classify him as a level three sex offender.

Concluding that the hearing examiner abused her discretion in

denying Doe's motion for expert funds, we vacate the judgment

affirming SORB's decision, and remand the matter to SORB for

further proceedings consistent with this memorandum and order.

Background. The facts of Doe's underlying sex offenses are

well known to the parties and will be repeated here only as

necessary.

In March 2012, SORB notified Doe of its recommendation that

he be classified as a level three sex offender. Doe requested a
hearing to challenge SORB's recommendation. Before the hearing,

Doe moved for funds to retain an expert, averring that he

required an expert to assess his risk of sexual recidivism

because "[o]nly an expert who examines [Doe] would be able to

assess the current risk of re-offense and degree of

dangerousness that [he] poses now that he has been successfully

treated for his mental illness." In May 2021, a hearing

examiner conducted a de novo hearing to review the SORB's

decision. In July 2021, the hearing examiner issued a decision

finding that Doe's level three classification was supported by

clear and convincing evidence. Along with the decision, the

hearing examiner denied Doe's motion for expert funds. The

hearing examiner "note[d] that one therapist did tie [Doe's]

psychological issues directly to his offending." In denying

Doe's motion, however, the hearing examiner reasoned that

"[g]iven the plethora of information regarding [Doe's] mental

health in the record, I find another assessment to be neither

necessary nor likely helpful," and thus, even if an expert were

to conclude Doe has resolved his mental health issues and "is

resultantly at lower or no risk of reoffense, this would not be

dispositive."

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Doe appealed the decision to the Superior Court, which

affirmed the level three classification and the denial of Doe's

motion for expert funds. This appeal followed.

Discussion. When moving for expert witness funds, the sex

offender has the burden of showing a need for expert testimony

on an issue that (1) "is particular to him," (2) "is not a

matter of common knowledge or experience," and (3) "clearly

[has] a bearing on [his] classification." Doe, Sex Offender

Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.

764, 775 (2008) (Doe No. 89230). "[T]he decision whether to

grant an individual sex offender funds for an expert is a

discretionary one, to be based on the facts presented in an

individual case." Id. "We review the examiner's decision to

deny a motion for expert funds for an abuse of discretion."

Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender

Registry Bd., 98 Mass. App. Ct. 307, 310 (2020) (Doe No. 58574).

Here, the hearing examiner's denial of expert funds was an

abuse of discretion. Doe met his burden of showing a need for

expert testimony. First, Doe's motion was "not a generic motion

for funds," but was "tailored to the specifics of [his mental

illnesses]." Doe No. 58574, 98 Mass. App. Ct. at 311. In

support of his motion, Doe submitted a letter from a mental

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health clinician1 (Hambridge letter), which discussed the impact

of Doe's mental illnesses on his potential for reoffense. The

Hambridge letter stated, "there appears to be a correlation

between [Doe's] own history of trauma as a child and lack of

appropriate treatment during crucial periods of his development,

which likely resulted in a reliance on problematic sexual

behaviors," and concluded that "[Doe's] risk of re-offense has

lowered." Through this letter, which also discussed Doe's past

triggers, offending behavior, and treatment, Doe sufficiently

raised an issue particular to him. See id. at 311-312 (motion

for funds improperly denied where evidence included physician

report detailing Doe's hepatitis C symptoms and treatment).

Contrast Doe, Sex Offender Registry Bd. No. 29481 v. Sex

Offender Registry Bd., 84 Mass. App. Ct. 537, 543 n.5 (2013)

(motion for funds to evaluate Doe's alleged hallucinations

properly denied where examiner did not credit Doe's claims to

have suffered from hallucinations).

Second, the relationship between Doe's mental illnesses,

which includes diagnoses of both borderline personality disorder

1 Kristen Hambridge, LICSW, CST, is the former unit director
of a residential treatment unit at the Massachusetts Treatment
Center. As of the time of her evaluation, Hambridge owned and
operated a private clinical practice in which she provided
therapy related to "sexual health issues; in particular, sexual
offending behaviors and sexual deviant interests."

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and posttraumatic stress disorder, and his risk of recidivism is

not a matter of common knowledge or experience. See Doe No.

89230, 452 Mass. at 775-776 (relationship between bipolar

disorder and recidivism risk not matter of common knowledge or

experience). To this point, an expert opinion is necessary

because "[t]he DSM-IV itself cautions against the use of its

diagnostic criteria and descriptions by individuals who are not

clinically trained." Id. at 776.

Third, expert testimony would help the hearing examiner

determine the relationship between Doe's mental illnesses and

his risk of reoffense by examining whether Doe's offenses were a

result of his untreated trauma and mental illnesses or his

pursuit of sexual gratification.2

It is undisputed that Doe has a significant mental health

history. Specifically, the record includes reference to a

2 On this point, the hearing examiner concluded that an
expert would be duplicative of the evidence of Doe's mental
health history already in the record and thus not helpful in the
classification determination. However, the proposed expert
testimony would bear on the hearing examiner's consideration of
factor 35 (psychological or psychiatric profiles indicating risk
to reoffend), which instructs the examiner to "consider
evaluative reports, empirically-based risk assessment
instruments, or testimony from a licensed mental health
professional that discuss psychological and psychiatric issues
. . . as they related to the offender's risk of reoffense"
(emphasis added). 803 Code Mass. Regs. § 1.33(35) (2016). The
Hambridge letter implicates factor 35.

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competency evaluation dated March 1983, which observed that

"[Doe] did not suffer from a major mental illness," but that "he

had a severe personality disorder . . . characterized by

impulsivity, potentially self-damaging or other destructive

behavior, substance abuse, and lack of control and anger." Doe

was also evaluated in May 1997, when a doctor noted, "[Doe]

suffers from features of Post Traumatic Stress Disorder with

intrusive memories, auditory hallucination, and apparent

disassociated episodes." There is no recent medical evidence in

the record, however, that examines the relationship between

Doe's mental illness and sexual offenses. See Doe, Sex Offender

Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass.

492, 501 (2015) (final classification must be based on

evaluation of offender's risk of reoffense at time reasonably

close to date of discharge). Expert testimony would be relevant

to Doe's classification decision and is necessary to address not

only the potential existence of a nexus between Doe's mental

illnesses and sex offenses, which the Hambridge letter briefly

addresses, but the specific risk of reoffense and level of

dangerousness Doe currently poses.3

3 Doe further argues that without an expert in this case,
SORB cannot demonstrate that its classification decision is
supported by clear and convincing evidence. Because we have
concluded Doe is entitled to an expert and new hearing, we need
not reach this question.

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Conclusion. Because the hearing examiner abused her

discretion in denying Doe's motion for expert funds, the

Superior Court's judgment affirming SORB's classification

decision is vacated. A new judgment shall enter vacating SORB's

decision and remanding the matter to SORB for further

proceedings consistent with this memorandum and order.

So ordered.

By the Court (Rubin, Hand &
Smyth, JJ.4),

Clerk

Entered: July 8, 2025.

4 The panelists are listed in order of seniority.

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