John Doe Sex Offender Registry Board No. 114167 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-875

JOHN DOE SEX OFFENDER REGISTRY BOARD NO. 114167

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment

affirming the decision of the Sex Offender Registry Board (board

or SORB) classifying him as a level two sex offender in

accordance with G. L. c. 6, § 178K (2) (b). On appeal, the

plaintiff argues that the board's classification was not

supported by substantial evidence, that the hearing examiner

erred by failing to consider the plaintiff's young age at the

time of his offenses, and that the hearing examiner abused his

discretion by denying the plaintiff's motion for expert funds.

We affirm.

Discussion. 1. Plaintiff's classification and standard of

review. When classifying a person as a level two offender, a
hearing examiner must determine the following by clear and

convincing evidence:

"(1) that the risk of reoffense is moderate; (2) that the
offender's dangerousness, as measured by the severity and
extent of harm the offender would present to the public in
the event of reoffense, is moderate; and (3) that a public
safety interest is served by Internet publication of the
offender's registry information."

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

Registry Bd., 482 Mass. 643, 644 (2019) (Doe No. 496501). See

G. L. c. 6, § 178K (2) (b). "In determining whether these

elements have been established by clear and convincing evidence,

a hearing examiner may consider subsidiary facts that have been

proved by a preponderance of the evidence." Doe No. 496501,

supra at 656. The hearing examiner's discretion is "guided by

. . . [several] statutory risk factors" and various "aggravating

and mitigating considerations." Doe, Sex Offender Registry Bd.

No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134

(2019). See G. L. c. 6, § 178K (1); 803 Code Mass. Regs. § 1.33

(2016).

"We review a judge's consideration of an agency decision de

novo." Doe, Sex Offender Registry Bd. No. 523391 v. Sex

Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). "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." Doe No. 496501, 482

Mass. at 649. "In reviewing SORB's decisions, we give due

weight to the experience, technical competence, and specialized

knowledge of the agency" (quotation and citation omitted). Id.

See G. L. c. 30A, § 14 (7).

Here, at approximately 10 P.M. on November 14, 2004, when

the plaintiff was sixteen years old, the plaintiff confronted

victim 1, a twenty-four year old woman stranger, at gunpoint as

she was entering her apartment and demanded money. Victim 1

gave the plaintiff twelve dollars. The plaintiff then forced

victim 1 into her apartment, and, after searching and learning

there was no more money, forced his penis into victim 1's mouth

at gunpoint. The plaintiff vaginally raped victim 1, digitally

and with his penis, after which he bound victim 1's hands and

legs with an extension cord and gagged her. Thereafter, when

victim 1's roommate returned to the apartment -- also an adult

woman the plaintiff did not know (victim 2) -- the plaintiff

threatened victim 2 with the gun, bound and gagged victim 2, and

stole victim 2's debit card. On March 6, 2007, the plaintiff

pleaded delinquent in the Juvenile Court to three counts of

aggravated rape (governing offenses), one count of home

invasion, two counts of armed robbery, two counts of kidnapping,

two counts of assault and battery by means of a dangerous

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weapon, and two counts of unlawful possession of a firearm. The

plaintiff was sentenced to a prison term of sixteen to twenty

years with ten years of supervised probation to follow. He was

released from incarceration in January 2022.

In determining the plaintiff's final classification level,

the hearing examiner applied four risk-elevating factors

associated with the governing offenses. These factors included

factor 7, stranger victim, 803 Code Mass. Regs. § 1.33(7),

because victim 1 was not related to the plaintiff; factor 8,

weapon, violence or infliction of bodily injury, 803 Code Mass.

Regs. § 1.33(8), because the plaintiff sexually assaulted victim

1 at gunpoint; factor 9, alcohol and substance use, 803 Code

Mass. Regs. § 1.33(9), because the plaintiff had a history of

substance misuse and testified that he smoked "weed" on the day

of the offenses; and factor 19, level of physical contact, 803

Code Mass. Regs. § 1.33(19), because the plaintiff penetrated

victim 1 three times, twice with his penis.

The hearing examiner also applied three risk-elevating

factors associated with the plaintiff's incarceration, criminal

behavior, and community supervision. These factors included

factor 10, contact with the criminal justice system, 803 Code

Mass. Regs. § 1.33 (10), because the plaintiff had a moderate

juvenile criminal history prior to committing the governing

offenses and was charged with and convicted of additional

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offenses when he was incarcerated as an adult;1 factor 11,

violence unrelated to sexual assaults, 803 Code Mass. Regs.

§ 1.33(11), because the plaintiff received a continuance without

a finding (CWOF) on a charge of unarmed robbery in 2003 and was

charged with assault and battery on a public employee in 2008;

and factor 13, noncompliance with community supervision, 803

Code Mass. Regs. § 1.33(13), because the plaintiff committed the

governing offenses while on conditions of community release by

the Department of Youth Services (DYS).

The hearing examiner then applied five-risk mitigating

factors, taking note of the plaintiff's supervision by

probation, participation in sex offender treatment, home and

familial support systems, and of the materials submitted by the

plaintiff pertaining to stability in the community. See 803

Code Mass. Regs. § 1.33(28), (32), (33), (34). The hearing

examiner further considered the psychosocial assessment provided

by the plaintiff pursuant to factor 35, 803 Code Mass. Regs.

§ 1.33(35), as well as the two articles the plaintiff submitted

regarding juvenile sex offender recidivism, although the hearing

examiner gave these articles no additional weight, 803 Code

1 In September 2006, the plaintiff received a continuance
without a finding on a charge of possession of a class D
controlled substance and a two-year committed sentence for
delivering drugs to a prisoner. He was also charged as an adult
with assault and battery on a public employee, which was
dismissed in July 2008.

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Mass. Regs. § 1.33(37). Based on his analysis and weighing of

these factors, the hearing examiner concluded that the

plaintiff's risk of reoffense and degree of dangerousness were

moderate, and that the public interest was served by Internet

publication of his registry information.

2. Substantial evidence. The plaintiff argues that his

classification was not supported by substantial evidence because

the hearing examiner (1) engaged in an improper "mechanical

application" of the risk factors and (2) misapplied factor 11,

violence unrelated to sexual assaults, by improperly relying on

two incidents from his probation records despite a lack of

evidence that he acted violently on those occasions. Although

we agree that the hearing examiner misapplied factor 11, these

arguments are ultimately unavailing.

An offender's "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." Noe, Sex Offender Registry Bd. No.

5340 v. Sex Offender Registry Bd., 480 Mass. 195, 197 (2018),

quoting 803 Code Mass. Regs. § 1.33 (2016). Here, contrary to

the plaintiff's argument, the hearing examiner engaged in a

qualitative analysis. In applying each of the factors he found

relevant, the hearing examiner analyzed how the facts of the

governing offenses as well as the plaintiff's history and

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personal circumstances led to the application of each factor.

The hearing examiner also directly addressed how the application

of the factors he cited led to his conclusion that the plaintiff

poses a moderate risk of reoffense, a moderate degree of

dangerousness, and that a public safety interest is served by

Internet publication. Accordingly, we discern no error. Noe

No. 5340, supra.

Furthermore, although the hearing examiner is entitled to

"assess the reliability of the exhibits introduced into evidence

and . . . draw all reasonable inferences therefrom," 803 Code.

Mass. Regs. § 1.19(h) (2016), we agree with the plaintiff that

the probation and accompanying police reports that the hearing

examiner solely relied on to apply factor 11 do not sufficiently

establish that the plaintiff had a history of nonsexual

violence. For example, while the reports show that the

plaintiff received a CWOF for unarmed robbery in 2003 and had a

charge for assault and battery on a public employee dismissed in

2008, the reports contain no details regarding whether the

plaintiff engaged in violence during those incidents. See

Commonwealth v. Mora, 477 Mass. 399, 407-408 (2017) (dismissing

violent crime sentence enhancements where defendant committed

unarmed robbery but there was no evidence defendant acted

violently). Notwithstanding, after reviewing the hearing

examiner's application of the remaining risk factors, we

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conclude that there is still substantial evidence to support the

plaintiff's level two classification and that any error in

applying factor 11 did not materially affect the outcome.2 See

Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender

Registry Bd., 459 Mass. 603, 639 (2011) (finding substantial

evidence to support classification "separate and apart" from

hearing examiner's consideration of purportedly unreliable

statements).

3. Plaintiff's age at time of his offense. The plaintiff

also challenges his classification by arguing that the hearing

examiner failed to fully consider his age when assessing his

risk of reoffense and degree of dangerousness. This argument is

also unavailing.

As an initial matter, the board's regulatory risk factors

take into consideration the differences between adult and

juvenile offenders. See 803 Code Mass. Regs. § 1.33. See also

G. L. c. 6, § 178K (1) (e) (acknowledging that factors relevant

to person's classification include whether offender was a

juvenile). Indeed, before a person is even classified as a sex

offender, a different procedure is followed for persons who

2 The plaintiff points out that the examiner did not apply
any high-risk factors, but this has no bearing on our analysis.
See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender
Registry Bd., 447 Mass. 779, 788 (2006) ("[n]either the statute
nor the regulations specify that the inapplicability of a
certain factor weighs in favor of an offender").

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committed sexual offenses as juveniles. See G. L. c. 6,

§ 178L (1). For example, the board's regulations require that

the classification of a juvenile sex offender (JSO) must be done

"by the [b]oard member who is a licensed psychologist or

psychiatrist with special expertise in the assessment and

evaluation of juvenile sex offenders." 803 Code Mass. Regs.

§ 1.06(5) (2016). Additionally, although the hearing examiner

must make a qualitative decision with an offender's unique

circumstances in mind, Noe No. 5340, 480 Mass. at 197, the

plaintiff cites no authority suggesting that the hearing

examiner must rely on any materials outside of the risk factors

when classifying juvenile offenders.3

Likewise, while the plaintiff argues that the hearing

examiner erred by declining to give additional weight to the two

articles he submitted regarding JSO recidivism, this argument

3 The plaintiff's reliance on Doe, Sex Offender Registry
Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct.
639 (2012), is misplaced. In that case, we found that the
hearing examiner erred by failing to consider the young age of a
ten year old offender when applying certain risk-elevating
factors that "appear to have been written with a much older
[juvenile] offender in mind." Id. at 652. In contrast, the
plaintiff was sixteen years old at the time he committed the
governing offenses, and each of the relevant risk-elevating
factors squarely apply to juvenile offenders who have attained
the age of sixteen. See 803 Code Mass. Regs. §§ 1.33(7), (8),
(9), (10), (11), (13), (19), (27).

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also fails.4 Although hearing examiners should consider

scientific studies submitted by an offender if they present new

evidence not contemplated by the regulations, Doe, Sex Offender

Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass.

594, 605-606 (2013), the articles the plaintiff presented do not

establish "that any of the included risk factors are no longer

relevant or reliable to a determination of the risk of

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

Offender Registry Bd., 456 Mass. 612, 621-622 (2010). For

example, the Fanniff article5 states that "being a high-frequency

juvenile offender (regardless of engaging in sexual crime) was

the best predictor of adult sex offending," which is a

conclusion shared by factor 10, which the hearing examiner

applied to the plaintiff. The Caldwell article6 cites studies

suggesting that the recidivism rates for JSOs have decreased

significantly, but the mere existence of this data does not call

4 We decline to consider an additional article that the
plaintiff submitted titled "The Age of Redemption for
Adolescents Who Were Adjudicated for Sexual Misconduct" because
it was not submitted to the hearing examiner at the time of the
classification hearing. See G. L. c. 30A, § 14 (7) (review is
to be confined to administrative record).

5 Fanniff, et al., Juveniles Adjudicated for Sexual
Offenses: Fallacies, Facts, and Faulty Policy, Temple L. Rev.
(2016).

6 Caldwell, Quantifying the Decline in Juvenile Sexual
Recidivism Rates, Psychology, Pub. Policy, and Law (2016).

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into question how the hearing examiner applied the statutory and

regulatory risk factors to the plaintiff's individual case. As

such, we find no error in the hearing examiner's decision to

give the two articles "no additional weight." See Doe No.

496501, 482 Mass. at 649.

4. Plaintiff's motion for expert funds. The plaintiff

also submits that the hearing examiner abused his discretion by

denying the plaintiff's motion for expert funds. We disagree.

"The board has discretion to grant funds to indigent

offenders for an expert witness or report." Doe, Sex Offender

Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass.

15, 28 (2021) (Doe No. 339940). See Doe, Sex Offender Registry

Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 770

(2008) (Doe No. 89230). "The board's discretionary decision to

grant or deny an offender's motion for expert funds is 'based on

the facts presented in an individual case.'" Doe No. 339940,

supra, quoting Doe No. 89230, supra at 775. A motion for expert

funds must:

"1. identify a condition or circumstance special to
the sex offender and explain how that condition is
connected to his or her risk of reoffense or level of
dangerousness; 2. identify the particular type of
Expert Witness who would provide testimony to assist
the Hearing Examiner in his or her understanding and
analysis; and 3. include supporting documentation or
affidavits verifying the specific condition or
circumstance that the offender suffers from."

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803 Code Mass. Regs. § 1.16(4)(a) (2016). We review the denial

of a motion for funds for an abuse of discretion. See Doe, Sex

Offender Registry Bd. No. 58574 v. Sex Offender Registry Bd., 98

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

Here, the plaintiff's motion for expert funds stated that

expert testimony was necessary "to explain to what extent the

passage of time, the natural maturation process, the impact of

incarceration on the maturation process and brain development

may have on [the plaintiff's] risk of sexual reoffense and

degree of sexual dangerousness," where his sex offenses were

committed as a juvenile, but following eighteen years of

incarceration he is now an adult in his thirties. The hearing

examiner denied the plaintiff's motion on the grounds that the

plaintiff's "status as a juvenile offender" is not a

sufficiently unique circumstance under 803 Code Mass. Regs.

§ 1.16(4), and that the board's updated regulatory risk factors

"specifically address juvenile offenders."

Although it is true that the risk factors do not directly

confront how a juvenile offender's maturation while incarcerated

might impact their risk to reoffend as an adult, as noted above,

the risk factors do differentiate between juvenile and adult

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offenders and the risks posed by each.7 Additionally, in his

application of the risk-mitigating factors, the hearing examiner

considered evidence regarding the plaintiff's maturation since

the time of his governing offenses. For example, in applying

full weight to factor 34 regarding stability in the community,

the hearing examiner considered evidence that while incarcerated

the plaintiff passed the general educational development tests

(GED) and participated in "programs including Alternative to

Violence, Introduction to Microsoft and more"; has current plans

to attend community college; and maintains a full-time job.8

Accordingly, where the risk factors already contemplate the

differences between adult and juvenile offenders and the hearing

examiner considered evidence regarding the plaintiff's

maturation since the time of his offenses, we discern no abuse

of discretion in the denial of the plaintiff's motion for expert

7 For example, factor 29 states that while the likelihood of
recidivism for most juvenile offenders decreases after living in
the community offense-free for three years, "the risk of
reoffense decreases for most [adult] offenders after living in
the community offense-free for five to ten years" (emphasis
added). 803 Code Mass. Regs. § 1.33(29).

8 Additionally, in applying full weight to factor 33,
regarding the plaintiff's home situation and support systems,
the hearing examiner heard testimony from the plaintiff that the
"loss of his parents to prison in addition to negative social
pressures [during his childhood] . . . [led him] into a
lifestyle of gang involvement and drugs."

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funds. 803 Code Mass. Regs. § 1.16(4)(a); Doe No. 58574, 98

Mass. App. Ct. at 310.

Judgment affirmed.

By the Court (Rubin,
Desmond & Singh, JJ.9),

Clerk

Entered: December 18, 2024.

9 The panelists are listed in order of seniority.

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