John Doe, Sex Offender Registry Board No. 527402 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-839

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527402

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe (Doe), appeals from a Superior

Court judgment affirming the Sex Offender Registry Board's

(board) classification of Doe as a level three sex offender.

Doe argues that he is not required to register as a sex offender

because his index offenses, convictions in Arizona of attempted

sexual conduct with a minor, are not "like violations" to one of

the enumerated sex offenses in G. L. c. 6, § 178C. He also

argues that the evidence is insufficient to support a level

three classification. We affirm.

Background. In August 1997 Doe's then wife reported to

Arizona police that she had walked in on him and her six year

old daughter (Doe's stepdaughter) in the bedroom. Doe, who was
then twenty-six years old, was naked with an erection, and the

child was sitting on the floor wearing underwear and a T-shirt.

The child told the mother that Doe was "trying to make [her]

hole bigger." During the ensuing investigation, the child

reported that Doe would "lick [her] and put his front in [her]

bottom," telling her that "he wanted to make her bottom 'wider'

so that when she went to the bathroom it wouldn't hurt." The

child further reported that Doe stuck his tongue in her "front,"

forced his penis into her mouth, and showed her pictures that by

her description were pornographic. The child made statements

suggesting that the abuse had occurred over several months.

In February 1998 Doe pleaded guilty in an Arizona court to

two counts of attempted sexual conduct with a minor, in

violation of Ariz. Rev. Stat. Ann. § 13-1405, for his abuse of

his stepdaughter. He was sentenced to thirteen years of

incarceration and lifetime probation.

In May 2020 the board notified Doe, who had since moved to

Massachusetts, of his duty to register as a level three sex

offender. After requesting a de novo hearing before a hearing

examiner, Doe moved to dismiss the proceedings on the ground

that the Arizona crime of attempted sexual conduct with a minor

is not a "like violation" to a Massachusetts sex offense under

G. L. c. 6, § 178C. The hearing examiner denied the motion,

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concluding that the Arizona offense is a "like violation" to the

Massachusetts offense of attempted indecent assault and battery

on a child under the age of fourteen. See G. L. c. 265, § 13B;

G. L. c. 274, § 6. The hearing examiner then found that the

board sustained its burden of proving by clear and convincing

evidence that Doe's risk to reoffend and degree of dangerousness

were high, warranting a level three classification. On judicial

review under G. L. c. 30A, § 14, a Superior Court judge affirmed

the board's decision.

Discussion. 1. Like violation. The sex offender registry

law requires individuals to register with the board if they live

in Massachusetts and have been convicted of an enumerated sex

offense "or a like violation of the laws of another state."

G. L. c. 6, § 178C. "A 'like violation' is a conviction in

another jurisdiction of an offense of which the elements are the

same or nearly the same as an offense requiring registration in

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

Sex Offender Registry Bd., 456 Mass. 612, 615 (2010) (Doe No.

151564). We determine whether a conviction in another

jurisdiction is a "like violation" by looking at the elements of

the respective offenses, and not the offender's underlying

conduct. See id. 619. The out-of-State offense need not have

"precisely the same" elements as a Massachusetts sex offense,

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however, to qualify as a "like violation." Id. at 616. Rather,

the out-of-State offense can constitute a "like violation" if it

prohibits "essentially the same conduct" as a Massachusetts sex

offense. Id. at 617. See Doe, Sex Offender Registry Bd. No.

36870 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 246, 251

(2019) (Doe No. 36870).

Here, we agree with the hearing examiner's determination

that the Arizona offense of attempted sexual conduct with a

minor is a "like violation" to the Massachusetts offense of

attempted indecent assault and battery on a child under the age

of fourteen.1 In Arizona "[a] person commits sexual conduct with

a minor by intentionally or knowingly engaging in sexual

intercourse or oral sexual contact with any person who is under

eighteen years of age." Ariz. Rev. Stat. Ann. § 13-1405(A).

The Arizona crime of "attempt" includes "[i]ntentionally do[ing]

or omit[ting] to do anything which, under the circumstances as

[the] person believes them to be, is any step in a course of

conduct planned to culminate in commission of an offense."

Ariz. Rev. Stat. Ann. § 13-1001(A)(2).

In Massachusetts "[w]hoever commits an indecent assault and

battery on a child under the age of 14 shall be punished."

1 We therefore do not address the board's argument on appeal
that the Arizona offense is a "like violation" to another
Massachusetts sex offense, rape and abuse of a child.

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G. L. c. 265, § 13B. The elements of this crime "are an

intentional touching (1) that is harmful or offensive and

committed without justification or excuse; (2) that is indecent

(i.e., that offends contemporary standards of decency and moral

values); and (3) that is committed on a child under the age of

fourteen." Doe No. 151564, 456 Mass. at 616. The Massachusetts

statute governing "attempt" states that "[w]hoever attempts to

commit a crime by doing any act toward its commission, but fails

in its perpetration, or is intercepted or prevented in its

perpetration, shall . . . be punished." G. L. c. 274, § 6.

Comparing these elements, we conclude that the Arizona

offense of sexual conduct with a minor is sufficiently similar

to the Massachusetts offense of indecent assault and battery on

a child under the age of fourteen to constitute a "like

violation." Both statutes criminalize intentionally engaging in

sexual contact with a minor. We are unpersuaded by Doe's

assertion that the crimes are not sufficiently similar because

"conduct like kissing" would not be prohibited by the Arizona

statute but could violate the Massachusetts statute. An act

that would be prohibited by the Arizona statute, i.e., "sexual

intercourse" or "oral sexual contact" with a minor, would

plainly also qualify as an indecent touching of a minor in

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Massachusetts.2 Thus, "[a]n individual convicted under the

[Arizona] statute who committed the same act in Massachusetts

could be convicted under the Massachusetts statute and

thereafter would be subject to the requirement of sex offender

registration in the Commonwealth." Doe No. 151564, 456 Mass. at

618. That the Massachusetts statute "prohibits more conduct"

than the Arizona statute does not render the crimes dissimilar.

Id. For the same reason, we are unpersuaded by Doe's argument

that the crimes are dissimilar because the Arizona statute has a

higher mens rea requirement than the Massachusetts statute.

Doe also points to the differences in the statutes

regarding the age at which a child is unable to consent.

Specifically, he asserts, without citation, that "[i]n Arizona a

minor under age 18 is unable to consent to sexual conduct," but

see Ariz. Rev. Stat. Ann. § 13-1407(F), "whereas in

Massachusetts proof a minor aged 14 or over did not consent is

required." This argument is foreclosed by Doe No. 36870, 96

Mass. App. Ct. at 253, in which we held that the out-of-State

offense was a "like violation" to the Massachusetts offense of

indecent assault and battery on a child under the age of

The Arizona statute defines "sexual intercourse" as
2

"penetration into the penis, vulva or anus by any part of the
body or by any object or masturbatory contact with the penis or
vulva" and "oral sexual contact" as "oral contact with the
penis, vulva or anus." Ariz. Rev. Stat. Ann. § 13-1401(A).

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fourteen, even though the statutes "define[d] differently the

age whereby a child is unable to consent." In so concluding, we

underscored that "a technical comparison of crimes which are, in

all other respects, 'essen[tially] . . . the same' is not what

the Legislature intended when it passed the sex offender

registry law." Id., quoting Doe No. 151564, 456 Mass. at 615.

We likewise disagree with Doe's argument that his offenses

were not "like violations" because of differences in the Arizona

and Massachusetts crimes of attempt. The Arizona statute

defines attempt in three different ways. See Ariz. Rev. Stat.

Ann. § 13-1001(A). Doe focuses on only the first definition

while disregarding the second, which, as mentioned, provides

that a person commits attempt by intentionally taking "any step

in a course of conduct planned to culminate in commission of an

offense." Ariz. Rev. Stat. Ann. § 13-1001(A)(2). That

provision is essentially the same as the Massachusetts statute

criminalizing "attempt[ing] to commit a crime by doing any act

toward its commission, but fail[ing] in its perpetration."

G. L. c. 274, § 6.

At oral argument Doe claimed that the second definition of

attempt in the Arizona statute differs from the Massachusetts

statute because Arizona follows the model penal code approach,

whereas Massachusetts follows the proximity approach. But Doe's

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brief does not address the second definition in the Arizona

statute at all, let alone develop any argument regarding it.

The issue is therefore waived. See Mass. R. A. P. 16 (a) (9),

as appearing in 481 Mass. 1628 (2019).

We note also that Doe's suggestion at oral argument that

one could be found guilty of attempt in Arizona merely by

thinking about committing a crime is implausible and contrary to

the language of the statute, which requires the taking of a

"step" toward the commission of a crime. Ariz. Rev. Stat. Ann.

§ 13-1001(A)(2). Moreover, if Arizona follows the model penal

code as Doe claims, an attempt would require the taking of a

"substantial step" toward the commission of a crime. Model

Penal Code § 5.01 (1) (c). In any event, we need not delve on

our own into how the Arizona courts might define attempt in some

"hypothetical set of circumstances"; we evaluate only "the

'essence' of the crimes for sufficient similarity."

Commonwealth v. Bell, 83 Mass. App. Ct. 82, 88 (2013). We

therefore cannot relieve Doe of his duty to register based on

the hypothetical possibility that "the greater stringency with

which Massachusetts defines an attempt [could] lead to an

acquittal in the Commonwealth for behavior identical to that

resulting in [an Arizona] conviction." Id. at 87.

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2. Substantial evidence. Doe next argues that the board's

decision to classify him as a level three sex offender is

unsupported by substantial evidence. Substantial evidence is

"such evidence as a reasonable mind might accept as adequate to

support a conclusion." Doe, Sex Offender Registry Bd. No. 10800

v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011) (Doe No.

10800), quoting G. L. c. 30A, § 1 (6). The board must "prove

the appropriateness of an offender's risk classification by

clear and convincing evidence." Doe, Sex Offender Registry Bd.

No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298

(2015).

Substantial evidence supports the hearing examiner's

determination that the board met its burden in this case. In

arguing otherwise, Doe claims that his index sex offenses did

not involve penetration. That is incorrect. Although Doe's

index offenses were for attempt, the hearing examiner found that

there was reliable and credible evidence that Doe actually and

repeatedly raped and indecently touched the six year old victim

over a three-month period. The hearing examiner gave a detailed

explanation for this finding, which is supported by the record.

In addition, the hearing examiner cited evidence of other

sexual misconduct committed by Doe against a second victim in

1996. The victim, a thirteen year old babysitter, reported to

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Arizona police that Doe touched her breasts under her clothes

and her vagina on top of her clothes on five different

occasions. The victim further reported that Doe gave her and

her friends alcohol and cigarettes. Two of the victim's friends

witnessed Doe kissing and touching her breasts and corroborated

her account that Doe gave them alcohol, as well as marijuana.

Another friend witnessed Doe kissing the victim and fondling her

breasts and told police that she had seen Doe and the victim

"making out" on other occasions. Although Doe was not charged

with any crimes for these sexual assaults, the hearing examiner

found that there was reliable and credible evidence that the

assaults occurred, given the level of detail in the victim's and

witnesses' accounts. Doe does not challenge this finding on

appeal.

The hearing examiner also considered evidence that, while

Doe was on probation in 2014, Arizona police found pornographic

materials on his cell phone, including an image of the genital

area of a girl under the age of fifteen, a video depicting the

vagina of a girl under the age of fifteen being penetrated by an

adult penis, a video depicting a penis ejaculating on children's

underwear, and several thumbnail images showing minors engaging

in sex acts. Doe was later arrested and charged in Arizona with

two counts of sexual exploitation of a minor. Although the

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charges were ultimately dismissed, the hearing examiner found

that there was reliable and credible evidence that Doe possessed

child pornography. Again, Doe does not challenge the hearing

examiner's finding on appeal.

The index offenses and Doe's other sexual misconduct

triggered the application of two statutory high-risk factors:

factor 2 (repetitive and compulsive behavior) and factor 3

(adult offender and child victims). The hearing examiner also

applied several risk-elevating factors, including factor 18

(extravulnerable victims), factor 19 (level of physical contact,

factor 20 (diverse sexual behavior), factor 21 (diverse victim

type), and factor 13 (noncompliance with community supervision).

Although the hearing examiner gave moderate weight to the

mitigating fact that Doe had eight years of offense-free time in

the community, he ultimately concluded that this did not

outweigh the numerous high-risk and risk-elevating factors. The

hearing examiner's detailed reasoning demonstrates that he

carefully weighed the factors and that the level three

classification was "based on a sound exercise of informed

discretion rather than the mechanical application of a checklist

or some other reflex." Doe, Sex Offender Registry Bd. No.

356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 299

(2021), quoting Doe, Sex Offender Registry Bd. No. 136652 v. Sex

11
Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012).

Substantial evidence supports the hearing examiner's decision.

See Doe No. 10800, 459 Mass. at 637.

Judgment affirmed.

By the Court (Blake, C.J.,
Shin & Hand, JJ.3),

Clerk

Entered: February 11, 2025.

3 The panelists are listed in order of seniority.

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