John Doe, Sex Offender Registry Board No. 464933 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-1170

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 464933

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment

affirming a decision of the Sex Offender Registry Board (SORB)

classifying him as a level three sex offender in accordance with

G. L. c. 6, § 178K (2) (c). On appeal, the plaintiff argues

that the hearing examiner's application of high-risk factor two,

repetitive and compulsive behavior, 803 Code Mass. Regs.

§ 1.33(2) (2016), was arbitrary and capricious. While we agree

that the hearing examiner erred by applying factor two, we

nevertheless affirm the decision because the remaining evidence

overwhelmingly supports a level three classification.

Discussion. "[A] decision of SORB 'may only be set aside

if the court determines that the decision is unsupported by
substantial evidence or is arbitrary or capricious, an abuse of

discretion, or not in accordance with law.'"1 Doe, Sex Offender

Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass.

App. Ct. 797, 801 (2022) (Doe No. 22188), quoting Doe, Sex

Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd., 99

Mass. App. Ct. 533, 537 (2021) (Doe No. 6969). If the hearing

examiner misapplied a regulatory factor, we "ask whether the

error may have affected the classification and, if so, . . .

remand to SORB." Doe No. 22188, supra at 804. See Doe, Sex

Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490

Mass. 759, 767 (2022) (Doe No. 6729) (affirming level three

classification supported by "overwhelming evidence" despite

erroneously applied factor). "When evaluating the board's

decision, however, 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 No. 6729, supra at 762-763, quoting Doe, Sex Offender

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

15, 30 (2021). See G. L. c. 30A, § 14 (7). "We review a

judge's consideration of an agency decision de novo." Doe, Sex

1 "Substantial evidence is such evidence as a reasonable
mind might accept as adequate to support a conclusion"
(quotation omitted). Doe, Sex Offender Registry Bd. No. 523391
v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 93 (2019).

2
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,

95 Mass. App. Ct. 85, 89 (2019) (Doe No. 523391).

"[W]here the board determines that the risk of reoffense is

high and the degree of dangerousness posed to the public is such

that a substantial public safety interest is served by active

dissemination, it shall give a level [three] designation to the

sex offender." Doe, Sex Offender Registry Bd. No. 496501 v. Sex

Offender Registry Bd., 482 Mass. 643, 646 (2019) (Doe No.

496501), quoting G. L. c. 6, § 178K (2) (c). "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."

Id. 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) (a)-(l); 803 Code Mass. Regs. § 1.33.

SORB does not dispute that the hearing examiner erred by

applying factor two because the plaintiff was not discovered,

confronted, or investigated between his offenses, which we

discuss in greater detail infra. They argue instead that,

notwithstanding the erroneous application of factor two, there

remained overwhelming evidence to support the level three

classification. We agree that factor two was wrongfully applied

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and, accordingly, conclude that the classification decision is

"arbitrary or capricious, an abuse of discretion, or not in

accordance with the law" for that reason. Doe No. 22188, 101

Mass. App. Ct. at 804, quoting Doe No. 6969, 99 Mass. App. Ct.

at 537. We next turn to consider whether the application of

factor two prejudiced the plaintiff by affecting his level three

classification.

After excising factor two from consideration, we conclude

that the plaintiff's level three classification is supported by

the remaining factors and overwhelming evidence.2 Doe No. 6729,

490 Mass. at 767. The plaintiff pleaded guilty in January 2014

to two counts of rape of a child with force in violation of

G. L. c. 265, § 22A, five counts of posing or exhibiting a child

in a state of nudity in violation of G. L. c. 272, § 29A, and

seven counts of child pornography in violation of G. L. c. 272,

§ 29C. These charges arose from a series of incidents that

occurred while the plaintiff was living in a home with his

brother, his brother's fiancée, and their combined five

children. The plaintiff abused four of the children in the

home. His most serious offenses were against a six year old boy

(Victim 1), who he abused by, inter alia, anally raping him,

2 The plaintiff does not challenge the factual findings of
the hearing examiner.

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fellating him, and taking nude photographs of him. The

plaintiff abused a nine year old girl (Victim 2) by taking nude

photographs of her and showing her the nude photographs that he

had taken of Victim 1. He abused an eight year old girl (Victim

3) by taking a photograph of her clothed buttocks and by showing

her the nude photographs he had taken of Victims 1 and 2.3

Finally, he abused a six year old girl (Victim 4) by showing her

the photographs that he had taken of Victim 1.4

Together, these facts establish that the plaintiff was not

prejudiced by the erroneous application of factor two.

3 Victim 3 reported during a forensic interview that the
plaintiff attempted to pull down her pants and take pictures of
her "private parts," but she yelled, kicked him, and ran away.

4 Based on this evidence, excluding the erroneously applied
factor two, the hearing examiner applied one high-risk factor,
factor three, adult offender with child victim, 803 Code Mass.
Regs. § 1.33(3), and eight risk-elevating factors, including
factor seven, relationship between the offender and victim, 803
Code Mass. Regs. § 1.33(7), factor twelve, behavior while
incarcerated, 803 Code Mass. Regs. § 1.33(12), factor seventeen,
male offender against male victim, 803 Code Mass. Regs.
§ 1.33(17), factor eighteen, extravulnerable victim, 803 Code
Mass. Regs. § 1.33(18), factor nineteen, level of physical
contact, 803 Code Mass. Regs. § 1.33(19), factor twenty, diverse
sexual behavior, 803 Code Mass. Regs. § 1.33(20), factor twenty-
one, diverse victim type, 803 Code Mass. Regs. § 1.33(21), and
factor twenty-two, number of victims, 803 Code Mass. Regs.
§ 1.33(22). She also applied two risk-mitigating factors,
including factor twenty-eight, supervision by probation, 803
Code Mass. Regs. § 1.33(28), and factor thirty-two, sex offender
treatment, 803 Code Mass. Regs. § 1.33(32). She further
considered the various psychological profiles that had been
composed regarding the plaintiff pursuant to factor thirty-five,
803 Code Mass. Regs. § 1.33(35).

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Importantly, the plaintiff does not dispute that the hearing

examiner properly applied high-risk factor three, adult offender

with child victim, 803 Code Mass. Regs. § 1.33(3), nor any of

the other factors aside from factor two. Whether or not the

plaintiff's crimes were repetitive and compulsive, his abuse of

multiple prepubescent, extrafamilial victims constitutes a

gravely serious set of sexual offenses that, as supported by the

hearing examiner's remaining analysis, shows a high degree of

dangerousness and a high likelihood to reoffend. See 803 Code.

Mass. Regs. § 1.33. See also Doe, Sex Offender Registry Bd. No.

68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110-111

(2014). The plaintiff's sexual offenses were diverse,

including physical abuse of Victim 1, and his victims were

diverse in gender and relationship type. See 803 Code. Mass.

Regs. § 1.33(3), (20), (21). Although there is no doubt that

the hearing examiner misapplied factor two, that factor was "not

consider[ed] . . . with the most weight" because the hearing

examiner recognized that the plaintiff had not been discovered,

confronted, or investigated between offenses. We further note

that the plaintiff was minimally active in group sex offender

treatment while incarcerated and, at those meetings, seemed to

be more concerned about "not receiving earned good time" rather

than retaining the information being taught. Accordingly, we

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cannot say that the plaintiff was prejudiced by the application

of factor two.

In support of his argument that he was prejudiced, the

plaintiff suggests that the evidence supporting a level three

classification was not so compelling that the application of

factor two could not have affected the final classification.

See Doe No. 22188, 101 Mass. App. Ct. at 804. He makes this

argument by emphasizing five facts that he suggests should cast

his level three classification into doubt. We are unpersuaded

by any of these claims and address each in turn. First, the

plaintiff contends that he has no criminal record aside from his

sexual offending. This argument is without merit, however, as,

while contact with the criminal justice system is a risk-

elevating factor, see 803 Code Mass. Regs. § 1.33(10), non-

engagement with the criminal justice system is not a risk-

mitigating factor pursuant to 803 Code. Mass. Regs. § 1.33.

Second, the plaintiff asserts that he engaged in contact

offenses against only a single victim on two occasions. That

claim is factually erroneous, however, as the record suggests

that the plaintiff touched Victim 1 "on a daily basis," recounts

multiple instances of rape against Victim 1, and supports at

least one explicit instance of unwanted touching against

Victim 3. See Doe No. 523391, 95 Mass. App. Ct. at 88 ("An

appeal from a SORB classification decision is confined to the

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administrative record"). Third, the plaintiff contends that he

completed eight years in prison while only receiving three

disciplinary reports, but, where the plaintiff was disciplined

for engaging in prohibited sexual contact with another inmate,

we are unpersuaded that his disciplinary record could reasonably

be taken to mitigate his classification level. Fourth, the

plaintiff argues that he abused only children in his own home,

suggesting that his limited victim pool reduces the likelihood

that he will reoffend in the future. Given that the plaintiff

engaged in diverse sexual offending against victims from within

and outside his family, however, we do not conclude that the

fact that his index offenses targeted only children who lived

with him weighs heavily enough against the overwhelming evidence

against him to support a finding of prejudice. See Doe, Sex

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

488 Mass. 15, 32 (2021) ("assault on two different types of

victims" supports level three classification). Fifth and

finally, the plaintiff reminds us that he took responsibility

for his misconduct by pleading guilty to the charges against

him. We are not persuaded. The plaintiff's lackluster

engagement with sex offender treatment coupled with his

disciplinary offenses while incarcerated mitigates any

persuasive force that his guilty plea might have otherwise had

with respect to his classification. See id. Accordingly, we

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discern no prejudice against the defendant resulting from the

hearing examiner's erroneous application of factor two.

Judgment affirmed.

By the Court (Desmond, Hand &
Grant, JJ.5),

Clerk

Entered: October 3, 2024.

5 The panelists are listed in order of seniority.

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