John Doe, Sex Offender Registry Board No. 8703 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-1434

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 8703

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 his reclassification by the Sex

Offender Registry Board (the board) as a level one sex offender.

On appeal, Doe argues (1) that the hearing examiner (examiner)

abused her discretion by denying his motion for expert funds and

(2) that her decision was not supported by the substantial

evidence. We affirm.

Background. In 1979, when Doe was eighteen years old, he

was arraigned in the Superior Court on charges of rape of a

child and indecent assault and battery on a child under

fourteen. He was later convicted of these charges. Doe

committed these offenses "twice over [two] days" against his
young cousin, who was no more than six years old at the time,

while she was in his care for a weekend. Doe admitted that he

fondled the child's vaginal area after a bath and that it caused

her pain. Doe told the child not to say anything.

In 2005, Doe's daughter reported to police that Doe

sexually abused her between the ages of thirteen and twenty-one,

which was approximately 1996 to 2004. During that time, Doe

molested her and forced her to have sexual intercourse with him.

She described instances where Doe would grab her chest and

buttocks, pull off her clothes, and force his penis into her

vagina. He also repeatedly made her perform oral sex on him and

give him a "hand job." Doe would tell her that she had to have

sex with him to see her friends and threaten to beat her if she

refused.

In 2009, Doe was reported to the police for repeatedly

leering at a thirteen year old girl while she waited at her bus

stop. That same year, the board recommended that Doe be

classified as a level two sex offender, which he accepted. In

2020, after Doe filed a motion for reclassification, the board

continued to recommend that Doe be classified as a level two sex

offender. Doe requested a hearing to challenge the board's

recommendation. As a result of the hearing, which took place in

2022, the examiner classified Doe as a level one sex offender.

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The Superior Court subsequently affirmed the examiner's level

one classification, which is now the subject of this appeal.

Discussion. 1. Expert funds. Doe moved for funds to

retain his physician for expert testimony on his medical

conditions and physical limitations. He argues that the

examiner abused her discretion by denying Doe's motion for

expert funds, while only giving his physical limitations

moderate mitigating weight. "[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."

Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender

Registry Bd., 452 Mass. 764, 775 (2008). In moving for expert

funds, the petitioner bears the burden of showing a need for

expert testimony on an issue that is particular to him, is not a

matter of common knowledge or experience, and has a bearing on

his classification. Id. The board may deny expert funds where

an expert "would not have assisted the hearing examiner in

analyzing the factors enumerated in G. L. c. 6, § 178K . . . ."

See Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender

Registry Bd., 452 Mass. 784, 794 (2008).

"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.

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App. Ct. 307, 310 (2020). "[A] . . . discretionary decision

constitutes an abuse of discretion where we conclude the

[examiner] made a clear error of judgment in weighing the

factors relevant to the decision . . . , such that the decision

falls outside the range of reasonable alternatives" (quotation

and citation omitted). Id. at 311.

Doe submitted several documents describing his medical

conditions, all of which stated that he is disabled and has

limited mobility. The examiner considered this evidence and

accepted Doe's medical conditions as true and gave them moderate

mitigating weight. Doe's physician, who was not an expert in

sex offending or recidivism, would have only testified as to

Doe's medical conditions and physical limitations, which was

already sufficiently documented and accepted by the examiner.

There is no indication that the expert testimony would have

shown that Doe's medical conditions eliminated his risk of re-

offense. We discern no error in the examiner's conclusion: "I

do not find that [Doe's medical conditions] eliminate his

ability to indecently assault a potential child [v]ictim,

perhaps with his hands and through manipulation or his

relationship, such as in his original governing offense."

Because the examiner made detailed findings of Doe's

medical conditions and the expert testimony would not have

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assisted her, the examiner did not abuse her discretion by

denying Doe's motion for expert funds. See Doe No. 15606, 452

Mass. at 794.

2. Substantial evidence. Doe argues that the examiner's

decision is arbitrary and capricious and not supported by

substantial evidence because she found, without the aid of

expert testimony, that he has "deviant sexual interests". "To

determine the validity of an agency's decision, the reviewing

court must determine whether the decision is supported by

substantial evidence" (citation omitted). Doe, Sex Offender

Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.

App. Ct. 85, 88 (2019). "An agency decision should be set aside

only if a 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" (quotation and

citation omitted). Id. "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), quoting G. L.

c. 30A, § 1 (6).

"[S]ex offender risk classifications must be established by

clear and convincing evidence in order to satisfy due process."

Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender

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Registry Bd., 473 Mass. 297, 314 (2015). "Under the clear and

convincing standard, [t]he evidence must be sufficient to convey

a high degree of probability that the contested proposition is

true" (quotation and citation omitted). Doe No. 523391, 95

Mass. App. Ct. at 94.

"A hearing examiner has discretion . . . to consider which

statutory and regulatory factors are applicable and how much

weight to ascribe to each factor . . . ." Doe, Sex Offender

Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.

102, 109-110 (2014). "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"

(quotation and citation omitted). Doe No. 523391, 95 Mass. App.

Ct. at 88.

Here, the examiner's finding that Doe has "deviant sexual

interests" was not a diagnosis of a mental abnormality requiring

the aid of expert testimony. See 803 Code Mass. Regs.

§ 1.33 (3) (a) (2016) ("Offenders who target prepubescent

children . . . are more likely to have a deviant sexual interest

. . ."). Indeed, the examiner did not consider factor 1 for

mental abnormality or mention the terms paraphilia or

pedophilia. Instead, the examiner merely used the language

found in the regulation. See 803 Code Mass. Regs. § 1.33 (2016)

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("Research supports that the strongest predictors of sexual

recidivism for all sex offenders are variables related to

antisocial orientation and sexual deviance"). Furthermore, the

examiner's finding that Doe has persistent "deviant sexual

interests" is supported by the record, where over the course of

twenty-five years Doe sexually assaulted two child victims,

including a lengthy history of sexual abuse of his daughter, and

was reported for leering at a thirteen year old extrafamilial

girl.

Finally, the examiner's conclusion that Doe presents a low

risk of re-offense and degree of dangerousness is supported by

the substantial evidence. The examiner made detailed findings

and explicitly articulated her reasons for the level one

classification. See Doe, Sex Offender Registry Bd. No. 24341 v.

Sex Offender Registry Bd., 74 Mass. App. Ct. 383, 387 (2009).

Although the examiner found some mitigating factors, such as

Doe's eighteen offense-free years, age, and limited mobility and

access to children, she also found high risk and risk elevating

factors. These factors include Doe's history of sexual

penetration of two child victims, one of whom was extra-

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vulnerably young, his persistent deviant sexual interests, and

his ability to reoffend.

Judgment affirmed.

By the Court (Henry, Sacks &
Singh , JJ.1),

Clerk

Entered: May 2, 2025.

1 The panelists are listed in order of seniority.

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