John Doe, Sex Offender Registry Board No. 34664 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-784

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 34664

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment upholding his classification as a level two sex

offender. He claims two errors: (1) the hearing examiner

improperly denied funds for an expert, and (2) the Sex Offender

Registry Board (board) failed to prove that he currently poses a

moderate risk to reoffend. We affirm.

Discussion. 1. Denial of motion for funds. When moving

for expert witness funds, the sex offender bears the burden of

identifying and articulating "the reason or reasons, connected

to a condition or circumstance special to him, that he needs to

retain a particular type of expert." Doe, Sex Offender Registry

Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775

(2008) (Doe No. 89230). "A general motion for funds to retain

an expert to provide an opinion on the sex offender's risk of
reoffense, without more, would appear to be insufficient." Id.

"[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).

We discern no such abuse of discretion here. Although, in

his motion, the plaintiff claimed that "[m]edical records"

indicate that he suffers from "PTSD, major depression, anxiety,

and agoraphobia," the plaintiff never produced medical records

or any other proof indicating a diagnosis of these conditions.

In an affidavit, the plaintiff's anticipated expert psychologist

noted the plaintiff's "history of [] PTSD, major depression,

anxiety, and agoraphobia and other current health issues" and

indicated a need to interview the plaintiff, administer tests,

and review "medical/psychological history"; however, the expert

did not offer a diagnosis. Nor did the medical record the

plaintiff submitted relating to back pain or the letter from a

social worker referencing therapy amount to a mental health

diagnosis. While the plaintiff's own affidavit alleged that he

had been receiving social security income since 2015 for the

above-listed maladies and has attended therapy since 2013, the

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hearing examiner was permitted to make his own assessments of

the weight of that evidence. See Doe, Sex Offender Registry

Bd., No 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138-

139 (2019) (Doe No. 23656) (in context of hearing examiner's

classification determination). In sum, the materials submitted

by the plaintiff did not require the hearing examiner to

conclude "that he had in fact been diagnosed" with a mental

health condition. Doe, Sex Offender Registry Bd. No. 339940 v.

Sex Offender Registry Bd., 488 Mass. 15, 29 (2021). See Doe,

Sex Offender Registry Bd. No. 29481 v. Sex Offender Registry

Bd., 84 Mass. App. Ct. 537, 543 n.5 (2013) (motion for funds

properly denied where plaintiff "alleged 'hallucinations'").

Contrast Doe No. 58574, supra at 311 (motion for funds

improperly denied where evidence included diagnosis of chronic

hepatitis C and physician report detailing symptoms and

treatment). Absent such evidence (or, at least, evidence

credited by the hearing examiner) the plaintiff's argument that

an "expert is necessary in this case to interpret the medical

records and perform testing" 1 fell flat. The hearing examiner

did not abuse his discretion in concluding that the request

amounted to a "general motion for funds" that did not meet the

1 The plaintiff argued that scientific studies have found
depression "is negatively, if at all, related" to "violent
recidivism" among individuals under psychiatric care.

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standard under Doe No. 89230, supra at 775, or 803 Code Mass.

Regs. § 1.16 (2016).

2. Substantial evidence. The plaintiff next claims that

the evidence failed to show that he posed a moderate risk to

reoffend. The board "is constitutionally required to 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)

(Doe No. 380316). "To determine the validity of an agency's

decision, the reviewing court must determine whether the

decision is supported by substantial evidence." Doe, Sex

Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd.,

88 Mass. App. Ct. 73, 76 (2015), quoting Doe, Sex Offender

Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass.

779, 787 (2006). In reviewing the board's decision, a court will

"give due weight to [its] experience, technical competence, and

specialized knowledge." Doe, Sex Offender Registry Bd. No.

496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019),

quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex

Offender Registry Bd., 466 Mass. 594, 602 (2013). "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). Based upon these standards, we

discern no error.

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The hearing examiner thoroughly considered the relevant

aggravating factors relative to the risk to reoffend: the

plaintiff attacked strangers (factor 7 -- relationship between

the offender and the victim); he used knives in the attacks

(factor 8 -- use of weapons, violence, or infliction of bodily

injury); and he attacked two women (factor 22 -- number of

victims). These conclusions were amply supported by the

evidence shown by his record of convictions and two police

reports that detailed two events occurring just six weeks apart.

In each instance, the plaintiff lured vulnerable women to his

apartment under the pretext of helping them. As to the first

victim, he produced an eight-inch knife, prevented her from

leaving, and raped her numerous times throughout the night. As

to the second victim, he brandished a butcher knife, put it to

her face, and threatened her during a sexual assault. This

substantial evidence spoke directly to the risk to reoffend as

identified in governing regulations, 803 Code Mass. Regs.

§§ 1.33(7)(a)(3), 1.33(8)(a), and 1.33(22)(a) (2016), and

provided "clear and convincing" proof of the level two

classification. Doe No. 380316, supra at 298.

For the first time, the plaintiff claims the examiner erred

by assigning moderate weight to risk-elevating factor 10,

requiring the examiner to consider the plaintiff's prior contact

with the criminal justice system. He argues that assigning

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weight to older, "minor" offenses (distinct from the sex

offenses) "seems like a stretch." This claim was not raised

below and "is waived." Doe, Sex Offender Registry Bd. No.

203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320-

321 (2015). Even if considered, the claim fails. His record

shows three arraignment dates from 1990 to 1993. Two

arraignments involved possession of cocaine (nol prossed) and

the remainder involved operating after license suspension,

operating after revoked registration, compulsory insurance

violation, and attaching registration plates (ultimately

dismissed following a continuance without a finding). "[F]actor

10 is not limited to . . . a particular time frame; . . . [and]

does not confine the examiner to consider only convictions."

Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender

Registry Bd., 98 Mass. App. Ct. 219, 226 (2020). The examiner

considered the vintage of the contact and balanced it against

the mitigating factor that the plaintiff most recently lived

offense-free for eight years in the community (factor 29). We

discern no error.

Contrary to the plaintiff's other contention, the hearing

examiner did not employ a perfunctory "checklist" approach.

Instead, the examiner appropriately evaluated the qualitative

weight of the above factors, rejected the aggravating factor of

substance use, and considered several factors in mitigation. In

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particular, the examiner found the following current factors in

mitigation: the plaintiff lived for eight offense-free years in

the community (factor 29 -- offense free time in the community);

the plaintiff was fifty-six years old (factor 30 -- advanced

age); the plaintiff suffered physical limitations (factor 31 --

physical condition); the plaintiff participated in, but did not

complete, treatment (factor 32 -- sex offender treatment); the

plaintiff lived in a positive and supportive home environment

(factor 33 -- home situation and support systems); and the

plaintiff remained financially stable with housing (factor 34 --

stability in the community). Giving "due weight to the

experience, technical competence, and specialized knowledge of

the [hearing examiner]," G. L. c. 30A, § 14 (7), we conclude

that the classification decision here was "based on a sound

exercise of informed discretion rather than the mechanical

application of a checklist or some other reflex" (quotation and

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citation omitted). Doe, Sex Offender Registry Bd. No. 11204 v.

Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 574 (2020).

Judgment affirmed.

By the Court (Green, C.J.,
Hand & Hodgens, JJ. 2),

Assistant Clerk

Entered: March 13, 2024.

2 The panelists are listed in order of seniority.

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