Doe, SORB No. 523391 v. Sex Offender Registry Board

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17-P-1347 Appeals Court

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523391 vs. SEX

OFFENDER REGISTRY BOARD.

No. 17-P-1347.

Essex. October 5, 2018. - March 26, 2019.

Present: Massing, Ditkoff, & Englander, JJ.

Sex Offender. Sex Offender Registration and Community

Notification Act. Evidence, Sexual conduct, Hearsay,

Police report, Sex offender. Practice, Civil, Sex

offender, Hearsay. Due Process of Law, Sex offender,

Burden of proof. Administrative Law, Hearing.

Civil action commenced in the Superior Court Department on

October 7, 2016.

The case was heard by Salim Rodriguez Tabit, J., on a

motion for judgment on the pleadings.

Brandon L. Campbell for the plaintiff.

John P. Bossé for the defendant.

DITKOFF, J. The plaintiff, John Doe,1 appeals from a

Superior Court judgment affirming his final classification by

the Sex Offender Registry Board (SORB) as a level two sex

1 A pseudonym.

2

offender. We conclude that the SORB hearing examiner (examiner)

reasonably considered sufficiently reliable hearsay evidence in

the form of police reports relating to Doe's uncharged sexual

assault of a four year old boy. We conclude that, although the

classification decision must be supported by clear and

convincing evidence, subsidiary facts need be proved only by a

preponderance of the evidence. Applying these standards to

conclude that the examiner properly found by a preponderance of

the evidence that Doe had sexually assaulted the boy, and that

this and other substantial evidence supported the examiner's

decision, we affirm.

1. Background. In November, 2008, police in New Paltz,

New York, observed Doe openly watching pornography on a public

library computer.2 The officers observed that he was watching a

video recording of a child no more than three years old

performing oral sex on an adult male. The officers found other

video recordings that Doe had downloaded, depicting girls

approximately nine years old engaging in sexual acts. In

February 2009, Doe pleaded guilty to one count of possessing a

2 Approximately one year earlier, New Paltz police received

a similar complaint that Doe was viewing pornography on a

computer at the same library. Although the police discovered

nothing criminal, Doe was given a verbal warning about the

consequences of such behavior.

3

recording of a sexual performance by a child, see N.Y. Penal Law

§ 263.16.

On March 5, 2009, while awaiting sentencing,3 Doe and a work

friend decided to get drunk in the friend's apartment. The

friend resided with his girlfriend and her four year old son,

but the girlfriend was not present that evening. At some point

during the evening, Doe spontaneously confessed to his friend

that he had touched the boy. The friend responded that this

could not have happened because the two men were together all

day. Doe repeated his confession and explained that it had

occurred "when he was outside with [the] boy earlier in the

day."

The friend attempted to ask the boy, whereupon Doe forced

his way into the room, and a physical altercation ensued. When

the police arrived, Doe stated, "I shouldn't have touched the

three year old's penis, the female deputy even told me that,"

apparently mistaking a male officer for a female in his

intoxication. He then punched and kicked at the arresting

officer and, finally, feigned unconsciousness when the police

tried to interview him.

Ultimately, Doe was sentenced to one and one-third to four

3

years in prison. It appears that he was released from prison in

November 2012.

4

Later that day, at the police station, the boy told an

officer that Doe "touched Mr. Winkie." The boy explained that

"Mr. Winkie" was located "under [his] pants," and the boy's

mother confirmed that this was the boy's term for his penis.

Six days after the incident, during a children's protective

services interview, the boy disclosed that Doe touched his

genital area and that Doe also exposed his penis to the boy.

Doe was charged with sexual abuse of a minor in the first

degree, see N.Y. Penal Law § 130.65, but the charge was

ultimately nol prossed.4

In late 2014 or early 2015, Doe moved to Massachusetts to

live with his mother and, apparently, registered with SORB. In

May 2015, a SORB member recommended that Doe be classified as a

level three sex offender. Doe invoked his right to challenge

the initial classification by claiming a de novo evidentiary

hearing pursuant to G. L. c. 6, § 178L (1) (a). In June 2016,

the examiner conducted a de novo hearing on the basis of

documentary evidence submitted by both parties.5

4 The record does not reveal the precise reason for the

dismissal, but the prosecutor stated at the preliminary hearing

that "[t]he biggest problem that I have is that the victim here

is a four and a half year old child that I simply can't have

testify."

5 There was an earlier hearing at which, it appears, the

examiner classified Doe as a level three sex offender. After

the Supreme Judicial Court decision in Doe, Sex Offender

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

5

The examiner found that both the child pornography incident6

and the sexual assault incident actually occurred. Regarding

the sexual assault, the examiner found that the fact that Doe

"report[ed] to both the [friend] and to the police that he had

touched the [v]ictim, the [v]ictim also stated in the presence

of a police officer that [Doe] had touched him, reported the

same later on the same day, and then again when interviewed by

child protective services several days later . . . provides an

indicia of reliability such that it is reasonable to conclude

that the incident of sexual misconduct occurred." Armed with

these factual findings, the examiner found multiple risk factors

described in G. L. c. 6, § 178K (1), and 803 Code Mass. Regs.

§ 1.00 (2016), including repetitive and compulsive behavior,

adult offender with a child victim, relationship between

offender and victim, sexual misconduct in a public place, and

extravulnerable victim. See Doe, Sex Offender Registry Bd. No.

68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014)

297 (2015) (changing SORB's burden of proof to clear and

convincing evidence), the examiner allowed a motion for a new

hearing. Although the Supreme Judicial Court stated that the

examiner may consider evidence from the original hearing, id. at

300, here both parties agreed that the better course of action

would be to start anew.

6 The examiner found that SORB had jurisdiction over Doe's

out-of-State conviction because, under G. L. c. 6, § 178C, the

New York conviction constitutes a "like violation" to the

Massachusetts sex offense of possession of child pornography,

G. L. c. 272, § 29C.

6

("SORB is required to consider a list of statutory factors in

making its classification determinations"). The examiner

further concluded that mitigating factors, such as Doe's

supportive home situation and stability in the community, only

somewhat offset the aggravating factors. The examiner concluded

that Doe posed a moderate risk to sexually reoffend and a degree

of dangerousness such that a public safety interest is served by

public access to Doe's registry information, and thus classified

him as a level two sex offender.

Doe promptly filed a complaint for judicial review in the

Superior Court pursuant to G. L. c. 6, § 178M, and G. L. c. 30A,

§ 14. A Superior Court judge reviewed the administrative record

and affirmed SORB's decision. This appeal followed.

2. Standard of review. "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) (Doe No. 356011), quoting Doe,

Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry

Bd., 447 Mass. 779, 787 (2006) (Doe No. 10216). 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." Doe No. 356011, supra, quoting Doe No. 10216, supra. An

7

appeal from a SORB classification decision is confined to the

administrative record. See Doe, Sex Offender Registry Bd. No.

10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 311

(2007) (Doe No. 10304). "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. 356011, supra, quoting Doe No. 10216, supra. It is

within the province of the hearing officer to assess the

reliability of such evidence and to draw all reasonable

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

Offender Registry Bd., 459 Mass. 603, 638 (2011) (Doe No.

10800). We review a judge's consideration of an agency decision

de novo. See Brown-Forman Corp. v. Alcoholic Beverages Control

Comm'n, 65 Mass. App. Ct. 498, 499 (2006).

3. Examiner's reliance on hearsay. "A hearing examiner is

not bound by the rules of evidence applicable to court

proceedings." Doe No. 10800, 459 Mass. at 638. See G. L.

c. 30A, § 11 (2); 803 Code Mass. Regs. § 1.19(1) (2016).

Instead, an examiner "may admit and give probative effect to

that evidence 'which reasonable persons are accustomed to rely

in the conduct of serious affairs.'" Doe No. 356011, 88 Mass.

App. Ct. at 76, quoting G. L. c. 30A, § 11 (2). In the context

of a sex offender classification hearing, hearsay evidence may

be admissible if it bears sufficient indicia of reliability.

8

Doe No. 356011, supra at 77. See Doe No. 10800, supra at 632,

quoting G. L. c. 30A, § 1 (6) ("Substantial evidence is 'such

evidence as a reasonable mind might accept as adequate to

support a conclusion'"); Covell v. Department of Social Servs.,

439 Mass. 766, 785-786 (2003) (detailed and consistent reports

of abuse considered substantial evidence despite being presented

only through hearsay sources).

When reviewing an examiner's determination that hearsay

evidence is substantially reliable, we ask whether "it was

reasonable for the examiner to admit and credit" the facts

described in the hearsay evidence. Doe No. 356011, 88 Mass.

App. Ct. at 77. Accord Boylston-Washington, Inc. v. Alcoholic

Beverages Control Comm'n, 8 Mass. App. Ct. 396, 400 (1979).

Factors that the examiner should consider include "the general

plausibility and consistency of the victim's or witness's story,

the circumstances under which it is related, the degree of

detail, the motives of the narrator, the presence or absence of

corroboration and the like." Doe No. 356011, supra at 78,

quoting Doe No. 10304, 70 Mass. App. Ct. at 313. Common indicia

of reliability include a detailed account, see Doe No. 10800,

459 Mass. at 638; Doe, Sexual Offender Registry Bd. No. 89230 v.

Sex Offender Registry Bd., 452 Mass. 764, 778 (2008) (Doe No.

89230); Doe No. 356011, supra at 78; Doe No. 10304, supra at

312-313; the consistency of the hearsay incident with other,

9

known behavior, see Doe No. 10800, supra at 638-639; admissions

by the offender, see Doe No. 89230, supra; Doe No. 356011, supra

at 79; and independent corroboration, see Commonwealth v. Bukin,

467 Mass. 516, 520-521 (2014); Commonwealth v. Patton, 458 Mass.

119, 134 (2010). Indicia of unreliability include failure to

identify the source of information, a lack of detail, and a lack

of information about the circumstances in which the statements

were made. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex

Offender Registry Bd., 81 Mass. App. Ct. 639, 648-649 (2012)

(Doe No. 136652). Finally, other inconsistent statements by a

hearsay declarant may or may not detract from the reliability of

the hearsay, depending on the circumstances of those statements.

See Doe No. 10800, supra at 639 (earlier denial by teenage

victim not significant where explained by desire to hide other

sexual conduct).

Here, the examiner reasonably determined that the police

reports of the sexual assault bore sufficient indicia of

reliability. See Doe No. 10800, 459 Mass. at 638-639. The lack

of criminal conviction does not render information contained

within a police report inadmissible in an administrative

proceeding. See id. at 638. See also Doe No. 356011, 88 Mass.

App. Ct. at 75, 79 (acquittal of assault with intent to rape and

indecent assault and battery charges did not render report of

those charges inadmissible or unreliable). Although the sexual

10

assault is not itself described in detail, the report of the

events surrounding the assault are detailed and plausible. The

relationship between Doe and his friend, the events leading up

to the assault, the location of the assault, and the immediate

aftermath of the assault are all described in detail.

Similarly, the accusation was consistent. The boy

confirmed three times, to three different persons, that he had

been touched. First, the boy told the officer on the scene that

Doe sexually assaulted him. Later, at the police station, in

the presence of his mother, the boy stated that Doe "touched

Mr. Winkie," pointed to his penis area, and told the officer

that "Mr. Winkie" was located "under [his] pants." Finally,

during an interview with child protective services several days

later, the boy reported that Doe touched his penis and that Doe

exposed his penis to the boy.7

Finally, the sexual assault is corroborated by Doe's own

statements to multiple persons. Doe spontaneously admitted to

his friend that he had touched the four year old boy. Once the

7 Although it is, of course, true that "statements supported

with little, if any, indicia of reliability do not attain

trustworthiness through a process of repetition," Doe No.

136652, 81 Mass. App. Ct. at 649-650, quoting Edward E. v.

Department of Social Servs., 42 Mass. App. Ct. 478, 486 (1997),

the persistence of the accusation is an important factor when

the reporter is a four year old child.

11

police arrived, Doe again admitted to an officer that he

"shouldn't have touched the three year old's penis."

It was reasonable for the examiner to reject Doe's

contention that he was in a delusional state at the time he made

these admissions, and thus they should not be credited. It is

beyond cavil that Doe was intoxicated and combative at the time

he made the admissions, and intoxicated enough that he

misidentified an officer's gender. Nonetheless, Doe's

explanation that he came to believe he molested the boy because

a jail guard taunted Doe earlier strained credulity, and Doe had

the presence of mind to refuse an interview by the police. The

examiner was within her discretion to discredit Doe's

explanation for his admissions. See Doe No. 10800, 459 Mass. at

633.

Equally unpersuasive is Doe's contention that the examiner

had to find the allegations of Doe's sexual misconduct

unreliable because his friend testified at the preliminary

hearing in a New York court that he did not witness the

incident. Although the friend initially told Doe that the

molestation could not have happened because the two were

together the whole day, the friend stated that the crime was

"very possible." He explained that, although he was generally

with the friend or the boy, this was only for "most of the

time." In short, the friend did not provide an alibi for Doe.

12

Accordingly, it was reasonable for the examiner to credit the

hearsay report that Doe sexually assaulted the four year old

boy.8

4. Subsidiary findings. In addition to challenging the

underlying evidence, Doe challenges the examiner's factual

finding that he molested the boy. Due process requires SORB to

prove a sex offender's risk classification by clear and

convincing evidence. See Doe, Sex Offender Registry Bd. No.

380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015)

(Doe No. 380316). The appellate courts have not had occasion,

however, to determine whether subsidiary facts must be proved by

a preponderance of the evidence or by clear and convincing

evidence. We conclude that they must be proved by a

preponderance of the evidence.

In a criminal case, the Commonwealth must prove all

elements of the crime beyond a reasonable doubt. The standard

of proof at a criminal trial reflects the United States Supreme

Court determination that "no person shall be made to suffer the

onus of a criminal conviction except upon sufficient proof."

Jackson v. Virginia, 443 U.S. 307, 316 (1979). Despite this

The allegation that Doe exposed himself to the boy lacks

8

many of these indicia of reliability. Although the examiner

found in passing that the exposure occurred, it played no part

in her analysis of the aggravating factors and bears little

weight compared to molestation of a four year old boy.

Accordingly, any error in this finding is inconsequential.

13

heightened standard of proof, the highest known to our

jurisprudence, "preliminary questions of fact and subsidiary

facts need only be proved by a preponderance of the evidence."

Commonwealth v. Edwards, 444 Mass. 526, 543 (2005). Accord

Commonwealth v. The Ngoc Tran, 471 Mass. 179, 187 (2015)

(evidence of absence of defendant's mental impairment was

subsidiary fact that jury were not required to find beyond

reasonable doubt); Commonwealth v. Oppenheim, 86 Mass. App. Ct.

359, 366-367 (2014) (preponderance of evidence standard governs

jury's determination whether defendant authored instant message

confession); Commonwealth v. Beaz, 69 Mass. App. Ct. 500, 504

(2007) (judge gave erroneous jury instruction that inferences

must be based on facts proved beyond reasonable doubt);

Commonwealth v. Matthews, 49 Mass. App. Ct. 365, 368 n.2 (2000)

(defendant entitled to reasonable doubt instruction only with

respect to inference that is element of crime).

Similarly, in care and protection proceedings, termination

of parental rights requires clear and convincing evidence of

parental unfitness. Care & Protection of Vieri, 92 Mass. App.

Ct. 402, 404-405 (2017). Subsidiary facts underlying the

ultimate disposition, however, need not be supported by the same

standard of proof. See Care & Protection of Laura, 414 Mass.

788, 793 & n.4 (1993) (in care and protection proceedings,

subsidiary findings need be proved only by preponderance of

14

evidence); Care & Protection of Vick, 89 Mass. App. Ct. 704, 706

(2016) ("In care and protection cases, the judge's subsidiary

findings must be proved by a preponderance of the evidence").

In Care & Protection of Laura, supra at 791-793, the Supreme

Judicial Court surveyed various areas of law in which the

ultimate fact had to be proved at a higher standard of proof and

observed that, in all of these areas of law, subsidiary facts

need be proved only by a preponderance of the evidence. Like

the Supreme Judicial Court in Care & Protection of Laura, we

follow the analogy and recognize that subsidiary facts must be

proved only by a preponderance of the evidence, though the

appropriateness of the classification must be proved by clear

and convincing evidence. See Adoption of Leland, 65 Mass. App.

Ct. 580, 583 (2006), quoting Care & Protection of Laura, supra

at 793 ("While subsidiary findings must be proved by a fair

preponderance of the evidence, taken together these findings

must prove parental unfitness, which is 'the critical inquiry,'

by clear and convincing evidence"). As in Care & Protection of

Laura, this applies even where the subsidiary fact is as

consequential as an act of sexual abuse. Id.

Applying this standard here, the examiner properly found by

a preponderance of the evidence that Doe molested the boy. The

hearsay reports of the incident, combined with corroboration and

other indicia of reliability, provided the examiner with an

15

adequate basis to conclude that the molestation occurred. Cf.

Bukin, 467 Mass. at 520, quoting Commonwealth v. Durling, 407

Mass. 108, 118 (1990) ("while '[u]nsubstantiated and unreliable

hearsay cannot, consistent with due process, be the entire basis

of a probation revocation,' '[w]hen hearsay evidence is reliable

. . . , then it can be the basis of a revocation'").

Doe also challenges the examiner's factual finding

regarding the warning he received about the consequences of

viewing pornography in a public library prior to the child

pornography incident. The examiner stated that the police

"concluded that 'no criminal activity was afoot'" but that the

officer "advised [Doe] of the consequences of such activity."

The examiner found aggravating the fact that Doe viewed child

pornography in the same public library approximately one year

later after being warned not to do so. These findings are well

supported by the police report recounting the warnings given.9

Doe's argument that "[t]he Examiner treated Doe as if he was

guilty of a crime" is misplaced, as the examiner found only that

the warning had been given and appeared to credit the police

9 To the extent that Doe challenges the hearsay nature of

this evidence, the examiner could find that a police report

recounting actions taken by the police themselves was

substantially reliable. See Commonwealth v. Foster, 77 Mass.

App. Ct. 444, 450 (2010) (in probation violation hearing, judge

could rely on police observations described in police report).

16

report's conclusion that Doe had committed no crime on that

occasion.

5. Substantial evidence to support classification. Doe

challenges whether there is substantial evidence to support the

examiner's classification. "Substantial evidence is 'such

evidence as a reasonable mind might accept as adequate to

support a conclusion.'" Doe No. 10800, 459 Mass. at 632,

quoting G. L. c. 30A, § 1 (6). Because Doe was classified as a

level two sex offender, the hearing examiner had to (and did)

find clear and convincing evidence that (1) "the risk of

reoffense is moderate" and (2) "the degree of dangerousness

posed to the public is such that a public safety interest is

served by public availability of registration information."

G. L. c. 6, § 178K (2) (b). See Noe, Sex Offender Registry Bd.

No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 197

(2018). 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." Doe No.

380316, 473 Mass. at 309, quoting Callahan v. Westinghouse

Broadcasting Co., 372 Mass. 582, 588 n.3 (1977).

We review the examiner's finding that clear and convincing

evidence supported the classification to determine whether it

was supported by substantial evidence. In doing so, we may

usefully analogize to care and protection cases, where we review

17

determinations of parental unfitness made under the clear and

convincing standard. See Adoption of Anton, 72 Mass. App. Ct.

667, 673 (2008). In Adoption of Olivette, 79 Mass. App. Ct.

141, 157 (2011), we affirmed a judge's parental unfitness

finding based on hearsay reports of sexual abuse. In Adoption

of Kimberly, 414 Mass. 526, 529-530 (1993), the Supreme Judicial

Court affirmed a judge's parental unfitness finding based on the

danger of the repetition of sexual abuse if the father had

access to children he had sexually abused.

Guided by these cases, we discern substantial evidence to

support the examiner's classification decision where Doe was

convicted of a child pornography charge and, while awaiting

sentencing, molested a four year old boy in his friend's care.

These facts amply supported the high risk factors found by the

examiner, such as Doe's repetitive and compulsive behavior and

evidence that Doe sexually assaulted an extravulnerable child

victim. See G. L. c. 6, § 178K (1) (a) (ii-iii). We can

discern no error in the examiner's weighing of these aggravating

factors against the mitigating factors. Cf. Adoption of

Jacques, 82 Mass. App. Ct. 601, 608 (2012) ("Weighing strengths

against weaknesses is within the core competency of the trial

judge, who has the benefit not only of the evidence, but of

seeing and assessing the parents themselves"). Accordingly, we

conclude that the examiner's determination that Doe poses a

18

moderate risk of reoffense such that public safety would be

served by the public availability of registration information

was supported by substantial evidence.

Judgment affirmed.