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13-P-1703                                           Appeals Court

   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 291554      vs.   SEX
                    OFFENDER REGISTRY BOARD.


                            No. 13-P-1703.

       Suffolk.        November 13, 2014. - March 27, 2015.

            Present:   Green, Wolohojian, & Blake, JJ.


Sex Offender. Sex Offender Registration and Community
     Notification Act. Evidence, Sex offender, Expert opinion.
     Witness, Expert.



     Civil action commenced in the Superior Court Department on
April 13, 2011.

     The case was heard by Frances A. McIntyre, J., on a motion
for judgment on the pleadings.


    Xiomara M. Hernández for the plaintiff.
    Thomas M. Doyle for the defendant.


    BLAKE, J.   The plaintiff, John Doe, challenges his final

classification by the Sex Offender Registry Board (board) as a

level three sex offender.    He claims that the board's decision

was not supported by substantial evidence, primarily because the

governing offense involved no physical contact or sexual
                                                                     2


component and, apart from that offense, Doe had no prior

criminal record.    We affirm.

     Background.    We summarize the facts found by the hearing

examiner,1 supplemented by additional undisputed facts from the

record.    In October of 2009, Doe responded to a post on a social

networking Web site from the twelve year old female victim

seeking assistance running away from home.    He initiated a

series of online communications with her over a period of thirty

or so days.    In his electronic mail messages (e-mails) to the

victim, Doe misrepresented his age as being twenty-five, rather

than his actual age of thirty-two.    Eventually, Doe arranged to

travel from his home State of Virginia to Massachusetts, on a

date certain, to pick up the victim, intending to return to

Virginia with her by train, subway, and bus.    To that end, he

purchased one bus ticket in his name and one in that of the

victim.    He also instructed the victim to bring some money and

her Social Security card.

     On the morning of the planned meeting, the victim's mother

noticed that the victim was acting suspiciously.    The mother's

boyfriend then searched the victim's computer and discovered her

communications with Doe.    The police were notified, and after

interviewing the victim, they arrested Doe at the train station,

shortly before the prearranged meeting.    Upon questioning, Doe

     1
         An evidentiary hearing was held on February 7, 2011.
                                                                    3


told the police that he knew the victim was twelve years old;

that he planned "to kiss her, lick her, and suck on" her when

they returned to Virginia; that he would take photographs of her

and post them on a Web site; that he intended to get her to love

him; and that he would marry her and have babies with her.

    Doe was charged and found guilty of enticement of a child

under the age of sixteen (enticement) and attempted kidnapping

of a child.   He was sentenced to two and one-half years in the

house of correction, and five years of probation on and after

his committed sentence.   Conditions of his probation include sex

offender treatment, no access to the Internet or to social

networking Web sites, and no unsupervised contact or employment

with children under the age of sixteen.    Doe has no other

criminal record; however, he told the police that "this is the

first time" he has "actually followed through with something."

    In October of 2010, while still serving his sentence, Doe

was notified of the board's preliminary decision to classify him

as a level three sex offender.   See G. L. c. 6, § 178K.      Doe

challenged the board's decision, and a de novo hearing was held

before a hearing examiner.   See G. L. c. 6, § 178L(1)(a).

Represented by counsel, Doe requested that he be classified as

no higher than a level two sex offender.    Unpersuaded, the

hearing examiner found that the board had met its burden of

proof and ordered Doe to register as a level three sex offender.
                                                                    4


Doe filed in Superior Court a complaint for judicial review and

then a motion for judgment on the pleadings.   A judge denied the

motion and affirmed the board's classification of Doe as a level

three sex offender.2   This appeal followed.

     The hearing examiner's decision.   As required by G. L.

c. 6, § 178K(1), the board "has promulgated guidelines 'for

determining the level of risk of reoffense and the degree of

dangerousness posed to the public'" in connection with a sex

offender's classification hearing.   Doe, Sex Offender Registry

Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 772

(2008).   See 803 Code Mass. Regs. § 1.40 (2004).   "The

guidelines have 'the force of law and must be accorded all the

deference due to a statute.'"   Smith v. Sex Offender Registry

Bd., 65 Mass. App. Ct. 803, 811 (2006), quoting from

Massachusetts Fedn. of Teachers v. Board of Educ., 436 Mass.

763, 771 (2002).   A hearing examiner has discretion to consider

which regulatory factors to apply and how to weigh those factors

based on the evidence at the hearing.   Id. at 811-813.

     Here, the hearing examiner found that several statutory and

regulatory factors were applicable to Doe's case, resulting in

her finding that he presents a high risk of reoffense and a high

degree of dangerousness.   First, where the victim is a child,

     2
       We note that the judgment only stated that Doe's motion
for judgment on the pleadings was denied. Ordinarily, such
judgments also should affirm the board's classification.
                                                                      5


offenders such as Doe "pose a heightened risk to public safety

since children normally lack the physical and mental strength to

resist an offender."    803 Code Mass. Regs. § 1.40(3) (2002).

Next, Doe and the victim were strangers, which presents a

heightened risk of reoffense and degree of dangerousness.      803

Code Mass. Regs. § 1.40(7) (2002).    Targeting a stranger also

increases an offender's pool of potential victims.     Ibid.   Doe

was incarcerated at the time of the classification hearing,

which meant there was no evidence regarding his reintegration

into the community without committing a subsequent offense.3      803

Code Mass. Regs. § 1.40(9)(a) (2002).    Lastly, the crimes of

which Doe was convicted have been designated to be sex offenses

involving a child.     See G. L. c. 6, § 178C; 803 Code Mass. Regs.

§ 1.40(9)(c)(12) (2002).4

     The hearing examiner also applied two factors in

mitigation:   that Doe took responsibility for his actions, 803

Code Mass. Regs. § 1.40(9)(c)(13) (2002), and that he will be

under probation supervision when released from incarceration,

     3
       The board is required to begin classification proceedings
at least sixty days prior to a sex offender's release from
incarceration and must classify the sex offender at least ten
days before his earliest possible release date. G. L. c. 6,
§§ 178L(1)(a), 178E(a). We accordingly reject Doe's claim that
he posed no current risk because of his incarceration. See Doe,
Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79
Mass. App. Ct. 683, 689 (2011).
     4
       Contrary to Doe's contention, the hearing examiner did not
consider substance abuse as a factor in Doe's classification.
                                                                        6


803 Code Mass. Regs. § 1.40(10) (2002).     Sex offender treatment

was not available to Doe at the house of correction.     He did,

however, enroll in a cognitive behavior development class,

attend Alcoholics Anonymous meetings, and submit to the hearing

examiner a comprehensive relapse prevention plan.    While not a

substitute for sex-offender-specific treatment, the hearing

examiner found Doe's actions to be an encouraging start.

     In carefully weighing the factors involved in this case,

the hearing examiner found the facts of the offenses to be

"extremely aggravating."   In particular, she noted that:      "While

I am cognizant that [Doe] is convicted of acts related to only

this one incident, and that his actions towards abducting and

sexually assaulting the girl were cut short by police

intervention, I find his stated intentions and his actions taken

towards his goal exceedingly grievous and give them great

weight."5

     Standard of review.     In determining the validity of the

board's decision, a reviewing court "must determine whether the

decision is supported by substantial evidence."     Doe, Sex

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

447 Mass. 779, 787 (2006).    "In reviewing SORB's decisions, we

'give due weight to the experience, technical competence, and

     5
       The hearing examiner nevertheless noted that Doe may be a
candidate for further administrative review in the future to
determine the appropriateness of reclassification.
                                                                       7


specialized knowledge of the agency.'"    Doe, Sex Offender

Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass.

594, 602 (2013) (Doe No. 205614), quoting from G. L. c. 30A,

§ 14(7).   "A reviewing court will set aside or modify SORB's

decision if it was . . . '[a]rbitrary or capricious, an abuse of

discretion, or otherwise not in accordance with law.'"        Id. at

601-602, quoting from G. L. c. 30A, § 14(7).     "It is the

province of the board, not this court, to weigh the credibility

of the witnesses and to resolve any factual disputes."        Doe, Sex

Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81

Mass. App. Ct. 610, 618 (2012).

    Discussion.    On appeal, Doe claims that because there was

no physical contact between him and the victim, and no sexual

component to the crimes, he should not have been required to

register as a level three sex offender.    In the alternative, he

claims that the hearing examiner failed to properly weigh

certain mitigating factors, including his lack of a prior

criminal record, and erroneously found that he and the victim

were strangers.   We address each point in turn.

    A.     Nature of the governing offenses.   The list of

predicate offenses under G. L. c. 6, § 178C, include several,

like the ones here, that are noncontact offenses.    See generally

Doe No. 205614, supra at 610 n.13.   Doe does not challenge the

general inclusion of such crimes within the ambit of the sex
                                                                     8


offender registry law.    Rather, his argument seems to center on

his claim that the crimes in question were "not sexual in

nature," as evidenced by the lack of physical contact between

Doe and the victim.   The presence of physical contact between a

sex offender and a victim is not a prerequisite to determining

if that sex offender acted out of sexual motivation.    Moreover,

the crime of enticement does not require physical contact.     See

G. L. c. 265, § 26C(b).    Here, Doe's actions and words,

individually and collectively, demonstrate that his intentions

were sexual in nature.

    B.   Application of the guidelines.    Doe claims that the

hearing examiner incorrectly found that he and the victim were

strangers, and that the corresponding risk factor was thus

applied in error.   He also claims that the hearing examiner

improperly weighed certain mitigating factors.   For those

reasons, he maintains that if he is required to register, he

should be classified as a level one offender.    These claims are

without merit.

    Doe argues that by the time of his arrest, he and the

victim were no longer strangers as they had been communicating

online for about one month.   This claim fails to account for the

undisputed fact that when Doe initiated contact with the victim,

she was unknown to him.    This initial contact was the first step

in his commission of the crime of enticement.    He then
                                                                     9


cultivated a relationship with the victim in furtherance of his

criminal plan to take her to Virginia, which actions constituted

the basis for his arrest and subsequent conviction of

enticement.

    The hearing examiner also explicitly weighed Doe's lack of

a prior criminal record, and appropriately credited him for his

expected supervision by the probation department upon release

and for having a relapse prevention plan in place.   The weight

that she afforded each of those factors was hers to determine,

and fell within the bounds of her discretion.   See Smith v. Sex

Offender Registry Bd., 65 Mass. App. Ct. at 811.

    We acknowledge, as noted by the dissent, post at             ,

that no expert testimony was presented regarding the likelihood

that Doe would reoffend.   However, the statute contains no

requirement, nor is any requirement implied in any previously

decided case, that expert testimony be presented on the subject

of the likelihood to reoffend.   By establishing factors to be

considered by the hearing examiner, the Legislature has

furnished guidance on its view of the relevant considerations

and requirements, committing to the board considerable

discretion in the specific application of those factors to
                                                                   10


individual sex offenders.     Greater quantification of specific

risk, even if possible to imagine, is not required.6

     Conclusion.    Based on the evidence presented, the risk

factors involved, and the deference we must afford to the board,

the hearing examiner's decision was supported by substantial

evidence, was not arbitrary or capricious, and was in accordance

with the law.


                                      Judgment affirmed.7




     6
       We disagree with the dissent's suggestion, post
at        , that arbitrary applications of the factors will be
immune from review.
     7
         See note 2, supra.
    WOLOHOJIAN, J., dissenting.    When creating the sex offender

registration scheme, the Legislature determined that sex

offenders should be classified by the Sex Offender Registry

Board (board) into three levels depending on whether they

present a low, moderate, or high risk of reoffense.   Although

these terms are undefined, they must remain connected to our

ordinary understanding of the quantitative concepts underlying

them.   Thus, a low risk of reoffense is "not merely a

hypothetical or speculative potential risk."   Doe, Sex Offender

Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass.

App. Ct. 383, 388 (2009) (Doe No. 24341).   "Rather, it is a risk

that is 'cognizable' -- i.e., 'perceptible'; '[c]apable of being

known, perceived, or apprehended by the senses or intellect.'"

L.L. v. Commonwealth, 470 Mass. 169, 179 (2014) (footnote

omitted).   A moderate level of risk must, by virtue of logic,

common sense, and fairness, be something quantifiably more than

a low level of risk.   Likewise, a high level of risk must, for

the same reasons, be appreciably greater than a moderate one.

The inquiry is prognostic; the hearing examiner is required to

assess not only what (i.e., another sex offense) might happen in

the future, but also its quantifiable likelihood (i.e., low,

moderate, or high) of occurring.   Because human behavior is

unpredictable, and predictions of future behavior are inherently
                                                                    2


difficult and complex, both prongs of the inquiry must rest on

something other than guesswork, conjecture, fear, or surmise.

    This is not to say that the Legislature intended the three

levels of classification to be a purely statistical analysis.

The hearing examiner is entitled to, and should, examine

qualitative factors that may also bear on the person's future

risk of reoffense.   There must, however, be an objective

quantitative basis for the particular classification.

Otherwise, if we allow the terms "low," "moderate," and "high"

to become separated from their quantitative core, a person could

be classified as a level three (high risk) sex offender

regardless of whether he presents a five percent risk of

committing another sex offense or a seventy-five percent risk.

This is unacceptable.

    I respectfully dissent because the board did not prove, by

a preponderance of the evidence, the quantum of risk Doe

presents of reoffense.   We do not know even in a general way,

let alone with any precision -- nor did the hearing examiner

find -- where on the spectrum of risk (from zero to one hundred

percent) the plaintiff, John Doe, falls.   Nor did the hearing

examiner explain why she found Doe's risk of reoffense to be

high rather than moderate.   Indeed, the board concedes that it

cannot explain why Doe presents a high risk as opposed to a

moderate risk.   It argues, instead, that the discretion afforded
                                                                      3


to the hearing examiner permitted her to classify Doe as either

a level two (moderate risk) or a level three, and that neither

classification would have been error based on the facts.       If

accepted, this argument would essentially eliminate the very

structure of the three-tier classification system, which is

premised on distinct and different levels of risk.       It would

also make even arbitrary decisions of hearing examiners

unreviewable.

    It is not enough to establish that a person presents some

risk of reoffense.     To avoid arbitrary and capricious

application of the law, one "must be able to [articulate] and

[describe] based on affirmative evidence," why and how a person

presents a particular risk of reoffense (whether low, moderate,

or high) as opposed to any other."     Ibid.     See Doe No. 24341,

supra at 387-388.     The terms low, moderate, and high cannot and

should not be interpreted so amorphously as to permit arbitrary

classification.     The board was required to prove by a

preponderance of the evidence that Doe presents a cognizable,

perceptible risk of reoffense that is greater than low, and also

greater than moderate.     This it did not do.    There was, for

example, no expert evidence presented on the risk of reoffense

by a person who, like Doe, has no criminal history or history of

sex offenses.   We are left to guess what predictive value the

characteristics of Doe's acts (while serious) might have on the
                                                                    4


quantum of risk Doe presents in the future.   The record contains

no empirical or other scientific information or data concerning

the recidivism rates for a person who has committed acts of the

nature at issue here.   And it already has been noted that "there

is reason for some concern as to whether the guidelines [upon

which the board relies] continue to reflect accurately the

current state of scientific knowledge."   Doe, Sex Offender

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

102, 116 (2014).

    For these reasons, I would vacate the denial of Doe's

motion for judgment on the pleadings and remand the matter to

the hearing examiner for further proceedings to determine Doe's

level of risk of reoffense based on affirmative evidence.
