MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level one sex offender.
2
He claims that his classification was unsupported by substantial evidence and the hearing examiner abused his discretion by denying funds for an expert. We affirm.
Background. We summarize the facts as set forth by the hearing examiner, supplemented by materials included in the administrative record, and reserve certain facts for later discussion. On September 3, 1983, the plaintiff pleaded guilty to indecent assault and battery on a child under the age of fourteen. On September 18, 2007, SORB classified the plaintiff as a level three sex offender. On July 23, 2019, the plaintiff filed a motion for reclassification. On January 24, 2020, SORB reclassified the plaintiff as level one. On cross motions for judgment on the pleadings, a judge denied the plaintiffs motion and allowed SORBs motion. This appeal followed.
Discussion. Standard of review. “We review a judges consideration of an agency decision de novo ․, ‘giv[ing] due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ ” Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88-89 (2019), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015). “A reviewing court may set aside or modify SORBs classification decision where it determines that the decision is in excess of SORBs statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence.” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501). See G. L. c. 30A, § 14 (7). The hearing examiner is required to make express findings as to each of the required elements, see Doe No. 496501, supra at 656-657, and is required to consider a nonexhaustive list of twelve statutory factors, see G. L. c. 6, § 178K (1) (a)-(l), as well as any other information “useful” to the examiners determinations of risk and dangerousness. G. L. c. 6, § 178L (1). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014). SORBs guidelines govern the application of each statutory factor, setting out thirty-eight relevant aggravating and mitigating considerations. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019), citing 803 Code Mass. Regs. § 1.33 (2016).
Here, the plaintiff contends that the hearing examiners classification was arbitrary and capricious, an abuse of discretion, and not supported by substantial evidence because the hearing examiner improperly applied factor 16 (public place) and failed to apply factor 31 (physical condition).
Factor 16. Factor 16 states that engaging in an act of sexual misconduct in a place where detection is likely reflects an offenders lack of impulse control. See 803 Code Mass. Regs. § 1.33 (2016). In 1977, the plaintiff approached two boys, ages six and seven, near a creek, and later admitted to authorities that he had a sexual intent when he approached them. While the plaintiff was not convicted of a sex offense for this conduct, the hearing examiner properly inferred that the plaintiff approached the boys in public with the intent to commit sexual misconduct. See 803 Code Mass. Regs. § 1.19(1)(h) (2016) (hearing examiner is to assess reliability of evidence and draw all reasonable inferences therefrom).
Factor 31. Factor 31 only requires the hearing examiner to consider the plaintiffs physical condition if that condition decreases his risk or danger. The plaintiff bears the burden to provide SORB with medical documentation that identifies the condition along with a detailed description of the offenders limitations related to that condition. See 803 Code Mass. Regs. § 1.33(31)(a). Here, the plaintiff submitted a two-page medical record that listed numerous ailments, and a one-page letter detailing a possible blockage of his heart arteries. Because this documentation did not contain evidence of any physical limitations, there was no basis upon which the hearing examiner could determine that the plaintiffs condition lowered his risk or danger. See Doe, Sex Offender Registry Board No. 136652 v. Sex Offender Registry Board, 81 Mass. App. Ct. 639, 651 (2012)(hearing examiner has broad discretion in applying SORBs regulations).
Substantial evidence. The plaintiff argues that the hearing examiners decision to classify him as a level one sex offender was unsupported by substantial evidence. As discussed above, the hearing examiner did not abuse his discretion in applying factor 16 and not applying factor 31. He also properly considered all risk-elevating factors.
3
The hearing examiner also found that the plaintiffs changed circumstances reduced his risk and danger level to low.
4
“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. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). See Doe, Sex Offender Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525, 530 (2020) (court reviews “whether a contrary conclusion is not merely a possible but a necessary inference” [quotations and citation omitted]). Given the hearing examiners application of the factors, see notes 2 and 3, supra, classification of the plaintiff as a level one sex offender was warranted by the evidence.
Expert funds. At his reclassification hearing, the plaintiff made an oral motion for expert funds. Because the plaintiff did not raise this issue before the Superior Court judge, SORB contends that it is waived. Assuming without deciding that the issue is properly before us, there was no error. “[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). “[I]n moving for expert witness funds, the burden [is] on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert.” Id. “A general motion for funds to retain an expert to provide an opinion on the sex offenders risk of reoffense, without more, would appear to be insufficient.” Id. Here, the plaintiffs generalized oral motion for funds, without more, did not establish a nexus between his treatment for clinical depression (more than thirty years ago), and his current level of risk.
5
Judgment affirmed.
FOOTNOTES
2
. A sex offender is classified as level one where SORB “determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability of registration information” (quotation and citation omitted). Doe, Sex Offender Registry Board No. 76819 v. Sex Offender Registry Board, 480 Mass. 212, 214 (2018). See G. L. c. 6, § 178K (2) (a).
3
. In addition to factor 16, the hearing examiner considered factor 2 (repetitive and compulsive behavior), factor 3 (adult offender and child victim), factor 5 (adjudicated sexually dangerous person or released from civil commitment), factor 7 (relationship between offender and victim), factor 17 (male offender and male victim), factor 19 (level of physical contact), factor 18 (extra-vulnerable victim), factor 21 (diverse victim type), factor 22 (number of victims), and factor 37 (other information related to nature of sexual behavior).
4
. This included factor 29 (fifteen years of offense free time in community), factor 30 (advanced age), factor 32 (successful completion of sex offender treatment), factor 33 (positive support system), and factor 34 (stability in the community).
5
. At oral argument, the plaintiffs counsel reported that the plaintiff is eligible for reclassification in January 2023.