MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. After Doe was convicted in Connecticut of sex offenses he committed as a juvenile in 1998 on a five year old girl (victim one), he was charged when he was an adult with sexual assaults occurring in 2006 and 2007 on a six to eight year old girl (victim two), and in 2011 on a five year old boy (victim three). On appeal, Doe argues that: (1) the hearing examiner improperly relied on multiple level hearsay, contained in documentary evidence, that described Does sexual assaults on all three victims; (2) the hearing examiner erred in applying high-risk factor 2, repetitive and compulsive behavior, and factor 3, adult offender with child victim; (3) the hearing examiner abused his discretion by denying funds for an expert on juvenile sex offenders; (4) Does preliminary classification should have been conducted by a licensed psychologist with a special expertise in the assessment and evaluation of juvenile offenders; and (5) the classification of Doe as a level three sex offender was unsupported by substantial evidence. 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.
In 1995, when Doe was thirteen years old, the Connecticut Department of Children and Family Services investigated allegations that Doe was having sexual contact with a five year old boy. Police were notified, but the investigation was not pursued because the boys family was close friends with Does family, and it was arranged for Doe to undergo counseling through their church. The hearing examiner found that he “[did] not have enough details ․ to consider this sexual misconduct,” but considered it “other useful information” in determining Does risk of reoffense and degree of dangerousness. See 803 Code Mass. Regs. § 1.33(37) (2016).
In 1998, when Doe was sixteen years old, he sexually assaulted victim one, a five year old girl who is the younger sister of the boy at issue in the 1995 allegations. Doe exposed his penis to victim one on more than one occasion, made her play with it, and made her lick it. Victim one further disclosed that Doe had twice used his hand to “hurt” her “bladder,” which was the word she used to describe her vagina. On charges arising from that conduct, Doe pleaded guilty to sexual assault in the first degree, in violation of Conn. Gen. Stat. § 53a-70(a)(2), and risk of injury to a child by indecent contact with intimate parts, in violation of Conn. Gen. Stat. § 53-21(2),
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and was sentenced to concurrent twelve-year terms with five years to serve and the balance suspended during ten years of probation.
In 2006 and 2007, while Doe was on probation and was twenty-five to twenty-six years old, he sexually assaulted victim two, who was six to eight years old and was his then-wifes niece. In a forensic interview, victim two disclosed that Doe made her touch his penis, tried to touch her vagina, showed her pornography, and on two occasions in a public elevator picked her up, wrapped her legs around him, and moved her up and down against him. Victim two also described an incident when Doe chased her and her cousin while Does pants and underwear were pulled down and his genitals exposed. Victim twos allegations were corroborated by the statements of Does former wife, who told police that when victim two was seven years old, victim two followed Doe around a lot. Doe told his then-wife to keep victim two away from him because he was getting “tempted,” and that victim two “had kind of touched him on his ․ penis.” Victim twos allegations were also corroborated by her cousin, who described to police the incident when Doe chased them with his pants down. Based on his conduct toward victim two, Doe was charged with two counts of sexual assault as well as other crimes. The hearing examiner found that Doe “on multiple occasions, sexually assaulted [v]ictim [two].”
In 2011, victim three, Does four year old son, reported in a forensic interview that Doe put his fingers in victim threes “butt” “a lot of times,” and also put his hand and arm in victim threes “butt.” Victim three further reported that he touched Does genitals and “butt.” Based on an affidavit detailing that information, police obtained a warrant for Does arrest. The hearing examiner found that Doe “did in fact digitally penetrate [v]ictim [three]’s anus.”
As a result of the allegations that Doe had sexually assaulted victims two and three, Doe was found in violation of his probation and sentenced to eighty months’ incarceration. As to his sexual assaults on victim two, Doe pleaded nolo contendere to one count of risk of injury to a child, Conn. Gen. Stat. § 53-21(a)(1), and was sentenced to a one-year term concurrent with the sentence he was serving.
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After Does release in 2018, he registered as a sex offender in Connecticut and then moved to Massachusetts.
Based on a preliminary assessment, SORB classified Doe as a level three sex offender, a classification that Doe challenged. A hearing was held on August 19, 2020, when Doe was thirty-eight years old. The hearing examiner considered documentary evidence, as well as the testimony of Does current wife and her parents. In assessing the evidence, the hearing examiner applied high-risk factor 2, repetitive and compulsive behavior, with “the most weight,” because Doe had continued to sexually reoffend even after having been convicted of the 1998 sexual offense. See G. L. c. 6, § 178K (1) (a) (ii). See also 803 Code Mass. Regs. § 1.33(2). The hearing examiner applied high-risk factor 3, adult offender on child victim, with “increased weight” because Doe was twenty-five years old when he sexually assaulted victim two and thirty years old when he sexually assaulted victim three, and both of those victims were prepubescent. See G. L. c. 6, § 178K (1) (a) (iii). See also 803 Code Mass. Regs. § 1.33(3).
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The hearing examiner considered mitigating factors, and applied three: factor 32 (sex offender treatment); factor 33 (home situation and support systems); and factor 34 (stability in the community). The hearing examiner also considered four scholarly articles that Doe submitted regarding juvenile sex offenders. The hearing examiner found that Does risk to reoffend is high, his degree of dangerousness is high, and a substantial public safety interest is served by Internet publication of his registry information. The hearing examiner classified Doe as a level three sex offender. A judge of the Superior Court upheld the hearing examiners classification, and Doe timely appealed that decision.
Discussion. 1. 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) (Doe No. 523391), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011). “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).
To support a level three sex offender classification, SORB bears the burden of showing, by clear and convincing evidence, see Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015), “that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination [of registration information].” Doe No. 496501, 482 Mass. at 646, quoting G. L. c. 6, § 178K (2) (c). 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) (Doe No. 23656), citing 803 Code Mass. Regs. § 1.33 (2016).
2. Hearsay reliability. Doe argues that the hearing examiner erred by relying on multiple-level hearsay contained in police reports and court documents recounting statements of victims one, two, and three describing Does sexual assaults on them, as well as statements of other witnesses corroborating the victims’ accounts. Before the hearing, Doe moved to exclude those statements as hearsay, which the hearing examiner denied.
Hearsay evidence, even multiple-level hearsay, may be considered by a hearing examiner so long as it has “indicia of reliability.” See Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312 (2007). Such evidence “may be admissible ․ depending on the general plausibility and consistency of the victims or witnesss 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.” Id. at 312-313. In addition, the hearing examiner may consider evidence of prior or subsequent sexual misconduct that did not result in a conviction. See Doe No. 356011, 88 Mass. App. Ct. at 79.
Here, the descriptions by all three victims of Does sexual assaults on each of them were sufficiently detailed, plausible, and corroborated. The statements of victim one were detailed, and were corroborated by her brothers statements and by Does guilty pleas arising from his sexual assaults on victim one. See Doe No. 523391, 95 Mass. App. Ct. at 89 (sufficient detail that “ ‘it was reasonable for the [hearing] examiner to admit and credit’ the facts described in the hearsay evidence” [citation omitted]). The statements of victim two were also sufficiently detailed for the hearing examiner to credit them. See id. Victim twos statements were corroborated by statements of Does former wife, to whom Doe had said victim two was “tempting” him, and of victim twos cousin. Similarly, victim threes statements were sufficiently detailed. They were corroborated by statements of his babysitter, who told police that victim three said that Doe inserted objects into his anus and that Doe woke victim three up to “bother” him. Considering these circumstances, the hearsay evidence was sufficiently reliable, and there was no error in its admission.
Doe argues that the hearing examiner did not consider relevant evidence concerning circumstance, motive, lack of plausibility, consistency, detail, or corroboration. He contends that the hearing examiner did not consider Does ex-wifes motive to lie, victim twos history of fabricating abuse allegations against him and others, victim threes age at the time of the assaults and the absence of criminal charges stemming from those assaults, and the lack of corroboration and detail for certain incidents. Those were credibility issues for the hearing examiner as fact finder. See Doe No. 23656, 483 Mass. at 138-139.
3. Application of high-risk factors. a. Factor 2. Doe argues that the hearing examiner erred in applying factor 2, repetitive and compulsive behavior, because Doe committed the sexual assaults on victim one when Doe was a juvenile, and there was insufficient evidence of compulsive behavior because Does assault on victim one was “years apart” from his sexual assaults on victims two and three.
General Laws c. 6, § 178K lists factors relevant to a sex offenders risk of reoffense to “include, but not be limited to” factors including “(ii) whether the sex offenders conduct is characterized by repetitive and compulsive behavior.”
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Contrary to Does argument, the fact that eight years elapsed between his sexual assaults on victim one and his beginning to sexually assault victim two is not determinative of whether his conduct was compulsive. Cf. Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 746 (2019) (Milkey, J., concurring) (“the mere passage of time between offenses hardly demonstrates that such recidivism is compulsive”). That is particularly so here, where Doe was incarcerated for much of those eight years, and was on probation for sexually assaulting victim one when he committed the sexual assaults on victims two and three.
As to Does claim that factor 2 should not apply to him because he was a juvenile when he committed the sexual assaults on victim one, it is meritless. Whether the hearing examiner considered Doe an adult offender who had been charged with and convicted of prior sexual assaults as a juvenile, or a juvenile offender who committed subsequent sexual assaults as an adult, either way the regulation permitted the hearing examiner to apply factor 2 with the most weight. 803 Code Mass. Regs. § 1.33(2)(a), (c). By Does logic, factor 2 would apply to a juvenile who recidivates when still a juvenile, but not to a juvenile who recidivates as an adult. The hearing examiner did not err in giving “the most weight” to factor 2.
b. Factor 3. Doe argues that the hearing examiner erred in applying factor 3, adult offender with child victim. Doe contends that because he was a juvenile when he committed his sex offenses on victim one, the regulations require that he be treated as a juvenile as to the sexual assaults he committed on victim two when he was twenty-five to twenty-six years old, and on victim three when he was thirty years old.
General Laws c. 6, § 178K lists factors relevant to a sex offenders risk of reoffense to “include, but not be limited to” factors including “(iii) whether the sex offender was an adult who committed a sex offense on a child.” The related regulation defines that factor, factor 3, somewhat more broadly, as follows:
“(a) Adult Male. Adult offenders who target children pose a heightened risk to public safety because children normally lack the physical and mental strength to resist an offender. In addition, children can be lured into dangerous situations more easily than most adults. For purposes of factor 3, [SORB] shall consider any victim younger than [sixteen] years old as a ‘child victim.’
“Offenders who target prepubescent children, generally younger than [thirteen] years old, are more likely to have a deviant sexual interest and, therefore, pose an even higher risk of reoffense and degree of dangerousness and are given greater weight.
“If the difference in age between the offender and the victim is five years or less and there is evidence of a consensual, although statutorily criminal, sexual act, [SORB] shall give limited weight to factor 3.
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“(c) Juvenile. Factor 3 does not apply to juvenile offenders. Factor 27 addresses juvenile offenders who target child victims, including adults whose only sex offense(s) were committed as a juvenile” (emphasis added).
803 Code Mass. Regs. § 1.33(3).
Doe argues that the phrase “sex offense(s)” underlined above must be construed as defined in G. L. c. 6, § 178C, as meaning violation of certain enumerated Massachusetts statutes that prohibit sex crimes, “or a like violation of the laws of another state.” The only sex offense by Doe that the hearing examiner considered a “like violation” was Does conviction of risk of injury to a child by indecent contact with intimate parts, Conn. Gen. Stat. § 53-21(2), which the hearing examiner noted was a like offense to indecent assault and battery on a child, G. L. c. 265, § 13B. Because Doe committed that sex offense as a juvenile, he maintains, factor 3 does not apply to him.
However, the hearing examiner did not apply factor 3 to the sex offense Doe committed as a juvenile on victim one. Rather, the hearing examiner correctly applied factor 3 based on Does sexual assaults on victims two and three. The hearing examiner found that Does sexual assaults on victim two, resulting in a conviction of risk of injury to a child, did not convert to “any like Massachusetts enumerated sex offenses,” but did find that Doe, “on multiple occasions, sexually assaulted [v]ictim [two].” The hearing examiner also found that Doe “did in fact digitally penetrate [v]ictim [three]’s anus,” which was “sexual misconduct.” Based on Does sexual assaults on victims two and three, the hearing examiner applied factor 3 with increased weight given that both those victims were prepubescent. The hearing examiner properly considered evidence of Does sexual assaults on victims two and three. See Doe No. 356011, 88 Mass. App. Ct. at 79-80. Thus, the hearing examiners application of factor 3 was proper.
4. Expert witness funds. Arguing that he has status as a juvenile sex offender, Doe contends that the hearing examiner erred in not awarding him funds for a forensic psychologist to determine his risk of sexual recidivism. “We review the examiners 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).
“[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.
Doe moved for expert funds, averring that he required an expert to assess his risk of sexual recidivism because his “age and maturity at the time of his sexual offenses ․ do not highlight an enhanced risk of re-offense or degree of dangerousness to the community.” The hearing examiner denied the motion, ruling that Doe had not met his burden to articulate “reasons particular to him” that warranted such an expert, and SORBs regulations account for the differences related to juvenile offenders, and so an expert was not needed. Just prior to the hearing, Doe renewed the motion, which the hearing examiner denied.
Because Doe did in fact commit sexual assaults on two victims when he was an adult, the hearing examiner could conclude that expert testimony about the likelihood of a juvenile sex offender to reoffend would not be particularly helpful. See Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 28-30 (2021) (although motion for funds averred that offender suffered in past from anxiety disorder, it did not establish that offender was presently diagnosed with anxiety disorder). See also Mass. G. Evid. § 702 (2022). Cf. Ready, petitioner, 63 Mass. App. Ct. 171, 179 (2005) (diagnostic test known as Abel Assessment of Sexual Interest was of no value to fact issues facing jury). The question before the hearing examiner was what Does risk of recidivism was, after he had sexually assaulted children both as a juvenile and then twice as an adult. See Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 501 (2015) (final classification must be based on evaluation of offenders risk of reoffense at time reasonably close to date of discharge). The hearing examiner did not abuse his discretion in denying Does motion for expert funds.
5. Preliminary classification not conducted by juvenile expert. Doe also argues that, because he was a juvenile when he committed his sex offense in 1998, G. L. c. 6, § 178L (1), and 803 Code Mass. Regs. § 1.06(5) required that his preliminary classification in 2020 be conducted by a licensed psychologist with a special expertise in the assessment and evaluation of juvenile offenders. SORB argues that those requirements apply solely to juvenile offenders, and not to offenders who continue to offend as adults.
The statute and regulation state that SORBs preliminary classification of a sex offender must be made by a licensed psychologist with special expertise in evaluating juvenile sex offenders “[i]f the sex offender was a juvenile at the time of the sex offense.” 803 Code Mass. Regs. § 1.06(5)(a). See G. L. c. 6, § 178L (1). In the subsequent section, the regulations state that “[t]o prepare a recommended classification for a juvenile or an adult whose only sex offense[s] was committed as a juvenile, the Board may meet with the juvenile sex offender” (emphasis added). 803 Code Mass. Regs. § 1.06(5)(b). Doe argues that the term “sex offense” in that statute and regulation must be construed as defined in G. L. c. 6, § 178C, and the only such “sex offense” of which he has been convicted is his Connecticut offense that he committed as a juvenile and that is a like offense to indecent assault and battery on a child, G. L. c. 265, § 13B. Therefore, Doe argues, he was entitled to all of the protections that juvenile sex offenders enjoy in connection with this hearing, which occurred when Doe was thirty-eight years old.
SORB interprets 803 Code Mass. Regs. § 1.06(5)(a) and (b) together, to mean that Doe was not eligible for the special assessment and evaluation to which a juvenile sex offender is entitled because at the time of the hearing he was an adult and had sexually assaulted children as an adult. We need not reach that question here, because Doe has not shown prejudice. The preliminary classification was simply a “recommended classification,” G. L. c. 6, § 178L (1). Doe exercised his right to a hearing, at which the hearing examiner heard evidence, including testimony of Does witnesses, and then made a “final classification,” G. L. c. 6, § 178L (2). The hearing examiner was not bound by the recommended classification.
6. Substantial evidence. Doe argues that the hearing examiners decision to classify him as a level three sex offender was unsupported by substantial evidence. “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 contrary conclusion not merely possible but necessary inference).
As discussed above, the hearing examiner did not abuse his discretion in applying high-risk factors 2 and 3 based on Does sexual assaults on victims two and three while on probation for his sex offense on victim one. Given the hearing examiners application of many other risk-elevating factors, see note 3, supra, classification of Doe as a level three sex offender was warranted by the evidence.
Judgment affirmed.
FOOTNOTES
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. This offense is now codified at Conn. Gen. Stat. § 53-21(a)(2).
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. The record before us does not contain any information about the resolution of any charges resulting from Does sexual misconduct on victim three. A Connecticut Superior Court judge ruled that victim threes statements in the forensic interview were inadmissible at a criminal trial as testimonial hearsay.
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. In addition, the hearing examiner applied with “full weight” one risk-elevating factor, factor 13 (noncompliance with community supervision), because Doe committed multiple sexual assaults on victims two and three while on probation for his sex offense on victim one. The hearing examiner also applied nine additional risk-elevating factors: factor 7 (relationship between offender and victim), because victim one was extrafamilial; factor 16 (public place), because Doe sexually assaulted victim two in an elevator and chased her with his pants down in front of her cousin; factor 17 (male offender against male victim), because Doe sexually assaulted victim three, his son; factor 18 (extravulnerable victim), because victims one and two were under age eight; factor 19 (level of physical contact), because Doe penetrated victim threes anus; factor 21 (diverse victim type), because Does three victims were both intrafamilial and extrafamilial, and both female and male; factor 22 (number of victims); factor 23 (victim access), because Doe currently lives with his seven and eight year old sons; and factor 37 (other useful information), as to the information about the five year old boy in 1995.
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. The related regulation further defines factor 2, as relevant here, as follows:“(a) Adult Male. Repetitive and compulsive behavior is associated with a high risk of reoffense․ [SORB] may give increased weight to offenders who have been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit a subsequent act of sexual misconduct. The most weight shall be given to an offender who engages in sexual misconduct after having been charged with or convicted of a sex offense.․“(c) Juvenile. Factor 2 applies only to juvenile offenders who continue to commit sex offenses after they have been detected for prior sexual misconduct. Detection includes: being cautioned, warned, disciplined, criminally charged, or otherwise sanctioned by an adult authority (e.g. police, parent, or teacher).“An offender who engages in sexual misconduct after having been charged with or convicted of a prior sex offense presents an even higher risk to reoffend.”803 Code Mass. Regs. § 1.33(2).