JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 390261 vs. SEX OFFENDER REGISTRY BOARD.

WENDLANDT, J. The plaintiff, John Doe, repeatedly raped his daughter (victim) from the time she was seven until she was fifteen. The sexual onslaught continued despite investigations by authorities (during which the victim recanted her statements due to fear instilled by Doe and her mother). On one occasion, the victim's brother (brother) was lying in the same bed when Doe sexually assaulted the victim. When the victim's middle school classmate (friend) slept over at the family home, Doe (having previously announced his desire to do so) grabbed the friend's breasts while she was sleeping. Doe was convicted of two counts of indecent assault and battery on a child under the age of fourteen as a result of the assaults on the victim. While incarcerated, Doe refused to attend a sexual offender treatment program and received multiple disciplinary reports for violent conduct. Prior to his release from incarceration, the Sex Offender Registry Board (board) recommended that Doe be required to register as a level three sex offender. Following a de novo evidentiary hearing, a hearing examiner (examiner) agreed. Pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M, Doe appealed, and a judge of the Superior Court entered a judgment on the pleadings, affirming Doe's final classification by the board as a level three sex offender.

On appeal, Doe contends that the classification was arbitrary and capricious because the examiner relied on an uncharged sexual assault on the friend, improperly found that he sexually assaulted the victim in a public place, and gave "full aggravating weight" to his criminal history. Neither the examiner's reliance on the sexual assault of the friend nor his determination that the public place factor applied were error; however, we agree that the examiner erred in his treatment of Doe's criminal history. Excising from the examiner's determination any reliance on the criminal history factor, and determining from what remains that substantial evidence existed to classify Doe as a level three sex offender, we affirm.

Background. In 2001, Doe began to sexually assault his daughter, who was then seven years old. In the beginning, he would touch her vagina with his fingers; eventually, his assaults progressed

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to penile penetration, both oral and vaginal. [Note 1] These assaults occurred in the home Doe shared with the victim, the victim's siblings, and the victim's mother. Sometimes, the assaults commenced while the victim slept. On one occasion, two of the victim's siblings witnessed Doe raping the victim. On another occasion, Doe raped the victim while the brother, who pretended to be asleep, was lying in the same bed. Doe also physically abused the victim and her siblings. [Note 2]

Other family members also noticed Doe's inappropriate behavior with the victim. [Note 3] The victim's mother knew of the sexual abuse, and in response told the victim's siblings to "knock on the door" if Doe was in a locked room with the victim.

The victim reported the abuse to her school nurse and her doctor on separate occasions, prompting investigations by the Department of Social Services (DSS). [Note 4] However, the victim recanted each time because she feared that she and her siblings would be removed from their home.

In December 2009, the victim again reported the sexual assaults. [Note 5] During the ensuing investigation, the friend reported that, while she was asleep at the victim's house, Doe had touched her breast. [Note 6] The friend was in either seventh or eighth grade at the time of the assault. The victim pulled Doe off the friend, pleading with Doe, "Come on[,] dad. You have to go. Stop!" Doe's niece reported that she had heard Doe state that the friend "has such big boobs and he wanted to grab them." Doe was not charged with assaulting the friend. [Note 7]

In 2012, a jury found Doe guilty of two counts of indecent assault and battery on a child under the age of fourteen, pursuant

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to G. L. c. 265, § 13B, and one count of assault and battery, [Note 8] pursuant to G. L. c. 265, § 13A (a). [Note 9] Doe was sentenced to two concurrent terms in State prison [Note 10] and ten years of probation.

As his release date neared, the board recommended that Doe register as a level three sex offender, which Doe challenged. In March 2015, a hearing examiner conducted a de novo hearing, pursuant to G. L. c. 6, § 178L, and accepted the board's recommendation, ordering a final classification of Doe as a level three sex offender. Doe appealed, and due to the Supreme Judicial Court's holding in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015) (Doe No. 380316), [Note 11] Doe's pending matter was remanded to the board. Accordingly, a different examiner conducted a second de novo hearing in June 2017, which resulted in his level three classification now on appeal.

Hearing examiner's decision. The second examiner held a hearing pursuant to G. L. c. 6, § 178L, and applied the regulatory risk factors as promulgated in 803 Code Mass. Regs. § 1.33 (2016). He concluded that Doe must register as a level three sexual offender.

The examiner found two of the six regulatory "high-risk" factors applicable to Doe. He gave factor 2, "Repetitive and Compulsive Behavior," increased aggravating weight based on the multiple offenses on separate occasions against the victim and because Doe had also assaulted the friend. The examiner attributed increased weight to this factor because, despite being investigated by DSS on earlier occasions, Doe continued to sexually abuse the victim. The examiner gave factor 3, "Adult Offender with a Child Victim," full aggravating weight based on Doe's assaults

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on the victim starting at age seven and continuing "through her remaining prepubescent years" until she was fifteen years old.

The examiner next considered seven applicable "risk-elevating" factors. He gave factor 7, "Relationship between Offender and Victim," aggravating consideration based on the assault against the friend, who was an extrafamilial victim. Factor 9, "Alcohol and Substance Abuse," was given full aggravating weight based on evidence that Doe abused alcohol and other drugs as well as the role alcohol played during his assaults. The examiner gave factor 16, "Public Place," aggravating consideration because on at least one occasion, Doe sexually assaulted the victim while her brother was in the same bed. The examiner also applied factor 18, "Extravulnerable Victim," giving it aggravating consideration because Doe began sexually assaulting the victim when she was seven years old. Factor 19, "Level of Physical Contact," was given aggravating consideration based on Doe's penile penetration of the victim both orally and vaginally. The examiner gave factor 22, "Number of Victims," aggravating consideration because Doe sexually assaulted the victim and the friend. The examiner gave factor 24, "Less than Satisfactory Participation in Sex Offender Treatment," aggravating consideration because records indicated that Doe "routinely declined participation in the Sex Offender Treatment Program . . . throughout this incarceration."

The examiner further found two applicable aggravating "[f]actors [r]elated to [i]ncarceration, [c]riminal [b]ehavior and [c]ommunity [s]upervision." He gave factor 10, "Contact with Criminal Justice System," "full aggravating weight" based on Doe's "lengthy criminal history." In particular, Doe was convicted in 1997 for operating a motor vehicle after license suspension. He also received two continuances without a finding for leaving the scene of property damage in 1993 and disorderly conduct in 2007. He had a guilty finding filed in 1997 for operating a motor vehicle after a revoked registration. Furthermore, between 1993 and 2010, Doe was charged with compulsory insurance violation, operating with a suspended license, assault and battery by means of a dangerous weapon (bat), assault and battery by means of a dangerous weapon (machete), home invasion, breaking and entering, and larceny over $250; these charges all were dismissed. Beyond describing the history as lengthy, the examiner did not explain why he gave this factor full aggravating weight.

The examiner gave factor 12, "Behavior While Incarcerated or Civilly Committed," moderate aggravating weight because Doe

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received five disciplinary reports for refusal to comply with institutional orders, fighting with another inmate, assault on a staff member, and possession of a weapon. Doe was also fired and removed from a "Reentry Program."

The examiner applied three "risk-mitigating" factors. Factor 28, "Supervision by Probation or Parole," was given full mitigating weight based on Doe's ten years of supervised probation. Factor 30, "Advanced Age," was given minimal mitigating weight because Doe was forty-five years old at the time of the hearing. The examiner gave factor 34, "Materials Submitted by the Sex Offender Regarding Stability in the Community," some mitigating consideration based on a letter from Doe's therapist.

Discussion. "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" (quotation omitted). Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391). Our review of the Superior Court judge's decision is de novo, but our review of the underlying agency decision is more limited. See id. at 88-89. "[W]e give due weight to the experience, technical competence, and specialized knowledge of the agency" (quotation omitted). Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501). The classification decision must be supported by clear and convincing evidence; however, "subsidiary facts need be proved only by a preponderance of the evidence." Doe No. 523391, supra at 86. The underlying evidence must bear "sufficient indicia of reliability" such that "it was reasonable for the examiner to admit and credit the facts described in the [challenged] evidence" (quotation omitted). Id. at 89.

1. Sexual assault against the friend. Doe first challenges the reliability of the evidence that he sexually assaulted the friend because he was not charged and the "bare allegation" was not corroborated. An examiner may consider uncharged sexual conduct where, as here, the evidence of the uncharged conduct is reliable. See Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015) (Doe No. 356011). The police report of the assault against the friend is detailed. The friend stated that while sleeping on the floor in the victim's siblings' bedroom, "she woke up to find [Doe] touching her breast." She was in either seventh or eighth grade at the time. She recalled that "she was wearing pajamas and . . . was under a

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blanket that was covering only her legs." [Note 12] When she woke up she heard the victim pleading with Doe, "Come on[,] dad. You have to go. Stop!" The assault is consistent with known behavior insofar as it, like the sexual assaults on the victim, occurred while the friend was asleep. And, the assault was corroborated by the niece's statement that, prior to the assault, Doe commented that he "wanted to grab" the friend's breasts. See Doe No. 523391, 95 Mass. App. Ct. at 89 ("Common indicia of reliability include a detailed account . . .; the consistency of the hearsay with other, known behavior . . .; and independent corroboration"). The examiner's reliance on this evidence was not improper. See id. at 93 (examiner considered reliable and corroborated report of sexual assault despite fact that charge was nol prossed).

Accordingly, the examiner did not abuse his discretion in considering risk-elevating factors 7 (relationship between offender and victim) and 22 (number of victims). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) ("examiner has discretion . . . to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor").

2. Public place. Next, Doe maintains that the examiner erroneously found that the index offense occurred in a "public place." The regulations specifically define "public place" to include "any place that is open to the scrutiny of others or where there is no expectation of privacy." 803 Code Mass. Regs. § 1.33(16)(a). The regulation provides that the commission of any sex offense "in a place where detection is likely" is an indication of an "offender's lack of impulse control." Here, Doe sexually assaulted the victim in the presence of the victim's brother while the brother was sleeping in the same bed. Given the presence of the brother in the same bed during the assault on the victim, "detection was more likely because [Doe's] behavior was observed and could have been reported." Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 789 (2006). This behavior indicated Doe's "lack of impulse control," and the examiner did not err in considering this factor. Id.

3. Criminal history. Doe contends that the examiner abused his discretion by giving full aggravating weight to Doe's criminal history because (1) there is no record of any abuse prevention

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orders against him; (2) other than the index sex offenses, Doe has no convictions after 1997; and (3) other than the index offenses, Doe has not been convicted of violent or other sexual crimes.

We dispose readily of Doe's first two complaints. Risk-elevating factor 10, "Contact with Criminal Justice System," provides:

"Individuals are expected to comply with the law. Lawlessness and antisocial behavior correlate with risk of reoffense and degree of dangerousness. For the purposes of factor 10, the Board shall consider evidence of a persistent disregard for rules, laws, and the violation of the rights of others.

"Ongoing criminal behavior weighs heavily in the application of factor 10. Analysis under factor 10 shall include the consideration of the number and type of criminal charges, dispositions on the charges, dates of the criminal conduct, and number of abuse prevention or harassment prevention orders."

803 Code. Mass. Regs. § 1.33(10)(a). Thus, factor 10 is not limited to those against whom an abuse prevention order has issued, or a particular timeframe; factor 10 does not confine the examiner to consider only convictions. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 773 (2006) (among other factors, examiner's consideration of criminal record, including mere arrests, not abuse of discretion).

We agree, however, that the examiner erred in his treatment of this factor because he did not set forth the basis for his decision to award it full aggravating weight. The examiner simply listed two charges resulting in a continuance without a finding, one in 1993 for leaving the scene of property damage and another in 2007 for disorderly conduct; one conviction in 1997 for operating a vehicle after license suspension and one guilty finding that was filed in 1997 for operating after a revoked registration; and numerous charges resulting in dismissals. [Note 13] Only two of these charges involved allegations of violence, the last of which occurred almost nineteen years prior to Doe's classification hearing. The last charge (involving motor vehicle violations) occurred in July 2010, nearly seven years before the hearing. The record is devoid of any information regarding these charges and the circumstances leading

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to their dismissal, and it is not "intuitively obvious" why the examiner gave factor 10 full aggravating weight. Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 652 (2012) (error to provide no explanation other than "bare-bones recitation of regulatory text" where application of factors not "intuitively obvious"). Absent explanation as to how he considered the various elements of the record as required by 803 Code. Mass. Regs. § 1.33(10)(a), this was error. See id.

4. Prejudice. "We therefore excise from the hearing examiner's determination any reliance on [factor 10], and we review what remains to determine whether substantial evidence existed to classify Doe as a level [three] sex offender." Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 142 (2019) (Doe No. 23656). See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 765 n.12 (2006) ("Because this consideration was but one factor overshadowed by other factors, including two 'high risk' factors, the examiner's ultimate conclusion remains reasonable and supported by substantial evidence"). Contrast Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 744 (2019) (improper weighing of factor 2 as only high-risk factor, in combination with evidentiary error, prejudiced Doe and required new hearing). As in Doe No. 23656, even the complete elimination of factor 10 from the hearing examiner's assessment would "not sufficiently upset the balance of factors to modify the ultimate sex offender classification determination." Doe No. 23656, supra at 142 n.14.

Doe repeatedly raped and sexually assaulted the victim, through both penile/vaginal and penile/oral penetration, from the time she was seven to when she was fifteen years old. Even after DSS investigated his conduct, he continued to assault her. He sexually assaulted the friend, who was extrafamilial and a middle school student, while she was sleeping over at his home. This evidence supports the examiner's application of high-risk factors 2 (repetitive and compulsive behavior) and 3 (adult offender with child victim), as well as risk-elevating factors 7 (relationship between offender and victim), 18 (extravulnerable victim), 19 (level of physical contact), and 22 (number of victims). He raped the victim while the brother lay in the same bed, which as discussed supra, indicates Doe's lack of impulse control under

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risk-elevating factor 16 (public place). [Note 14] While the record supports application of three mitigating factors, substantial evidence supports the examiner's classification decision. See Doe No. 523391, 95 Mass. App. Ct. at 93 ("Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion" [quotation omitted]).

5. Internet dissemination. The examiner did not address expressly the need for dissemination of Doe's personal information. See Doe No. 496501, 482 Mass. at 654, 657. Nevertheless, on the record before us, we need not remand for further findings on this element. See Doe No. 23656, 483 Mass. at 145-146. Public availability of Doe's information would enable members of the public to take precautions to avoid encountering Doe, especially residents with minor children. See id.

The judgment affirming the board's decision to classify Doe as a level three sex offender is affirmed.

So ordered.