Opinion
11-P-397
04-30-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 146299 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We affirm the judgment of the Superior Court upholding the board's classification of the petitioner as a level three sex offender. We rely upon the authorities and reasoned arguments in the board's brief, and briefly address a few points.
First, the plaintiff waived his claim that the Sex Offender Registry Board's (board) regulatory factors for evaluating risk of reoffense and degree of dangerousness do not address a correlation between child pornography and recidivism, because he failed to raise this claim before the board. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006). In any event, the board's regulatory factors provide sufficient guidance to the hearing examiner. See id. at 812-813 (the board is not required to cite to a specific study or article to support its position).
The petitioner's claim that it was improper to classify him while incarcerated is controlled by our decision in Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 683, 687-689 (2011) (the board has the statutory authority to conduct sex offenders' classification hearings while they are incarcerated and to determine their final classification before they are released from prison).
Finally, substantial evidence supports the board's decision to classify the petitioner as a level three (high risk) offender where the petitioner repetitively and compulsively possessed and disseminated child pornography for a number of years, continued to engage in the same behavior after the Federal Bureau of Investigation seized his computer, had a number of communications with minors over the Internet and met a fifteen year old girl in person, and has a history of substance and alcohol abuse. See G. L. c. 6, § 178K(1)(a) (ii) (designating repetitive and compulsive behavior as 'a factor indicative of a high risk of reoffense and degree of dangerousness'); Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 762-763 (2006) (hearing examiner's conclusion supported by 'high risk' factors and other subsidiary factors).
Judgment affirmed.
By the Court (Grasso, Mills & Trainor, JJ.),