COE SEX OFFENDER REGISTRY BOARD NO 524363 v. SEX OFFENDER REGISTRY BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, M. Coe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level two offender. Coe argues that the hearing examiner abused his discretion by (1) improperly classifying his second offense as repetitive and compulsive behavior; and (2) rejecting his expert's opinion without sufficient explanation. We affirm.

Background. We summarize the facts as found by the hearing examiner, “supplemented by undisputed facts from the record,” and reserve certain facts for later discussion. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011). Coe's governing sex offense occurred in 2014. During a routine traffic stop, a police officer saw a distressed young woman (victim one) in Coe's car. The woman told the police that Coe and the driver had held her captive for three days. She said that the men took pictures of her in provocative positions, advertised her on a website known for sexual contact for a fee, forced her to perform sexual acts with them, and provided her with drugs as payment. She claimed that they took her to various hotels in Danvers and Saugus and forced her to perform sexual acts with men who called about the advertisements.

Coe was eventually charged with rape, kidnapping, deriving support from prostitution, and trafficking persons for sexual servitude. In 2016, he pled guilty to one count each of trafficking persons for sexual servitude, deriving support from prostitution, and kidnapping.¹ Coe was sentenced to five to seven years in State prison, followed by four years of probation.

A SORB hearing examiner classified Coe as a level three offender in May of 2019 and a judge of the Superior Court affirmed that decision in December of 2019. In January of 2022, this court vacated the Superior Court's judgment and remanded the matter to SORB for a reclassification hearing without applying risk factor two (repetitive and compulsive behavior).

In June of 2021, during the pendency of Coe's first appeal to this court, and while he was serving his probationary sentence for his first offense, Coe was again arrested and charged with trafficking persons for sexual servitude. Another young woman (victim two) reported to police that Coe had forced her to post online advertisements offering sexual services for money in the Boston area. Coe pled guilty to an amended charge of soliciting for prostitution in October of 2021.

In June of 2022 and January of 2023, a second SORB hearing examiner conducted a de novo reclassification hearing. At this hearing, Coe argued that he presented a low risk of reoffense and should therefore be classified as a level one offender. He cited evidence of his supportive community, consistent employment, involvement in educational programs, and general stability, to support his argument that he posed a low risk of reoffense. Coe also presented expert testimony in support of his position that he posed a low risk of reoffense. The hearing examiner found that Coe posed a moderate risk of reoffense and ordered that he register as a level two sex offender. In April of 2024, a judge of the Superior Court affirmed the hearing examiner's decision. Coe filed a timely appeal.

Discussion. 1. Standard of review. “We review a judge's consideration of an agency decision de novo.” Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019) (Doe No. 523391). “To determine the validity of an agency's decision, the reviewing court must determine whether the decision is supported by substantial evidence.” Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015), quoting Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006). In reviewing SORB's decision, “we ‘give due weight to the experience, technical competence, and specialized knowledge of the [board].’ ” Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). Coe therefore “bears a heavy burden of establishing that [SORB's] decision was incorrect.” Doe, Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 757 (2021) (Doe No. 3177), quoting Boston Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019). We may set aside SORB's decision on a determination that the decision is unsupported by substantial evidence, arbitrary and capricious, an abuse of discretion, or not in accordance with the law. See Doe No. 3177, supra at 754.

2. Application of factor two. Coe argues that the hearing examiner erroneously applied increased weight to risk factor two, “repetitive and compulsive behavior,” because Coe was not convicted of trafficking victim two. He further asserts that applying factor two improperly influenced the hearing examiner's ultimate decision to classify Coe as a level two “moderate risk” offender. See 803 Code Mass. Regs. § 1.33(2) (2016). We disagree. At the relevant time, factor two stated, in part:

“Repetitive and compulsive behavior is associated with a high risk of reoffense. Factor 2 is applied when a sex offender engages in two or more separate episodes of sexual misconduct. To be considered separate episodes there must be time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct.”

Id. A sex offender's behavior is repetitive and compulsive if he “offends, gets caught[,] and then goes on to reoffend.” Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490 Mass. 759, 766 (2022) (Doe No. 6729).

Because “[a] hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor,” we review the hearing examiner's decision for abuse of that discretion. Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014). A finding that a person sexually reoffended after a conviction for a prior sexual offense is “sufficient to satisfy the separate requirement of proving that his conduct was compulsive as well as repetitive.” Doe No. 6729, 490 Mass. at 765.

Coe contends that the hearing examiner should not have considered his conduct towards victim two a “sexual offense” because he ultimately pled guilty to solicitation for prostitution, which is not an enumerated offense pursuant to G. L. c. 6, § 178C. But SORB hearing examiners are not limited to considering offenders’ ultimate convictions when determining their behavioral risks. See Doe No. 523391, 95 Mass. App. Ct. at 90.

“The range of evidence that may be considered by hearing examiners is not limited by the same rules of evidence that apply in court proceedings; hearing examiners may exercise their discretion to admit and give probative value to evidence ‘if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.’ ” Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 26 (2021) (Doe No. 339940), quoting G. L. c. 30A, § 11 (2). “[H]earsay evidence bearing indicia of reliability constitutes admissible and substantial evidence” (citation omitted). Doe No. 339940, supra.

“The lack of a criminal conviction does not render information contained within a police report inadmissible in an administrative proceeding.” Doe No. 523391, 95 Mass. App. Ct. at 90. “[T]he board may consider subsidiary facts ․ resulting in acquittals, where those facts are nonetheless proved by a preponderance of the evidence.” Doe No. 3177, 486 Mass. at 757. Here, despite Coe's eventual plea to a lesser offense, the hearing examiner properly considered police reports and victim two's statements.

Coe argues that the hearing examiner erred in finding that he engaged in trafficking victim two. He notes that SORB conceded as much. SORB argues that this error was harmless, however, noting that the record establishes that Coe attempted to traffic victim two, specifically by “convinc[ing] her to work for him as a prostitute, pressur[ing] her to post advertisements offering herself to engage in sexual services for money ․ and set[ting] her fee schedule.” We agree.

General Laws c. 6, § 178C, lists relevant “sex offense[s]” requiring registration, which include trafficking for sexual servitude under G. L. c. 265, § 50, and also includes attempts to commit the enumerated offenses. There was substantial evidence that Coe attempted to traffic victim two, including a police report, victim two's statement, and her identification of Coe. Accordingly, accepting that the hearing examiner erred in finding that Coe trafficked victim two, the error was harmless because the evidence supported a finding that Coe attempted to traffic victim two. Thus, the hearing examiner properly classified Coe's conduct as a subsequent sexual offense and was free to consider factor two in his analysis. See Doe No. 339940, 488 Mass. at 26; Doe No. 6729, 490 Mass. at 765.²

3. Expert testimony. Coe also argues that the hearing examiner abused his discretion by disregarding Coe's expert's opinion that Coe presented a low risk to reoffend without providing a specific reason for rejecting that opinion. Again, we disagree.

“[Coe] is not entitled to a guarantee that SORB will reach the same conclusion as his expert; he is entitled only to careful consideration of his expert's testimony.” Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 137 (2019). Hearing examiners are not required to accept expert opinions, but they are required to articulate a reasoned basis for rejecting uncontradicted expert evidence. See id.

Here, the hearing examiner properly laid out his reasons for rejecting the expert's assessment. The expert opined that Coe posed a low risk to reoffend, despite his score of five or six on the Static-99R assessment, which is associated with an estimated thirteen to eighteen percent recidivism rate over a period of five years. The expert opined that because Coe was not convicted of rape in connection with his first kidnapping and sex trafficking case, his potential dangerousness was relatively low. The hearing examiner disagreed, finding victim one's statements that Coe raped her and threatened to kill her both credible and consistent.

The fact that Coe's rape charges were nolle prossed did not require the hearing examiner to disregard credible evidence of the conduct alleged in those charges. See Doe No. 339940, 488 Mass. at 26. A hearing examiner is free to consider evidence that a reasonable person would rely on in the context of serious affairs. See id. The hearing examiner did not err in relying on victim one's statements to reject the expert's opinion.

Similarly, the expert explained that in his view, Coe's most recent conviction was not a “serious sexual offen[se],” because he ultimately pled guilty to the “relatively minor charge” of soliciting prostitution. Again, for the reasons explained above, the hearing examiner permissibly relied on the evidence that Coe had attempted to commit the crime of trafficking a person for sexual servitude, namely victim two's statements. See Doe No. 523391, 95 Mass. App. Ct. at 90; Doe No. 3177, 486 Mass. at 757. Accordingly, the hearing examiner was also permitted to reject an expert opinion that did not consider that evidence.

The expert also asserted that factor two did not apply because Coe's motivation for committing the offenses was financial and “people don't commit money-related ․ offenses for compulsive reasons.” As explained above, because Coe attempted to commit a sexual offense against victim two after being charged, convicted, and incarcerated for committing a prior sexual offense, his behavior was repetitive and compulsive, and the hearing examiner properly found that factor two applies. See Doe No. 6729, 490 Mass. at 766 (“if a [sex offender] offends, gets caught[,] and then goes on to reoffend again, ․ his or her conduct may be found not only to be repetitive but also compulsive” [quotation and citation omitted]); Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 297 (2021) (“having had the time or opportunity to reflect on the wrongfulness of one's actions and not doing so suggests the persistence of the compulsion or impulse to [re]offend”).³ ,⁴

Judgment affirmed.

FOOTNOTES

1.   The Commonwealth nolle prossed the rape charges.

2.   In further support of his finding that Coe presented a moderate risk to reoffend, the hearing examiner also noted that both of Coe's offenses were against nonfamily members (factor seven, increased weight); he threatened to kill victim one if she did not have sex with him and his codefendant (factor eight); he has a history of substance abuse (factor nine, moderate weight); he was unwilling to participate in sex offender treatment (factor twenty-four); and he abused multiple women (factor fifteen). Likewise, these findings provide further support for our conclusion that the hearing examiner's error in finding that Coe trafficked victim two was harmless.

3.   We reject Coe's argument that victim one was not a stranger and therefore factor seven did not apply. The hearing examiner noted that Coe was convicted of committing a sexual offense against victim one on the day he met her, May 13, 2014.

4.   We reject Coe's argument that the hearing examiner erred in requiring Internet dissemination of his personal information. “Where a sexually violent offender presents a moderate risk to reoffend and a moderate degree of dangerousness, Internet publication will almost invariably serve a public safety interest by notifying potential victims of the risks presented by the offender in their geographic area.” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655 (2019). The hearing examiner's findings established clear and convincing evidence that a public safety interest is served by public and Internet access to the sex offender registry information.