John Doe, Sex Offender Registry Board No. 527359 v. Sex Offender Registry Board.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1079

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527359

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment

affirming the decision of the Sex Offender Registry Board (SORB)

classifying him as a level two sex offender in accordance with

G. L. c. 6, § 178K (2) (b). On appeal, he argues that the

hearing examiner's decision was not supported by clear and

convincing evidence and that the public dissemination of his

registration information violates his State and Federal

constitutional rights. We affirm.

Discussion. When classifying an individual as a level two

offender, a hearing examiner must determine the following by

clear and convincing evidence:

"(1) that the risk of reoffense is moderate; (2) that the
offender's dangerousness, as measured by the severity and
extent of harm the offender would present to the public in
the event of reoffense, is moderate; and (3) that a public
safety interest is served by Internet publication of the
offender's registry information."

Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender

Registry Bd., 482 Mass. 643, 644 (2019) (Doe, No. 496501). See

G. L. c. 6, § 178K (2) (b). "In determining whether these

elements have been established by clear and convincing evidence,

a hearing examiner may consider subsidiary facts that have been

proved by a preponderance of the evidence." Doe, No. 496501,

482 Mass. at 656. The hearing examiner's discretion is "guided

by . . . [several] statutory risk factors" and various

"aggravating and mitigating considerations." Doe, Sex Offender

Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass.

131, 134 (2019) (Doe, No. 23656). See G. L. c. 6,

§ 178K (1) (a)-(l); 803 Code Mass. Regs. § 1.33 (2016).

"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). "A reviewing court may set aside or modify SORB's

classification decision where it determines that the decision is

in excess of SORB's statutory authority or jurisdiction,

violates constitutional provisions, is based on an error of law,

or is not supported by substantial evidence." Doe, No. 496501,

482 Mass. at 649. "In reviewing SORB's decisions, we give due

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weight to the experience, technical competence, and specialized

knowledge of the agency" (quotation and citation omitted). Id.

See G. L. c. 30A, § 14 (7).

Here, the plaintiff pleaded guilty to indecent assault and

battery on a person over the age of fourteen in violation of

G. L. c. 265, § 13H, and sexual conduct for a fee in violation

of G. L. c. 272, § 53A. These charges arose from a series of

sexual assaults that the plaintiff committed against a fifteen

year old victim, whom he met through an online dating

application. The plaintiff picked up the victim in Connecticut,

where the victim lived, and usually transported him to the

plaintiff's house in Massachusetts, where the plaintiff

assaulted the victim. On occasion, the plaintiff assaulted the

victim in a parked car in Connecticut. The plaintiff met with

the victim "about ten times" over the course of three months.1

In determining the plaintiff's classification, the hearing

examiner applied one high risk factor, factor three, adult

offender with child victim, 803 Code Mass. Regs. § 1.33(3)

(2016), based on the ages of the plaintiff and the victim. The

hearing examiner also applied five risk elevating factors.

These factors included factor seven, extrafamilial victim, 803

1 The plaintiff pleaded guilty to fourth degree sexual
assault and commercial sexual abuse of a minor in Connecticut
Superior Court, in addition to his plea in Massachusetts.

3
Code Mass. Regs. § 1.33(7) (2016), because the victim was not

related to the plaintiff,2 factor nine, alcohol and substance

use, 803 Code Mass. Regs. § 1.33(9) (2016), because the

plaintiff used drugs and alcohol while offending against the

victim, factor sixteen, public place, 803 Code Mass. Regs.

§ 1.33(16) (2016), because the plaintiff sexually assaulted the

victim on two occasions in his vehicle in Connecticut, factor

seventeen, male offender against male victim, 803 Code Mass.

Regs. § 1.33 (17) (2016), because both the plaintiff and victim

were male, and factor nineteen, level of physical contact, 803

Code Mass. Regs. § 1.33(19) (2016), because the plaintiff

penetrated the victim orally. The hearing examiner also applied

five risk mitigating factors, taking note of the plaintiff's

supervision by probation, advanced age, sex offender treatment,

home and familial support systems, and of the materials

submitted by the plaintiff pertaining to stability in the

community. See 803 Code Mass. Regs. §§ 1.33(28), (30), (32),

(33), (34) (2016). He further considered the expert

psychological profile provided by the plaintiff pursuant to

factor thirty-five, 803 Code Mass. Regs. § 1.33(35) (2016), and

2 The hearing examiner noted that the victim could not be
said to be a stranger to the plaintiff because the evidence did
not make clear whether the plaintiff transmitted sexually
explicit materials or comments to the victim within the first
twenty-four hours of electronic contact between the two.

4
the plaintiff's repeated abuse of the victim over a three-month

period pursuant to factor thirty-seven, 803 Code Mass. Regs.

§ 1.33(37) (2016). Based on his analysis of these factors, the

hearing examiner concluded that the plaintiff's risk of

reoffense and dangerousness were moderate, and that the public

interest was served by Internet publication of his registry

information.

The plaintiff does not challenge the hearing examiner's

application of any of the risk factors. Rather, he argues that

the factors considered by the hearing examiner were not enough

to support the conclusion that he posed a moderate risk to

reoffend sexually in the future. Specifically, he contends that

"the risk mitigating factors present in this case, taken in

conjunction with their ascribed weight, far outweigh the risk

elevating factors" and support the conclusion that the plaintiff

poses a low risk of reoffense. We are unconvinced by this

argument as it is well settled that the "hearing examiner has

discretion . . . to consider which statutory and regulatory

factors are applicable and how much weight to ascribe to each

factor." Doe, Sex Offender Registry Bd. No. 68549 v. Sex

Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe, No.

68549). See G. L. c. 30A, § 14 (7). We are further unpersuaded

by the plaintiff's argument that the psychological profile

provided by Dr. John Daignault, "an expert in the field of

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recidivism," supported the conclusion that the plaintiff posed

only a low risk of reoffending in the future.3 That claim is

without merit as the hearing examiner specifically addressed the

profile in his decision and incorporated it into his analysis.

See Doe, No. 23656, 483 Mass. at 136-137 (hearing examiner must

explain reasoning for rejecting expert testimony). See also

Doe, No. 68549, 470 Mass. at 112 ("[t]he opinion of a witness

testifying on behalf of a sex offender need not be accepted by

the hearing examiner even where [SORB] does not present any

contrary expert testimony" [quotation and citation omitted]).

After careful review of the hearing examiner's decision, we

discern no error and conclude that the level two classification

was supported by clear and convincing evidence in the record.4

See Doe, No. 523391, 95 Mass. App. Ct. at 94 ("Under the clear

and convincing standard, [t]he evidence must be sufficient to

3 We note that SORB "may give appropriate evidentiary weight
to documentary reports and risk assessment, but the ultimate
risk opinion, if any, will be excluded from consideration unless
the mental health professional testifies as an expert witness at
the classification hearing." 803 Code Mass. Regs. § 1.33(35)(a)
(2016). Daignault did not testify before the hearing examiner.

4 We disagree with the plaintiff's assertion that the
hearing examiner "failed to include explicit and detailed
findings" in support of his ultimate finding that the plaintiff
posed a moderate risk of reoffense. See Doe, No. 523391, 95
Mass. App. Ct. at 94. The hearing examiner explained in
adequate detail how he reached each of his findings and how his
findings supported the factors he applied. Id.

6
convey a high degree of probability that the contested

proposition is true" [quotation and citation omitted]). As such

we are not persuaded, as the plaintiff contends, that a contrary

conclusion was necessary.5,6 See Doe, No. 68549, 470 Mass. at

110 ("[o]ur review does not turn on whether, faced with the same

set of facts, we would have drawn the same conclusion as an

agency or local board, but only whether a contrary conclusion is

not merely a possible but a necessary inference" [quotation and

citation omitted]).

Since we conclude that the plaintiff was properly

classified as a level two offender, his argument that the

5 The plaintiff's argument that SORB's classification
process is arbitrary and has never been tested for scientific
accuracy is without merit. SORB's classification process is
amply supported by scientific research set forth in 803 Code
Mass. Regs. § 1.33 and has been repeatedly upheld by the Supreme
Judicial Court. See Doe, Sex Offender Registry Bd. No. 6729 v.
Sex Offender Registry Bd., 490 Mass. 759, 763 (2022); Doe, No.
23656, 483 Mass. at 134. We decline to revisit that precedent
here. See Shiel v. Rowell, 480 Mass. 106, 108 (2018), quoting
Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("adhering to
precedent is our 'preferred course because it promotes the
evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the
judicial process'").

6 The plaintiff further argues that the hearing examiner
abused his discretion by denying the plaintiff's motion to
disclose the hearing examiner's qualifications. This claim is
unsupported by legal authority and, accordingly, does not rise
to the level of appellate argument. See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

7
dissemination of his information online violated his State and

Federal constitutional rights because it is predicated on the

assumption that the plaintiff was misclassified is unavailing.

Online dissemination of the plaintiff's information as a level

two sex offender comports with due process.7 See Doe, No.

496501, 482 Mass. at 652-653 ("Due process concerns could be

implicated if we were to interpret the statute to allow Internet

publication of registry information for individuals whose degree

of dangerousness is anything less than moderate").

Judgment affirmed.

By the Court (Meade, Blake &
Desmond, JJ.8),

Clerk

Entered: September 26, 2024.

7 The hearing examiner explicitly found that the plaintiff's
risk of reoffense and dangerousness were both moderate and that
the public safety interest was served by the Internet
publication of the plaintiff's registry information. See Doe,
No. 496501, 482 Mass. at 644.

8 The panelists are listed in order of seniority.

8