John Doe, Sex Offender Registry Board No. 5503 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

24-P-367

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 5503

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming his reclassification by the Sex Offender

Registry Board (the board) as a level one sex offender. On

appeal, Doe challenges (1) whether the hearing examiner abused

his discretion in applying factors ten (contact with the

criminal justice system), eleven (violence unrelated to sexual

assaults), and fifteen (hostility towards women) insofar as the

application of those factors was based on hearsay he argues was

unreliable; (2) whether the examiner misapplied factors two

(repetitive and compulsive behavior) and sixteen (public place);

and (3) whether the examiner's decision was supported by

substantial evidence. We affirm.
Background. We summarize the facts as set forth in the

hearing examiner's decision, "supplemented by undisputed facts

from the record." Doe, Sex Offender Registry Bd. No. 10800 v.

Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No.

10800).

On three occasions in 1995, Doe, twenty-eight years old at

the time, had sexual intercourse with the victim, a fourteen

year old girl, while her father was at work. In a written

statement to the police, the victim's younger sister said she

saw Doe and the victim kissing on the couch on one occasion, and

that the victim later told her she and Doe engaged in sex. The

victim, a friend of Doe's stepdaughter, told the police that she

and the defendant had sex. However, she was unable to consent

by law because she was only fourteen.

On January 25, 1996, Doe pleaded guilty to three counts of

rape and abuse of a child, pursuant to G. L. c. 265, § 23, as

then in effect,1 and received three concurrent two-year sentences

in the house of correction. On June 30, 2003, the board

notified Doe of his duty to register as a level two sex

offender. Thereafter, Doe requested a hearing to challenge the

classification. After a hearing held on November 10, 2003, Doe

was classified as a level one sex offender. In the decision,

1 The statute was amended in 1998 and 2008.

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the examiner determined that Doe presented a low risk to

reoffend and a low degree of dangerousness.

On November 12, 2016, police officers were dispatched to

the house of Doe's girlfriend (the girlfriend), and the

girlfriend told the police that Doe had physically abused her.

The physical abuse was not sexual in nature. The girlfriend

reported that Doe pushed her backwards, punched her in the right

side of her mouth with a closed fist, kicked her in the right

side of her stomach, and punched her again in the middle of her

back with a closed fist. The girlfriend later reported to the

police that Doe told her, "[M]ake sure you tell your family to

start saving money and be ready to bury you seven feet

underground."

On November 21, 2016, the girlfriend obtained an abuse

prevention order against Doe, which required that Doe stay away

from and have no contact with her. The girlfriend provided a

signed affidavit detailing the November 12, 2016 incident with

Doe. The girlfriend reported, however, that Doe had contacted

her and her daughter via anonymous phone calls and text

messages, made further threats, and had driven past her house

multiple times after November 21, 2016.

Consequently, on December 5, 2016, Doe was charged with

assault and battery on a family or household member, threat to

commit a crime, and violating an abuse prevention order. On

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December 9, 2016, Doe was again charged with violating an abuse

prevention order. On July 11, 2017, the girlfriend asserted her

privilege under the Fifth Amendment to the United States

Constitution not to testify against Doe; the related charges of

assault and battery on a family or household member, threat to

commit a crime, and violation of an abuse prevention order were

dismissed.

On April 21, 2021, Doe submitted a letter to the board

requesting reclassification, which was accepted as a motion for

relief of his obligation to register. The girlfriend informed

the hearing examiner via letter that she is not fearful of Doe

and that he is a nice and loving person. After a hearing on

June 15, 2022, Doe was ordered to continue registering as a

level one sex offender. In the decision, the examiner

considered risk-elevating factors, including factors ten

(contact with the criminal justice system), eleven (violence

unrelated to sexual assaults), and fifteen (hostility towards

women).2 On October 18, 2022, Doe requested judicial review of

2 The hearing examiner additionally considered high-risk
factor three (adult offender with child victim) and risk-
elevating factors seven (relationship between offender and
victim), nine (alcohol and substance abuse), twelve (behavior
while incarcerated or civilly committed), sixteen (public place)
and nineteen (level of physical contact). The examiner
considered risk-mitigating factors twenty-nine (offense free
time in the community), thirty (advanced age), thirty-two (sex
offender treatment), and thirty-four (materials submitted by the
sex offender regarding stability in the community).

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the examiner's decision, and a Superior Court judge upheld the

classification.

Discussion. "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). Our review of the board's decision is

limited, and we will not disturb the board's classification

unless "we determine that the decision is unsupported by

substantial evidence or is arbitrary or capricious, an abuse of

discretion, or not in accordance with law." Doe No. 10800, 459

Mass. at 633. In reviewing the board's decision, "[w]e give due

weight to the experience, technical competence, and specialized

knowledge of the agency, as well as to the discretionary

authority conferred upon it" (quotation and citation omitted).

Doe No. 523391, supra at 88.

1. Hearsay. Contrary to Doe's contention, the examiner

properly relied on the hearsay allegations in applying factors

ten (contact with the criminal justice system), eleven (violence

unrelated to sexual assaults), and fifteen (hostility towards

women). In the context of a sex offender classification

hearing, hearsay evidence may be admissible if it bears

sufficient indicia of reliability. Doe, Sex Offender Registry

Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct.

73, 76-77 (2015) (Doe No. 356011). "Common indicia of

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reliability include a detailed account; the consistency of the

hearsay incident with other, known behavior; admissions by the

offender; and independent corroboration" (citations omitted).

Doe No. 523391, 95 Mass. App. Ct. at 89.

Here, the examiner did not abuse his discretion in

determining that the police reports and the girlfriend's

statements bore sufficient indicia of reliability. See Doe No.

356011, 88 Mass. App. Ct. at 77. The girlfriend's allegations

were factually detailed, explaining that the physical abuse took

place after a verbal argument over another woman Doe was dating.

Additionally, the statements described how Doe attacked the

girlfriend by pushing her backwards, punching her in the mouth

with a closed fist, kicking her in the stomach, and then

punching her again in the middle of her back with a closed fist.

The allegations were corroborated by the restraining order,

supported by the girlfriend's affidavit, that the girlfriend

obtained,3 which requires proof by a preponderance of the

evidence. See Doe, Sex Offender Registry Bd. No. 3177 v. Sex

Offender Registry Bd., 486 Mass. 749, 757 (2021) (Doe No. 3177)

("[T]he board may consider subsidiary facts that are proved by a

preponderance of the evidence, including subsidiary facts

3 A second woman received a restraining order against Doe on
August 2, 1995. See Doe No. 523391, 95 Mass. App. Ct. at 89.

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resulting in acquittals"); Iamele v. Asselin, 444 Mass. 734, 736

(2005) (preponderance of evidence standard to obtain initial

protective order or later extension).4 Doe himself also admitted

at the 2022 hearing to violating the restraining order by

calling the girlfriend.

That the girlfriend asserted her Fifth Amendment privilege

not to testify, resulting in dismissal of the charges, does not

affect the admissibility of the hearsay evidence. "[T]he lack

of 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. The

girlfriend's declining to testify against Doe does not mean the

allegations are untrue, and the lack of conviction does not mean

the evidence from the police report is inadmissible for the

purpose of sex offender classification. See id. To the extent

the girlfriend later asserted that Doe is nice and loving,

"[t]he issue of credibility raised by such inconsistencies is a

question for the [fact finder] to decide . . ." (quotation and

citation omitted). Commonwealth v. Clary, 388 Mass. 583, 589

4 Doe relies on Wardell v. Division of Employment Sec., 397
Mass. 433, 436-437 (1986), for the proposition that dismissal of
a criminal charge after an admission to sufficient facts does
not constitute substantial evidence from which a finder of fact
in a collateral civil proceeding can determine that the alleged
misconduct occurred. In light of Doe No. 3177, 486 Mass. at
757, Doe's reliance is misplaced.

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(1983) ("Inconsistencies in testimony . . . do not render it

insufficient"). The examiner did not abuse his discretion in

considering the hearsay allegations against Doe.5

2. Application of the regulatory factors. Doe argues that

the examiner misapplied factors two (repetitive and compulsive

behavior) and sixteen (public place). Because Doe did not raise

these issues in the Superior Court, they are waived. See Doe,

Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry

Bd., 87 Mass. App. Ct. 313, 321 (2015) (argument that examiner

arbitrarily and capriciously applied certain factors waived when

raised for first time on appeal). In any event, we discern no

error in the examiner's application of the factors.

a. Factor two. Contrary to Doe's argument, the examiner

did not consider factor two of whether Doe had "repetitive[ly]

and compulsive[ly]" assaulted the victim. Although the first

examiner's decision in 2004 uses such language, the second

examiner's decision, from which Doe appeals, does not. Because

the examiner did not apply factor two, no further discussion on

this issue is warranted.

5 The fact that the board could have but did not call Doe's
brother is irrelevant. The board is not required to present all
possible evidence. It is only required to present sufficient
evidence. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex
Offender Registry Bd., 473 Mass. 297, 298, 309 (2015) (board's
burden of proof is clear and convincing evidence, which "must be
sufficient to convey a 'high degree of probability' that the
contested proposition is true" [citation omitted]).

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b. Factor sixteen. Factor sixteen regarding misconduct in

a public place provides that "a 'public place' includes . . .

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) (2016). Here, the victim's sister was home and

saw Doe and the victim kissing on the couch. Doe could not have

an expectation of privacy where another family member was in the

home and could "scrutin[ize]" what they were doing. 803 Code

Mass. Regs. § 1.33(16)(a) (2016). The victim's sister could,

and did, walk in on Doe and the victim, resulting in the

victim's father finding out and reporting the incident to the

police. Thus, the examiner did not abuse his discretion by

applying factor sixteen. See Doe, Sex Offender Registry Bd. No.

10216 v. Sex Offender Registry Bd., 447 Mass. 779, 780, 789

(2006) (affirming application of factor sixteen where predicate

offenses took place in bedroom and living room in part because

definition of "public place" is not "limited to 'truly public

places, like parks or schools'").

3. Substantial evidence. Doe argues that the examiner's

decision was arbitrary and capricious because it was not

supported by substantial evidence. Substantial evidence is

defined as "such evidence as a reasonable mind might accept as

adequate to support a conclusion." G. L. c. 30A, § 1.

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Here, the examiner considered high-risk factor three (adult

offender with child victim) and risk-elevating factors supported

by the evidence. Doe had vaginal intercourse three times with

an extrafamilial fourteen year old girl when he was twenty-eight

years old, supporting factor three, and risk-elevating factors

seven (extrafamilial relationship), and nineteen (level of

physical contact). As noted, the victim's sister told the

police she was in the home and saw Doe and the victim kissing on

the couch on one occasion, supporting factor sixteen (public

place). Doe had a history with substance misuse and a twenty-

seven year criminal history, including after his 2004 sex

offender classification, supporting factor nine (alcohol and

substance abuse), which the examiner minimally applied, and

factor ten (contact with the criminal justice system). In 2016,

Doe physically abused the girlfriend, supporting factors eleven

(violence unrelated to sexual assaults) and fifteen (hostility

towards women).

The examiner also considered several risk-mitigating

factors: factor twenty-nine (offense-free time in the

community), factor thirty (advanced age; age fifty-five at the

time of classification), factor thirty-two (sex offender

treatment), and factor thirty-four (materials submitted by the

sex offender regarding stability in the community). He also

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considered additional factor thirty-five (psychological or

psychiatric profiles Doe submitted regarding risk to reoffend).

We are not persuaded by Doe's argument that the examiner

erred in applying minimal weight to a Federally ordered sex

offender evaluation, the results of the Federal evaluator's use

of the Static-99R, and Doe's completed sex offender treatment.

Contrary to Doe's argument, the examiner did not "ignor[e]" the

"contrary evidence" of the 2012 sex offender evaluation and the

Static-99R results, but rather minimally considered them after

careful analysis. See Commonwealth v. George, 477 Mass. 331,

340 (2017) (noting Static-99R is "limited tool" and its risk

category labels would not assist jury in determining defendant's

sexual dangerousness). The 2012 evaluation occurred before

Doe's 2016 physical assault of the girlfriend, violations of the

abuse prevention order she obtained, and 2017 conviction of

possession of cocaine. Additionally, the examiner gave minimal

consideration to Doe's completed sex offender treatment because

no records were submitted regarding the type of sex offender

treatment program or stating it was completed. "We can discern

no error in the examiner's weighing of these . . . factors

. . . ." Doe No. 523391, 95 Mass. App. Ct. at 94.

Altogether, the evidence was adequate for a "reasonable

mind" to support the examiner's conclusions regarding the

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applied factors. G. L. c. 30A, § 1. Accordingly, no error

occurred.

Judgment affirmed.

By the Court (Henry, Shin &
Brennan, JJ.6),

Clerk

Entered: September 9, 2025.

6 The panelists are listed in order of seniority.

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