John Doe, Sex Offender Registry Board No. 95420 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

23-P-535

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 95420

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner, John Doe, appeals from the decision of a

Superior Court judge affirming his classification by the Sex

Offender Registry Board (board) as a level two sex offender. We

affirm.

1. 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). In 2001,

Doe sexually abused a seven year old boy (first victim) by

putting the boy's penis in his mouth while he and the boy were
in the boy's bedroom.1 Doe, who was thirty-three years old at

the time, admitted to having been intoxicated during the

incident. In March 2002, Doe was charged in the District Court

with one count of indecent assault and battery on a child under

fourteen years old; he pleaded guilty to that charge in 2004.2

Separately, in 2001 and 2002, Doe assaulted his brother's

thirteen year old stepson (second victim) on two occasions by

touching the child's penis and putting it in his mouth. He

abused the second victim's eleven year old brother (third

victim) in the same way in July 2002. Based on Doe's conduct

with the second and third victims, he was indicted in the

Superior Court on three counts of indecent assault and battery

on a child under fourteen years old, and two counts of rape of a

child with force. A Superior Court jury acquitted him of all

four charges; based on the evidence presented at the

classification hearing, however, the hearing officer determined

by a preponderance of the evidence that Doe raped both children

1 Doe was known to the first victim and was a houseguest at
his home on the date of the offense.

2 Doe was sentenced to 589 days' incarceration, deemed
served. Consistent with the requirements of G. L. c. 6,
§§ 178C-178P, he was also required to register as a sex
offender.

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as alleged in the indictments (in each instance, by putting the

child's penis in his mouth).

The board preliminarily classified Doe as a level three sex

offender. Doe sought review of that determination and,

reviewing the case de novo, a hearing examiner classified him as

a level two sex offender. In reaching her decision, the hearing

examiner applied two high-risk factors at "increased weight"

based on Doe's rapes as an adult of three prepubescent children,

and the fact that he sexually abused the third victim after

being charged with indecently touching the first victim. See

G. L. c. 6, § 178K (1) (a) (ii), (iii); 803 Code Mass. Regs.

§ 1.33(2), (3) (2016). The examiner further applied nine risk-

elevating factors (one at "increased" weight, five at "moderate"

or unspecified weight,3 and three at "minimal" weight).

Specifically, the examiner applied these factors because the

three victims were children with whom Doe had "extrafamilial"

relationships; because the offenses involved high degrees of

physical contact; because Doe was, by his own admission,

3 It is apparent from the hearing examiner's decision that
she weighted her application of the regulatory factors on a
scale ranging from "increased" to "minimal." Where the
examiner's decision reflects that she "applied" a particular
factor without assigning it a specific weight, we understand the
examiner to have applied no more than threshold weight to that
factor.

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intoxicated when he committed one of the rapes; and because of

Doe's past criminal history, which included his convictions of

nonsexual violent crimes, and the fact that he had been the

defendant on nine separate abuse prevention orders. See G. L.

c. 6, § 178K (1) (b) (i), (iii); 803 Code Mass. Regs. § 1.33(7),

(9), (10), (11), (15), (17), (18), (19), (22).

In favor of Doe, the hearing examiner applied four risk-

mitigating factors (one at "full" weight and three at "moderate"

or unspecified weight), based on Doe's seventeen years of

offense-free time in the community, his age at the time of the

hearing (fifty-two years old), and the support available to him

from family and friends.4 See G. L. c. 6, § 178K (1) (c); 803

Code Mass. Regs. § 1.33(29), (30), (33), (34). The examiner

also carefully considered the scholarly articles that Doe

submitted as "other information related to the nature of [his]

sexual behavior." See 803 Code Mass. Regs. § 1.33(37). She

ultimately gave those articles "little weight," however, because

they addressed considerations "similar [to]" those already

4 Notably, the judge tempered the weight she gave to Doe's
wife's support, based on the examiner's determination that the
wife "[did] not believe that [Doe] sexually offended against the
[v]ictims." See 803 Code Mass. Regs. § 1.33(33)(a) ("The Board
shall give greater mitigating consideration to evidence of a
support network that is aware of the offender's sex offense
history and provides guidance, supervision, and support of
rehabilitation").

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addressed in the regulatory factors she considered. See G. L.

c. 6, § 178K (1) (l). Doe unsuccessfully challenged his

classification in the Superior Court, and this appeal followed.

2. Discussion. a. Standard of review. A level two

classification requires explicit findings, supported 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). On appeal, our review is narrow: We will not

disturb the board's classification decision unless "the decision

is in excess of [the board'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, supra at 649, citing G. L. c. 30A, § 14 (7).

Additionally, "[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, Sex Offender Registry Bd. No. 523391 v.

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Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019). As

to the hearing examiner's weighing of the evidence, we are

mindful that the board's examiners have been extensive

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).

b. Assessment of scholarly articles. On appeal, Doe

contends that the hearing examiner in this case was required to

consider information that Doe submitted, to the extent that the

information was useful in assessing his current risk to reoffend

and his degree of dangerousness. See Doe No. 68549, 470 Mass.

at 105. This is a correct assessment of the examiner's

responsibility, which includes an obligation to consider

scientific research that speaks to the concerns underlying the

statutory and regulatory considerations underpinning SORB's

classification system. See id. Contrary to Doe's suggestion,

however, the hearing examiner in this case did consider each of

the research-based articles Doe submitted in support of his

argument that the hearing examiner should give dispositive

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weight to offense-free time in the community in considering his

risk of recidivism.5

In his brief, Doe focuses on two articles to which the

hearing examiner gave "little" independent weight. We discern

no abuse of discretion in the hearing officer's assessment,

however, as the articles Doe submitted addressed the correlation

between offense-free time in the community and recidivism. This

consideration is addressed elsewhere in the statutory and

regulatory framework, and the examiner had already given that

consideration full mitigating weight in Doe's case. See Doe No.

68549, supra at 109-110. Thus, no additional weight was

required for these articles. Contrast Doe, Sex Offender

Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass.

612, 621-622 (2010).

c. Examiner's weighing of relevant factors. Having

carefully reviewed the hearing officer's thorough written

decision, we are satisfied that the examiner's decision to

classify Doe as a level two sex offender was supported by the

requisite clear and convincing evidence. See Doe, Sex Offender

5 Because the examiner here did not reject the disputed
articles or the research reflected in them, Doe's reliance on
our unpublished decision in Doe, Sex Offender Registry Bd. No.
40665 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1114
(2021), is misplaced.

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Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass.

297, 300 (2015). The decision reflected an appropriate

"qualitative analysis of the individual sex offender's history

and personal circumstances," 803 Code Mass. Regs. § 1.33, and

the reasons for the examiner's decision are readily discernable.

See G. L. c. 178K, § 2 (b). Specifically, the examiner

identified each factor that she applied and explained the reason

for its application. In most instances, the examiner also

specified the weight she assigned to the factor based on the

specifics of Doe's case; where she did not do so explicitly, the

weight attached was implied. See note 3, supra. Notably, given

Doe's challenge to the hearing examiner's consideration of his

seventeen years of offense-free time in the community, the

examiner gave "full [mitigating] weight" to factor 29.

The hearing examiner was required to consider both the

board's evidence and "whatever in the record fairly detracts

from its weight." New Boston Garden Corp. v. Assessors of

Boston, 383 Mass. 456, 466 (1981), quoting Cohen v. Board of

Registration in Pharmacy, 350 Mass. 246, 253 (1966). We are

satisfied that the examiner conducted a proper assessment of the

evidence, and that her "[analytical] path may reasonably be

discerned" from her decision. NSTAR Elec. Co. v. Department of

Pub. Utils., 462 Mass. 381, 387 (2012), quoting Costello v.

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Department of Pub. Utils., 391 Mass. 527, 535-536 (1984). See

Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender

Registry Bd., 81 Mass. App. Ct. 639, 651 (2012) ("the

classification [must be] based on a sound exercise of informed

discretion rather than the mechanical application of a checklist

or some other reflex").

Judgment affirmed.

By the Court (Massing, Hand &
Smyth, JJ.6),

Clerk

Entered: December 27, 2024.

6 The panelists are listed in order of seniority.

9