John Doe, Sex Offender Registry Board No. 528808 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-1264

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528808

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner appeals a hearing examiner's order, affirmed

by a judge of the Superior Court, classifying the petitioner as

a level three, high-risk offender and ordering Internet

publication and dissemination of his sex offender registry

information. The petitioner asserts that the examiner erred by

applying increased weight to factor 2 and by failing to apply

mitigating factors 33 and 34, and that the examiner's conclusion

that active dissemination of the petitioner's registration

information would serve a substantial public safety interest was

not supported by substantial evidence. We affirm.

Background. Doe pleaded guilty to sexually assaulting a

prepubescent ten year old girl several times in one month,
including engaging in digital and penile vaginal rape,

attempting penile anal rape, groping her breast area under her

shirt, and showing her pornography on his phone. The girl's

family was friendly with the petitioner, who came to their home

to help with minor tasks, and the petitioner was a former

boyfriend of the victim's aunt.

In addition to this offense, the examiner also considered

evidence of two other sexual assaults that occurred many years

earlier. When the petitioner was thirteen years old, he was

investigated after a five year old girl reported that he had

"put his [penis] on her back," which the examiner assessed as an

indecent assault and battery rather than a "penetrative act."

The examiner noted that the petitioner "was investigated for

sexual misconduct" and, based on the limited available

information, declined to find that there had been any such

misconduct.

The examiner also described the petitioner's rape, at age

fourteen, of a sixteen year old girl who was babysitting in the

petitioner's mother's home. After forcibly undoing the girl's

pants, the petitioner pushed her onto her elbows on the floor,

pulled her pants down, and anally raped her. The petitioner was

also alleged to have grabbed this victim's breasts and touched

her inappropriately before the rape, and to have been observed

openly masturbating in her presence. The petitioner was charged

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with rape. The charge was later reduced to assault and battery

and the matter was continued without a finding for approximately

eighteen months, then dismissed. The examiner found by clear

and convincing evidence that the petitioner raped and sexually

assaulted this victim.

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). "The decision may only be set aside if

the court determines that the decision is unsupported by

substantial evidence or is arbitrary or capricious, an abuse of

discretion, or not in accordance with law." 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). "Substantial evidence is 'such evidence as a reasonable

mind might accept as adequate to support a conclusion.'" Doe,

Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry

Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6).

"We 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.

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In affirming the petitioner's level three classification,

the examiner relied on high-risk factors 2 (repetitive and

compulsive behavior, applied with increased weight), 3 (adult

offender with child victim, applied with increased weight), and

4 (offender's age at first sex offense, applied).

The petitioner does not dispute that factor 2 applies but

contends that the hearing examiner abused his discretion in

assigning increased weight to this factor. The petitioner

points to the two decades during which he was in the community

between offending with the sixteen year old victim (when he was

fourteen years old) and offending with the ten year old victim

(at age thirty-five) and asserts that this offense-free time

demonstrated that he could "control his sexual desires"; he also

asserts that special consideration of this offense-free time was

warranted because the board does not include this consideration

in its promulgated factors. We are not persuaded.

Doe's ability to pursue his factor 2 argument runs aground,

as counsel appropriately acknowledged at oral argument, on the

absence of either a facial challenge to the regulation or record

support. Factor 2 may be applied with the highest weight when

an offender "engages in sexual misconduct after having been

charged with or convicted of a sex offense." Doe, Sex Offender

Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass.

App. Ct. 738, 742 (2019) (Doe No. 22188), quoting 803 Code Mass.

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Regs. § 1.33(2) (2016). Increased weight is appropriate when an

offender is "investigated by an authority for sexual misconduct

and, nonetheless, commit[s] a subsequent act of sexual

misconduct." Doe No. 22188, supra, quoting 803 Code Mass. Regs.

§ 1.33(2). The petitioner's history included three temporally

distinct, violent sex crimes, and he was investigated or charged

after each. In addition, after having admitted to sufficient

facts in connection with the rape of the sixteen year old, the

petitioner engaged in the multiple rapes and indecent assaults

on the ten year old, evidencing repetitive conduct and

undermining this argument. Cf. Doe No. 22188, supra at 742-743.

The petitioner also attacks the hearing examiner's failure

to apply factors 33 (home situation and support systems) and 34

(stability in the community). Doe asserts that the record

contains evidence that (1) he was employed at the time of his

probation-ordered assessment for sex offender treatment (October

27, 2022) and (2) his mother is his support system, helps with

his bills, and tells Doe that she loves him. Doe failed to

raise this argument before this appeal, however, which means the

argument is waived. See Smith v. Sex Offender Registry Bd., 65

Mass. App. Ct. 803, 810 (2006).

The meat of the petitioner's appeal, as ably articulated at

oral argument, was that the hearing examiner failed to give due

consideration to the practical ameliorative effect of the terms

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of the petitioner's probation when considering the "efficacy" of

Internet publication and dissemination of the petitioner's

personal and sex offender information. See Doe, Sex Offender

Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.

643, 654 (2019) (Doe No. 496501). "Whether a public safety

interest will be 'served' by Internet publication depends not

only on the probability of reoffense and the danger posed by

that potential reoffense but also on the efficacy of online

publication in protecting the public from being victimized by

the offender." Id. at 654. In considering this argument, we

are mindful that the purpose of the law establishing the sex

offender registration system was "'to protect . . . the

vulnerable members of our communities from sexual offenders,'

and particularly from 'sexually violent offenders who commit

predatory acts characterized by repetitive and compulsive

behavior.'" Id. at 645, quoting St. 1999, c. 74, emergency

preamble & § 1.

We remain unpersuaded. The task of the hearing examiner

when considering whether to order Internet publication and

dissemination is to determine "whether and to what degree public

access to the offender's personal and sex offender information

. . . is in the interest of public safety." Doe No. 496501, 482

Mass. at 654, quoting 803 Code Mass. Regs. § 1.20(2) (2016).

This "must be determined based on the facts of each individual

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case." Doe No. 496501, supra at 655. In so doing, an examiner

must consider "what type of sexual crime the offender would

likely commit if he or she were to reoffend. Pragmatically,

because past is prologue, a hearing examiner would make this

determination based on the sexual crime or crimes that the

offender committed in the past." Id. at 651.

Turning to the petitioner's argument, the hearing examiner

applied risk-mitigating factor 28 because the petitioner will

remain under probation supervision until late October 2027.

While the examiner did not describe the probation terms

(including GPS monitoring and exclusion zones) in his findings,

that information was presented to him and discussed at the

hearing. The examiner's explanation was adequate to assure us

that the examiner considered this factor, as he was bound to do.

See Doe No. 496501, 482 Mass. at 645-646.

The examiner acted within his discretion in determining

that the mitigating effect of the remaining probationary period

did not outweigh the petitioner's history of sexual assault on

"very young, pre-pubescent, children and/or sexually mature

girls" -- a "broad victim pool" -- in assaults involving "a high

level of physical contact." In reasoning that publication and

dissemination were warranted, the examiner further noted that

the victims knew the petitioner, which is "empirically related

to an increased risk of re-offense." This known-victim dynamic

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must also be part of the calculus when considering the efficacy

of the GPS exclusion zones, which included schools, playgrounds,

and places where stranger children may be found but not, for

example, the home of a friend, the environment in which the

petitioner assaulted his youngest and most recent victim.

In determining the need for dissemination and publication

the examiner also noted the petitioner "has demonstrated that

being investigated for sexual assault is not a deterrent to him

further sexually victimizing additional people," and that "the

likelihood of being discovered [was] not a deterrent" as the

petitioner had committed one assault when another child was

"very close by." The examiner wrote that, should the petitioner

offend again, it would likely be against particularly vulnerable

victims ("young, pre-pubescent children, or sexually mature

girls").

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Based on this analysis, the hearing examiner found that

women and parents with young children who were known to the

petitioner should have access to his sex offender registry

information for their protection and the protection of their

children. "We cannot say that a contrary conclusion was

required by the evidence." Doe, Sex Offender Registry Bd. No.

23656 v. Sex Offender Registry Bd., 483 Mass. 131, 146 (2019).

Judgment affirmed.

By the Court (Desmond,
Hershfang & Brennan, JJ.1),

Clerk

Entered: May 1, 2026.

1 The panelists are listed in order of seniority.

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