John Doe, Sex Offender Registry Board No. 10390 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-376

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 10390

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe (Doe), appeals from a Superior

Court judgment affirming his reclassification by the Sex

Offender Registry Board (SORB) as a level two sex offender. On

appeal, Doe claims that the decision of the hearing examiner

(examiner) was not based on substantial evidence, Doe's risk to

reoffend is low and compels a level one classification, and the

examiner erred in requiring Internet dissemination of Doe's

personal information. We affirm.

Background. In May 1998, Doe met the victim, a thirteen

year old runaway, at a gas station and engaged her in

conversation. The victim told Doe that she was twenty-three

years old, lived with her sister, and could not return home
because she had gotten into a fight with her sister. Doe said

that he had just come from church. Doe was playing gospel music

on his car radio and had "church papers" in his car. Because of

the music and the papers, the victim felt safe with Doe, and she

accepted his offer to put her up in a motel room for the night.

Doe then drove the victim to the motel and registered for a

room. When Doe opened the motel room door, he forcibly pulled

the victim into the room and pushed her onto the bed. The

victim was unable to scream for help because Doe held a pillow

over her face. The victim told Doe that she was only thirteen

years old and wanted to go home. Doe pushed the victim's bra up

and began to touch her breasts. Doe then penetrated the

victim's vagina with his penis. Doe told the victim that he

would hunt her down and kill her if she told anyone about the

rape.

In November 1999, Doe was convicted of one count of rape

and abuse of a child and one count of indecent assault and

battery on a child under fourteen.1 Doe was sentenced to eight

to nine years in State prison. In January 2009, SORB classified

Doe as a level three sex offender. In March 2019, Doe moved for

downward reclassification. In support of his motion, Doe

1 Doe's conviction of indecent assault and battery was later
reversed and the charge dismissed.

2
submitted reference letters from members of his church, where he

is a founder and pastor. One of the authors indicated knowledge

of Doe's sex offense history. After a hearing, the examiner

classified Doe as a level two sex offender. A Superior Court

judge affirmed SORB's ruling, and Doe appealed.

Discussion. 1. Standard of review. When reviewing SORB's

decision, we will not alter the decision unless it was

"(a) in violation of constitutional provisions; (b) in
excess of SORB's authority; (c) based upon an error of law;
(d) made upon unlawful procedure; (e) unsupported by
substantial evidence; (f) unwarranted by facts found by the
court, where the court is constitutionally required to make
independent findings of fact; or (g) arbitrary or
capricious, an abuse of discretion, or otherwise not in
accordance with law."

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

Registry Bd., 470 Mass. 102, 108-109 (2014) (Doe, No. 68549),

citing G. L. c. 30A, § 14 (7). "The court must 'give due weight

to [SORB's] experience, technical competence, and specialized

knowledge . . . as well as to the discretionary authority

conferred upon it.'" Doe, No. 68549, supra at 109, quoting

G. L. c. 30A, § 14 (7).

2. Level two classification. When reviewing a

classification decision by SORB, we "must determine whether the

decision is supported by substantial evidence." Doe, Sex

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

459 Mass. 603, 632 (2011) (Doe, No. 10800). "A hearing examiner

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has discretion . . . to consider which statutory and regulatory

factors are applicable and how much weight to ascribe to each

factor." Doe, No. 68549, 470 Mass. at 109-110.

Doe contends that the examiner erred by not attributing

sufficient weight to Doe's risk mitigating factors.2 This

argument fails. Since 2007, Doe has been offense-free in the

community, a risk mitigating factor to which the examiner gave

full weight. See 803 Code Mass. Regs. § 1.33(29) (2016). Doe

was also fifty-four years old at the time of the hearing, and he

resided in a positive and supportive environment. See 803 Code

Mass. Regs. § 1.33(30), (33) (2016). Additionally, Doe has

sustained sobriety and employment, and he has volunteered

extensively in his community. See 803 Code Mass. Regs.

§ 1.33(34) (2016). The examiner appropriately ascribed moderate

weight to these factors.

Against these risk mitigating factors, the examiner weighed

the following high risk and risk elevating factors. Doe used

and threatened violence against a child stranger. See 803 Code

Mass. Regs. § 1.33(3), (7)(a)(3), (8), (19) (2016). Doe had a

2 As to Doe's argument that the decision was unsupported by
substantial evidence, we discern no error where the examiner
properly relied on the Commonwealth's sentencing memoranda,
filed after the defendant was convicted of the governing sex
offense, which bore sufficient indicia of reliability and
amounted to substantial evidence. See, e.g., Doe, No. 10800,
459 Mass. at 638.

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history of substance use. See 803 Code Mass. Regs. § 1.33(9)

(2016). Doe also had a history of violent crime, and he accrued

five disciplinary reports while incarcerated, including punching

and choking his girlfriend during a visit. See 803 Code Mass.

Regs. § 1.33(10), (11), (12) (2016). Furthermore, Doe had

refused sex offender treatment, and he violated the terms of his

parole three times. See 803 Code Mass. Regs. § 1.33(13), (24)

(2016).

The examiner described the weight given to the elevating

factors and explained how they outweighed the mitigating

factors. The examiner carefully reasoned that the high risk

factor and risk elevating factors outweighed the risk mitigating

factors and supported a determination that Doe's level of risk

of reoffense and degree of dangerousness was moderate.

Accordingly, we discern no abuse of discretion.

3. Internet publication. "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." Doe, Sex Offender Registry Bd. No. 496501 v. Sex

Offender Registry Bd., 482 Mass. 643, 654 (2019) (Doe, No.

496501). "Internet publication will almost invariably serve a

public safety interest by notifying potential victims of the

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risks presented by the offender in their geographic area." Id.

at 655. The examiner is required "to ask whether, in light of

the particular risks posed by the particular offender, Internet

access to that offender's information might realistically serve

to protect the public against the risk of the offender's sexual

reoffense." Id.

Doe asserts that the examiner failed to make explicit

findings that Internet publication of Doe's offender status

would serve the public interest. To the contrary, the examiner

made several findings related to the particular risks posed by

Doe and the public safety interest that Internet publication

would serve. First, the examiner emphasized that Doe violently

raped a stranger child, as opposed to a family member,

establishing that Internet dissemination would allow the public

to take precautions when interacting with Doe. Second, because

Doe has violated parole in the past, including when he committed

the rape, the examiner reasonably concluded that community

supervision is not a sufficient deterrent. Third, the examiner

concluded that, if Doe were to reoffend, it would be against a

stranger girl in the community, and Internet dissemination would

allow community members to take steps to protect their children.3

3 Although not explicitly part of the examiner's analysis,
we note that Doe continued to have relationships with children
through his church activities, and his child victim initially

6
Thus, we conclude that the examiner did not abuse his discretion

by concluding that Internet dissemination of Doe's offender

status served a public safety interest. See Doe, No. 496501,

482 Mass. at 655.

Judgment affirmed.

By the Court (Desmond,
Brennan & Smyth, JJ.4),

Clerk

Entered: September 17, 2024.

trusted Doe because he portrayed himself as an active church
member.

4 The panelists are listed in order of seniority.

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