John Doe, Sex Offender Registry Board No. 153207 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-268

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 153207

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment that affirmed his classification by the Sex Offender

Registry Board (SORB) as a level three sex offender. On appeal,

Doe argues that the hearing examiner (examiner) erred by

(1) denying Doe's motion for expert funds; (2) denying Doe's

motion in limine to exclude opinion evidence; (3) applying

factor sixteen; (4) basing her classification decision on

insufficient evidence; and (5) requiring Internet publication of

Doe's sex offender registry information. We affirm.

Background. We summarize the facts as set forth in the

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 December 28, 2005, Doe's sister reported to the police

that she suspected Doe had sexually assaulted her then nine year

old daughter and had found child pornography in Doe's bedroom.

When Doe was interviewed by the police, he admitted, among other

things, that on at least three occasions, he poured liquid candy

on his penis and had his niece lick the candy off of his penis.

He also admitted to sexually assaulting another nine or ten year

old girl who was a friend of the family. Further, Doe told the

police officers interviewing him that he had taken photographs

of his niece holding his penis while she was blindfolded,

recorded videos of himself masturbating and putting his penis in

his niece's mouth, blindfolded her and had her guess the flavor

of candy he "squirted" in her mouth, and recorded videos of

himself masturbating while his other victim guessed the flavor

of the candy he "squirted" in her mouth.1

On September 26, 2006, Doe pleaded guilty to twenty counts

of rape of a child, eight counts of possession of child

pornography, five counts of posing a child in a state of sexual

conduct, and two counts of posing a child in a state of nudity.

Doe received concurrent eighteen to twenty year State prison

1 Doe's niece provided similar descriptions of what he did.

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sentences on the rape of a child convictions and concurrent ten

year probation sentences on the charges of posing a child in a

state of sexual conduct and posing a child in a state of nudity.

While incarcerated, Doe was transferred to the

Massachusetts Treatment Center (MTC) where he began sex offender

treatment. On February 4, 2020, an MTC evaluator completed

Doe's comprehensive sexual offense assessment and treatment

evaluation (evaluation) which included a Static-99R assessment

and a Stable-2007 assessment. According to the MTC evaluator's

report, the combined results from the Static-99R and Stable-2007

assessments placed Doe in the "above average" range for sexual

recidivism.

On July 14, 2020, SORB notified Doe of his requirement to

register as a level three sex offender. After a de novo

hearing, the examiner affirmed SORB's level three

classification. A Superior Court judge affirmed SORB's

classification on December 7, 2022, and this appeal followed.2

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

2 Doe's notice of appeal is undated and there is no entry of
the appeal on the Superior Court docket, so the timeliness of
the appeal is unclear. However, counsel for Doe's notice of
appearance was entered on December 30, 2022, so we will treat
the appeal as timely.

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(2019). We may only set aside SORB's decision if "the decision

is unsupported by substantial evidence or is arbitrary or

capricious, an abuse of discretion, or not in accordance with

law" (citation omitted). Doe, Sex Offender Registry Bd. No.

22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801

(2022) (Doe No. 22188). In reviewing the judge's decision, "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'" (citation omitted).

Id. As a result, Doe "bears a heavy burden of establishing that

the [SORB]'s decision was incorrect" (citation omitted). Doe,

Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd.,

486 Mass. 749, 757 (2021).

1. Expert funds. On appeal, Doe argues that the examiner

erroneously denied his motion for expert funds. We disagree.

An offender seeking expert funds has the burden of showing a

need for expert testimony on an issue that is "particular to him

. . . , is not a matter of common knowledge or experience, and

. . . ha[s] a bearing on [his] classification." See Doe, Sex

Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd.,

452 Mass. 764, 775 (2008).

Here, Doe argues that an expert was necessary to assess his

risk of reoffense and degree of sexual dangerousness because the

MTC evaluation diagnosed him with pedophilia, an issue

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particular to Doe, and the examiner relied on this diagnosis to

designate him as a level three sex offender. We are not

persuaded that the MTC evaluator's statements that "it is likely

[Doe] meets criteria for pedophilic disorder" and "pedophilic

disorder should be considered" constitute a diagnosis, nor is

there any evidence that the examiner relied on the evaluator's

statements as a diagnosis of pedophilia. She did not apply or

consider factor one (mental abnormality) in her classification

determination.3 We discern no error.

2. Motion in limine. Doe argues that the examiner abused

her discretion by denying his motion in limine to exclude the

MTC evaluation from evidence because (1) the evaluation stated

an ultimate risk opinion which the examiner relied on in

determining that Doe posed a high risk of sexual reoffense and

(2) the author of the report did not testify at the hearing in

violation of factor thirty-five. See 803 Code Mass. Regs.

§ 1.33 (35) (a) (2016). Factor thirty-five permits the examiner

to "consider evaluative reports [and] empirically-based risk

assessment instruments . . . as they relate to the offender's

risk of reoffense" but requires the examiner to exclude ultimate

3 In denying Doe's motion for expert funds, the examiner
stated that "no evidence was submitted indicating that [Doe] has
been diagnosed with a specific condition as required under [803
Code Mass. Regs. § 1.16 (4)]."

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risk opinions from consideration unless the evaluator testifies

as an expert witness at the classification hearing. Id.

Here, the results of the Static-99R actuarial assessment

and Stable-2007 assessment placed Doe at an above average risk

for sex offender recidivism. These tests assess factors that

predict the likelihood of sex offender recidivism and provide

the evaluator with numerical results that correspond to risk

level. Importantly, the results of these tests do not reflect

the MTC evaluator's opinion as to Doe's risk level. Therefore,

they do not constitute an ultimate risk opinion. To the

contrary, because these tests are "empirically-based risk

assessment instruments," the examiner was expressly permitted by

factor thirty-five to consider them without the evaluator's

testimony. 803 Code Mass. Regs. § 1.33 (35) (a). Accordingly,

we discern no error.

3. Factor sixteen (public place). Though the hearing

examiner applied minimal weight to factor sixteen, 803 Code

Mass. Regs. § 1.33 (16) (a), Doe argues that even her minimal

application of factor sixteen was erroneous because the relevant

offenses took place in his bedroom with the door closed and in a

storage closet behind at least two closed doors. However,

factor sixteen applies to "any place that is open to the

scrutiny of others or where there is no expectation of privacy."

Id. Because "[a] hearing examiner has discretion . . . to

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consider which statutory and regulatory factors are applicable

and how much weight to ascribe to each factor" (citation

omitted), we review the examiner's decision for abuse of that

discretion. Doe No. 22188, 96 Mass. App. Ct. at 742.

Here, Doe assaulted his niece in the basement of the home

he shared with his mother when other family members were

gathered upstairs. On multiple occasions when the niece and her

mother were visiting, the mother searched the house looking for

her daughter and searched Doe's bedroom in the basement.

Following these incidents, the examiner found that the victim's

mother had repeatedly warned Doe not to be alone with the victim

in his bedroom, yet on multiple subsequent occasions, the mother

caught Doe alone with her daughter after he had just assaulted

her. Based on these facts, the hearing examiner determined that

Doe had no expectation of privacy and his conduct was open to

the scrutiny of others. We discern no abuse of discretion in

the examiner's application of factor sixteen. See Doe, Sex

Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd.,

447 Mass. 779, 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'").

Even if the examiner did err in applying factor sixteen, it

was harmless. See Doe, Sex Offender Registry Bd. No. 6729 v.

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Sex Offender Registry Bd., 490 Mass. 759, 767 (2022) (where

error is harmless and classification level is supported by

evidence, case need not be remanded to SORB). Not only did the

examiner apply only minimal weight to factor sixteen, but Doe's

classification is otherwise supported by substantial evidence.

5. Substantial evidence. On appeal, Doe argues that there

was insufficient evidence to find that he poses a high risk of

reoffending and degree of dangerousness, and that the examiner

did not properly weigh and consider mitigating factors twenty-

eight (supervision by probation or parole), thirty (advanced

age), and thirty-two (sex offender treatment). "Substantial

evidence is 'such evidence as a reasonable mind might accept as

adequate to support a conclusion.'" Doe No. 10800, 459 Mass. at

632, quoting G. L. c. 30A, § 1 (6). The substantial evidence

standard requires that the offender's classification be

established "by clear and convincing evidence." Doe, Sex

Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd.

473 Mass. 297, 298 (2015). The weight given to the factors is

within the examiner's discretion and we do not substitute our

judgment on the weight of the evidence for that of an agency.

See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender

Registry Bd., 447 Mass. 768, 775 (2006) (Doe No. 3844).

We are satisfied that there was substantial evidence to

support Doe's level three classification. In considering

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several high risk and risk elevating factors, the examiner found

that Doe posed a high risk of reoffense and degree of sexual

dangerousness because he repeatedly sexually assaulted two

prepubescent girls, one extrafamilial and one intrafamilial,

while they were blindfolded.4 The examiner also considered Doe's

prior substance use, contact with the criminal justice system,

and diverse sexual behavior.5 Further, the examiner considered

factors in Doe's favor such as his probation on release from

incarceration, age at the time of the classification hearing,

and participation in sex offender treatment.6 Taking the

evidence as a whole, the examiner found "[b]y clear and

convincing evidence, . . . [Doe] poses a high risk to reoffend

and a high degree of dangerousness . . ." and ordered him to

register as a level three sex offender. The record amply

supports the examiner's conclusion, and we will not disturb the

4 Specifically, the examiner applied high risk factor three
(adult offender with child victim) and risk elevating factors
seven (relationship between the offender and victim), eighteen
(extravulnerable victim), nineteen (level of physical contact),
twenty-one (diverse victim type), and twenty-two (number of
victims).

5 Specifically, the examiner applied risk elevating factors
nine (alcohol and substance abuse), ten (contact with the
criminal justice system), and twenty (diverse sexual behavior).

6 Specifically, the examiner applied risk-mitigating factors
twenty-eight (supervision by probation or parole), thirty
(advanced age), and thirty-two (sex offender treatment).

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examiner's weighing of the factors. See Doe No. 3844, 447 Mass.

at 775.

6. Internet publication. Doe argues that the examiner

erred in requiring Internet publication of his sex offender

registry information because it does not serve a public safety

interest. We disagree. Even "where a sexually violent offender

presents a moderate risk to reoffend and a moderate degree of

dangerousness, Internet publication will almost invariably serve

a public safety interest by notifying potential victims of the

risks presented by the offender in their geographic area." Doe,

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

Bd., 482 Mass. 643, 655 (2019). Certainly, the same holds true

with respect to a high-risk offender. Because the examiner

found that Doe poses a high risk of reoffense and degree of

dangerousness and he offended against an extrafamilial victim,

she did not abuse her discretion in requiring Internet

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publication of Doe's sex offender registry information.

Judgment affirmed.

By the Court (Vuono, Henry &
Wood, JJ.7),

Clerk

Entered: August 11, 2025.

7 The panelists are listed in order of seniority.

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