John Doe, Sex Offender Registry Board No. 216728 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-776

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 216728

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from his classification as a level

three sex offender, challenging what he characterizes as a

"checklist" approach by the Sex Offender Registry Board (SORB)

hearing examiner (examiner), maintaining that the examiner

arbitrarily and capriciously applied three regulatory risk-

elevating factors, and asserting that Internet publication was

not warranted. We affirm.

Background. The plaintiff sexually assaulted five stranger

victims over a period of approximately two weeks. The most

violent and penetrative assault was the oral rape of a twenty-

two-year-old woman (victim 1) whom the plaintiff approached from

behind as she walked down a public street. The plaintiff held a
knife to the woman's throat and directed her to keep walking,

bringing her to a dark driveway. There, the plaintiff forced

victim 1 to kneel, threatened to cut her, and told her to do

what he wanted and he would let her go. The plaintiff then

orally raped the woman, ejaculating in her mouth. He then

walked her, again at knifepoint, to a car, where he pushed her

into the passenger seat and ripped open her coat, removed her

shirt and bra, licked and touched her breasts, and told her to

hold his penis like a "lollipop." During this second oral rape,

the plaintiff again ejaculated in the victim's mouth,

instructing her to swallow.

Just six days later the plaintiff grabbed his second victim

(victim 2) from behind as she waited for a bus. Pushing her

face against a fence, he said, "be quiet. Walk with me." He

grabbed her breast and her buttocks and poked her in the ribs

with what she believed to be a knife. Victim 2 hit the

plaintiff with her left elbow and fled to an approaching bus.

After being questioned about the assaults on victims 1 and

2, the plaintiff admitted to them along with three other

indecent assaults on women strangers within the same month as

the assaults on victims 1 and 2. He grabbed his third and

fourth victims (victims 3 and 4) by the buttocks on public

streets in separate incidents on the same day. Approximately

2
ten days later, also on a public street, he grabbed his fifth

victim (victim 5) by the buttocks and then, when she turned to

look at him, he pulled her headphones off and threw them at her.

With respect to the assaults on victims 1 and 2, the

plaintiff pleaded guilty to two counts of aggravated rape, one

count of kidnapping, one count of assault with intent to rape,

two counts of assault with a dangerous weapon, and one count of

indecent assault and battery on a person age fourteen or over.

With respect to the assaults on victims 3, 4, and 5, the

plaintiff pled guilty to three counts of indecent assault and

battery on a person age fourteen or over. He received a

sentence of incarceration followed by a period of forty years of

supervised probation. While he was incarcerated, the plaintiff

undertook sex offender treatment at the North Central

Correctional Institution in Gardner in 2015 and also spent

approximately three years receiving sex offender treatment at

the Massachusetts Treatment Center.

Discussion. "A reviewing court may set aside or modify

SORB's classification decision where it determines that the

decision is in excess of SORB's statutory authority or

jurisdiction, violates constitutional provisions, is based on an

error of law, or is not supported by substantial evidence."

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

3
Registry Bd., 482 Mass. 643, 649 (2019), citing G. L. c. 30A,

§ 14 (7). "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, Sex Offender Registry

Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct.

85, 88 (2019).

"A hearing examiner has 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). "[O]ur review does not

turn on whether, faced with the same set of facts, we would have

drawn the same conclusion as an [examiner] . . . , but only

whether a contrary conclusion is not merely a possible but a

necessary inference" (quotation and citation omitted). Id. at

110.

To classify an offender as level three an examiner must

determine "that the risk of reoffense is high and the degree of

4
dangerousness posed to the public is such that a substantial

public safety interest is served by active

dissemination . . . ." G. L. c. 6, § 178K (2) (c). See Doe,

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

Bd., 447 Mass. 779, 788 (2006) (presence of "high-risk" factors

lends support to examiner's decision to classify plaintiff as

level three offender).

1. "Checklist approach." Before us, the plaintiff asserts

for the first time that the examiner improperly followed a

"checklist approach" in analyzing the plaintiff's history and

characteristics rather than employing the reasoned analysis

required by law. See Doe, Sex Offender Registry Bd. No. 11204

v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 574 (2020).

Because the plaintiff failed to raise this argument before the

instant appeal, it is waived. Doe, Sex Offender Registry Bd.

No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 57-58

(2010). We follow the rule that "[i]n the absence of a

statutory directive to the contrary, the administrative remedies

should be exhausted before resort to the courts" (quotation

omitted), id. at 57-58, because "when a party neglects to raise

an issue during agency proceedings, the reviewing court lacks a

record on which to evaluate questions of statutory authority or

jurisdiction." Id. at 58.

5
To the extent it can be considered a separate argument, the

plaintiff's related claim that the examiner erred in weighing

the high-risk and risk-elevating factors against the risk-

mitigating factors is also unavailing. A hearing examiner "has

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. 22188 v. Sex

Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019) (Doe

No. 22188), quoting Doe No. 68549, 470 Mass. at 109-110. In

assessing the degree of danger the plaintiff posed as high, the

examiner noted that the plaintiff sexually assaulted five women

strangers in public locations over a few-week period, and that

the assault of victim 1 involved two oral rapes at knifepoint.

The examiner analyzed the risk of reoffense by noting that the

victims were strangers to the plaintiff (factor 7), that the

plaintiff threatened victim 1 with a knife during the sexual

assaults (factor 8), and that all five sexual assaults occurred

in public locations (factor 16). He also noted the number of

victims (factor 22) and that the plaintiff had a history of rule

violations while incarcerated (factor 12). Finally, the

examiner considered the test results and articles submitted by

the plaintiff (factors 35 and 37). We are mindful that

determining which factors to apply "and how much weight to

6
ascribe to each factor," are matters within the hearing

examiner's discretion, and, "a reviewing court is required to

'give due weight to [the examiner's] experience, technical

competence, and specialized knowledge'" (citation omitted). Doe

No. 68549, supra at 109-110. We will not disturb this

discretionary weighing in these circumstances.

2. Application of risk-elevating factors 9, 19, and 35.

The plaintiff maintains that the hearing examiner's application

of three risk-elevating factors was arbitrary and capricious.

We disagree and conclude that the hearing examiner acted within

his considerable discretion in applying each of these factors.

The plaintiff contends that the examiner could not apply

factor 9 (alcohol and substance use) at all because his

"purported decades old use of alcohol or drugs" was too remote

in time and the plaintiff had experienced "[fifteen] years of

admittedly forced sobriety" since. The examiner acted within

his discretion in applying this factor, to which he assigned

minimal weight because "[d]rugs and alcohol are behavioral

disinhibitors," 803 Code Mass. Regs § 1.33(9)(a) (2016), and the

plaintiff had admitted to weekly alcohol use, and use of

marijuana up to four times weekly, beginning at age thirteen.

The hearing examiner noted the plaintiff's plan to discontinue

alcohol and marijuana use, and also acknowledged that substance

7
use was "not a factor in his sexual offending." But the

regulations permit consideration of this evidence and the

examiner was not obligated to acknowledge the plaintiff's

"forced sobriety" in custody, nor to explain how he weighed

either the passage of time or the plaintiff's future plans. See

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

The plaintiff's argument about factor 19 is no more

persuasive. He orally raped victim 1 twice, so the examiner

applied factor 19 (level of physical contact) with increased

weight, concluding that "[p]enile penetration implicates this

factor with increased weight as to dangerousness." It was not

arbitrary and capricious for the examiner to conclude this

without explicitly weighing the 1998 Hanson and Bussière article

submitted by the plaintiff. SORB's 2002 regulations "state that

they are based on the 'available literature' regarding the risk

factors enumerated in the statute," including this article, Doe,

Sex Offender Registry Board No. 151564 v. Sex Offender Registry

Bd., 456 Mass. 612, 620 (2010), citing 803 Code Mass. Regs.

§ 1.40(7) (2002), and the applicable 2016 regulations also

expressly considered this article. See 803 Code Mass. Regs.

§§ 1.33 (2016). Accordingly, the plaintiff's submitted article

was adequately accounted for by the regulations and the examiner

need not have separately explained how he considered it.

8
The examiner similarly committed no error in his

consideration of factor 35. This factor requires the examiner

to "consider evaluative reports, empirically-based risk

assessment instruments, or testimony from a licensed mental

health professional" about "psychological and psychiatric issues

. . . as they relate to the offender's risk of reoffense." 803

Code Mass. Regs. § 1.33(35)(a) (2016). The plaintiff maintains

that (1) the examiner was unqualified to "interpret," and thus

should not have considered, the plaintiff's Static-99R and

STABLE-2007 risk assessment test results, and (2) the risk

assessments were administered four years before the hearing,

rendering their results stale. We are skeptical that either of

these arguments rises to the level of appellate argument, see

Mass. R. App. P. 16 (a) (9), as appearing in 481 Mass. 1628

(2019), but consider them to the extent possible.

The examiner afforded "some weight" to the tests, "to the

extent each was correctly applied to the facts, and . . . only

to the extent they may be seen as a general indicator of risk of

re-offense." Consideration of the tests was within the hearing

examiner's authority, as the language of factor 35 makes plain,

and he properly limited the weight given to these tests. And,

even if it was improper for the examiner to consider these

tests, we are confident that the error did not affect the

9
classification. See Sex Offender Registry Bd. No. 22188 v. Sex

Offender Registry Bd., 101 Mass. App. Ct. 797, 804-805 (2022).

3. Internet publication. The plaintiff focuses on the

hardships and restrictions sex offenders face when they are

required to register. While we do not question that these

challenges exist, they do not provide the plaintiff with an

argument for reversing the order of Internet publication.

Neither are we persuaded by the plaintiff's reiterated arguments

about the age of his offenses, his otherwise clean criminal

record, and his largely successful prison stay. As we noted

earlier, these assertions amount to a disagreement with the

hearing examiner's weighing of the evidence, a matter that is

squarely within an examiner's discretion. Doe No. 68549, 470

Mass. at 109-110.

10
The evidence supported the hearing examiner's level three

classification of the plaintiff, and the examiner appropriately

considered the nature and severity of the plaintiff's offenses

in assessing whether Internet publication was warranted. See,

e.g., Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender

Registry Bd., 483 Mass. 131, 144-147 (2019).

Judgment affirmed.

By the Court (Hershfang,
Hodgens & Smyth, JJ.1),

Clerk

Entered: January 20, 2026.

1 The panelists are listed in order of seniority.

11