John Doe, Sex Offender Registry Board No. 4738 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-680

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 4738

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe No. 4738 (Doe), appeals from a

Superior Court judgment affirming his reclassification by the

Sex Offender Registry Board (SORB) as a level one sex offender.

On appeal, Doe claims that the reclassification decision was

arbitrary, capricious, and not based on substantial evidence

because the hearing examiner (examiner) mechanically applied

SORB's regulatory factors while failing to provide an

explanation for Doe's continued risk to reoffend. We affirm.

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 November 1996, Springfield police interviewed a seven

year old girl (victim) after she disclosed that Doe, her father,

had sexually assaulted her. The victim reported that when she

was five years old, on multiple occasions, Doe came into her

room at night and rubbed her vaginal area under her underwear.

The victim also reported to the police that Doe "was drinking

beer a lot" and "hit us a lot with his belt."

In May 1997, Doe admitted to sufficient facts and a finding

of guilt was entered on a single count of indecent assault and

battery on a child under fourteen. Doe was sentenced to two and

one-half years at the house of correction, with one year to

serve and the balance suspended with probationary conditions

until March 1999. Doe admitted to violating his probation in

1998 for failing to attend a rehabilitation program, and his

probation was extended until April 2002.

Doe also has several criminal convictions spanning before

and after his index sexual offense. Between 1989 and 2019, Doe

had been charged forty-two times in Massachusetts and Rhode

Island for various offenses. 1 His most recent conviction

1 As stated in the examiner's decision, the full list of
charges includes: nine counts of assault and battery, five
counts of larceny, four counts of disorderly conduct, three
counts of a fugitive from justice, three counts of uttering a
false check, two counts of forgery of a check, two abuse
prevention act violations, two trespassing violations, two
shoplifting charges, failure to appear on personal recognizance,
threatening to commit a crime, possession of a class D

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occurred in 2019, when he pleaded guilty for assault and battery

after punching a stranger in a car in the face and received a

one year incarceration sentence. At the time of

reclassification hearing, Doe was working to address his

sobriety.

On September 4, 2003, SORB classified Doe as a level two

sex offender. In February 2020, Doe moved for termination of

his sex offender registration obligation. SORB initially denied

this request. After a de novo hearing challenging the

recommendation, the examiner reclassified Doe as a level one sex

offender. A Superior Court judge affirmed SORB's ruling, and

Doe appealed.

Discussion. 1. Standard of review. A reviewing court may

set aside a decision of the board if it determines "that 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). The reviewing court shall "give due weight to the

experience, technical competence, and specialized knowledge of

substance, threat to commit murder, possession of a class B
controlled substance, shoplifting second offense, passing
counterfeit certifications/bills/notes, forgery and
counterfeiting in general, obtaining money by false pretenses,
and check kiting.

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the agency, as well as to the discretionary authority conferred

upon it." Doe, Sex Offender Registry Bd. No. 10216 v. Sex

Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L.

c. 30A, § 14 (7). As a result, Doe "bears a heavy burden of

establishing that the [board]'s decision was incorrect"

(citation omitted). Doe, Sex Offender Registry Bd. No. 3177 v.

Sex Offender Registry Bd., 486 Mass. 749, 757 (2021).

2. Classification determination. Doe contends that the

examiner's decision was arbitrary and capricious, and not

supported by substantial evidence, because the examiner could

not "support a finding that Doe continued to present anything

but a speculative risk of reoffense or danger to the community"

and unduly emphasized "Doe's history of recent criminal conduct

and stay at a sober house." We disagree.

To support a level one classification, SORB must prove, by

clear and convincing evidence, that Doe's "risk of reoffense is

low and the degree of dangerousness posed to the public is not

such that a public safety interest is served by public

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

Offender Registry Bd., 482 Mass. 643, 646 (2019), quoting G. L.

c. 6, § 178K (2) (a). "[R]egistration can be required only

based on an assessment 'of the person's current level of

dangerousness and risk of reoffense'" (emphasis omitted). Doe,

Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry

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Bd., 74 Mass. App. Ct. 383, 387 (2009) (Doe No. 24341), quoting

Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry

Bd., 450 Mass. 780, 787 (2008). "SORB's burden is to show that

Doe presents a 'cognizable risk of reoffense,' Doe, Sex Offender

Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass.

750, 762 (2006), not merely a hypothetical or speculative

potential risk." Doe No. 24341, 74 Mass. App. Ct. at 388.

Here, the hearing examiner properly applied and weighed

several regulatory factors that support a finding of a low risk

of reoffense. For instance, the examiner applied one high risk

factor at an increased weight, factor three, based on the pre-

pubescent age of the victim and Doe's adult age at the time of

the assault. See 803 Code Mass. Regs. § 1.33(3)(a) (2016). The

examiner also appropriately applied Doe's frequent contact with

the criminal justice system and violence unrelated to sexual

assaults at full weight given his extensive criminal record,

while assigning minimal weight to his noncompliance with

community supervision. See 803 Code Mass. Regs. § 1.33(10),

(11), (13) (2016). Moreover, the examiner moderately applied

Doe's substance use, properly balancing both Doe's long history

with drug and alcohol consumption and recent voluntary move to a

sober living facility. See 803 Code Mass. Regs. § 1.33(9)

(2016).

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As a counterbalance to the listed aggravating factors, the

examiner applied five risk mitigating factors, taking into

account Doe's supervision by probation, offense-free time in the

community, advanced age, participation in sex offender

treatment, and stability in the community. See 803 Code Mass.

Regs. § 1.33(28), (29), (30), (32), (34) (2016). In

combination, these risk elevating and risk mitigating factors

provide robust and substantial evidentiary support for the

examiner's analysis of Doe's risk of reoffense, and we discern

no abuse of discretion.

We also are unpersuaded by Doe's argument that the examiner

"engaged in a cursory effort based on a tally sheet of

aggravating and mitigating factors" and failed to "provide any

explanation on how he balanced them" to result in a level one

classification. Our review of the hearing examiner's decision

in its totality satisfies us that the examiner properly

considered the facts of Doe's case and weighed them against the

required statutory and regulatory factors. The examiner

identified each factor applied and explained the reason for its

application; in several instances, the examiner also specified

the weight assigned to the factor based on the specifics of

Doe's case. The hearing examiner's "[analytical] path may

reasonably be discerned," 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), from

the decision and it is clear that "the classification is based

on a sound exercise of informed discretion rather than the

mechanical application of a checklist or some other reflex."

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

Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). We discern no

abuse of discretion.

Judgment affirmed.

By the Court (Massing,
Henry & Grant, JJ. 2),

Clerk

Entered: November 13, 2024.

2 The panelists are listed in order of seniority.

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