John Doe, Sex Offender Registry Board No. 526680 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-1480

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526680

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 classification by the Sex Offender

Registry Board (SORB) as a level two sex offender.1 On appeal,

Doe claims that the decision of the hearing examiner (examiner)

was arbitrary and capricious, Doe's risk to reoffend is low and

compels a level one classification, and the examiner erred in

1The Superior Court judge affirmed SORB's classification in
a memorandum and order. Because the memorandum and order
resolved all outstanding issues in the case and both parties
appear to have treated it as a final judgment, we also treat it
as a final judgment. See GTE Prods. Corp. v. Stewart, 421 Mass.
22, 24 n.3 (1995); Flood v. Midland Nat'l Life Ins. Co., 419
Mass. 176, 177 n.1 (1994).
requiring Internet dissemination of Doe's personal information.

We affirm.2

Background. We summarize the facts as found by the hearing

examiner, "supplemented by undisputed facts from the record,"

and reserve certain facts for later discussion. Doe, Sex

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

459 Mass. 603, 606 (2011) (Doe No. 10800).

Doe's governing offense stemmed from his rape of his forty-

four year old wife (victim). Specifically, on June 1, 2015, the

victim reported to police that Doe, "her estranged husband," who

was then forty years old, showed up at her apartment to discuss

their pending divorce. At some point Doe "became angry." The

victim noted that Doe had been drinking for "most of the day,"

and attempted to avoid further discussion with him by going to

the bathroom, but Doe followed her there. Doe told the victim

multiple times that he "wanted to make love to her." After the

victim refused his overtures, he told her that "if she didn't

make love with him then he was just going to take her." The

victim attempted to "get away from [Doe]," but he followed her

into her bedroom. Doe ignored her pleas to leave, "started to

yell and grabbed her by her arms and threw her on the bed." Doe

2 Per the joint request of the parties, this case was
submitted on briefs and without oral argument. See Mass.
R. A. P. 22 (f), as appearing in 481 Mass. 1651 (2019).

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began to remove his clothing, pushed her back onto the bed,

straddled her, "ripped her shirt off and pulled down her pants

and panties," and, despite the victim's attempt to fight him

off, "grabbed her legs" and "stuck his fingers in her vagina."

The victim "cried and yelled at him to stop." Doe initially

complied, but then "stuck his fingers back into her vagina a

second time."

The following morning, the victim went to the home of a

friend and disclosed the events from the prior evening. Police

officers noted that the victim had "some slight bruising to her

upper right shoulder, and a vertical scratch mark to her

stomach." In addition, the victim's fourteen year old daughter,

who was at the apartment during the sexual assault, reported

that she "heard her mother telling [Doe] to get away and to get

off of her."

On November 9, 2018, a jury found Doe guilty of one count

of rape and one count of assault and battery on a family or

household member. He was sentenced to three to five years of

imprisonment followed by three years of probation. He was still

incarcerated at the time of the classification hearing in the

present case.

On July 7, 2020, SORB notified Doe of his duty to register

as a level three sex offender. Doe challenged the

classification, and on January 10, 2022, a de novo hearing was

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held pursuant to G. L. c. 6, § 178L. On February 10, 2022, the

examiner issued a decision in which she found, by clear and

convincing evidence, that Doe presented a moderate risk of

reoffense and dangerousness such that a public safety interest

was served by Internet publication of his registry information,

and classified Doe as a level two sex offender. Doe sought

judicial review of the decision pursuant to G. L. c. 30A, § 14.

On November 10, 2023, following a hearing on Doe's motion for

judgment on the pleadings, a Superior Court judge denied the

motion and affirmed the level two classification. This appeal

followed.

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

set aside a decision of SORB 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

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) (Doe No.

10216), quoting G. L. c. 30A, § 14 (7). Doe therefore "bears a

heavy burden of establishing that [SORB]'s decision was

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incorrect" (citation omitted). Doe, Sex Offender Registry Bd.

No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 757

(2021).

2. Classification determination. a. Application of

factor 16. The examiner found that the victim's fourteen year

old daughter was in the home when Doe sexually assaulted the

victim, and that the daughter "did, in fact, hear the [v]ictim

pleading with [Doe] to get off of her." The examiner determined

that in view of these facts, risk elevating factor 16 (public

place) applied. Doe argues that the examiner erred in applying

factor 16 because the rape occurred in the victim's private

bedroom, Doe went to the victim's apartment late at night, and

Doe did not assault the victim until hours later when "it was

reasonable that most of the people residing in the apartment

were asleep." We disagree.

Factor 16 provides as follows:

"The commission of a sex offense or engaging in sexual
misconduct in a place where detection is likely reflects
the offender's lack of impulse control. The Board may
apply less weight to factor 16 if there is evidence that
the offender made a clear and concerted effort to conceal
his offending behavior from others. For purposes of factor
16, a 'public place' includes any area maintained for or
used by the public and any place that is open to the
scrutiny of others or where there is no expectation of
privacy."

803 Code Mass. Regs. § 1.33(16)(a) (2016). Here, the victim's

daughter was in the apartment when and where the rape and

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assault occurred, and heard her mother telling the plaintiff to

"get off of her" as the crime was taking place. Doe, who had

been drinking most of the day, went to the apartment uninvited,

became angry, followed the victim into her bedroom despite her

repeated attempts to be left alone, straddled and assaulted her,

and, in spite of the victim's yelling and pleading, committed a

violent rape and physical assault in the victim's bedroom.

Under these particular circumstances, where the daughter could

hear, and indeed did hear, the crime in progress, it is clear

that Doe did not make a "clear and concerted effort to conceal

his offending behavior from others," and it was reasonable for

the examiner to find that the offense was committed in a place

"open to the scrutiny of others." 803 Code Mass. Regs.

§ 1.33(16)(a) (2016). See Doe 10216, 447 Mass. at 789

(rejecting argument that definition of "public place" be limited

to offenses committed in "truly public places, like parks or

schools"). Accordingly, on the record before us, we cannot

conclude that the application of factor 16 rendered the level

two classification arbitrary and capricious.

b. Failure to prove level two classification. Doe

contends that SORB failed to meet its burden to prove by clear

and convincing evidence that he poses a moderate risk of

reoffending. The claim is unavailing.

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When reviewing a decision by SORB, we "must determine

whether the decision is supported by substantial evidence"

(citation omitted), Doe No. 10800, 459 Mass. at 632, which is

defined as "such evidence as a reasonable mind might accept as

adequate to support a conclusion." Id., quoting G. L. c. 30A,

§ 1 (6). Our review "does not turn on whether, faced with the

same set of facts, we would have drawn the same conclusion . . .

but only whether a contrary conclusion is not merely a possible

but a necessary inference" (quotation and citation omitted).

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

Registry Bd., 470 Mass. 102, 110 (2014) (Doe No. 68549). See

Doe No. 10800, supra at 633 ("It is the province of the board,

not this court, to weigh the credibility of the witnesses and to

resolve any factual disputes"). Furthermore, the "hearing

examiner has discretion . . . to consider which statutory and

regulatory factors are applicable and how much weight to ascribe

to each factor." Doe No. 68549, supra at 109-110.

In the present case, the record reveals a comprehensive and

reasonable analysis and weighing of the various SORB factors.

The examiner applied four risk elevating factors to her

analysis, all of which were supported by the evidence.3 Further,

3 Factor 8, weapon, violence or infliction of bodily injury;
factor 9, alcohol and substance abuse (here, applied with
minimal weight); factor 16, public place; and factor 19, level
of physical contact.

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the examiner chose to apply some weight to various mitigating

factors.4 See Doe No. 68549, 470 Mass. at 109-110. The

examiner's decision was supported by substantial evidence, and

we discern no abuse of discretion.

c. Internet dissemination and public safety. Doe further

maintains that requiring Internet dissemination of his personal

information was not supported by clear and convincing evidence

that it would serve a public safety interest. The argument is

unpersuasive. The examiner explained how active dissemination

of Doe's registry information served public safety. Based on

the violent nature of the offense and Doe's relationship with

the victim, his wife at the time, the examiner considered that

if Doe were to reoffend, there is a likelihood that such an

offense would involve a woman who "may become known to [Doe],"

and with whom "he may become involved in a relationship." The

examiner reasoned that in the interest of public safety, such

women should have access to his registry information "to take

steps to protect themselves." The record supports this

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

Sex Offender Registry Bd., 482 Mass. 643, 655 (2019) (Internet

4 Factor 28, supervision by probation or parole; factor 30,
advanced age (here, considered with moderate weight); factor 33,
home situation and support systems; and factor 34, materials
submitted by the sex offender regarding stability in the
community (here, considered with minimal weight).

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dissemination of level two offender's information "will almost

invariably serve a public safety interest by notifying potential

victims of the risks presented by the offender in their

geographic area").

For the reasons detailed in the examiner's decision and the

reasons stated herein, we cannot conclude that the examiner's

decision was arbitrary, capricious, or an abuse of discretion.

Judgment affirmed.

By the Court (Massing,
Neyman & Wood, JJ.5),

Clerk

Entered: June 25, 2025.

5 The panelists are listed in order of seniority.

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