John Doe, Sex Offender Registry Board No. 528345 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-5

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528345

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming his classification by a hearing examiner

(examiner) of the Sex Offender Registry Board (board) as a level

three sex offender in accordance with G. L. c. 6,

§ 178K (2) (c). On appeal, Doe claims that the evidence did not

support the examiner's classification decision or the

requirement that his registry information be subject to Internet

dissemination, and also that the examiner applied

unconstitutional reasoning when weighing Doe's risk factors. We

affirm.

Background. In 2019, Doe was convicted in Florida of

multiple crimes related to forced sexual conduct during several
interactions with a child, then five years old, whom Doe and his

wife babysat. The victim reported that Doe, on multiple

occasions, had forced her to fellate and masturbate him, and

that he had shown her a pornographic video recording. Doe

ultimately pleaded guilty to three charges: attempted sexual

battery on a child less than twelve years of age; attempted lewd

or lascivious offenses committed on or in the presence of a

person less than sixteen years of age (molestation); and lewd or

lascivious offenses committed on or in the presence of a person

less than sixteen years of age (exhibitionism). Doe was

sentenced to a four-year term of incarceration, which he served,

and a fifteen-year term of probation, which he is currently

serving.

Doe now resides in Massachusetts, and in May 2022 the board

recommended that Doe be classified as a level three sex

offender. Doe objected to the recommendation and a de novo

hearing was held on December 8, 2022. Doe submitted evidence at

that hearing showing his enrollment in sex offender treatment

beginning in February 2022, with progress reports rating his

overall performance as "acceptable" and a treatment progress of

six percent while noting his continued denial of the crimes.

Doe also submitted letters of support from several family

members and his employer.

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On January 10, 2023, the examiner issued a final decision

classifying Doe as a level three sex offender. The examiner

noted that the convicted offenses in Florida were like offenses

to sex offenses in Massachusetts.1 He then found that, based on

the victim's accounts, there was "sufficiently reliable and

credible evidence" to consider both the oral rape of the victim

and the convicted charges in making his determination.

Doe then filed a complaint for judicial review. A Superior

Court judge affirmed his classification as a level three sex

offender on October 2, 2023.

Standard of review. A level three classification is

warranted where the examiner "make[s] explicit" findings,

supported by clear and convincing evidence, that the offender

presents "a high risk of reoffense, [and] a high degree of

dangerousness, and a public safety interest is served by active

dissemination of the offender's registry information."2 Doe, Sex

Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490

Mass. 759, 768 (2022). "A reviewing court may set aside or

modify [the board's] classification decision where it determines

1 Doe does not contest these findings.

2 "[A] hearing examiner may consider subsidiary facts that
have been proved by a preponderance of the evidence" (citation
omitted). Doe, Sex Offender Registry Bd. No. 3177 v. Sex
Offender Registry Bd., 486 Mass. 749, 754 (2021).

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that the decision is in excess of [the board'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 Registry Bd., 482 Mass. 643, 649 (2019) (Doe No.

496501), 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.

68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014)

(Doe No. 68549), quoting G. L. c. 30A, § 1 (6).

"The court must 'give due weight to [the board's]

experience, technical competence, and specialized knowledge

. . . as well as to the discretionary authority conferred upon

it." Doe No. 68549, 470 Mass. at 109, quoting G. L. c. 30A,

§ 14 (7). "[O]ur review does not turn on whether, faced with

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

as [the board's examiner], but only whether a contrary

conclusion is not merely a possible but a necessary inference"

(quotation and citation omitted). Doe No. 68549, supra at 110.

Application of factors. Doe challenges the examiner's

application of the board's factors. "A hearing examiner has

discretion . . . to consider which statutory and regulatory

factors are applicable and how much weight to ascribe to each

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

applied high-risk factor 3 (adult offender with child victim)

with "increased weight" because the victim was prepubescent.

The examiner also applied three risk-elevating factors: factor

7 (relationship between the offender and victim), as the victim

was "an acquaintance and extrafamilial in nature"; factor 18

(extravulnerable victim), as the victim "was five years old at

the time of the sexual assaults"; and factor 19 (level of

physical contact), as the assaults included penetration, thereby

indicating "an increased degree of dangerousness." Doe does not

challenge these findings.

Instead, Doe claims that the "many risk-mitigating factors

present in his case" dictate that there was "insufficient

evidence" for his classification. We are unpersuaded. Doe

acknowledges the examiner's assignment of weight to five risk-

mitigating factors3 and presents no facts or arguments which

contradict the examiner's findings. And though Doe claims that

the presence of these factors means that there is not clear and

convincing evidence that he poses a high risk to reoffend, we,

3 The examiner assigned full weight to factor 28
(supervision by probation or parole), factor 33 (home situation
and support systems), and factor 34 (materials submitted by the
sex offender regarding stability in the community), and minimal
weight to factor 30 (advanced age) and factor 32 (sex offender
treatment).

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having given due weight to the examiner's expertise, cannot say

that Doe's "conclusion is not merely a possible but a necessary

inference" (citation omitted). Doe No. 68549, 470 Mass. at 110.

Additionally, Doe argues that the examiner improperly

applied the reasoning of factor 2(a) under a separate factor,

factor 37, and that this reasoning was unconstitutional. "[O]ur

court has long followed 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.'" Doe, Sex

Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457

Mass. 53, 57-58 (2010), quoting East Chop Tennis Club v.

Massachusetts Comm'n Against Discrimination, 364 Mass. 444, 448

(1973). We likewise apply this rule to claims not raised in the

Superior Court proceeding. See Doe, Sex Offender Registry Bd.

No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313,

320-321 (2015). Because Doe did not raise claims to the

Superior Court judge alleging that the examiner applied the

factor 2(a) reasoning under factor 37 or that such reasoning was

per se unconstitutional, those claims are waived.

Internet publication. We are unpersuaded by Doe's argument

that the examiner erred in concluding that Internet publication

is warranted. "Where a sexually violent offender presents a

moderate risk to reoffend and a moderate degree of

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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

No. 496501, 482 Mass. at 655. This conclusion is even more

compelling where, as here, the offender presents "a high risk to

re-offend and dangerousness."

We discern no error in the examiner's conclusion. He noted

that the victim had been a young child whom Doe's wife babysat,

and that it was in the interest of public safety to ensure that

the parents of children acquainted with Doe have access to his

registry information "to prevent extravulnerable, extrafamilial,

prepubescent girls" from becoming future victims.

After careful review of the examiner's decision, we discern

no abuse of discretion.

Judgment affirmed.

By the Court (Neyman,
D'Angelo & Allen, JJ.4),

Clerk

Entered: January 6, 2026.

4 The panelists are listed in order of seniority.

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