John Doe, Sex Offender Registry Board No. 460386 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

21-P-948

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 460386

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

John Doe appeals from a Superior Court judgment on the

pleadings affirming his classification by the Sex Offender

Registry Board (SORB) as a level three (high risk) sex offender.

See G. L. c. 6, § 178K (2) (c). Doe claims error in the SORB

hearing examiner's application of the statutory and regulatory

factors1 and argues that there was not clear and convincing

evidence to support a level three classification. We discern no

error and therefore affirm.

Background. On July 20, 2015, Doe was convicted on four

counts of indecent assault and battery for sexually abusing two

victims in June or July of 2011. Victim 1 was Doe's seven year

old daughter, who was the child of Doe and his ex-wife, and

1 See G. L. c. 6, § 178K (1); 803 Code Mass. Regs. § 1.33 (2016).
victim 2 was an eight year old friend of victim 1, and the

daughter of Doe's then-girlfriend. Both victims reported Doe

penetrating their vaginas with his hands and tongue and showing

them pornographic movies on his cell phone.2 Doe also slept in

the same bed as victims 1 and 2 when neither child was wearing

underwear. Doe received concurrent three to four year committed

sentences on his convictions, followed by five years of

probation.

Around the time Doe committed the index offenses, he was

convicted of stalking and sentenced to probation. He later

violated probation and was incarcerated for thirty days. Doe

also "had a disorderly charge" continued without a finding in

1987 and two assault and battery charges filed and dismissed in

1993.

In March 2020, SORB notified Doe of his preliminary level

three classification and Doe requested a hearing. At the

hearing, fifty-one year old Doe testified that his criminal

history was the result of misunderstandings, but acknowledged

that he had violated the conditions of his pretrial release for

his index offenses. Specifically, Doe admitted to breaching the

condition that prohibited him from contacting his victims'

mothers. Even though only one violation had ever officially

2 Doe was acquitted of disseminating obscene matter to a child.

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been reported, Doe testified that he had contacted the victims'

mothers, who were his ex-wife and ex-girlfriend, between six and

eight times while the order was in effect, stating that "my

emotions did get to me," as an explanation for his behavior. As

to his sex offenses, Doe stated that the victims were looking at

pornography on their own and he did not lick the vaginas of

victim 1 or 2, but he did accidentally "poke" each victim's

vagina with his finger after waking up to both girls "grabbing

at" him. Doe later took "responsibility for touching them" by

saying, "I regret what happened. At the time I struggled with

why it would even be conceived sexual, but it is what it is."

Doe testified he understood the reason "why I'm here" is "I

didn't advocate for myself."

In addition to this testimony, the hearing examiner

considered evidence of psychological or psychiatric profiles

regarding Doe's risk to reoffend (factor 35), and victim impact

statements from victim 1 and her mother (factor 38).3 The

examiner then applied risk aggravating factor 3 "with greater

weight," risk elevating factors 7, 10, 11, 13, 18, 19, 21, and

22, and risk mitigating factors 28, 30, and 32, before finding

on balance that the risk mitigating factors "do not ameliorate

3 The hearing examiner acknowledged research articles Doe had
submitted pursuant to factor 37 (other information related to
the nature of sexual behavior) but declined to "consider them
beyond what is already contemplated within [SORB's] [f]actors."

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[Doe]'s high risk of sexual reoffending" or "high risk of

dangerousness." Further finding that Internet dissemination of

Doe's registry information was warranted, the examiner ordered a

level three classification. A Superior Court judge affirmed

"[a]fter careful review of the full administrative record in

light of the standards applicable under G. L. c. 30A, § 14 (7)."

Discussion. "Our inquiry on appeal is similar to the

inquiry conducted by [the] Superior Court judge." Doe, Sex

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

470 Mass. 102, 108 n.3 (2014) (Doe No. 68549). We may set aside

or modify SORB's decision only if we determine "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

Registry Bd., 482 Mass. 643, 649 (2019). We give due weight to

SORB's experience, technical competence, and specialized

knowledge, as well as to the discretionary authority conferred

upon it, mindful that SORB hearing examiners have 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.

A level three classification is appropriate where SORB

determines that the offender's risk of reoffense is high and the

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degree of dangerousness posed to the public is such that a

substantial public safety interest is served by active

dissemination of the offender's registry information. See Doe,

Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry

Bd., 488 Mass. 15, 30 (2021), citing Doe, Sex Offender Registry

Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 754

(2021). Three elements must be established by clear and

convincing evidence: "(1) the offender's risk of reoffense,

(2) the offender's dangerousness as a function of the severity

and extent of harm the offender would present to the public in

the event of reoffense, and (3) the public safety interest

served by public access to the offender's information" (citation

omitted). Id.

Doe argues that the examiner erred in his application of

factor 10 (contact with criminal justice system) because he

"made no findings of fact as to how [Doe’s 1987 disorderly

conduct charge and 1993 assault and battery charges], [which

were] minor and remote in time, go to predicting Doe's future

sexual misconduct." We do not agree that Doe's contacts were

minor and remote in time. In addition to the disorderly conduct

and assault and battery charges, in 2011, Doe was convicted of

stalking and placed on probation, which he later violated. Doe

also violated a no contact order when he was on pretrial

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release. There was no error in the hearing examiner's

consideration of this factor.

Doe also argues that the examiner erred in failing to give

him any credit for risk mitigating factor 33 (home situation and

support systems) and factor 34 (stability in community),

ignoring his lack of disciplinary issues while incarcerated,

completion of sex offender treatment, his job prospects

attributable to his educational and professional background, and

support from his brother. As an initial matter, Doe's lack of

disciplinary issues and completion of sex offender treatment are

not relevant to factors 33 and 34. SORB's regulations only

required the hearing examiner to consider Doe's behavior while

incarcerated when determining whether to apply risk-elevating

factor 12, which states that offenders who exhibit poor behavior

while in custody present an increased degree of dangerousness.4

See 803 Code Mass. Regs. § 1.33(12). The regulations did not

mandate the consideration of Doe's good behavior as a risk

mitigating factor. Similarly, the hearing examiner was only

required to consider Doe's completion of sex offender treatment

with respect to risk mitigating factor 32, which she did, in

fact, apply "with full weight."

4 It is worth noting that the hearing examiner did not apply
factor 12 to Doe.

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 Doe's job prospects and familial support stand on different

footing to the extent these circumstances may be considered

under factors 33 and 34. However, the only evidence of Doe's

job prospects and familial support was Doe's uncorroborated

testimony. The examiner was not required to give it credit.

Here, the examiner found a level three classification

appropriate because Doe committed multiple high-contact sex

offenses against prepubescent children in his care who were and

were not related to him, suggesting a large victim pool and

potential for harm. Doe also had a criminal history that

included willfully violating no contact orders many times. The

examiner gave "full weight" to Doe's participation in sex

offender treatment and considered Doe's age, but, after hearing

from him, found that Doe, "still almost a decade from the

prerequisite [sixty] years of age for child sex offenders, . . .

would be unlikely to volitionally exercise the impulse control

necessary for inhibiting and self-monitoring his inappropriate

sexual urges towards potential [v]ictims in the future including

such [v]ictims as extravulnerable prepubescent girls."

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This finding, based on the examiner's assessment of Doe's

credibility, is entitled to deference, see Doe, Sex Offender

Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass.

131, 138 (2019), and supports a level three classification.

Judgment affirmed.

By the Court (Ditkoff,
Singh & Grant, JJ.5),

Clerk

Entered: March 8, 2023.

5 The panelists are listed in order of seniority.

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