John Doe, Sex Offender Registry Board No. 8579 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

22-P-25

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 8579

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Doe appeals from a Superior Court judgment affirming his

classification by the Sex Offender Registry Board (SORB) as a

level three sex offender.1 We also affirm.

1 This is but the most recent appeal in Doe's case. The initial
2010 decision designating him as a level three sex offender was
remanded in 2015 while the appeal was pending for a new hearing
in light of Doe, Sex Offender Registry Bd. No. 380316 v. Sex
Offender Registry Bd., 473 Mass. 297 (2015). Following the 2017
de novo hearing, where Doe was again classified as level three,
the Superior Court remanded the case to allow Doe to hire an
expert. His third de novo hearing and level three
classification in 2019 was again remanded by the Superior Court
to permit additional testimony from Doe's expert. Following the
fourth de novo hearing in 2021, the examiner issued an amended
decision that, even after considering that expert's additional
testimony, still classified Doe as a level three sex offender.
The same hearing examiner conducted the 2017, 2019, and 2021
classification hearings. The appeal of the Superior Court's
decision affirming the hearing examiner's 2021 amended decision
is what is before us.
 Background. In 1976, Doe (then sixteen years old) raped

and killed a nine year old boy in the woods outside the

residential facility where the boy was living. During the

subsequent investigation, Doe was found to have sexually

assaulted three other youths. In 1978, Doe pleaded guilty to

manslaughter for the boy's death, assault with intent to rape,

and indecent assault and battery; he was sentenced to eighteen

to twenty years in State prison. The following year, Doe was

found to be a Sexually Dangerous Person (SDP) and was civilly

committed to the Massachusetts Treatment Center (MTC). He

remained confined at MTC until 2013.

At his 2021 classification hearing, Doe argued that there

was insufficient evidence that he raped the boy. Although the

hearing examiner acknowledged that Doe was not convicted of

rape, he cited both evidence from an autopsy report documenting

trauma to the boy's body that was consistent with anal

penetration, as well as Doe's own testimony that he had oral sex

with the boy,2 to find that penetration occurred. The hearing

examiner therefore applied "full weight" for physical contact

under factor 19. In addition to this risk-elevating factor, the

2 At the 2010 classification hearing, Doe testified that the
boy's fatal injury occurred when he "forcibly grabbed him and
threw him down on [a] rock" in order to anally penetrate him.

2
hearing examiner applied ten other risk-elevating factors,3 two

high-risk factors,4 and considered two additional factors.5 The

hearing examiner did not base his application of these factors

solely on Doe's offenses from the 1970s. Rather, he also

scrutinized Doe's conduct in his thirty-four years at MTC,

including disciplinary reports for stalking other residents, a

2003 phallometric assessment for paraphilia, his subsequent

refusal to participate in other phallometric assessments, and

his sporadic participation in sex offender treatment, as well as

Doe's additional criminal charges in the eight years following

his release from MTC. Notably, when Doe was arrested on two

occasions in 2016 and 2018, he was found to be in possession of

various law enforcement paraphernalia (marked with Boston Police

Department; State Police; Drug Enforcement Administration; and

3 Factor 7 (stranger relationships between offender and victims,
"increased weight"); factor 8 (weapons/violence, "applied");
factor 9 (alcohol/substance abuse, "applied"); factor 10
(contact with criminal justice system, "applied"); factor 13
(noncompliance with community supervision, "increased weight");
factor 16 (public place, "applied"); factor 17 (male offender
against male victim, "applied"); factor 22 (multiple victims,
"applied"); factor 24 (unsatisfactory participation in sex
offender therapy, "applied"); and factor 27 (juvenile engaging
in sexual activity with nonpeer-aged victims, "applied").

4 Factor 1 (mental abnormality, "minimal weight") and factor 5
(adjudicated SDP, "applied").

5 Factors 35 (psychological or psychiatric profiles regarding
risk to reoffend, "considered") and factor 37 (other useful
information, scholarly materials, "considered").

3
Bureau of Alcohol, Tobacco, Firearms and Explosives logos),

including law enforcement badges and uniforms, blue lights,

handcuffs, and a spring-loaded knife. As the arresting officer

in 2018 observed, these items "could be used to impersonate a

police officer."

The hearing examiner also considered the testimony of the

experts that testified at the 2021 hearing on Doe's behalf and,

to some extent, credited it. For example, the hearing examiner

assigned Doe's well-documented diagnoses of pedophilia only

"minimal" weight because Doe's experts pointed out the

"datedness of these reports." Overall, however, the hearing

examiner concluded that Doe's experts "tended to paint a rosier

picture" than the facts warranted. For instance, the hearing

examiner understandably found that one of these experts was

unduly dismissive in characterizing the highly disturbing

evidence regarding Doe's possession of handcuffs and other law

enforcement paraphernalia as "not a huge deal."

The hearing examiner ultimately concluded that, based on

the governing offense and applicable risk factors, Doe presented

a high risk of reoffense. He further found Doe to present a

high degree of dangerousness, that Internet publication was

appropriate given the violent nature of his prior offenses

involving young stranger victims, and therefore ordered that Doe

register as a level three sex offender. A Superior Court judge

4
affirmed Doe's level three classification and this appeal

followed.

Discussion. "We review a judge's consideration of an

agency decision de novo," Doe, Sex Offender Registry Bd. No.

523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89

(2019), "giv[ing] due weight to the experience, technical

competence, and specialized knowledge of the agency, as well as

to the discretionary authority conferred upon it." Id. at 88,

quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex

Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015) (Doe No.

356011).

As an initial matter, we agree with the hearing examiner

that there was sufficient evidence that Doe raped the boy. We

find the detailed description of the horrendous trauma to the

boy's body in the autopsy report to be reliable hearsay on which

the hearing examiner could rely in his analysis of the factors.

See Commonwealth v. Reavis, 465 Mass. 875, 883 (2013) ("autopsy

report[s] . . . are documents upon which experts are accustomed

to rely"); Doe No. 356011, 88 Mass. App. Ct. at 77 (multilevel

hearsay admissible at classification hearing if accompanied by

appropriate "indicia of reliability"). In any event, Doe's own

testimony that he engaged in oral sex with the boy and attempted

to sodomize him served as an independent basis to establish

rape.

5
 Turning to Doe's other challenges, we discern no reversible

error in the hearing examiner's application of the relevant

factors.6 There is no basis to disturb the hearing examiner's

discounting of the testimony of one of Doe's experts under

factor 35, especially where this expert failed to consider both

the disturbing reports of Doe's behavior while confined at MTC

and his alarming post-release arrests. See Doe, Sex Offender

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

131, 137 (2019) ("Doe is not entitled to a guarantee that SORB

will reach the same conclusion as his expert; he is entitled

only to careful consideration of his expert's testimony"). With

respect to factor 1, as noted, the hearing examiner properly

credited Doe's arguments as to the datedness of the paraphilia

diagnosis and gave this evidence only "minimal weight."

Application of factor 16 was appropriate where the governing

offense occurred in the woods near the boy's residence. As to

factor 9, where the best evidence of Doe's purported sobriety

was an Alcoholics Anonymous medallion received when he was still

confined at MTC, any error in applying this factor did not

affect Doe's classification level. See Doe, Sex Offender

6 For the same reasons, we find that a level three classification
is supported by substantial evidence. See Doe, Sex Offender
Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490 Mass.
759, 762 n.4 (2022) ("Substantial evidence is 'such evidence as
a reasonable mind might accept as adequate to support a
conclusion'" [citation omitted]).

6
Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass.

App. Ct. 797, 804 (2022) (Doe No. 22188). Contrary to the

circumstances in Doe No. 22188, where we highlighted the

petitioner's "considerable mitigation" that began while

incarcerated and continued in his years out in the community,

there is simply insufficient evidence of the progress Doe has

made since his offense. See id. at 805. Although Doe has been

living in the community since his release from MTC in 2013, with

what the hearing examiner credited as support from loved ones

and neighbors, he has also been charged with several new

offenses during that time in addition to those arrests noted

above, including an assault and battery against one of these

same supporters.7

Finally, with respect to Doe's challenge to Internet

dissemination of his registry information, the hearing

examiner's finding that this was warranted is well-supported in

light of the nature of his sex offenses. See Doe, Sex Offender

Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.

643, 655 (2019) (noting that "[w]here a sexually violent

offender presents [even] a moderate risk to reoffend and a

moderate degree of dangerousness, Internet publication will

7 For this reason, we also find that the examiner properly
weighed the letters of support with the lack of detail contained
therein as to what specific support was provided to give factor
33 "moderate" weight.

7
almost invariably serve a public safety interest by notifying

potential victims of the risks presented by the offender in

their geographic area").

Judgment affirmed.

By the Court (Milkey, Singh &
Brennan, JJ.8),

Clerk

Entered: March 29, 2023.

8 The panelists are listed in order of seniority.

8