John Doe, Sex Offender Registry Board No. 527440 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-628

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527440

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment that affirmed his final classification by the Sex

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

Because we discern no error in the SORB hearing examiner's

weighing of the relevant factors or in her conclusion that

Internet dissemination of Doe's sex offender registry

information served a public safety interest, we affirm.

1. Discussion. a. Standard of review. "A reviewing

court may set aside or modify SORB's classification decision

where it determines 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)
(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. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632

(2011), quoting G. L. c. 30A, § 1 (6). "We give due weight to

the experience, technical competence, and specialized knowledge

of the agency, as well as to the discretionary authority

conferred upon it" (quotation and citation omitted). Doe, Sex

Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,

95 Mass. App. Ct. 85, 88 (2019).

b. Weight of factors 7 and 19. Doe argues that the

hearing examiner abused her discretion in weighing factors 7

(relationship between offender and victim) and 19 (level of

physical contact). To support a level two sex offender

classification, SORB must prove "by clear and convincing

evidence, that '(1) the offender's risk of reoffense is

moderate; (2) the offender's dangerousness is moderate; and (3)

a public safety interest is served by Internet publication of

the offender's registry information.'" Doe, Sex Offender

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

131, 138 (2019) (Doe No. 23656), quoting Doe No. 496501, 482

Mass. at 656. Whether to apply a given statutory or regulatory

factor and, if so, the weight to be accorded to that factor are

questions within the hearing examiner's discretion. See Doe,

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

Bd., 470 Mass. 102, 109-110 (2014).

Here, the hearing examiner applied factor 7 (relationship

between offender and victim) with "greater weight." In support

of this determination, the examiner found that Doe was in a

"position of trust" with the victim at the time of the sexual

assault because Doe had been the victim's cello instructor,

music director, and "mentor" the summer before committing the

index offenses against the child victim (child), and he had

continued to socialize with the child and the child's family in

the interim. The examiner also noted that the risk of reoffense

and degree of dangerousness posed by Doe were elevated because

the child was an "extrafamilial victim." Accordingly, the

examiner's application of "greater weight" to this risk-

elevating factor was supported by the evidence. We are not

persuaded that in the circumstances, Doe's trust relationship

with the child terminated with the conclusion of Doe's role as

the child's music instructor and theater supervisor, or that the

hearing examiner misapplied factor 7.

As to factor 19, the hearing examiner found that it applied

because Doe penetrated the child's vagina digitally and with his

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tongue.1 Accordingly, the hearing examiner applied this factor

"regarding dangerousness," and implicitly limited the weight she

gave to it based on the lack of penile penetration involved in

Doe's sexual assault on the child.2 We are not persuaded by

Doe's contention that in her assessment of the evidence relevant

to this factor, the hearing examiner failed to consider a study

that Doe submitted. First, the examiner's findings explicitly

state that she did consider the article. Second, to the extent

that Doe challenges the weight ascribed by the hearing examiner

to that article,3 we discern no abuse of discretion. This is

because the article focused on sex offenders' risk of

recidivism, while factor 19 explicitly goes to an offender's

dangerousness -- even if the examiner gave the article no

weight, her decision was not an abuse of discretion. See Doe

No. 23656, 483 Mass. at 135 n.4; 803 Code Mass. Regs.

§ 1.33(19)(a) (2016).

1 The hearing examiner also found that Doe licked the child's
breasts, but did not include that finding in the discussion of
factor 19.
2 When describing the governing sex offense, the hearing officer

found that the child refused Doe's request that the child put
Doe's penis in the child's mouth.
3 The hearing examiner noted that as to the articles Doe

submitted, "I give those articles appropriate weight in
consideration of the superintendence of the Board's regulations
. . . and accordingly, only to the extent the findings are
consistent with those regulations."

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 Doe's challenge to the level two classification is not

persuasive where the hearing examiner made an evenhanded

assessment of the evidence. On the one hand, the examiner found

that one high-risk factor applied where Doe offended as an adult

against a child victim (factor 3), the risk of reoffense and the

level of dangerousness were elevated by the trust relationship

between Doe and his extrafamilial victim (factor 7), and Doe's

physical contact with the child increased Doe's dangerousness

(factor 19). Against this, the hearing examiner considered in

mitigation Doe's period of postincarceration probation

supervision (factor 28), the possibility that Doe might

establish a stable and supportive home situation if he were

permitted to leave Massachusetts after his release from prison

(factors 33 and 34), and (to the extent it was consistent with

the Board's regulations) research bearing on recidivism and

dangerousness among sex offenders (factor 37). The hearing

examiner's findings were supported by the evidence and reflected

the examiner's qualitative assessment of the relevant regulatory

factors; the "examiner did not merely list these factors," but

instead "provided a detailed account of the evidence she

considered and an explanation of the relative weight that she

assigned each factor." Doe No. 23656, 483 Mass. at 143.

Considered together, the statutory and regulatory risk factors

established that Doe presented a moderate risk of reoffense and

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a moderate degree of dangerousness. See Doe, Sex Offender

Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass.

App. Ct. 639, 651 (2012) (no error where sex offender's

classification based on "a sound exercise of informed discretion

rather than the mechanical application of a checklist"). See

also Doe No. 23656, supra at 138-139.

c. Internet dissemination. After applying the statutory

and regulatory factors to the facts of Doe's case, the hearing

examiner properly moved on to the third and final step of the

classification process: determination of the need for Internet

publication of Doe's sex offender registry information. See Doe

No. 496501, 482 Mass. at 654, citing 803 Code Mass. Regs.

§ 1.20(2) (2016). In making her assessment, the examiner

properly considered "whether, in light of the particular risks

posed by the particular offender, Internet access to that

offender's information might realistically serve to protect the

public against the risk of the offender's sexual reoffense."

Doe No. 496501, supra, at 655. As reflected in her written

decision, the examiner found that Doe's index offense was

committed against a child, involved penetration of the child's

vagina with Doe's fingers and tongue, and was effected by Doe's

exploitation of a trust relationship with the victim. She also

took into account Doe's plans to leave Massachusetts if

permitted to do so and the five-year term of his probation (and,

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inferentially, its attendant conditions) after his release from

prison. Against that backdrop, the hearing examiner determined

that Internet publication of Doe's sex offender information

would serve the interest of public safety by alerting parents to

the need to protect their children from forming the "trusting

relationship[s]" with Doe that he exploited in committing the

index offenses. We discern no error in this conclusion and

affirm Doe's classification as a level two sex offender.

Judgment affirmed.

By the Court (Desmond, Hand &
Hodgens, JJ.4),

Clerk

Entered: October 20, 2023.

4 The panelists are listed in order of seniority.

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