John Doe, Sex Offender Registry Board No. 253929 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-768

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 253929

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

John Doe appeals from a Superior Court judgment affirming

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

a level three sex offender. Doe contends that the hearing

examiner improperly applied factor 31 (physical condition), that

the evidence was insufficient to support the level three

classification, and that the hearing examiner abused his

discretion in ordering Internet publication of Doe's registry

information. We affirm.

Background. We summarize the relevant facts as set forth

in the hearing examiner's decision, supplemented by undisputed

facts from the record. See Doe, Sex Offender Registry Bd. No.

10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011)

(Doe No. 10800).
 In June 2009 a jury in the Superior Court found Doe guilty

of six counts of rape of a child under sixteen with force, one

count of rape, seven counts of indecent assault and battery on a

child under fourteen, one count of posing or exhibiting a child

in a state of nudity, and one count of disseminating to a minor

material harmful to a minor. The charges stemmed from Doe's

repeated sexual abuse of the victim, a teenage boy living in

Doe's apartment, between 2003 and 2007. Doe committed numerous

assaults on the victim, raping him, forcing him to perform and

receive oral sex, and masturbating his penis. During the

assaults Doe showed the victim pornographic materials and took

over twenty explicit photographs of him. Doe used violence

against the victim to ensure compliance, "hit[ting] him and

throw[ing] things at him" and threatening to kill him if met

with resistance. The abuse only came to an end when the victim

moved out after he was involved in a fist fight with Doe.

Doe was sentenced to eight to twelve years in prison

followed by ten years of probation. Prior to Doe's release in

2020, SORB notified him of his obligation to register as a level

three sex offender. Doe challenged the recommendation and

received a de novo hearing, at the conclusion of which a hearing

examiner finally classified Doe as a level three offender. Doe

sought judicial review, claiming that his right to due process

was violated by his hearing counsel's failure to retain an

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expert to opine on his medical condition -- in particular, his

diagnoses of alpha-1 antitrypsin deficiency 1 and other

respiratory conditions. A Superior Court judge agreed that Doe

was entitled to a new hearing and remanded the case so that Doe

could request expert funds.

On remand Doe moved for expert funds, which was allowed,

and retained Dr. Craig Hersh, a specialist in pulmonary

diseases. Dr. Hersh authored a report after reviewing Doe's

medical records and testified at the classification hearing. At

the conclusion of the hearing, a hearing examiner again

classified Doe as a level three sex offender. This time on

judicial review, a Superior Court judge denied Doe's motion for

judgment on the pleadings, affirming the level three

classification.

Discussion. A reviewing court can only "set aside or

modify [SORB's] classification decision where it determines that

the decision is in excess of [SORB's] statutory authority or

jurisdiction, is based on an error of law, is not supported by

substantial evidence, or is an arbitrary and capricious abuse of

discretion." Doe, Sex Offender Registry Bd. No. 3177 v. Sex

Offender Registry Bd., 486 Mass. 749, 754 (2021) (Doe No. 3177).

1 Alpha-1 antitrypsin deficiency is a genetic condition that can
cause serious lung and liver disease. Doe has also been
diagnosed with chronic obstructive pulmonary disorder and
emphysema.

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In making this determination, we "give due weight to the

experience, technical competence, and specialized knowledge of

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

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

incorrect." Doe No. 3177, supra at 757, quoting Boston Police

Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019).

1. Factor 31. Doe first argues that the hearing examiner

misapplied factor 31. This factor provides that the hearing

examiner "shall give consideration to the offender who has a

physical condition that is documented by a treating medical

provider," but "[a]t minimum, the medical documentation must

. . . [i]dentify the physical condition [and] . . . [p]rovide a

detailed description of the offender's limitations connected to

the physical condition." 803 Code Mass. Regs. § 1.33(31)(a)

(2016). Doe had the burden of providing SORB with the medical

documentation required. See id.

The hearing examiner acted within his discretion in giving

factor 31 minimal weight. As the hearing examiner found, Dr.

Hersh never spoke to or examined Doe, leaving "many important

questions unanswered or with limited information." For example,

Dr. Hersh asserted that Doe was "profoundly limited by shortness

of breath" but admitted that the extent of Doe's "symptoms and

limitations in his daily life is not well documented." Dr.

Hersh also admitted that he did not know whether Doe's physical

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condition prevented him from being sexually active and that it

was "not entirely clear" what Doe's "exact response" was to the

use of inhalers or the pulmonary rehabilitation program.

Because Dr. Hersh's opinion was inconclusive as to Doe's

"limitations connected to [his] physical condition," 803 Code

Mass. Regs. § 1.33(31)(a), the hearing examiner did not err in

giving this factor only limited weight. See Smith v. Sex

Offender Registry Bd., 65 Mass. App. Ct. 803, 811-813 (2006)

(hearing examiner has discretion to consider which regulatory

factors apply and how much weight to give each factor). 2

2. Level three classification. Doe next claims that the

evidence was insufficient to support his classification as a

level three offender. A level three classification is

appropriate when the hearing examiner determines, by clear and

convincing evidence, that "the risk of reoffense is high and the

degree of dangerousness posed to the public is such that a

substantial public safety interest is served by active

dissemination." Doe No. 3177, 486 Mass. at 754, quoting G. L.

c. 6, § 178K (2) (c). "We review the examiner's finding that

clear and convincing evidence supported the classification to

2 To the extent the hearing examiner found that Doe had the same
severity of symptoms at the time he offended, we agree with Doe
that this was error. Nonetheless, the hearing examiner was
still within his discretion in giving factor 31 limited weight,
for the reasons we have stated.

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determine whether it was supported by substantial evidence."

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

Registry Bd., 95 Mass. App. Ct. 85, 94 (2019). Substantial

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

adequate to support a conclusion." 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" (quotations omitted). Doe, Sex Offender

Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.

102, 110 (2014).

We are satisfied that there was substantial evidence to

support Doe's level three classification. The hearing examiner

carefully considered various aggravating and mitigating factors

in classifying Doe. He found that Doe's repeated assaults of an

extrafamilial fourteen year old boy involved both threats of

violence and a high degree of physical contact, which indicated

a high risk of reoffense and degree of dangerousness. In

addition, the hearing examiner noted that Doe had prior contact

with the criminal justice system, including for nonsexual

violent offenses, and incurred multiple disciplinary reports

while incarcerated. The hearing examiner also considered

factors in Doe's favor, such as his support system, age, and

participation in sex offender treatment and that he would be

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subject to ten years of probation after release. Finally, as

discussed above, the hearing examiner properly took Doe's

physical condition into account. Taking the evidence as a

whole, the hearing examiner determined that Doe's "risk to re-

offend . . . and [degree] of dangerousness" was "high" such that

a level three classification was appropriate. The record amply

supports the hearing examiner's conclusion.

To the extent Doe asserts that the hearing examiner could

not classify him as a level three offender because SORB's

counsel argued in closing for a level two classification, we

disagree. The hearing examiner conducts an independent review

of the evidence, see Doe, Sex Offender Registry Bd. No. 3844 v.

Sex Offender Registry Bd., 447 Mass. 768, 772 (2006), and

closing argument is not evidence. We are likewise unpersuaded

by Doe's contention that SORB failed to meet its burden of proof

because it did not present an expert to counter Dr. Hersh's

testimony. There is no requirement that the hearing examiner

adopt the "opinion of a witness testifying on behalf of a sex

offender . . . even where the board does not present any

contrary expert testimony." Doe No. 10800, 459 Mass. at 637.

The hearing examiner's decision demonstrates that he considered

Dr. Hersh's opinion but ultimately ascribed it minimal weight

because of its inconclusive nature, which was within his

discretion to do. See Doe, Sex Offender Registry Bd. No. 23656

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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").

3. Internet dissemination. Prior to ordering Internet

dissemination, a hearing examiner must make a separate finding

that public access to the offender's registry information is in

the interest of public safety. See Doe, Sex Offender Registry

Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-

657 (2019) (Doe No. 496501). Here, Doe contends that the

hearing examiner did not make adequate findings on the necessity

of dissemination and failed to consider that Doe would not have

access to potential victims given his current health condition,

living arrangements, and global positioning system monitor.

Contrary to Doe's assertions, the hearing examiner

explained how active dissemination of Doe's registry information

served public safety. The hearing examiner considered that Doe

"demonstrated that he can repeatedly sexually assault a

[fourteen]-year-old, extrafamilial boy with a high level of

physical contact over a period of years" and use threats of

"violence and death" to guarantee compliance. Finding that if

Doe were to "re-offend it would likely be against a young male

child that he is acquainted with that he brings into his home,"

the hearing examiner concluded that dissemination was

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appropriate to allow the "parents of children that are known to"

Doe to access his information "to take steps to protect their

children." Substantial evidence supports this conclusion. Cf.

Doe No. 496501, 482 Mass. at 655 (Internet dissemination of a

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").

Judgment affirmed.

By the Court (Shin, Brennan &
Hodgens, JJ. 3),

Clerk

Entered: December 14, 2023.

3 The panelists are listed in order of seniority.

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