John Doe, Sex Offender Registry Board No. 383730 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-694

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 383730

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming the Sex Offender Registry Board's (SORB)

decision to classify him as a level two sex offender in

accordance with G. L. c. 6, § 178K (2) (b). On appeal, Doe

maintains that (1) the hearing examiner erroneously applied

SORB's statutory and regulatory factors; and (2) SORB failed to

prove, by clear and convincing evidence, that Internet

dissemination of Doe's personal information would serve a public

safety interest. We affirm.

Background. We summarize the facts as set forth by the

examiner in his decision, supplemented by materials included in

the administrative record, and reserve certain facts for later

discussion. The victim reported that Doe sexually assaulted her

numerous times from when she was six years old until she was
fifteen. Doe is not the victim's biological father, but he was

married to the victim's mother, his name is on the victim's

birth certificate, he has known the victim since she was five

years old, and the victim called him "Dad." Doe was in his late

thirties when the assaults began.

Starting when the victim was six years old, Doe touched the

victim while she was sleeping (or while he expected she was

sleeping). Over the years, his touching escalated from touching

her breasts and vaginal area over her clothes, to touching her

under her clothes but not penetrating her vagina, to digitally

penetrating her vagina. The victim reported that this occurred

two to three times per week. For at least part of this period,

this occurred while the victim's younger brother slept in the

same room. When the victim was thirteen years old, Doe touched

the victim's vagina over her clothes while she had a friend

sleeping over in the same room, and the friend later told the

victim that she had a dream that Doe was sexually abusing the

victim. The victim's mother reported to the police, in an

affidavit, and to her pastor that Doe also frequently touched

her in her sleep and without her consent.

The victim became sleep deprived because she was afraid of

Doe assaulting her in her sleep and would try to stay awake.

She was prescribed sleep medication, and Doe would make sure

that she took the medication every night. The victim became

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very anxious about people touching her, resulting in the

victim's entering a psychiatric unit when she was fifteen years

old.

Doe was found guilty of two counts of aggravated rape and

abuse of a child, pursuant to G. L. c. 265, § 23A. SORB

preliminarily classified Doe as a level two sex offender, and

after an administrative hearing on September 28, 2021, the

examiner issued a final decision classifying Doe as a level two

sex offender. Doe then filed a complaint for judicial review in

the Superior Court. After a hearing, the judge denied Doe's

motion for judgment on the pleadings and entered a judgment

affirming SORB's decision, from which Doe now appeals.

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) (Doe No.

10800), quoting G. L. c. 30A, § 1 (6). "We give due weight to

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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) (Doe No. 523391).

Discussion. 1. Statutory and regulatory factors. a.

Risk-elevating factors. Doe claims for the first time on appeal

that the examiner erred by considering Doe's sexual assault of

his wife and, as a result, applying two risk-elevating factors:

factor 21 (diverse victim type)1 and factor 22 (number of

victims).2 While Doe raised general concerns about how the

examiner weighed the regulatory factors in the Superior Court,

Doe did not make any argument or objection regarding factor 21

or factor 22, and therefore this argument is waived. See Smith

v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006).

Even if this issue had been properly preserved, Doe's claim

would fail. "The range of evidence that may be considered by

hearing examiners is not limited by the same rules of evidence

1 Factor 21 states: "Offenders whose acts of sexual misconduct
traverse victim types, such as multiple ages . . . or
relationship categories, present a greater risk of reoffense and
danger to public safety because they have a broader victim
pool." 803 Code Mass. Regs. § 1.33(21)(a) (2016).
2 Factor 22 states: "Offenders who have committed acts of sexual
misconduct against two or more victims present an increased risk
of reoffense and degree of dangerousness." 803 Code Mass. Regs.
§ 1.33(22)(a) (2016).

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that apply in court proceedings; hearing examiners may exercise

their discretion to admit and give probative value to evidence

'if it is the kind of evidence on which reasonable persons are

accustomed to rely in the conduct of serious affairs.'" Doe,

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

Bd., 488 Mass. 15, 26 (2021) (Doe No. 339940), quoting G. L.

c. 30A, § 11 (2). "[H]earsay evidence bearing indicia of

reliability constitutes admissible and substantial evidence"

(citation omitted). Doe No. 339940, supra. See Doe No. 523391,

95 Mass. App. Ct. at 89-90. To determine reliability, the

examiner must consider the circumstances in which the statements

were made, including "the general plausibility and consistency

of the . . . witness's story, the circumstances under which it

is related, the degree of detail, the motives of the narrator,

the presence or absence of corroboration and the like"

(quotation and citation omitted). Id. at 89. See Doe, Sex

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

81 Mass. App. Ct. 639, 649 (2012); Doe, Sex Offender Registry

Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct.

309, 313 (2007). On appeal, we consider whether "it was

reasonable for the examiner to admit and credit the facts

described in the hearsay evidence" (quotation and citation

omitted). Doe No. 523391, supra at 89.

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 Here, the examiner found the statements of the victim's

mother sufficiently credible and reliable under the

circumstances, which included consistency across her statement

to police, her affidavit, and statements to her pastor. See Doe

No. 523391, 95 Mass. App. Ct. at 90. It was not unreasonable

for the examiner to make this finding. See id.

Doe also maintains, as he did in the Superior Court, that

the examiner erroneously applied factor 16 (public place) based

on the sleepover assault.3 Doe claims that because he committed

the assault at night, at home, and while everyone in the room

was presumably sleeping, he made an effort to conceal his

conduct. Factor 16 applies where an offender has engaged in

sexual misconduct while in the presence of a sleeping person.

See Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender

Registry Bd., 98 Mass. App. Ct. 219, 225 (2020) (no expectation

of privacy where Doe assaulted victim while victim's brother was

3 Factor 16 states:

"The commission of a sex offense or engaging in sexual
misconduct in a place where detection is likely reflects
the offender's lack of impulse control. The Board may
apply less weight to factor 16 if there is evidence that
the offender made a clear and concerted effort to conceal
his offending behavior from others. For purposes of factor
16, a 'public place' includes . . . any place that is open
to the scrutiny of others or where there is no expectation
of privacy."

803 Code Mass. Regs. § 1.33(16)(a) (2016).

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sleeping in same bed). A room with sleeping children does not a

private place make, and thus it was within the examiner's

discretion to apply factor 16. See Doe No. 10800, 459 Mass. at

633, citing Smith, 65 Mass. App. Ct. at 812-813.

b. Risk-mitigating factors. Doe also claims that the

examiner erred by not explaining the weight given to factor 30

(advanced age)4 and by not giving factor 33 (home situation and

support systems)5 full mitigating weight.

4 Factor 30 states:

"Recidivism rates incrementally decline as sex offenders
get older, especially as offenders move into their later
years. While advanced age alone does not outweigh other
risk-elevating factors present in an individual offender,
advancing age has a mitigating effect on risk of reoffense.

"[T]he Board considers advanced age to have a significant
mitigating effect[,] . . . for those with child victims,
when the offender is [sixty] years of age or older. For
purposes of factor 30, the Board will consider the
offender's age at the time of the classification hearing."

803 Code Mass. Regs. § 1.33(30)(a) (2016).
5 Factor 33 states:

"Factor 33 is applied to an offender who is currently
residing in a positive and supportive environment. The
likelihood of reoffense is reduced when an offender is
supported by family, friends, and acquaintances.

"The Board shall give greater mitigating consideration to
evidence of a support network that is aware of the
offender's sex offense history and provides guidance,
supervision, and support of rehabilitation."

803 Code Mass. Regs. § 1.33(33)(a).

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 "A hearing examiner has discretion . . . to consider which

statutory and regulatory factors are applicable and how much

weight to ascribe to each factor . . . ." Doe, Sex Offender

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

102, 109-110 (2014) (Doe No. 68549). "[O]ur review does not

turn on whether, faced with the same set of facts, we would have

drawn the same conclusion as an [examiner], but only whether a

contrary conclusion is not merely a possible but a necessary

inference" (quotation and citation omitted). Id. at 110.

Because it was not raised in the trial court, Doe's factor 30

claim is waived.6 See Smith, 65 Mass. App. Ct. at 810.

Doe also maintains that the examiner erred in giving factor

33 only minimal weight. Because Doe argued that the examiner

did not properly consider Doe's release plan, we will treat this

claim as preserved. The examiner gave factor 33 only minimal

mitigating weight because, at the time, Doe was still

incarcerated and therefore not "currently residing in a positive

and supportive environment." 803 Code Mass. Regs. § 1.33(33)(a)

(2016). Additionally, while Doe submitted a letter from his

6 Doe would fare no better if we considered his factor 30 claim.
The examiner, in his discretion, applied factor 30 as a
mitigating factor even though Doe, at fifty-eight years old, had
not yet reached the threshold age of sixty at the time of the
hearing. See 803 Code Mass. Regs. § 1.33(30)(a). In light of
this discretionary application, any mitigating weight applied to
factor 30 by the examiner could not have been too little. See
Doe No. 68549, 470 Mass. at 109-110.

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father stating that Doe could stay with his father upon his

release until he was ready to move out, the examiner found that

the letter did not constitute a home plan upon release. In

these circumstances, the examiner did not abuse his discretion

by applying factor 33 with minimal mitigating weight.

2. Internet dissemination and public safety. Doe also

maintains that requiring Internet dissemination of his personal

information was not supported by clear and convincing evidence

that it would serve a public safety interest. "Where the board

determines that the risk of reoffense is moderate and the degree

of dangerousness posed to the public is such that a public

safety interest is served by public availability of registration

information, it shall give a level 2 designation to the sex

offender." G. L. c. 6, § 178K (2) (b). "The public shall have

access to the information regarding a level 2 offender" in

accordance with the relevant statutory provisions. Id. "We

. . . require hearing examiners to ask 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. If the answer to this question is 'no,'

classification as a level two offender is unjustified even where

the offender poses a moderate risk to reoffend and a moderate

degree of dangerousness." Doe No. 496501, 482 Mass. at 655.

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 Doe claims here that, because the victim was his

stepdaughter, these offenses took place over ten years before

the hearing, and he was almost sixty years old at the time of

the classification hearing, the pool of potential victims in the

case of reoffense is small and therefore Internet dissemination

of his information would not protect the public. The examiner

considered and rejected these arguments, finding that, "in the

interest of public safety, women, girls, and anyone who is the

caretaker of girls who may become acquainted with the

[plaintiff], have a right to know about the [plaintiff]’s past

sexual offenses." The examiner, considering these facts and

applying one high risk factor and numerous risk elevating and

risk mitigating factors, determined by clear and convincing

evidence that Doe posed a moderate risk to reoffend and a

moderate degree of dangerousness, and therefore concluded that a

public safety interest would be served by public and Internet

access to his sex offender registry information. See Doe No.

496501, 482 Mass. at 655. These findings were reasonable in

light of the circumstances and the examiner's specialized

knowledge, and the findings support the examiner's

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classification of Doe as a level two offender such that Internet

publication is appropriate.

Judgment affirmed.

By the Court (Rubin, Singh &
Hershfang, JJ.7),

Assistant Clerk

Entered: February 16, 2024.

7 The panelists are listed in order of seniority.

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