John Doe, Sex Offender Registry Board No. 56967 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-1001

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 56967

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming his reclassification by the Sex Offender

Registry Board (SORB) as a level three sex offender. On appeal,

Doe argues that the reclassification decision was arbitrary and

capricious and an abuse of discretion because the hearing

examiner erred in applying two of SORB's regulatory factors,

factor 33 (home situation and support systems) and factor 29

(offense-free time in the community). We affirm.

Background. In 2003, a Superior Court jury convicted Doe

of the rape of an adult woman (victim one). As a result of this

conviction, Doe served a committed sentence, from which he was

released in March 2008. In 2009, after an evidentiary hearing,

SORB classified Doe as a level two sex offender.
 In October 2018, a second victim (victim two) disclosed

that between 2012 and 2014, Doe raped her repeatedly. In a

forensic interview, victim two reported that when Doe babysat

her when she was between six and eight years old, he took her

into a basement, locked the door, inserted his penis into her

vagina, and put his hand over her mouth to keep her quiet.

Based on his conduct toward victim two, Doe was indicted and

arraigned in 2019 in Superior Court on charges of rape of a

child aggravated by age difference, rape of a child, and

indecent assault and battery on a child under fourteen. The

hearing examiner found there to be "substantial credible and

reliable evidence to conclude that [Doe] did in fact

repetitively sexually assault [victim two]."

In December 2018, Doe's then seven year old daughter

(victim three) disclosed that between March 2014 and November

2018, Doe raped her repeatedly. She reported in a forensic

interview that beginning when she was about five years old Doe

would penetrate her vagina and anus with his penis and that, on

at least one occasion, he showed her images of what he said was

a girl having sex with her father. Based on his conduct toward

victim three, Doe was indicted and arraigned in 2019 in Superior

Court on charges of rape of a child aggravated by age difference

(three counts), rape of a child as a repeat offender (three

counts), indecent assault and battery on a child under age

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fourteen as a repeat offender, and dissemination of obscene

matter to a minor. The hearing examiner found there to be

"substantial reliable and credible evidence to find as fact that

[Doe] sexually assaulted [victim three] as alleged."

In January 2020, after learning of Doe's new sexual offense

charges, SORB notified Doe of his duty to register as a level

three sex offender. Doe challenged the reclassification, and an

evidentiary hearing was held on January 20, 2021. The hearing

examiner considered documentary evidence, as well as the

testimony of Doe's current girlfriend and two friends.

In assessing the evidence, the hearing examiner applied

with "increased weight" both high-risk factor 2 (repetitive and

compulsive behavior) and high-risk factor 3 (adult offender with

a child victim). The hearing examiner considered nine risk-

elevating factors1 and three risk-mitigating factors, factor 29

(offense-free time in the community), factor 30 (advanced age),

and factor 33 (home situation and support systems).

After analyzing all relevant factors, the hearing examiner

found by clear and convincing evidence that Doe presents a high

1 Factor 7 (relationship between offender and victim), factor 10
(contact with criminal justice system), factor 11 (violence
unrelated to sexual assaults), factor 13 (noncompliance with
community supervision), factor 15 (hostility toward women),
factor 18 (extravulnerable victim), factor 19 (level of physical
contact), factor 21 (diverse victim type), and factor 22 (number
of victims).

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risk to reoffend as well as a high degree of dangerousness.

Further finding that a substantial public safety interest is

served by Internet publication of his registry information, the

hearing examiner ordered Doe to register as a level three sex

offender. A judge of the Superior Court upheld the

classification, and Doe appealed from that judgment.

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) (Doe No. 523391). "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, 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. 6729 v. Sex

Offender Registry Bd., 490 Mass. 759, 762 (2022) (Doe No. 6729),

quoting Doe, Sex Offender Registry Bd. No. 339940 v. Sex

Offender Registry Bd., 488 Mass. 15, 30 (2021). See G. L.

c. 30A, § 14 (7). Review is "confined to the administrative

record" and we "give due weight to the experience, technical

competence, and specialized knowledge of [SORB], as well as to

the discretionary authority conferred upon it." Doe No. 523391,

supra at 88, quoting Doe, Sex Offender Registry Bd. No. 356011

v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015).

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 When making a level three classification, SORB bears the

burden of establishing, 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" of the offender's

registration information. G. L. c. 6, § 178K (2) (c). See Doe

No. 6729, 490 Mass. at 768. The hearing examiner must make

explicit findings as to the three required elements, Doe, Sex

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

482 Mass. 643, 657 (2019), and must consider twelve statutory

factors, see G. L. c. 6, § 178K (1) (a)-(l), as well as any

other information "useful in assessing the risk of reoffense and

the degree of dangerousness posed to the public by the sex

offender." Doe, Sex Offender Registry Bd. No. 68549 v. Sex

Offender Registry Bd., 470 Mass. 102, 105 (2014), quoting G. L.

c. 6, § 178L (1). SORB's regulations for applying the statutory

factors set out thirty-eight relevant aggravating and mitigating

considerations. See Doe, Sex Offender Registry Bd. No. 23656 v.

Sex Offender Registry Bd., 483 Mass. 131, 134 (2019) (Doe No.

23656), citing 803 Code Mass. Regs. § 1.33 (2016).

Doe argues that the hearing examiner erred in applying

factor 33 (home situation and support systems) because the

examiner did not ascribe it a specific weight. However, SORB's

regulations "do not prescribe the weights" that must be given to

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factor 33. Doe No. 6729, 490 Mass. at 767-768. See 803 Code

Mass. Regs. § 1.33(33) (2016). According to the regulations,

factor 33 receives "greater mitigating consideration" when there

is "evidence of a support network that is aware of the

offender's sex offense history and provides guidance,

supervision, and support of rehabilitation." Id. The hearing

examiner applied factor 33 according to its terms and had

discretion "to determine how much weight to ascribe" to it. Doe

No. 23656, 483 Mass. at 138-139. Given that Doe's new sexual

offenses occurred despite his support network, there was no

error in the hearing examiner's consideration of this factor2 and

implicit determination that it does little to mitigate Doe's

high risk of reoffense.

Doe also argues that the hearing examiner erred by not

giving factor 29 (offense-free time in the community) full risk-

mitigating weight. According to the regulation pertaining to

factor 29, the risk of reoffense "lowers substantially after ten

years of offense-free time in the community." 803 Code Mass.

Regs. § 1.33(29) (2016). Although, as of the January 2021

reclassification hearing, Doe had not been convicted of a new

sex offense since his March 2008 release from custody, the

2 When assessing factor 33, the hearing examiner wrote: "I
consider that [Doe] has support of his girlfriend and friends,
though I also note that his supportive relationships with them
did not prevent his new sexual misconduct."

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hearing examiner found "substantial evidence that he was

committing sex offenses through much of that time." While

factor 29 defines when offense-free time begins,3 it does not

define when offense-free time ends. Id. There is nothing in

the regulation's terms which states that offense-free time ends

only with a conviction. Therefore, based on the evidence, we

see no error in the hearing examiner's decision to give no

weight to factor 29.

We conclude that the hearing examiner did not err in

applying factors 33 and 29, and affirm the Superior Court

judgment upholding Doe's reclassification as a level three sex

offender.

Judgment affirmed.

By the Court (Rubin,
Ditkoff & Grant, JJ.4),

Assistant Clerk

Entered: February 22, 2024.

3 "For purposes of factor 29, the offense-free time begins on the
date of an offender's most recent release from custody for a sex
offense or non-sexual violent offense. In the case of an
offender who was not committed, the offense-free time begins on
the most recent date of conviction or adjudication of a sex
offense or non-sexual violent offense." 803 Code Mass. Regs.
§ 1.33(29).
4 The panelists are listed in order of seniority.

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