John Doe, Sex Offender Registry Board No. 527515 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

23-P-1421

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527515

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a judgment entered in

the Superior Court affirming his final classification by the Sex

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

claims that the board's decision is not supported by substantial

evidence and was arbitrary and capricious because the hearing

examiner engaged in a perfunctory, mechanical approach, rather

than conduct a thorough analysis of the applicable statutory and

regulatory factors. Doe also argues that because, in his view,

the board's case was weak, his liberty and privacy interests

outweighed the need for Internet publication of his registry

information. We affirm.
Background. We summarize Doe's predicate sexual offenses

as follows. In July 2018, the mother of Doe's daughter reported

to the Department of Children and Families and the police that

Doe had touched the daughter inappropriately when she was

between seven and nine years old. In a subsequent forensic

interview, the daughter, who was then fourteen years old,

recalled that Doe "touch[ed] her in [in]appropriate places,"

telling her that "[e]verything will be fine. It's our little

secret." More specifically, the daughter remembered that Doe

put his mouth on her vagina, and on another occasion, he

penetrated her vagina with his fingers. On August 28, 2018, Doe

was charged with indecent assault and battery on a child under

the age of fourteen. Doe was extradited from Puerto Rico and

pleaded guilty to the charged offense on March 4, 2020. He was

sentenced to a term of eighteen months in the house of

correction, suspended with probation for three years.

Before Doe entered the change of plea described above, he

sexually assaulted his niece. On January 25, 2020, Doe, who had

just arrived from Puerto Rico, visited his twenty-five year old

niece at her home. Doe brought two bottles of alcohol, the two

became inebriated, and, as the niece later told the police, Doe

became violent. Doe slapped her with an open hand while

penetrating her mouth and vagina with his penis, and he choked

her until she couldn't breathe, also while penetrating her with

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his penis. Doe initially was charged with rape, strangulation,

and indecent assault and battery on a person aged fourteen years

or older. Ultimately, on February 7, 2022, Doe pleaded guilty

to one count of indecent assault and battery and was sentenced

to a three-year term of probation.1

On April 7, 2022, the board notified Doe that it

recommended that he register as a level three sex offender. Doe

requested a hearing, which was held on September 30, 2022.

Thereafter, after considering all applicable statutory and

regulatory factors, the hearing examiner concluded that Doe

presented as a moderate risk offender and classified him as a

level two sex offender. The hearing examiner further concluded

that Internet publication of Doe's registry information would

serve an important public safety interest. Doe then appealed to

the Superior Court where, as noted, a judge affirmed the board's

classification.

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). Our review of the board's decision is

limited, and we will not disturb the board's classification

1 Doe also has a history of drug and alcohol abuse and a
minor nonsexual criminal history consisting of one charge of
assault and battery, which was dismissed, and property crimes
such as uttering a false check and larceny.

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unless "we determine that the decision is unsupported by

substantial evidence or is arbitrary or capricious, an abuse of

discretion, or not in accordance with law." Doe, Sex Offender

Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.

603, 633 (2011). In reviewing the board's decision, "[w]e 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 No. 523391, supra at 88.

Doe argues that the board's decision was arbitrary and

capricious because the hearing examiner's analysis was so

perfunctory he "could have just as easily found Doe a level 1

(low risk) or level 3 (high risk) offender." Before addressing

the merits of this argument, we first consider the board's

assertion that Doe waived his claim that the classification

decision was based on a mechanical checklist of factors because

he failed to make this argument in his appeal to the Superior

Court. The board is correct that Doe did not previously advance

this precise argument. Consequently, we agree that the argument

is waived. See Doe, Sex Offender Registry Bd. No. 3974 v. Sex

Offender Registry Bd., 457 Mass. 53, 57-58 (2010). That said,

although waived, we have reviewed the record to determine

whether the hearing examiner engaged in a qualitative and

objective analysis that balanced all the relevant risk factors,

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and whether the classification is fully supported by the

evidence.

First, the hearing examiner evaluated the various risk

factors that applied in this case. He found that Doe's sexual

assaults of his niece, which occurred while he was being

investigated for committing sexual offenses against his

daughter, supported the application of two high-risk factors

with increased weight: factor 2 (repetitive and compulsive

behavior) and factor 3 (adult offender and child victim). The

hearing examiner also found that Doe's sexual assaults of his

niece supported the application of two risk-elevating factors:

factor 8 (weapons, violence, or infliction of bodily injury) and

factor 19 (level of physical contact). In addition, the hearing

examiner considered the personal trauma that Doe's daughter and

niece suffered as a result of Doe's sexual assaults, see factor

38 (victim impact statement). The hearing examiner then applied

factor 18 (extravulnerable victim) because the daughter was

under the age of eight when Doe began to sexually abuse her. He

further concluded that Doe's sexual assaults against a

prepubescent child and an adult woman supported the application

of factors 21 (diverse victim type) and 22 (number of victims).

Doe's assaults against his niece while he was on bail for

another offense justified the application of factor 13

(noncompliance with community supervision) with increased

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weight; and Doe's history of substance abuse, and the fact he

was consuming alcohol when he sexually assaulted his niece,

warranted the application of factor 9 (alcohol and substance

abuse). Lastly, Doe's prior nonsexual criminal history, while

not significant, supported application of factor 10 (contact

with the criminal justice system) and factor 11 (violence

unrelated to sexual assaults), with minimal aggravating weight.

The hearing examiner then applied several risk-mitigating

factors. He determined that factor 28 (supervision by probation

or parole) applied with only moderate weight. The hearing

examiner explained that although Doe was complying with his

conditions of probation at the time of the hearing, it was

appropriate to give this factor moderate weight because Doe

sexually assaulted his niece while the charge involving his

daughter was pending. The hearing examiner also applied factor

30 (advanced age) and gave it minimal weight because while Doe

was forty years old at the time of the hearing, the risk of

recidivism for offenders of child victims begins to decline

substantially when the offender reaches sixty years of age. The

hearing examiner applied factor 32 (sex offender treatment) with

moderate weight because Doe's treatment progress was slow.

Although Doe participated in sex offender treatment with some

success, he had not completed treatment at the time of his

hearing.

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The evidence fully supported application of all these risk

factors. Furthermore, where warranted, the hearing examiner

explained the factual basis for the application of each factor.

In sum, contrary to Doe's assertions, his sex offenses, when

considered together with his substance abuse and nonsexual

criminal history, albeit minor, established that Doe poses a

moderate risk to reoffend and a moderate danger to the public,

and as a result, was properly classified as a level two sex

offender.

We further conclude that the hearing examiner engaged in

the required analysis in determining that Internet publication

of Doe's registry information serves a public interest.

Contrary to Doe's assertion, the fact that Doe is related to

both victims does not obviate the need for public dissemination.

Doe's claim that he is an "incest offender" and therefore poses

no risk to the public ignores the deviant nature of his crimes

against his daughter and the violent nature of his crimes

against his niece. We agree with the board that Doe's multiple

sexual assaults against his daughter proved that he was more

likely to have a deviant sexual interest, and that his violent

rapes of his adult niece were "indicative of his sexual arousal

to violence or an antisocial orientation," which further

elevated his risk and danger. Given these circumstances, the

hearing examiner properly determined that Internet publication

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of Doe's sex offender registration information serves a public

safety interest of, among other things, permitting women and

caretakers of children to avoid Doe's location given their

knowledge of the nature of his crimes.

Judgment affirmed.

By the Court (Vuono, Singh &
Hershfang, JJ.2),

Clerk

Entered: March 14, 2025.

2 The panelists are listed in order of seniority.

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