John Doe, Sex Offender Registry Board No. 526712 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-328

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526712

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 classification by the Sex

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

Doe's primary argument is that the hearing examiner acted

arbitrarily and capriciously when she relied on hearsay

contained in documentary evidence, including, among other

things, a police report, which recounted allegations that Doe

had beaten and raped his former girlfriend and mother of his

child. Doe also claims that the examiner improperly gave

minimal, rather than full weight, to risk-mitigating factor 33

(home situation and support systems). We conclude that the

hearsay statements at issue were sufficiently reliable, and they
reasonably support both the hearing examiner's determination

that the rape had occurred and her ultimate conclusion that Doe

should be classified as a level three offender. We further

conclude that the examiner properly assessed the evidence

regarding factor 33. We therefore affirm the judgment.

Background. We summarize Doe's predicate sexual offenses,

which involved two victims, who were strangers (victims one and

two), and the former girlfriend (hereinafter victim three), as

follows. In December 2017, when Doe was twenty-seven years old,

two women (victims one and two) reported to police that Doe came

up behind them while they were shopping in a convenience store

and rubbed his genitals against their buttocks. He threatened

"to fuck the shit" out of them and made similar comments as the

two fled from the store. The police apprehended Doe, who was

intoxicated, shortly after the women made their report. Doe

subsequently was charged with two counts of indecent assault and

battery. A jury found Doe guilty on the assault and battery

count related to one of the women and not guilty on the count

related to the other. 1 Thereafter, in December 2019, the board

classified Doe as a level one (low risk) sex offender.

1 Doe received a split sentence of two and one-half years in
the house of correction with twelve months to serve and the
balance suspended.

2
On August 27, 2020, victim three walked into the Boston

police department and reported that Doe had come to her house

unannounced, started an argument, beat her, took off her

clothes, and then raped her. The officer who took the report

observed that the victim had bruises all over her chest and

head, including a black eye. Another officer took photographs

of the injuries. Victim three then sought treatment at a local

clinic. The following day, she reported the same allegations to

a different police detective and then, on August 31, 2020, she

obtained an abuse protection order against Doe. In the

affidavit submitted in support of the application for the order,

the victim averred that Doe had beat and raped her. Thereafter,

Doe was charged with one count of rape and one count of assault

and battery on a family or household member. The Commonwealth

entered a nolle prosequi on the latter charge and then dismissed

the rape charge in October 2020 after victim three recanted her

allegations. In a letter addressed, "to whom it may concern,"

dated October 13, 2020, victim three claimed that, on the day of

the alleged assault, she had consensual sex with Doe and that

the injuries she had sustained were from falling down the

stairs.

Based on victim three's report of rape, the board notified

Doe that he would be required to register as a level three

offender. Doe challenged the reclassification and was granted a

3
de novo hearing pursuant to G. L. c. 6, § 178L. At the time of

the hearing, Doe was in custody pending trial on several

firearms charges. Neither party called any witnesses, and the

hearing proceeded on the basis of documentary evidence, which

included a Boston police report that described victim three's

allegations.

The examiner found that victim three was raped and beaten

as she originally reported to the police, despite the fact that

Doe was not tried for the offenses and victim three had recanted

her prior statements. 2 The examiner noted that victim three

reported the rape and physical abuse in detail the day after the

incident occurred and disclosed the same information to two

different officers. 3 In addition, she made the same statements

2 The examiner was aware of her obligation under 803 Code
Mass. Regs. § 1.18 (2016) and our case law to determine whether
the hearsay evidence was reliable before giving it probative
effect.

3 The examiner summarized the information contained in the
police report as follows:

"[Victim three] stated that the day before (8/26/20) while
she was home, [Doe] came to her house, unannounced. He
started arguing with her and then became violent and began
hitting her. He then threw her on the bed, held her down,
pulled down her shorts and ripped off her underwear.
Victim 3 attempted to keep her legs closed, but [Doe] was
able to pry her legs open forcefully with his hands. He
then penetrated her vagina with his penis against her will.
She asked him to stop multiple times; he refused and
continued to penetrate her 'for about ten minutes.' He
finally let her up and continued to hit her with his fist,
stating 'he was going to beat it out of her.' He again

4
in her affidavit submitted in support of an abuse prevention

order, which she was granted. 4 The examiner also observed that

victim three was granted a prior abuse prevention order against

Doe in 2018, which demonstrated a pattern of domestic violence.

Furthermore, although victim three asserted that she wanted to

recant her original statement to police, she provided no

explanation as to why she fabricated the original allegations.

The examiner did not find victim three's recantation dispositive

given the nature of the countervailing evidence as set forth

above. To the contrary, the examiner found victim three's

original statements to be "credible and substantially reliable,"

and therefore found as fact that Doe raped and beat her for

purposes of the overall analysis of the risk and danger Doe

poses. 5

forced her back on the bed, climbed on top of her and
forcefully raped her a second time (penile/vaginal
penetration)."

4 In her affidavit, victim three wrote,

"He came to my house when I told him not to. He had a key
from before, and he beat me multiple times in my head,
face, body and he raped me. He said he would kill me. I
fear for my life. If he gets released from jail he will
kill me. He said he doesn't care if he would do life in
jail as long as I would be dead."

5 The examiner reasoned as follows:
"Despite the dismissal/nolle prosse by the Commonwealth and
her recantation of her prior statements, I find Victim 3
was raped and physically beaten by the Petitioner as she
originally alleged. She reported the rape and physical

5
The examiner further found that Doe's alleged assault on

victim two had in fact occurred, 6 and considered his nonsexual

criminal history, which included convictions of assault and

battery on a police officer, armed robbery, and carrying a

loaded firearm without a license. The examiner then determined

that the following eleven risk-aggravating factors applied:

factor 2 (repetitive and compulsive behavior; "increased

weight"); factor 7 (stranger and extrafamilial victims;

"increased weight"); factor 8 (weapons, violence, or infliction

abuse the next day. She reported the same information to
two different officers and further detailed the event in
her affidavit for an abuse prevention order, which she was
granted. She further was granted a prior abuse prevention
order in 2018, also against [Doe], demonstrating a pattern
of domestic violence. I acknowledge that Victim 3 later
told the Court that she 'wanted to recant her original
statement to the police that she made on August 27, 2020
about [Doe],' however, she provided no explanation as to
why she fabricated the original allegations. I do not find
that dispositive given the nature of the countervailing
evidence as set forth above. 'Inconsistent statements by a
hearsay declarant may or may not detract from the
reliability of the hearsay, depending on the circumstances
of those statements.' Doe 523391 v. SORB, 95 Mass. App.
Ct. 85, 90 (2019).

"I hereby find her statements to be credible and
substantially reliable. The fact that she later recanted
does not sway me from the consistent and reliable facts she
initially reported. I therefore find as fact that the
Petitioner raped and beat this woman and consider her a
Victim in my overall analysis of the risk and danger he
poses."

6 Doe does not challenge this finding nor does he contest
the examiner's additional finding that he was guilty of the
pending firearm charges.

6
of bodily injury); factor 9 (alcohol and substance abuse);

factor 10 (contact with the criminal justice system); factor 11

(violence unrelated to sexual assaults); factor 13

(noncompliance with community supervision; "increased weight");

factor 16 (public place); factor 19 (level of physical contact;

"increased weight with regard to dangerousness"); factor 21

(diverse victim type); and factor 22 (number of victims). The

examiner also found, based on evidence submitted by Doe, that

three risk-mitigating factors applied: factor 28 (supervision

by probation; "minimal weight"); factor 32 (sex offender

treatment; "minimal weight"); and factor 33 (home situation and

support systems; "minimally consider[ed]"). Based on these

factors, the examiner found by clear and convincing evidence

that Doe presents a high risk of reoffense and dangerousness and

that a public safety interest is served by Internet publication

of his registry information. As previously noted, the

examiner's decision was adopted by the board and subsequently

upheld by a judge of the Superior Court who, on the parties'

cross motions for judgment on the pleadings, dismissed Doe's

complaint.

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

7
limited, and we will not disturb the board's classification

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) (Doe, No. 10800). 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, 95 Mass. App. Ct. at 88.

Doe contends that the hearing examiner's finding that he

had in fact raped victim three was arbitrary and capricious

because there was no evidence of the rape other than her

accusations, which were ultimately recanted, and the police

reports documenting the allegations, which he claims lacked the

requisite indicia of reliability. He further asserts that, but

for the examiner's reliance on victim three's recanted

allegations, she could not have applied high risk factor 2

(repetitive and compulsive behavior), or risk-aggravating

factors 8 (weapons, violence, or infliction of bodily injury)

and 21 (diverse victim type). Nor could she properly give

increased weight to factor 19 (level of physical contact).

As Doe acknowledges in his brief, the examiner was not

bound by the rules of evidence applicable to court proceedings.

8
See Doe, No. 10800, 459 Mass. at 638. Hearsay evidence may be

admissible at a sex offender classification hearing if it bears

sufficient indicia of reliability. Doe, Sex Offender Registry

Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct.

73, 77 (2015).

"When reviewing an examiner's determination that hearsay
evidence is substantially reliable, we ask whether it was
reasonable for the examiner to admit and credit the facts
described in the hearsay evidence. Factors that the
examiner should consider include the general plausibility
and consistency of the victim's or 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" (quotations and
citations omitted).

Doe, No. 523391, 95 Mass. App. Ct. at 89.

Here, contrary to Doe's assertion, the examiner reasonably

determined that the police reports of the sexual assault against

victim three bore sufficient indicia of reliability. It is well

settled that the "lack of criminal conviction does not render

information [about a crime] contained within a police report

inadmissible" at a classification hearing. Id. at 90. In

addition, as mentioned in notes 3 and 4 supra, victim three

provided a detailed account of the incident and confirmed that

the rape had occurred to two police officers and in an

affidavit. Victim three's allegations were also corroborated,

at least in part, by her injuries that were visible to the

police and photographed. Accordingly, it was reasonable for the

9
examiner to credit the hearsay evidence that Doe raped and beat

victim three. Given our conclusion, Doe's argument that,

because the hearsay evidence was not reliable, risk-aggravating

factors 2, 8, and 21 were misapplied, and factor 19 should not

have been given increased weight, fails.

Doe also challenges the examiner's reliance on the abuse

prevention order that victim three obtained against Doe in 2018.

Specifically, he claims that the supporting affidavit lacked

sexual assault allegations and expressly stated that nothing

physical had occurred between Doe and victim three and, as a

result, there was no basis for concluding that Doe had engaged

in a pattern of violence. Although there is evidence that

victim three obtained the 2018 protective order following a

report to police that Doe had slapped her after he came home

intoxicated and started an argument, even if we were to

conclude, which we do not, that this factor did not apply, any

error is inconsequential. The examiner's decision is

sufficiently supported by the remaining risk-aggravating

factors, all of which are based on clear and convincing

evidence.

Doe next argues that the examiner erred by giving minimal,

rather than full, weight to risk-mitigating factor 33 (home

situation and support systems) based on a finding that letters

submitted by Doe's mother and one of his friends did not

10
acknowledge his history of sexual offenses. Doe asserts that

this finding was error and points out that his mother's letter

stated that raising Doe's classification level would be "a major

setback," and his friend's letter was sent directly to Doe's

attorney, "who presumably told [the friend] that the letter was

for a sex offender classification hearing." We are not

persuaded. To begin with, it is not clear whether Doe's mother

was aware of the degree of Doe's history of committing sexual

offenses. Nor is it reasonable to assume that the friend was

informed of the extent of that history, if at all, simply

because the friend had contact with Doe's attorney.

11
Accordingly, we discern no error in giving factor 33 minimal

weight.

Judgment affirmed.

By the Court (Ditkoff,
Englander & Smyth, JJ. 7),

Clerk

Entered: May 19, 2025.

7 The panelists are listed in order of seniority.

12