John Doe, Sex Offender Registry Board No. 527557 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

24-P-307

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527557

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

John Doe, Sex Offender Registry Board No. 527557 (Doe),

appeals from a Superior Court judgment affirming his final

classification by the Sex Offender Registry Board as a level two

sex offender. G. L. c. 6, § 178K (2) (b). Doe argues that the

Sex Offender Registry Board hearing examiner (SORB or examiner)

(1) lacked substantial evidence to support his decision

classifying Doe as a level two sex offender; (2) misapplied

regulatory factors three (adult offender with child victim) and

thirty-two (sex offender treatment); (3) failed to properly

consider a research article; and (4) abused his discretion by

denying Doe's motion for expert funds. We conclude that there

was not substantial evidence to support the examiner's decision
to classify Doe as a level two sex offender.1 We therefore

vacate the judgment affirming SORB's decision, and remand for

further proceedings consistent with this memorandum and order.

Background. 1. Doe's index offenses. The examiner

considered Doe's governing sex offenses, which involved

convictions for five noncontact offenses defined as "sex

offenses" under G. L. c. 6, § 178C.

a. February 6, 2018 incident. Doe pulled his pants down

and masturbated in front of a thirty-seven year old woman while

she was shopping in a store. Doe was charged with open and

gross lewdness, and on January 15, 2020, he pleaded guilty and

was sentenced to a three-year term of probation that ran

concurrently with the sentence he received for the March 18,

2019 incident, discussed below.

b. February 8, 2018 incident. Doe exposed himself to a

fifty year old woman in a store. The woman told police that he

approached her with his pants down and masturbated while looking

at her. Doe was charged with open and gross lewdness, and on

January 15, 2020, he pleaded guilty and received a sentence of

probation for three years that ran concurrently with the

sentence he received for the March 18, 2019 incident.

1 Our disposition obviates the need to reach Doe's other
claims.

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c. June 29, 2018 incident. While walking towards a

Starbucks, a fifty-four year old woman looked into a car and saw

Doe in the driver's seat with the window down. He was playing

with his erect penis while looking at his phone. After she told

him that she was going to call the police, he started rubbing

his penis faster. Doe was charged with open and gross lewdness,

and on January 15, 2020, he pleaded guilty and was sentenced to

a three-year term of probation that ran concurrently with the

sentence he received for the March 18, 2019 incident.

d. March 18, 2019. A fifteen year old girl noticed Doe

watching her through the bookshelf at a public library. When

she looked at Doe, he stood up, and she saw that his pants and

underwear were pulled down and that he was masturbating. Doe

was charged with open and gross lewdness, and on January 15,

2020, he pleaded guilty and received a sentence of two years in

the house of correction, with one year to serve and the balance

suspended for three years.

e. October 8, 2020 incident. When delivering mail to

Doe's address, a twenty-nine year old mail carrier saw Doe

standing by his car in his driveway wearing only a shirt. She

saw Doe grab his genitals with one hand while he waved to her

with his other hand. Doe was charged with open and gross

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lewdness, and on August 3, 2021, he pleaded guilty and was

sentenced to one year in the house of correction.

2. Other sexual misconduct. a. November 19, 2004

incident. Doe pulled his pants down "slightly" and exposed his

penis to a fifty year old librarian while she was at her desk in

the children's section of a public library. The victim reported

to the police that Doe's penis was flaccid and that he was not

masturbating. When police questioned Doe about the incident, he

apologized for exposing himself and admitted that he had

previously done this two or three times, and that he chose the

victim because he found her attractive. He reported that he saw

a doctor for emotional problems and would mention the incident

to his doctor. He further stated that he knew what he did was

wrong and would seek help. Doe was charged with indecent

exposure, and on January 27, 2005, he pleaded guilty and

received a continuance without a finding.

Although Doe was not convicted of a sexual offense, the

examiner found the evidence sufficient and reliable that Doe's

act was sexually motivated.

b. July 20, 2017 incident. While working in a store, a

sixty year old woman saw Doe with his hands inside his pants.

The victim thought he might have been masturbating. Police

viewed surveillance video that showed the plaintiff "with his

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shorts pulled down and his penis in his hand, moving his hand

back and forth." Doe was charged with open and gross lewdness

and on September 12, 2018, he pleaded guilty to one count of

indecent exposure, after the Commonwealth filed a partial nolle

prosequi reducing the open and gross lewdness charge. Doe was

placed on probation until October 2, 2020.

Although Doe was not convicted of a sexual offense, the

examiner found sufficient and reliable evidence that Doe's

actions were sexually motivated.

3. Doe's classification. In October 2021, SORB notified

Doe of its recommendation that he be classified as a level two

sex offender. After a de novo hearing challenging the

recommendation, the examiner issued a decision on April 19,

2022, classifying Doe as a level two sex offender, concluding

that he presents a moderate risk to reoffend and a moderate

degree of danger such that a public safety interest is served by

public access to his sex offender registry information and

Internet dissemination. He ordered Doe to register as a level

two sex offender.

In concluding that Doe posed a moderate risk of reoffense,

the examiner considered that Doe repeatedly committed sexual

offenses "after having been discovered, confronted, and

convicted of a sexual offense ([f]actor [two], full weight)."

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The examiner noted further that Doe "sexually offended against a

fifteen year old girl . . . ([f]actor [three]) . . . [and]

sexually offended against seven [v]ictims, all of whom were

strangers ([f]actor [seven], increased weight, and [f]actor

[twenty-two])." The examiner also found that Doe's victims

ranged in age (factor twenty-one), and that Doe violated his

probation for his previous sexual offenses by committing another

sexual offense (factor thirteen). The examiner considered risk

mitigating factors -- he considered that Doe would be on

probation (factor twenty-eight) and that he was involved in

sexual offender treatment (factor thirty-two). He also gave

minimal weight to Doe's age, fifty-one years old (factor

thirty).

In concluding that Doe posed a moderate degree of

dangerousness, the examiner found that Doe exposed himself to

and masturbated in front of a teenage girl (factor three);

exposed himself to seven strangers, engaging in masturbation in

front of some (factors seven and twenty-two); offended against

women and a teenage girl (factor twenty-one); and sexually

offended while on probation for earlier sex crimes (factor

thirteen). The examiner considered that Doe would be on

probation as a mitigating factor (factor twenty-eight).

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In finding that Internet dissemination of Doe's

biographical information served a public safety interest, the

examiner stated, "Although all of [Doe's] sex offenses have been

non-contact, I find it concerning that he has increased his

behavior from just exposure to masturbating in front of

strangers. Also concerning is [that] he has acted out in the

teenage and children['s] areas of a public library."

Doe appealed the examiner's decision to the Superior Court.

A judge affirmed the examiner's decision, and this appeal

followed.

Discussion. We review de novo a judge's consideration of

an agency decision. See Doe, Sex Offender Registry Bd. No.

523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89

(2019). In reviewing the examiner's decision, "we 'give due

weight to the experience, technical competence, and specialized

knowledge of the [examiner].'" Doe, Sex Offender Registry Bd.

No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602

(2013), quoting G. L. c. 30A, § 14 (7). "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

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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." John Doe, Sex Offender Registry Bd. No.

10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2019),

quoting G. L. c. 30A, § 1 (6).

Doe contends that the examiner's decision to classify him

as a level two sex offender was not supported by substantial

evidence and that the examiner failed to make his findings by

clear and convincing evidence. To classify an individual as a

level two sex offender, the examiner must make three explicit

findings by clear and convincing evidence:

"(1) that the risk of reoffense is moderate; (2) that the
offender's dangerousness, as measured by the severity and
extent of harm the offender would present to the public in
the event of reoffense, is moderate; and (3) that a public
safety interest is served by Internet publication of the
offender's registry information."

Doe No. 496501, 482 Mass. at 644.

Here, Doe concedes there is "compelling" evidence that he

poses a high risk of reoffense based on his history of exposing

himself to multiple stranger victims in public places. Doe

instead challenges the examiner's finding that he poses a

moderate degree of dangerousness, arguing that the examiner took

the "checklist" approach, which we have rejected. Doe, Sex

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

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81 Mass. App. Ct. 639, 651 (2012) ("SORB's decision must show

that the classification is based on a sound exercise of informed

discretion rather than the mechanical application of a checklist

or some other reflex").

To determine an individual's degree of dangerousness, an

examiner must "consider what type of sexual crime the offender

would likely commit if [they] were to reoffend . . . a hearing

examiner would make this determination based on the sexual crime

or crimes that the offender committed in the past." Doe No.

496501, 482 Mass. at 651. Generally, "an individual is . . .

unlikely to pose [even] a moderate degree of dangerousness --

and thus to qualify as a level two sex offender -- where [their]

risk of reoffense relates only to noncontact offenses that do

not put a victim in fear of bodily harm by reason of a contact

sex offense." Id. at 659-660.

Here, the examiner's findings fail to specify the type of

sexual crime Doe would likely commit if he were to reoffend. As

the examiner acknowledged, Doe's history of sexual offending,

spanning almost twenty years, has involved only noncontact

offenses. However, the examiner cited no evidence suggesting

that Doe placed any of his victims in fear of bodily harm of a

contact sex offense. See Doe No. 496501, 482 Mass. at 659-660.

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The examiner may have believed Doe poses a risk of

reoffending by committing a contact offense with a child or

teenager and thus presents a moderate degree of dangerousness,

but his decision fails to make explicit findings by clear and

convincing evidence to support that finding. See Doe, Sex

Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd.,

473 Mass. 297, 312 (2015) ("the requirement that SORB make

particularized, detailed findings concerning [offender's]

classification were and continue to be important features of the

process that offenders are due"). Instead, the examiner stated

only that Doe exposed himself to seven strangers, masturbating

in front of some, including a fifteen year old girl, and that

Doe was on probation for earlier sexual crimes when he sexually

offended in 2020. The examiner failed to explain how these

offenses are predictive of future contact offenses, and there is

no evidence that any of Doe's victims expressed a fear of Doe

committing a contact sex offense. Accordingly, we conclude that

there is not substantial evidence in the record to support the

examiner's finding that Doe poses a moderate degree of

dangerousness.2

2 Because we conclude that the record failed to support the
finding that Doe poses a moderate degree of dangerousness, we
need not decide whether the evidence supported the examiner's
finding that a public safety interest is served by Internet

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Because we conclude that Doe's classification as a level

two sex offender is not supported by substantial evidence on

this record, we vacate the Superior Court's judgment affirming

SORB's level two classification. The case is remanded to the

Superior Court for entry of a new judgment declaring that there

is substantial evidence only to support a level one

classification.3

So ordered.

By the Court (Rubin, Neyman &
Tan, JJ.4),

Clerk

Entered: July 23, 2025.

publication of Doe's registry information. See Doe No. 496501,
482 Mass. at 651 ("[A] moderate degree of dangerousness is
required for the hearing examiner to classify an individual as a
level two sex offender").

3 We need not remand the matter to the examiner to clarify
her finding because we conclude that there is not substantial
evidence in the record to support a finding that Doe's degree of
dangerousness is moderate.

4 The panelists are listed in order of seniority.

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