John Doe, Sex Offender Registry Board No. 523373 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-1388

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523373

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe (Doe), appeals from a Superior

Court judgment affirming his final classification by the Sex

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

See G. L. c. 6, § 178K (2) (c). On appeal, Doe claims that

(1) the examiner improperly applied risk factors 11, 12, 13, and

28; (2) the hearing examiner (examiner) erroneously denied his

motion for funds to secure an expert; and (3) the level three

classification was not supported by substantial evidence. We

affirm.

Background. We summarize the facts found by the hearing

examiner, supplemented by additional undisputed facts from the

record. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No.

10800).

On July 27, 2012, a forty year old woman (victim) reported

that Doe sexually assaulted and beat her. Doe had approached

the victim and asked if he could pay her for sex. The victim

got into Doe's car, and they drove to a parking lot located off

a major roadway where they agreed that she would perform oral

sex for money. Doe paid her and she began to perform oral sex.

When Doe inquired how much the victim charged for vaginal sex,

they disagreed about the amount he would pay her. Doe climbed

over the car's center console, then grabbed her hands, put them

over her head, and pulled down her stockings and his pants. Doe

"attempted to put his penis inside of her vagina" and "then

penetrated her vagina with his fingers and then began to

masturbate himself." The victim fled the vehicle, but Doe

attempted to penetrate her vagina with his penis from behind.

The victim yelled at Doe to stop, and he complied. The victim

began walking away, and the next thing she remembered was being

on the ground bleeding. She was later told that she was struck

by a brick, which was taken as evidence and sent to the crime

laboratory. The victim was treated at the hospital for a

laceration on her face, two blackened eyes, several broken

bones, and abrasions to her hands and both knees.

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Following a trial in the Superior Court in January 2015, a

jury convicted Doe of one count of rape, two counts of assault

with intent to rape, and one count of assault and battery by

means of a dangerous weapon causing serious bodily injury.

On or about February 25, 2020, SORB notified Doe that he

had been preliminarily classified as a level three sex offender

pursuant to G. L. c. 6, § 178K (2) (c). Doe challenged the

classification recommendation and after a de novo hearing on

April 14, 2021, the examiner issued a provisional decision on

August 9, 2021, classifying Doe as a level three sex offender.1

A hearing to update the record was held on December 13, 2021.

On May 4, 2022, the examiner updated and finalized the

classification decision and ordered Doe to register as a level

three sex offender. Doe appealed from that decision to the

Superior Court, where a judge denied his motion for judgment on

the pleadings and affirmed the examiner's decision on August 2,

2024.

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

1 The examiner allowed Doe's motion to hold the final
classification decision as provisional and continue the hearing
to a date closer to his release pursuant to Doe, Sex Offender
Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass.
475, 484 (2015).

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(2019) (Doe No. 523391). We "may set aside or modify SORB's

classification decision" if we determine that it exceeds "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). We "give due

weight to the experience, technical competence, and specialized

knowledge of the agency." Doe, Sex Offender Registry Bd. No.

205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013),

quoting G. L. c. 30A, § 14 (7).

1. Challenges to factors. a. Factor 11 (violence

unrelated to sexual assaults). Doe contends that the examiner

improperly applied factor 11 by considering Doe's property

crimes2 where factor 11 requires an analysis of the "severity and

frequency of violence towards other persons or animals." 803

Code Mass. Regs. § 1.33(11) (2016). Even if the examiner

improperly considered the property offenses, there was no abuse

of discretion in applying factor 11 because the examiner

properly considered other offenses including witness

2 The examiner listed malicious destruction of property,
breaking and entering in the daytime with the intent to commit a
felony, larceny, destruction of property, and breaking and
entering in the nighttime with the intent to commit a felony.

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intimidation, violation of an abuse prevention order,3 and

assault and battery. These offenses supported the examiner's

finding that Doe "has previously demonstrated that he can act

violently and with no regard for the safety of others."

b. Factor 12 (behavior while incarcerated or civilly

committed). Doe concedes the applicability of factor 12 but

challenges the examiner's finding that Doe's "inability to

conform to the rules of the institutional setting [was]

extremely concerning" on the basis that the examiner failed to

acknowledge Doe's involvement in sex offender programming and

"behavioral compliance" when considering factor 12. We conclude

that the examiner's weighing of the evidence was not erroneous.

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

Registry Bd., 483 Mass. 131, 138-139 (2019) (Doe No. 23656)

("The hearing examiner has discretion to determine how much

weight to ascribe to each factor under consideration").

Although Doe had two years without disciplinary issues leading

up to his final classification, the evidence showed that in the

3 The examiner properly considered the related July 2009
offenses, notwithstanding their resolution by continuance
without a finding, based on a police report stating that Doe had
verbally abused and threatened to kill his former girlfriend,
who had had a restraining order against Doe, causing her to
become "visibly shaken and . . . scared that he would get her if
she talked to [police]." See Doe No. 10800, 459 Mass. at 638.
We do not question the examiner's implicit determination not to
credit Doe's testimony denying those allegations. Id. at 633.

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previous five years, he received twelve disciplinary reports

while incarcerated, including for the following: entering a

restricted area; five infractions for possessing contraband;

violating a departmental rule or regulation; six infractions for

making or transferring intoxicants or possessing ingredients for

making alcohol; unauthorized possession of an alcoholic or

intoxicating beverage; and "refusing [a] direct order by staff."4

The evidence supported the examiner's finding that "Doe's

inability to conform to the rules of the institutional setting

[was] extremely concerning" and that the risk-elevating factor

fully applied to Doe's degree of dangerousness. See 803 Code

Mass. Regs. § 1.33(12) (board may consider number of

disciplinary reports, seriousness of violations, and length of

time between sex offender's last report and release).

With respect to the sex offender treatment, the examiner

credited and gave weight to Doe's progress in sex offender

treatment under factor 32 (sex offender treatment).

c. Factor 13 (noncompliance with community supervision)

and factor 28 (supervision by probation or parole). Doe

contends that the examiner misapplied factor 13 by considering

Doe's probation violations even though no evidence was presented

4 On February 1, 2020, twenty gallons of "homebrew" were
found in Doe's cell.

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at the hearing specifying the seriousness of the violations,

what conditions were violated, or the level of supervision. Doe

also contends that the examiner abused her discretion by failing

to consider evidence that Doe successfully completed probation

five times between 2002 and 2012 without violation and

successfully completed pretrial supervision on the governing

offense. These arguments lack merit.

Doe's argument essentially expresses disagreement with the

examiner's weighing of the evidence. Doe successfully completed

probation and pretrial supervision, but he also violated his

conditions of probation three times -- in 1997, 2009, and 2011.

Furthermore, on July 27, 2012, just three days after

successfully completing probation on a charge from September

2011, Doe, while intoxicated and high on cocaine, raped the

victim in the governing offense. We discern no abuse of

discretion in the examiner's weighing of the evidence. See Doe

No. 23656, 483 Mass. at 138-139.

Similarly, we find unpersuasive Doe's contention that the

examiner erred in applying factor 28 with moderate weight based

on Doe's three probation violations without considering his

"recent history of probation compliance." As Doe concedes, an

examiner may give factor 28 less weight when the respondent has

a history of probation violations. See 803 Code Mass. Regs.

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§ 1.33(28)(a). When making a classification decision, a hearing

examiner "has discretion . . . to consider which statutory and

regulatory factors are applicable and how much weight to ascribe

to each factor" (citation omitted). Doe, Sex Offender Registry

Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct.

738, 742 (2019) (Doe No. 22188). The examiner did not err in

considering Doe's probation violations in applying factor 28

with moderate weight.

2. Substantial evidence. Doe argues that the examiner's

decision to classify Doe as a level three sex offender and the

order to publicly disseminate his biographical information were

arbitrary and capricious and not supported by substantial

evidence. We disagree.

The evidence in the record supported the examiner's finding

that the "brutality of the physical assault [Doe] inflicted

against the [v]ictim with a brick caused notable injuries. This

behavior is disturbing and speaks to [Doe's] dangerousness and

impulsiveness." The examiner also properly found that Doe

"continued to defy rules and regulations even while in the

confines of a secure facility, which is further cause for

concern." The examiner additionally found that she was

compelled to consider Doe's "decades of lawless and criminal

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behavior," which included approximately forty-seven charges

between 1995 and 2012.

As discussed supra, the examiner carefully considered the

relevant factors in detail, appropriately weighing the nine

risk-elevating and four risk-mitigating factors5 to support her

finding that Doe presented a high risk of reoffense and degree

of dangerousness and the active publication of Doe's

registration information. We conclude that there was

substantial evidence to support the examiner's decision, and the

examiner did not abuse her discretion.6

Doe also challenges the legitimacy of the factors, arguing

inter alia that there is no guidance on how to apply or compare

5 In addition to factors 11, 12, and 13, discussed supra,
the examiner applied six risk-elevating factors: factor 7
(relationship between offender and victim) with increased
weight; factor 8 (weapons, violence or infliction of bodily
injury); factor 9 (alcohol and substance use); factor 10
(contact with criminal justice system); factor 16 (public
place); and factor 19 (level of physical contact).
In addition to factor 28, discussed supra, the examiner
applied three risk-mitigating factors: factor 32 (sex offender
treatment) with moderate weight; factor 33 (home situation and
support systems) with full weight; and factor 34 (materials
submitted by sex offender regarding stability in community) with
moderate weight.

6 We need not reach Doe's argument that his "liberty and
privacy interests outweigh any interests the public has in
accessing his biographical information" because Doe predicated
that argument on his claim, addressed supra, that the examiner
substantially relied on her misapplication of factors 11, 12,
13, and 28.

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the factors, that some factors "are not validated as being

correlated to risk," and that different examiners could reach

different conclusions. Because Doe raises these claims for the

first time on appeal, they are waived and we do not consider

them. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct.

803, 814 (2006).

3. Expert witness funds. On May 7, 2021, Doe sought funds

for an expert with experience in conducting assessments of

sexual recidivism and danger. The examiner denied Doe's motion

for funds, finding that Doe "[had] not met his burden to show

how the 2021 [Massachusetts Treatment Center] diagnosis of

Antisocial Personality Disorder [was] related to the commission

of the sex offense or sexual recidivism" and failed to provide

sufficient evidence that he had a "condition that [was]

particular to him that would warrant expert testimony." We find

unavailing Doe's contention that the examiner erred in denying

his motion for expert funds.

"[T]he decision whether to grant an individual sex offender

funds for an expert is a discretionary one, to be based on the

facts presented in an individual case." Doe, Sex Offender

Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.

764, 775 (2008). Doe bore the burden to "identify a condition

or circumstance special to [him] and explain how that condition

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is connected to [his] risk of reoffense or level of

dangerousness." 803 Code Mass. Regs. § 1.16(4)(a)(1) (2016).

"We review the examiner's decision to deny a motion for expert

funds for an abuse of discretion." See Doe, Sex Offender

Registry Bd. No. 58574 v. Sex Offender Registry Bd., 98 Mass.

App. Ct. 307, 310 (2020).

In support of Doe's motion for expert witness funds, the

affidavit of Doe's counsel stated that Doe needed an expert to

review the "Comprehensive Evaluation" (evaluation) dated January

22, 2021, that was conducted while Doe was at a sex offender

treatment program at the Massachusetts Treatment Center (MTC).

The affidavit stated that the MTC evaluation included an opinion

that Doe met the diagnostic criteria for antisocial personality

disorder (ASPD). The conclusory assertion in the affidavit that

"[w]hether someone suffers from [ASPD] is relevant to an

offender's risk of reoffense and danger" failed to identify a

nexus between the ASPD diagnosis and Doe's likelihood to

reoffend or level of dangerousness. See 803 Code Mass. Regs.

§ 1.16(4)(a)(1) (motion for funds must "explain how that

condition is connected to [the offender's] risk of reoffense or

level of dangerousness").

Additionally, while the motion and affidavit argued that

the MTC evaluation's diagnosis of Doe's ASPD was "questionable"

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because Doe did not have a confirmed diagnosis of a "conduct

disorder" before the age of fifteen and his behavior instead may

have been "attributable to his long history of alcohol and

substance abuse," Doe did not submit any documentation or

affidavits to verify those claims about his condition. See 803

Code Mass. Regs. § 1.16(4)(a)(3) (motion for funds must "include

supporting documentation or affidavits verifying the specific

condition or circumstances that the offender suffers from").

Given these defects, the examiner did not abuse her discretion

in denying the motion for funds. See 803 Code Mass. Regs.

§ 1.16(4)(a) ("Any motion that fails to meet the criteria . . .

may be denied prior to the hearing").7 Moreover, the examiner

7 Doe further contends that the motion for funds should have
been allowed so that expert testimony could help the examiner
interpret the Static-99R and Stable-2007 results from October
2020, a few months after Doe began sex offender treatment, which
were "arguably stale by the time the hearing examiner issued her
May 2022 classification decision" since Doe made "significant
advancements" in treatment after testing. This argument is
without merit. In all cases, the relevance of a particular
actuarial result will wane with the passage of time as new
information supersedes old, but this is not a "circumstance
special to [Doe]." 803 Code Mass. Regs. § 1.16(4)(a)(1).
Rather, this premise for the motion was essentially a request
for an "expert to provide a general opinion on the sex
offender's risk to reoffend and degree of dangerous." 803 Code
Mass. Regs. § 1.16(4)(b). As such, it was insufficient to
warrant expert funds.
Although we agree with Doe that the examiner erroneously
stated that Doe's combined test results placed him in the "high
risk" range for sexual recidivism, we conclude that the error
was harmless. In fact, Doe's composite results placed him in
the "Well-Above Average Risk Level." This misstatement of the

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placed little weight on the ASPD diagnosis in her decision. She

mentioned it just once in her decision, when discussing factor

35 (psychological or psychiatric profiles regarding risk to

reoffend), listing it along with three other disorders for which

Doe's treatment team found he met the criteria under the

American Psychiatric Association's Diagnostic and Statistical

Manual of Mental Disorders (5th ed. 2013). The examiner did not

mention the ASPD diagnosis anywhere else in her decision. Even

assuming error in the denial of Doe's motion for funds, on this

record, we conclude that any such error was harmless.

Judgment affirmed.

By the Court (Blake, C.J.,
Meade & Tan, JJ.8),

Clerk

Entered: June 12, 2026.

risk label was inconsequential because the mental health
professional administering the tests did not testify at the
classification hearing, and therefore the hearing examiner
properly excluded the ultimate risk opinion from her
consideration.

8 The panelists are listed in order of seniority.

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