John Doe, Sex Offender Registry Board No. 527253 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-903

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527253

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment that affirmed, on judicial review under G. L. c. 6,

§ 178M, and G. L. c. 30A, § 14, a decision of the Sex Offender

Registry Board (board) classifying him as a level three sex

offender. The board's hearing examiner (examiner) did so based

on Doe's 2019 conviction of indecent assault and battery after

he attacked a woman in her car in the parking lot of a

restaurant where they both worked. The examiner further found

that Doe had vaginally raped the victim with his penis during

the attack. On appeal, Doe argues that the examiner erred in

applying the board's risk-elevating factor 16 (public place) to
him.1 Doe further argues that the examiner did not find enough

risk elevating factors applicable, and did not sufficiently

analyze those that were applicable, to warrant a level three

classification. We affirm the judgment.

Discussion. 1. Standard of review. Our review is

limited: "[w]e reverse or modify the board's decision only if

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). We "give due weight to the experience,

technical competence, and specialized knowledge of the [board],

as well as to the discretionary authority conferred upon it."

G. L. c. 30A, § 14 (7). See Doe No. 10800, supra at 632-633.

The examiner has discretion "to consider which statutory and

regulatory factors are applicable and how much weight to ascribe

to each factor." Doe, Sex Offender Registry Bd. No. 68549 v.

Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe

No. 68549). Doe therefore "bears a heavy burden of establishing

We refer to the classification factors by number, or name
1

and number, it being understood that each of them appears in the
corresponding subpart of 803 Code Mass. Regs. § 1.33 (2016). In
2025, after the examiner's and Superior Court's decisions in
this case, the regulations were amended, but neither party
argues that the amendments have any bearing on the issues before
us. See 803 Code Mass. Regs. § 1.33 (2025).

2
that the [board]'s decision was incorrect" (citation omitted).

Doe, Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry

Bd., 486 Mass. 749, 757 (2021).

2. Factor 16 (public place). Doe attacked his fellow

restaurant employee in her car, in the restaurant's parking lot,

sometime after 1 A.M., when the only other employee had already

left. Finding that the restaurant parking lot was an area open

to the public, the examiner applied factor 16, which provides,

as to adult males such as Doe:

"The commission of a sex offense or engaging in sexual
misconduct in a place where detection is likely reflects
the offender's lack of impulse control. The Board may
apply less weight to factor 16 if there is evidence that
the offender made a clear and concerted effort to conceal
his offending behavior from others. For purposes of factor
16, a 'public place' includes any area maintained for or
used by the public and any place that is open to the
scrutiny of others or where there is no expectation of
privacy."

Factor 16(a). Doe argues that it was error to apply factor 16,

but we are unpersuaded.

Doe primarily argues that the evidence did not support a

conclusion that the location of the offense was open to the

scrutiny of others or was one where there was no expectation of

privacy. This overlooks that factor 16 incorporates several

separate examples of what constitutes a public place: "any area

maintained for or used by the public and any place that is open

to the scrutiny of others or where there is no expectation of

3
privacy" (emphases added). Factor 16(a). Here the examiner

found that the restaurant parking lot was an area open to the

public. That was enough to apply factor 16.2 The examiner was

not required to go on to determine also whether the area was one

open to the scrutiny of others or where there was no expectation

of privacy.

Doe next argues that there was evidence suggesting that he

"did attempt to conceal his conduct from public view." He

asserts that, although he engaged in other sexually oriented and

offensive conduct while still inside the restaurant, the conduct

commenced "largely after other employees left for the night."

But a police report showed, and the examiner found, that much of

the offensive conduct occurred either "[t]hroughout the evening"

or at least before the other employee left sometime after 1 A.M.

Moreover, Doe committed the crime itself in a car in a parking

lot open to the public. Whatever weak inference of an attempt

at concealment might be drawn in Doe's favor did not amount to

evidence of "a clear and concerted effort to conceal his

2 The examiner noted elsewhere in his decision that as Doe
and the victim were leaving the parking lot in separate cars
after the offense, "a police cruiser followed them briefly."
Although the examiner did not expressly rely on this fact in
applying factor 16, it illustrates how areas that are open to
the public are ones where detection is more likely, even if most
other persons are absent from the area at the moment of the
offense.

4
offending behavior" that might warrant giving the factor "less

weight." Factor 16(a).

3. Number and explanation of risk elevating factors. Doe

argues that because the examiner found only three risk-elevating

factors to apply, and because the examiner applied them without

extended analysis of their weight and in the face of two

applicable risk-mitigating factors, the level three

classification was unsupported by substantial evidence. This

argument is unavailing.

Under the board's classification system, examiners do not

follow a strict numerical scoring approach. As the board's

regulations state, an offender's classification "is not based on

a cumulative analysis of the applicable factors, but rather a

qualitative analysis of the individual sex offender's history

and personal circumstances." Noe, Sex Offender Registry Bd. No.

5340 v. Sex Offender Registry Bd., 480 Mass. 195, 197 (2018),

quoting preamble to 803 Code Mass. Regs. § 1.33 (2016). The

classification must reflect "a sound exercise of informed

discretion rather than the mechanical application of a checklist

or some other reflex." Doe, Sex Offender Registry Bd. No.

136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651

(2012). The mere inapplicability of some of the board's high-

risk or risk-elevating factors does not weigh in an offender's

5
favor. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex

Offender Registry Bd., 447 Mass. 779, 788 (2006).

Here the examiner applied risk-elevating factors 7 (on the

basis that the relationship between offender and victim was

extrafamilial), 16 (public place), and 19 (on the basis that the

level of physical contact included penile-vaginal penetration).

We have already rejected Doe's challenge to the application of

factor 16. Doe criticizes the examiner for applying factor 7

without making an "assessment of the weight or importance of

this factor in the determination" and without specifically

stating that offending against a stranger presents a higher risk

that offending against a known victim. Doe also criticizes the

examiner for applying factor 19 "with no evaluation of its role

in the overall weighing of facts." But Doe does not argue that

either factor was misapplied. Indeed, the victim was

extrafamilial, and the examiner properly did not assign the

increased weight that would be given to factor 7 for a stranger

victim. Likewise, the examiner properly applied factor 19 with

"increased weight." The weight given to these factors was not

an abuse of discretion, nor would additional analysis have

changed the result.

The examiner also applied risk mitigating factors 28

(supervision by probation or parole) and 33 (home situation and

6
support systems). Doe criticizes the examiner for applying

these factors "with minimal analysis." Yet the examiner found

factor 28 applicable and explained that he gave factor 33 only

"moderate weight" because the support letters did not

acknowledge or address Doe's sex offense. We see no error or

abuse of discretion in the application of these mitigating

factors.

To the extent that Doe asks us to determine some minimum

number of high-risk or risk-elevating factors that must be found

applicable in order to support a level three classification --

or some minimum amount by which the number of such applicable

factors must exceed the number of applicable risk-mitigating

factors -- he cites no authority allowing us to do so. The

authorities cited above point in the opposite direction. And

Doe makes no claim that the examiner's ultimate findings were

unsupported by the requisite clear and convincing evidence. See

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

Registry Bd., 473 Mass. 297, 298 (2015).

Doe's argument comes down to an implicit assertion that, in

order to arrive at a level three classification, the examiner

must have given too much weight to the risk-elevating factors,

or too little weight to the risk-mitigating factors, or both.

But "how much weight to ascribe to each factor" is a matter

7
within the examiner's discretion. Doe No. 68549, 470 Mass. at

109-110. Doe has given us no sound basis on which to conclude

that that discretion was abused.

As the board's brief acknowledges, the examiner's

conclusions will "perhaps not [be] shared by every possible

reviewer." Yet "[o]ur review does not turn on whether, faced

with the same set of facts, we would have drawn the same

conclusion as [the examiner], but only whether a contrary

conclusion is not merely a possible but a necessary inference"

(quotations and citation omitted). Doe No. 68549, 470 Mass. at

110. That is not the case here.

Judgment affirmed.

By the Court (Massing,
Sacks & Allen, JJ.3),

Clerk

Entered: December 19, 2025.

3 The panelists are listed in order of seniority.

8