John Doe, Sex Offender Registry Board No. 97354 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

22-P-691

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 97354

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe,1 appeals from a Superior Court

judgment affirming his classification by the Sex Offender

Registry Board (SORB) as a level one sex offender. Doe claims

that his classification was unsupported by substantial evidence

and the hearing examiner abused her discretion by rejecting

expert witness opinion. Moreover, Doe contends that the hearing

examiner abused her discretion by considering Doe's statements

to the Department of Children and Families (DCF) concerning

abuse allegations involving his daughter. We affirm.

Background. We summarize the facts as set forth by the

hearing examiner, supplemented by materials included in the

1 A pseudonym.
administrative record, and reserve certain facts for later

discussion.

1. Doe's underlying offenses. In 2002, Doe, on multiple

occasions, grabbed the breasts of two of his female high school

classmates (victim one and victim two), ages fifteen and

sixteen; neither victim consented to Doe's physical contact.

Doe was seventeen years old at that time. As a result, Doe was

charged with two counts of indecent assault and battery on a

person over fourteen in violation of G. L. c. 265, § 13H. On

June 20, 2002, Doe pleaded guilty to two counts of the lesser

included offense of assault and battery; he was sentenced to two

years of probation. While Doe did not plead guilty to a sex

offense, as defined in G. L. c. 6, § 178C, the hearing examiner

considered his actions as additional acts of sexual misconduct

in her overall analysis of the risk and danger he posed.

Subsequently, in 2004, Doe sexually assaulted his ten year

old female neighbor (victim three). After commenting that he

"wouldn't mind fucking" the victim, he followed her into a barn,

held her hands behind her back and began "humping" her by

rubbing his groin against her buttocks while making comments

such as "is this what you want?" Doe also pinched her buttocks.

Consequently, on November 30, 2004, Doe pleaded guilty to one

count of indecent assault and battery on a child under fourteen

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years in violation of G. L. c. 265, § 13B, and was sentenced to

three years of probation.

2. Procedural history and newly submitted evidence. In

June 2005, Doe accepted SORB's recommendation that he be

classified as a level two sex offender. In 2014, Doe filed a

motion for reclassification, and after a hearing was held in

February 2015, SORB reclassified Doe as level one. In November

2019, Doe moved for relief from sex offender registration under

G. L. c. 6, § 178K (2) (d) and 803 Code Mass. Regs. § 1.29(1)

(2016).2 In response, SORB recommended Doe remain classified as

a level one sex offender. Doe then requested an administrative

review of the recommendation.

An examiner conducted a de novo hearing on November 4,

2020, and January 13, 2021, at which SORB submitted evidence to

include the police reports documenting Doe's prior DCF records

from 2016 and 2017 outlining allegations of Doe's sexual abuse

of his three year old daughter. SORB further relied on an

updated board of probation record evidencing no new entries and

correspondence from the police department.

Doe relied on Dr. Eric Brown's (Psy.D), testimony and

written evaluation, along with the psychological evaluations of

2 At oral argument before us, counsel for SORB acknowledged
that the motion could also have been treated as seeking to
terminate Doe's obligation to register, under G. L. c. 6,
§ 178G, and 803 Code Mass. Regs. § 1.30 (2016).

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Doe conducted by Frank E. Vargo, Ed.D., and Elizabeth L.

Leonard, Ph.D. In sum, Dr. Brown opined that Doe's atypical

autism and attention deficit disorder diagnoses contributed to

Doe's sexual offending as a teenager, and while there is no

direct correlation between these diagnoses and sexual

recidivism, the diagnoses were contributing factors to the

offending behavior and such symptoms of those diagnoses lessen

with age. Dr. Brown testified as to his belief that Doe has

learned from his mistakes, matured, and benefitted from

treatment, and thus, Doe posed a "very low risk for reoffending"

and did not pose "any modicum of dangerousness to the

community." Doe also submitted several studies concerning sex

offenders' desistance and late adolescent recidivism. In

addition, Doe supplied updated information on his support and

stability, his relationships, and counseling. After considering

all the evidence submitted at the hearing, the examiner ordered

Doe to continue to register as a level one sex offender.

Doe proceeded to file a complaint for judicial review and a

motion for judgment on the pleadings. A Superior Court judge

denied Doe's motion and affirmed the level one classification.

Doe timely appealed.

Discussion. Our review is narrow. We may set aside or

modify SORB's decision only if we determine "that the decision

is in excess of SORB's statutory authority or jurisdiction,

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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). Moreover, hearing examiners

have been delegated extensive 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). Our review is principally limited

to whether the hearing examiner has examined the relevant

factors and provided an adequate explanation for his or her

conclusions. See Doe No. 496501, supra at 657 (hearing examiner

is required to "make explicit his or her findings" regarding

risk of dangerousness and reoffense, and "make clear that each

determination is supported by clear and convincing evidence").

See also Doe, Sex Offender Registry Bd. No. 136652 v. Sex

Offender Registry Bd., 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").

1. Substantial evidence and weight of risk factors. When

reviewing a decision by SORB, we "must determine whether the

decision is supported by substantial evidence" (citation

omitted), Doe, Sex Offender Registry Bd. No. 10800 v. Sex

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Offender Registry Bd., 459 Mass. 603, 632 (2011) (Doe, No.

10800), which is defined as "such evidence as a reasonable mind

might accept as adequate to support a conclusion." Id., quoting

G. L. c. 30A, § 1 (6). Our review "does not turn on whether,

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

conclusion . . . but only whether a contrary conclusion is not

merely a possible but a necessary inference" (quotation and

citation omitted). Doe No. 68549, 470 Mass. at 110.

Doe contends that the continued level one classification is

not supported by substantial evidence and the examiner erred in

the application of several risk-mitigating factors. We

disagree.

In the present case, the record reveals a comprehensive and

reasonable analysis and weighing of the various SORB factors.

The examiner applied numerous risk-elevating factors, all of

which were supported by the evidence. For instance, the

examiner applied factor 2 (repetitive and compulsive behavior)

with the most weight because Doe sexually assaulted victim three

one month after he completed probation supervision for his

assaults of victim one and victim two. See 803 Code Mass. Regs.

§ 1.33(2) (2016). The examiner also applied factor 7

(relationship between offender and victim). See 803 Code Mass.

Regs. § 1.33(7)(a)(2). Doe was a classmate of victim one and

victim two, and a neighbor of victim three, rendering his

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relationship with each victim extrafamilial in nature. See id.

Additionally, the examiner found that Doe sexually assaulted

each of the victims in areas where he did not have a reasonable

expectation of privacy, and that doing so reflected his lack of

impulse control, supporting the application of factor 16 (public

place) to further elevate Doe's risk of reoffense. See 803 Code

Mass. Regs. § 1.33(16)(a). Moreover, the examiner applied

factor 22 (number of victims), because Doe committed acts of

sexual misconduct against multiple victims, increasing Doe's

risk of reoffense and degree of dangerousness. See 803 Code

Mass. Regs. § 1.33(22)(a).

In addition, the examiner considered Doe's past and current

alcohol use, along with his nightly use of marijuana, but

ultimately attributed minimal weight to factor 9 (alcohol and

substance abuse), because substances did not play a direct role

in Doe's sexual offending history. The examiner considered

Doe's criminal record, including his past violations of terms of

probation supervision. She ultimately gave only minimal weight

to factor 10 (contact with criminal justice system) and factor

13 (noncompliance with community supervision), due to their

datedness in Doe's case. Further, the examiner gave some weight

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to a handful of mitigating factors.3 See Doe No. 68549, 470

Mass. at 109-110. The examiner's decision was supported by

substantial evidence, and we discern no abuse of discretion.

We next address Doe's claim that the examiner based her

determination solely on the characteristics of his offense and

misconduct committed sixteen years ago when he was an

adolescent. Doe asserts the examiner did not identify facts

that postdated his past offense to indicate he poses a current

risk or danger and disclosed no evaluative process used to

balance the characteristics of his past offense against his law-

abiding life for the past sixteen years. We reject Doe's

contention. The examiner acted within her discretion in

balancing the mitigating factors against the risk-aggravating

factors, accounting for Doe's offense-free time in the

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

Offender Registry Bd., 483 Mass. 131, 138-139 (2019).

Ultimately, the examiner did not abuse her discretion in

determining that Doe's risk of reoffense and degree of

3 The examiner attributed full mitigating weight to Doe's
sixteen years of offense-free time in the community, factor 29
(offense-free time in the community). The examiner also found,
and applied minimal weight to, Doe's completion of a sex
offender treatment program, factor 32 (sex offender treatment
program), because he thereafter committed his governing sex
offense in 2004. The examiner found that Doe has some community
support and applied factor 33 (home situation and support
system) with moderate weight to her decision. She also applied
full weight to factor 34 (stability in the community).

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dangerousness were low, such that a level one classification was

appropriate and supported by substantial evidence.4 See Doe, No.

10800, 459 Mass. at 632.

2. Expert opinion, scientific evidence, and Doe's

statements to DCF. Doe contends that the examiner erroneously

rejected the conclusion of Doe's expert, Dr. Brown, who opined

that Doe currently poses an exceptionally low risk of reoffense.

Doe further argues that the examiner did not properly weigh

current scientific evidence on the desistance (reduction in

criminal behavior) of sex offenders after ten to fifteen

offense-free years in the community. These claims are

unavailing.

"[E]ven where the board does not present any contrary

expert testimony," the examiner is not bound to adopt the

expert's conclusions. Doe 10800, 459 Mass. at 637. Thus, the

examiner was not required to accept Dr. Brown's opinion

regarding Doe's risk of reoffense, see Doe No. 68549, 470 Mass.

4 To the extent Doe argues that that SORB must rely on
"facts that postdated his past offense" to require continued
registration after a period of years, Doe was found to present a
risk not simply because he committed offenses in the past, but
because of what the statute and regulations (supported by
research) say those offenses signify about his risk of
reoffense, even taking the passage of time and other mitigating
factors into account. The examiner did not err by extrapolating
from Doe's criminal record to find that some cognizable current
risk of dangerousness remained. The examiner also took into
account Doe's more recent conduct in touching and smelling his
young daughter's vagina in 2016, as discussed infra.

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at 112, and did not abuse her discretion in rejecting portions

of it. The examiner did not, as Doe suggests, ignore Dr.

Brown's low risk assessment or fail to explain her reasons for

reaching a different conclusion. Rather, the examiner spent

several pages addressing the expert's testimony, evaluation, and

opinion, and explained in detail the basis for her partial

disagreement with it. While the examiner agreed with Dr.

Brown's conclusion that Doe presented a low risk of reoffense

and degree of dangerousness, she disagreed the risks were

"exceptionally low." Of note, the examiner disagreed with Dr.

Brown's decision not to consider Doe's indecent assault on his

two classmates in 2002, as described above, in his assessment of

Doe's risk for recidivism. The examiner relied on this

information only after concluding the victims' statements to the

police were detailed and corroborated. Moreover, the examiner

noted that Doe admitted to the victims' accusations when he was

interviewed by the investigating officer. The examiner did not

abuse her discretion by considering this conduct as well as the

relevant risk factors that stemmed from it in assessing Doe's

classification. She was not required to credit Dr. Brown's

testimony that Doe's minimization of his past sex offense was

indirectly attributable to his autism; further, she could take

into account Dr. Brown's testimony that a different mental

health professional could arrive at a different conclusion than

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Dr. Brown when assessing a given offender's dynamic risk

factors.

Doe also argues that the hearing examiner abused her

discretion in failing to properly weigh research articles

presented by Doe concerning sex offenders' desistance and late

adolescents' recidivism. We disagree. The record instead shows

that the examiner duly considered the two research studies that

Doe submitted into evidence. The examiner noted that the

scientific articles reflect similar research as to what is

considered under SORB's regulatory factors, particularly factor

29. Cf. Doe No. 68549, 470 Mass. at 113-114 (no abuse of

discretion to disregard Doe's experts where guidelines

explicitly required consideration of Doe's youth, and examiner

did so). Despite their recency, she was not required to treat

the two articles as controlling. Doe submitted a third study

about juvenile sexual recidivism rates; the examiner reasonably

concluded that Doe's reliance on this article is misplaced.5

Doe also asserts that the hearing examiner abused her

discretion by considering Doe's statements to a special agent

and to DCF investigators about inappropriately touching his

daughter's vagina in 2016 and later sexually fantasizing about

5The examiner found that because the samples in the study
were drawn exclusively from juveniles, the study was not
relevant because Doe was not a juvenile offender.

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his fiancée. These statements came to light after the child's

mother accused him of the inappropriate touching. Doe contends

the examiner should not have considered such statements, because

Dr. Brown testified that Doe's statements were the product of

his autism rather than any sexual deviance. The examiner

ultimately declined to consider these allegations as additional

acts of sexual misconduct because no criminal charges arose from

the allegations, there was no medical evidence of sexual abuse,

and DCF found the allegations to be unsupported. The examiner

found as a subsidiary fact that Doe touched and smelled his

daughter's vagina based on his concern that something was

medically wrong with her, and further, found reliable Doe's

admission that he sexually fantasized about his fiancée

afterwards.

It is well established that "a hearing examiner may

consider subsidiary facts that have been proved by a

preponderance of the evidence." Doe, Sex Offender Registry Bd.

No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 756-757

(2021), citing Doe No. 496501, 482 Mass. at 656. Here, the

examiner undertook the appropriate analysis to assess the

reliability of these allegations and Doe's corresponding

statements, and she reasonably found that while such allegations

were unsubstantiated, Doe's statements to DCF evidenced Doe's

poor judgment and boundary issues. Therefore, the examiner's

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decision was supported by substantial evidence in the record

and, accordingly, we find no error in the Superior Court's

judgment affirming the examiner's classification of Doe as a

level one sex offender.

Judgment affirmed.

By the Court (Milkey, Sacks &
Smyth, JJ.6),

Clerk

Entered: August 19, 2024.

6 The panelists are listed in order of seniority.

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