John Doe, Sex Offender Registry Board No. 372711 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-1063

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 372711

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner, John Doe, appeals from the decision of a

Superior Court judge affirming his final classification by the

Sex Offender Registry Board (board) as a level three sex

offender. We affirm.

1. Background. We summarize the facts as set forth in the

hearing examiner's decision, "supplemented by undisputed facts

from the record." Doe, Sex Offender Registry Bd. No. 10800 v.

Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No.

10800). In 2011, Doe recruited two girls, then fifteen and

sixteen years old, to have sex for money. In addition to

forcing the girls to have sex with other men, Doe himself had

penile intercourse with one of the victims. He also took

pornographic photographs of that victim. In 2013, Doe pleaded
guilty in the Superior Court to, inter alia, four counts of rape

and abuse of a child. He was sentenced to prison. 1

In 2016, the board preliminarily classified Doe as a level

three sex offender; after a de novo hearing in 2017, a hearing

examiner again classified Doe as a level three offender. In

doing so, the hearing examiner gave "moderate weight" to high-

risk factor two (repetitive and compulsive behavior). See 803

Code Mass. Regs. § 1.33(2) (2016). Doe appealed, arguing, in

part, that factor two did not apply where Doe had not been

"discovered, confronted, or investigated between the [repeated

offenses against the victims]." Doe, Sex Offender Registry Bd.

No. 22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797,

799 (2022) (Doe No. 22188). A panel of this court remanded the

case to the board to determine Doe's classification without

consideration of factor two. See Doe, Sex Offender Registry Bd.

No. 372711 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1104

(2021).

A new hearing was conducted, and in 2021, the hearing

examiner issued a new decision in which she applied high-risk

1 Doe also pleaded guilty to nine counts of deriving support
from a minor prostitute and seven counts of being an accessory
before the fact, to wit statutory rape. See Doe, Sex Offender
Registry Bd. No. 372711 v. Sex Offender Registry Bd., 100 Mass.
App. Ct. 1104 (2021). Additional indictments for posing a child
in the nude, distributing material depicting a child in the
nude, and posing a child in a sexual act were dismissed as part
of the plea.

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factor three (adult offender with child victim); and risk-

elevating factors seven (extrafamilial victim), nineteen (level

of physical contact), 2 and twenty-two (number of victims). See

803 Code Mass. Regs. § 1.33(3), (7), (19), (22) (2016).

Additionally, the examiner applied risk-elevating factors that

were not explicitly related to the governing offenses, including

risk-elevating factors nine (alcohol and substance abuse), 3 ten

(contact with the criminal justice system), eleven (violence

unrelated to sexual assaults), twelve (behavior while

incarcerated), and thirteen (noncompliance with community

supervision). 803 Code Mass. Regs. § 1.33(9)-(13) (2016).

Finally, based on Doe's victimization of the two minors by (1)

instructing them to have sex with others and having sex with one

of the minors himself, and (2) taking and distributing

pornographic photographs of one minor, the examiner applied

factor thirty-seven (other information related to the nature of

the sexual behavior) as evidence of Doe's degree of

dangerousness. See 803 Code Mass. Regs. § 1.33(37) (2016). The

2 The examiner applied factor nineteen with "increased
weight" given Doe's penetration of the fifteen year old victim
with his penis. See 803 Code Mass. Regs. § 1.33(19).
3 The examiner applied factor nine with "minimal weight,"

balancing evidence of Doe's past possession of drugs both before
and during his incarceration and a prison disciplinary report
based on Doe's preparation of illicit "home brew" with the lack
of direct evidence of Doe's "actual history of use of substances
and/or alcohol."

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hearing examiner did not find any risk-mitigating factors to

apply.

Concluding that Doe presented a high risk of reoffense and

degree of dangerousness and finding that Internet dissemination

of Doe's registration information was in the interests of public

safety, the examiner classified Doe as a level three sex

offender. That determination was affirmed by a Superior Court

judge on Doe's request for judicial review, and this appeal

followed.

2. Discussion. A level three classification requires

explicit findings, supported by clear and convincing evidence,

that the offender presents "a high risk of reoffense, a high

degree of dangerousness, and a public safety interest is served

by active dissemination of the offender's registry information."

Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry

Bd., 490 Mass. 759, 768 (2022). See G. L. c. 178K, § 2 (c). "A

reviewing court may set aside or modify [the board]'s

classification decision where it determines that the decision is

in excess of [the board]'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), citing G. L. c. 30A, § 14 (7). "Substantial

evidence is 'such evidence as a reasonable mind might accept as

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adequate to support a conclusion.'" Doe, No. 10800, 459 Mass.

at 632, quoting G. L. c. 30A, § 1 (6). In our assessment, "[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" (citation omitted).

Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender

Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391).

Here, we are not persuaded that the hearing examiner erred

in applying factor nine in classifying Doe as a level three sex

offender. 4 The board's regulations provide that factor nine

applies "when the sex offender has a history of substance abuse,

demonstrates active substance abuse, or when the defendant's

substance use was a contributing factor in the sexual

misconduct." 803 Code Mass. Regs. § 1.33(9). We consider it

reasonable for the hearing examiner to infer from Doe's

extensive history of past drug possession, and particularly from

the report that he was caught making "home brew" while

incarcerated, that Doe had at least some history of abusing

4 Doe represents, and the board does not dispute, that in
arguing the cross motions for judgment on the pleadings in Doe's
action for judicial review of the 2021 classification decision,
the board conceded that factor nine did not apply. On appeal,
however, the board has changed its stance; it now contends that
notwithstanding its prior concession, we can and should consider
the propriety of the hearing examiner's application of factor
nine in this case. We agree with the board that we have the
authority to consider the question. See Commonwealth v.
Poirier, 458 Mass. 1014, 1015 (2010).

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drugs and alcohol. See Doe, No. 523391, 95 Mass. App. Ct. at 88

("It is within the province of the hearing officer to assess the

reliability of such evidence and to draw all reasonable

inferences"). Accordingly, we discern no error in the hearing

examiner's application of factor nine, to which, in any event,

the hearing examiner accorded only "minimal weight." 5

We are likewise unpersuaded by Doe's argument that "[t]he

decision in this case . . . reflects the mechanical application

of a checklist and failed to provide the necessary 'reasoned

analysis' for a Level 3 classification." Our review of the

hearing examiner's decision in its totality satisfies us that

the examiner properly considered the facts of Doe's case and

weighed them against the required statutory and regulatory

factors. The examiner identified each factor that she applied

and explained the reason for its application; although she was

not required to do so, in several instances, the examiner also

specified the weight she assigned to the factor based on the

specifics of Doe's case. As we have discussed, the hearing

examiner applied factor nine, but gave it only "minimal weight"

5 Given our conclusion that the hearing examiner did not err
in applying factor nine, we do not address Doe's challenge to
the standard of review applied by the motion judge in the
Superior Court, or his argument that the board failed to
demonstrate whether any error "may have affected the
classification," requiring another remand to the board. Doe,
No. 22188, 101 Mass. App. Ct. at 804.

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in light of the lack of direct evidence of Doe's substance use

history. In addition, the hearing examiner explained that she

gave "increased weight" to factor nineteen in light of Doe's

penile penetration of one of the victims; went into detail about

the aspects of Doe's criminal history that bore on her

application of factors ten and eleven (contact with criminal

justice system and violence unrelated to sexual assaults); and

explained the basis for her conclusion that Doe demonstrated

"continual disregard for the rules of an institutional setting"

(factor twelve). The hearing examiner's "[analytical] path may

reasonably be discerned" from the decision, NSTAR Elec. Co. v.

Department of Pub. Utils., 462 Mass. 381, 387 (2012), quoting

Costello v. Department of Pub. Utils., 391 Mass. 527, 535-536

(1984), and it is clear that "the classification is based on 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.,

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81 Mass. App. Ct. 639, 651 (2012). We discern no abuse of

discretion.

Judgment affirmed.

By the Court (Meade, Neyman &
Hand, JJ. 6),

Assistant Clerk

Entered: May 8, 2024.

6 The panelists are listed in order of seniority.

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