John Doe, Sex Offender Registry Board No. 29265 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

23-P-2

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 29265

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming the Sex Offender Registry Board's (SORB)

decision to classify him as a level two sex offender in

accordance with G. L. c. 6, § 178K (2) (b). On appeal, Doe

maintains that (1) the hearing examiner improperly relied on

hearsay evidence of new sexual misconduct and (2) the level two

classification was not supported by substantial evidence. We

affirm.

Background. We summarize the facts set forth by the

examiner in his decision, supplemented by materials included in

the administrative record. In 1983, Doe was found guilty of

indecent assault and battery on a person under the age of
fourteen and sentenced to one year of probation. According to

the police report, Doe touched the victim (victim 1), a thirteen

year old female neighbor who was babysitting Doe's child, on her

breast, "french kiss[ed]" her, unzipped her pants, and "put his

hand down inside." In 2007, SORB notified Doe of his duty to

register as a level one sex offender pursuant to G. L. c. 6,

§ 178K (2) (a); Doe accepted SORB's recommendation.

In September 2016, Doe sexually assaulted his daughter's

friend (victim 2) while she was at his home celebrating the

daughter's birthday. Victim 2, an eighteen year old woman, sent

a text message to her boyfriend indicating "she was intoxicated

and beginning to feel uncomfortable with [Doe]." Her boyfriend

arrived at Doe's home and yelled the victim's name from outside.

Victim 2 responded in a "distressed tone" and the boyfriend

entered the apartment to find the victim on the couch without a

shirt or bra on; Doe was kneeling over her. The boyfriend

helped victim 2 get dressed and drove her home. Later that

night, Doe's daughter texted the boyfriend and stated that she

found a photo of victim 2's breasts on her father's camera, she

did not believe Doe's representation that the photo was taken by

accident, and she wanted to accompany the boyfriend to the

police station.

The boyfriend reported the incident to the police. Both he

and victim 2 were interviewed. As part of the investigation,

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the police also interviewed Doe. He admitted to providing his

daughter and the victim with alcohol, told police that victim 2

had taken her top and bra off herself, and denied touching her.

He also told police that he had accidentally taken a photo of

victim 2 in a bra, but that he deleted it from his camera. He

denied photographing her bare breasts. Doe was found guilty of

furnishing alcohol to a minor, pleaded guilty to assault and

battery, and was sentenced to concurrent one-year terms of

probation.1

Based on these new charges, on March 9, 2017, SORB notified

Doe of his duty to register as a level three sex offender

pursuant to G. L. c. 6, § 178K (2) (c). Doe requested a hearing

to review SORB's recommended classification level, and a hearing

was held on September 13, 2017. The hearing examiner issued a

final recommendation reclassifying Doe as a level two sex

offender on October 5, 2017.

Due to a procedural error discovered by SORB, Doe was

returned to his level one status in January 2018. Between that

date and November 2022, Doe had another administrative hearing,

1 Doe was initially charged with rape, two counts of
indecent assault and battery, and furnishing alcohol to a minor.
The judge allowed a motion for a required finding of not guilty
on one charge of indecent assault and battery and a jury found
Doe not guilty of rape.

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was again reclassified as a level two sex offender, and twice

appealed to the Superior Court pursuant to G. L. c. 30A, § 14.

Standard of review. "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 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.'" Doe, Sex Offender Registry Bd. No. 10800 v. Sex

Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L.

c. 30A, § 1 (6). "We give due weight to the experience,

technical competence, and specialized knowledge of the agency,

as well as to the discretionary authority conferred upon it"

(quotation and citation omitted). Doe, Sex Offender Registry

Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct.

85, 88 (2019) (Doe No. 523391).

Discussion. 1. Admission of hearsay evidence. Doe

contends that the hearing examiner improperly relied on hearsay

evidence in concluding that Doe committed a new sexual offense.

"The range of evidence that may be considered by hearing

examiners is not limited by the same rules of evidence that

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apply in court proceedings; hearing examiners may exercise their

discretion to admit and give probative value to evidence 'if it

is the kind of evidence on which reasonable persons are

accustomed to rely in the conduct of serious affairs.'" Doe,

Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry

Bd., 488 Mass. 15, 26 (2021) (Doe No. 339940), quoting G. L.

c. 30A, § 11 (2). "[H]earsay evidence bearing indicia of

reliability constitutes admissible and substantial evidence"

(citation omitted). Id. See Doe No. 523391, 95 Mass. App. Ct.

at 89-90.

To determine reliability, the examiner must consider the

circumstances in which the statements were made, including "the

general plausibility and consistency of the victim's or

witness's story, the circumstances under which it is related,

the degree of detail, the motives of the narrator, the presence

or absence of corroboration and the like" (quotation and

citation omitted). Doe No. 339940, 95 Mass. App. Ct. at 89.

See Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender

Registry Bd., 70 Mass. App. Ct. 309, 312-313 (2007). On appeal,

we consider whether "it was reasonable for the examiner to admit

and credit the facts described in the hearsay evidence"

(quotation and citation omitted). Doe No. 523391, 95 Mass. App.

Ct. at 89.

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Here, Doe claims that the hearing examiner abused his

discretion by admitting and relying on hearsay statements from

victim 2, her boyfriend, and Doe's daughter in concluding that

Doe committed a second act of sexual misconduct in 2016. Doe

also maintains that the hearing examiner failed to make the

detailed factual findings required to support this reliance.

The hearing examiner found that "[d]espite [Doe's] plea to

the lesser charge of assault and battery . . . [there was]

sufficient evidence to consider as fact that [Doe] indecently

touched [v]ictim 2." This finding was supported by substantial

evidence. Victim 2's statement to the police that Doe took

photos of her without a shirt or bra on, approached her while

she was alone with him in a room and began "rubbing her vagina"

included substantial detail about the circumstances of the

assault and was corroborated by contemporaneous text messages

sent to her boyfriend. See Doe 523391, 95 Mass. App. Ct. at 90

(victim's account in police report reliable where events

surrounding assault described in detail).

Victim 2's account was also corroborated by the statements

that her boyfriend made to the police, by Doe's daughter, and by

Doe. See Doe 523391, 95 Mass. App. Ct. at 90. Doe's daughter

described having seen a photograph of victim 2's bare breasts on

her father's camera. The boyfriend saw Doe kneeling over victim

2's half-naked body on the couch. Moreover, Doe pleaded guilty

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to assault and battery, which further corroborates the victim's

account of Doe's touching her without consent. See Commonwealth

v. Given, 441 Mass. 741, 747-748 (2004) ("The fact of conviction

is a powerful independent indicator of the reliability of the

statements describing the offense on which the conviction

rests"). The statements were made in circumstances that

indicate reliability: victim 2 was in distress and had sought

help from her boyfriend, see Doe No. 523391, 95 Mass. App. Ct.

90 (consistent account of assault to police and others

indicative of reliability); Doe's daughter had just discovered a

photograph of victim 2's breasts on her father's camera; and the

reporting parties went immediately to the police station after

the incident. Cf. Commonwealth v. Patton, 458 Mass. 119, 134

(2010) (promptness of sexual assault complaint relevant to

credibility determination).

Doe contends that the hearing examiner did not properly

consider Doe's daughter's affidavit, in which she averred, inter

alia, that (1) Doe did not take victim 2's bra or shirt off, and

(2) he was not "straddling" her when the daughter reentered the

apartment with victim 2's boyfriend. "[I]t is the province of

[the hearing examiner], not this court, to weigh the credibility

of the witnesses and to resolve any factual disputes" (citation

omitted). Doe, Sex Offender Registry No. 291554 v. Sex Offender

Registry Board, 87 Mass. App. Ct. 210, 213 (2015). The hearing

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examiner did so. He addressed the daughter's affidavit in his

analysis, reasoning that "[n]otwithstanding [Doe's] daughter's

dispute of some of the subsidiary facts, she does not deny that

she had left the room at the time of the sexual assault and thus

cannot refute that [Doe] did in fact touch [v]ictim 2."

Finally, the hearing examiner's findings support his

decision to credit victim 2's and her boyfriend's accounts of

the assault. In finding that Doe "indecently touched" victim 2,

the hearing examiner noted that victim 2's account "that she was

uncomfortable with [Doe's] actions and that he photographed her

breasts," was corroborated by Doe's daughter's texts and

affidavit. On the night of the assault, Doe's daughter sent a

message to victim 2's boyfriend saying, "I think [(v)ictim 2]

had every right to feel uncomfortable around my dad I looked at

his camera and the first thing I saw was [(v)ictim 2's] boob's

[sic] [;] he said it was an accident but I don't believe him."

This contemporaneous account corroborates victim 2's discomfort

with Doe and her report that he took photos of her naked

breasts.

Where the hearing examiner thoroughly "assess[ed] the

reliability of the exhibits introduced into evidence and [the]

credibility of witnesses," we do not disturb his decision. 803

Code Mass. Regs. § 1.19(1)(h) (2016).

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2. Substantial evidence. Doe further argues that the

level 2 classification was not supported by clear and convincing

evidence. Our conclusion that the hearing examiner properly

relied on hearsay evidence of Doe's 2016 sexual misconduct is

conclusive as to portions of this argument.

"Where the board determines that the risk of reoffense is

moderate and the degree of dangerousness posed to the public is

such that a public safety interest is served by public

availability of registration information, it shall give a level

2 designation to the sex offender." G. L. c. 6, § 178K (2) (b).

Doe maintains that the hearing examiner erred by failing to

consider the passage of time between Doe's initial sexual

offense in 1983 and his subsequent sexual misconduct under

factor 37 (other information related to the nature of the sexual

behavior). See 803 Code Mass. Regs. § 1.33(37) (2016). While

the hearing examiner did not explicitly address the time between

Doe's first and second offenses under factor 37, the decision

reflects the examiner's consideration of the nature of Doe's

criminal history, including the passage of time. In applying

factor 10 (contact with the criminal justice system), the

hearing examiner noted that, with the exception of two charges

for violation of an abuse prevention order in 2013, all of Doe's

charges were over thirty years old, and he ascribed the factor

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minimal weight.2 See id. § 1.33(10). Even if a significant

amount of time has passed, commission of a prior sexual offense

is relevant to a "holistic assessment" of an offender's

dangerousness. See Doe, No. 496501, 482 Mass. at 651.

Moreover, the hearing examiner engaged in a detailed

analysis of two high-risk factors, seven risk-elevating factors

and four risk-mitigating and additional factors in reaching his

final classification decision.

2 Doe does not contend that factor 29 (offense-free time in
the community) applies because "[f]or purposes of factor 29, the
offense-free time begins on the date of an offender's most
recent release from custody for a sex offense or non-sexual
violent offense," and Doe pleaded guilty to assault and battery
in 2018. 803 Code Mass. Regs. § 1.33(29).

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Where the classification is supported by "such evidence as

a reasonable mind might accept as adequate to support a

conclusion," G. L. c. 30A, § 1 (6), and "the examiner's detailed

written decision was balanced and fair," see Smith v. Sex

Offender Registry Bd., 65 Mass. App. Ct. 803, 813 (2006), we do

not disturb the board's decision.

Judgment affirmed.

By the Court (Neyman,
Hershfang & Hodgens, JJ.3),

Clerk

Entered: October 1, 2024.

3 The panelists are listed in order of seniority.

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