John Doe, Sex Offender Registry Board No. 314343 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-710

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 314343

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

entered in the Superior Court upholding his classification as a

level three sex offender. He claims that the evidence did not

support the hearing examiner's classification decision. We

affirm.

Background. We summarize the relevant facts as set forth

in the hearing examiner's decision, supplemented by 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).

Doe has a long history of exposing himself to unsuspecting

women and masturbating in front of them. On February 17, 2011,
the Sex Offender Registry Board (SORB), designated Doe as a

level two sex offender. This classification followed a 2007

conviction for indecent exposure and two separate convictions

from 2009 and 2010 for open and gross lewdness and lascivious

behavior. In December 2014, SORB sought to change Doe's

classification to level three following another conviction for

open and gross lewdness and lascivious behavior. Doe challenged

this reclassification through a de novo hearing, and on August

2, 2016, SORB ordered that he continue to register as a level

two offender.

On January 6, 2020, following numerous new incidents

resulting in criminal charges, SORB again sought to reclassify

Doe as a level three sex offender. Doe challenged the change

through a de novo hearing, and the hearing examiner reclassified

him as a level three sex offender. Doe sought judicial review,

claiming that the hearing examiner's decision was unsupported by

substantial evidence. A Superior Court judge denied Doe's

motion for judgment on the pleadings and affirmed the level

three classification. Doe appeals.

Discussion. A reviewing court can only "set aside or

modify [SORB's] classification decision where it determines that

the decision is in excess of [SORB's] statutory authority or

jurisdiction, is based on an error of law, is not supported by

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substantial evidence, or is an arbitrary and capricious abuse of

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

Offender Registry Bd., 486 Mass. 749, 754 (2021) (Doe No. 3177).

In making this determination, we "give due weight to the

experience, technical competence, and specialized knowledge of

the agency." G. L. c. 30A, § 14 (7). Doe therefore "bears a

heavy burden of establishing that [SORB's] decision was

incorrect." Doe No. 3177, 486 Mass. at 757, quoting Boston

Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019).

1. Level three classification. On appeal, Doe concedes

that he poses a high risk to reoffend, but given the noncontact

nature of his offenses, he claims that the evidence was

insufficient to support a finding that he poses a high degree of

dangerousness warranting a level three classification. A level

three classification is appropriate when the hearing examiner

determines, by clear and convincing evidence that "the risk of

reoffense is high and the degree of dangerousness posed to the

public is such that a substantial public safety interest is

served by active dissemination." Doe, No. 3177, 486 Mass. at

754, quoting G. L. c. 6, § 178K (2) (c). "We review the

examiner's finding that clear and convincing evidence supported

the classification to determine whether it was supported by

substantial evidence." Doe, Sex Offender Registry Bd. No.

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523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 94

(2019). Substantial evidence is "such evidence as a reasonable

mind might accept as adequate to support a conclusion." 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, Sex Offender Registry Bd. No. 68549 v.

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

We are satisfied that the classification is supported by

substantial evidence. The hearing examiner considered ample

evidence showing Doe's dangerousness: he offended against

stranger victims (factor 7); he offended while on probation

(factor 13); he offended against diverse victims (factor 21);

and he offended against at least thirteen victims (factor 22).

See 803 Code Mass. Regs. §§ 1.33(7), (13), (21), (22) (2016).

Although noncontact offenses, Doe's sexualized behavior

appeared, as the examiner found, to be "escalating" to the point

of causing reasonable fear that he posed a danger of committing

a contact offense. Unlike some of Doe's prior offenses that

appeared random and desultory, over a forty-five day period in

2020, Doe committed offenses that focused attention on

particular individuals: he knocked on a woman's home window to

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get her attention while holding a sharp object, and attempted to

open her windows; he had been near the same woman's home staring

into her bedroom window a few nights earlier; on two occasions

he followed a woman, called out her name, and masturbated in her

presence; and after calling out to a woman, seemingly to ask for

directions, he exposed himself and masturbated in front of her.

The hearing examiner could properly conclude that such

"actions are likely to place a person in reasonable apprehension

of him committing a contact offense" especially given that one

of the women "was so scared she felt the need to hide in a

neighbor's yard." See Doe, Sex Offender Registry Bd. No. 496501

v. Sex Offender Registry Bd., 482 Mass. 643, 659 (2019)

("noncontact offenders whose actions are likely to create a fear

of bodily harm are generally more dangerous than noncontact

offenders whose actions are unlikely to generate such fear").

Additionally, Doe's most recent sex offense in May 2021 provided

further evidence of conduct escalating toward violence. After

exposing himself in a public park and being confronted by a park

employee, Doe exposed himself repeatedly to persons in the park

before being confronted by park rangers. He threatened the

rangers with physical violence and fled. Viewing the record as

a whole, the hearing examiner based her decision on substantial

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evidence, and we discern no error or abuse of discretion. See

Doe No. 3177, 486 Mass. at 754.

2. Expert testimony. Doe next contends that the hearing

examiner abused her discretion by failing to provide an

objectively adequate reason for rejecting his expert's opinion

that Doe presents with a low degree of dangerousness. We

disagree.

"Doe is not entitled to a guarantee that SORB will reach

the same conclusion as his expert; he is entitled only to

careful consideration of his expert testimony." Doe, Sex

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

483 Mass. 131, 137 (2019) (Doe No. 23656). There is no

requirement that the hearing examiner adopt the "opinion of a

witness testifying on behalf of a sex offender . . . even where

the board does not present any contrary expert testimony." Doe

No. 10800, 459 Mass. at 637. Rather, the examiner must

"explain[] on the record its reasons for rejecting portions of

[an expert's] testimony." Doe No. 23656, supra at 136. Here,

the record shows that the hearing examiner explained why she

rejected the expert's opinion that Doe presented a low degree of

dangerousness: "Like the doctor, I have considered that [Doe's]

offending has consisted of non-contact offenses, thus far.

However, I also consider that [Doe's] behavior during his more

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recent offending is escalating to following and luring women by

name, and he has also potentially attempted to enter a home."

The hearing examiner was entitled to determine "how much weight

to assign the expert's ultimate conclusions." Id. at 138. We

discern no error or abuse of discretion.

Judgment affirmed.

By the Court (Vuono,
Englander & Hodgens, JJ.1),

Clerk

Entered: December 13, 2024.

1 The panelists are listed in order of seniority.

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