John Doe, Sex Offender Registry Board No. 528280 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-694

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528280

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming a Sex Offender Registry Board (board)

decision classifying Doe as a level two sex offender. On

appeal, Doe claims that the hearing examiner erred in

(1) relying on hearsay statements by the victim and (2) applying

regulatory factors three (adult with child victim) and eighteen

(extravulnerable victim). We affirm.

Background. We summarize the facts as found by the hearing

examiner, "supplemented by undisputed facts from the record,"

and reserve certain facts for later discussion. Doe, Sex

Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,

459 Mass. 603, 606 (2011).
In 2017, Doe, then thirty-six years old, sexually assaulted

the victim, then sixteen years old, at her sister's house. Doe

was the sister's fiancé at the time, although they did not

reside together. The victim was lying in bed when Doe got on

top of her and rubbed his hands over her body. Doe placed the

victim's hands over her head, pulled her shirt down, exposed her

breasts, and put his mouth on her nipple. Doe tried to remove

the victim's clothes, touched her vagina over and under her

clothes, exposed his penis to the victim, and tried to put it in

her vagina. After the victim's sister called her, Doe got off

her and left the room.

The victim reported the incident to the Brockton police

department that same day. She also reported that Doe had

engaged in other instances of sexual misconduct. The victim

then participated in a Sexual Assault Intervention Network

(SAIN) interview, which was videotaped. After describing the

recent incident, the victim stated that Doe had assaulted her in

a similar manner months earlier at her sister's house. The

victim further stated that two years earlier Doe had "tr[ied] to

do stuff to her" after he entered her room at her house while

she was sleeping, but that time Doe did not put his mouth on her

breast.

In 2022, Doe pleaded guilty to one count of indecent

assault and battery on a person fourteen or over, in violation

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of G. L. c. 265, § 13H. He was sentenced to a two and one-half

year term in the house of correction, suspended with probation

until January 3, 2025. After his guilty plea, the board

notified Doe of his obligation to register as a level two sex

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

an administrative hearing to challenge the board's preliminary

classification. Following that hearing, the examiner ordered

Doe to register as a level two sex offender, concluding, "by

clear and convincing evidence," that "[Doe] poses a moderate

risk to re-offend and a moderate degree of dangerousness." Doe

sought judicial review of his classification in the Superior

Court, and a judge affirmed Doe's classification.

Discussion. 1. Standard of review. "We review a judge's

consideration of an agency decision de novo." Doe, Sex Offender

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

App. Ct. 85, 89 (2019) (Doe No. 523391). "[A] decision of SORB

'may only be set aside if the court determines 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. 22188 v. Sex Offender

Registry Bd., 101 Mass. App. Ct. 797, 801 (2022), quoting Doe,

Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd.,

99 Mass. App. Ct. 533, 537 (2021). In reviewing the board's

decision, we "give due weight to the experience, technical

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competence, and specialized knowledge of the [board], as well as

to the discretionary authority conferred upon it." Doe, Sex

Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd.,

447 Mass. 779, 787 (2006), quoting G. L. c. 30A, § 14 (7).

2. Reliance on hearsay. Doe contends that the examiner

improperly relied on hearsay statements made by the victim to

the Brockton police and during a SAIN interview. As a hearing

examiner "need not observe the rules of evidence observed by

courts," G. L. c. 30A, § 11 (2), "[h]earsay, even multilevel

hearsay, may be admissible at classification hearings." Doe,

Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry

Bd., 88 Mass. App. Ct. 73, 76-77 (2015) (Doe No. 356011). "When

reviewing an examiner's determination that hearsay evidence is

substantially reliable, we ask whether 'it was reasonable for

the examiner to admit and credit' the facts described in the

hearsay evidence." Doe No. 523391, 95 Mass. App. Ct. at 89,

quoting Doe No. 356011, 88 Mass. App. Ct. at 77. "Such indicia

include '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.'" Doe, Sex

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

488 Mass. 15, 26-27 (2021), quoting Doe, Sex Offender Registry

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Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct.

309, 313 (2007).

Here, it was reasonable for the hearing examiner to admit

and credit the victim's hearsay statements. See Doe No. 356011,

88 Mass. App. Ct. at 77. The victim's statements were rendered

substantially reliable by Doe's subsequent decision to plead

guilty for engaging in nearly identical misconduct against the

victim. See Davis v. Allard, 37 Mass. App. Ct. 508, 511 (1994).

In addition, the victim's descriptions of Doe's sexual assaults

and sexual misconduct were plausible, consistent, and detailed.

See Doe No. 523391, 95 Mass. App. Ct. at 89. In particular,

while the victim's statements during the SAIN interview were

more detailed, they were still consistent with her report to the

police. The victim told the police that Doe had assaulted her

on multiple occasions, and during the SAIN interview she stated

that there were "other times things happened with him,"

described two of those incidents in detail, and identified

approximately when each incident occurred. The victim's

description of the two earlier incidents was also consistent

with her description of the indecent assault for which Doe

pleaded guilty. See id. (reliability may be demonstrated by

"consistency of the hearsay incident with other, known behavior"

of offender). Finally, there were no obvious "[i]ndicia of

unreliability" surrounding the victim's statements. Id. While

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Doe contends that the victim's impact statements "belie her

credibility" because they focused on the index offense, the

assault for which Doe pleaded guilty, the victim's first

statement showed that Doe had engaged in sexual misconduct with

her on multiple occasions by referring to her feeling of

isolation "the first time it happened."

3. Application of regulatory factors. Doe further

contends that the hearing examiner erroneously applied

regulatory factors three and eighteen based on the victim's

hearsay statements. Factor three applies to adult offenders

with child victims and provides that the board "shall consider

any victim younger than 16 years old as a 'child victim.'" 803

Code Mass. Regs. § 1.33(3)(a) (2016). Factor eighteen applies

to offenders who commit a sex offense or sexual misconduct

against an extravulnerable victim. 803 Code Mass. Regs.

§ 1.33(18) (2016). "Extravulnerable" includes the presence of

"any condition or circumstance" that renders a victim "more

susceptible to sexual assault" or "unable to effectively defend"

themselves or "compromises [a victim's] ability to effectively

report the abuse or provide testimony in court." Id.

The hearing examiner concluded that regulatory factor three

applies because the victim told the police and the SAIN

interviewer that Doe engaged in sexual misconduct with her when

she was in the sixth grade. At that time, the victim was eleven

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or twelve years old, and Doe was approximately thirty-one or

thirty-two years old. Although Doe argues that the hearing

examiner erroneously applied factor three based on this earlier

incident of sexual misconduct rather than on the index offense,

a hearing examiner may consider evidence of a prior sexual

assault or misconduct that did not result in a conviction of the

offender. Doe No. 356011, 88 Mass. App. Ct. at 79. As

discussed, it was reasonable for the hearing examiner to credit

the victim's statements to the police and SAIN interviewer

regarding Doe's prior conduct, and it was within the hearing

examiner's discretionary authority to consider those statements

in the context of factor three.

We similarly discern no error with respect to the hearing

examiner's application of factor eighteen. The hearing examiner

concluded that factor eighteen was applicable because Doe

"committed a sexual misconduct against the [v]ictim while she

was asleep in her bedroom." Doe does not dispute that a victim

being asleep is a relevant circumstance under factor eighteen,

but rather contends that factor eighteen does not apply here

because the victim was awake during the index offense. Again,

however, it was reasonable for the hearing examiner to consider

the other incidents of sexual assault and misconduct reported by

the victim, including the earlier incident that occurred when

the victim was sleeping in her room at her house. Doe also

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contends that factor eighteen does not apply to that incident

because the victim woke when she heard Doe's footsteps as he

entered her room, but the hearing examiner did not abuse his

discretion in concluding that the victim was more susceptible to

sexual assault or unable to effectively defend herself in those

circumstances.

Because the hearing examiner did not err in his application

of factors three and eighteen, we need not address Doe's

argument that the facts do not clearly dictate his

classification as a level two sex offender once factors three

and eighteen are excised from the analysis.

Judgment affirmed.

By the Court (Vuono,
Desmond, & Toone, JJ.1),

Clerk

Entered: November 20, 2025.

1 The panelists are listed in order of seniority.

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