John Doe, Sex Offender Registry Board No. 526823 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-777

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526823

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming his classification by the Sex Offender

Registry Board (SORB) as a level two sex offender. Doe argues

that the hearing examiner (examiner) abused his discretion by

failing to provide adequate justification for rejecting the

testimony of Doe's expert witness and by resting his decision on

hearsay without first determining its reliability. We affirm.

Background. Doe was convicted of assault with intent to

rape and indecent assault and battery after police, responding

to a disturbance call, found him on top of the victim in a shed.

Doe's pants were down, and the victim was intoxicated, naked

from the waist down, had scratches on her legs and neck, and had
blood on her legs and face. Doe was sentenced to three to four

years of imprisonment, followed by three years of probation.

Thereafter, the SORB notified Doe that it had preliminarily

classified him as a level two sex offender. Doe challenged the

classification at a hearing, where he provided documentary

evidence, including letters of support, and an expert

psychologist to testify that, based on the SORB factors, she

assessed Doe as posing a low risk of reoffense. In support of

the classification, the SORB submitted documentary evidence

including police reports of the offense and a victim impact

statement. After considering the evidence, the examiner ordered

Doe to register as a level two (moderate risk) sex offender.

Doe sought judicial review. A judge remanded for further

explanation of why the examiner did not accept the expert's

opinion. The examiner then issued an amended decision detailing

his reasons. Doe again sought judicial review in Superior

Court, and a second judge affirmed the amended decision. Doe

now appeals from that judgment.

Discussion. Our review is limited, and "[w]e reverse or

modify the board's decision only if we determine 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. 10800 v. Sex Offender

Registry Bd., 459 Mass. 603, 633 (2011). A hearing examiner,

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unlike a fact finder at a trial, is not free to reject an

expert's uncontradicted testimony "concerning a subject which is

beyond the common knowledge and experience of the [examiner]"

without stating a basis for such rejection in the record. Doe,

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

Bd., 483 Mass. 131, 136-137 (2019) (Doe 23656), quoting Robinson

v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634,

639 (1985). That said, the examiner "has 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). The examiner's experience and

specialized knowledge in making such determinations are entitled

to weight on review. G. L. c. 30A, § 14 (7).

Doe argues that the examiner disregarded uncontradicted

evidence from Doe's expert witness without an objectively

adequate reason to do so. However, this argument ignores that

Doe's expert analyzed Doe's risk of reoffense based on SORB's

risk factors, 1 a subject precisely within the examiner's

experience and specialized knowledge. The examiner's decision

1 See 803 Code Mass. Regs. § 1.33 (2016). Hereafter we
refer to the board's classification factors by number, it being
understood that each of them appears in the corresponding
subpart of § 1.33. The regulations were amended in 2025, but
neither party argues that the amendments affected this case.

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to weigh relevant factors differently than did the expert may

therefore be an objectively adequate reason to reject the

expert's testimony. Doe 23656, 483 Mass. at 137.

Here, rather than simply rejecting the expert's testimony,

the examiner permissibly assigned differing weight to a number

of factors than did the expert, thus reaching a different

conclusion. For example, the expert gave reduced weight to

Doe's substance use (factor 9), based on Doe's sobriety and

substance use treatment while incarcerated, as well as Doe's

recognition of the negative role that substance misuse played in

his life. But the expert acknowledged that there was no data on

whether Doe would maintain that sobriety upon release. By

contrast, the examiner, in his amended decision, pointed to

Doe's "history of relapsing after multiple interventions" when

disagreeing with the weight to give factor 9.

Similarly, while the expert and examiner agreed that Doe's

age (factor 30) would generally be a mitigating factor, the

examiner applied minimal weight to this factor because Doe was

already in his mid-forties at the time of the offense, a fact

that the expert did not address. The expert also opined that

Doe's substance abuse treatment would mitigate his underlying

risk of sex offense, but the expert acknowledged that the

examiner might not give such mitigating weight where Doe did not

complete sex offender-specific treatment (factor 24). The

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examiner then chose, permissibly, to treat Doe's refusal to

complete sex offender treatment as a risk-elevating factor. 2

Further, when considering the mitigating weight of Doe's

probation (factor 28), both the expert and the examiner

acknowledged Doe's past probation violation. But, the expert

did not state whether this factored into her assessment, while

the examiner explicitly stated that he gave only moderate

mitigating weight in light of the past violation. The examiner

also reached a different conclusion about the level of physical

contact between Doe and the victim (factor 19), as the expert

based her analysis on the physical contact required for the

indecent assault and battery conviction while the examiner

additionally considered evidence of further physical contact

(penetration).

Ultimately, "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's testimony." Doe

2 Doe also criticizes the examiner's statement that his
expert did not consider Doe's refusal to attend sex offender
treatment, when in fact the expert testified only that she did
not recall whether she had considered that factor. Yet the
examiner correctly described the expert's testimony on this
issue. In any event, a reasonable inference from the expert's
memory lapse is that she did not consider the failure to engage
in sex offender treatment particularly significant, whereas the
examiner concluded in accordance with factor 24 that it
aggravated Doe's risk of reoffense.

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23656, 483 Mass. at 137. The examiner did not abuse his

discretion, nor was his decision arbitrary and capricious, where

his amended decision reasonably explained his divergence from

the expert's opinion based on a number of SORB factors.

Doe also argues that the examiner improperly considered

hearsay evidence without first determining its reliability.

This issue is waived, as Doe did not raise it before the

Superior Court. See Albert v. Municipal Court of Boston, 388

Mass. 491, 493–494 (1983).

Judgment affirmed.

By the Court (Massing,
Sacks & Allen, JJ. 3),

Clerk

Entered: December 17, 2025.

3 The panelists are listed in order of seniority.

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