John Doe, Sex Offender Registry Board No. 524499 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-778

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524499

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

Court judgment affirming his classification by the Sex Offender

Registry Board (SORB) as a level two sex offender. On appeal,

Doe claims that the decision of the hearing examiner (examiner)

was arbitrary and capricious, Doe's risk to reoffend is low and

compels a level one classification, and the examiner erred in

requiring Internet dissemination of Doe's personal information.

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) (Doe No. 10800).
Doe's governing offense stemmed from his sexual assault of

his seven year old granddaughter (victim) when Doe was seventy-

four years old. Specifically, in October 2014, Doe's adult son

reported to police that Doe had sexually assaulted the victim.

The victim had told her mother that while Doe was babysitting

her, he entered the bathroom and "exposed himself while she was

taking a bath." Doe then asked the victim to touch his genitals

and he also touched hers. During a SAIN interview, the victim

stated that Doe had touched the area "that she goes pee" with

his finger and penis and "it was sort of in and out."

On November 30, 2016, Doe pleaded guilty to three counts of

indecent assault and battery of a child under fourteen, open and

gross lewdness, and intimidation of a witness. 1 He was sentenced

to two years in the house of correction. Although Doe did not

plead guilty to rape, the examiner found that the victim's

statements to her mother and during her SAIN interview, which

were corroborated by Doe's own admissions, were sufficiently

detailed to find that Doe penetrated the victim's vagina with

his penis and finger.

On June 28, 2018, following a hearing, the examiner issued

a decision classifying Doe as a level two sex offender. Doe

1 The defendant was indicted for various charges including two
counts of rape. Pursuant to a plea bargain, one count of rape
was reduced to indecent assault and battery and another count of
rape was nol prossed.

2
sought judicial review of the decision pursuant to G. L. c. 30A,

§ 14, and a Superior Court judge remanded the matter because the

examiner's decision lacked explicit findings regarding Internet

dissemination, Doe's incarceration at the time of the

evidentiary hearing prevented him from obtaining medical records

necessary to support his physical disability claim, and it was

unclear whether the examiner's decision was based on clear and

convincing evidence.

On July 7, 2021, the examiner conducted a postremand

hearing. On July 29, 2021, the examiner issued a new and

comprehensive written decision again classifying Doe as a level

two sex offender. The examiner found by clear and convincing

evidence that Doe presents a moderate risk of reoffense and

degree of dangerousness such that a public safety interest is

served by Internet publication of his registry information. Doe

sought judicial review of that decision, see G. L. c. 30A, § 14,

and, following a hearing on Doe's motion for judgment on the

pleadings, a Superior Court judge denied the motion and affirmed

the level two classification. This appeal followed.

Discussion. 1. Standard of review. A reviewing court may

set aside a decision of SORB if it determines "that the decision

is unsupported by substantial evidence or is arbitrary or

capricious, an abuse of discretion, or not in accordance with

law" (citation omitted). Doe, Sex Offender Registry Bd. No.

3
22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801

(2022). The reviewing court shall "give due weight to the

experience, technical competence, and specialized knowledge of

the agency, 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). Doe therefore "bears a heavy burden of

establishing that the [SORB]'s decision was incorrect" (citation

omitted). Doe, Sex Offender Registry Bd. No. 3177 v. Sex

Offender Registry Bd., 486 Mass. 749, 757 (2021).

2. Classification determination. a. Doe's expert's

opinion. Doe first contends that the examiner "erroneously

failed to credit" the conclusion of Doe's expert, Dr.

Sorrentino, who opined that Doe posed a very low risk of

reoffense. Doe further argues that the examiner "cannot

completely disregard Dr. Sorrentino's expert testimony without

justification." The claim is unavailing. The examiner was not

required to accept Dr. Sorrentino's opinion regarding Doe's risk

of reoffense, see Doe, Sex Offender Registry Bd. No. 68549 v.

Sex Offender Registry Bd., 470 Mass. 102, 112 (2014) (Doe No.

68549), and did not abuse his discretion in rejecting it. The

examiner did not, as Doe suggests, ignore Dr. Sorrentino's low

risk assessment or fail to explain his reasons for reaching a

different conclusion. Rather, as evidenced by his written

4
decision, the examiner considered the expert's testimony,

evaluation, and opinion, and explained in detail the basis for

his disagreement and deviation therefrom. Indeed, the examiner

did give "some weight" to the "tests and tools used by Dr.

Sorrentino," but disagreed with portions of the expert's

analysis and conclusions. For example, one of the risk-

assessment tools used by Dr. Sorrentino focused on Doe's age

more than any other factor but did not account for offenders

like Doe, who commit a sex offense after the age of sixty. In

addition, one of the risk-assessment tools used by Dr.

Sorrentino was problematic insofar as the results were based on

Doe's self-reporting, which included statements that were

undermined by other evidence. 2 While the examiner could have

accepted Dr. Sorrentino's opinion, he was not obligated to do

so. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex

Offender Registry Bd., 483 Mass. 131, 137 (2019) (Doe No. 23656)

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

2 As noted by SORB, Dr. Sorrentino's reliance on the Stable-2007
risk-assessment tool was problematic in that the results of the
test were primarily based on Doe's self-reporting. For example,
Dr. Sorrentino accepted Doe's self-report that he did not have
sexual urges, fantasies, or behaviors related to prepubescent
children, and accepted that assertion in her risk analysis.
However, Doe had admitted that when he saw the victim naked in
the bathtub, he became aroused and had an erection.

5
same conclusion as his expert; he is entitled only to careful

consideration of his expert's testimony"). 3

b. Application of statutory and regulatory factors. Doe's

additional arguments regarding the examiner's analysis likewise

fall short. Doe contends that the level two reclassification

was not supported by substantial evidence and the examiner erred

in the application of risk-mitigating factors 30 (advanced age)

and 31 (physical condition). See 803 Code Mass. Regs. § 1.33

(2016). The claim is unavailing.

When reviewing a decision by SORB, we "must determine

whether the decision is supported by substantial evidence"

(citation omitted), Doe No. 10800, 459 Mass. at 632, which is

defined as "such evidence as a reasonable mind might accept as

adequate to support a conclusion." Id., quoting 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).

3 The examiner also noted and considered evidence from the
forensic evaluation written by Dr. Leonard Bard. However, the
examiner excluded Dr. Bard's risk opinion because Dr. Bard did
not testify at the hearing. See 803 Code Mass. Regs.
§ 1.17(5)(c) (2016) ("failure to call the Expert Witness to
testify at the hearing will result in the exclusion of so much
of the report as expresses the Expert Witness's opinion as to
the sex offender's risk of reoffense or degree of
dangerousness").

6
Doe No. 68549, 470 Mass. at 110. See Doe No. 10800, supra at

633 ("[i]t is the province of the board, not this court, to

weight the credibility of the witnesses and to resolve any

factual disputes"). Furthermore, the "hearing examiner has

discretion . . . to consider which statutory and regulatory

factors are applicable and how much weight to ascribe to each

factor." Doe No. 68549, supra at 109-110.

In the present case, the record reveals a comprehensive and

reasonable analysis and weighing of the various SORB factors.

The examiner applied a high-risk factor and two risk-elevating

factors to his analysis, all of which were supported by the

evidence. 4 Further, the examiner chose to apply some weight to

various mitigating factors. 5 See Doe No. 68549, 470 Mass. at

109-110. The examiner's decision was supported by substantial

evidence, and we discern no abuse of discretion.

We turn to Doe's claim that, because the examiner

misapplied factors 30 and 31, he could not have provided a

"reasoned analysis" supported by substantial evidence. As to

factor 30 (advanced age), the examiner applied minimal

4 Factor 3, adult offender with child victim; factor 18,
extravulnerable victim; and factor 19, level of physical
contact.
5 Factor 30, advanced age (minimal weight); factor 32, sex

offender treatment (moderate weight); factor 33, home situation
and support systems (minimal weight); factor 34, materials
submitted by the sex offender regarding stability in the
community.

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mitigating weight because although Doe was eighty-one at the

time of the hearing, he was seventy-four at the time of his

offense. That Doe is of advanced age now is less pertinent

because he was already of advanced age when he committed the

offense. See 803 Code Mass. Regs. § 1.33(30)(a) ("Factor 30

should be given less weight when an offender continues to

demonstrate an active sex drive or general criminality"). While

advanced age is a mitigating factor for adult male offenders, it

alone "does not outweigh other risk-elevating factors present in

an individual offender." Id. We discern no error. 6

Doe also argues that the facts of this case militate at

most a level one (low risk) classification. In particular, Doe

argues that because of Doe's status as a one-time criminal

offender, the fact that there was only one victim who was a

family member, the opinions of his experts, the absence of a

history of drug and alcohol abuse, and his engagement in some

6 Doe also contests the examiner's decision not to apply factor
31 (physical condition). The examiner considered Doe's physical
health and documentation of his medical conditions that limit
his mobility, but chose not to apply this factor because Dr.
Sorrentino testified that while Doe's "overall general physical
condition is compromised, . . . his physical condition does not
directly relate to his risk of committing a future sexual
offense. . . . Although his limitation to get around may relate
to mitigation, it is not based on scientific studies." Here,
the record shows that the examiner fairly considered Dr.
Sorrentino's testimony concerning Doe's physical condition and
how Doe's condition relates to his risk of reoffense, and we
discern no error. See generally Doe No. 23656, 483 Mass. at
135.

8
sex offender treatment, SORB did not prove by clear and

convincing evidence that he was a level two offender. 7 Based on

our review of the record and the reasons detailed in the

examiner's decision, we disagree.

c. Internet dissemination and public safety. Doe further

maintains that requiring Internet dissemination of his personal

information was not supported by clear and convincing evidence

that it would serve a public safety interest. However, Doe did

not raise this argument in the Superior Court, and therefore it

is waived. See Smith v. Sex Offender Registry Bd., 65 Mass.

App. Ct. 803, 810 (2006). Even if the argument was not waived,

it is nevertheless unpersuasive. The examiner explained how

active dissemination of Doe's registry information served public

safety. Based on the nature of his offense, the examiner

considered that, if Doe were to reoffend, there is a likelihood

that such an offense would involve a young girl. Therefore, the

examiner reasoned that "in the interest of public safety,

caregivers of young girls and girls who may become acquainted

7 On appeal, Doe argues that it is unclear whether the examiner
applied the clear and convincing evidence standard, given that
he did not articulate how the risk-aggravating factors that he
applied, which were based on offenses Doe committed "many years
ago," bear on Doe's risk of reoffense today or otherwise and
outweigh the applicable risk-mitigating factors. In view of the
clear and detailed findings in the examiner's report, which
repeatedly stated and applied the correct "clear and convincing"
standard, the claim is unpersuasive.

9
with [Doe] have a right to know that he is a registered sex

offender." Substantial evidence supports this conclusion. Cf.

Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender

Registry Bd., 482 Mass. 643, 655 (2019) (Internet dissemination

of level two offender's information "will almost invariably

serve a public safety interest by notifying potential victims of

the risks presented by the offender in their geographic area").

For the reasons detailed in the examiner's decision and the

reasons stated herein, we cannot conclude that the examiner's

decision was arbitrary, capricious, unsupported by substantial

evidence, or an abuse of discretion. 8

Judgment affirmed.

By the Court (Meade, Neyman &
Hand, JJ. 9),

Assistant Clerk

Entered: March 29, 2024.

8 Other points, relied on by Doe but not discussed in this
decision, have not been overlooked. We find nothing in them
that requires further discussion. See Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
9 The panelists are listed in order of seniority.

10