John Doe, Sex Offender Registry Board No. 109404 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-155

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 109404

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 the Sex Offender Registry Board's

(board) classification of Doe as a level two sex offender. Doe

argues that the hearing examiner did not adequately explain why

a level two classification was warranted and erred by ordering

internet publication of Doe's registry information. We affirm.

Background. In October 2003 a thirteen year old girl

(victim) reported to police that Doe had been sexually abusing

her for several years. Doe was then thirty-three years old and

the boyfriend of the victim's mother. The victim disclosed

that, beginning when she was nine years old, Doe vaginally raped

her approximately fifty times. On other occasions Doe forced
the victim to perform fellatio on him until he ejaculated. Doe

threatened the victim that he would kill her and her mother if

she told anyone.

Based on his abuse of the victim, the plaintiff pleaded

guilty in May 2005 to nine counts of forcible rape of a child

and five counts of indecent assault and battery on a child. He

also pleaded guilty to related charges of witness intimidation,

violating an abuse prevention order, and threatening to commit a

crime. He received concurrent sentences of ten to twelve years

in State prison.

In November 2012, as Doe's release was approaching, the

board notified him of its preliminary recommendation that he

register as a level three sex offender. Doe did not challenge

that recommendation, and it became the final decision of the

board. About ten years later, Doe filed a request for

reclassification. After the board issued a preliminary

recommendation that Doe be reclassified as a level two sex

offender, Doe challenged that recommendation through a de novo

hearing. Following the hearing, held in March 2023, the hearing

examiner found that Doe presented a moderate risk to reoffend

and a moderate degree of dangerousness and ordered him to

register as a level two sex offender. On judicial review under

G. L. c. 30A, a Superior Court judge affirmed.

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Discussion. 1. Adequacy of findings. Doe argues that the

case must be remanded to the board because the hearing examiner

failed to adequately explain how he balanced the regulatory

factors in reaching his decision. We are unpersuaded. 1

Considering the hearing examiner's analysis in its

totality, we are satisfied that "the classification [was] based

on a sound exercise of informed discretion rather than the

mechanical application of a checklist or some other reflex."

Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender

Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). The hearing

examiner applied two statutory high-risk factors with increased

weight: factor 2 (repetitive and compulsive behavior) and

factor 3 (adult offender with child victim). The hearing

examiner explained that factor 2 applied with increased weight

because, despite being charged with indecent assault and battery

in 1997, Doe went on to commit the sex offenses against the

victim. The hearing examiner further explained that factor 3

applied with increased weight because the victim was

prepubescent when the abuse began. Doe does not claim that the

1 Because we conclude that Doe's argument fails on its
merits, we need not address whether Doe waived the argument by
failing to raise it in the Superior Court. Doe has, however,
waived any argument that the hearing examiner's decision was
unsupported by substantial evidence because he makes that
assertion in conclusory fashion, which does not allow for
meaningful appellate review. See Mass. R. A. P. 16 (a) (9) (A),
as appearing in 481 Mass. 1628 (2019).

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hearing examiner erred in applying these high-risk factors,

which are "indicative of a high risk of reoffense and degree of

dangerousness posed to the public." G. L. c. 6, § 178K (1) (a).

The hearing examiner also applied several risk-elevating

factors based on Doe's extensive criminal history, threats to

use violence against the victim and her mother, long history of

violent offenses, pattern of hostility toward women, use of a

high degree of physical contact during the sex offenses against

the victim, noncompliance with community supervision, and less

than satisfactory participation in sex offender treatment. 2

Demonstrating that he paid close attention to the evidence, the

hearing examiner explained how much weight he gave each factor

and why. For example, the hearing examiner stated that he gave

minimal weight to Doe's noncompliance with community supervision

because his one probation violation was "remote in time." On

the other side of the balance, the hearing examiner found

applicable the following risk-mitigating factors with varying

weight: offense-free time in the community, advanced age, home

situation and support systems, and stability in the community.

In the end the hearing examiner concluded that the risk-

mitigating factors warranted a reduction in Doe's

2 While Doe claims that the hearing examiner erred by not
considering recent studies about the efficacy of sex offender
treatment, he concedes that he did not submit any such studies
for the hearing examiner to consider.

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classification, but that Doe still presented a moderate risk to

reoffend and moderate degree of dangerousness. This conclusion

was well supported by the evidence and did not result from a

"checklist" approach, as Doe contends. The hearing examiner

explained that Doe's sex offenses, criminal history, tendency

toward violence, and hostility toward women showed "[a]ntisocial

orientation and sexual deviance," which "are the strongest

predictors of sexual recidivism for all sex offenders."

Furthermore, the hearing examiner noted that, while Doe had

obtained some stability in the community, he "continued to

accrue criminal charges," including for violating a restraining

order in 2017 after his release from incarceration. We are

readily able to discern from the hearing examiner's rationale

why he concluded on these facts that Doe presented a moderate

risk of reoffense and moderate degree of dangerousness. Remand

is therefore unnecessary. See 803 Code Mass. Regs. § 1.33

(2016) ("The final classification level is . . . based . . . on

a qualitative analysis of the individual sex offender's history

and personal circumstances").

2. Internet dissemination. Prior to ordering Internet

dissemination, a hearing examiner must make a separate finding

that public access to the offender's registry information is in

the interest of public safety. See Doe, Sex Offender Registry

Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655-

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56 (2019) (Doe No. 496501). Doe argues that the hearing

examiner's finding here is unsupported by substantial evidence

because the hearing examiner did not mention "Doe's longstanding

relationship with his live-in girlfriend," 3 which Doe says is

relevant to his "current access to his preferred victim pool."

Again, we are unpersuaded.

Doe's reliance on Doe, Sex Offender Registry Bd. No. 524553

v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525 (2020), is

misplaced. There, "the examiner did not make explicit findings

regarding the need for Internet dissemination, or consider that

issue in his analysis of the regulatory factors," id. at 528, so

the question was whether "the underlying facts . . . clearly

dictate[d] [that] Internet dissemination [was] warranted"

(quotations omitted). Id. at 529. Here, in contrast, the

hearing examiner expressly found that "a public safety interest

is served by public and Internet access to [Doe's] sex offender

registry information." In support the hearing examiner cited

the evidence of Doe's sexual deviance, noting that Doe

"demonstrated that he is capable of repeated sexual offending

with a high level of physical contact over a period of years."

The hearing examiner then concluded that, should Doe reoffend,

"it would likely be against a similar child with whom he has

3 Doe's girlfriend is the victim's mother, with whom Doe
resumed a relationship after he was released from incarceration.

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access through a woman he might date or through extended family"

and "[w]omen and guardians of such children should have access

to [Doe's] registry information so that they may be able to take

steps to protect themselves and their children." Substantial

evidence supports this conclusion. See Doe No. 496501, 482

Mass. at 655 ("Where a sexually violent offender presents a

moderate risk to reoffend and a moderate degree of

dangerousness, Internet publication will almost invariably serve

a public safety interest by notifying potential victims of the

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

Judgment affirmed.

By the Court (Meade, Shin &
Tan, JJ. 4),

Clerk

Entered: June 4, 2025.

4 The panelists are listed in order of seniority.

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