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-1089
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 447842
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 decision by the Sex Offender Registry Board
(SORB) ordering him to continue registering as a level three sex
offender. See G. L. c. 6, § 178K (2) (c). On appeal, Doe
maintains that (1) the hearing examiner improperly based her
decision on unreliable hearsay and (2) the level three
reclassification was not supported by substantial evidence. We
affirm.
Background. We summarize the facts found by the hearing
examiner, supplemented by additional undisputed facts from the
record. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No.
10800).
In June 2009, a fourteen year old girl (victim 1) reported
to police that she was raped by Doe, who was the boyfriend of
her brother's roommate. Victim 1 told police that she was
drinking alcohol and smoking marijuana with a friend, Doe, and
Doe's girlfriend. Victim 1's brother joined them, and they
continued drinking until she felt dizzy and "passed out" on a
love seat in the living room of her brother's apartment. When
she woke up, she felt Doe on top of her and vaginally
penetrating her with his penis. She yelled at him to get off
her, but he refused. Doe pressed his forearms against her
shoulders, holding her down, and she was unable to move. Victim
1 described the rape lasting approximately fifteen minutes and
described Doe's boxers as dark in color. Victim 1 said she felt
dizzy after the rape, "passed out" until the morning, and woke
up in pain, especially around her vaginal area.
Following a trial in the Superior Court in June 2010, a
jury acquitted Doe of rape of a child under the age of sixteen
with force. The hearing examiner found that despite Doe's
acquittal, victim 1's statements were "sufficiently detailed,
credible and reliable to find them as fact" in the
reclassification decision. The hearing examiner found that
2 Doe's girlfriend and the victim's brother corroborated the
victim's statements that they had consumed drugs and alcohol and
that she had fallen asleep on a couch after not feeling well.
The hearing examiner also found that the victim's medical
records confirmed that she had been "forcefully penetrated with
signs of vaginal trauma and abrasions." The hearing examiner
considered the incident as "the first detected sexual misconduct
perpetrated by [Doe]."
In February 2012, the fourteen year old daughter of Doe's
girlfriend (victim 2) told police that he began sexually
assaulting her in May 2011. She reported that on twenty
different occasions, Doe forced his penis into her mouth.
Victim 2 stated that he also touched her breast and vagina
approximately nine to twelve times. Following a Superior Court
jury trial in October 2013, Doe was convicted of one count of
rape of a child under the age of sixteen with force in violation
of G. L. c. 265, § 22A, assault of a child with intent to commit
rape in violation of G. L. c. 265, § 24B, and two counts of
indecent assault and battery on a person fourteen or older
violation of G. L. c. 265, § 13H.
On or about December 17, 2018, SORB notified Doe of his
duty to register as a level three sex offender pursuant to G. L.
c. 6, § 178K (2) (c). Doe challenged the recommendation and
3 after a hearing on June 25, 2019, Doe was classified as a level
three sex offender. On November 14, 2022, Doe petitioned SORB
for reclassification. After reviewing Doe's petition, SORB
recommended that Doe continue to be required to register as a
level three sex offender. Doe requested a hearing to challenge
SORB's recommendation and the hearing examiner held a de novo
reclassification hearing on June 22, 2023. On September 6,
2023, the hearing examiner found Doe had a continuing duty to
register as a level three sex offender. Doe appealed that
decision to the Superior Court, where a judge denied his motion
for judgment on the pleadings and affirmed the hearing
examiner's decision on July 2, 2024.
Discussion. We review de novo a judge's consideration of
an agency decision. Doe, Sex Offender Registry Bd. No. 523391
v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019)
(Doe No. 523391). We "may set aside or modify SORB's
classification decision" if we determine that it exceeds "SORB'S
statutory authority or jurisdiction, violates constitutional
provisions, is based on an error of law, or is not supported by
substantial evidence." Doe, Sex Offender Registry Bd. No.
496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019)
(Doe No. 496501), citing G. L. c. 30A, § 14 (7). We "give due
weight to the experience, technical competence, and
4 specialized knowledge of the agency." Doe, Sex Offender
Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass.
594, 602 (2013), quoting G. L. c. 30A, § 14 (7).
1. Admission of hearsay evidence. Doe contends that the
hearing examiner erred in admitting the hearsay statement of
victim 1 to police because it lacked the requisite indicia of
reliability. As a result, Doe argues that the hearing
examiner's reliance on the hearsay prejudiced him because it
formed the basis of her determination that Doe raped victim 1,
which led to the hearing examiner erroneously classifying him as
a level three sex offender. We are not persuaded.
"A hearing examiner is not bound by the rules of evidence
applicable to court proceedings." Doe, No. 10800, 459 Mass. at
638. Hearing examiners may exercise their discretion to admit
and give probative value to evidence "if it is the kind of
evidence on which reasonable persons are accustomed to rely in
the conduct of serious affairs." Id., quoting G. L. c. 30A,
§ 11 (2). "[H]earsay evidence bearing indicia of reliability
constitutes admissible and substantial evidence." Id. Where
there is an allegation of sexual misconduct that did not result
in a conviction for a sex offense, the hearing examiner may
consider the facts underlying the charges where such facts are
proven by a preponderance of evidence. Doe, Sex Offender
5 Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass.
749, 757 (2021) (Doe No. 3177).
When determining whether hearsay evidence is substantially
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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-1089
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 447842
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 decision by the Sex Offender Registry Board
(SORB) ordering him to continue registering as a level three sex
offender. See G. L. c. 6, § 178K (2) (c). On appeal, Doe
maintains that (1) the hearing examiner improperly based her
decision on unreliable hearsay and (2) the level three
reclassification was not supported by substantial evidence. We
affirm.
Background. We summarize the facts found by the hearing
examiner, supplemented by additional undisputed facts from the
record. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No.
10800).
In June 2009, a fourteen year old girl (victim 1) reported
to police that she was raped by Doe, who was the boyfriend of
her brother's roommate. Victim 1 told police that she was
drinking alcohol and smoking marijuana with a friend, Doe, and
Doe's girlfriend. Victim 1's brother joined them, and they
continued drinking until she felt dizzy and "passed out" on a
love seat in the living room of her brother's apartment. When
she woke up, she felt Doe on top of her and vaginally
penetrating her with his penis. She yelled at him to get off
her, but he refused. Doe pressed his forearms against her
shoulders, holding her down, and she was unable to move. Victim
1 described the rape lasting approximately fifteen minutes and
described Doe's boxers as dark in color. Victim 1 said she felt
dizzy after the rape, "passed out" until the morning, and woke
up in pain, especially around her vaginal area.
Following a trial in the Superior Court in June 2010, a
jury acquitted Doe of rape of a child under the age of sixteen
with force. The hearing examiner found that despite Doe's
acquittal, victim 1's statements were "sufficiently detailed,
credible and reliable to find them as fact" in the
reclassification decision. The hearing examiner found that
2 Doe's girlfriend and the victim's brother corroborated the
victim's statements that they had consumed drugs and alcohol and
that she had fallen asleep on a couch after not feeling well.
The hearing examiner also found that the victim's medical
records confirmed that she had been "forcefully penetrated with
signs of vaginal trauma and abrasions." The hearing examiner
considered the incident as "the first detected sexual misconduct
perpetrated by [Doe]."
In February 2012, the fourteen year old daughter of Doe's
girlfriend (victim 2) told police that he began sexually
assaulting her in May 2011. She reported that on twenty
different occasions, Doe forced his penis into her mouth.
Victim 2 stated that he also touched her breast and vagina
approximately nine to twelve times. Following a Superior Court
jury trial in October 2013, Doe was convicted of one count of
rape of a child under the age of sixteen with force in violation
of G. L. c. 265, § 22A, assault of a child with intent to commit
rape in violation of G. L. c. 265, § 24B, and two counts of
indecent assault and battery on a person fourteen or older
violation of G. L. c. 265, § 13H.
On or about December 17, 2018, SORB notified Doe of his
duty to register as a level three sex offender pursuant to G. L.
c. 6, § 178K (2) (c). Doe challenged the recommendation and
3 after a hearing on June 25, 2019, Doe was classified as a level
three sex offender. On November 14, 2022, Doe petitioned SORB
for reclassification. After reviewing Doe's petition, SORB
recommended that Doe continue to be required to register as a
level three sex offender. Doe requested a hearing to challenge
SORB's recommendation and the hearing examiner held a de novo
reclassification hearing on June 22, 2023. On September 6,
2023, the hearing examiner found Doe had a continuing duty to
register as a level three sex offender. Doe appealed that
decision to the Superior Court, where a judge denied his motion
for judgment on the pleadings and affirmed the hearing
examiner's decision on July 2, 2024.
Discussion. We review de novo a judge's consideration of
an agency decision. Doe, Sex Offender Registry Bd. No. 523391
v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019)
(Doe No. 523391). We "may set aside or modify SORB's
classification decision" if we determine that it exceeds "SORB'S
statutory authority or jurisdiction, violates constitutional
provisions, is based on an error of law, or is not supported by
substantial evidence." Doe, Sex Offender Registry Bd. No.
496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019)
(Doe No. 496501), citing G. L. c. 30A, § 14 (7). We "give due
weight to the experience, technical competence, and
4 specialized knowledge of the agency." Doe, Sex Offender
Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass.
594, 602 (2013), quoting G. L. c. 30A, § 14 (7).
1. Admission of hearsay evidence. Doe contends that the
hearing examiner erred in admitting the hearsay statement of
victim 1 to police because it lacked the requisite indicia of
reliability. As a result, Doe argues that the hearing
examiner's reliance on the hearsay prejudiced him because it
formed the basis of her determination that Doe raped victim 1,
which led to the hearing examiner erroneously classifying him as
a level three sex offender. We are not persuaded.
"A hearing examiner is not bound by the rules of evidence
applicable to court proceedings." Doe, No. 10800, 459 Mass. at
638. Hearing examiners may exercise their discretion to admit
and give probative value to evidence "if it is the kind of
evidence on which reasonable persons are accustomed to rely in
the conduct of serious affairs." Id., quoting G. L. c. 30A,
§ 11 (2). "[H]earsay evidence bearing indicia of reliability
constitutes admissible and substantial evidence." Id. Where
there is an allegation of sexual misconduct that did not result
in a conviction for a sex offense, the hearing examiner may
consider the facts underlying the charges where such facts are
proven by a preponderance of evidence. Doe, Sex Offender
5 Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass.
749, 757 (2021) (Doe No. 3177).
When determining whether hearsay evidence is substantially
reliable, a hearing examiner should consider factors including
"the general plausibility and consistency of the victim's or
witness's story, the circumstances under which it is related,
the degree of detail, [and] the motives of the narrator, [and]
the presence or absence of corroboration" (citation omitted).
Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender
Registry Bd., 88 Mass. App. Ct. 73, 78 (2015) (Doe No. 356011).
We review "whether it was reasonable for the examiner to admit
and credit the facts described in the hearsay evidence"
(quotation and citation omitted). Doe No. 523391, 95 Mass. App.
Ct. at 89.
Victim 1's statement, given to police the day after the
rape, was plausible, consistent, and detailed. Moreover, her
account was corroborated by other witnesses. See Doe No.
356011, 88 Mass. App. Ct. at 78. Victim 1's brother's statement
to police corroborated her narrative of the events prior to and
after the rape. Her brother reported to police that she told
him she had not been feeling well that evening, and he later saw
her "on the couch curled up into a ball" and her friend asleep
on a recliner next to her, corroborating victim 1's statement
6 that she had "passed out" on a love seat. Victim 1's brother
told police that he saw Doe asleep on the bed in dark-colored
boxers, corroborating victim 1's description of the color of
Doe's boxers. Doe's girlfriend reported to police that they had
all been drinking and smoking marijuana. Victim 1's statement
was further corroborated by her mother's statement to police
that the sexual assault evaluation performed on victim 1 at the
hospital revealed "trauma and abrasions" and "forced entry" to
her vagina.
Doe argues that inconsistencies in some of the statements
given by witnesses regarding the events leading up to the rape
show that the statements lack indicia of reliability. Although
there were some inconsistent statements, they involved details
such as the timing of when victim 1's brother and her friend
arrived at the party and whether victim 1's sister was present
at the party. The inconsistencies noted by Doe fail to
undermine the reliability of victim 1's statements describing
the rape, which, as we have discussed, contained specific
details that were corroborated in part by other witnesses. See
Doe No. 3177, 486 Mass. at 758-760 (victim's hearsay statements,
which included multiple inconsistencies, could be found reliable
where hearing examiner considered partial corroboration from
other witness statements, weighed entirety of evidence, and
7 found there was no substantial evidence that victim was
deceptive). See also Doe No. 523391, 95 Mass. App. Ct. at 90
("other inconsistent statements by a hearsay declarant may or
may not detract from the reliability of the hearsay, depending
on the circumstances of those statements").
From the evidence, we conclude that the hearing examiner
properly determined that the statement made by victim 1 to the
police was credible, reliable, and proved by a preponderance of
evidence that Doe raped her. See Doe No. 523391, 95 Mass. App.
Ct. at 89. See also Doe No. 10800, 459 Mass. at 633 ("It is the
province of the board, not [the] court, to weigh the credibility
of the witnesses and to resolve any factual disputes"). The
hearing examiner did not err in considering the 2009 allegation
of rape as evidence of Doe's sexual misconduct in her
reclassification decision.
2. Substantial evidence. Doe argues that the hearing
examiner's applications of factor 9 (substance use) and factor
24 (less than satisfactory participation in sex offender
treatment) were not supported by substantial evidence and
warrant a remand. We disagree.
We view "substantial evidence" as "such evidence as a
reasonable mind might accept as adequate to support a
conclusion." Doe No. 10800, 459 Mass. at 632, quoting G. L.
8 c. 30A, § 1 (6). Classification decisions must be established
by clear and convincing evidence, and "a hearing examiner may
consider subsidiary facts that have been proved by a
preponderance of the evidence." Doe No. 496501, 482 Mass. at
656.
Doe contends that the hearing examiner's application of
factor 9 was error because it relied on stale evidence. The
argument lacks merit. Factor 9 "applies when the sex offender
has a history of substance use . . . or when the offender's
substance use was a contributing factor in the sexual
misconduct." 803 Code Mass. Regs. § 1.33(9)(a) (2016). The
hearing examiner applied factor 9 with full weight. The
evidence amply supported the hearing examiner's finding that
"substance use contributed to [Doe's] sexual offending against
victim 1." Multiple witnesses told police that Doe had been
drinking alcohol and smoking marijuana on the evening of the
rape of victim 1. Doe's girlfriend reported to police that Doe
bought and used cocaine that evening and that he regularly used
controlled substances.
The hearing examiner considered evidence that in 2017, Doe
"was disciplined in 2017 for attempting to introduce drugs into
the facility approximately four years into his incarceration"
and his positive tests for marijuana while he was incarcerated
9 for the governing offenses. The hearing examiner also properly
considered that since Doe's release from custody in September
2020, there was no evidence that Doe "has attempted to engage in
substance abuse treatment or has maintained sobriety."
Doe contends that the hearing examiner failed to consider
evidence that Doe completed substance use treatment while
incarcerated. In light of the other evidence supporting the
hearing examiner's finding that Doe had a substance abuse
history and that his substance use contributed to his sexual
offending against victim 1, we conclude that the examiner acted
within her discretion by applying factor 9 with full weight.
When making a classification decision, a hearing examiner "has
discretion . . . to consider which statutory and regulatory
factors are applicable and how much weight to ascribe to each
factor" (citation omitted). Doe, Sex Offender Registry Bd. No.
22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742
(2019) (Doe No. 22188).
We find unavailing Doe's contention that the hearing
examiner abused her discretion in applying factor 24 (less than
satisfactory participation in sex offender treatment). Factor
24 states that "[o]ffenders who refuse to participate in,
dropped out of, or are terminated by their treatment provider
from sex offender treatment present an increased risk of re-
10 offense." 803 Code Mass. Regs. § 1.33(24)(a) (2016). Doe
contends that his refusal to participate in sex offender
treatment should not have been considered because his case had
been appealed and his refusal was based on confidentiality
concerns. However, the evidence demonstrates that he refused
sex offender treatment because he maintained that he was
innocent of the crime and because he did not "agree with the
police report." The hearing examiner acted within her
discretion in applying factor 24.
Even if the hearing examiner misapplied factors 9 and 24,
we are confident that the error did not affect the
classification, as her decision rests largely on nine other
risk-elevating factors and two high-risk factors. See Doe No.
22188, 101 Mass. App. Ct. at 803-805. We conclude that omitting
factors 9 and 24 would not have changed Doe's classification as
a level three offender.
Judgment affirmed.
By the Court (Singh, Grant & Tan, JJ.1),
Clerk
Entered: March 23, 2026.
1 The panelists are listed in order of seniority.