John Doe, Sex Offender Registry Board No. 523966 v. Sex Offender Registry Board.

• Court: Massachusetts Appeals Court
• Decided: February 25, 2025
• Docket: 23-P-0811
• Status: Unpublished

Opinion

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

23-P-811

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523966

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a final classification hearing, the Sex Offender

Registry Board (board) classified the plaintiff, John Doe No.

523966, as a level three sex offender. Doe sought judicial

review of the decision, and now appeals from a Superior Court

judge's allowance of the board's motion for judgment on the

pleadings, which upheld the classification decision. We affirm.

Background. Doe committed his first sex offenses in

Florida when he was sixteen years old. The victim was a nine

year old boy. Doe raped the boy and forced him to engage in a

variety of other sexualized conduct. Doe was adjudicated

delinquent on one count of sexual battery in violation of Fla.

Stat. § 794.011, which the hearing officer likened to the Massachusetts offense of rape and abuse of a child, G. L.

c. 265, § 23.

Nearly two decades later in Massachusetts, Doe was arrested

for committing various sex offenses upon a fifteen year old boy.

He pleaded guilty to rape and abuse of a child, indecent assault

and battery, possession of child pornography, and reckless

endangerment of a child. In 2021, the board notified Doe of his

duty to register, preliminarily classifying him as a level three

sex offender. Doe, then forty-three years old, requested a

hearing to challenge the preliminary classification.

The hearing examiner found that several high-risk and risk-

elevating factors applied. Because Doe was adjudicated

delinquent in 1995, then reoffended in 2014 as an adult, the

hearing examiner found that high-risk factor 2, repetitive and

compulsive behavior, 803 Code Mass. Regs. § 1.33(2) (2016),

applied with "increased weight." Focusing on the fact that Doe

was thirty-five years old when he sexually assaulted a fifteen

year old boy, the hearing examiner found that high-risk factor

3, adult offender with a child victim, 803 Code Mass. Regs.

§ 1.33(3) (2016), also applied. High-risk factor 4, offender's

age at first sex offense, 803 Code Mass. Regs. § 1.33(4) (2016),

applied because Doe committed his first offense at age sixteen

and reoffended as an adult.

2 As to risk-elevating factors, the hearing examiner applied

factor 7, relationship between offender and victim, because both

victims were extrafamilial; factor 17, male offender against

male victim; factor 19, level of physical contact, with

"increased weight," because Doe's offenses against both victims

included penile penetration; factor 20, diverse sexual behavior,

as Doe committed both contact and non-contact offenses; factor

21, diverse victim type, because the victims were both

prepubescent and postpubescent; factor 22, number of victims,

because there were two victims; and factor 27, age of victim,

because the first victim was a nine year old boy. See 803 Code

Mass. Regs. §§ 1.33(7), (17), (19), (20), (21), (22), (27)

(2016). The hearing examiner also gave "minimal weight" to

factor 12, behavior while incarcerated, 803 Code Mass. Regs.

§ 1.33(12) (2016), based on Doe's three disciplinary reports

while incarcerated.

The hearing examiner found that several risk-mitigating

factors applied as well. He applied factor 28, supervision by

probation or parole, 803 Code Mass. Regs. § 1.33(28) (2016),

because Doe was subject to five years of supervised probation

after his release from prison in December 2021. The examiner

gave "minimal weight" to factor 30, advanced age, because Doe

was forty-three years old; for offenders with child victims, the

regulations make clear that factor 30 does not apply with full

3 force until the offender reaches the age of sixty. See 803 Code

Mass. Regs. § 1.33(30) (2016). The hearing examiner also gave

only "minimal weight" to factor 32, sex offender treatment, 803

Code Mass. Regs. § 1.33(32) (2016), because Doe refused

treatment and did not take responsibility for his offenses until

the last year of his incarceration and there was scant evidence

of Doe's active participation in the sex offender group therapy

sessions he began after release. The examiner gave "full

weight" to factor 33, home situation and support system, based

on a strong letter of support from Doe's spouse, and also

applied factor 34, stability in the community, based on Doe's

efforts at self-improvement, volunteer work, and family support.

See 803 Code Mass. Regs. §§ 1.33(33), (34) (2016). Weighing the

aggravating factors and the mitigating factors, the hearing

examiner found by clear and convincing evidence that Doe's risk

of reoffense and degree of dangerousness were high and active

dissemination and Internet publication of his registry

information would serve a substantial public safety interest.

Discussion. The board's classification decisions "must be

established by clear and convincing evidence," Doe, Sex Offender

Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass.

297, 314 (2015), guided by consideration of statutory and

regulatory aggravating and mitigating factors, see Doe, Sex

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

4 483 Mass. 131, 134 (2019). "A hearing examiner has discretion

to consider which regulatory factors to apply and how to weigh

those factors based on the evidence at the hearing." Doe, Sex

Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd.,

87 Mass. App. Ct. 210, 212 (2015) (Doe No. 291554). "We 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).

Doe contends that his classification as a level three sex

offender was arbitrary and capricious and an abuse of

discretion. He does not challenge the hearing examiner's

application of any of the regulatory factors. Rather, he argues

that because the mitigating factors that the hearing examiner

considered were present, the board failed to prove by clear and

convincing evidence that he posed a high risk of reoffense. We

disagree. The evidence supported each of the hearing examiner's

findings and conclusions concerning the high-risk, risk-

elevating, and risk-mitigating factors. The weight to be

assigned to those factors was within the hearing examiner's

discretion and is entitled to deference. See Doe, Sex Offender

Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.

102, 109–110 (2014); Doe No. 291554, 87 Mass. App. Ct. at 212.

5 The classification decision was not arbitrary, capricious, or an

abuse of discretion.

Judgment affirmed.

By the Court (Massing, Walsh & Brennan, JJ.1),

Clerk

Entered: February 25, 2025.

1 The panelists are listed in order of seniority.