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-1480
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526680
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.1 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
1The Superior Court judge affirmed SORB's classification in a memorandum and order. Because the memorandum and order resolved all outstanding issues in the case and both parties appear to have treated it as a final judgment, we also treat it as a final judgment. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995); Flood v. Midland Nat'l Life Ins. Co., 419 Mass. 176, 177 n.1 (1994). requiring Internet dissemination of Doe's personal information.
We affirm.2
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 rape of his forty-
four year old wife (victim). Specifically, on June 1, 2015, the
victim reported to police that Doe, "her estranged husband," who
was then forty years old, showed up at her apartment to discuss
their pending divorce. At some point Doe "became angry." The
victim noted that Doe had been drinking for "most of the day,"
and attempted to avoid further discussion with him by going to
the bathroom, but Doe followed her there. Doe told the victim
multiple times that he "wanted to make love to her." After the
victim refused his overtures, he told her that "if she didn't
make love with him then he was just going to take her." The
victim attempted to "get away from [Doe]," but he followed her
into her bedroom. Doe ignored her pleas to leave, "started to
yell and grabbed her by her arms and threw her on the bed." Doe
2 Per the joint request of the parties, this case was submitted on briefs and without oral argument. See Mass. R. A. P. 22 (f), as appearing in 481 Mass. 1651 (2019).
2 began to remove his clothing, pushed her back onto the bed,
straddled her, "ripped her shirt off and pulled down her pants
and panties," and, despite the victim's attempt to fight him
off, "grabbed her legs" and "stuck his fingers in her vagina."
The victim "cried and yelled at him to stop." Doe initially
complied, but then "stuck his fingers back into her vagina a
second time."
The following morning, the victim went to the home of a
friend and disclosed the events from the prior evening. Police
officers noted that the victim had "some slight bruising to her
upper right shoulder, and a vertical scratch mark to her
stomach." In addition, the victim's fourteen year old daughter,
who was at the apartment during the sexual assault, reported
that she "heard her mother telling [Doe] to get away and to get
off of her."
On November 9, 2018, a jury found Doe guilty of one count
of rape and one count of assault and battery on a family or
household member. He was sentenced to three to five years of
imprisonment followed by three years of probation. He was still
incarcerated at the time of the classification hearing in the
present case.
On July 7, 2020, SORB notified Doe of his duty to register
as a level three sex offender. Doe challenged the
classification, and on January 10, 2022, a de novo hearing was
3 held pursuant to G. L. c. 6, § 178L. On February 10, 2022, the
examiner issued a decision in which she found, by clear and
convincing evidence, that Doe presented a moderate risk of
reoffense and dangerousness such that a public safety interest
was served by Internet publication of his registry information,
and classified Doe as a level two sex offender. Doe sought
judicial review of the decision pursuant to G. L. c. 30A, § 14.
On November 10, 2023, 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.
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) (Doe No.
10216), quoting G. L. c. 30A, § 14 (7). Doe therefore "bears a
heavy burden of establishing that [SORB]'s decision was
4 incorrect" (citation omitted). Doe, Sex Offender Registry Bd.
No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 757
(2021).
2. Classification determination. a. Application of
factor 16. The examiner found that the victim's fourteen year
old daughter was in the home when Doe sexually assaulted the
victim, and that the daughter "did, in fact, hear the [v]ictim
pleading with [Doe] to get off of her." The examiner determined
that in view of these facts, risk elevating factor 16 (public
place) applied. Doe argues that the examiner erred in applying
factor 16 because the rape occurred in the victim's private
bedroom, Doe went to the victim's apartment late at night, and
Doe did not assault the victim until hours later when "it was
reasonable that most of the people residing in the apartment
were asleep." We disagree.
Factor 16 provides as follows:
"The commission of a sex offense or engaging in sexual misconduct in a place where detection is likely reflects the offender's lack of impulse control. The Board may apply less weight to factor 16 if there is evidence that the offender made a clear and concerted effort to conceal his offending behavior from others. For purposes of factor 16, a 'public place' includes any area maintained for or used by the public and any place that is open to the scrutiny of others or where there is no expectation of privacy."
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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
23-P-1480
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526680
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.1 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
1The Superior Court judge affirmed SORB's classification in a memorandum and order. Because the memorandum and order resolved all outstanding issues in the case and both parties appear to have treated it as a final judgment, we also treat it as a final judgment. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995); Flood v. Midland Nat'l Life Ins. Co., 419 Mass. 176, 177 n.1 (1994). requiring Internet dissemination of Doe's personal information.
We affirm.2
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 rape of his forty-
four year old wife (victim). Specifically, on June 1, 2015, the
victim reported to police that Doe, "her estranged husband," who
was then forty years old, showed up at her apartment to discuss
their pending divorce. At some point Doe "became angry." The
victim noted that Doe had been drinking for "most of the day,"
and attempted to avoid further discussion with him by going to
the bathroom, but Doe followed her there. Doe told the victim
multiple times that he "wanted to make love to her." After the
victim refused his overtures, he told her that "if she didn't
make love with him then he was just going to take her." The
victim attempted to "get away from [Doe]," but he followed her
into her bedroom. Doe ignored her pleas to leave, "started to
yell and grabbed her by her arms and threw her on the bed." Doe
2 Per the joint request of the parties, this case was submitted on briefs and without oral argument. See Mass. R. A. P. 22 (f), as appearing in 481 Mass. 1651 (2019).
2 began to remove his clothing, pushed her back onto the bed,
straddled her, "ripped her shirt off and pulled down her pants
and panties," and, despite the victim's attempt to fight him
off, "grabbed her legs" and "stuck his fingers in her vagina."
The victim "cried and yelled at him to stop." Doe initially
complied, but then "stuck his fingers back into her vagina a
second time."
The following morning, the victim went to the home of a
friend and disclosed the events from the prior evening. Police
officers noted that the victim had "some slight bruising to her
upper right shoulder, and a vertical scratch mark to her
stomach." In addition, the victim's fourteen year old daughter,
who was at the apartment during the sexual assault, reported
that she "heard her mother telling [Doe] to get away and to get
off of her."
On November 9, 2018, a jury found Doe guilty of one count
of rape and one count of assault and battery on a family or
household member. He was sentenced to three to five years of
imprisonment followed by three years of probation. He was still
incarcerated at the time of the classification hearing in the
present case.
On July 7, 2020, SORB notified Doe of his duty to register
as a level three sex offender. Doe challenged the
classification, and on January 10, 2022, a de novo hearing was
3 held pursuant to G. L. c. 6, § 178L. On February 10, 2022, the
examiner issued a decision in which she found, by clear and
convincing evidence, that Doe presented a moderate risk of
reoffense and dangerousness such that a public safety interest
was served by Internet publication of his registry information,
and classified Doe as a level two sex offender. Doe sought
judicial review of the decision pursuant to G. L. c. 30A, § 14.
On November 10, 2023, 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.
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) (Doe No.
10216), quoting G. L. c. 30A, § 14 (7). Doe therefore "bears a
heavy burden of establishing that [SORB]'s decision was
4 incorrect" (citation omitted). Doe, Sex Offender Registry Bd.
No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 757
(2021).
2. Classification determination. a. Application of
factor 16. The examiner found that the victim's fourteen year
old daughter was in the home when Doe sexually assaulted the
victim, and that the daughter "did, in fact, hear the [v]ictim
pleading with [Doe] to get off of her." The examiner determined
that in view of these facts, risk elevating factor 16 (public
place) applied. Doe argues that the examiner erred in applying
factor 16 because the rape occurred in the victim's private
bedroom, Doe went to the victim's apartment late at night, and
Doe did not assault the victim until hours later when "it was
reasonable that most of the people residing in the apartment
were asleep." We disagree.
Factor 16 provides as follows:
"The commission of a sex offense or engaging in sexual misconduct in a place where detection is likely reflects the offender's lack of impulse control. The Board may apply less weight to factor 16 if there is evidence that the offender made a clear and concerted effort to conceal his offending behavior from others. For purposes of factor 16, a 'public place' includes any area maintained for or used by the public and any place that is open to the scrutiny of others or where there is no expectation of privacy."
803 Code Mass. Regs. § 1.33(16)(a) (2016). Here, the victim's
daughter was in the apartment when and where the rape and
5 assault occurred, and heard her mother telling the plaintiff to
"get off of her" as the crime was taking place. Doe, who had
been drinking most of the day, went to the apartment uninvited,
became angry, followed the victim into her bedroom despite her
repeated attempts to be left alone, straddled and assaulted her,
and, in spite of the victim's yelling and pleading, committed a
violent rape and physical assault in the victim's bedroom.
Under these particular circumstances, where the daughter could
hear, and indeed did hear, the crime in progress, it is clear
that Doe did not make a "clear and concerted effort to conceal
his offending behavior from others," and it was reasonable for
the examiner to find that the offense was committed in a place
"open to the scrutiny of others." 803 Code Mass. Regs.
§ 1.33(16)(a) (2016). See Doe 10216, 447 Mass. at 789
(rejecting argument that definition of "public place" be limited
to offenses committed in "truly public places, like parks or
schools"). Accordingly, on the record before us, we cannot
conclude that the application of factor 16 rendered the level
two classification arbitrary and capricious.
b. Failure to prove level two classification. Doe
contends that SORB failed to meet its burden to prove by clear
and convincing evidence that he poses a moderate risk of
reoffending. The claim is unavailing.
6 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).
Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 110 (2014) (Doe No. 68549). See
Doe No. 10800, supra at 633 ("It is the province of the board,
not this court, to weigh 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 four risk elevating factors to her
analysis, all of which were supported by the evidence.3 Further,
3 Factor 8, weapon, violence or infliction of bodily injury; factor 9, alcohol and substance abuse (here, applied with minimal weight); factor 16, public place; and factor 19, level of physical contact.
7 the examiner chose to apply some weight to various mitigating
factors.4 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.
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. The argument is
unpersuasive. The examiner explained how active dissemination
of Doe's registry information served public safety. Based on
the violent nature of the offense and Doe's relationship with
the victim, his wife at the time, the examiner considered that
if Doe were to reoffend, there is a likelihood that such an
offense would involve a woman who "may become known to [Doe],"
and with whom "he may become involved in a relationship." The
examiner reasoned that in the interest of public safety, such
women should have access to his registry information "to take
steps to protect themselves." The record supports this
conclusion. Cf. Doe, Sex Offender Registry Bd. No. 496501 v.
Sex Offender Registry Bd., 482 Mass. 643, 655 (2019) (Internet
4 Factor 28, supervision by probation or parole; factor 30, advanced age (here, considered with moderate weight); factor 33, home situation and support systems; and factor 34, materials submitted by the sex offender regarding stability in the community (here, considered with minimal weight).
8 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, or an abuse of discretion.
Judgment affirmed.
By the Court (Massing, Neyman & Wood, JJ.5),
Clerk
Entered: June 25, 2025.
5 The panelists are listed in order of seniority.