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-694
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528280
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 Sex Offender Registry Board (board)
decision classifying Doe as a level two sex offender. On
appeal, Doe claims that the hearing examiner erred in
(1) relying on hearsay statements by the victim and (2) applying
regulatory factors three (adult with child victim) and eighteen
(extravulnerable victim). 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). In 2017, Doe, then thirty-six years old, sexually assaulted
the victim, then sixteen years old, at her sister's house. Doe
was the sister's fiancé at the time, although they did not
reside together. The victim was lying in bed when Doe got on
top of her and rubbed his hands over her body. Doe placed the
victim's hands over her head, pulled her shirt down, exposed her
breasts, and put his mouth on her nipple. Doe tried to remove
the victim's clothes, touched her vagina over and under her
clothes, exposed his penis to the victim, and tried to put it in
her vagina. After the victim's sister called her, Doe got off
her and left the room.
The victim reported the incident to the Brockton police
department that same day. She also reported that Doe had
engaged in other instances of sexual misconduct. The victim
then participated in a Sexual Assault Intervention Network
(SAIN) interview, which was videotaped. After describing the
recent incident, the victim stated that Doe had assaulted her in
a similar manner months earlier at her sister's house. The
victim further stated that two years earlier Doe had "tr[ied] to
do stuff to her" after he entered her room at her house while
she was sleeping, but that time Doe did not put his mouth on her
breast.
In 2022, Doe pleaded guilty to one count of indecent
assault and battery on a person fourteen or over, in violation
2 of G. L. c. 265, § 13H. He was sentenced to a two and one-half
year term in the house of correction, suspended with probation
until January 3, 2025. After his guilty plea, the board
notified Doe of his obligation to register as a level two sex
offender, pursuant to G. L. c. 6, § 178K (2) (b). Doe requested
an administrative hearing to challenge the board's preliminary
classification. Following that hearing, the examiner ordered
Doe to register as a level two sex offender, concluding, "by
clear and convincing evidence," that "[Doe] poses a moderate
risk to re-offend and a moderate degree of dangerousness." Doe
sought judicial review of his classification in the Superior
Court, and a judge affirmed Doe's classification.
Discussion. 1. Standard of review. "We review a judge's
consideration of an agency decision de novo." Doe, Sex Offender
Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.
App. Ct. 85, 89 (2019) (Doe No. 523391). "[A] decision of SORB
'may only be set aside if the court determines 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. 22188 v. Sex Offender
Registry Bd., 101 Mass. App. Ct. 797, 801 (2022), quoting Doe,
Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd.,
99 Mass. App. Ct. 533, 537 (2021). In reviewing the board's
decision, we "give due weight to the experience, technical
3 competence, and specialized knowledge of the [board], 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).
2. Reliance on hearsay. Doe contends that the examiner
improperly relied on hearsay statements made by the victim to
the Brockton police and during a SAIN interview. As a hearing
examiner "need not observe the rules of evidence observed by
courts," G. L. c. 30A, § 11 (2), "[h]earsay, even multilevel
hearsay, may be admissible at classification hearings." Doe,
Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry
Bd., 88 Mass. App. Ct. 73, 76-77 (2015) (Doe No. 356011). "When
reviewing an examiner's determination that hearsay evidence is
substantially reliable, we ask whether 'it was reasonable for
the examiner to admit and credit' the facts described in the
hearsay evidence." Doe No. 523391, 95 Mass. App. Ct. at 89,
quoting Doe No. 356011, 88 Mass. App. Ct. at 77. "Such indicia
include 'the general plausibility and consistency of the
victim's or witness's story, the circumstances under which it is
related, the degree of detail, the motives of the narrator, the
presence or absence of corroboration and the like.'" Doe, Sex
Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd.,
488 Mass. 15, 26-27 (2021), quoting Doe, Sex Offender Registry
4 Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct.
309, 313 (2007).
Here, it was reasonable for the hearing examiner to admit
and credit the victim's hearsay statements. See Doe No. 356011,
88 Mass. App. Ct. at 77. The victim's statements were rendered
substantially reliable by Doe's subsequent decision to plead
guilty for engaging in nearly identical misconduct against the
victim. See Davis v. Allard, 37 Mass. App. Ct. 508, 511 (1994).
In addition, the victim's descriptions of Doe's sexual assaults
and sexual misconduct were plausible, consistent, and detailed.
See Doe No. 523391, 95 Mass. App. Ct. at 89. In particular,
while the victim's statements during the SAIN interview were
more detailed, they were still consistent with her report to the
police. The victim told the police that Doe had assaulted her
on multiple occasions, and during the SAIN interview she stated
that there were "other times things happened with him,"
described two of those incidents in detail, and identified
approximately when each incident occurred. The victim's
description of the two earlier incidents was also consistent
with her description of the indecent assault for which Doe
pleaded guilty. See id. (reliability may be demonstrated by
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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-694
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528280
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 Sex Offender Registry Board (board)
decision classifying Doe as a level two sex offender. On
appeal, Doe claims that the hearing examiner erred in
(1) relying on hearsay statements by the victim and (2) applying
regulatory factors three (adult with child victim) and eighteen
(extravulnerable victim). 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). In 2017, Doe, then thirty-six years old, sexually assaulted
the victim, then sixteen years old, at her sister's house. Doe
was the sister's fiancé at the time, although they did not
reside together. The victim was lying in bed when Doe got on
top of her and rubbed his hands over her body. Doe placed the
victim's hands over her head, pulled her shirt down, exposed her
breasts, and put his mouth on her nipple. Doe tried to remove
the victim's clothes, touched her vagina over and under her
clothes, exposed his penis to the victim, and tried to put it in
her vagina. After the victim's sister called her, Doe got off
her and left the room.
The victim reported the incident to the Brockton police
department that same day. She also reported that Doe had
engaged in other instances of sexual misconduct. The victim
then participated in a Sexual Assault Intervention Network
(SAIN) interview, which was videotaped. After describing the
recent incident, the victim stated that Doe had assaulted her in
a similar manner months earlier at her sister's house. The
victim further stated that two years earlier Doe had "tr[ied] to
do stuff to her" after he entered her room at her house while
she was sleeping, but that time Doe did not put his mouth on her
breast.
In 2022, Doe pleaded guilty to one count of indecent
assault and battery on a person fourteen or over, in violation
2 of G. L. c. 265, § 13H. He was sentenced to a two and one-half
year term in the house of correction, suspended with probation
until January 3, 2025. After his guilty plea, the board
notified Doe of his obligation to register as a level two sex
offender, pursuant to G. L. c. 6, § 178K (2) (b). Doe requested
an administrative hearing to challenge the board's preliminary
classification. Following that hearing, the examiner ordered
Doe to register as a level two sex offender, concluding, "by
clear and convincing evidence," that "[Doe] poses a moderate
risk to re-offend and a moderate degree of dangerousness." Doe
sought judicial review of his classification in the Superior
Court, and a judge affirmed Doe's classification.
Discussion. 1. Standard of review. "We review a judge's
consideration of an agency decision de novo." Doe, Sex Offender
Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.
App. Ct. 85, 89 (2019) (Doe No. 523391). "[A] decision of SORB
'may only be set aside if the court determines 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. 22188 v. Sex Offender
Registry Bd., 101 Mass. App. Ct. 797, 801 (2022), quoting Doe,
Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd.,
99 Mass. App. Ct. 533, 537 (2021). In reviewing the board's
decision, we "give due weight to the experience, technical
3 competence, and specialized knowledge of the [board], 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).
2. Reliance on hearsay. Doe contends that the examiner
improperly relied on hearsay statements made by the victim to
the Brockton police and during a SAIN interview. As a hearing
examiner "need not observe the rules of evidence observed by
courts," G. L. c. 30A, § 11 (2), "[h]earsay, even multilevel
hearsay, may be admissible at classification hearings." Doe,
Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry
Bd., 88 Mass. App. Ct. 73, 76-77 (2015) (Doe No. 356011). "When
reviewing an examiner's determination that hearsay evidence is
substantially reliable, we ask whether 'it was reasonable for
the examiner to admit and credit' the facts described in the
hearsay evidence." Doe No. 523391, 95 Mass. App. Ct. at 89,
quoting Doe No. 356011, 88 Mass. App. Ct. at 77. "Such indicia
include 'the general plausibility and consistency of the
victim's or witness's story, the circumstances under which it is
related, the degree of detail, the motives of the narrator, the
presence or absence of corroboration and the like.'" Doe, Sex
Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd.,
488 Mass. 15, 26-27 (2021), quoting Doe, Sex Offender Registry
4 Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct.
309, 313 (2007).
Here, it was reasonable for the hearing examiner to admit
and credit the victim's hearsay statements. See Doe No. 356011,
88 Mass. App. Ct. at 77. The victim's statements were rendered
substantially reliable by Doe's subsequent decision to plead
guilty for engaging in nearly identical misconduct against the
victim. See Davis v. Allard, 37 Mass. App. Ct. 508, 511 (1994).
In addition, the victim's descriptions of Doe's sexual assaults
and sexual misconduct were plausible, consistent, and detailed.
See Doe No. 523391, 95 Mass. App. Ct. at 89. In particular,
while the victim's statements during the SAIN interview were
more detailed, they were still consistent with her report to the
police. The victim told the police that Doe had assaulted her
on multiple occasions, and during the SAIN interview she stated
that there were "other times things happened with him,"
described two of those incidents in detail, and identified
approximately when each incident occurred. The victim's
description of the two earlier incidents was also consistent
with her description of the indecent assault for which Doe
pleaded guilty. See id. (reliability may be demonstrated by
"consistency of the hearsay incident with other, known behavior"
of offender). Finally, there were no obvious "[i]ndicia of
unreliability" surrounding the victim's statements. Id. While
5 Doe contends that the victim's impact statements "belie her
credibility" because they focused on the index offense, the
assault for which Doe pleaded guilty, the victim's first
statement showed that Doe had engaged in sexual misconduct with
her on multiple occasions by referring to her feeling of
isolation "the first time it happened."
3. Application of regulatory factors. Doe further
contends that the hearing examiner erroneously applied
regulatory factors three and eighteen based on the victim's
hearsay statements. Factor three applies to adult offenders
with child victims and provides that the board "shall consider
any victim younger than 16 years old as a 'child victim.'" 803
Code Mass. Regs. § 1.33(3)(a) (2016). Factor eighteen applies
to offenders who commit a sex offense or sexual misconduct
against an extravulnerable victim. 803 Code Mass. Regs.
§ 1.33(18) (2016). "Extravulnerable" includes the presence of
"any condition or circumstance" that renders a victim "more
susceptible to sexual assault" or "unable to effectively defend"
themselves or "compromises [a victim's] ability to effectively
report the abuse or provide testimony in court." Id.
The hearing examiner concluded that regulatory factor three
applies because the victim told the police and the SAIN
interviewer that Doe engaged in sexual misconduct with her when
she was in the sixth grade. At that time, the victim was eleven
6 or twelve years old, and Doe was approximately thirty-one or
thirty-two years old. Although Doe argues that the hearing
examiner erroneously applied factor three based on this earlier
incident of sexual misconduct rather than on the index offense,
a hearing examiner may consider evidence of a prior sexual
assault or misconduct that did not result in a conviction of the
offender. Doe No. 356011, 88 Mass. App. Ct. at 79. As
discussed, it was reasonable for the hearing examiner to credit
the victim's statements to the police and SAIN interviewer
regarding Doe's prior conduct, and it was within the hearing
examiner's discretionary authority to consider those statements
in the context of factor three.
We similarly discern no error with respect to the hearing
examiner's application of factor eighteen. The hearing examiner
concluded that factor eighteen was applicable because Doe
"committed a sexual misconduct against the [v]ictim while she
was asleep in her bedroom." Doe does not dispute that a victim
being asleep is a relevant circumstance under factor eighteen,
but rather contends that factor eighteen does not apply here
because the victim was awake during the index offense. Again,
however, it was reasonable for the hearing examiner to consider
the other incidents of sexual assault and misconduct reported by
the victim, including the earlier incident that occurred when
the victim was sleeping in her room at her house. Doe also
7 contends that factor eighteen does not apply to that incident
because the victim woke when she heard Doe's footsteps as he
entered her room, but the hearing examiner did not abuse his
discretion in concluding that the victim was more susceptible to
sexual assault or unable to effectively defend herself in those
circumstances.
Because the hearing examiner did not err in his application
of factors three and eighteen, we need not address Doe's
argument that the facts do not clearly dictate his
classification as a level two sex offender once factors three
and eighteen are excised from the analysis.
Judgment affirmed.
By the Court (Vuono, Desmond, & Toone, JJ.1),
Clerk
Entered: November 20, 2025.
1 The panelists are listed in order of seniority.