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-1048
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528364
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. Doe
argues that (1) the hearing examiner's decision was not
supported by clear and convincing evidence, and (2) the hearing
examiner's findings concerning Internet dissemination were
insufficiently particularized to Doe's risk of reoffense. We
affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision. See Doe, Sex Offender Registry Bd.
No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606
(2011). On October 10, 2020, a seventeen year old girl (the victim)
called for a taxi around 1:25 P.M. Doe, the taxi driver,
greeted the victim after she entered the taxi. He then told her
"If no one has ever told you before, you are beautiful," and
"You are very beautiful, you have beautiful eyes, nose, lips,
and body." Doe continued to drive without further comment but,
before arriving at the victim's intended destination, stopped
the car next to an IHOP restaurant. Doe then closed the car's
windows, locked its doors, and asked the victim for a kiss. The
victim told Doe "No," and that she had a boyfriend. Doe then
got into the back seat with the victim, grabbed her hands and
said, "Let me kiss you." When the victim tried to pull away
from Doe, he grabbed her hands tighter and forcefully kissed her
on the mouth and cheeks. The victim told Doe, "Let me go,
respect me, I have a boyfriend," to which Doe responded, "No one
will find out, he won't know." Doe then grabbed the victim's
breasts and vaginal area over her clothing. The victim pushed
Doe away and repeatedly told him to let her go. After Doe
realized the victim was crying, he stopped. Doe then got out of
the backseat and reentered the driver's seat. While Doe drove
the victim to her destination, the victim sent text messages to
her boyfriend stating that she had been abused and needed help.
The victim's boyfriend was waiting for her when she arrived.
The victim's boyfriend attempted to confront Doe, but Doe drove
2 away. The next day, Doe came to the Revere Police Department
with his attorney. The police made him aware of his charges and
placed him in custody.
On March 8, 2022, Doe pleaded guilty to three counts of
indecent assault and battery on a person age fourteen or over in
violation of G. L. c. 265, § 13H.
Discussion. A board decision "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. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787
(2006) (Doe No. 10216), citing G. L. c. 30A, § 14 (7) (e), (g).
1. Doe's risk of reoffense and dangerousness. To classify
a person as a level two sex offender, the hearing examiner must
make three explicit determinations by clear and convincing
evidence:
"(1) that the risk of reoffense is moderate; (2) that the offender's dangerousness, as measured by the severity and extent of harm the offender would present to the public in the event of reoffense, is moderate; and (3) that a public safety interest is served by Internet publication of the offender's registry information."
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 644 (2019) (Doe No. 496501). In
making these determinations, "[t]he hearing examiner has
discretion to determine how much weight to ascribe to each
3 factor under consideration." Doe, Sex Offender Registry Bd. No.
23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138-139
(2019) (Doe No. 23656).
Doe challenges the hearing examiner's findings that Doe's
risk of reoffense was moderate and that any reoffense would
present a moderate degree of dangerousness to the public.
First, he argues that it was error to give moderate weight to
factor 11 (violence unrelated to sexual assaults) where the
allegation that Doe had assaulted his former girlfriend was
based on a single police report of the incident, and where the
hearing examiner only gave minimal weight to factor 10 (Doe's
contact with the criminal justice system). Second, Doe contends
that the evidence of his home situation and support system as
well as his materials submitted regarding stability in the
community show that his risk of reoffense and degree of
dangerousness are low.
a. Doe's violence unrelated to sexual assaults. The
hearing examiner credited an August 13, 2018 police report
entered in evidence. In the report, the police officer states
that he saw Doe assault a woman who was Doe's then-girlfriend in
the back of a car. Doe acknowledges that the hearing officer
"was entitled to construe the police report," but contends that
she should not have accepted "all of its components without
scrutiny," particularly because the Commonwealth filed a nolle
4 prosequi for Doe's charge, assault and battery on a household or
family member in violation of G. L. c. 265, § 13M, stemming from
this incident. We are not persuaded.
A hearing examiner "may admit and give probative effect to
that evidence 'which reasonable persons are accustomed to rely
in the conduct of serious affairs,'" including hearsay evidence
"if it bears sufficient indicia of reliability." Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 89 (2019) (Doe No. 523391), quoting Doe,
Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry
Bd., 88 Mass. App. Ct. 73, 76 (2015). "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"
(quotation and citation omitted). Doe No. 523391, supra.
Here, the hearing examiner explicitly considered and
analyzed evidence of the report's reliability, including the
fact that the officer who wrote the report saw the incident
himself, described the incident in detail, and wrote that the
alleged victim confirmed what the officer saw. See Doe No.
523391, 95 Mass. App. Ct. at 89 ("Common indicia of reliability
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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-1048
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528364
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. Doe
argues that (1) the hearing examiner's decision was not
supported by clear and convincing evidence, and (2) the hearing
examiner's findings concerning Internet dissemination were
insufficiently particularized to Doe's risk of reoffense. We
affirm.
Background. We summarize the facts as set forth in the
hearing examiner's decision. See Doe, Sex Offender Registry Bd.
No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606
(2011). On October 10, 2020, a seventeen year old girl (the victim)
called for a taxi around 1:25 P.M. Doe, the taxi driver,
greeted the victim after she entered the taxi. He then told her
"If no one has ever told you before, you are beautiful," and
"You are very beautiful, you have beautiful eyes, nose, lips,
and body." Doe continued to drive without further comment but,
before arriving at the victim's intended destination, stopped
the car next to an IHOP restaurant. Doe then closed the car's
windows, locked its doors, and asked the victim for a kiss. The
victim told Doe "No," and that she had a boyfriend. Doe then
got into the back seat with the victim, grabbed her hands and
said, "Let me kiss you." When the victim tried to pull away
from Doe, he grabbed her hands tighter and forcefully kissed her
on the mouth and cheeks. The victim told Doe, "Let me go,
respect me, I have a boyfriend," to which Doe responded, "No one
will find out, he won't know." Doe then grabbed the victim's
breasts and vaginal area over her clothing. The victim pushed
Doe away and repeatedly told him to let her go. After Doe
realized the victim was crying, he stopped. Doe then got out of
the backseat and reentered the driver's seat. While Doe drove
the victim to her destination, the victim sent text messages to
her boyfriend stating that she had been abused and needed help.
The victim's boyfriend was waiting for her when she arrived.
The victim's boyfriend attempted to confront Doe, but Doe drove
2 away. The next day, Doe came to the Revere Police Department
with his attorney. The police made him aware of his charges and
placed him in custody.
On March 8, 2022, Doe pleaded guilty to three counts of
indecent assault and battery on a person age fourteen or over in
violation of G. L. c. 265, § 13H.
Discussion. A board decision "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. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787
(2006) (Doe No. 10216), citing G. L. c. 30A, § 14 (7) (e), (g).
1. Doe's risk of reoffense and dangerousness. To classify
a person as a level two sex offender, the hearing examiner must
make three explicit determinations by clear and convincing
evidence:
"(1) that the risk of reoffense is moderate; (2) that the offender's dangerousness, as measured by the severity and extent of harm the offender would present to the public in the event of reoffense, is moderate; and (3) that a public safety interest is served by Internet publication of the offender's registry information."
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 644 (2019) (Doe No. 496501). In
making these determinations, "[t]he hearing examiner has
discretion to determine how much weight to ascribe to each
3 factor under consideration." Doe, Sex Offender Registry Bd. No.
23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138-139
(2019) (Doe No. 23656).
Doe challenges the hearing examiner's findings that Doe's
risk of reoffense was moderate and that any reoffense would
present a moderate degree of dangerousness to the public.
First, he argues that it was error to give moderate weight to
factor 11 (violence unrelated to sexual assaults) where the
allegation that Doe had assaulted his former girlfriend was
based on a single police report of the incident, and where the
hearing examiner only gave minimal weight to factor 10 (Doe's
contact with the criminal justice system). Second, Doe contends
that the evidence of his home situation and support system as
well as his materials submitted regarding stability in the
community show that his risk of reoffense and degree of
dangerousness are low.
a. Doe's violence unrelated to sexual assaults. The
hearing examiner credited an August 13, 2018 police report
entered in evidence. In the report, the police officer states
that he saw Doe assault a woman who was Doe's then-girlfriend in
the back of a car. Doe acknowledges that the hearing officer
"was entitled to construe the police report," but contends that
she should not have accepted "all of its components without
scrutiny," particularly because the Commonwealth filed a nolle
4 prosequi for Doe's charge, assault and battery on a household or
family member in violation of G. L. c. 265, § 13M, stemming from
this incident. We are not persuaded.
A hearing examiner "may admit and give probative effect to
that evidence 'which reasonable persons are accustomed to rely
in the conduct of serious affairs,'" including hearsay evidence
"if it bears sufficient indicia of reliability." Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 89 (2019) (Doe No. 523391), quoting Doe,
Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry
Bd., 88 Mass. App. Ct. 73, 76 (2015). "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"
(quotation and citation omitted). Doe No. 523391, supra.
Here, the hearing examiner explicitly considered and
analyzed evidence of the report's reliability, including the
fact that the officer who wrote the report saw the incident
himself, described the incident in detail, and wrote that the
alleged victim confirmed what the officer saw. See Doe No.
523391, 95 Mass. App. Ct. at 89 ("Common indicia of reliability
include a detailed account; the consistency of the hearsay
incident with other, known behavior; . . . and independent
5 corroboration" [citations omitted]). We discern no error in the
hearing examiner's consideration of the police report. See Id.
Doe further asserts that the hearing examiner's decision to
give minimal weight to Doe's contact with the criminal justice
system while giving moderate weight to his violent acts
unrelated to sexual assaults was "lacking in logical
consistency." We disagree. In fact, weighing these factors
differently shows that the hearing examiner approached each
factor carefully. See Doe, Sex Offender Registry Bd. No. 356315
v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 299 (2021)
("It is apparent from the hearing examiner's careful weighing of
the factors, . . . including his decision to not give full
weight to some aggravating factors, that the classification is
based on a sound exercise of informed discretion rather than the
mechanical application of a checklist or some other reflex"
[quotation and citation omitted]). The hearing examiner
appropriately weighed each factor in crediting the police
officer's report that the defendant had committed an act of
violence while simultaneously recognizing that Doe's contact
with the criminal justice system itself was minimal. See Doe
No. 23656, 483 Mass. at 138, quoting G. L. c. 30A, § 14 (7) ("we
'give due weight to the experience, technical competence, and
specialized knowledge of the agency, as well as to the
discretionary authority conferred upon it'").
6 b. Doe's mitigating factors. Doe also argues that the
hearing examiner should not have classified Doe as a level two
sex offender when she also gave full mitigating weight to his
home situation and support system and to his stability in the
community. The claim is without merit.
The weight given to the factors is left to the sound
discretion of the hearing examiner and will not be disturbed
unless "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 No. 10216, 447
Mass. at 787. See Doe No. 23656, 483 Mass. at 138-139. Here,
the hearing examiner weighed the mitigating factors1 against
Doe's risk-elevating factors in reaching her ultimate
conclusion. Doe assaulted a stranger in public while in a
position of trust as a taxi driver. The hearing examiner also
appropriately considered the report that Doe had been charged
with assault and battery on a family or household member in
2019. We decline to reweigh these factors. See id.; Doe, Sex
Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 110 (2014), ("[o]ur review does not turn on
1 The hearing officer also considered Doe's age and his compliance with his probationary conditions imposed as a result of his index offenses as mitigating factors. She gave minimal weight to Doe's age because Doe committed his index offenses at the already advanced age of forty and was forty-two years old at the time of his board hearing.
7 whether, faced with the same set of facts, we would have drawn
the same conclusion as an agency or local board, but only
whether a contrary conclusion is not merely a possible but a
necessary inference" [quotation and citation omitted]).
2. Internet publication. A hearing examiner must make an
explicit determination that "a public safety interest is served
by Internet publication of the offender's registry information."
Doe No. 496501, 482 Mass. at 644.
Contrary to Doe's contention that the hearing examiner did
not make particularized findings supporting Internet publication
of Doe's offender information, the hearing examiner considered
the fact that Doe committed his index offenses against a
stranger while in a position of public trust as a taxi driver
and while in public. She further noted that Doe's index
offenses suggested that if he reoffended, it would likely be
against a stranger in public and concluded that women in the
community should have access to Doe's registry information to
take steps to protect themselves. This was sufficient to show
that, "in light of the particular risks posed by the particular
offender, Internet access to that offender's information might
realistically serve to protect the public against the risk of
the offender's sexual reoffense." Doe No. 496501, 482 Mass. at
655. See Doe No. 23656, 483 Mass. at 145 (plaintiff's offenses
committed against strangers in public locations warranted
8 Internet publication so that members of public could "take
precautions to avoid encountering [plaintiff] in situations in
which the members of the public are vulnerable").
Judgment affirmed.
By the Court (Meade, Desmond & Wood, JJ.2),
Clerk
Entered: May 7, 2026.
2 The panelists are listed in order of seniority.