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-1264
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528808
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner appeals a hearing examiner's order, affirmed
by a judge of the Superior Court, classifying the petitioner as
a level three, high-risk offender and ordering Internet
publication and dissemination of his sex offender registry
information. The petitioner asserts that the examiner erred by
applying increased weight to factor 2 and by failing to apply
mitigating factors 33 and 34, and that the examiner's conclusion
that active dissemination of the petitioner's registration
information would serve a substantial public safety interest was
not supported by substantial evidence. We affirm.
Background. Doe pleaded guilty to sexually assaulting a
prepubescent ten year old girl several times in one month, including engaging in digital and penile vaginal rape,
attempting penile anal rape, groping her breast area under her
shirt, and showing her pornography on his phone. The girl's
family was friendly with the petitioner, who came to their home
to help with minor tasks, and the petitioner was a former
boyfriend of the victim's aunt.
In addition to this offense, the examiner also considered
evidence of two other sexual assaults that occurred many years
earlier. When the petitioner was thirteen years old, he was
investigated after a five year old girl reported that he had
"put his [penis] on her back," which the examiner assessed as an
indecent assault and battery rather than a "penetrative act."
The examiner noted that the petitioner "was investigated for
sexual misconduct" and, based on the limited available
information, declined to find that there had been any such
misconduct.
The examiner also described the petitioner's rape, at age
fourteen, of a sixteen year old girl who was babysitting in the
petitioner's mother's home. After forcibly undoing the girl's
pants, the petitioner pushed her onto her elbows on the floor,
pulled her pants down, and anally raped her. The petitioner was
also alleged to have grabbed this victim's breasts and touched
her inappropriately before the rape, and to have been observed
openly masturbating in her presence. The petitioner was charged
2 with rape. The charge was later reduced to assault and battery
and the matter was continued without a finding for approximately
eighteen months, then dismissed. The examiner found by clear
and convincing evidence that the petitioner raped and sexually
assaulted this victim.
Discussion. "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). "The 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. 356011 v. Sex Offender Registry Bd., 88 Mass.
App. Ct. 73, 76 (2015), quoting Doe, Sex Offender Registry Bd.
No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787
(2006). "Substantial evidence is 'such evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Doe,
Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry
Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6).
"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" (quotation and
citation omitted). Doe No. 523391, supra at 88.
3 In affirming the petitioner's level three classification,
the examiner relied on high-risk factors 2 (repetitive and
compulsive behavior, applied with increased weight), 3 (adult
offender with child victim, applied with increased weight), and
4 (offender's age at first sex offense, applied).
The petitioner does not dispute that factor 2 applies but
contends that the hearing examiner abused his discretion in
assigning increased weight to this factor. The petitioner
points to the two decades during which he was in the community
between offending with the sixteen year old victim (when he was
fourteen years old) and offending with the ten year old victim
(at age thirty-five) and asserts that this offense-free time
demonstrated that he could "control his sexual desires"; he also
asserts that special consideration of this offense-free time was
warranted because the board does not include this consideration
in its promulgated factors. We are not persuaded.
Doe's ability to pursue his factor 2 argument runs aground,
as counsel appropriately acknowledged at oral argument, on the
absence of either a facial challenge to the regulation or record
support. Factor 2 may be applied with the highest weight when
an offender "engages in sexual misconduct after having been
charged with or convicted of a sex offense." Doe, Sex Offender
Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass.
App. Ct. 738, 742 (2019) (Doe No. 22188), quoting 803 Code Mass.
4 Regs. § 1.33(2) (2016). Increased weight is appropriate when an
offender is "investigated by an authority for sexual misconduct
and, nonetheless, commit[s] a subsequent act of sexual
misconduct." Doe No. 22188, supra, quoting 803 Code Mass. Regs.
§ 1.33(2). The petitioner's history included three temporally
distinct, violent sex crimes, and he was investigated or charged
after each. In addition, after having admitted to sufficient
facts in connection with the rape of the sixteen year old, the
petitioner engaged in the multiple rapes and indecent assaults
on the ten year old, evidencing repetitive conduct and
undermining this argument. Cf. Doe No. 22188, supra at 742-743.
The petitioner also attacks the hearing examiner's failure
to apply factors 33 (home situation and support systems) and 34
(stability in the community). Doe asserts that the record
contains evidence that (1) he was employed at the time of his
probation-ordered assessment for sex offender treatment (October
27, 2022) and (2) his mother is his support system, helps with
his bills, and tells Doe that she loves him. Doe failed to
raise this argument before this appeal, however, which means the
argument is waived. See Smith v. Sex Offender Registry Bd., 65
Mass. App. Ct. 803, 810 (2006).
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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-1264
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528808
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner appeals a hearing examiner's order, affirmed
by a judge of the Superior Court, classifying the petitioner as
a level three, high-risk offender and ordering Internet
publication and dissemination of his sex offender registry
information. The petitioner asserts that the examiner erred by
applying increased weight to factor 2 and by failing to apply
mitigating factors 33 and 34, and that the examiner's conclusion
that active dissemination of the petitioner's registration
information would serve a substantial public safety interest was
not supported by substantial evidence. We affirm.
Background. Doe pleaded guilty to sexually assaulting a
prepubescent ten year old girl several times in one month, including engaging in digital and penile vaginal rape,
attempting penile anal rape, groping her breast area under her
shirt, and showing her pornography on his phone. The girl's
family was friendly with the petitioner, who came to their home
to help with minor tasks, and the petitioner was a former
boyfriend of the victim's aunt.
In addition to this offense, the examiner also considered
evidence of two other sexual assaults that occurred many years
earlier. When the petitioner was thirteen years old, he was
investigated after a five year old girl reported that he had
"put his [penis] on her back," which the examiner assessed as an
indecent assault and battery rather than a "penetrative act."
The examiner noted that the petitioner "was investigated for
sexual misconduct" and, based on the limited available
information, declined to find that there had been any such
misconduct.
The examiner also described the petitioner's rape, at age
fourteen, of a sixteen year old girl who was babysitting in the
petitioner's mother's home. After forcibly undoing the girl's
pants, the petitioner pushed her onto her elbows on the floor,
pulled her pants down, and anally raped her. The petitioner was
also alleged to have grabbed this victim's breasts and touched
her inappropriately before the rape, and to have been observed
openly masturbating in her presence. The petitioner was charged
2 with rape. The charge was later reduced to assault and battery
and the matter was continued without a finding for approximately
eighteen months, then dismissed. The examiner found by clear
and convincing evidence that the petitioner raped and sexually
assaulted this victim.
Discussion. "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). "The 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. 356011 v. Sex Offender Registry Bd., 88 Mass.
App. Ct. 73, 76 (2015), quoting Doe, Sex Offender Registry Bd.
No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787
(2006). "Substantial evidence is 'such evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Doe,
Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry
Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6).
"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" (quotation and
citation omitted). Doe No. 523391, supra at 88.
3 In affirming the petitioner's level three classification,
the examiner relied on high-risk factors 2 (repetitive and
compulsive behavior, applied with increased weight), 3 (adult
offender with child victim, applied with increased weight), and
4 (offender's age at first sex offense, applied).
The petitioner does not dispute that factor 2 applies but
contends that the hearing examiner abused his discretion in
assigning increased weight to this factor. The petitioner
points to the two decades during which he was in the community
between offending with the sixteen year old victim (when he was
fourteen years old) and offending with the ten year old victim
(at age thirty-five) and asserts that this offense-free time
demonstrated that he could "control his sexual desires"; he also
asserts that special consideration of this offense-free time was
warranted because the board does not include this consideration
in its promulgated factors. We are not persuaded.
Doe's ability to pursue his factor 2 argument runs aground,
as counsel appropriately acknowledged at oral argument, on the
absence of either a facial challenge to the regulation or record
support. Factor 2 may be applied with the highest weight when
an offender "engages in sexual misconduct after having been
charged with or convicted of a sex offense." Doe, Sex Offender
Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass.
App. Ct. 738, 742 (2019) (Doe No. 22188), quoting 803 Code Mass.
4 Regs. § 1.33(2) (2016). Increased weight is appropriate when an
offender is "investigated by an authority for sexual misconduct
and, nonetheless, commit[s] a subsequent act of sexual
misconduct." Doe No. 22188, supra, quoting 803 Code Mass. Regs.
§ 1.33(2). The petitioner's history included three temporally
distinct, violent sex crimes, and he was investigated or charged
after each. In addition, after having admitted to sufficient
facts in connection with the rape of the sixteen year old, the
petitioner engaged in the multiple rapes and indecent assaults
on the ten year old, evidencing repetitive conduct and
undermining this argument. Cf. Doe No. 22188, supra at 742-743.
The petitioner also attacks the hearing examiner's failure
to apply factors 33 (home situation and support systems) and 34
(stability in the community). Doe asserts that the record
contains evidence that (1) he was employed at the time of his
probation-ordered assessment for sex offender treatment (October
27, 2022) and (2) his mother is his support system, helps with
his bills, and tells Doe that she loves him. Doe failed to
raise this argument before this appeal, however, which means the
argument is waived. See Smith v. Sex Offender Registry Bd., 65
Mass. App. Ct. 803, 810 (2006).
The meat of the petitioner's appeal, as ably articulated at
oral argument, was that the hearing examiner failed to give due
consideration to the practical ameliorative effect of the terms
5 of the petitioner's probation when considering the "efficacy" of
Internet publication and dissemination of the petitioner's
personal and sex offender information. See Doe, Sex Offender
Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643, 654 (2019) (Doe No. 496501). "Whether a public safety
interest will be 'served' by Internet publication depends not
only on the probability of reoffense and the danger posed by
that potential reoffense but also on the efficacy of online
publication in protecting the public from being victimized by
the offender." Id. at 654. In considering this argument, we
are mindful that the purpose of the law establishing the sex
offender registration system was "'to protect . . . the
vulnerable members of our communities from sexual offenders,'
and particularly from 'sexually violent offenders who commit
predatory acts characterized by repetitive and compulsive
behavior.'" Id. at 645, quoting St. 1999, c. 74, emergency
preamble & § 1.
We remain unpersuaded. The task of the hearing examiner
when considering whether to order Internet publication and
dissemination is to determine "whether and to what degree public
access to the offender's personal and sex offender information
. . . is in the interest of public safety." Doe No. 496501, 482
Mass. at 654, quoting 803 Code Mass. Regs. § 1.20(2) (2016).
This "must be determined based on the facts of each individual
6 case." Doe No. 496501, supra at 655. In so doing, an examiner
must consider "what type of sexual crime the offender would
likely commit if he or she were to reoffend. Pragmatically,
because past is prologue, a hearing examiner would make this
determination based on the sexual crime or crimes that the
offender committed in the past." Id. at 651.
Turning to the petitioner's argument, the hearing examiner
applied risk-mitigating factor 28 because the petitioner will
remain under probation supervision until late October 2027.
While the examiner did not describe the probation terms
(including GPS monitoring and exclusion zones) in his findings,
that information was presented to him and discussed at the
hearing. The examiner's explanation was adequate to assure us
that the examiner considered this factor, as he was bound to do.
See Doe No. 496501, 482 Mass. at 645-646.
The examiner acted within his discretion in determining
that the mitigating effect of the remaining probationary period
did not outweigh the petitioner's history of sexual assault on
"very young, pre-pubescent, children and/or sexually mature
girls" -- a "broad victim pool" -- in assaults involving "a high
level of physical contact." In reasoning that publication and
dissemination were warranted, the examiner further noted that
the victims knew the petitioner, which is "empirically related
to an increased risk of re-offense." This known-victim dynamic
7 must also be part of the calculus when considering the efficacy
of the GPS exclusion zones, which included schools, playgrounds,
and places where stranger children may be found but not, for
example, the home of a friend, the environment in which the
petitioner assaulted his youngest and most recent victim.
In determining the need for dissemination and publication
the examiner also noted the petitioner "has demonstrated that
being investigated for sexual assault is not a deterrent to him
further sexually victimizing additional people," and that "the
likelihood of being discovered [was] not a deterrent" as the
petitioner had committed one assault when another child was
"very close by." The examiner wrote that, should the petitioner
offend again, it would likely be against particularly vulnerable
victims ("young, pre-pubescent children, or sexually mature
girls").
8 Based on this analysis, the hearing examiner found that
women and parents with young children who were known to the
petitioner should have access to his sex offender registry
information for their protection and the protection of their
children. "We cannot say that a contrary conclusion was
required by the evidence." Doe, Sex Offender Registry Bd. No.
23656 v. Sex Offender Registry Bd., 483 Mass. 131, 146 (2019).
Judgment affirmed.
By the Court (Desmond, Hershfang & Brennan, JJ.1),
Clerk
Entered: May 1, 2026.
1 The panelists are listed in order of seniority.