John Doe, Sex Offender Registry Board No. 527969 v. Sex Offender Registry Board.

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-1173

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527969

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming his classification by the Sex Offender

Registry Board (SORB) as a level two sex offender in accordance

with G. L. c. 6, § 178K (2) (b). On appeal, Doe claims that the

evidence did not support the hearing examiner's classification

decision. We affirm.

Background. We summarize the facts as set forth in the

hearing examiner's decision, "supplemented by undisputed facts

from the record." Doe, Sex Offender Registry Bd. No. 10800 v.

Sex Offender Registry Bd. 459 Mass. 603, 606 (2011) (Doe No.

10800).

On February 13, 2020, Doe, age fifty, grabbed his sixty-

four year old girlfriend by the throat, pushed her against the

wall and said, "I can fucking kill you if I want to you fucking

cunt." The victim obtained a restraining order and in her

affidavit in support of her petition for a restraining order,

she stated that Doe had been drinking hard liquor between 7:00

A.M. and 10:45 A.M. and became verbally and physically abusive.

The restraining order went into effect on February 20, 2020.

On February 26, 2020, Doe appeared at the victim's door

around 10:30 P.M., announcing himself as one of the victim's

neighbors with whom she is friendly. When she opened the door,

Doe pushed his way in, immediately "striking [the victim] with a

closed fist in the face." Doe continued to assault the victim

through the hallway and into her living room.

Doe took the victim into the bedroom and said, "Get on the

bed bitch and take off your pants." Doe then violently raped

her. After committing the rape, Doe told her that if she called

the police, "he'll finish [her] off." The victim suffered

numerous injuries, including bruising to various parts of her

face and body.

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Doe was charged with aggravated rape,1 in violation of G. L.

c. 265, § 22 (a); unarmed burglary and assault on occupants, in

violation of G. L. c. 266, § 14; assault and battery on an

elderly or disabled person, in violation of G. L. c. 265, § 13K

(a 1/2); assault and battery in violation of a restraining

order, in violation of G. L. c. 265, § 13A (b); and two counts

of violation of an abuse prevention order, in violation of G. L.

c. 209A, § 7. Doe pleaded guilty to all the charges. He was

incarcerated for one year and thereafter placed on probation.

He was released from jail on January 20, 2022.

Following a SORB classification hearing on March 24, 2022,

Doe was classified as a level two sex offender. A Superior

Court judge denied Doe's motion for judgment on the pleadings

and affirmed the level two classification. Doe appeals.

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 reviewing court may

set aside or modify SORB's classification decision where it

determines that the decision is in excess of SORB's statutory

authority or jurisdiction, violates constitutional provisions,

1 On July 7, 2021, the charge of aggravated rape was reduced

to indecent assault and battery.

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is based on an error of law, or is not supported by substantial

evidence." Doe, Sex Offender Registry Bd. No. 496501 v. Sex

Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No.

496501). "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. Doe therefore

"bears a heavy burden of establishing that [SORB's] decision was

incorrect." Doe, Sex Offender Registry Bd. No. 3177 v. Sex

Offender Registry Bd., 486 Mass. 749, 757 (2021), quoting Boston

Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469 (2019).

2. Classification determination. Doe contends that the

hearing examiner's decision was arbitrary and capricious, and

not supported by substantial evidence, because the hearing

examiner "failed to explain how he balanced the predictive value

of Doe's prior offense against the totality of the other

circumstances." Doe also asserts that the hearing examiner's

treatment of Doe's alcohol and substance abuse was an "arbitrary

abuse of discretion." We disagree.

To support a level two classification, SORB must prove, 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

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safety interest is served by Internet publication of the

offender's registry information."

Doe No. 496501, 482 Mass. at 644. See G. L. c. 6, § 178K

(2)(b). "A hearing examiner has discretion . . . to consider

which statutory and regulatory factors are applicable and how

much weight to ascribe to each factor." Doe, Sex Offender

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

102, 109-110 (2014). "Accordingly, [o]ur review does not turn

on whether, faced with the same set of facts, we would have

drawn the same conclusion as [the] agency . . ., but only

whether a contrary conclusion is not merely a possible but a

necessary inference" (quotation and citation omitted). Id. at

110. The hearing examiner's discretion is "guided by . . .

[several] statutory risk factors" and various "aggravating and

mitigating considerations." Doe, Sex Offender Registry Bd. No.

23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019)

(Doe No. 23656). See G. L. c. 6, § 178K (1); 803 Code Mass.

Regs. § 1.33 (2016).

We are satisfied that the classification is supported by

substantial evidence. The hearing examiner had "discretion to

determine how much weight to ascribe to each statutory factor

under consideration." See Doe No. 23656, 483 Mass. at 139.

Here, the hearing examiner properly applied and analyzed the

regulatory factors. The hearing examiner considered Doe's

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underlying sexual offense, as well as his history of violent

criminal behavior, hostility toward women, and substance abuse

in support of the application of eight regulatory risk elevating

factors.2 The hearing examiner also awarded full mitigating

weight to Doe's advanced age of fifty-two and his current

supervision by probation.

Turning the focus to factor 9 (alcohol and substance

abuse), we conclude that the hearing examiner properly applied

this factor in the classification analysis.3 Doe argues that the

hearing examiner's determination that "[Doe's] history of

treatment, abstinence, and relapse is unknown" was refuted by

medical records. Additionally, Doe asserts that the hearing

examiner failed to consider Doe's self-reported current sobriety

and his compliance with probationary requirements of abstinence.

We find no merit to Doe's arguments.

2 Specifically, the hearing examiner applied the following

factors: factor 7 (relationship between offender and victim);

factor 8 (weapon, violence, or infliction of bodily injury);

factor 9 (alcohol and substance abuse); factor 10 (contact with

the criminal justice system); factor 11 (violence unrelated to

sexual assaults); factor 15 (hostility towards women); factor 18

(extravulnerable victim); and factor 19 (level of physical

contact).

3 As to SORB's assertion that Doe waived his argument as to

the hearing examiner's application of factor 9, we discern no

error in the hearing examiner's classification regardless of the

application of factor 9.

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The record considered by the hearing examiner contained

twenty-four years4 of police reports that described Doe as being

intoxicated. When the victim was assaulted in 2020, Doe had

been drinking hard liquor at early hours of the morning. While

incarcerated in 2021, Doe tested positive for marijuana. This

evidence amply supports that Doe has a history of substance

abuse and that it was active at the time of the hearing.

In March 2022, approximately three months after his release

into the community, Doe wrote a letter to the hearing examiner

stating, among other things, "I am sober." The hearing examiner

was well within his discretion to disregard this evidence as

unreliable and give it no impact in his analysis of factor 9.

See Doe 23656, 483 Mass. at 138-139. See also Doe No. 10800,

459 Mass. at 638 (hearing examiner's duty "to assess the

reliability of exhibits introduced in evidence and draw

therefrom all reasonable inferences"). Similarly, since Doe had

no requirement of abstinence during probation, his compliance

with probation has no impact on factor 9.

After careful review of the hearing examiner's decision, we

determine it was supported by substantial evidence, was not

4 For instance, evidence before the hearing examiner

described a 1997 incident where an intoxicated Doe assaulted a

taxi driver.

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arbitrary and capricious, and we discern no abuse of discretion.

Judgment affirmed.

By the Court (Meade,

Desmond & D'Angelo, JJ.5),

Clerk

Entered: February 25, 2025.

5 The panelists are listed in order of seniority.

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