Doe, Sex Offender Registry Board No. 190908 v. Sex Offender Registry Board

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

24-P-752 Appeals Court

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 190908 vs. SEX

OFFENDER REGISTRY BOARD.

No. 24-P-752.

Hampshire. February 4, 2026. – June 5, 2026.

Present: Massing, Neyman, & Smyth, JJ.

Sex Offender. Sex Offender Registration and Community

Notification Act. Evidence, Sex offender, Hearsay. Moot

Question. Practice, Civil, Sex offender.

Civil action commenced in the Superior Court Department on

September 27, 2022.

The case was heard by Edward J. McDonough, Jr., J.

Rebecca Rose for the plaintiff.

Steven M. Killelea for the defendant.

MASSING, J. The plaintiff, John Doe No. 190908, challenges

a decision of the Sex Offender Registry Board (board)

reclassifying him from a level two sex offender to a level three

based on allegations that he committed new sex offenses. In

seeking judicial review of the board's decision, Doe has

2

primarily argued that the evidence of the new crimes was

unreliable hearsay and that the hearing examiner erred in basing

the classification decision on such evidence. During the

pendency of this appeal, however, Doe was convicted of the new

sex offenses and received a lengthy State prison sentence of

incarceration. Taking judicial notice of Doe's new criminal

convictions, we conclude that his challenge to the reliability

of the hearsay evidence introduced at his classification hearing

about those crimes is moot. Addressing the remainder of Doe's

arguments, we affirm the judgment of the Superior Court

upholding the board's decision to reclassify him as a level

three sex offender.

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).

In 2006, when he was twenty-two years old, Doe twice

committed statutory rape of a fifteen year old girl -- once in a

hotel room and once in a makeshift hut in the woods. Doe was

convicted of one count1 of rape and abuse of a child, in

1 Although Doe was convicted of only one incident of sexual

assault, the hearing examiner found the girl's statements that

Doe assaulted her a second time to be credible and reliable, and

accordingly, she considered these allegations as additional

3

violation of G. L. c. 265, § 23, and sentenced to two and one-

half years in the house of correction. He was classified as a

level two sex offender in 2008.

Doe became a father in 2014 and was granted custody of his

son in 2018, when the child was about four years old. Doe and

the child's mother had a tumultuous relationship characterized

by violence against each other and the child, and as a result,

the Department of Children and Families (DCF) removed the child

from Doe's care in February 2021. DCF placed the child in the

custody of his maternal grandmother.

The following August, when Doe was thirty-eight years old,

the grandmother reported to the child's therapist, who told the

police, that Doe had sexually assaulted the child. According to

the grandmother, the child told her that one night Doe showed

the child a pornographic movie in the living room of their home

and instructed the child to "suck on his nuts," referring to his

penis. Eleven days after the grandmother's report, the district

attorney's office conducted a forensic interview with the child,

during which the child described the incident in substantially

sexual misconduct. "[T]he board may consider subsidiary facts

that are proved by a preponderance of the evidence, including

subsidiary facts resulting in acquittals, where those facts are

nonetheless proved by a preponderance of the evidence." Doe,

Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd.,

486 Mass. 749, 757 (2021).

4

the same terms. The child was six years old at the time of the

incident.

The hearing examiner found that the consistency of and

level of detail in the child's reports to his grandmother and

the forensic interviewer indicated they were sufficiently

reliable and credible to be treated as fact.2 Based on Doe's

history of sexual misconduct and the regulatory factors

discussed below, the hearing examiner found that Doe posed a

high risk of reoffense and a high degree of danger, and that a

substantial public safety interest would be served by active

dissemination and Internet publication of his personal

information. Accordingly, the hearing examiner reclassified Doe

as a level three sex offender.

At the time of the classification hearing and decision,

based on the conduct described in the child's reports to his

grandmother and the forensic interviewer, Doe had been charged

and arraigned in the District Court on one count of aggravated

rape of a child with force, in violation of G. L. c. 265, § 22B,

2 Prior to this appeal, Doe sought judicial review of the

hearing examiner's decision reclassifying him as a level three

sex offender. A Superior Court judge remanded the matter to the

board for "a more thorough exploration of the reliability of the

hearsay" regarding allegations of sexual misconduct involving

Doe's son. As a result, the hearing examiner issued an amended

reclassification decision. The amended decision was upheld by a

different Superior Court judge and is the subject of the current

appeal.

5

and dissemination of matter harmful to minors, in violation of

G. L. c. 272, § 28. He was subsequently arraigned in the

Superior Court on indictments charging aggravated rape and abuse

of a child, in violation of G. L. c. 265, § 23A, as a subsequent

offender, in violation of G. L. c. 265, § 23B, and dissemination

of matter harmful to minors, and the District Court complaint

was dismissed. While this appeal was pending, Doe was convicted

of all counts.3

Discussion. 1. Reliance on hearsay. As noted, Doe's

primary claim on appeal is that the hearing examiner based her

reclassification decision on the child's hearsay description of

the new offenses, contained in the grandmother's and forensic

interviewer's reports, and that these hearsay reports were not

sufficiently reliable to constitute substantial evidence. After

oral argument, we asked the parties to file supplemental

memoranda addressing whether Doe's convictions of the conduct

described in these reports rendered moot his challenge to their

reliability. We conclude that they have.4

3 Obviously, this fact was not before the hearing examiner

or the Superior Court. We nevertheless exercise our discretion

to take judicial notice of Doe's subsequent convictions. See

Jarosz v. Palmer, 436 Mass. 526, 530 (2002); Mass. G. Evid.

§ 201(b)(2) & note (2026).

4 We also asked the parties to address whether Doe's

incarceration rendered his entire challenge to the

classification decision moot. Both parties argued that it did

not, as the final classification decision is administratively

6

As a threshold matter, "hearing examiners may exercise

their discretion to admit and give probative value to evidence

'if it is the kind of evidence on which reasonable persons are

accustomed to rely in the conduct of serious affairs.'" Doe,

Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry

Bd., 488 Mass. 15, 26 (2021), quoting G. L. c. 30A, § 11 (2).

This may include 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). Here, we need not decide whether the

hearsay reports relied upon in this case bear such indicia,

because Doe's criminal convictions for the rape of his son and

dissemination of harmful matter have resolved the issue for us.

"In a criminal case, of course, the Commonwealth must prove the

elements of each crime charged beyond a reasonable doubt. By

comparison, at Doe's classification hearing the examiner could

credit those facts that are proven by a preponderance of the

evidence." (Citation omitted.) Doe, Sex Offender Registry Bd.

significant and Doe will have no other opportunity to challenge

it. We are persuaded that the remaining challenges to the

classification decision are not moot. Cf. Commonwealth v. Pena,

462 Mass. 183, 186-188 (2012) (mootness of question whether

probationer violated terms of probation does not render moot

other issues pertaining to consequences of probation violation).

7

No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73,

80 (2015) (Doe No. 356011).

Although this scenario has not yet been addressed in any

published decision concerning judicial review of a sex

offender's final classification, it occurs frequently in the

context of appeals from probation violation hearings. See Doe

No. 356011, 88 Mass. App. Ct. at 80 (likening rules for

consideration of hearsay at probation violation hearings to

those at sex offender classification hearings). When a

probation violation is based on allegations of new criminal

conduct, a subsequent conviction of that crime "renders moot an

appellate claim that a judge erred in making the factual

determination that a probationer violated the terms of his

probation," Commonwealth v. Milot, 462 Mass. 197, 201 (2012),

and likewise renders moot any claim that the finding of a

violation was based on unreliable hearsay, see id. at 201-202.

See also Commonwealth v. Pena, 462 Mass. 183, 187 (2012)

(subsequent conviction or guilty plea renders moot question

whether probationer violated terms of probation by committing

new offense).

By the same reasoning, Doe's convictions render moot his

claim that the hearing examiner erred in finding that Doe

committed the sex offenses described in the hearsay reports. We

recognize that the analogy to probation violations is not

8

perfect, as the very commission of a new crime while on

probation is itself a violation, whereas in a sex offender

classification decision, it is not merely the commission of the

crime, but the means and manner in which it was committed that

informs the hearing examiner's application of the regulatory

factors. Theoretically, in any given case, a subsequent

conviction might not confirm the details included in the hearsay

reports on which the hearing examiner relied. But that is not

the case here. Doe's convictions of rape and abuse of a child

as a subsequent offender and of dissemination of matter harmful

to minors confirmed the salient aspects of Doe's new crimes as

described in the hearsay reports: the penetration of the

victim's mouth with Doe's penis, which the hearing examiner

found relevant to factor 19 (level of physical contact), while

showing the victim a pornographic film; the crimes' occurrence

after Doe had been convicted of a prior sex offense, which the

hearing examiner found relevant to factor 2 (repetitive and

compulsive behavior); and the identity, age, and sex of the

victim, which the hearing examiner found relevant to factors 3,

17, 18, 21, and 22 (adult offender with child victim, male

offender against male victim, extravulnerable victim, diverse

9

victim types, and number of victims). See 803 Code Mass. Regs.

§ 1.33 (2016).5

Relatedly, the hearing examiner did not abuse her

discretion in denying Doe's motion in limine to exclude hearsay

evidence contained in records from DCF. To the extent Doe

argues the records are unreliable insofar as they describe the

child's reports of sexual abuse, that challenge is moot for the

reasons already discussed. The hearing examiner's reliance on

the other information contained in these records, including as

to the neglect and physical abuse of the child by both his

parents, was also proper. Though such reports may be

inadmissible at a criminal trial, the laws governing the board

expressly permit DCF to share with the board "information that

may be relevant to the board's determination or reevaluation of

a sex offender's level designation." G. L. c. 6, § 178K (4).

The DCF records do not present "[i]ndicia of unreliability,"

such as "failure to identify the source of information, a lack

of detail, [or] a lack of information about the circumstances in

which the statements were made" (emphasis added). Doe No.

5 We refer to the board's classification factors by number,

or name and number, it being understood that each of them

appears in the corresponding subpart of 803 Code Mass. Regs.

§ 1.33 (2016). (We rely on the version of the regulations in

effect at the time of the hearing examiner's decision. The

board's regulations were updated in 2025.)

10

523391, 95 Mass. App. Ct. at 89-90. To the contrary, the

records are thorough and detailed as to the chain of reporting,

specifying dates and names where relevant. Therefore, insofar

as the hearing examiner considered hearsay evidence in the DCF

records other than the facts established by Doe's criminal

convictions, the evidence was sufficiently reliable to support

her reclassification decision.

2. Application of regulatory factors. Doe also argues

that the record does not support the hearing examiner's

application of several risk-elevating factors, specifically

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

criminal justice system), factor 11 (violence unrelated to

sexual assaults), factor 15 (hostility towards women), and

factor 16 (public place).

The board "is constitutionally required to prove the

appropriateness of an offender's risk classification by clear

and convincing evidence." Doe, Sex Offender Registry Bd. No.

380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015).

"A reviewing court may set aside or modify [the board]'s

classification decision where it determines that the decision is

in excess of [the board]'s statutory authority or jurisdiction,

violates constitutional provisions, 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.

11

643, 649 (2019), citing G. L. c. 30A, § 14 (7). "Substantial

evidence is 'such evidence as a reasonable mind might accept as

adequate to support a conclusion.'" Doe No. 10800, 459 Mass. at

632, quoting G. L. c. 30A, § 1 (6). "A hearing examiner has

discretion . . . to consider which statutory and regulatory

factors are applicable and how much weight to ascribe to each

factor, and . . . a reviewing court is required to 'give due

weight to [the examiner's] experience, technical competence, and

specialized knowledge.'" Doe, Sex Offender Registry Bd. No.

68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110

(2014), quoting G. L. c. 30A, § 14 (7).

Doe argues that it was arbitrary and capricious and an

abuse of discretion for the hearing examiner to apply factors 9,

10, and 11 in assessing his risk of reoffense. Doe's criminal

record reflects, in addition to his sex offenses, entries

related to distribution of marijuana, possession of cocaine,

unlawful possession of a class E substance, trespassing, assault

and battery, and receiving stolen property. Doe argues that any

nexus between this past criminal conduct and his current risk of

reoffense had been severed at the time of the hearing, because

the relevant offenses were over a decade old and some had been

dismissed or nol prossed. However, the regulations plainly do

not require the hearing examiner to demonstrate such a nexus

before considering an offender's criminal history. "Factor 9

12

applies when the sex offender has a history of substance abuse."

803 Code Mass. Regs. § 1.33(9)(a). Factors 10 and 11 require

the hearing examiner to consider the "dates" and "frequency" of

related conduct, respectively, but neither places a time limit

on the consideration of such conduct. 803 Code Mass. Regs.

§ 1.33(10)-(11). Furthermore, hearing examiners are statutorily

permitted to consider all aspects of an offender's criminal

history, including "instances of conduct that did not result in

a conviction. . . . for example, uncharged conduct . . . and

conduct underlying a matter resulting in a continuation without

a finding" (citation omitted). Doe No. 356011, 88 Mass. App.

Ct. at 79. Even so, the hearing examiner took Doe's specific

circumstances into account in her application of the factors,

concluding that due to the age of Doe's substance use related

offenses, factor 9 applied with only "minimal weight." See Doe,

Sex Offender Registry Bd. No. 528042 v. Sex Offender Registry

Bd., 496 Mass. 437, 447 (2025) (Doe No. 528042) (no abuse of

discretion where hearing examiner applied factor 9 with only

minimal weight in light of age and sporadic nature of related

charges). Although the hearing examiner did not list the

precise disposition of every charge, it is apparent from her

detailed summary of Doe's criminal history, history of substance

use, and history of domestic abuse that "the classification is

based on a sound exercise of informed discretion rather than the

13

mechanical application of a checklist or some other reflex."

Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender

Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). We therefore

discern no abuse of discretion in the application of factors 9,

10, and 11.

Likewise, the record supports the hearing examiner's

application of factor 15. Factor 15 requires the hearing

examiner to consider whether the sex offender "has multiple

abuse prevention orders or harassment prevention orders taken

out by different women at different times." 803 Code Mass.

Regs. § 1.33(15)(a). Though Doe concedes that "[t]here are four

restraining orders on Doe's record," from three different women,

he argues that the circumstances surrounding these orders --

their age, their length, and the reporting parties -- cut

against the application of factor 15 in this case. "[T]he plain

text of the regulation forecloses Doe's argument." Doe No.

528042, 496 Mass. at 446. Where, as here, the record contains

evidence that three different women obtained abuse prevention

orders against Doe in different years, this evidence alone "is

sufficient to conclude that the hearing examiner's application

of factor 15 was not an abuse of discretion." Id.

Finally, Doe contends that the hearing examiner improperly

applied factor 16, because the evidence did not support the

hearing examiner's finding that both incidents of Doe's sexual

14

misconduct occurred in an "area maintained for or used by the

public and . . . that is open to the scrutiny of others or where

there is no expectation of privacy." 803 Code Mass. Regs.

§ 1.33(16)(a). We disagree. First, the record contains police

reports and a victim statement asserting that Doe raped his

first victim in a "makeshift hut" or an "abandoned club house"

in the woods, a five-minute walk from the girl's homeschooling

facility and a nearby donut shop. The girl's friends had built

the hut within view of a path through the woods. Even where a

sex offender seeks the limited seclusion of a wooded area,

misconduct is "nevertheless sufficiently public to support the

hearing examiner's findings and application of factor sixteen"

with full weight. Doe, Sex Offender Registry Bd. No. 527962 v.

Sex Offender Registry Bd., 496 Mass. 543, 551 (2025)

(application of factor 16 supported where "conduct in question

occurred in a wooded area . . . near a school," even if "the

school may not have been in use at the time of the offenses").

Based on the information in the record -- particularly the

proximity of the hut to the school, the path, and local

businesses -- the hearing examiner could properly infer that Doe

had "no expectation of privacy" in the hut and that taking the

girl to the hut did not constitute "a clear and concerted effort

to conceal his offending behavior from others." 803 Code Mass.

Regs. § 1.33(16)(a).

15

Second, the record contains sufficient evidence indicating

that the living room of Doe's home, where he sexually abused his

son, was a "public place" for the purposes of factor 16.

Factor 16 may be relevant even where sexual misconduct occurred

in a private home. See Doe, Sex Offender Registry Bd. No. 10216

v. Sex Offender Registry Bd., 447 Mass. 779, 789 (2006)

(factor 16 properly applied to offenses committed in "a living

room or a bedroom in a residence"; rejecting argument that

definition of "public place" be limited to offenses committed in

"truly public places, like parks or schools"). The central

question is whether that misconduct occurred in an area where

the high likelihood of detection indicates an offender's "lack

of impulse control or sexual deviation." Id. In this case, Doe

claims that he and the child were alone in the home at the time

of the alleged assault and that the child's mother no longer

lived there, justifying Doe's expectation of privacy. However,

the record shows that even if the mother was not living there at

the time, she still had frequent access to the home. In fact,

the child told the forensic interviewer that the abuse occurred

while his "mom went to the store." Numerous DCF reports

corroborate the mother's continued presence in the home,

including in early 2021, around the time the grandmother

estimated the abuse had occurred. Based on this evidence, the

hearing examiner could logically conclude that the child's

16

mother could have entered the room at any time, posing a threat

of detection that calls for the application of factor 16. See

id.; Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender

Registry Bd., 98 Mass. App. Ct. 219, 225 (2020) (examiner did

not err in considering factor 16 where offender sexually

assaulted victim at night, in bed, next to her sleeping

brother).

As substantial evidence supports the hearing examiner's

decision to apply each of the challenged factors, we see no

reason to disturb the classification decision.

Judgment affirmed.