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

- 342

JOHN DOE , SEX OFFENDER REGISTRY BOARD NO. 524724

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. On appeal ,

Doe challenges the classification on various grounds , including

by arguing that the hearing examiner failed to provide an

adequate explanation for how Doe presents a moderate risk of

reoffense. For the reasons set forth below , we vacate the

Superior Court judgment and remand for entry of a new judgment

vacat ing the final classification and remanding the mat ter to

SORB for further proceedings consistent with this memorandum and

order

. Background

. On May 6 , 2014 , a nurse at a s killed nursing

center walked into a patient room and discovered Doe , a
certified nursing assistant , with a female dementia patient2

( v ictim)

. The nurse saw Doe with the v ictim behind a curtain

and that the victim was naked from the waist down with her legs

spread open. The nurse asked Doe what he was doing , t o which

Doe responded , " I know I ' m in trouble , this looks bad, I ' m

sorry
. " Doe claimed that he was changing the v ictim ' s diaper ,

but the nurse checked and noticed that the diaper was clean

. The nurse immediately took the diaper and secured it in a paper

bag. Another nursing center employee responded to the inciden t

and testified at trial that she saw blood in the v ictim ' s vagina

immediately after the incident.

When questioned by the police on June 10 , 2014 , Doe

admitted to putting his fingers inside the v ictim ' s vagina

during the incident in question , as well as on another occasion

in January 2014 while he was working an overnight shift. 1

Do e was indicted in Superior C ourt on two counts of rape;

after a bench trial on April 1 2 , 2017 , Doe was found guilty o f

one count of rape. Doe was sentenced to six to eight years in

S tate prison

.

In the SORB classification proceedings , Doe raised several

risk

- mitigating factors , see 803 Code Mass. Regs. § 1.33 (2016) :
(1) factor 28 (supervision by probation or parole) for having

1 Doe was advised of his Miranda rights and agreed to be interviewed by the police. Miranda v. Arizona , 384 U.S. 436 (1966)

.3

strict parole conditions; (2) factor 32 (sex offender treatment)

because of Doe ' s completion of sex offender treatment ; (3)

factor 33 (home situation and support systems) due to Doe ' s
robust support network of family and friends; and (4) factor 34

(materials submitted by the sex offender regarding stability in

the community) as a result of Doe ' s course completions ,

continued education , and anticipated housing and employment on

release. The hearing examiner agreed that these factors applied

and that three o f the four were to be given " full weight. " H e

ultimat ely concluded that Doe nevertheless presented a moderate

risk of re o ffense and a moderate degree of danger . On this

basis , the hearing examiner classified Doe as a level two

offender. Although the hearing examiner ' s written decision

included an extensive explanation o f how Do e presented a

moderate degree of dangerousness , it included little explanation

of why he presented a moderate risk of reoffending. In fact , the hearing examiner ' s discussion of Doe ' s risk of reoffense

cited to only one risk

- elevating factor that bore on that issue

(factor 16 , public place). 2

2 The examiner ' s original decision applied factors 7 , 18 , and 19 to conclude that Doe had an increased risk of reoffense. As SORB ' s brief acknowledges , the examiner then issued an amended decision treating these three factors as bearing only on Doe ' s degree of dangerousness. This appears to reflect that factor 7 ' s " position of trust " provision refers only to

" increased level of dangerousness ," factor 18 refers only to4

Discussion

. Our review is narrow
. We may set aside or

modify SORB ' s decision only if we determine " that the decision

is in excess of SORB ' 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.

643 , 649 (2019) ( Doe No. 496501 )

. Moreover , hearing examiners

have been delegated extensive 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)

. Our review is principally limited to whether the

hearing examiner examined the relevant factors and provided an

adequate expla nation for h is or her conclusi ons. See Doe No.

496501 , supra at 657 (hearing examiner is required to " make

explicit his or her findings " regarding degree of dangerousness

and risk of reoffense , and " make clear that each determination

" danger to public safety ," and factor 19 refers only to

" increased degree of dangerousness. " 803 Code Mass. Regs. § 1.33(7)(a)(2) , (17) , (18). We note that in the background section of his decis ion , t he hearing examiner did touch on factor 35 (psychological or psychiatric profiles regarding risk to reoffend) , by referencing D oe ' s scores on the Static

- 99R and Stable

- 2007 models and attaching " some weight " to those scores , but " only to the extent they may be seen as general indicators of risk of re

- offense. " The examiner did not , however , cite this factor in his overall assessment of Doe ' s risk of reoffense.5

is supported by clear and convincing evidence " ). See also Doe , Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry

Bd

. , 81 Mass. App. Ct. 639 , 651 (2012) ( " SORB ' s decision must

show that the classification is based on a sound exercise of

informed discretion rather than the mechanical application of a

checklist or some other reflex " )

.

O ur review leads us to conclude that while the hearing

examiner adequately engaged in the required qualitative and

objective review that balanced all the relevant risk

- aggravating

and risk

- mitigating factors as to Doe ' s degree of dangerousness ,

he failed to provide sufficient analysis as to Doe ' s risk of

reoffense

. As noted , the hearing examiner concluded that the

four risk

- mitigating factors Doe raised applied and that three

of them should be given " full weight. " In the face of this , the

perfunctory analysis in which the hearing examiner engaged

failed adequately to explain how he concluded , by clear and

convincing evidence , that Doe presented a moderate risk of

reoffense. " 3

3 To be clear , we do not accept Doe ' s contention that the hearing examiner erred in concluding that factor 16 (public place) applied. See Doe , Sex Offender Registry Bd. No. 390261

v. Sex Offender Registry Bd

. , 98 Mass. App. Ct. 219 , 225 ( 2020 ) , quoting 803 Code Mass. Regs. § 1.33(16)(a ) ( " public place " includes " any place that is open to the scrutiny of others or where there is no expectation of privacy " )

. Here , Doe assaulted the v ictim in the presence of another patient in a nursing center , despite the likely detection by the patient occupying6

The judgment affirming SORB ' s decision is vacated , and the

case is remanded for entry of a new judgment vacating the final

classification and remanding the matter to SORB for further

proceedings consistent with this memorandum and order. 4

So ordered

. By the Court ( Milkey , Sacks & Smyth , JJ. 5 ) ,

Clerk

Entered: August 12 , 2024.

the room and nursing center staff. In addition , Doe did not raise this argument before the agency , and therefore waived it. See Smith v. Sex Offender Registry Bd

. , 65 Mass. App. Ct. 803 , 810 (2006) . Nor do we discern any error in the hearing examiner ' s concluding that Doe presented a moderate degree of dangerousness. That conclusion is supported by clear and convincing evidence and adequately explained.

4 I n light of this disposition , we need not address Doe ' s argument that a remand is necessary under Doe No. 496501 , 482 Mass. at 655

- 657 , for a particularized finding whether Internet dissemination is warranted , mak in g Doe ' s sex offender registry dat a available to healthcare providers with whom Doe might seek employment

. T he hearing examiner will be able to consider that issue on remand. Nothing in this memorandum and order should be interpreted as stating any substantive position on how Doe should be classified.

5 The panelists are listed in order of seniority.