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

22-P-628

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527440

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court 

judgment that affirmed his final classification by the Sex 

Offender Registry Board (SORB) as a level two sex offender. 

Because we discern no error in the SORB hearing examiner's 

weighing of the relevant factors or in her conclusion that 

Internet dissemination of Doe's sex offender registry 

information served a public safety interest, we affirm.

1. Discussion. a. Standard of review. "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, 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)
2

(Doe No. 496501), 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, 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, Sex 

Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 

95 Mass. App. Ct. 85, 88 (2019).

b. Weight of factors 7 and 19. Doe argues that the 

hearing examiner abused her discretion in weighing factors 7 

(relationship between offender and victim) and 19 (level of 

physical contact). To support a level two sex offender 

classification, SORB must prove "by clear and convincing 

evidence, that '(1) the offender's risk of reoffense is 

moderate; (2) the offender's dangerousness is moderate; and (3) 

a public safety interest is served by Internet publication of 

the offender's registry information.'" Doe, Sex Offender 

Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 

131, 138 (2019) (Doe No. 23656), quoting Doe No. 496501, 482 

Mass. at 656. Whether to apply a given statutory or regulatory 

factor and, if so, the weight to be accorded to that factor are 

questions within the hearing examiner's discretion. See Doe, 
3

Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry 

Bd., 470 Mass. 102, 109-110 (2014).

Here, the hearing examiner applied factor 7 (relationship 

between offender and victim) with "greater weight." In support 

of this determination, the examiner found that Doe was in a 

"position of trust" with the victim at the time of the sexual 

assault because Doe had been the victim's cello instructor, 

music director, and "mentor" the summer before committing the 

index offenses against the child victim (child), and he had 

continued to socialize with the child and the child's family in 

the interim. The examiner also noted that the risk of reoffense 

and degree of dangerousness posed by Doe were elevated because 

the child was an "extrafamilial victim." Accordingly, the 

examiner's application of "greater weight" to this riskelevating factor was supported by the evidence. We are not 

persuaded that in the circumstances, Doe's trust relationship 

with the child terminated with the conclusion of Doe's role as 

the child's music instructor and theater supervisor, or that the 

hearing examiner misapplied factor 7.

As to factor 19, the hearing examiner found that it applied

because Doe penetrated the child's vagina digitally and with his 
4

tongue.1 Accordingly, the hearing examiner applied this factor 

"regarding dangerousness," and implicitly limited the weight she 

gave to it based on the lack of penile penetration involved in 

Doe's sexual assault on the child.2 We are not persuaded by 

Doe's contention that in her assessment of the evidence relevant 

to this factor, the hearing examiner failed to consider a study 

that Doe submitted. First, the examiner's findings explicitly 

state that she did consider the article. Second, to the extent 

that Doe challenges the weight ascribed by the hearing examiner 

to that article,3 we discern no abuse of discretion. This is 

because the article focused on sex offenders' risk of 

recidivism, while factor 19 explicitly goes to an offender's 

dangerousness -- even if the examiner gave the article no 

weight, her decision was not an abuse of discretion. See Doe 

No. 23656, 483 Mass. at 135 n.4; 803 Code Mass. Regs. 

§ 1.33(19)(a) (2016).

1 The hearing examiner also found that Doe licked the child's 

breasts, but did not include that finding in the discussion of 

factor 19.

2 When describing the governing sex offense, the hearing officer 

found that the child refused Doe's request that the child put 

Doe's penis in the child's mouth.

3 The hearing examiner noted that as to the articles Doe 

submitted, "I give those articles appropriate weight in 

consideration of the superintendence of the Board's regulations 

. . . and accordingly, only to the extent the findings are

consistent with those regulations."
5

Doe's challenge to the level two classification is not 

persuasive where the hearing examiner made an evenhanded 

assessment of the evidence. On the one hand, the examiner found 

that one high-risk factor applied where Doe offended as an adult 

against a child victim (factor 3), the risk of reoffense and the 

level of dangerousness were elevated by the trust relationship 

between Doe and his extrafamilial victim (factor 7), and Doe's 

physical contact with the child increased Doe's dangerousness 

(factor 19). Against this, the hearing examiner considered in 

mitigation Doe's period of postincarceration probation 

supervision (factor 28), the possibility that Doe might 

establish a stable and supportive home situation if he were 

permitted to leave Massachusetts after his release from prison 

(factors 33 and 34), and (to the extent it was consistent with 

the Board's regulations) research bearing on recidivism and 

dangerousness among sex offenders (factor 37). The hearing 

examiner's findings were supported by the evidence and reflected 

the examiner's qualitative assessment of the relevant regulatory 

factors; the "examiner did not merely list these factors," but 

instead "provided a detailed account of the evidence she 

considered and an explanation of the relative weight that she 

assigned each factor." Doe No. 23656, 483 Mass. at 143.

Considered together, the statutory and regulatory risk factors 

established that Doe presented a moderate risk of reoffense and 
6

a moderate degree of dangerousness. See Doe, Sex Offender 

Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. 

App. Ct. 639, 651 (2012) (no error where sex offender's 

classification based on "a sound exercise of informed discretion 

rather than the mechanical application of a checklist"). See

also Doe No. 23656, supra at 138-139.

c. Internet dissemination. After applying the statutory 

and regulatory factors to the facts of Doe's case, the hearing 

examiner properly moved on to the third and final step of the 

classification process: determination of the need for Internet 

publication of Doe's sex offender registry information. See Doe 

No. 496501, 482 Mass. at 654, citing 803 Code Mass. Regs. 

§ 1.20(2) (2016). In making her assessment, the examiner 

properly considered "whether, 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, supra, at 655. As reflected in her written 

decision, the examiner found that Doe's index offense was 

committed against a child, involved penetration of the child's 

vagina with Doe's fingers and tongue, and was effected by Doe's 

exploitation of a trust relationship with the victim. She also 

took into account Doe's plans to leave Massachusetts if 

permitted to do so and the five-year term of his probation (and, 
7

inferentially, its attendant conditions) after his release from 

prison. Against that backdrop, the hearing examiner determined

that Internet publication of Doe's sex offender information 

would serve the interest of public safety by alerting parents to 

the need to protect their children from forming the "trusting 

relationship[s]" with Doe that he exploited in committing the 

index offenses. We discern no error in this conclusion and 

affirm Doe's classification as a level two sex offender.

Judgment affirmed.

By the Court (Desmond, Hand & 

Hodgens, JJ.4),

Clerk

Entered: October 20, 2023.

4 The panelists are listed in order of seniority.