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17-P-1347 Appeals Court

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523391 vs. SEX 

OFFENDER REGISTRY BOARD.

No. 17-P-1347.

Essex. October 5, 2018. - March 26, 2019.

Present: Massing, Ditkoff, & Englander, JJ.

Sex Offender. Sex Offender Registration and Community 

Notification Act. Evidence, Sexual conduct, Hearsay, 

Police report, Sex offender. Practice, Civil, Sex 

offender, Hearsay. Due Process of Law, Sex offender, 

Burden of proof. Administrative Law, Hearing.

Civil action commenced in the Superior Court Department on 

October 7, 2016. 

The case was heard by Salim Rodriguez Tabit, J., on a

motion for judgment on the pleadings.

Brandon L. Campbell for the plaintiff.

John P. Bossé for the defendant.

DITKOFF, J. The plaintiff, John Doe,1 appeals from a 

Superior Court judgment affirming his final classification by 

the Sex Offender Registry Board (SORB) as a level two sex 

 

1 A pseudonym.
2

offender. We conclude that the SORB hearing examiner (examiner) 

reasonably considered sufficiently reliable hearsay evidence in 

the form of police reports relating to Doe's uncharged sexual 

assault of a four year old boy. We conclude that, although the 

classification decision must be supported by clear and 

convincing evidence, subsidiary facts need be proved only by a 

preponderance of the evidence. Applying these standards to 

conclude that the examiner properly found by a preponderance of 

the evidence that Doe had sexually assaulted the boy, and that 

this and other substantial evidence supported the examiner's 

decision, we affirm.

1. Background. In November, 2008, police in New Paltz, 

New York, observed Doe openly watching pornography on a public 

library computer.2 The officers observed that he was watching a 

video recording of a child no more than three years old

performing oral sex on an adult male. The officers found other 

video recordings that Doe had downloaded, depicting girls 

approximately nine years old engaging in sexual acts. In 

February 2009, Doe pleaded guilty to one count of possessing a 

 

2 Approximately one year earlier, New Paltz police received 

a similar complaint that Doe was viewing pornography on a 

computer at the same library. Although the police discovered 

nothing criminal, Doe was given a verbal warning about the 

consequences of such behavior.
3

recording of a sexual performance by a child, see N.Y. Penal Law 

§ 263.16.

On March 5, 2009, while awaiting sentencing,3 Doe and a work 

friend decided to get drunk in the friend's apartment. The 

friend resided with his girlfriend and her four year old son, 

but the girlfriend was not present that evening. At some point 

during the evening, Doe spontaneously confessed to his friend 

that he had touched the boy. The friend responded that this 

could not have happened because the two men were together all 

day. Doe repeated his confession and explained that it had 

occurred "when he was outside with [the] boy earlier in the 

day."

The friend attempted to ask the boy, whereupon Doe forced 

his way into the room, and a physical altercation ensued. When 

the police arrived, Doe stated, "I shouldn't have touched the 

three year old's penis, the female deputy even told me that," 

apparently mistaking a male officer for a female in his 

intoxication. He then punched and kicked at the arresting 

officer and, finally, feigned unconsciousness when the police 

tried to interview him.

 

3 Ultimately, Doe was sentenced to one and one-third to four 

years in prison. It appears that he was released from prison in 

November 2012.
4

Later that day, at the police station, the boy told an 

officer that Doe "touched Mr. Winkie." The boy explained that 

"Mr. Winkie" was located "under [his] pants," and the boy's 

mother confirmed that this was the boy's term for his penis. 

Six days after the incident, during a children's protective 

services interview, the boy disclosed that Doe touched his 

genital area and that Doe also exposed his penis to the boy. 

Doe was charged with sexual abuse of a minor in the first 

degree, see N.Y. Penal Law § 130.65, but the charge was 

ultimately nol prossed.4

In late 2014 or early 2015, Doe moved to Massachusetts to 

live with his mother and, apparently, registered with SORB. In 

May 2015, a SORB member recommended that Doe be classified as a 

level three sex offender. Doe invoked his right to challenge 

the initial classification by claiming a de novo evidentiary 

hearing pursuant to G. L. c. 6, § 178L (1) (a). In June 2016, 

the examiner conducted a de novo hearing on the basis of 

documentary evidence submitted by both parties.5

 

4 The record does not reveal the precise reason for the 

dismissal, but the prosecutor stated at the preliminary hearing 

that "[t]he biggest problem that I have is that the victim here 

is a four and a half year old child that I simply can't have 

testify." 

5 There was an earlier hearing at which, it appears, the 

examiner classified Doe as a level three sex offender. After 

the Supreme Judicial Court decision in Doe, Sex Offender 

Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 
5

The examiner found that both the child pornography incident6

and the sexual assault incident actually occurred. Regarding 

the sexual assault, the examiner found that the fact that Doe 

"report[ed] to both the [friend] and to the police that he had 

touched the [v]ictim, the [v]ictim also stated in the presence 

of a police officer that [Doe] had touched him, reported the 

same later on the same day, and then again when interviewed by 

child protective services several days later . . . provides an 

indicia of reliability such that it is reasonable to conclude 

that the incident of sexual misconduct occurred." Armed with 

these factual findings, the examiner found multiple risk factors 

described in G. L. c. 6, § 178K (1), and 803 Code Mass. Regs. 

§ 1.00 (2016), including repetitive and compulsive behavior,

adult offender with a child victim, relationship between 

offender and victim, sexual misconduct in a public place, and 

extravulnerable victim. See Doe, Sex Offender Registry Bd. No. 

68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014)

 

297 (2015) (changing SORB's burden of proof to clear and 

convincing evidence), the examiner allowed a motion for a new 

hearing. Although the Supreme Judicial Court stated that the 

examiner may consider evidence from the original hearing, id. at 

300, here both parties agreed that the better course of action 

would be to start anew.

6 The examiner found that SORB had jurisdiction over Doe's 

out-of-State conviction because, under G. L. c. 6, § 178C, the 

New York conviction constitutes a "like violation" to the 

Massachusetts sex offense of possession of child pornography, 

G. L. c. 272, § 29C.
6

("SORB is required to consider a list of statutory factors in 

making its classification determinations"). The examiner 

further concluded that mitigating factors, such as Doe's 

supportive home situation and stability in the community, only 

somewhat offset the aggravating factors. The examiner concluded 

that Doe posed a moderate risk to sexually reoffend and a degree 

of dangerousness such that a public safety interest is served by 

public access to Doe's registry information, and thus classified 

him as a level two sex offender.

Doe promptly filed a complaint for judicial review in the 

Superior Court pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, 

§ 14. A Superior Court judge reviewed the administrative record 

and affirmed SORB's decision. This appeal followed.

2. Standard of review. "To determine the validity of an 

agency's decision, the reviewing court must determine whether 

the decision is supported by substantial evidence." Doe, Sex 

Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 

88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011), quoting Doe, 

Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry 

Bd., 447 Mass. 779, 787 (2006) (Doe No. 10216). An agency 

decision should be set aside only if a 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 No. 356011, supra, quoting Doe No. 10216, supra. An 
7

appeal from a SORB classification decision is confined to the 

administrative record. See Doe, Sex Offender Registry Bd. No.

10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 311 

(2007) (Doe No. 10304). "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.'" 

Doe No. 356011, supra, quoting Doe No. 10216, supra. It is 

within the province of the hearing officer to assess the 

reliability of such evidence and to draw all reasonable 

inferences. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex 

Offender Registry Bd., 459 Mass. 603, 638 (2011) (Doe No. 

10800). We review a judge's consideration of an agency decision 

de novo. See Brown-Forman Corp. v. Alcoholic Beverages Control 

Comm'n, 65 Mass. App. Ct. 498, 499 (2006).

3. Examiner's reliance on hearsay. "A hearing examiner is 

not bound by the rules of evidence applicable to court 

proceedings." Doe No. 10800, 459 Mass. at 638. See G. L. 

c. 30A, § 11 (2); 803 Code Mass. Regs. § 1.19(1) (2016).

Instead, an examiner "may admit and give probative effect to 

that evidence 'which reasonable persons are accustomed to rely 

in the conduct of serious affairs.'" Doe No. 356011, 88 Mass. 

App. Ct. at 76, quoting G. L. c. 30A, § 11 (2). In the context

of a sex offender classification hearing, hearsay evidence may 

be admissible if it bears sufficient indicia of reliability.
8

Doe No. 356011, supra at 77. See Doe No. 10800, supra at 632, 

quoting G. L. c. 30A, § 1 (6) ("Substantial evidence is 'such 

evidence as a reasonable mind might accept as adequate to 

support a conclusion'"); Covell v. Department of Social Servs., 

439 Mass. 766, 785-786 (2003) (detailed and consistent reports 

of abuse considered substantial evidence despite being presented

only through hearsay sources).

When reviewing an examiner's determination that hearsay 

evidence is substantially reliable, we ask whether "it was 

reasonable for the examiner to admit and credit" the facts 

described in the hearsay evidence. Doe No. 356011, 88 Mass. 

App. Ct. at 77. Accord Boylston-Washington, Inc. v. Alcoholic 

Beverages Control Comm'n, 8 Mass. App. Ct. 396, 400 (1979). 

Factors that the examiner should consider include "the general 

plausibility and consistency of the victim's or witness's story, 

the circumstances under which it is related, the degree of 

detail, the motives of the narrator, the presence or absence of 

corroboration and the like." Doe No. 356011, supra at 78, 

quoting Doe No. 10304, 70 Mass. App. Ct. at 313. Common indicia 

of reliability include a detailed account, see Doe No. 10800, 

459 Mass. at 638; Doe, Sexual Offender Registry Bd. No. 89230 v. 

Sex Offender Registry Bd., 452 Mass. 764, 778 (2008) (Doe No. 

89230); Doe No. 356011, supra at 78; Doe No. 10304, supra at

312-313; the consistency of the hearsay incident with other, 
9

known behavior, see Doe No. 10800, supra at 638-639; admissions 

by the offender, see Doe No. 89230, supra; Doe No. 356011, supra

at 79; and independent corroboration, see Commonwealth v. Bukin, 

467 Mass. 516, 520-521 (2014); Commonwealth v. Patton, 458 Mass. 

119, 134 (2010). Indicia of unreliability include failure to 

identify the source of information, a lack of detail, and a lack 

of information about the circumstances in which the statements 

were made. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex 

Offender Registry Bd., 81 Mass. App. Ct. 639, 648-649 (2012)

(Doe No. 136652). Finally, other inconsistent statements by a 

hearsay declarant may or may not detract from the reliability of 

the hearsay, depending on the circumstances of those statements. 

See Doe No. 10800, supra at 639 (earlier denial by teenage 

victim not significant where explained by desire to hide other 

sexual conduct).

Here, the examiner reasonably determined that the police 

reports of the sexual assault bore sufficient indicia of 

reliability. See Doe No. 10800, 459 Mass. at 638-639. The lack 

of criminal conviction does not render information contained 

within a police report inadmissible in an administrative 

proceeding. See id. at 638. See also Doe No. 356011, 88 Mass. 

App. Ct. at 75, 79 (acquittal of assault with intent to rape and 

indecent assault and battery charges did not render report of 

those charges inadmissible or unreliable). Although the sexual 
10

assault is not itself described in detail, the report of the 

events surrounding the assault are detailed and plausible. The 

relationship between Doe and his friend, the events leading up 

to the assault, the location of the assault, and the immediate 

aftermath of the assault are all described in detail.

Similarly, the accusation was consistent. The boy 

confirmed three times, to three different persons, that he had 

been touched. First, the boy told the officer on the scene that 

Doe sexually assaulted him. Later, at the police station, in 

the presence of his mother, the boy stated that Doe "touched 

Mr. Winkie," pointed to his penis area, and told the officer 

that "Mr. Winkie" was located "under [his] pants." Finally, 

during an interview with child protective services several days 

later, the boy reported that Doe touched his penis and that Doe 

exposed his penis to the boy.7

Finally, the sexual assault is corroborated by Doe's own 

statements to multiple persons. Doe spontaneously admitted to 

his friend that he had touched the four year old boy. Once the 

 

7 Although it is, of course, true that "statements supported 

with little, if any, indicia of reliability do not attain 

trustworthiness through a process of repetition," Doe No. 

136652, 81 Mass. App. Ct. at 649-650, quoting Edward E. v. 

Department of Social Servs., 42 Mass. App. Ct. 478, 486 (1997), 

the persistence of the accusation is an important factor when 

the reporter is a four year old child.
11

police arrived, Doe again admitted to an officer that he 

"shouldn't have touched the three year old's penis." 

It was reasonable for the examiner to reject Doe's 

contention that he was in a delusional state at the time he made 

these admissions, and thus they should not be credited. It is 

beyond cavil that Doe was intoxicated and combative at the time 

he made the admissions, and intoxicated enough that he 

misidentified an officer's gender. Nonetheless, Doe's 

explanation that he came to believe he molested the boy because 

a jail guard taunted Doe earlier strained credulity, and Doe had 

the presence of mind to refuse an interview by the police. The 

examiner was within her discretion to discredit Doe's 

explanation for his admissions. See Doe No. 10800, 459 Mass. at

633.

Equally unpersuasive is Doe's contention that the examiner 

had to find the allegations of Doe's sexual misconduct 

unreliable because his friend testified at the preliminary 

hearing in a New York court that he did not witness the 

incident. Although the friend initially told Doe that the 

molestation could not have happened because the two were 

together the whole day, the friend stated that the crime was 

"very possible." He explained that, although he was generally 

with the friend or the boy, this was only for "most of the 

time." In short, the friend did not provide an alibi for Doe. 
12

Accordingly, it was reasonable for the examiner to credit the 

hearsay report that Doe sexually assaulted the four year old 

boy.8

4. Subsidiary findings. In addition to challenging the 

underlying evidence, Doe challenges the examiner's factual 

finding that he molested the boy. Due process requires SORB to 

prove a sex offender's risk classification by clear and 

convincing evidence. See Doe, Sex Offender Registry Bd. No. 

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

(Doe No. 380316). The appellate courts have not had occasion, 

however, to determine whether subsidiary facts must be proved by 

a preponderance of the evidence or by clear and convincing 

evidence. We conclude that they must be proved by a 

preponderance of the evidence.

In a criminal case, the Commonwealth must prove all 

elements of the crime beyond a reasonable doubt. The standard 

of proof at a criminal trial reflects the United States Supreme 

Court determination that "no person shall be made to suffer the 

onus of a criminal conviction except upon sufficient proof." 

Jackson v. Virginia, 443 U.S. 307, 316 (1979). Despite this 

 

8 The allegation that Doe exposed himself to the boy lacks 

many of these indicia of reliability. Although the examiner 

found in passing that the exposure occurred, it played no part 

in her analysis of the aggravating factors and bears little 

weight compared to molestation of a four year old boy. 

Accordingly, any error in this finding is inconsequential.
13

heightened standard of proof, the highest known to our 

jurisprudence, "preliminary questions of fact and subsidiary 

facts need only be proved by a preponderance of the evidence." 

Commonwealth v. Edwards, 444 Mass. 526, 543 (2005). Accord

Commonwealth v. The Ngoc Tran, 471 Mass. 179, 187 (2015) 

(evidence of absence of defendant's mental impairment was 

subsidiary fact that jury were not required to find beyond 

reasonable doubt); Commonwealth v. Oppenheim, 86 Mass. App. Ct. 

359, 366-367 (2014) (preponderance of evidence standard governs 

jury's determination whether defendant authored instant message 

confession); Commonwealth v. Beaz, 69 Mass. App. Ct. 500, 504 

(2007) (judge gave erroneous jury instruction that inferences 

must be based on facts proved beyond reasonable doubt); 

Commonwealth v. Matthews, 49 Mass. App. Ct. 365, 368 n.2 (2000) 

(defendant entitled to reasonable doubt instruction only with 

respect to inference that is element of crime).

Similarly, in care and protection proceedings, termination 

of parental rights requires clear and convincing evidence of 

parental unfitness. Care & Protection of Vieri, 92 Mass. App. 

Ct. 402, 404-405 (2017). Subsidiary facts underlying the 

ultimate disposition, however, need not be supported by the same 

standard of proof. See Care & Protection of Laura, 414 Mass. 

788, 793 & n.4 (1993) (in care and protection proceedings, 

subsidiary findings need be proved only by preponderance of 
14

evidence); Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 

(2016) ("In care and protection cases, the judge's subsidiary 

findings must be proved by a preponderance of the evidence").

In Care & Protection of Laura, supra at 791-793, the Supreme 

Judicial Court surveyed various areas of law in which the 

ultimate fact had to be proved at a higher standard of proof and 

observed that, in all of these areas of law, subsidiary facts 

need be proved only by a preponderance of the evidence. Like 

the Supreme Judicial Court in Care & Protection of Laura, we 

follow the analogy and recognize that subsidiary facts must be 

proved only by a preponderance of the evidence, though the 

appropriateness of the classification must be proved by clear 

and convincing evidence. See Adoption of Leland, 65 Mass. App. 

Ct. 580, 583 (2006), quoting Care & Protection of Laura, supra

at 793 ("While subsidiary findings must be proved by a fair 

preponderance of the evidence, taken together these findings 

must prove parental unfitness, which is 'the critical inquiry,' 

by clear and convincing evidence"). As in Care & Protection of 

Laura, this applies even where the subsidiary fact is as 

consequential as an act of sexual abuse. Id.

Applying this standard here, the examiner properly found by 

a preponderance of the evidence that Doe molested the boy. The 

hearsay reports of the incident, combined with corroboration and 

other indicia of reliability, provided the examiner with an 
15

adequate basis to conclude that the molestation occurred. Cf. 

Bukin, 467 Mass. at 520, quoting Commonwealth v. Durling, 407 

Mass. 108, 118 (1990) ("while '[u]nsubstantiated and unreliable 

hearsay cannot, consistent with due process, be the entire basis 

of a probation revocation,' '[w]hen hearsay evidence is reliable 

. . . , then it can be the basis of a revocation'").

Doe also challenges the examiner's factual finding 

regarding the warning he received about the consequences of 

viewing pornography in a public library prior to the child 

pornography incident. The examiner stated that the police 

"concluded that 'no criminal activity was afoot'" but that the 

officer "advised [Doe] of the consequences of such activity." 

The examiner found aggravating the fact that Doe viewed child 

pornography in the same public library approximately one year 

later after being warned not to do so. These findings are well 

supported by the police report recounting the warnings given.9 

Doe's argument that "[t]he Examiner treated Doe as if he was 

guilty of a crime" is misplaced, as the examiner found only that 

the warning had been given and appeared to credit the police 

 

9 To the extent that Doe challenges the hearsay nature of 

this evidence, the examiner could find that a police report 

recounting actions taken by the police themselves was 

substantially reliable. See Commonwealth v. Foster, 77 Mass. 

App. Ct. 444, 450 (2010) (in probation violation hearing, judge 

could rely on police observations described in police report).
16

report's conclusion that Doe had committed no crime on that 

occasion.

5. Substantial evidence to support classification. Doe 

challenges whether there is substantial evidence to support the 

examiner's classification. "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). Because Doe was classified as a 

level two sex offender, the hearing examiner had to (and did) 

find clear and convincing evidence that (1) "the risk of 

reoffense is moderate" and (2) "the degree of dangerousness 

posed to the public is such that a public safety interest is 

served by public availability of registration information." 

G. L. c. 6, § 178K (2) (b). See Noe, Sex Offender Registry Bd. 

No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 197 

(2018). Under the clear and convincing standard, "[t]he 

evidence must be sufficient to convey a 'high degree of 

probability' that the contested proposition is true." Doe No. 

380316, 473 Mass. at 309, quoting Callahan v. Westinghouse 

Broadcasting Co., 372 Mass. 582, 588 n.3 (1977).

We review the examiner's finding that clear and convincing 

evidence supported the classification to determine whether it 

was supported by substantial evidence. In doing so, we may 

usefully analogize to care and protection cases, where we review 
17

determinations of parental unfitness made under the clear and 

convincing standard. See Adoption of Anton, 72 Mass. App. Ct. 

667, 673 (2008). In Adoption of Olivette, 79 Mass. App. Ct. 

141, 157 (2011), we affirmed a judge's parental unfitness 

finding based on hearsay reports of sexual abuse. In Adoption 

of Kimberly, 414 Mass. 526, 529-530 (1993), the Supreme Judicial 

Court affirmed a judge's parental unfitness finding based on the 

danger of the repetition of sexual abuse if the father had 

access to children he had sexually abused.

Guided by these cases, we discern substantial evidence to 

support the examiner's classification decision where Doe was 

convicted of a child pornography charge and, while awaiting 

sentencing, molested a four year old boy in his friend's care.

These facts amply supported the high risk factors found by the 

examiner, such as Doe's repetitive and compulsive behavior and 

evidence that Doe sexually assaulted an extravulnerable child 

victim. See G. L. c. 6, § 178K (1) (a) (ii-iii). We can 

discern no error in the examiner's weighing of these aggravating 

factors against the mitigating factors. Cf. Adoption of 

Jacques, 82 Mass. App. Ct. 601, 608 (2012) ("Weighing strengths 

against weaknesses is within the core competency of the trial 

judge, who has the benefit not only of the evidence, but of 

seeing and assessing the parents themselves"). Accordingly, we 

conclude that the examiner's determination that Doe poses a 
18

moderate risk of reoffense such that public safety would be 

served by the public availability of registration information 

was supported by substantial evidence.

Judgment affirmed.