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-648

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 7971

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court 

judgment affirming the decision of the Sex Offender Registry 

Board (SORB) classifying him as a level three sex offender in 

accordance with G. L. c. 6, § 178K (2) (c). On appeal, Doe 

argues that the hearing examiner's decision was arbitrary and 

capricious, and not supported by substantial evidence. We 

affirm.

A level three classification is warranted where the hearing 

examiner determines by clear and convincing evidence that the 

risk of reoffense is high and the degree of danger to the public 

is such that a substantial public safety interest is served by 

active dissemination of the offender's information to the 
2

public.1 Doe, Sex Offender Registry Bd. No. 339940 v. Sex 

Offender Registry Bd., 488 Mass. 15, 30-32 (2021). See G. L. 

c. 6, § 178K (2) (c). "A reviewing court will not disturb 

SORB's decision unless that decision was (a) in violation of 

constitutional provisions; (b) in excess of SORB's authority; 

(c) based upon an error of law; (d) made upon unlawful 

procedure; (e) unsupported by substantial evidence; (f) 

unwarranted by facts found by the court, where the court is 

constitutionally required to make independent findings of fact; 

or (g) arbitrary or capricious, an abuse of discretion, or 

otherwise not in accordance with law." Doe, Sex Offender 

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

102, 108-109 (2014) (Doe No. 68549), 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. 68549, supra at 109, quoting G. L. c. 30A, § 1 (6).

"The court must 'give due weight to [SORB's] experience, 

technical competence, and specialized knowledge . . . as well as 

to the discretionary authority conferred upon it.'" Doe No. 

68549, 470 Mass. at 109, quoting G. L. c. 30A, § 14 (7). "[O]ur 

1 "[S]ubsidiary facts need be proved only by a preponderance 

of the evidence" (citation omitted). Doe, Sex Offender Registry 

Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 

219, 224 (2020).
3

review does not turn on whether, faced with the same set of 

facts, we would have drawn the same conclusion as an [examiner], 

but only whether a contrary conclusion is not merely a possible 

but a necessary inference" (citation omitted). Doe No. 68549, 

supra at 110.

In assessing the offender's dangerousness and likelihood to 

reoffend, 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, 133-134 

(2019). See G. L. c. 6, § 178K (1) (a)-(l); 803 Code Mass. 

Regs. § 1.33 (2016). A hearing examiner abuses his discretion 

if he makes "a clear error of judgment in weighing the [relevant 

factors] such that the decision falls outside the range of 

reasonable alternatives." Doe, Sex Offender Registry Bd. No. 

356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 299 

(2021), quoting L.L. v. Commonwealth, 471 Mass. 169, 185 n.27 

(2014).

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

discern no abuse of discretion and conclude that the level three 

classification was supported by substantial evidence in the 

record. The hearing examiner concluded by clear and convincing 

evidence that Doe's risk of reoffending and degree of 

dangerousness remained high because of his sexual offending 
4

behaviors, violent antisocial behaviors, and his current 

circumstances. The hearing examiner applied four statutory 

high-risk factors: factor one (mental abnormality), factor two 

(repetitive and compulsive behavior), factor three (adult 

offender with child victim), and factor five (adjudicated 

sexually dangerous person or released from civil commitment). 

We find no error in the examiner's application of these factors.

Doe was diagnosed with paraphilia, a mental abnormality 

specifically related to sexual deviance, and he was apprehended 

and convicted of numerous sex offenses in 1961, 1976, and 1977. 

He also continued to sexually reoffend multiple times against 

numerous other victims after his release from civil commitment 

in 1994 after being adjudicated a sexually dangerous person in 

1977. He was again adjudicated sexually dangerous in 2011 and 

was civilly committed until 2017. Doe sexually offended against

at least ten victims, at least three of whom were under the age 

of sixteen.

In addition to these high-risk factors, we discern no error 

in the hearing examiner's consideration of numerous riskelevating factors.2 The hearing examiner also considered Doe's

2 Factor 7 (extrafamilial victims); factor 21 (diverse

victim type); factor 22 (number of victims); factor 8 (weapons, 

violence or infliction of bodily injury); factor 9 (alcohol and 

substance abuse); factor 19 (level of physical contact); factor 

10 (contact with the criminal justice system); factor 11 

(violence unrelated to sexual assaults); factor 13 
5

risk-mitigating factors, in fact giving Doe full mitigating 

weight for his advanced age (factor 30). The examiner clearly 

explained how the application of the four high-risk and eleven 

risk-elevating factors outweighed the mitigating factors 

present. There is also no merit to Doe's argument that 

classifying former sex offenders in Doe's age band is per se 

arbitrary and capricious when, as recently as 2020, Doe violated 

his probation terms regarding charges of assault, assault and 

battery, and kidnapping.

Finally, the hearing examiner also reasonably determined 

that a public safety interest would be served by active 

dissemination and Internet publication of Doe's sex offender 

registry information. Community notification of sex offenders 

is not punishment, but rather is a collateral regulatory 

measure. Olaf O. v. Commonwealth, 57 Mass. App. Ct. 918, 919 

(noncompliance with community supervision); factor 15 (hostility 

toward women); and factor 16 (public place).
6

(2003). The hearing examiner's decision was supported by 

substantial evidence.

Judgment affirmed.

By the Court (Massing, Shin & 

D'Angelo, JJ.3),

Assistant Clerk

Entered: June 18, 2024.

3 The panelists are listed in order of seniority.