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-1079

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527359

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment 

affirming the decision of the Sex Offender Registry Board (SORB)

classifying him as a level two sex offender in accordance with 

G. L. c. 6, § 178K (2) (b). On appeal, he argues that the 

hearing examiner's decision was not supported by clear and 

convincing evidence and that the public dissemination of his 

registration information violates his State and Federal 

constitutional rights. We affirm.

Discussion. When classifying an individual as a level two 

offender, a hearing examiner must determine the following by 

clear and convincing evidence: 

"(1) that the risk of reoffense is moderate; (2) that the 

offender's dangerousness, as measured by the severity and 
2

extent of harm the offender would present to the public in 

the event of reoffense, is moderate; and (3) that a public 

safety interest is served by Internet publication of the 

offender's registry information." 

Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender 

Registry Bd., 482 Mass. 643, 644 (2019) (Doe, No. 496501). See 

G. L. c. 6, § 178K (2) (b). "In determining whether these 

elements have been established by clear and convincing evidence, 

a hearing examiner may consider subsidiary facts that have been 

proved by a preponderance of the evidence." Doe, No. 496501, 

482 Mass. at 656. 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, 134 (2019) (Doe, No. 23656). See G. L. c. 6, 

§ 178K (1) (a)-(l); 803 Code Mass. Regs. § 1.33 (2016).

"We review a judge's consideration of an agency decision de 

novo." Doe, Sex Offender Registry Bd. No. 523391 v. Sex 

Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019) (Doe, No. 

523391). "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, No. 496501,

482 Mass. at 649. "In reviewing SORB's decisions, we give due 
3

weight to the experience, technical competence, and specialized 

knowledge of the agency" (quotation and citation omitted). Id. 

See G. L. c. 30A, § 14 (7).

Here, the plaintiff pleaded guilty to indecent assault and 

battery on a person over the age of fourteen in violation of 

G. L. c. 265, § 13H, and sexual conduct for a fee in violation 

of G. L. c. 272, § 53A. These charges arose from a series of 

sexual assaults that the plaintiff committed against a fifteen 

year old victim, whom he met through an online dating 

application. The plaintiff picked up the victim in Connecticut, 

where the victim lived, and usually transported him to the 

plaintiff's house in Massachusetts, where the plaintiff 

assaulted the victim. On occasion, the plaintiff assaulted the 

victim in a parked car in Connecticut. The plaintiff met with 

the victim "about ten times" over the course of three months.1 

In determining the plaintiff's classification, the hearing 

examiner applied one high risk factor, factor three, adult 

offender with child victim, 803 Code Mass. Regs. § 1.33(3) 

(2016), based on the ages of the plaintiff and the victim. The 

hearing examiner also applied five risk elevating factors. 

These factors included factor seven, extrafamilial victim, 803 

1 The plaintiff pleaded guilty to fourth degree sexual 

assault and commercial sexual abuse of a minor in Connecticut 

Superior Court, in addition to his plea in Massachusetts.
4

Code Mass. Regs. § 1.33(7) (2016), because the victim was not 

related to the plaintiff,2 factor nine, alcohol and substance 

use, 803 Code Mass. Regs. § 1.33(9) (2016), because the 

plaintiff used drugs and alcohol while offending against the 

victim, factor sixteen, public place, 803 Code Mass. Regs. 

§ 1.33(16) (2016), because the plaintiff sexually assaulted the 

victim on two occasions in his vehicle in Connecticut, factor 

seventeen, male offender against male victim, 803 Code Mass. 

Regs. § 1.33 (17) (2016), because both the plaintiff and victim 

were male, and factor nineteen, level of physical contact, 803 

Code Mass. Regs. § 1.33(19) (2016), because the plaintiff 

penetrated the victim orally. The hearing examiner also applied 

five risk mitigating factors, taking note of the plaintiff's 

supervision by probation, advanced age, sex offender treatment,

home and familial support systems, and of the materials 

submitted by the plaintiff pertaining to stability in the 

community. See 803 Code Mass. Regs. §§ 1.33(28), (30), (32), 

(33), (34) (2016). He further considered the expert 

psychological profile provided by the plaintiff pursuant to 

factor thirty-five, 803 Code Mass. Regs. § 1.33(35) (2016), and 

2 The hearing examiner noted that the victim could not be 

said to be a stranger to the plaintiff because the evidence did 

not make clear whether the plaintiff transmitted sexually 

explicit materials or comments to the victim within the first 

twenty-four hours of electronic contact between the two.
5

the plaintiff's repeated abuse of the victim over a three-month 

period pursuant to factor thirty-seven, 803 Code Mass. Regs. 

§ 1.33(37) (2016). Based on his analysis of these factors, the 

hearing examiner concluded that the plaintiff's risk of 

reoffense and dangerousness were moderate, and that the public 

interest was served by Internet publication of his registry 

information. 

The plaintiff does not challenge the hearing examiner's 

application of any of the risk factors. Rather, he argues that 

the factors considered by the hearing examiner were not enough 

to support the conclusion that he posed a moderate risk to 

reoffend sexually in the future. Specifically, he contends that 

"the risk mitigating factors present in this case, taken in 

conjunction with their ascribed weight, far outweigh the risk 

elevating factors" and support the conclusion that the plaintiff

poses a low risk of reoffense. We are unconvinced by this 

argument as it is well settled that the "hearing examiner has 

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) (Doe, No. 

68549). See G. L. c. 30A, § 14 (7). We are further unpersuaded 

by the plaintiff's argument that the psychological profile 

provided by Dr. John Daignault, "an expert in the field of 
6

recidivism," supported the conclusion that the plaintiff posed 

only a low risk of reoffending in the future.3 That claim is 

without merit as the hearing examiner specifically addressed the

profile in his decision and incorporated it into his analysis. 

See Doe, No. 23656, 483 Mass. at 136-137 (hearing examiner must 

explain reasoning for rejecting expert testimony). See also 

Doe, No. 68549, 470 Mass. at 112 ("[t]he opinion of a witness 

testifying on behalf of a sex offender need not be accepted by 

the hearing examiner even where [SORB] does not present any 

contrary expert testimony" [quotation and citation omitted]). 

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

discern no error and conclude that the level two classification 

was supported by clear and convincing evidence in the record.4 

See Doe, No. 523391, 95 Mass. App. Ct. at 94 ("Under the clear 

and convincing standard, [t]he evidence must be sufficient to 

3 We note that SORB "may give appropriate evidentiary weight 

to documentary reports and risk assessment, but the ultimate 

risk opinion, if any, will be excluded from consideration unless 

the mental health professional testifies as an expert witness at 

the classification hearing." 803 Code Mass. Regs. § 1.33(35)(a)

(2016). Daignault did not testify before the hearing examiner. 

4 We disagree with the plaintiff's assertion that the 

hearing examiner "failed to include explicit and detailed 

findings" in support of his ultimate finding that the plaintiff 

posed a moderate risk of reoffense. See Doe, No. 523391, 95 

Mass. App. Ct. at 94. The hearing examiner explained in 

adequate detail how he reached each of his findings and how his 

findings supported the factors he applied. Id.
7

convey a high degree of probability that the contested 

proposition is true" [quotation and citation omitted]). As such 

we are not persuaded, as the plaintiff contends, that a contrary 

conclusion was necessary.5,6 See Doe, No. 68549, 470 Mass. at 

110 ("[o]ur review does not turn on whether, faced with the same 

set of facts, we would have drawn the same conclusion as an 

agency or local board, but only whether a contrary conclusion is 

not merely a possible but a necessary inference" [quotation and 

citation omitted]).

Since we conclude that the plaintiff was properly 

classified as a level two offender, his argument that the 

5 The plaintiff's argument that SORB's classification 

process is arbitrary and has never been tested for scientific 

accuracy is without merit. SORB's classification process is 

amply supported by scientific research set forth in 803 Code 

Mass. Regs. § 1.33 and has been repeatedly upheld by the Supreme 

Judicial Court. See Doe, Sex Offender Registry Bd. No. 6729 v. 

Sex Offender Registry Bd., 490 Mass. 759, 763 (2022); Doe, No. 

23656, 483 Mass. at 134. We decline to revisit that precedent 

here. See Shiel v. Rowell, 480 Mass. 106, 108 (2018), quoting 

Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("adhering to 

precedent is our 'preferred course because it promotes the 

evenhanded, predictable, and consistent development of legal 

principles, fosters reliance on judicial decisions, and 

contributes to the actual and perceived integrity of the 

judicial process'").

6 The plaintiff further argues that the hearing examiner 

abused his discretion by denying the plaintiff's motion to 

disclose the hearing examiner's qualifications. This claim is 

unsupported by legal authority and, accordingly, does not rise 

to the level of appellate argument. See Mass. R. A. P. 

16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
8

dissemination of his information online violated his State and 

Federal constitutional rights because it is predicated on the 

assumption that the plaintiff was misclassified is unavailing. 

Online dissemination of the plaintiff's information as a level 

two sex offender comports with due process.7 See Doe, No. 

496501, 482 Mass. at 652-653 ("Due process concerns could be 

implicated if we were to interpret the statute to allow Internet 

publication of registry information for individuals whose degree 

of dangerousness is anything less than moderate").

Judgment affirmed.

By the Court (Meade, Blake & 

Desmond, JJ.8),

Clerk

Entered: September 26, 2024.

7 The hearing examiner explicitly found that the plaintiff's 

risk of reoffense and dangerousness were both moderate and that 

the public safety interest was served by the Internet 

publication of the plaintiff's registry information. See Doe,

No. 496501, 482 Mass. at 644.

8 The panelists are listed in order of seniority.