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Appeals Court of Massachusetts.

John DOE, Sex Offender Registry Board No. 526566 v. SEX OFFENDER REGISTRY BOARD.


Decided: November 12, 2021

By the Court (Green, C.J., Singh & Hand, JJ.1)


The Sex Offender Registry Board (board) classified Doe as a level three sex offender, and Doe sought judicial review of that classification. A Superior Court judge denied Doe's motion for judgment on the pleadings, and a judgment entered dismissing Doe's complaint for judicial review. On appeal, Doe argues that the hearing examiner improperly relied on hearsay evidence in considering a 2016 incident and erred in weighing mitigating factors. Furthermore, Doe contends that the level three classification is not supported by substantial evidence, and he requests that we remand the case to the board for a new hearing. We discern no error, and we affirm the Superior Court judgment.

Hearsay evidence. The hearing examiner properly relied on hearsay evidence found in a police report detailing the 2016 incident. A hearing examiner is not bound by the rules of evidence, and “may admit and give probative effect to that evidence [on] ‘which reasonable persons are accustomed to rely in the conduct of serious affairs.’ ” Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015), quoting G. L. c. 30A, § 11 (2). The hearing examiner may consider hearsay evidence bearing sufficient indicia of reliability. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). To determine reliability, the hearing examiner should consider “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, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 313 (2007).

The hearing examiner did not err in determining that the two victims’ statements concerning the 2016 incident bore sufficient indicia of reliability and thereafter in concluding that Doe kidnapped them with sexual intent. We are unpersuaded by Doe's contention that the victims’ statements were unreliable due to their motive to fabricate, in light of the numerous consistencies between details of the victims’ statements and corroborating circumstances.2 Both victims claimed that Doe forced them to drink alcohol by threatening them with a knife, and Doe pleaded guilty to two counts of assault with a dangerous weapon, admitting that he did, in fact, threaten the victims. The victims’ descriptions of the incident were further corroborated by a cell phone video recording of Doe kissing one of the victims. Taken together, the corroborating circumstances support a conclusion that the victims’ statements were sufficiently reliable to allow the hearing examiner to rely on them.

Mitigating evidence. The hearing examiner did not err in assigning minimal weight to Doe's proposed release plan and other mitigating evidence under factors 33 and 37. “A 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). In light of the speculative nature of Doe's future plans, the hearing examiner was within his discretion to assign minimal weight to factor 33, which correlates the reduced likelihood of reoffense to a “current” residence in a positive and supportive environment. See 803 Code Mass. Regs. § 1.33(33)(a) (2016). Similarly, the record shows that the hearing examiner properly considered Doe's participation in rehabilitative programs while incarcerated under factor 37 and reasonably exercised discretion to assign minimal, if any, weight to that factor.

Level three classification. The record shows that there was substantial evidence to support Doe's level three classification by clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 (2015); G. L. c. 6, § 178K (2) (c). A review of a hearing examiner's decision “does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion, ․ but only whether a contrary conclusion is not merely a possible but a necessary inference” (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015). In classifying Doe as a level three sex offender, the hearing examiner relied on six incidents of misconduct involving numerous victims, which demonstrated a pattern of predatory behavior towards young girls, hostility towards females, and persistent disregard for rules. Taken together, these incidents supported a finding of two high risk factors, factor 2 (repetitive and compulsive behavior) and factor 3 (adult offender with child victim), and ten risk elevating factors. Though Doe suggests that his offenses were generally noncontact, he fails to acknowledge the multiple occasions he engaged in contact offenses, such as the 2013 assault and battery of his then girlfriend and the 2016 incident involving underage girls. Since substantial evidence supports the hearing examiner's finding that Doe poses a high risk of reoffense and dangerousness corresponding to a level three sex offender, the judgment of the Superior Court affirming that classification is affirmed.3

Judgment affirmed.


2.   Where there was nothing corroborating a hearsay statement, such as the allegation concerning sexual contact in the bedroom, the hearing examiner did not credit the statement as fact. Therefore, as the motion judge determined, the hearing examiner properly limited the consideration of hearsay statements to only those that were corroborated.

3.   We note that Doe makes no argument challenging Internet publication of his classification.

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