JOHN DOE SEX OFFENDER REGISTRY BOARD NO 524733 v. SEX OFFENDER REGISTRY BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his reclassification by the Sex Offender Registry Board (SORB) as a level two sex offender. Doe argues that the hearing examiner abused her discretion by (1) relying on hearsay in police reports pertaining to charges that were pending at the time of the reclassification hearing; (2) finding that Doe poses a moderate risk of dangerousness even though his offending behavior did not involve physical contact; and (3) giving insufficient weight to a 2016 psychological evaluation of Doe. We affirm.

Background. In March 2017, Doe pleaded guilty in the District Court to two counts of possession of child pornography, G. L. c. 272, § 29C. Those convictions stemmed from an investigation in which State police found on electronic devices in Doe's possession several thousand images and over one hundred video files depicting child pornography including the rapes of prepubescent boys. Doe was placed on probation until March 2019 on conditions including that he register as a sex offender, undergo sex offender evaluation, have no unsupervised contact with any child under sixteen except relatives, use the Internet only for school or work, and relinquish his computer to law enforcement every six months for inspection.

In June 2017, SORB classified Doe as a level one sex offender, and Doe did not appeal.

In June 2018, a woman reported to police that Doe had sent a “friend” request via social media to her sixteen year old son stating, “hey cutie.” Doe's probation conditions were amended to require residential treatment.

In January 2019, Doe was charged with possession of a class B substance. His probation was revoked and he was sentenced to four months in the house of correction.

In July 2021, Doe's former employer reported to police that he had received threatening and obscene text messages. Police investigation revealed that the text messages originated from Doe's cell phone. One text message contained a photograph of the employer and his thirteen year old daughter with the caption, “bet you she is super tight that unclaimed virgin cunt.” Another text message contained a photograph of a nude female with the caption, “gets me hard knowing how I deserve and am destined to make mine and make u a Grand Father and me a Daddy again by fucking your slutty daughter.”¹ Doe left voicemail messages on the employer's phone, one stating in part, “Think I'm gonna come by tonight,” which the employer interpreted as a threat to come to his home. As a result of those contacts, Doe was charged in the District Court with making annoying or obscene telephone calls, G. L. c. 269, § 14A, and criminal harassment, G. L. c. 265, § 43A. As of the classification hearing, those charges were pending.

In June 2022, Doe was charged in Superior Court with possession of child pornography, G. L. c. 272, § 29C. That charge arose from a 2021 investigation in which State police found on Doe's electronic devices at least two images of child pornography depicting prepubescent boys. As of the reclassification hearing, that indictment was pending.

In August 2022, SORB initiated a reclassification of Doe and notified him of his duty to register as a level two sex offender. Doe challenged that classification. At the evidentiary hearing in January 2023, the hearing examiner considered documentary evidence including police reports pertaining to the pending charges. In assessing the evidence, the hearing examiner applied high-risk factor 2 (repetitive and compulsive behavior).² The hearing examiner applied with full weight risk-elevating factor 36 (online offending behavior). The hearing examiner applied with minimal weight factor 10 (contact with criminal justice system), and also applied factors 13 (noncompliance with community supervision) and 14 (recent threats). The hearing examiner considered risk-mitigating factors 28 (supervision by probation or parole), 32 (sex offender treatment), and 34 (stability in the community). In addition, under factor 35 (psychological or psychiatric profiles regarding risk to reoffend), the hearing examiner considered a 2016 psychological assessment of Doe by Eric L. Brown, Psy.D. The hearing examiner found by clear and convincing evidence that Doe presented a moderate risk to reoffend as well as a moderate degree of dangerousness, and that a public safety interest was served by Internet publication of his registry information. Accordingly, the hearing examiner classified Doe as a level two sex offender.

Doe appealed his level two classification by filing a complaint for judicial review pursuant to G. L. c. 30A, § 14. Doe and SORB filed countervailing motions for judgment on the pleadings, in which both parties acknowledged that by then Doe had been convicted of possession of child pornography; the obscene phone calls and criminal harassment charges were still pending. A Superior Court judge denied Doe's motion and allowed SORB's motion, affirming the decision. Doe appeals from that judgment.

Discussion. Doe argues that the hearing examiner's classification of him as a level two sex offender was not based on substantial evidence, which is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Doe, Sex Offender Registry Board No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 658 (2019) (Doe No. 496501), quoting G. L. c. 30A, § 1 (6). Doe does not challenge the hearing examiner's determination that he poses a moderate risk to reoffend. Rather, Doe argues that, in determining that he poses a moderate risk of dangerousness, the hearing examiner impermissibly relied on hearsay in police reports relating to pending charges, improperly found him moderately dangerous absent any convictions for sex offenses involving contact, and gave insufficient weight to the 2016 psychological evaluation. We are unpersuaded.

1. Hearsay. Doe argues that the hearing examiner impermissibly relied on unreliable hearsay in the police reports pertaining to the then-pending charges for obscene phone telephone calls, criminal harassment, and possession of child pornography. At oral argument, both SORB and Doe acknowledged that, by that point, Doe had been convicted of those charges.

In a different case decided shortly before oral argument, we took judicial notice of a sex offender's subsequent convictions on charges that had been pending at the time of a SORB classification hearing. Doe, Sex Offender Registry Bd. No. 190908 v. Sex Offender Registry Bd., 106 Mass. App. Ct. 784, 786 n.3 (2026). We held that those convictions rendered moot the claim that the hearing examiner impermissibly relied on hearsay in police reports to find that the offender committed the pending sex offenses. Id. at 788.

Putting aside the question whether Doe's subsequent convictions have rendered moot his hearsay argument, we conclude that the hearing examiner permissibly considered from the police reports “subsidiary facts that were proved by a preponderance of the evidence.” Doe No. 496501, 482 Mass. at 656. “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, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019) (Doe No. 523391). Common indicia of reliability include a detailed account, see Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011), the consistency of the hearsay incident with other known behavior, id., and independent corroboration, see Doe No. 523391, 459 Mass. at 89.

As to the charges that were pending at the time of the reclassification hearing, the hearing examiner found by a preponderance of the evidence that Doe had committed the acts alleged. The hearing examiner noted that the hearsay in the police reports was reliable because it was corroborated by other information, including that the descriptions of the images underlying the 2022 child pornography charges were similar to those underlying the 2017 convictions. We agree, and conclude that the hearing examiner reasonably determined that the police reports bore sufficient indicia of reliability. See Doe No. 523391, 95 Mass. App. Ct. at 90.

2. Lack of physical contact. Doe does not dispute the hearing examiner's application of high-risk factor 2, repetitive and compulsive behavior, but rather argues that the hearing examiner improperly applied full weight to factor 36, online offending behavior, because his offending conduct did not involve physical contact. Doe argues that his possession of child pornography did not involve physical contact with a victim, and further maintains that because he did not threaten his former employer with bodily harm or communicate his threats to rape the employer's daughter directly to the daughter, neither the employer nor the daughter had a reason to fear bodily harm. We do not agree.

Although “contact offenders” are generally considered more dangerous than “noncontact offenders,” see Doe No. 496501, 482 Mass. at 659, that is not the case if the offender has committed “noncontact offenses that ․ put a victim in fear of bodily harm by reason of a contact sex offense,” Doe v. Attorney Gen., 425 Mass. 217, 221 n.7 (1997). Based on the evidence before her, including Doe's repeated threats to rape and impregnate his former employer's thirteen year old daughter, which Doe escalated when he threatened to come to their home, the hearing examiner permissibly concluded that Doe posed a moderate risk of graduating to contact offenses, and therefore a moderate risk of dangerousness.

3. 2016 psychological evaluation. Doe argues that the hearing examiner did not give sufficient weight to Dr. Brown's 2016 psychological assessment of Doe.

The hearing examiner did consider Dr. Brown's 2016 report, but concluded that it was “dated[ ].” Contrast Doe, Sex Offender Registry Bd. No. 11204, 97 Mass. App. Ct. 564, 573 (2020) (hearing examiner gave “no weight” to qualified examiner's assessment). Based on Dr. Brown's report and other evidence, including Doe's subsequent offenses, the hearing examiner applied factor 32, sex offender treatment, with minimal weight. We discern no abuse of discretion.

Conclusion. We conclude that the classification of Doe as a level two sex offender was supported by substantial evidence.

Judgment affirmed.

FOOTNOTES

1.   In addition to those facts found by the hearing examiner, the Superior Court judge noted that one text message stated, “I'm the p3d0phil3 your daughter is destined to make a Daddy.”

2.   We refer to SORB's classification factors by number, or name and number, it being understood that each of them appears in the corresponding subpart of 803 Code Mass. Regs. § 1.33 (2016). SORB's regulations were updated in 2025, but the 2016 version of the regulations were in effect at the time of the hearing examiner's decision in this case and therefore govern our analysis.