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March 11, 2026 Get Citation Alerts Download PDF Add Note

John Doe, Sex Offender Registry Board No. 528660 v. Sex Offender Registry Board.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 24-P-1462

• Precedential Status: Non-Precedential

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (45.6K)

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Combined Opinion

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

24-P-1462

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528660

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming a Sex Offender Registry Board (board)

decision classifying Doe as a level two sex offender. He claims

that the hearing examiner (1) improperly acted as an expert by

finding that Doe had a deviant sexual interest in nonconsenting

females, (2) improperly rejected his expert evidence,

(3) improperly relied on unreliable hearsay evidence, and

(4) erred in concluding that his classification as a level two

sex offender was supported by clear and convincing evidence. We

affirm.

Background. We summarize the facts as found by the hearing

examiner, "supplemented by undisputed facts from the record,"
and reserve certain facts for later discussion. Doe, Sex

Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,

459 Mass. 603, 606 (2011) (Doe No. 10800).

Doe and his wife own a gym in Woburn. Doe offered massages

to some members of his gym, although he is not certified in

massage therapy. In May 2017, Doe, then twenty-five years old,

sexually assaulted the victim (first victim) while performing a

massage on her neck and upper back in the office of his gym.

The victim had removed her top clothes and was lying face-down

on a workout bench. Doe rubbed his hands on her breasts for

three to five minutes, then moved on top of the victim and

thrusted his erect penis against her buttocks. Doe placed her

hands on his clothed, erect penis and told her that "It's OK to

grab it." Although Doe wore a shirt and gym shorts when he

began the massage, he was only wearing boxer briefs when the

victim left the office. The victim reported the incident to the

police in February 2018 after learning of similar incidents.

In September 2017, Doe sexually assaulted a second victim

while performing a massage on her in the office of his gym. The

victim was sitting in a chair facing backwards and was clothed.

Doe stood behind the victim and pressed his erect penis against

her. Doe initially moved away when the victim told him to

"knock it off," then pressed his erect penis against her again.

Doe sexually assaulted the victim again during another massage

2
session the next week. The victim was clothed and laying down

on her stomach. Doe put his hands on her hips and his erect

penis against her buttocks and between her legs. Doe sexually

assaulted the second victim a third time during another massage

session in which her six-year-old son was present. Again, the

victim was clothed and lying face-down on a workout bench, and

Doe put his hands on her hips and his erect penis between her

legs. The victim told him to stop, gathered her things, and

left.

In 2018, Doe sexually assaulted a third victim while

performing a massage on her in the office of his gym. During

the victim's first or second massage therapy session, Doe

implied that he wanted to have a "threesome" with her and his

then-girlfriend (now wife). During the victim's third session,

Doe thrusted his hips and erect penis against her. Also in

2018, a woman (fourth complainant) reported to the Woburn police

that, for months in 2016, Doe had sent her naked photographs of

himself and messages proposing to have sex with her and give her

a massage. The fourth complainant continuously told Doe to

stop, but he did not.

In 2022, Doe pleaded guilty to four counts of indecent

assault and battery on a person age fourteen or over, in

violation of G. L. c. 265, § 13H. These convictions related to

his assaults against the first and second victims; Doe was never

3
charged in connection with the allegations made by the third

victim or the fourth complainant. He was sentenced to two years

of probation. Following his plea, the board notified Doe of his

obligation to register as a level two sex offender, pursuant to

G. L. c. 6, § 178K (2) (b). Doe requested an administrative

hearing to challenge the board's preliminary classification.

Following that hearing, the examiner ordered Doe to register as

a level two sex offender, concluding that "by clear and

convincing evidence . . . [Doe] presents a moderate risk to re-

offend and a moderate degree of danger such that a public safety

interest is served by public access to his sex offender registry

information and Internet dissemination." Doe sought judicial

review of his classification in the Superior Court, and a judge

affirmed Doe's classification.

Discussion. 1. Standard of review. "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). Still, in reviewing

the board's decision, we "give due weight to the experience,

technical competence, and specialized knowledge of the [board],

as well as to the discretionary authority conferred upon it."

G. L. c. 30A, § 14 (7); Doe, Sex Offender Registry Bd. No. 10216

v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006) (Doe No.

10216). "[A] decision of [the board] 'may only be set aside if

4
the 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, Sex Offender

Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass.

App. Ct. 797, 801 (2022) (Doe No. 22188), quoting Doe, Sex

Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd., 99

Mass. App. Ct. 533, 537 (2021).

1. Role of the examiner. Doe contends that the hearing

examiner abused his discretion by assuming the role of an expert

when he stated, with respect to the fourth complainant's report,

that "[a]lthough I do not find that this incident [rises] to the

level of a sexual offense, I consider it as other useful

information in terms of [Doe's] deviant sexual interest in non-

consenting females." We disagree. Absent compelling reason to

believe otherwise, we understand the hearing examiner to have

used the term "deviant sexual interest" in a descriptive sense

rather than as a clinical diagnosis. Although the board's

regulations do not define "sexual deviance," they use the term

in a general sense to refer to sexual misconduct bearing on an

offender's dangerousness and recidivism risk, including both

misconduct that is related to a mental abnormality and

misconduct that is not. See 803 Code Mass. Regs. § 1.33 (2025)

("The strongest predictors of sexual recidivism for all sex

offenders are variables related to antisocial orientation and

5
sexual deviance"); id. § 1.33(1)(a), (4)(a), (20)(a),

(36)(a)(1).1

Here, the hearing examiner's decision not to apply factor

one (mental abnormality) indicates that he did not find that

Doe's sexual deviance related to a mental abnormality. See 803

Code Mass. Regs. § 1.33(1). Nor did the hearing examiner refer

to any medical diagnosis of Doe or consider any diagnostic tools

or criteria that would have required the testimony of an expert

in mental disorders. Cf. Doe, Sex Offender Registry Bd. No.

89230 v. Sex Offender Registry Bd., 452 Mass. 764, 776 & n.18

(2008). Instead, the hearing examiner concluded based upon the

evidence and consideration of the board's regulatory factors

that Doe had engaged in a pattern of inappropriately touching

nonconsenting women. See Doe No. 10216, 447 Mass. at 786

("expert testimony is unnecessary in [classification]

proceedings," instead, examiners "utilize[] [regulatory] factors

. . . in determining the plaintiff's final classification"). To

be sure, general references to "deviant sexual interests,"

outside of the particular context in which that term appears in

the regulations, may cause needless confusion. Here, however,

1 Although the 2016 version of the board's regulations
governed at the time of Doe's hearing, we refer herein to the
latest version, effective April 25, 2025, for ease of reference.
The provisions that we have cited have not materially changed
between the two versions.

6
the examiner used that term only to describe Doe's sexual

misconduct, and not to make a medical diagnosis. The examiner

therefore neither assumed the role of an expert nor exceeded his

authority.

1. Doe's expert evidence. Doe argues that the hearing

examiner abused his discretion by failing to adopt, or at least

adequately explain his disagreement with, the opinion of Doe's

expert, Dr. Barbara Quinones. Specifically, Doe argues that the

hearing examiner erred by "using a different process" to find

that Doe's risk for reoffense was moderate, notwithstanding Dr.

Quinones's opinion that he presents no cognizable risk for

reoffense. In the context of a classification hearing, a

hearing examiner must consider the "evaluative reports . . .

empirically-based risk assessments, [and] a licensed mental

health professional's testimony discussing psychological and

psychiatric issues . . . as they relate to the sex offender's

risk of re-offense." 803 Code Mass. Regs. § 1.33(35)(a) (2025).

See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender

Registry Bd., 483 Mass. 131, 135 (2019) (Doe No. 23656).

However, the "opinion of a witness testifying on behalf of a sex

offender need not be accepted by the hearing examiner even where

the board does not present any contrary expert testimony." Doe,

Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry

7
Bd., 470 Mass. 102, 112 (2014) (Doe No. 68549), quoting Doe No.

10800, 459 Mass. at 637.

Here, rather than simply rejecting Dr. Quinones's

testimony, the hearing examiner permissibly assigned differing

weight to a number of the board's regulatory factors, thus

reaching a different conclusion than her. Where the hearing

examiner disagreed with Dr. Quinones, he stated reasons for

doing so. See Doe No. 23656, 483 Mass. at 136 (examiner "must

'explain[ ] on the record . . . reasons for rejecting portions

of [an expert's] testimony'" [citation omitted]). For example,

he declined to apply factor twenty-nine, a mitigating factor for

sex offenders who have "liv[ed] offense-free in the community

for five to ten years," measured (for those offenders who are

not committed) "begin[ning] on the most recent date of

conviction or adjudication of a sex offense." 803 Code Mass.

Regs. § 1.33(29) (2025). Applying that standard, the hearing

examiner found that the factor did not apply because Doe "ha[d]

been in the community for less than five years." The hearing

examiner noted but rejected Dr. Quinones's opinion that the

nearly six years that Doe had resided "offense free or in the

community" since the commission of the offenses should be

considered a mitigating factor. In her testimony, Dr. Quinones

admitted that her position was inconsistent with the board's

regulations, and that "it's unclear in some of the research if

8
it's when [the offender] was first detected or when [the

offender] was convicted," but nevertheless maintained that "the

longer that somebody is in the community without incident, the

more positive that that is." Although the hearing examiner

could have explained his reasoning in more detail, he did not

abuse his discretion in following the board's regulatory

definition of offense-free time -- an approach supported by

several cited authorities -- rather than adopting Dr. Quinones's

opinion, which she acknowledged rested on inconclusive research.

We are also not persuaded by Doe's assertion that the

hearing examiner "ignored" Dr. Quinones's testimony that a

Static-99R "average" risk score does not necessarily equate to a

"moderate" risk level according to the board's risk categories

because other aggravating and mitigating factors must be

considered. The hearing examiner noted that, "although the

result of the STATIC-99R indicates an 'average' risk level, Dr.

Quinones found that [Doe] presents no cognizable risk for

reoffense." Then, "using a different process," the hearing

examiner found that Doe's "risk for reoffense and degree of

dangerousness is moderate." The record does not show that the

hearing examiner ignored Dr. Quinones's opinion in so finding,

but rather that he reached a different conclusion after applying

the board's risk factors.

9
Lastly, we do not agree that the hearing examiner failed to

consider the transcript of the testimony of Dr. R. Karl Hanson

at a hearing that took place before the enactment of the board's

2016 regulations, which were in effect at the time of Doe's

hearing. See note 1, supra. While it is true that the hearing

examiner "must at least consider" evidence relevant to an

offender's risk, "[i]t is for the hearing examiner to weigh the

evidence presented." Doe, Sex Offender Registry Bd. No.

356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 298

(2021). Here, the hearing examiner stated that the transcript

was of "dubious relevancy" because the facts and issues of the

prior hearing were "different than those of the present case"

and "much of what the doctor argues . . . is now considered in

the research used in the [b]oard's risk factors." We also note

that Dr. Hanson's view that factor 22 (number of victims) has no

predictive value, is contrary to the text of factor 22, by which

the hearing examiner is bound, and which cannot be challenged in

this action under G. L. c. 30A, § 14. See Doe No. 68549, 470

Mass. at 114. The record thus shows that, rather than failing

to consider the testimony at all, the hearing examiner properly

exercised his discretion in giving the testimony little weight.

1. Reliance on hearsay. Doe contends that the hearing

examiner abused his discretion by admitting and crediting

"unreliable hearsay evidence" that Doe sexually assaulted the

10
third victim and propositioned and sent naked photographs of

himself to the fourth complainant. Doe argues that this hearsay

evidence was not reliable because both the third victim and the

fourth complainant had reason to fabricate their allegations,

the allegations were not supported by convictions, and the

allegations lacked detail. We discern no abuse of discretion.

The range of evidence that may be considered by hearing

examiners is not limited by the same rules of evidence that

apply in court proceedings; hearing examiners may exercise their

discretion to admit and give probative value to evidence "if it

is the kind of evidence on which reasonable persons are

accustomed to rely in the conduct of serious affairs." Doe, Sex

Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd.,

488 Mass. 15, 26 (2021) (Doe No. 339940), quoting G. L. c. 30A,

§ 11 (2). "[H]earsay evidence bearing indicia of reliability

constitutes admissible and substantial evidence" (citation

omitted). Doe No. 339940, supra. "Such indicia 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.'" Id. at 26-27,

quoting Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender

Registry Bd., 70 Mass. App. Ct. 309, 313 (2007).

11
Here, it was reasonable for the hearing examiner to admit

and credit the statements of the third victim and fourth

complainant. See Murray's Liquors, Inc. v. Alcoholic Beverages

Control Comm'n., 48 Mass. App. Ct. 100, 103 (1999) ("the

[agency] functions as the finder of facts and determines the

credibility and weight to be given to the evidence before it").

Their statements were rendered substantially reliable by their

consistency with the known facts of Doe's other sexual

misconduct. See Doe No. 10800, 459 Mass. at 638-639. The third

victim's report of Doe's sexual misconduct during her massage

sessions at his gym was consistent with the conduct to which Doe

pleaded guilty with respect to the first and second victims.

The fourth complainant reported that Doe propositioned her for

sex and sent her naked photographs, all while encouraging her to

let him massage her at his gym. This report showed "a common

course of conduct by Doe that was logically probative." Id.

The hearing examiner was not required to credit Doe's

assertion that the third victim and fourth complainant

"colluded" with the second victim to fabricate their

allegations. See Murphy v. Contributory Retirement Appeal Bd.,

463 Mass. 333, 344 (2012) ("[A] reviewing court is not empowered

to make a de novo determination of the facts, to make different

credibility choices, or to draw different inferences from the

facts found by the [agency]"). Doe was convicted of indecent

12
assault and battery against the second victim, and, as his

argument relates to the third victim and the fourth complainant,

"[t]he lack of criminal conviction does not render information

contained within a police report inadmissible in an

administrative proceeding." Doe No. 523391, 95 Mass. App. Ct.

at 90. It is within the discretion of the hearing examiner to

consider the motives of the narrator and weigh the probative

value of the evidence. See Doe. No. 339940, 488 Mass. at 26-27.

The hearing examiner did not abuse his discretion in doing so

here.

1. Substantial evidence. Doe contends that his

classification as a level two sex offender is not supported by

substantial evidence. We are not persuaded. To classify an

offender as a level two sex offender, a hearing examiner must

determine, by clear and convincing evidence, "that the risk of

reoffense is moderate and the degree of dangerousness posed to

the public is such that a public safety interest is served by

the public availability of registration information . . . ."

G. L. c. 6, § 178K (2) (b). To uphold such a classification, a

reviewing court must find that the hearing examiner's decision

is supported by substantial evidence. Doe No. 22188, 101 Mass.

App. Ct. at 801. "Substantial evidence is 'such evidence as a

reasonable mind might accept as adequate to support a

13
conclusion.'" Doe No. 10800, 459 Mass. at 632, quoting G. L.

c. 30A, § 1 (6).

"A hearing examiner has discretion . . . to consider which

statutory and regulatory factors are applicable and how much

weight to ascribe to each factor . . . ." Doe No. 68549, 470

Mass. at 109-110. The examiner's experience and specialized

knowledge in making such determinations are entitled to weight,

G. L. c. 30A, § 14 (7), and "our 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" (quotation and citation omitted). Doe No. 68549,

supra at 110.

The hearing examiner applied four risk-elevating factors

based on facts supported by the record. Doe committed multiple

sexual offenses during 2017 and 2018 against members of his gym.

He committed the offenses when other people were present,

including a child in one instance. Doe knew the victims and was

in a position of trust with them as they were members of his

gym. And, since he continues to work at his gym, Doe has easy

access to potential victims that fit his pattern of offense.

The hearing examiner also considered multiple risk

mitigating factors applicable to Doe. The hearing examiner

applied full weight to factor twenty-eight in consideration of

14
Doe's probation supervision. The full weight of factor thirty-

four (stability in the community) was also applied, as he is

married, lives with his mother, and continues to run his gym.

The hearing examiner assigned moderate weight to factor thirty-

three (home situation and support systems) based on letters of

support from Doe's family and clients attesting to Doe's

character and awareness of his sex offenses (although they do

not believe he committed them).

After weighing these factors and considering the first

victim's impact statement, the hearing examiner found that Doe

"poses a moderate risk to re-offend and a moderate degree of

dangerousness." The hearing examiner concluded that, based on

Doe's pattern of conduct and continued "access to his preferred

pool of Victims. . . . Internet and public access to his sex

offender registry information is necessary to allow women who

may encounter [Doe] or go to his gym to take steps to protect

themselves." While Doe does not agree with that result, we

conclude that the hearing examiner's determination that clear

and convincing evidence supported a level two classification was

supported by substantial evidence.

Additionally, Doe argues that even if no single error by

the hearing examiner, standing alone, is sufficient to warrant

the reversal of his classification, reversal is nonetheless

15
warranted due to cumulative error. Given our conclusions on the

underlying alleged errors, there was no cumulative error.

Judgment affirmed.

By the Court (Sacks,
Hodgens & Toone, JJ.2),

Clerk

Entered: March 11, 2026.

2 The panelists are listed in order of seniority.

16