MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming a decision of the Sex Offender Registry Board (SORB) to classify him as a level two sex offender. On appeal, Doe argues that (1) the hearing examiner committed an abuse of discretion in weighing the pertinent factors and (2) the hearing examiner failed to make sufficient explicit findings regarding whether Does degree of dangerousness required Internet publication of his registration information. We affirm.
Discussion. 1. Standard of review. “A reviewing court may set aside or modify SORBs classification decision where it determines that the decision is in excess of SORBs statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence.” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019), 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, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6). “We give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it” (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019).
2. Weight attributed to factors. Doe claims that the hearing examiner committed an abuse of discretion in weighing the pertinent factors. To support a level two sex offender classification, SORB must prove, “by clear and convincing evidence, that ‘(1) the offenders risk of reoffense is moderate; (2) the offenders dangerousness is moderate; and (3) a public safety interest is served by Internet publication of the offenders registry information.’ ” Doe, Sex Offender Registry Bd No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138 (2019), quoting Doe No. 496501, 482 Mass. at 656. The hearing examiner must make express findings as to each element. See Doe No. 496501, supra at 656-657. The hearing examiner is ultimately awarded the discretion to determine which statutory and regulatory factors are applicable, and how much weight to give them. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014).
Here, the hearing examiner noted that “sex offenders who commit a sex offense while in a position of trust as established by their employment, may present an increased level of dangerousness because they violate the [v]ictims and the publics sense of trust, safety, and security.” The hearing examiner found that the risk posed by Doe was elevated because Doe sexually assaulted a stranger while in a position of trust and authority (factor seven
2
); the sex offense was committed in the parking lot of an open area, while the victims male friend was close by and while a second motor vehicle was present (factor sixteen
3
); and Doe digitally raped the victim while she attempted to cover herself with a blanket (factor nineteen
4
). The application of each of these risk-elevating factors was supported by the evidence. Considered together, these statutory and regulatory risk factors established that Doe posed a moderate risk of reoffense and moderate degree of dangerousness. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012) (no error by hearing examiner where offenders classification based on “sound exercise of informed discretion rather than the mechanical application of a checklist”).
Doe also argues that the hearing examiner did not give sufficient weight to certain risk-mitigating factors. We disagree. The hearing examiner recognized that Doe would be supervised for ten years following his release (factor twenty-eight
5
); and that, although no letters of support for Doe acknowledged his sex offense history or how the authors would provide guidance, supervision, and support, he had community support (factor thirty-three
6
). These findings were supported by the evidence. To the extent that Doe challenges the weight attributed to these factors by the hearing examiner, we discern no abuse of discretion. It was the hearing examiners province “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.
In addition to delineating and explaining the applicability of the various risk-elevating factors and risk-mitigating factors, the hearing examiner provided a detailed history and analysis of Does offenses, sentences, and conduct, and incorporated details into his findings. In viewing the hearing examiners decision in its entirety, the application of these factors was sufficiently explained to permit an effective review of his decision, and we conclude that the hearing examiners decision was supported by substantial evidence.
3. Internet publication. Next, Doe argues that we should remand this case because the hearing examiner did not make explicit findings that a public safety interest was served by Internet dissemination of Does sex offender classification. The hearing examiner found that the three aggravating factors discussed above resulted in a moderate risk of reoffense and moderate degree of dangerousness by clear and convincing evidence such that a public safety interest was served by allowing public and Internet access to Does sex offender registry information. Because the hearing in this case preceded the decision in Doe No. 496501, we have the “discretion to determine whether to remand the case for explicit findings” or to conclude that “the underlying facts of the case ․ so clearly dictate the appropriate classification level that a ․ remand for explicit findings is not necessary,” Doe No. 496501, 482 Mass. at 657 & n.4.
In any remand, the hearing examiner would simply need to determine “whether, in light of the particular risks posed by the particular offender, Internet access to that offenders information might realistically serve to protect [a public safety interest] against the risk of the offenders sexual reoffense.” Doe No. 496501, 482 Mass. at 655. See G. L. c. 6, § 178K (2) (b). We conclude that the record dictates that the answer to that question is “yes.”
The hearing examiners determination that Doe posed a moderate risk of reoffense and moderate degree of dangerousness included findings that Does history of sexual misconduct involved a violent act against a stranger in a public setting, with her intimate partner nearby, in complete disregard for his duty as a police officer. Since there is clear and convincing evidence in the record to reasonably conclude that the Internet dissemination of Does registration information will serve a public safety interest, a remand is therefore unnecessary. See Doe No. 496501, 482 Mass. at 657 & n.4.
Judgment affirmed.
FOOTNOTES
2
. 803 Code Mass. Regs. § 1.33(7)(a)(3)(a) (2016).
3
. 803 Code Mass. Regs. § 1.33(16)(a) (2016).
4
. 803 Code Mass. Regs. § 1.33(19)(a) (2016).
5
. 803 Code Mass. Regs. § 1.33(28)(a) (2016).
6
. 803 Code Mass. Regs. § 1.33(33)(a) (2016).