IN THE COURT OF APPEALS OF IOWA
No. 21-0785 Filed August 17, 2022
BRANDON E. BROWN, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,
Judge.
Brandon Brown appeals the denial of his application to modify sex offender
registry requirements. REVERSED AND REMANDED WITH DIRECTIONS.
Nina Forcier of Forcier Law Office, P.L.L.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Greer and Ahlers, JJ. 2
AHLERS, Judge.
Brandon Brown is required to register as a tier II sex offender for two crimes
he committed against a juvenile in 2005 when he was twenty years old. See Iowa
Code § 692A.102(1)(b) (2020) (listing the crimes currently classified as tier II
offenses). Brown successfully completed probation for those offenses in 2011. In
2020, he started this action pursuant to Iowa Code section 692A.128 seeking to
modify or eliminate his registration obligations. Following a hearing, the district
court denied his application. Brown appeals.
I. Standard of Review
Modification of sex-offender-registration requirements is a two-step
process. Fortune v. State, 957 N.W.2d 696, 702–03 (Iowa 2021). The first step is
to determine if the statutory requirements for modification in Iowa Code
section 692A.128(2) are met. Id. at 702. We review this initial threshold
determination for correction of errors at law. Id.
If, in assessing the first step, the statutory requirements are determined not
to have been met, the analysis ends because modification is not permitted. See
Iowa Code § 692A.128(2) (stating “[a]n application shall not be granted unless all
of the [listed requirements] apply”); see also Fortune, 957 N.W.2d at 705 (“If the
statutory requirements are not met, that is the end of the matter and the district
court must deny the modification.”). If the statutory requirements are met,
modification is permitted and the analysis proceeds to the second step, with the
district court exercising its discretion to determine whether modification should
occur. See Fortune, 957 N.W.2d at 705. A district court’s decision whether to
grant a modification in the second step is reviewed for abuse of discretion. See id. 3
II. Analysis
We begin our analysis with step one—determining whether Brown
established the statutory requirements for modification. For a tier II sex offender
such as Brown, those requirements are: (1) at least five years must have passed
since the offender was first required to register1; (2) the offender must have
“successfully completed all sex offender treatment programs that have been
required”; (3) the offender must show that “[a] risk assessment has been
completed and the sex offender was classified as a low risk to reoffend”; and
(4) the offender must not be “incarcerated when the application is filed.” Iowa
Code § 692A.128(2)(a)–(d).2
At the hearing on Brown’s application, the State conceded that Brown met
all of the threshold requirements for modification. Despite this concession, the
district court found the risk assessments of Brown classify him as an average risk
to reoffend. While the district court did not expressly tie this finding to the statutory
requirements, it is axiomatic that such a finding means Brown would be ineligible
for modification of his registration requirements because he did not meet the
requirement that he be classified as a low risk to reoffend. See Iowa Code
§§ 692A.128(2) (requiring an application to be denied if all listed requirements are
1 The same five-year waiting period is required for a tier III sex offender, while there is only a two-year waiting period for a tier I sex offender. See Iowa Code § 692A.128(2)(a). 2 There is a fifth requirement that the director of the judicial district department of
correctional services supervising the offender stipulate to the modification. See Iowa Code § 692A.128(2)(e). However, this requirement only applies when the offender is being supervised. Becher v. State, 957 N.W.2d 710, 716–17 (Iowa 2021). As there is no dispute that Brown was not being supervised when he filed his application, this requirement does not apply to him. 4
not met), .128(2)(c) (imposing the requirement that an offender be “classified as a
low risk to reoffend”).
Substantial evidence does not support the district court’s finding. See State
v. Wallace, No. 15-1448, 2016 WL 6636681, at *2 (Iowa Ct. App. Nov. 9, 2016)
(holding that we review the determination of whether the statutory grounds for
registration modification have been met for errors of law, meaning our court is
bound by the factual findings of the district court if supported by substantial
evidence). As noted, at the hearing, the State conceded that all statutory
requirements that would permit the district court to consider modification were
satisfied. This concession may explain why the State presented no evidence
challenging Brown’s evidence. The evidence Brown presented establishes that he
is classified as a low risk to reoffend.
As required to initiate a modification proceeding, Brown obtained a risk
assessment. See Iowa Code § 692A.128(2)(c). The risk assessment was
completed by the Iowa Department of Correctional Services (DCS) using several
different instruments approved by the Iowa Department of Corrections.
Interpreting the results of multiple “validated instruments to create a
comprehensive risk profile,” the DCS determined Brown is overall a low risk to
reoffend.3 The DCS reached this conclusion despite the fact that, on one of the
3 During his testimony at the hearing, the author of the assessment report expressed deference to the court, stating that it is the DCS’s position that it is “not in the business of providing the recommendation,” as the DCS employees “believe it’s the court’s right and responsibility as defined in the Code to make the determination as to whether [the offender] fully meets the criteria.” Despite this deference expressed in his testimony, his report clearly and unequivocally stated that the risk assessment of Brown classified him as a low risk to reoffend. 5
instruments, Brown scored in the “above average risk” range. The report and its
author’s testimony explained this apparent inconsistency. According to the
assessment report, “best practice supports the consideration of both Static (history
based and relatively unchangeable—Static 99R, and ISORA), and Dynamic
(presence of risk in day to day choices—Stable-2007) assessments to generate
the most comprehensive profile.” In other words, the results from one assessment
instrument cannot be used in isolation, as the best assessment of an offender’s
risk level comes from viewing the instruments as a whole. When viewed
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IN THE COURT OF APPEALS OF IOWA
No. 21-0785 Filed August 17, 2022
BRANDON E. BROWN, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,
Judge.
Brandon Brown appeals the denial of his application to modify sex offender
registry requirements. REVERSED AND REMANDED WITH DIRECTIONS.
Nina Forcier of Forcier Law Office, P.L.L.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Greer and Ahlers, JJ. 2
AHLERS, Judge.
Brandon Brown is required to register as a tier II sex offender for two crimes
he committed against a juvenile in 2005 when he was twenty years old. See Iowa
Code § 692A.102(1)(b) (2020) (listing the crimes currently classified as tier II
offenses). Brown successfully completed probation for those offenses in 2011. In
2020, he started this action pursuant to Iowa Code section 692A.128 seeking to
modify or eliminate his registration obligations. Following a hearing, the district
court denied his application. Brown appeals.
I. Standard of Review
Modification of sex-offender-registration requirements is a two-step
process. Fortune v. State, 957 N.W.2d 696, 702–03 (Iowa 2021). The first step is
to determine if the statutory requirements for modification in Iowa Code
section 692A.128(2) are met. Id. at 702. We review this initial threshold
determination for correction of errors at law. Id.
If, in assessing the first step, the statutory requirements are determined not
to have been met, the analysis ends because modification is not permitted. See
Iowa Code § 692A.128(2) (stating “[a]n application shall not be granted unless all
of the [listed requirements] apply”); see also Fortune, 957 N.W.2d at 705 (“If the
statutory requirements are not met, that is the end of the matter and the district
court must deny the modification.”). If the statutory requirements are met,
modification is permitted and the analysis proceeds to the second step, with the
district court exercising its discretion to determine whether modification should
occur. See Fortune, 957 N.W.2d at 705. A district court’s decision whether to
grant a modification in the second step is reviewed for abuse of discretion. See id. 3
II. Analysis
We begin our analysis with step one—determining whether Brown
established the statutory requirements for modification. For a tier II sex offender
such as Brown, those requirements are: (1) at least five years must have passed
since the offender was first required to register1; (2) the offender must have
“successfully completed all sex offender treatment programs that have been
required”; (3) the offender must show that “[a] risk assessment has been
completed and the sex offender was classified as a low risk to reoffend”; and
(4) the offender must not be “incarcerated when the application is filed.” Iowa
Code § 692A.128(2)(a)–(d).2
At the hearing on Brown’s application, the State conceded that Brown met
all of the threshold requirements for modification. Despite this concession, the
district court found the risk assessments of Brown classify him as an average risk
to reoffend. While the district court did not expressly tie this finding to the statutory
requirements, it is axiomatic that such a finding means Brown would be ineligible
for modification of his registration requirements because he did not meet the
requirement that he be classified as a low risk to reoffend. See Iowa Code
§§ 692A.128(2) (requiring an application to be denied if all listed requirements are
1 The same five-year waiting period is required for a tier III sex offender, while there is only a two-year waiting period for a tier I sex offender. See Iowa Code § 692A.128(2)(a). 2 There is a fifth requirement that the director of the judicial district department of
correctional services supervising the offender stipulate to the modification. See Iowa Code § 692A.128(2)(e). However, this requirement only applies when the offender is being supervised. Becher v. State, 957 N.W.2d 710, 716–17 (Iowa 2021). As there is no dispute that Brown was not being supervised when he filed his application, this requirement does not apply to him. 4
not met), .128(2)(c) (imposing the requirement that an offender be “classified as a
low risk to reoffend”).
Substantial evidence does not support the district court’s finding. See State
v. Wallace, No. 15-1448, 2016 WL 6636681, at *2 (Iowa Ct. App. Nov. 9, 2016)
(holding that we review the determination of whether the statutory grounds for
registration modification have been met for errors of law, meaning our court is
bound by the factual findings of the district court if supported by substantial
evidence). As noted, at the hearing, the State conceded that all statutory
requirements that would permit the district court to consider modification were
satisfied. This concession may explain why the State presented no evidence
challenging Brown’s evidence. The evidence Brown presented establishes that he
is classified as a low risk to reoffend.
As required to initiate a modification proceeding, Brown obtained a risk
assessment. See Iowa Code § 692A.128(2)(c). The risk assessment was
completed by the Iowa Department of Correctional Services (DCS) using several
different instruments approved by the Iowa Department of Corrections.
Interpreting the results of multiple “validated instruments to create a
comprehensive risk profile,” the DCS determined Brown is overall a low risk to
reoffend.3 The DCS reached this conclusion despite the fact that, on one of the
3 During his testimony at the hearing, the author of the assessment report expressed deference to the court, stating that it is the DCS’s position that it is “not in the business of providing the recommendation,” as the DCS employees “believe it’s the court’s right and responsibility as defined in the Code to make the determination as to whether [the offender] fully meets the criteria.” Despite this deference expressed in his testimony, his report clearly and unequivocally stated that the risk assessment of Brown classified him as a low risk to reoffend. 5
instruments, Brown scored in the “above average risk” range. The report and its
author’s testimony explained this apparent inconsistency. According to the
assessment report, “best practice supports the consideration of both Static (history
based and relatively unchangeable—Static 99R, and ISORA), and Dynamic
(presence of risk in day to day choices—Stable-2007) assessments to generate
the most comprehensive profile.” In other words, the results from one assessment
instrument cannot be used in isolation, as the best assessment of an offender’s
risk level comes from viewing the instruments as a whole. When viewed
comprehensively, the assessment tools utilized by the DCS classified Brown as a
low risk to reoffend. Despite the assessment’s clear language that Brown is a low
risk to reoffend, the district court determined he is an average, not low, risk to
reoffend. In doing so, the court committed legal error because its finding is not
supported by substantial evidence. See Fortune, 957 N.W.2d at 707 (“The district
court cannot disqualify [the applicant] from eligibility for modification for his
assessment that meets the statutory requirement for consideration as a low-risk
offender. To the extent the district court reached a contrary conclusion, it
committed legal error.”). The uncontested evidence, coupled with a concession by
the State at the hearing, establishes that Brown meets the statutory qualifications
for modification, so he has successfully completed step one of the process.
As for step two—exercising discretion to determine whether modification is
warranted—we do not have enough to work with to determine whether Brown
satisfies this step. In its ruling, after making the erroneous finding that Brown is
not a low risk to reoffend, the district court did not stop its discussion, as it could
have. See id. at 705. Instead, the court went on to discuss additional facts. The 6
purpose of that discussion is not clear given the court’s finding that Brown was not
a low risk to reoffend. The court never said it was analyzing the second step,
possibly as a belt-and-suspenders approach to try to rule on step two despite its
finding that Brown did not clear step one. Further, the discussion of those facts is
so intertwined with the repeated finding that Brown was not a low risk to reoffend
that we are unable to determine if the facts discussed were part of the court’s
analysis on step two. Under these circumstances, we are not in a position to
assess whether Brown has satisfied step two. Further proceedings will be needed
to do that.
III. Conclusion
The district court erred in finding that Brown’s assessment did not classify
him as a low risk to reoffend, as that finding is not supported by substantial
evidence. We reverse the district court’s ruling denying Brown’s application for
modification of his sex-offender-registration obligations. Brown satisfied the
statutory requirements that would permit modification. In other words, he
successfully completed step one of the process for modification. We are unable
to determine if or how the district court exercised its discretion in ruling on the
second step of the modification process. So we remand to the district court to
exercise its discretion under section 692A.128(5) and (6) to determine whether to
grant modification and what the scope of any such modification should be. See
Becher, 957 N.W.2d at 714. The proceedings on remand may be conducted on
the existing record, but the district court is not prohibited from taking additional
evidence if it deems it appropriate to do so.
REVERSED AND REMANDED WITH DIRECTIONS.