Dennis Becher v. State of Iowa

• Court: Supreme Court of Iowa
• Decided: April 9, 2021
• Docket: 20-0353
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 20–0353

Submitted February 16, 2021—Filed April 9, 2021

DENNIS BECHER,

Appellant,

vs.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.

Sex offender registrant appeals decision of district court denying

modification of his sex offender registry requirements. REVERSED AND

REMANDED.

Appel, J., delivered the opinion of the court, in which all justices

joined.

Nicholas A. Sarcone of Stowers & Sarcone PLC, West Des Moines,

for appellant.

Thomas J. Miller, Attorney General, and John R. Lundquist,

Assistant Attorney General, for appellee. 2

APPEL, Justice.

In this case, Dennis Becher appeals from a decision of the district

court denying his application to modify his sex offender registry

requirements. On appeal, Becher asserts that the district court

misinterpreted or misapplied the provisions of Iowa Code section 692A.128

(2019). For the reasons expressed below, we reverse the decision of the

district court and remand for further proceedings.

I. Factual and Procedural Background.

A. Introduction. On June 2, 2000, Dennis Becher pled guilty to

two counts of sexual abuse in the third degree against his nine-year-old

adopted daughter in violation of Iowa Code sections 709.1 and 709.4(1)

(2000). The district court sentenced Becher to two consecutive ten-year

terms in prison. Becher fully discharged his sentence and was released

from incarceration on May 10, 2009.

According to his prison discharge report, Becher “has done well at

[the correctional facility].” During the period of his incarceration, he did

not receive any disciplinary reports. He made connections with church

groups, and “poured himself into treatment just as hard as he poured

himself into church and his religious classes.” While in prison, Becher completed a correspondence course in religious studies that was the

equivalent of an associate of arts degree.

Because each of his convictions is an “aggravated offense,” Becher

is subject to lifetime registration as a sex offender. See Iowa Code

§§ 692A.101(1)(a)(3) (defining sexual abuse in the third degree as an

aggravated offense), .106(5) (mandating life registration for persons who

are convicted of aggravated offenses) (2019). Becher has been on the

registry since June 2, 2009, without any violation of the registration

requirements. 3

On October 29, 2019, approximately ten years after his release from

prison, Becher filed on an application for modification of his sex offender

registry requirements pursuant to Iowa Code section 692A.128. In

support of his application, Becher presented the results of an evaluation

of his likelihood to reoffend prepared by the Iowa Department of

Correctional Services (DCS) based on validated assessment tools. In

addition, Becher and Ed Bateman, a pastor, counselor, and teacher to

Becher, each testified in support of modification at a hearing before the

district court.

B. Department of Correctional Services Evaluation. DCS

evaluated Becher using the five validated tools. The results were as

follows:

STATIC-99R Below average risk

ISORA Low risk

ISORA/STATIC-99R Combined Low risk

STABLE 2007 Lowest risk

STABLE 2007/STATIC-99R Low risk

The evaluation indicated, however, that the STATIC-99R result may have overstated the risk based on the time Becher has been offense-free

since his release. Because Becher has been offense-free for ten years, the

evaluation stated that risk level should be very low risk.

C. Testimony at Hearing.

1. Becher. Becher testified that he was fifty-three years old and

currently employed as a truck driver. He has been employed since his

release from prison. He had been married for eight years, divorced, and

at the time of the hearing was engaged to be married. Both women were

aware of his sex offender status. 4

Becher admitted to two convictions of sex abuse between 1999 and

2000. Specifically, he admitted he fondled his adopted nine-year-old

daughter over and under her clothing. After he pled guilty, he served nine

years and two months for his offenses.

Becher told the district court that while in prison he had completed

all required treatment programs. Becher testified that the treatment

programs helped him learn a lot about empathy and anger, as well as

resentments he had from his childhood. Becher stated he was able to

openly discuss his actions which led to his convictions and stated that his

victim is still a victim even today.

Becher testified that he does not have any desire to reoffend, is

mentally stable, has a great support system, and knows how to deal with

stress and depression. Since his release from prison, Becher stated he

has not committed any criminal offenses nor violated the requirements of

his sex offender registration.

Becher told the district court he had a history of depression and

mental health treatment that predated his offenses. He indicated that he

had no further treatment upon his release from prison but had developed

a support network through biblical support groups. As to triggers, Becher admitted he would get angry while driving his truck if automobile drivers

tried to make him stop on a dime on the road.

As to negative impacts of registration, Becher stated that there were

limited places where he could live. Becher told the court, however, that

he recently purchased a home in Dubuque. Becher also noted that he had

to report if he engaged in travel and, as a result, he did not travel much.

He and his fiancée planned to honeymoon at Okoboji after their marriage.

2. Bateman. Ed Bateman worked with Becher when he was in

prison and is now a close friend. Bateman told the district court he had 5

worked with many persons in prison and that he had no doubt that Becher

would not reoffend.

D. District Court Ruling. The district court denied Becher’s

application. It noted that Becher was assessed at Level II on the STATIC-

99R, which is described as “below average.” The district court noted that

a Level II offender “would be higher risk than nonoffenders, but lower risk

than typical offenders.” The district court further noted that at Level II,

“[i]t is expected that . . . offenders would have some criminogenic needs,

but that these life problems would be few and transient.”

The district court noted that the registration requirements have not

significantly affected Becher’s life. Although Becher testified it was hard

to find a place to live, Becher nonetheless had purchased a home in

Dubuque. When he traveled, the district court noted, Becher had been

able to check in with local authorities as required by his registration

status.

The district court noted that Becher had not received a stipulation

from DCS. The district court noted, however, that the lack of a stipulation

does not “end the analysis” as under Iowa Code section 692A.128(6),

stipulation is not mandatory. Yet, the district court later noted that the record does not contain such a stipulation, suggesting its absence was a

factor in the district court’s analysis.

II. Standard of Review.

Under Iowa Code section 692A.128 a district court may consider

modification of a sex offender’s registry requirement when certain

mandatory criteria are met. Determining whether the mandatory criteria

are met and any other questions of interpretation of section 692A.128 are

reviewed for correction of errors at law. See State v. Iowa Dist. Ct., 843 6

N.W.2d 76, 79–80 (Iowa 2014); Schaefer v. Putnam, 841 N.W.2d 68, 74

(Iowa 2013).

After the district court determines that the threshold requirements

are met, the district court “may” grant modification. Iowa Code

§ 692A.128(5). The word “may” ordinarily vests the trial court with

discretion. See, e.g., State v. Adams, 554 N.W.2d 686, 690 (Iowa 1996)

(“The use of the word ‘may’ shows the legislature’s intention to confer a

discretionary power, not to impose a requirement.”); see also Iowa Code

§ 4.1(30)(c) (“The word ‘may’ confers a power.”). “A court abuses its

discretion when its ruling is based on grounds that are unreasonable or

untenable.” In re Tr. #T–1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013).

“A ruling is clearly unreasonable or untenable when it is ‘not supported by

substantial evidence or when it is based on an erroneous application of

the law.’ ” In re Marriage of Kimbro, 826 N.W.2d 696, 698–99 (Iowa 2013)

(quoting In re Marriage of Schenkelberg, 824 N.W.2d 481, 484 (Iowa 2012)).

III. Discussion.

A. Legal Framework for Modification Applications. The parties

dispute the proper legal approach to modification applications under Iowa

Code section 692A.128. In the companion case of Fortune v. State, ___ N.W.2d___ (Iowa 2021), we laid out in detail the proper approach to be

used by district courts in assessing modification applications. Our

discussion in Fortune is incorporated herein by reference.

B. Positions of the Parties. Like Fortune, Becher argues that

although Iowa Code section 692A.128 allows the district court to use

discretion in its decision to modify registration requirements, the exercise

of district court discretion must be informed by the mandatory statutory

criteria provided in Iowa Code section 692A.128(2)(a)–(e). Specifically,

Becher notes that the threshold criteria of successful completion of sex 7

offender treatment, time on the registry, and a low-risk evaluation are all

oriented toward determining risk of reoffense.

Further, Becher relies on our decision in In re A.J.M., 847 N.W.2d

601 (Iowa 2014). In In re A.J.M., we considered the appropriate standards

for a district court to apply when considering whether to waive the sex

offender registration requirements for juvenile offenders under Iowa Code

section 692A.103(3). In re A.J.M., 847 N.W.2d at 604–07. Becher asserts

that in In re A.J.M., we established that in considering whether to waive

the sex offender registration requirements for a juvenile, the focus should

be on the juvenile’s risk of reoffending. Id. at 605–07. In In re A.J.M., we

noted,

[I]t is important to recognize it is possible for any juvenile sex offender to reoffend. Yet, the mere possibility of reoffending does not preclude waiver or subsequent modification. The standard intended by our legislature is built on a likelihood of reoffending. This means the risk of reoffending would be “probable or reasonably to be expected.”

Id. at 606 (quoting In re Foster, 426 N.W.2d 374, 377 (Iowa 1988)). Becher

invites us to utilize the same approach in this case involving adult

modification of sex offender registration requirements.

Becher then proceeds to challenge specific features of the district court’s ruling in this case. Becher claims, for instance, that the district

court erred in applying a “persuasive reason” standard that used Becher’s

history of compliance as a negative factor in the analysis. Becher asserts

that successful management of one’s life to ensure compliance with

registration should not be a strike against an applicant.

Becher further notes that the district court erroneously relied upon

the lack of a stipulation from DCS. Becher points out that he was not

under supervision, and thus Iowa Code section 692A.128(2)(e) does not

apply. 8

Becher also asserts that the district court in denying modification

improperly cherry-picked his score on the STATIC-99R. While the STATIC-

99R score alone did place Becher in the below-average risk category, the

evaluation expressly stated that this score did not take into account the

time Becher had been in the community without reoffending. Becher notes

that when ten years of elapsed time outside of prison without reoffending

is considered, the adjusted STATIC-99R score becomes very low risk.

Finally, Becher claims that the district court improperly considered

the nature of the offense. Becher asserts that all sex crimes are heinous.

Further, Becher notes that the legislature did not exclude any type of crime

from the modification provision.

The State responds by asserting that the likelihood of reoffense is

not the sole criteria for the exercise of discretion under the statute. With

respect to In re A.J.M., the State stresses that case involved the waiver of

registration, not a modification, and involved a juvenile offender, not an

adult offender. According to the State, the district court gave appropriate

consideration not only to Becher’s risk assessment but also to the

underlying facts of the criminal offense and the lack of a persuasive reason

for the modification. With respect to the district court’s treatment of the STATIC-99R

score, the State argues that the district court order was supported by the

record evidence that the STATIC-99R score, which never changes, showed

a below-average risk.

On the question of the lack of a stipulation from DCS, the State

simply observes that such a stipulation is not required under the statute

when the offender is not under supervision. The State makes no further

argument on this point. 9

C. Discussion. We first consider the application of In re A.J.M. to

this case. It is true, as the State indicates, that the case involved the

waiver of registration for a juvenile, not the modification of registration for

an adult. Yet we think that In re A.J.M. generally stands for the proposition

that the exercise of discretion by district courts regarding waiver and

modification provisions of sex offender registration statutes should focus

on the risk of reoffense and the ongoing need for registration to protect

public safety—and not on other factors. To that extent, we agree with

Becher.

We do not agree, however, that under the terms of Iowa Code section

692A.128, the standard for modification of sex offender registration for

adults is whether an offender is “probable or reasonably to be expected” to

reoffend, as is the case for waiver of registration for juveniles. In re A.J.M.,

847 N.W.2d at 606 (quoting In re Foster, 426 N.W.2d at 377). There is a

difference between juveniles and adults. Recognizing that difference, the

legislature has made it clear that in order for adults to qualify for a

modification of registration, an offender must be classified as low risk

using standard validated assessment tools. Iowa Code § 692A.128(2)(c).

The legislature’s selection of low risk as the proper standard to be applied with respect to adults differs from our approach in In re A.J.M. Low risk,

of course, does not mean no risk, and the teaching of In re A.J.M. that the

mere possibility of reoffense cannot be considered determinative is sound.

See also Fortune, ___ N.W.2d at ___. But the risk analysis applied by the

district court must be consistent with the requirement that an offender be

considered low risk under applicable validated assessment tools.

We now turn our discussion to specifics of the district court’s order.

Becher challenges the district court’s treatment of the STATIC-99R score.

Narrowly, the State is correct in its assertion that Becher scored below- 10

average on that metric. But the context is missing. The DCS evaluation

specifically reviewed relevant literature on the STATIC-99R. The

evaluation itself noted that the STATIC-99R assessment was valid at the

date of release from prison and did not take into account time in the

community without reoffense. The DCS evaluation observes that if

adjusted for time in the community without reoffense, the STATIC-99R

score puts Becher in the very low-risk category.

We think the district court abused its discretion by not putting

Becher’s STATIC-99R score into proper context. The State, while noting

that the district court’s observation was technically accurate, does not

defend the failure of the district court to recognize the adjustment to the

STATIC-99R contained in Becher’s evaluation. The State contends, rightly

we think, that the district court is not bound by an evaluation that

determines that an offender, like Becher, is at low risk to reoffend. But it

is weighty evidence on the modification issue that should not be evaluated

out of its proper context.

We next consider the district court’s reliance on the absence of a

stipulation from DCS approving of a modification of the registration

requirement. Such a stipulation makes sense when the offender is under the department’s supervision. See Iowa Code § 692A.128(6). When an

offender is under such supervision, the department is in a position to have

a good working knowledge of the offender and his adjustment to life

outside of prison. But here, since his release from prison, Becher has

never been under supervision. Instead, Becher has been “off paper.” The

State in its brief makes a passing reference to the fact that the stipulation

from DCS was not required but makes further argument in support of

consideration of its absence in Becher’s case. We think it clear that the 11

failure to obtain a stipulation cannot be a factor in denying Becher’s

modification. The district court erred in giving it any consideration.

The district court also emphasized that Becher has adjusted well to

the registration regime, and as a result, presented no persuasive reason

for a modification. On the undisputed evidence, Becher has achieved ten

years of compliance, is gainfully employed as a truck driver within the

registration regime, and has managed to find a house in Dubuque that is

not located within a prohibited geographic location for Becher as a tier III

sex offender.

We do not agree, however, that successful adjustment to the sex

offender registration requirements is a factor for denying modification.

Indeed, the mandatory requirement in Iowa Code section 692A.128(2)(a)

that an offender experience a period of time in the community without

reoffense suggests that successful adjustment over time is a positive factor

that reduces the need for ongoing compliance with the registration

requirements. The same notion arises from the DCS evaluation, which

notes the adjustment to the STATIC-99R based on time in the community

without reoffense. If we penalize an offender seeking modification who has

a history of failure to comply with the sex offender registration requirements, can we also penalize an offender for successfully complying

with the same requirements over a ten-year period? We think not.

Finally, we consider whether the district court properly considered

the underlying nature of the crime. As noted in Fortune, we do not

conclude that the underlying nature of the crime can never be considered

by the district court. But care must be taken to ensure that registration

is not punishment. On remand, any consideration of the underlying

nature of the crime must be linked to the public safety purposes of the

statute and not to a desire to punish. 12

In sum, we find that the district court erred in its consideration of

the STATIC-99R evaluation, consideration of the lack of stipulation from

DCS, and penalizing Becher for his years of successful adjustment to sex

offender registration.

IV. Conclusion.

For the above reasons, we vacate the ruling of the district court in

this case and remand the matter to the district court for further

consideration consistent with this opinion.

REVERSED AND REMANDED.