State of Ark. Sex Offender Risk Assessment Comm. v. Wallace

2013 Ark. App. 654

• Court: Court of Appeals of Arkansas
• Decided: November 6, 2013
• Docket: CV-13-297
• Status: Published

Opinion

Cite as 2013 Ark. App. 654

ARKANSAS COURT OF APPEALS DIVISION IV No. CV-13-297

Opinion Delivered November 6, 2013 STATE OF ARKANSAS SEX OFFENDER RISK ASSESSMENT APPEAL FROM THE GARLAND COMMITTEE COUNTY CIRCUIT COURT APPELLANT [NO. CV-11-58-1]

V. HONORABLE JOHN HOMER WRIGHT, JUDGE

MICHAEL G. WALLACE AGENCY AFFIRMED; APPELLEE CIRCUIT COURT REVERSED

KENNETH S. HIXSON, Judge

This appeal concerns the community notification level assigned to appellee Michael

Wallace pursuant to the Sex Offender Registration Act of 1997. The express purpose of that

act is to release certain information about sex offenders to the public in order to protect the

public safety. Ark. Code Ann. § 12-12-902 (Repl. 2009). Appellant State of Arkansas Sex

Offender Risk Assessment Committee appeals the order entered by the Garland County

Circuit Court reducing Wallace’s notification level from a Level 2 to a Level 1. The

Committee contends that the agency decision setting notification at a Level 2 was supported

by substantial evidence and should be affirmed. We agree and affirm the agency decision,

reversing the circuit court order.

This appeal is governed by the Administrative Procedures Act (“APA”). The APA

provides that an agency decision may be reversed if the substantial rights of the petitioner have Cite as 2013 Ark. App. 654

been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

in violation of constitutional or statutory provisions; in excess of the agency’s statutory

authority; made upon unlawful procedure; affected by other error or law; not supported by

substantial evidence of record; or arbitrary, capricious, or characterized by an abuse of

discretion. Ark. Code Ann. § 25-15-212(h) (Repl. 2002). The appellate court’s review is

directed not toward the circuit court but toward the decision of the agency. Holloway v. Ark.

State Bd. of Architects, 352 Ark. 427, 101 S.W.3d 805 (2003). Our court reviews the entire

record to determine whether any substantial evidence supports the agency decision. Ark.

Dep’t of Corr. Sex Offender Screening & Risk Assessment v. Claybaugh, 93 Ark. App. 11, 216

S.W.3d 134 (2005). In determining whether substantial evidence exists to support an agency

decision, we ascertain whether there is relevant evidence that a reasonable mind might accept

as adequate to support the agency’s conclusion. Id. The issue is not whether we would have

made a different decision, but rather whether reasonable minds could conclude as the agency

did. Id.

Wallace was subject to registering as a sex offender following his 2007 no-contest plea

to sexual assault in the fourth degree, a misdemeanor. He was initially charged with rape.

Wallace, age eighteen at the time, was accused of having sexual intercourse with the fourteen-

year-old sister of Wallace’s friend during an overnight stay at the friend’s home. The crime

to which he pleaded guilty required proof that the defendant engaged in sexual contact with

another person who was less than sixteen years old. Ark. Code Ann. § 5-14-127(a)(2) (Repl.

2006).

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The Sex Offender Registration Act of 1997 required that guidelines and procedures

be put in place for the disclosure of relevant and necessary information regarding sex offenders

to the public. Gwaltney v. Sex Offender Assessment Comm., 2009 Ark. App. 668. These

guidelines and procedures must identify factors relevant to an offender’s future dangerousness

and likelihood of reoffense or threat to the community. Ark. Code Ann. § 12-12-

913(c)(2)(A) (Repl. 2009). These guidelines and procedures must set forth the extent of

information to be made public, depending on the offender’s level of dangerousness, pattern

of offending behavior, and the extent to which the information will enhance public safety.

Ark. Code Ann. § 12-12-913(c)(2)(B) (Repl. 2009). An individual assessment of each sex

offender’s risk to the public must be made. Ark. Code Ann. § 12-12-917(b) (Repl. 2009).

The assessor should consider factors such as the offender’s criminal history, the interview, a

polygraph examination, any relevant mental-health records, psychological testing, actuarial

instruments designed to assess individuals convicted of sexual offenses, and any other

information relevant to the offender’s history and/or pattern. Gwaltney, supra.

The Sex Offender Assessment Committee Guidelines and Procedures describe the

community notification levels as 1 (low) through 4 (high), compatible with the public’s need

to know about the sex offender depending upon the severity of risk to the public. As relevant

to this appeal, the levels are described as follows:

Level 1: Typically offenders in this category have no prior history of sexual offending and the community can be protected with notification inside the home and to local law enforcement authorities.

Level 2: Typically offenders in this category have a history of sexual offending where notification inside the home is insufficient. Community notification requires notice

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to the offender’s known victim preference and those likely to come into contact with the offender.

Wallace was interviewed as part of his assessment. According to Wallace, he had just

graduated high school and was spending the night with a friend when the friend’s sister came

home from a party, where she had been drinking and smoking marijuana. Wallace said that

she told him that she was sixteen. He admitted that they engaged in kissing and heavy

petting, which he said was consensual, but he denied having intercourse with her.

Investigative materials included medical documentation evidencing that the female’s genitalia

showed abrasions consistent with penetrating trauma. A condom wrapper was found in her

bedroom’s wastebasket. Wallace denied ever attending sex-offender treatment. The

interviewer observed that “Wallace took no responsibility for this offense.” Actuarial

indicators showed a low-to-moderate risk to reoffend.

Wallace was assigned a community notification Level 2, which he appealed to circuit

court. The circuit court found that there was no evidence of any sexual misbehavior apart

from this offense, in the years preceding and following this event. The circuit court

determined that anything other than the minimum level of notification was arbitrary,

capricious, and not supported by substantial evidence. This appeal followed.

We hold that the agency decision is supported by substantial evidence. In Gwaltney,

supra, our court upheld an administrative decision to assign a Level 2 designation to

Mr. Gwaltney where he had only one known victim, he had not participated in sex-offender

treatment, and he was an adult male who admitted to sexual contact with a fourteen-year-old

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girl. Our court recognized there that because Gwaltney’s victim was outside his home, a

Level 1 assessment would not be sufficient. The same is true here.

Because substantial evidence supports the assessment at Level 2, we affirm the agency

decision and reverse the circuit court.

WALMSLEY and BROWN, JJ., agree.

Dustin McDaniel, Att’y Gen., by: Amy L. Ford, Ass’t Att’y Gen., for appellant.

Hurst, Morrissey & Hurst, PLLC, by: Q. Byrum Hurst, Jr., for appellee.