Brown v. Sex Offender Assessment Comm. ( 2014 )

Cite as 2014 Ark. App. 236
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-13-876
Opinion Delivered April 16, 2014
DAVID BRIAN BROWN APPEAL FROM THE FRANKLIN
APPELLANT COUNTY CIRCUIT COURT,
NORTHERN DISTRICT
[No. CV-2013-6]
V.
HONORABLE DENNIS CHARLES
SEX OFFENDER ASSESSMENT SUTTERFIELD, JUDGE
COMMITTEE
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
On August 13, 2007, appellant David Brown was found guilty of third-degree battery in
Sebastian County District Court, Fort Smith Division. Although his incarceration was not due
to a crime of a sexual nature, because Brown had a history of “non target” sexual offenses, he
was required to appear for an assessment interview with the Sex Offender Assessment
Committee (“Committee”) upon his release from incarceration. The Committee initially assessed
him as a “Level 3 Offender” by default, because he did not appear for review. However, he
argued that he did not receive notice of the hearing, and there was evidence that supported that
contention (the hearing notification had the incorrect street number). Our court remanded after
holding that the administrative decision did not contain sufficient findings of fact and
conclusions of law for the court to review.
On remand, the Committee assessed Brown at a Level 3, and Brown filed his petition for
circuit-court review. The circuit court affirmed the Commission in an order dated June 13, 2013.
Cite as 2014 Ark. App. 236
On July 8, 2013, Brown filed his notice of appeal with our court alleging that 1) the court erred
in requiring mandatory sex-offender registration; 2) the Committee improperly assigned him
Level 3 status; and 3) the decision was not supported by substantial evidence. We affirm.
Judicial review of Committee assignments of community-notification levels is governed
by the Administrative Procedures Act (APA). Ark. Code Ann. § 25-15-201 (Repl. 2012). The
limited scope of judicial review pursuant to the APA is premised on the recognition that
administrative agencies are better equipped by specialization, insight through experience, and
more flexible procedures than courts, to determine and analyze legal issues affecting their
agencies. Williams v. Ark. State Bd. of Physical Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003).
Under the APA, the court may reverse or modify an agency decision if it prejudices the rights
of the petitioner because the administrative findings, inferences, or decision, are not supported
by substantial evidence. Olsten Health Servs., Inc., v. Ark. Health Servs. Comm’n, 69 Ark. App. 313,
12 S.W.3d 656 (2000). It is not the role of the circuit courts or the appellate courts to conduct
a de novo review of the record; rather, the review is limited to ascertaining whether there is
substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul
of one of the other criteria set out in section 25-15-212(h). Wacaser v. Ins. Comm’r, 321 Ark. 143,
900 S.W.2d 191 (1995).
It is Brown’s burden to prove that there is an absence of substantial evidence, which is
given the strongest probative force in favor of the agency’s ruling. McQuay v. Ark. State Bd. of
Architects, 337 Ark. 339, 989 S.W.2d 499 (1999). The question is not whether the testimony
would have supported a contrary finding, but whether it would support the finding made. Id. at
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345, 989 S.W.2d at 501–02. It is the prerogative of the board to believe or disbelieve any witness
and to decide what weight to accord the evidence. Id., 989 S.W.2d at 502.
As to Brown’s first point on appeal, the Committee has no authority to require an
individual convicted of a sex offense to register as a sex offender. Registration of sex offenders
is not an administrative function. Instead, it is the responsibility of the sentencing court and local
law enforcement to make the determination of who does and does not fit the classification of
sex offender. The Committee is charged only with the assessment of a sex offender, which
involves a determination of the degree of legal notice that the community and law enforcement
is to receive; and that determination is subject to judicial review. Therefore, the only thing we
can review is the assessment of the notice level required of Brown as a sex offender, not the
classification of him as a registration-required sex offender.
As to the actual assessment of Brown, we are satisfied that the Committee followed its
procedures and correctly assessed Brown at a Level 3. The record shows that he was a repeat
sexual offender; that alone supports the Committee’s Level 3 assessment. On February 2, 2006,
Brown was convicted of two separate offenses occurring on November 4 and 5, 2005, where
Brown exposed himself to a minor or female victim. And his conviction on March 10, 2005,
included another conviction of indecent exposure to male victims ages seven and eight,
occurring on November 11, 2004. He also admitted (during his interview) to another incident
of indecent exposure in August 2003. Brown’s documented tendency to expose himself to
minors and strangers resulted in an antisocial-personality diagnosis, which also supports the
Committee’s Level 3 assessment.
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Cite as 2014 Ark. App. 236
Further, the Committee complied with its own established actuarial-determination
process in assessing Brown’s “risk” score (based on the STATIC-99 score). The score that
Brown received placed him in the “Moderate-High” risk category—between 62 and 88
percentile for risk of reoffense relative to other adult male sex offenders. And, contrary to
Brown’s argument, it is not required that he be assessed in the “High” category to receive a
Level 3 assessment. There is no set correlation between the percentiles and the assessment level;
instead, it is merely a tool for evaluation, and the Committee is free to believe or disbelieve any
witness, evidence, or testimony. Ark. Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934
(1998). Here, there was more than substantial evidence to support the Level 3 assessment.
Taking Brown’s anti-social personality diagnosis, a separate incident of physical, non-sexual
violence, his admission in the interview process, the fact that minors were often involved, and
that he had numerous offenses (including multiple stranger victims), we agree that the
Committee accurately assessed the level of community notice required of Brown under its own
procedures and discretion.
Affirmed.
PITTMAN and GLOVER, JJ., agree.
The Baker Law Firm, by: Rinda Baker, for appellant.
Dustin McDaniel, Att’y Gen., by: Amy L. Ford, Sr. Ass’t Att’y Gen., for appellee.
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