Halstead v. Sex Offender Assessment Comm.

Cite as 2013 Ark. App. 445ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-13-14
DONALD HALSTEAD Opinion Delivered August 28, 2013
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. CV-2012-627 (V)]
SEX OFFENDER ASSESSMENT
COMMITTEE HONORABLE J. MICHAEL
APPELLEE FITZHUGH, JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Pursuant to the Arkansas Administrative Procedure Act (APA), appellant Donald
Halstead appeals from the order of the circuit court affirming the decision of the Sex
Offender Assessment Committee, in which the Committee upheld his assessment as a level
three sex offender.1 On appeal, he contends that there was insufficient evidence to support
the Committee’s level 3 assessment. We affirm the Committee’s decision.
This is a reassessment case. Appellant was initially assessed in 2001, when he was
assigned a community notification level of 3. This was based upon his conviction in
Colorado in 1992 for first-degree assault, first-degree sexual assault, criminal mischief, and
first-degree burglary. In 1994, the Colorado Court of Appeals vacated appellant’s conviction
1
The APA is codified at Arkansas Code Annotated §§ 25-15-201 to -218 (Repl. 2002
& Supp. 2011).
Cite as 2013 Ark. App. 445for first-degree sexual assault because it was a lesser-included offense of first-degree assault
and “merged into” the first-degree assault conviction under Colorado law. He was
imprisoned in Colorado from 1991 to 1998 and subsequently moved to Arkansas.
Appellant requested a reassessment in October 2011, contending that his sexual-assault
conviction had been vacated in 1994 and that he had not had any incidents or criminal
occurrences since his discharge from prison in 1998. He explained in his interview with the
Sex Offender Screening and Risk Assessment unit (SOSRA) that he and his wife had
purchased a new home and found out after closing that the home was within 2000 feet of
an elementary school and preschool and, thus, that he could not live there. After
reassessment, SOSRA again assigned him a community notification level of 3. He requested
administrative review of the reassessment. On April 25, 2012, the Sex Offender Assessment
Committee issued a decision upholding SOSRA’s level 3 assessment. Appellant petitioned
for review under the APA in the circuit court. The circuit court denied his petition for
review and affirmed the Committee’s decision. Appellant filed this appeal.
The APA provides that an agency decision may be reversed if the substantial rights of
the petitioner have been prejudiced because the administrative findings, inferences,
conclusions, or decisions are
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h) (Repl. 2002). We direct our review not toward the circuit
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Cite as 2013 Ark. App. 445court, but toward the decision of the agency. Brown v. Ark. Dep’t of Corr. (Sex Offender
Screening & Risk Assessment), 2012 Ark. App. 330, at 2. When reviewing administrative
decisions, we review the entire record to determine whether any substantial evidence
supports the agency’s decision. Id. In determining whether a decision is supported by
substantial evidence, we review the record to ascertain if the decision is supported by relevant
evidence that a reasonable mind might accept as adequate to support a conclusion. Ark. State
Bd. of Nursing v. Morrison, 88 Ark. App. 202, 210, 197 S.W.3d 16, 21 (2004). In doing so, we
give the evidence its strongest probative force in favor of the administrative agency; the
question is not whether the testimony would have supported a contrary finding, but whether
it supports the finding that was made. Id. at 211, 197 S.W.3d at 21.
Appellant contends on appeal, first, that the Committee acted arbitrarily and
capriciously and abused its discretion in requiring him to register at all. He also contends that,
if he is required to register, substantial evidence does not support the Committee’s decision
to assess him as a level 3 sex offender. With regard to his first argument, appellant points to
Ark. Code Ann. § 12-12-905(c)(1) (Repl. 2009), which provides that if “the underlying
conviction of the registrant is reversed, vacated, or set aside or if the registrant is pardoned,
the registrant is relieved from the duty to register or verify registration.” Section 905(c)(2)
provides that registration “shall cease upon the receipt and verification by the Arkansas Crime
Information Center of documentation from the . . . Court verifying the fact that the
conviction has been reversed, vacated, or set aside.”
The Committee concluded that it did not have the authority to remove an offender
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Cite as 2013 Ark. App. 445from the sex-offender registry: it was merely tasked with the duty to assess the appropriate
community notification level. Appellant cited no authority to dispute the Committee’s
conclusion on this issue. Moreover, the record contains an order from the Colorado District
Court in which appellant was convicted, dated November 16, 2011, denying his petition to
discontinue sex-offender registration. That court determined that appellant was not eligible
for deregistration until twenty years had elapsed from the date of his discharge from custody.
The court noted that it had “previously vacated the First Degree Sexual Assault conviction
based upon the Court of Appeals Mandate” and held that the first-degree sexual-assault
conviction was vacated “having merged into the First Degree Assault conviction.” Finally,
the Committee considered the vacation of appellant’s sexual-assault conviction by the
Colorado Court of Appeals in reassessing appellant. It found that appellant’s assertion
regarding this was “overly broad and [did] not accurately portray the actions required by the
Colorado Court of Appeals.” The Committee determined that the Colorado appeals court
vacated the conviction based on “a technical application of the law” under the doctrine of
merger and lesser-included offenses: essentially, the definition of first-degree assault included
first-degree sexual assault. We note that the Colorado appeals court determined that it was
required to vacate appellant’s conviction under Colorado law’s merger doctrine and not
because of some absence of evidence or failure of proof. The elements of the offense of
sexual assault were the elements used to establish the first-degree assault conviction.
Appellant next argues that substantial evidence does not support a level 3 assessment
because he had no criminal history before he committed the underlying offense and he has
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Cite as 2013 Ark. App. 445maintained a clean record since the offense; he took a polygraph examination indicating no
victims of abuse and no deception; no significant personality issues were identified; and his
Vermont Assessment of Sex-Offender Risk (VASOR) score was lower than it had been in
2001 and was the lowest score that he was capable of receiving given his underlying offense,
which could not be changed.
The Committee reviewed all this information in addition to reviewing the indexed
offense. Appellant’s offense occurred when he was eighteen years old and his female victim
was twenty-seven. The victim was a neighbor and one of his mother’s best friends.
Appellant’s mother babysat for the victim’s children. On the day of the incident, appellant
waited for the victim’s husband to leave for work and then knocked on the victim’s door and
asked if his mother had accidentally left a pen in the victim’s diaper bag. He then entered her
home, claiming that he was cold, and pulled a large combat knife on the victim and
demanded that she remove her clothing, threatening to kill her if she failed to comply. He
sexually assaulted her in front of her two-year-old son and threatened to do the same to her
four-year-old daughter. During her struggle with appellant, the victim sustained a severe cut
to her right hand, which required surgery to repair. A friend of the victim’s telephoned her
and, after being alerted by the victim, called the police, who went to the victim’s home.
In its facts and conclusions, the Committee noted that appellant stated in his request
for a reassessment that the indexed offense occurred over twenty years earlier, his indexed
offense was vacated in 1994, he had not been in trouble since then, he had participated in
sex-offender treatment in prison, and he had passed a polygraph test with no deception
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Cite as 2013 Ark. App. 445indicated. The Committee stated that it had reviewed the letters of reference, the polygraph,
the risk-assessment-and-offender profile report, and the VASOR report. The Committee
found that the State of Colorado had recently rejected appellant’s bid to be removed from
registration requirements, noting that his first-degree assault conviction, which included
sexual assault, remained and was undisputed. The Committee found that appellant used
deception to gain access to the victim, launched a violent sexual attack in front of the
victim’s young son that resulted in the victim sustaining an injury requiring surgery, and told
the victim that he could do the same to her four-year-old daughter. The Committee
recognized that appellant had purchased a home he could not live in because of its proximity
to a school, but noted that the assessment process did not require consideration of real-estate
issues.
Giving the evidence its strongest probative force in favor of the Committee, we hold
that it supports the level 3 assessment. Accordingly, we affirm the decision of the circuit
court, which upheld the Committee’s decision.
Affirmed.
PITTMAN and WYNNE, JJ., agree.
The Baker Law Firm, by: Rinda Baker, for appellant.
Dustin McDaniel, Att’y Gen., by: Amy L. Ford, Ass’t Att’y Gen., for appellee.
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