In re B.H.

October 19, 2018
Supreme Court
No. 2016-322-Appeal.
(12-1040-1)
In re B.H. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2016-322-Appeal.
(12-1040-1)
In re B.H. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Indeglia, for the Court. The respondent, B.H., appeals from a Family Court
order requiring him to register as a sex offender, and denying his motion to waive sex-offender
registration and notification pursuant to G.L. 1956 § 11-37.1-4(j).1 This matter came before the
Supreme Court on September 25, 2018, pursuant to an order directing the parties to appear and
show cause why the issues raised should not be summarily decided. After considering the
arguments set forth in the parties’ memoranda and at oral argument, we are convinced that cause
has not been shown. Thus, further argument or briefing is not required to decide this matter. For
the reasons outlined below, the Family Court’s order is affirmed.
I
Facts and Travel
The pertinent facts of this case may be found in our opinion in the case of In re B.H., 138
A.3d 774 (R.I. 2016), in which respondent had appealed from Family Court adjudications of
1
While not addressed by either party, we note that G.L. 1956 § 11-37.1-4, entitled, “Duration of
registration—Frequency of registration[,]” concerns only the duration and frequency of
registration, while § 11-37.1-3, entitled “Registration required—Persons covered[,]” sets out
individuals who are required to register as sex offenders. It is quite plausible that § 11-37.1-4(j)
does not give the trial justice discretion to waive the registration requirement for juveniles in
toto, but only to determine the duration of registration for “as long as the court deems it
appropriate to protect the community and to rehabilitate the juvenile offender.” However, in
light of our opinion in this case, we need not reach this issue at this time.
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delinquency with respect to two charges of first-degree child molestation sexual assault. We
determined in that appeal that the state had not proven the requisite element of penetration to
substantiate two counts of first-degree child molestation sexual assault. In re B.H., 138 A.3d at
783. However, in doing so, we held that, because the trial justice had made an explicit finding
that there was contact for the purpose of sexual gratification, respondent was responsible for the
lesser-included offense of second-degree child molestation sexual assault.2 Id. at 785, 786. We
remanded the case to the Family Court “with directions to enter adjudications of delinquency on
the lesser-included offense of second-degree child molestation and for resentencing.” Id. at 787.
At the hearing on remand, which took place on August 17, 2016, respondent pressed his
motion to waive sex-offender registration and notification that he had filed prior to that hearing,
arguing that he should only be required to register as a sex offender until his nineteenth birthday,
which was one week after the hearing date. In support of his motion to waive sex-offender
registration, respondent contended that the conduct that formed the basis of the adjudications of
delinquency on the two counts of second-degree child molestation sexual assault was criminal
only because the victims, Kevin and Henry,3 were under the age of fourteen at the time of the
incident, and thus the trial justice had the discretion to waive sex-offender registration under
§ 11-37.1-4(j). The respondent argued that, had the two youths been sixteen years old rather
than eleven years old, no charges would have been brought against respondent. In response, the
state argued that the trial justice had no discretion in this case because respondent had used
2
“A person is guilty of a second-degree child molestation sexual assault if he or she engages in
sexual contact with another person fourteen (14) years of age or under.” General Laws 1956
§ 11-37-8.3.
3
We use fictitious names to protect the privacy of the victims, who were eleven years old at the
time of the conduct.
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threats, manipulation, and coercion against the victims, which made his conduct criminal apart
from the ages of the victims.
With regard to the trial justice’s discretion, respondent argued that he had been fully
compliant with all previous court orders regarding registration and therapy. The respondent
based his argument in support of a waiver in part on reports from David W. Ingle, Psy.D., a
licensed clinical psychologist, and Leo D. Keating, a licensed clinical social worker, both of
whom indicated that respondent posed little risk to the community for sexual misconduct. The
respondent pointed out that Dr. Ingle, who has had extensive experience in treating adult and
juvenile offenders, specifically indicated that he could not diagnose respondent with pedophilia
due to his age and the various statistical analyses that were performed. According to respondent,
Dr. Ingle’s assessment was supported by Mr. Keating, who performed both a Millon Clinical
Multiaxial Inventory-III4 and an Abel Assessment of Sexual Interest-3,5 in addition to reviewing
redacted Cranston police statements, probation records, and the sentencing report.
The state argued that Dr. Ingle and Mr. Keating had based their assessments purely on
respondent’s account of the events, and that, therefore, the assessments themselves were suspect.
According to the state, respondent had not accepted responsibility for his actions and had not
been fully rehabilitated. The state further argued that, in the five years since the incident,
4
“The primary intent of the [The Millon Clinical Multiaxial Inventory-III] is to provide
information to clinicians * * * who must make assessments and treatment decisions about
persons with emotional and interpersonal difficulties.” The Millon Clinical Multiaxial Inventory-
III (MCMI-III) (2009) with new norms and updated scoring, THE MILLON PERSONALITY GROUP,
https://www.millonpersonality.com/inventories/MCMI-III/ (last visited Oct. 15, 2018).
5
“The [Abel Assessment of Sexual Interest]-3 can be used with adult men and women with
sexual behavior problems. It is specifically designed to measure a client’s sexual interest and to
obtain information regarding involvement in a number of abusive or problematic sexual
behaviors.” The AASI-3 and Psychological Assessments, ABEL SCREENING,
http://abelscreening.com/products/evaluation-treatment-planning/aasi-3/ (last visited October 15,
2018).
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respondent had not participated in any substantive sex-offender treatment, but had been enabled
and accommodated by his family and treatment providers. Additionally, the state faulted Dr.
Ingle for not performing a juvenile-sex-offender protocol evaluation as part of his assessment of
respondent due to Dr. Ingle’s belief that the evaluation was not reliable.6
Ultimately, the trial justice committed respondent to the Rhode Island Training School
for Youth, but suspended the commitment; respondent was placed on probation until further
order of the court.7 The court also required respondent to register as a sex offender.8 In finding
that she had no discretion under § 11-37.1-4(j) in this case, the trial justice contrasted
respondent’s case with what she termed a “Romeo and Juliet type of situation”:9
“where two kids who were perhaps thirteen years old, engage in
sexual contact that is consensual. And, that under that scenario,
sometimes the girl’s parents might find out. They are outraged.
They call the police. They have the boyfriend charged. The
boyfriend is charged with first degree child molestation because of
the age of the victim in that matter. And then the [c]ourt will have
the ability at that time, if the [r]espondent is adjudicated, to look at
the statute and look at the ages of the parties and say, well due to
the age and the consent between the parties, this [c]ourt finds that
the [r]espondent is not a danger to the public and will suspend the
obligation to register as a sex offender.”10
In so stating, the trial justice found that there was a clear lack of consent to the sexual
contact in this case; she pointed out that the victims were coerced by respondent, an older friend,
who told them it was merely “an experiment to find out if you are gay.” Additionally, the trial
6
According to the state, the “juvenile sex offender protocol” is an assessment that the Rhode
Island Family Court often relies upon to measure a juvenile’s risk of committing sexual offenses
in the future.
7
By law, the sentence of incarceration and probation ended on respondent’s nineteenth birthday.
See G.L. 1956 § 14-1-7.3.
8
Section 11-37.1-4(j) requires a juvenile offender to register as a sex offender for fifteen years.
9
Romeo and Juliet is a classic Shakespearian tragedy about two adolescent lovers caught in the
middle of their families’ blood feud.
10
The trial justice went on to state: “under that scenario that the [c]ourt just imagined, there was
consent; there was the closeness in age between the [r]espondent and the victim in that matter.”
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justice found that there was no curiosity-motivated sexual play by the two young victims, with
the only mention of homosexuality coming from respondent himself. The trial justice also
highlighted the fact that respondent was nearly fourteen years old at the time of the incident,
while Kevin and Henry had not yet reached puberty. Moreover, she found that, while the
respondent was also young at the time and sexually curious, most adolescents do not experiment
with younger persons in a coercive and manipulative manner.
Furthermore, the trial justice stated that, even if she had discretion under § 11-37.1-4(j) in
the present case, she would not have exercised that discretion. The trial justice based that
determination on her finding that respondent was an untreated sexual offender who had not
accepted responsibility for his actions. She agreed with the state that Dr. Ingle and Mr. Keating
had relied in their assessments upon respondent’s own account of the events. Finally, she
contrasted what she found to be respondent’s lack of accountability for his actions with the fact
that the victims were “horrified over the entire experience[,]” finding that this case did not fit the
factual situation necessary for her to exercise discretion. An order entered imposing sentence
and denying respondent’s motion to waive sex-offender registration. On August 19, 2016,
respondent timely appealed to this Court.
II
Standard of Review
“[W]e review questions of statutory interpretation de novo.” State v. Hazard, 68 A.3d
479, 485 (R.I. 2013) (quoting Campbell v. State, 56 A.3d 448, 454 (R.I. 2012)). In so doing, our
ultimate goal is to give effect to the purpose of the act as intended by the Legislature. State v.
Santos, 870 A.2d 1029, 1032 (R.I. 2005). “[W]hen the language of a statute is clear and
unambiguous, this Court must interpret the statute literally and must give the words of the statute
-5-
their plain and ordinary meanings.” Id. (quoting Accent Store Design, Inc. v. Marathon House,
Inc., 674 A.2d 1223, 1226 (R.I. 1996)). If, however, the language of a statute is ambiguous, this
Court turns to “our well-established maxims of statutory construction in an effort to glean the
intent of the Legislature.”11 Town of Warren v. Bristol Warren Regional School District, 159
A.3d 1029, 1039 (R.I. 2017) (quoting Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069, 1078
(R.I. 2013)). “[T]he Legislature is presumed to have intended each word or provision of a statute
to express a significant meaning, and the [C]ourt will give effect to every word, clause, or
sentence, whenever possible.” State v. Clark, 974 A.2d 558, 571 (R.I. 2009) (quoting State v.
Bryant, 670 A.2d 776, 779 (R.I. 1996)). As we have held, “[t]his [C]ourt will not construe a
statute to reach an absurd result.” Long v. Dell, Inc., 984 A.2d 1074, 1081 (R.I. 2009) (quoting
Shepard v. Harleysville Worcester Ins. Co., 944 A.2d 167, 170 (R.I. 2008)). Finally, we give
great respect and deference to the factual determinations of a trial justice. State v. Erminelli, 991
A.2d 1064, 1069 (R.I. 2010).
III
Discussion
In this appeal, respondent argues that: (1) the words of the statute, § 11-37.1-4(j), “the
conduct of the parties is criminal only because of the age of the victim,” plainly apply to his
case; and (2) the trial justice should have exercised the discretion granted to her by § 11-37.1-4(j)
to waive sexual-offender registration.
Prior to 2000, § 11-37.1-4, entitled, “Duration of registration—Frequency of
registration[,]” did not contain a specific provision regarding the duty of juveniles to register as
sex offenders. Instead, the statute set forth the procedure for registration by any person required
11
In their Rule 12A statements to this Court, both parties submit that the language contained in
§ 11-37.1-4(j) is not ambiguous.
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to register as a sex offender under § 11-37.1-3.12 In 2000, the Legislature added subsection (j) to
§ 11-37.1-4, promulgating sex-offender registration requirements for juveniles in particular.
Seemingly to combat the harsh results that might follow from requiring juveniles to register as
sex offenders in some cases, the Legislature also saw fit to give the Family Court certain judicial
discretion. To this end, § 11-37.1-4(j) provides, in relevant part:
“[I]f a juvenile is adjudicated delinquent under [G.L. 1956]
§[§] 11-37-8.1 or 11-37-8.3, the court shall assess the totality of
the circumstances of the offense and if the court makes a finding
that the conduct of the parties is criminal only because of the age
of the victim, the court may have discretion to order the juvenile to
register as a sex offender as long as the court deems it appropriate
to protect the community and to rehabilitate the juvenile offender.”
This provision contains a clear two-step analysis: (1) the trial justice must assess the
particular circumstances of the case to determine whether the conduct of the juvenile respondent
was criminal only because the victim was fourteen years of age or under; and (2) if the trial
justice determines that to be the case, she may require registration for only as long as it is
necessary to protect the community and to rehabilitate the juvenile. It is the first part of this
analysis that this Court is called upon to interpret in the present case.
In his Rule 12A statement to this Court, respondent claims that the statutory language
“conduct of the parties is criminal only because of the age of the victim” applies here because, if
the victims were over the age of fourteen, respondent would not have been guilty of second-
degree child molestation sexual assault. Therefore, he contends that the trial justice had
discretion under § 11-37.1-4(j) in this case. This argument misses the mark. Both §§ 11-37-8.1
and 11-37-8.3 (first-degree and second-degree child molestation sexual assault) require proof
12
Currently, persons required to register under § 11-37.1-3 include: “Any person who, in this or
any other jurisdiction: (1) has been convicted of a criminal offense against a victim who is a
minor, (2) has been convicted of a sexually violent offense, (3) has been determined to be a
sexually violent predator * * *.”
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that the victim was fourteen years of age or under at the time of the incident. Thus, every case of
first-degree and second-degree child molestation sexual assault is essentially “criminal only
because of the age of the victim.” A plain reading of § 11-37.1-4(j) reveals that the Legislature
did not extend judicial discretion to every case in which a juvenile is adjudicated delinquent of
first-degree or second-degree child molestation sexual assault. Rather, the Legislature limited
the discretion to those cases where, under “the totality of the circumstances[,]” the victim’s age
is the only reason to find that the respondent’s conduct was criminal.13
Here, it is clear from the record that the trial justice based her determination that
§ 11-37.1-4(j) did not give her discretion in the instant matter on her finding that “factually this
case does not fit into the criteria required for the [c]ourt to exercise discretion[.]” While she
pointed to no specific criminal statute, she found as fact that this was not a case of willing sexual
exploration between curious adolescents, as in her “Romeo and Juliet” example. To the
contrary, she found “that there was coercion, there was manipulation and there was, in fact, the
abuse of trust.” In the trial justice’s estimation, this coercion made the conduct at issue criminal,
apart from the ages of the victims.
We agree with the trial justice’s interpretation of § 11-37.1-4(j), and we conclude that she
appropriately applied the plain language of the statute in determining that she had no discretion
in the present case. Any other reading would essentially rewrite the statute—a task this Court is
not at liberty to perform. See State v. Calise, 478 A.2d 198, 201 (R.I. 1984) (holding that the
Court has “neither the authority nor the competence to rewrite” a statutory definition). Under a
13
“[W]e are [also] mindful of the oft-quoted maxim ‘expressio unius est exclusio alterius,’ (‘the
expression of one thing is the exclusion of another’).” Ryan v. City of Providence, 11 A.3d 68,
75 (R.I. 2011) (quoting Black’s Law Dictionary 1830 (9th ed. 2009)). In § 11-37.1-4(j), the
Legislature, referring to subsections (b) and (c), has required automatic sex-offender registration
for juveniles adjudicated delinquent as sexually violent predators, as well as recidivists and
aggravated crime offenders, without allowing for judicial discretion.
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plain reading of § 11-37.1-4(j), once a trial justice finds the existence of some conduct under the
facts of the particular case that would be considered criminal, beyond the age of the victim, the
inquiry is at an end, and the respondent is required to register as a sex offender.
Because we hold that the trial justice did not have discretion in this case under
§ 11-37.1-4(j), we leave for another day the determination of which factors a Family Court trial
justice should properly consider when exercising his or her discretion under the second part of
the § 11-37.1-4(j) analysis.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the decree and order of the Family
Court, and remand the papers to that tribunal.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case In re B.H.
No. 2016-322-Appeal.
Case Number
(12-1040-1)
Date Opinion Filed October 19, 2018
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Gilbert V. Indeglia
Source of Appeal Providence County Family Court
Judicial Officer From Lower Court Associate Justice Kathleen A. Voccola
For State:
Owen Murphy
Department of Attorney General
Attorney(s) on Appeal
For Respondent:
Robert B. Mann, Esq.
SU-CMS-02A (revised June 2016)