Opinion
C. A. PM-2020-01903
01-22-2024
STATE OF RHODE ISLAND Plaintiff/Appellee v. BARRY ZURYBIDA Defendant/Registrant
For Plaintiff: Laura A. Nicholson, Esq. Ania M. Zielinski, Esq. For Registrant: Glenn S. Sparr, Esq.
For Plaintiff: Laura A. Nicholson, Esq. Ania M. Zielinski, Esq.
For Registrant: Glenn S. Sparr, Esq.
DECISION
VAN COUYGHEN, J.
Before this Court is Registrant Barry Zurybida's (Registrant) so-called appeal of an August 16, 2022 decision of a Superior Court Drug Court Magistrate, sitting as a Superior Court Justice, affirming Registrant's Risk Level III sex offender classification by the Rhode Island Sex Offender Board of Review (the Board).
I
Facts and Travel
Registrant entered a plea of nolo contendere for a state charge of second-degree child molestation in January 2014 for conduct reported to the Newport police in January 2007. (Hr'g Tr. 7:19-21, 8:7-14, Apr. 19, 2022 (Hr'g Tr.); see also C. A. No. N2-2007-0325A (nolo contendere plea entered on Jan. 6, 2014).) He was sentenced to twenty years in prison, with seven years to serve and thirteen years suspended with probation, a no contact order for the benefit of the victim, completion of the Sex Offender Treatment Program, as well as sex offender registration. (Hr'g Tr. 7:19-8:2.) Registrant was also convicted federally for the production of child pornography and possession of child pornography in May 2008, resulting in incarceration in the federal system. Id. at 8:2-6. Registrant's state and federal charges both stem from multiple incidents in which he sexually assaulted children as young as two years old and photographed them in various states of undress. Id. at 8:9-11:1, 11:15-16.
Pursuant to the Sexual Offender Registration and Community Notification Act (the Notification Act or Act), the Board reviewed various validated risk assessment tools, details of Registrant's misconduct, as well as other stability factors, such as his age and education level, to determine the appropriate risk classification. State's Mot. to Affirm Board Findings (State's Mot.) Ex. 2A (Board's Report); see G.L. 1956 § 11-37.1-6; Hr'g Tr. 3:5-17, 7:11-14:18. The Board's Report recounted a description of Registrant's conduct from a narrative from Newport police. (Board's Report 2.) The Assistant Director of the victim's daycare and the victim's mother brought the first complaint to police. The police report states as follows:
The Board's Report includes results from the STATIC-99R, STATIC-2002R, and STABLE-2007. (State's Mot. Ex. 3A (STATIC-2002R Results), Ex. 3B (STABLE-2007 Results), Ex. 3C (STATIC-99R Results)).
The 7 year old [victim] disclosed to the daycare worker that her neighbor, [Registrant], had touched her outside of the clothing on her chest and vaginal areas. She also told the daycare worker that she had touched [Registrant] on the outside of his clothing on his privates. She further disclosed that she had watched pornography with [Registrant] and described the people in the video as being "big people". [The victim's mother] also has a 4 year [old] daughter who when questioned stated that [Registrant] would put lotion on her, has taken her underwear off and then put them back on and that he put his finger in her "pee pee". The 7 year old female victim further disclosed in a note where she drew a picture of a hand held massager she states [Registrant] used to touch her vaginal area, adding that it was pink and that it tickled and hurt, and she also wrote in the note asking that [Registrant] take the pictures off of his computer of her "pee pee". She described an incident where [Registrant] was at her house, in her bedroom where she was laying on the bed. She stated that [Registrant] touched her "pee pee" and his finger went in and it hurt. She stated she was wearing pajamas and that he had pulled them down. She also stated that sometimes [Registrant] would put her on the bus and take her to his house where he showed her sex movies. He would tell her to pull her pants down and he would
touch her "pee pee" and sometimes he would make her rub his "pee pee" and on one occasion he made her kiss it. (Board's Report 2.)
The narrative from Newport police also revealed that "[Registrant] was the boyfriend of . . . the children's grandmother." Id. After the initial report, other parents came forward with additional complaints regarding Registrant's conduct with their children. Id. One mother stated "that [Registrant] touched her [daughter] on her vaginal area, took pictures of her and she stated that she saw pictures of the girls on the [Registrant]'s computer." Id. A father "came forward and reported that his daughter (9 years old) stated to him that she had not been touched by the offender but she stated that the offender took pictures of her sister (5 years old) with no bottoms on and that he had touched her private at that time (no charges)." Id. The Board's Report states that Registrant was alleged to have harmed five victims, leading to three convictions. See Board's Report 2; STABLE- 2007 Results.
Three validated risk assessments were performed for the Board's consideration regarding the Registrant's sex offender classification level. See State's Mot. Ex. 3A (STATIC-2002R Results), Ex. 3B (STABLE-2007 Results), Ex. 3C (STATIC-99R Results); Hr'g Tr. 5:19-6:4. Each assessment considers different factors. The STATIC-99R and STATIC-2002R generally focus on an individual's prior sexual offenses, general criminal history, and the age and gender of the victims, whereas the STABLE-2007 considers an individual's ability to self-regulate his behavior, generally, rather than focusing on the details of the specific underlying offense. See Board's Report 6-9; STATIC-99R Results; STATIC-2002R Results; STABLE-2007 Results. All tests represent a statistical analysis of Registrant's likelihood of recidivism and contain a margin of error. See Board's Report 6-9; see also State v. Germane, 971 A.2d 555, 585 (R.I. 2009). Further, the Board is free to consider other factors in addition to the test results when making its determination. See § 11-37.1-6(1)(b); see also Germane, 971 A.2d at 585-90.
The STATIC-99R considered the following risk factors: Registrant's "[a]ge at release"; whether he "[e]ver lived with a lover"; his history of "non-sexual violence"; "[p]rior sex offenses"; convictions for "non-contact sex offenses"; whether Registrant was related to the victims; and victim's age and gender. (STATIC-99R Results.).
"The risk factors included in the [STATIC-2002R] risk assessment instrument are grouped into five domains: age [at release], persistence of sex offending [based on prior sex offenses], deviant sexual interests [based on age and gender of the victims], relationship to victims, and [Registrant's] general criminality [based on prior involvement in the criminal justice system.]" (Board's Report 7-8; see also STATIC-2002R Results.).
"The [STABLE-2007] is . . . designed to assess and track changes in risk by assessing changeable risk factors. Dynamic risk factors are negative social influences, intimacy deficits, problems with self-regulation, attitudes tolerant of sexual crimes, lack of cooperation with supervision, and problems with general self-regulation." (Board's Report 9.).
Although the STATIC-99R and STATIC-2002R are similar assessments, the different scores can be attributed to using slightly different factors and giving each factor a different weight when calculating the final result (e.g., the STATIC-2002R considers fourteen factors and places more weight on general criminal history, whereas the STATIC-99R considers only ten factors overall with fewer factors focused on general criminality, giving more weight to sex offenses.) Compare STATIC-99R Results with STATIC-2002R Results. The STABLE-2007, by contrast, does not consider criminal history at all, but does focus on the individual's relationships with other people and his "[d]eviant [s]exual [p]reference[s]." (See STABLE-2007 Results.).
Registrant received a score of 0 on the STATIC-99R, placing him in the below average risk category to reoffend. (Hr'g Tr. 5:19-24; STATIC-99R Results.) Registrant scored a 2 on the STATIC-2002R, placing him in the average risk category. (Hr'g Tr. 5:25-6:2; STATIC-2002R Results). Lastly, Registrant received a 5 on the STABLE-2007 test, placing him in the moderate risk category. (Hr'g Tr. 6:2-4; STABLE-2007 Results.) The Board, however, "believe[d] the validated risk assessment scores underestimate[d] the level of risk of [Registrant] in the community" and determined that Registrant was a Level III regarding his risk to reoffend, based on its review of the description of the charges and consideration of other factors like his education and work history. (Hr'g Tr. 2:8-10, 7:17-19, 11:24-12:19, 13:18-23; Board's Report 5.)
Registrant appealed the Level III classification by filing his objection to the Board's decision on or about June 10, 2019. (Hr'g Tr. 2:17-21.) By statute, the Superior Court Drug Court Magistrate, sitting as a Superior Court Justice, oversees the sex offender calendar. G.L. 1956 § 8-2-39.2(f). In a hearing on April 5, 2022, the Magistrate heard oral arguments and afforded Registrant the opportunity to provide other evidence, argument, and testimony. Id. at 4:18-22. Registrant, who was in federal prison at the time, provided a letter in lieu of testimony. Id. at 2:22-25, 4:2-13.
The Magistrate issued a bench decision affirming the Board's Level III classification of Registrant. Id. at 17:15-22. He reached a decision after reviewing the Board's Report, which explained its reasoning for the determination, as well as additional documents submitted by the Attorney General, such as the test results of the STATIC-99R, STATIC-2002R, and STABLE-2007, and police reports. Id. at 3:5-17, 7:11-13:23. The Magistrate held that the State met the two-prong test required by statute because the Board "used three tests that are all nationally recognized, well established tests that this Court deals with frequently" and because "reasonable means were used to collect the information in the assessment[s.]" Id. at 5:5-10, 13:24-14:18. His ruling also rejected Registrant's argument that the Board failed to give enough consideration to the STATIC-99R and STATIC-2002R test results, which suggested only a below-average to average probability that he would reoffend. Id. at 6:10-18, 16:1-17:6. The Magistrate held that the Notification Act does not specify how much weight must be given to the test results and that the Board is entitled to consider other factors to assess Registrant's likelihood of recidivism. Id. at 14:19-17:6.
In fact, Registrant's argument herein is based on the validity of the various test results. He is not in any way contesting the test results or the means used in collecting the information that the test results were based. In fact, he is relying on them to support his argument contesting the Level III designation.
On August 18, 2022, Registrant filed this so-called appeal seeking review of the Magistrate's decision by a justice of this Court pursuant to § 8-2-39.2(j).
II
Analysis
"[S]exual offender registration and notification is a civil regulatory process" and, as such, the rules of evidence do not apply. See Germane, 971 A.2d at 593. Once the Board makes a risk level determination of a registrant, he may appeal the determination before the drug court magistrate, who sits as a superior court justice. See § 8-2-39.2(f). In any proceeding under the Notification Act, the state bears the initial burden of establishing "a prima facie case that justifies the proposed level of and manner of notification." Section 11-37.1-16(a). Section 11-37.1-16(b) defines "prima facie case" as proof that "(1) [a] validated risk assessment tool has been used to determine the risk of re-offense; [and] (2) [r]easonable means have been used to collect the information used in the validated assessment tool." The registrant is given the opportunity to present evidence, including testimony, to challenge the state's prima facie case by establishing that the Board's risk level classification was not performed "in compliance with this chapter or the guidelines adopted pursuant to [chapter 37.1]" by a preponderance of the evidence. See Germane, 971 A.2d at 571 (citing § 11-37.1-16). The drug court magistrate hearing the appeal shall affirm the Board's findings if the state establishes a prima facie case unless the registrant meets his burden to show the Board did not reach its decision in accordance with the Notification Act. Section 11-37.1-16(c).
A
Appellate Jurisdiction
Primarily, it should be noted that this matter is not properly before this Court. Section 8-2-39.2(f) empowers the drug court magistrate "to hear and decide as a superior court justice all matters that may come before the superior court pursuant to chapter 37.1 of title 11 'sexual offender registration and community notification.'" Section 8-2-39.2(f). The foregoing section clearly establishes that the drug court magistrate acts as a superior court justice when addressing sex offender registration and community notification status. However, § 8-2-39.2(j) provides that if a party is "aggrieved by an order entered by the drug court magistrate[, that party] shall be entitled to a review of the order by a justice of the superior court." Section 8-2-39.2(j).
"It is well settled that when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996). Moreover, when we examine an unambiguous statute, "there is no room for statutory construction and we must apply the statute as written." In re Denisewich, 643 A.2d 1194, 1197 (R.I. 1994). "[The Court's] ultimate goal [in construing a statute] is to give effect to the [General Assembly's] intention." Champlin's Realty Associates, L.P. v. Tillson, 823 A.2d 1162, 1165 (R.I. 2003). "[The Court] presume[s] that the General Assembly intended to attach significance to every word, sentence and provision of a statute." Retirement Board of Employees' Retirement System of State v. DiPrete, 845 A.2d 270, 279 (R.I. 2004). However, "[w]hen confronted with competing statutory provisions that cannot be harmonized, [the Court] adhere[s] to the principle that 'the specific governs the general."' Felkner v. Chariho Regional School Committee, 968 A.2d 865, 870 (R.I. 2009) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)).
Although §§ 8-2-39.2(f) and 8-2-39.2(j) may seem inconsistent at first glance, upon further review, it is clear that the two subsections are not inconsistent when reading the statute as a whole. Section 8-2-39.2 outlines the various powers and responsibilities that are expected of a drug court magistrate. See § 8-2-39.2. There are times in which a drug court magistrate acts with his or her authority as a general magistrate, and it is during those times that the drug court magistrate is subject to § 8-2-39.2(j) and an aggrieved party must appeal the order to be reviewed by a justice of the superior court. Section 8-2-39.2(j); see Super. Ct. R. Prac. 2.9.
It is important to note that a drug court magistrate's decision, when not acting as a superior court justice, is reviewable as set forth in Rule 2.9(h) of the Superior Court Rules of Practice (see infra).
However, in addition to the drug court magistrate's duties as a general magistrate, there are two subsections of § 8-2-39.2 that grant the drug court magistrate the authority, under very limited circumstances, to hear and decide cases sitting as a superior court justice. See, e.g., §§ 8-2-39.2(c), (f). The language of § 8-2-39.2(f) clearly grants the drug court magistrate the authority "to hear and decide as a superior court justice" appeals of a risk level classification decided by the Board. Section 8-2-39.2(f). When a drug court magistrate sits as a superior court justice, he or she is bound by the same rules as other superior court justices and "[a]ny party aggrieved by a final judgment, decree, or order of the superior court may . . . appeal to the supreme court." G.L. 1956 § 9-24-1. Although aggrieved parties will have to appeal to a different court depending on the nature of the case, the two sections are not inconsistent because they both detail different roles and the corresponding authority of a drug court magistrate. In the instant matter, Registrant should have appealed the Magistrate's decision to the Rhode Island Supreme Court because the language of §§ 8-2-39.2(f) and 8-2-39.2(j) are not inconsistent, and the Magistrate sat as a superior court justice when he heard Registrant's appeal of the Board's Level III classification. See id.; see also § 8-2-39.2(f). Thus, this Court has no jurisdiction to hear this case as an appellate tribunal.
Even if §§ 8-2-39.2(f) and 8-2-39.2(j) are considered inconsistent and thus ambiguous, it is still clear that Registrant should have appealed the Magistrate's decision to the Rhode Island Supreme Court instead of the superior court when applying the principles of statutory construction. '"When a statute is ambiguous, . . . [the Court] must apply the rules of statutory construction and examine the statute in its entirety to determine the intent and purpose of the Legislature.'" Kingston Hill Academy v. Chariho Regional School District, 21 A.3d 264, 271 (R.I. 2011) (quoting In re Tetreault, 11 A.3d 635, 639 (R.I. 2011)). "[This Court's] ultimate interpretation of an ambiguous statute, however, is grounded in policy considerations and [the Court] will not apply a statute in a manner that will defeat its underlying purpose." Arnold v. R.I. Department of Labor and Training Board of Review, 822 A.2d 164, 169 (R.I. 2003) (citing Pier House Inn, Inc. v. 421 Corp., Inc., 812 A.2d 799, 804 (R.I. 2002)). Further, it is a commonplace principle of statutory construction that '"the specific governs the general[,]'" and that courts give precedence to the specific statute. Felkner, 968 A.2d at 870 (quoting Morales, 504 U.S. at 384).
Section 8-2-39.2(f) specifically addresses a magistrate's power and authority as a superior court justice concerning sexual offender registration and community notification. In contrast, § 8-2-39.2(j) is more general in nature as it is a catchall for any party aggrieved by an order entered by a general magistrate. See § 8-2-39.2(j); see also Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1136 (R.I. 2002). Since § 8-2-39.2(f) specifically applies to a drug court magistrate's power and authority sitting as a superior court justice relating to sexual offender registration and is a specific statute, § 8-2-39.2(j) is inapplicable to sexual offender registration. See §§ 8-2-39.2(f) and (j); see also Wilkinson, 788 A.2d at 1136. Therefore, parties aggrieved by an order from a drug court magistrate sitting as a superior court justice concerning sexual offender registration and community notification must appeal the drug court magistrate's order directly to the Rhode Island Supreme Court. See § 8-2-39.2(f); see also § 9-24-1.
Further, this is consistent with other cases where the Rhode Island Supreme Court has heard direct appeals from a drug court magistrate sitting as a superior court justice. In Germane, the seminal case dealing with sexual offender registration and community notification, the Rhode Island Supreme Court considered a direct appeal from the drug court magistrate's judgment. Germane, 971 A.2d at 573. The Supreme Court, referencing the drug court magistrate's opinion, stated, "Mr. Germane timely filed this appeal from the Superior Court's judgment." Id. Similarly, in State v. Dennis, 29 A.3d 445 (R.I. 2011), the Supreme Court again took a direct appeal of a judgment from the drug court magistrate sitting as a superior court justice. Dennis, 29 A.3d at 448.
Because the drug court magistrate here was sitting as a Superior Court justice when he heard Registrant's appeal of the Board's classification, Registrant should have filed this appeal before the Supreme Court. See § 8-2-39.2(f); see also § 9-24-1; see also Germane, 971 A.2d at 573. Therefore, because Registrant did not appeal directly to the Supreme Court, this so-called appeal is wrongfully before this Court and is therefore denied for lack of appellate jurisdiction. See § 9-24-1.
B
Merits of Registrant's Appeal in the Event this Court does have Appellate Jurisdiction
i
Standard of Review
Even if, arguendo, the drug court magistrate was sitting as a general magistrate, Registrant's appeal lacks merit. Section 8-2-39.2(j) and Rule 2.9(h) of the Superior Court Rules of Practice set forth the standard that a Superior Court justice applies when considering an appeal from an order of a Superior Court magistrate. Section 8-2-39.2(j) governs generally the Superior Court's review of a drug court magistrate's decision and provides:
"A party aggrieved by an order entered by the drug court magistrate shall be entitled to a review of the order by a justice of the superior court. Unless otherwise provided in the rules of procedure of the court, such review shall be on the record and appellate in nature. The court shall, by rules of procedure, establish procedures for reviews of orders entered by a drug court magistrate, and for enforcement of contempt adjudications of a drug court magistrate." Section 8-2-39.2(j).
Rule 2.9(h) of the Superior Court Rules of Practice also sets forth the standard by which a Superior Court justice considers appeals from decisions of a magistrate. Pursuant to Rule 2.9(h):
"The Superior Court justice shall make a de novo determination of those portions to which the appeal is directed and may accept, reject, or modify, in whole or in part, the judgment, order, or decree of the magistrate. The justice, however, need not formally conduct a new hearing and may consider the record developed before the magistrate, making his or her own determination based on that record whether there is competent evidence upon which the magistrate's judgment, order, or decree rests. The justice may also receive further evidence, recall witnesses or recommit the matter with instructions." Super. Ct. R. Prac. 2.9(h).
As previously stated, the State must meet its burden of presenting its prima facie case which establishes that "[a] validated risk assessment tool has been used to determine the risk of re-offense" and "[r]easonable means have been used to collect the information used in the validated assessment tool." Section 11-37.1-16(b)(1)-(2).
Once the state establishes a prima facie case, the Notification Act establishes a limited role for the drug court magistrate:
"Upon presentation of a prima facie case, the court shall affirm the determination of the level and nature of the community notification, unless it is persuaded by a preponderance of the evidence that the determination on either the level of notification [or] the manner in
which it is proposed to be accomplished is not in compliance with this chapter or the guidelines adopted pursuant to this chapter." Section 11-37.1-16(c).
Therefore, the drug court magistrate must affirm the Board's findings if the state presents a prima facie case, unless the magistrate "is persuaded by a preponderance of the evidence that the determination" of the risk level classification "is not in compliance with this chapter or the guidelines adopted pursuant to this chapter." See § 11-37.1-16(c).
ii
Analysis
Registrant asserts that the Magistrate misapplied the law and facts when deciding his appeal from the Board's determination that he should be classified as a Level III risk to reoffend under the Notification Act. Registrant's Mem. in Supp. of Appeal of Magistrate's Decision (Registrant's Mem.) 1; see Hr'g Tr. 2:4-13 (citing chapter 37.1 of title 11). Registrant states that he satisfied his burden of showing that the Level III classification overstated his risk level and that purposes of the Act can be accomplished if he were classified at a lower risk. (Registrant's Mem. 1-2.) Registrant argues that none of the actuarial test results produced warrant a Level III finding, that the Board irrationally factored in his continued denial of the child molestation sex offense, and that his personal background suggests he is unlikely to reoffend. Id. at 2-3.
At the hearings before the Magistrate, the State asserted that the Board has a duty to look at factors other than the actuarial tests. (Hr'g Tr. 16:17-22.) Specifically, the State highlighted that Registrant harmed multiple victims and that the child pornography he created was of actual victims that he knew. Id. at 16:20-22. Additionally, the State argued that the STATIC-99R and STATIC-2002R underestimate Registrant's likelihood of recidivism because both tests deduct points for being at an advanced age at the time of release, despite the fact that Registrant was at an advanced age when he committed the underlying crimes. Id. at 16:24-17:6.
Hearings were conducted before the Magistrate on April 5, 2022 and April 19, 2022. (Hr'g Tr. 2:3, 4:18.) The State presented numerous exhibits that the Board used in its risk leveling process for Registrant. Id. at 5:19-6:4. Those exhibits included the Notice of Community Notification, the Board's full Risk Assessment Report, results of the STATIC-99R, STATIC-2002R, and STABLE-2007 tests, an eighteen-page interview Registrant gave to the Sex Offender Unit, as well as police reports, court documents, and other relevant information. Id. at 3:9-17. The Risk Assessment Report detailed the factors the Board considered in reaching its decision, which the Magistrate heavily relied on in making his decision to affirm the Board's classification. Id. at 5:19-6:4, 7:11-14:7. The Magistrate afforded Registrant the opportunity to present evidence and testimony to challenge the State's prima facie case. Id. at 4:18-22, 14:19-23. Registrant submitted an eight-page memorandum in support of lowering his Level III finding, research on whether the denial of a crime impacts recidivism rates, and a two-page letter from Registrant addressed to the court, which contained a statement about himself. Id. at 3:18-4:3.
Registrant was unable to attend the hearings while being held in federal prison and waived his appearance in court; the Court permitted Registrant to submit the letter in lieu of testimony. (Hr'g Tr. 4:3-13, Apr. 19, 2022.).
In his decision, the Magistrate stated, "[a]fter reviewing [the Board's full Risk Assessment Report] and all the material submitted by the Attorney General the Court finds the State had met the two-prong test required by statute and established a prima facie case." Id. at 13:24-14:7.
Regarding the first prong, the Magistrate relied on the Board's Risk Assessment Report to find that "the board used three tests that are all nationally recognized, well established tests that this Court deals with frequently." Id. at 14:8-11 (referring to the results of the STATIC-99R, STATIC-2002R, and STABLE-2007 assessments). The Magistrate found that, although the assessments suggested a below average to average likelihood of recidivism, "low test scores do not necessitate a low or Level I finding[,]" and that the Board acted properly in evaluating the totality of the evidence. Id. at 6:10-18, 16:1-12; accord Germane, 971 A.2d at 585. Furthermore, he stated that the "State also correctly noted that while his advanced age helped lower his test scores, he had an advanced age when he entered the criminal justice system. So although the advanced age led to him getting low scores on the STATIC-99R and 2002[R] due to the deduction of points he, in fact, committed those crimes while he was over that age." (Hr'g Tr. 16:24-17:6.)
Regarding the second prong, the Magistrate stated "reasonable means were used to collect the information in the assessment[s] including interviewing [Registrant] as well as reviewing relevant documents. Particularly, the reports from the Newport police setting forth the situation, number of victims, et cetera." Id. at 14:12-18. The Magistrate noted that Registrant did not present any evidence to suggest the means of collecting information were unreasonable. Id. at 14:11-12.
The information relied on by the Board is consistent with the requirements of the Act. In each case, as required by § 11-37.1-6(2)(i), the Board "shall . . . review other material provided by the agency having supervisory responsibility" over the Registrant, in addition to using the results of the validated risk assessment to make its determination. Section 11-37.1-6(2)(i). The approach mandated by the statute is consistent with the "express recommendation" of the creators of the STATIC-99R risk assessment, "who stated that 'a prudent evaluator will always consider other external factors that may influence risk in either direction.'" Germane, 971 A.2d at 585.
Here, the record shows that the Board reviewed the three validated risk assessment tests (the STATIC-99R, STATIC-2002R, and STABLE-2007), and also took into consideration other factors that could influence Registrant's risk level. See Board's Report. Specifically, the Board considered the details of his offense, any general history of sexual aggression or criminal activity, and stability factors, such as whether he had family support, and his employment history. Id. at 1-5.
The Report shows the Board considered mitigating factors that were favorable to Registrant, such as his lack of prior criminal convictions, lack of drug or alcohol abuse, a positive support system comprising his two sisters, a stepbrother, and a friend, and that no incidents were reported during his lengthy incarceration. Id. at 4-5. However, these mitigating factors did not overcome the evidence before the Board that weighed against him and in favor of a higher risk classification. See id. at 1.
The Board relied on Registrant's underlying child molestation and child pornography convictions to support their Level III classification. Id. at 1-4. Specifically, the Board emphasized that Registrant selected young victims in his neighborhood, ranging from as young as two to eight years old, who he was allowed to care for, and that he was dating two of the victims' grandmother. Id. at 3. It also considered the nature of the acts, stating that he "touched [the victims'] vaginas, used a massager on one victim's vagina, one victim disclosed that he made her touch and kiss his penis and he took pictures [which] involved the lascivious exhibition of the genitals." Id. While Registrant was convicted on only one count of second-degree child molestation, two counts of producing child pornography, and one count of possession of child pornography, the police narrative included in the Board's Report suggests that Newport police received complaints about his contact with at least five children. See id. at 2; see also STABLE-2007 Results. Regarding the child pornography charges, the Board included that Registrant's computer contained photos of three of the victims which he created himself, in addition to "photographs of child pornography, not produced by him[.]" (Board's Report 3.) One photo, among at least twenty others, "was cropped from an original photo[, which he made,] depicting both the older and younger daughter of [the mother who brought the first complaint to Newport police] in the bath together to only include the older daughter nude with legs spread." Id. In evaluating the totality of the evidence, the Board found that Registrant was at high risk for sexual recidivism and classified him at risk Level III. Id. at 1.
Registrant argues that none of the actuarial tests produced results that warrant a Level III finding, that the Board irrationally factored in his continued denial of the child molestation sex offense, and that his personal background suggests that he is unlikely to reoffend. (Registrant's Mem. 2-3.) While Registrant's scores on the STATIC-99R and STATIC-2002R suggest a below-average to average risk for recidivism, it is also true that the STABLE-2007 test results showed a moderate range of recidivism and these tests are only one factor among many others that the Board may consider in deciding Registrant's risk level classification. See Germane, 971 A.2d at 584-86; STATIC-99R Results; STATIC-2002R Results. The Board is not only entitled to consider other factors outside of the risk assessment tests, but our Supreme Court has agreed with "the express recommendation of the STATIC-99R's creators," that "a prudent evaluator will always consider other external factors that may influence risk in either direction." See Germane, 971 A.2d at 585. For example, Registrant fails to consider factors that weigh in favor of a higher risk classification, such as the fact that he harmed multiple victims, the victims' young ages, and that the child pornography he produced was of actual victims he knew. (Board's Report 2-3.) While it is true that Registrant's personal background may weigh in his favor, such as evidence of a support system and no evidence of drug or alcohol abuse, these factors simply do not outweigh the seriousness of the Registrant's offense. Id. at 4-5. The Board's Report contains an overwhelming amount of evidence to support that the three tests underestimated Registrant's likelihood of recidivism, such as his "denial of the accusations made against him, the duration of the offenses, his multiple victims and the fact that he had hands-on victims as well as production and possession of child pornography[,]" and that he was not participating in a Sex Offender Treatment Program. Id. at 5.
Accordingly, after de novo consideration, this Court affirms the Magistrate's decision holding that the State met its prima facie case by showing that validated risk assessment tools were used to determine Registrant's risk to reoffend and that the Board used reasonable means to collect the information used in the three validated risk assessment tools. See Board's Report. This Court also finds that Registrant failed to provide any evidence to suggest that the Board's decision was not in compliance with the Notification Act.
III
Conclusion
The Registrant's petition is denied because a superior court justice lacks appellate jurisdiction regarding the Magistrate's decision in this case.
However, if the petition is properly before this Court for appellate review, then for the reasons set forth in this Decision, after de novo consideration, this Court affirms the Magistrate's April 19, 2022 decision and the resulting Order entered on August 16, 2022 and further determines that competent evidence in the record supports said decision and Order. Registrant's claims lack merit, and his so-called appeal is denied. The State shall prepare and submit a form of order and judgment in favor of the State and against Registrant.