J.L.W. v. State

          APPEAL FROM THE YELL COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. 75NJV-14-31] HO NO RABLE T ERR Y SULL I VAN, JUDGE

          Files & Brasuell, PLLC, by: Toney B. Brasuell, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          WAYMOND M. BROWN, JUDGE

         Appellant appeals from the circuit court's order requiring him to register as a sex offender. Appellant's sole argument on appeal is that the circuit court lacked the authority or jurisdiction to order appellant to register as a sex offender pursuant to Arkansas Code Annotated section 9-27-356(b)(2).^[1] We affirm.

         On October 10, 2014, appellant was adjudicated delinquent of sexual assault in the second degree. As part of that adjudication, appellant was ordered to complete a Community Notification Risk Assessment at the University of Arkansas for Medical Sciences. The assessment was completed on March 27, 2017; appellant was assigned a risk level of "Level III (High) high risk of sexual re-offense" and recommended to register as a sex offender. The appellee filed a motion on June 9, 2017, to require appellant to register as a sex offender. Appellant responded in opposition on June 19, 2017. A hearing on the motion was held on July 21, 2017.

         Helen Chambers testified to completing a Registration Risk Assessment on appellant, in which she recommended that he be required to register as a sex offender as a "high risk." Appellant had been adjudicated delinquent of sexual assault and residential burglary for incidents in which he sat a minor on his lap and kissed the child on his lips, and for stealing underwear.^[2]

         Chambers stated that appellant initially denied being involved in any sexual misconduct with the exception of sitting a minor on his lap; however, as she "brought [other incidents] up individually . . . he agreed they were also true." These admissions included appellant's disclosure that he sexually abused his younger brother for "several years[, ]" beginning when appellant was fifteen; there had been masturbation and fondling, but appellant had been unsuccessful in his attempts to get his brother to perform oral and anal sex. With regard to how many times he had sexually abused his brother, appellant said "there were too many times to remember how many."^[3] He had also masturbated in front of his six- and seven-year-old nieces. Chambers described appellant's sexual history as "unusually long[.]" Appellant had been diagnosed with pedophilic disorder.^[4] Chambers noted that it "appears that [appellant] has targeted children under the age of 10" and that his targets have remained under the age of ten even as appellant has gotten older.

         Chambers testified THAT "there were instances of continued sexual abuse after being caught which is significant" because after reprimand and consequences, the likelihood of a particular behavior being a long-term problem is "considerably less [if the behavior is stopped after a reprimand] than if they continue to have sexual problems after being caught." Appellant's offenses continued despite having received treatment in the court system and "quite a bit of treatment including in-patient." She testified that appellant did not appear to show any remorse or empathy for his victims, though she believed he understood how sexual abuse can be harmful to victims.

         Regarding the process of how she receives a child for assessment, Chambers testified that it is "usually triggered" by a court order when being done for the Department of Youth Services, but also AT the behest of the Department of Human Services (DHS) when a person exhibits sexual behavior that DHS wants to treat. In either case, to have a risk assessment there "has to be an adjudication." Chambers stated that in making her assessment, she looks at more than just the adjudicated crime; she looks at "his whole history[, ]" many parts of which are not prosecuted in many instances.^[5]

         The circuit court then took the matter under advisement. The circuit court entered its order on August 18, 2017, stating in pertinent part:

That pursuant A.C.A. 9-27-356, this Court did order a sex offender screening and risk assessment in that the [appellant] had been adjudicated a delinquent for the above serious sexual offense. That this Court has jurisdiction over [J.L.W.] and ordered him to submit to a Sex Offender Registration Risk Assessment. That all Sex Offender Risk Assessments are done by the UAMS Department of Pediatric Family Treatment Program and that this Risk Assessment has been done by Ms. Helen Chambers who is the LCSW with UAMS.

         The circuit court then made extensive findings regarding the seriousness of the adjudicated offense, sexual assault in the second degree; Chambers's opinion that appellant is a high risk to reoffend; appellant's "history of sexual acting out" from the age of seven, then being twenty years of age; and his long history of treatment programs, including multiple residential programs. It then found that there was clear and convincing evidence, based on the asserted findings, that appellant should register as a sex offender. This timely appeal followed.

         Arkansas Code Annotated section 9-27-356 provides that if a juvenile is adjudicated delinquent for second-degree sexual assault, the court shall order a sex-offender screening and risk assessment.^[6] This statute provides that the court may order sex-offender screening and a risk assessment if a juvenile is adjudicated delinquent for any offense with an underlying sexually motivated component (i.e., fourth-degree sexual assault).^[7] Arkansas Code Annotated section 9-27-356(b)(2) further provides that the court may require that a juvenile register as a sex offender upon ...