In re Avery
| Decision Date | 07 June 2002 |
| Docket Number | No. 01-104.,01-104. |
| Citation | 2002 WY 87,47 P.3d 973 |
| Parties | In the Matter of Lawrence AVERY, d/o/b 09-18-28: Lawrence Avery, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Donald L. Painter, Casper, Wyoming, Representing Appellant.
Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Bryan A. Skoric, Senior Assistant Attorney General, Cheyenne, Wyoming, Representing Appellee.
Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
[¶ 1] After pleading no contest, Lawrence Avery, the appellant, was convicted in 1985 of first-degree sexual assault and second-degree sexual assault, the victims being his step-grandchildren. He was sentenced to ninety days in a community alternatives program or forty-five days in jail, to be followed by two years of supervised probation. In September 2000, the State filed an Application for Hearing to Designate Risk of Re-Offense, pursuant to the Wyoming Sex Offender Registration Act. In February 2001, the State filed an Amended Application for Hearing to Designate Risk of Re-Offense, in which several allegations were added as to recent behavior that suggested a high-risk classification was in order. The appellant appeals the district court's determination that he poses a high risk to re-offend. We find insufficient evidence to support the district court's order and we, therefore, reverse.
[¶ 2] The appellant words the issue as follows:
Whether, as a matter of law, there was sufficient evidence for the district court to enter an Order and Designation of High Risk of Re-offense.
The State posits the issue as follows:
Did the State show that appellant posed a high risk of re-offense by a preponderance of the evidence?
[¶ 3] In 1994, this state adopted the Wyoming Sex Offender Registration Act (the Act). Wyo. Stat. Ann. § 7-19-301 (LexisNexis 2001) contains several rather complex definitions that are determinative of which offenders must register and for which crimes. Suffice it to say for purposes of this appeal that the appellant's 1985 convictions required him to register. He has not raised his duty to register as an issue in this appeal.
[¶ 4] In addition to registration, the Act provides for a process whereby certain sex offenders are to be classified as to their risk of re-offense. That process is found in Wyo. Stat. Ann. § 7-19-303 (LexisNexis 2001). The appellant does not contend that he should not be subject to this process. Rather, he contends that the evidence presented was insufficient for the district court to have classified him as high risk, when considered under the mandatory factors of Wyo. Stat. Ann. § 7-19-303(d):
[¶ 5] On appeal, sufficiency of the evidence is analyzed by viewing the evidence in the light most favorable to the prevailing party and by affording to the prevailing party the benefit of all reasonable inferences that may be drawn from that evidence. Nollen v. State, 12 P.3d 682, 684 (Wyo.2000) (quoting Rodriguez v. State, 962 P.2d 141, 148 (Wyo.1998)
). We do not reweigh the evidence or re-examine the credibility of the witnesses. Nollen, 12 P.3d at 684 (quoting Rodriguez, 962 P.2d at 148). Neither do we usually consider conflicting evidence presented by the non-prevailing party. Williams v. State, 986 P.2d 855, 857 (Wyo.1999). Where, however, as here, the fact finder was a judge, rather than a jury, our role is somewhat more expansive:
Stroup v. Oedekoven, 995 P.2d 125, 128 (Wyo. 1999)
(quoting Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1175-76 (Wyo.1997)). When supported by substantial evidence, a judge's factual findings will not be disturbed on appeal unless they are against the great weight of the evidence. McNeiley v. Ayres Jewelry Co., 886 P.2d 595, 597 (Wyo.1994); Leavell v. Linn, 884 P.2d 1364, 1368 (Wyo.1994).
[¶ 6] Obviously, sufficiency of the evidence cannot be evaluated without knowing the standard against which the evidence is to be measured. That is problematic in the present situation because the Act neither assigns the burden of persuasion nor says what that burden is to be. That fact is exacerbated by the failure of the parties to provide any guidance to this Court on the issue. The appellant does not even address the burden of proof. The State's entire analysis is as follows:
Appellant's hearing was a civil proceeding, not a criminal proceeding. The logical burden of proof which the State had to meet as the movant was showing by a preponderance of the evidence that Appellant posed a high risk of re-offense. Appellant has not argued for the application of a different burden of proof, and there is no logical basis for the application of a more rigorous standard in Appellant's hearing. The record shows that the State satisfied its burden of proving by a preponderance of the evidence that Appellant posed a high risk of re-offense.
[¶ 7] It is true that the Act is a regulatory device, not a method of imposing criminal punishment. Johnson v. State, 922 P.2d 1384, 1387 (Wyo.1996); Snyder v. State, 912 P.2d 1127, 1130-31 (Wyo.1996). Consequently, it is not difficult to conclude that "beyond a reasonable doubt" is not the appropriate standard. That is not the same as saying, however, that "preponderance of the evidence" is the correct standard. Contrary to the State's observation, there may well be some logical basis for a more rigorous standard. It has been held that due process under the Fourteenth Amendment to the United States Constitution requires not only that the state carry the burden of persuasion at sexual offender classification hearings, but that it do so by clear and convincing evidence. E.B. v. Verniero, 119 F.3d 1077, 1106-11 (3rd Cir.1997), cert. denied, 522 U.S. 1109, 118 S.Ct. 1039, 140 L.Ed.2d 105, cert. denied, 522 U.S. 1110, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998). See also Jane A. Small, Note, Who are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L.Rev. 1451 (Nov.1999).1
[¶ 8] As mentioned above, this issue has not been briefed in the instant case. The appellant ignored the issue and the State assumed the burden of proof standard was "preponderance of the evidence." Because important constitutional and policy issues are involved, we do not intend to rule on the appropriate standard until such time as it is properly presented to us and adequately briefed. For purposes of the instant case only, we will follow the lead of the parties and consider the evidentiary issue as it has been presented; that is, as a question of the preponderance of the evidence.2 By doing so, we are not making a determination that such is the proper standard to be applied under the Act.
[¶ 9] Two witnesses testified at the hearing. The first, Lynn Cohee, is an investigator in the Natrona County Sheriff's Office. Cohee's testimony can best be described as an unsuccessful attempt to "hearsay in" allegations of improper sexual contact between the appellant and three minors during the period from 1995 to 1999. No specific improper conduct by the appellant was established through Cohee's testimony, and the district court did not indicate that it relied on Cohee's testimony in any way in reaching its decision.
[¶ 10] The second witness to testify was the appellant. His testimony contained considerable information that may be seen as relevant to the statutory factors to be considered by the district court:
1. At the time of the hearing, the appellant was seventy-two years old.
2. At the time of the hearing, the appellant was not married and lived with no one.
3. The...
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