In re B.H.

• Decision Date: 19 October 2018
• Docket Number: 12-1040-1,No. 2016-322-Appeal.,2016-322-Appeal.
• Citation: 194 A.3d 260
• Parties: IN RE B.H.
• Court: Rhode Island Supreme Court

194 A.3d 260

IN RE B.H.

No. 2016-322-Appeal.

12-1040-1

Supreme Court of Rhode Island.

October 19, 2018

For State: Owen Murphy, Department of Attorney General

For Respondent: Robert B. Mann, Esq., Providence

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

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.

IFacts 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 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 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, 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 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.

IIStandard 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 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).

IIIDiscussion

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...