Jjf v. State

• Decision Date: 06 April 2006
• Docket Number: No. 05-91.,No. C-05-10.,05-91.,C-05-10.
• Citation: 2006 WY 41,132 P.3d 170
• Parties: In the Matter of JJF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). In the Matter of CNS, Appellant (Defendant), v. The State of Wyoming Appellee (Plaintiff).
• Court: Wyoming Supreme Court

132 P.3d 170

2006 WY 41

In the Matter of JJF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

In the Matter of CNS, Appellant (Defendant), v. The State of Wyoming Appellee (Plaintiff).

No. 05-91.

No. C-05-10.

Supreme Court of Wyoming.

April 6, 2006.

Tom Sedar and Kimberly A. Corey of Law Office of Tom Sedar, P.C., Casper, Wyoming, for Appellants. Argument by Mr. Sedar.

Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and H. Michael Bennett, Assistant

Attorney General, for Appellees. Argument by Mr. Bennett.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] In consolidated cases, two registered sex offenders challenge the constitutionality of a statute requiring the State to prove their risk of reoffense by a preponderance of the evidence, arguing instead that the State's evidence must be clear and convincing. One appellant also challenges the sufficiency of the evidence.

[¶ 2] We affirm.¹

ISSUES

[¶ 3] 1. Whether the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, §§ 2, 6, and 7 of the Wyoming Constitution require the standard of proof at a risk-of-reoffense hearing to be clear and convincing evidence?

2. Whether there was sufficient evidence in No. C-05-10 for the district court to determine that CNS posed a moderate threat of reoffense?

FACTS

[¶ 4] In 1989, JJF pled guilty to aggravated assault, kidnapping, and first-degree sexual assault. In 2005, the Natrona County District Court heard the State's application for a risk-of-reoffense assessment, and designated JJF's risk of reoffense as being moderate. In doing so, the court applied the burden of proof standard of a preponderance of the evidence.

[¶ 5] In 1998, the second appellant, CNS, was convicted in Nevada of statutory sexual seduction, for having sexual intercourse with a person under the age of sixteen years. His five-year probationary sentence was subsequently revoked for a drug offense, and he served out the balance of his sentence in prison. In 2004, the Natrona County District Court was asked by the State to determine CNS's risk of reoffense. After a hearing, but without stating the standard of proof being applied, the court found that CNS posed a moderate risk of reoffense.

STATUTES

[¶ 6] The Wyoming Sex Offender Registration Act is found at Wyo. Stat. Ann. § 7-19-301 et seq. (LexisNexis 2005). In addition to its registration feature, the Act provides for a risk-of-reoffense hearing process. At the time of the hearings in these consolidated cases, that part of the Act read as follows:

(c) The division shall provide notification of registration under this act, including all registration information, to the district attorney of the county where the registered offender is residing at the time of registration or to which the offender moves. Upon receipt of notification, the district attorney shall file an application for hearing under this subsection if the offender is an aggravated sex offender or a recidivist. For other offenders registered under this act, the district attorney shall file an application for hearing under this section if, based upon a review of the risk of reoffense factors specified in W.S. 7-19-303(d), it appears that public protection requires notification be provided to persons in addition to those authorized to receive criminal history record information under W.S. 7-19-106. Upon application of the district attorney, and following notice to the offender and an in-camera hearing, the district court shall, based upon its finding as to the risk of reoffense by the offender, authorize the county sheriff, police chief or their designee to release information regarding an offender who has been convicted of an offense that requires registration under this act, as follows:

(i) If the risk of reoffense is low, notification shall be in accordance with the requirements of W.S. 7-19-106 to persons authorized to receive criminal history record information under W.S. 7-19-106;

(ii) If the risk of reoffense is moderate, notification shall be provided to residential neighbors within at least seven hundred fifty (750) feet of the offender's residence, organizations in the community, including schools, religious and youth organizations, as well as to the persons authorized under paragraph (i) of this subsection, through means specified in the court's order;

(iii) If the risk of reoffense is high, notification shall be provided to the public through a public registry and through any additional means specified in the court's order, as well as to the persons and entities required by paragraphs (i) and (ii) of this subsection. The division shall make the public registry available to the public through electronic internet technology and shall include:

(A) The offender's name, including any aliases;

(B) Physical address;

(C) Date and place of birth;

(D) Date and place of conviction;

(E) Crime for which convicted;

(F) Photograph;

(G) Physical characteristics including race, sex, height, weight, eye and hair color.

(d) In determining an offender's risk of reoffense under subsection (c) of this section, the court shall consider:

(i) Conditions of release that minimize risk of reoffense, including whether the offender is under supervision of probation or parole, receiving counseling, therapy or treatment, or residing in a home situation that provides guidance and supervision;

(ii) Physical conditions that minimize the risk of reoffense, including advanced age or debilitating illness;

(iii) Criminal history factors indicative of high risk of reoffense, including:

(A) Whether the offender's conduct was found to be characterized by repetitive and compulsive behavior;

(B) Whether the offender served the maximum term under the court order;

(C) Whether the offender committed the sexual offense against a child;

(D) Whether psychological or psychiatric profiles indicate a risk of recidivism;

(E) The offender's response to treatment;

(F) Recent behavior, including behavior while confined or while under supervision in the community as well as behavior in the community following service of sentence;

(G) Recent threats against persons or expressions of intent to commit additional crimes; and

(H) Other criminal history factors, including:

(I) The relationship between the offender and the victim;

(II) Whether the offense involved the use of a weapon, violence or infliction of serious bodily harm;

(III) The number, date and nature of prior offenses.

Wyo. Stat. Ann. § 7-19-303 (LexisNexis 2003). This section was amended in 2005 to specify that, in assessing the statutory factors, the court is to apply a preponderance of the evidence standard. See Wyo. Stat. Ann. § 7-19-303(c) (LexisNexis 2005). That does not change the issue before this Court, but makes more pointed the outcome.

DISCUSSION

Constitutionality

[¶ 7] We have previously determined that the registration aspect of the Act does not violate due process. Snyder v. State, 912 P.2d 1127, 1132 (Wyo.1996). In Avery v. State, 2002 WY 87, ¶¶ 6-8, 47 P.3d 973, 976 (Wyo.2002), we recognized the specific issue now before us, but did not address it because it was not adequately presented. While we will now take on that task in regard to the United States Constitution, we will not proceed with a separate state constitutional analysis, inasmuch as the appellants, while mentioning the state constitution, have not done so, either. See Vassar v. State, 2004 WY 125, ¶ 14, 99 P.3d 987, 993 (Wyo.2004).

[¶ 8] The question that has been presented is not formulated as a question of legislative intent—what burden of proof did the legislature intend to be applied by the district court at risk-of-reoffense hearings? Rather, the question that has been presented is formulated purely in terms of constitutionality—whether due process of law requires the standard of proof to be clear and convincing evidence. That question is a question of law, so it is reviewed de novo by this court. Joyner v. State, 2002 WY 174, ¶ 7, 58 P.3d 331, 334 (Wyo.2002); Boyce v. Freeman, 2002 WY 20, ¶ 9, 39 P.3d 1062, 1064 (Wyo.2002).

[¶ 9] We will first contrast the two standards of proof at issue. "A `preponderance of the evidence' is defined as `proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence.'" Thornberg v. State ex rel. Wyo. Workers' Compensation Div., 913 P.2d 863, 866 (Wyo.1996), as modified on denial of reh'g (April 29, 1996) (quoting Scherling v. Kilgore, 599 P.2d 1352, 1359 (Wyo.1979)). "Clear and convincing evidence," on the other hand, is defined as "`that kind of proof which would persuade a trier of fact that the truth of the contention is highly probable.'" TF v. Dep't of Family Serv., 2005 WY 118, ¶ 11, 120 P.3d 992, 999 (Wyo.2005) (quoting Hutchins v. Payless Auto Sales, Inc., 2002 WY 8, ¶ 19, 38 P.3d 1057, 1063 (Wyo.2002)).

[¶ 10] Succinctly stated, the contention of the appellants is that clear and convincing evidence is required in determining the risk of reoffense because the appellants' interests, and the risk of erroneous deprivation of those interests, outweigh any government interest. That formulation of the issue is based upon the four-part balancing test identified in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976):(1) the private interest affected by the official action; (2) the risk of the erroneous deprivation of such interest through the procedures used; (3) the probable value of any alternative procedures; and (4) the government's interest.

[¶ 11] The appellants identify their affected interests as being privacy and liberty. Quoting Doe v. AG, 426 Mass. 136, 686 N.E.2d 1007, 1016 (1997) (Fried, J., concurring), they argue that the requirement to register is a "continuing,...