Risk Level Determination of C.M., Matter of

• Decision Date: 02 June 1998
• Docket Number: No. C7-97-1722,C7-97-1722
• Citation: 578 N.W.2d 391
• Parties: In the Matter of the RISK LEVEL DETERMINATION OF C.M.
• Court: Minnesota Court of Appeals

Page 391

578 N.W.2d 391

In the Matter of the RISK LEVEL DETERMINATION OF C.M.

No. C7-97-1722.

Court of Appeals of Minnesota.

June 2, 1998.

Syllabus by the Court

Minn.Stat. § 244.052, subd. 1(4)(1996), permits community notification of sex offender status only where an offender has been convicted of a crime specifically listed in Minn.Stat. § 243.166, subd. 1(1996).

John M. Stuart, State Public Defender, Jenneane Jansen, Assistant State Public Defender, Legal Advocacy Project, Minneapolis, for relator C.M.

Hubert H. Humphrey III, Attorney General, Alan Held, Assistant Attorney General, for respondent.

Considered and decided by WILLIS, P.J., and KLAPHAKE and MULALLY, ^* JJ.

OPINION

WILLIS, Judge.

Relator C.M. ¹ appeals from his classification as a level III sex offender.We conclude that the interpretation of Minn.Stat. § 244.052, subd. 1(4)(1996), under which relator was classified as a sex offender is an unconstitutional violation of due process and therefore reverse.

FACTS

In March 1993, relator C.M. stayed in Waseca for two days with C.B., his ex-girlfriend.On March 4, C.B. evicted relator.Late that evening, relator returned, intoxicated, to C.B.'s apartment.When C.B. refused to let him in, relator broke down the door.Using physical force, relator ordered C.B. to keep quiet and stay in the apartment.Relator stated that he intended to sleep on C.B.'s living room couch, but he instead entered her bedroom, where he had sex with her.According to the presentence investigation report, relator told police that the sex was consensual, "to calm [C.B.] down."C.B. told police that she did not consent.

Relator was arrested the next morning and charged with first-degree burglary, criminal damage to property, two counts of criminal sexual conduct in the first degree, and one count of criminal sexual conduct in the second degree.In exchange for dismissal of the remaining charges, relator pleaded guilty to burglary in the second degree, admitting in court to breaking down C.B.'s door and restraining her against her will but not to having sex with her.The presentence investigation report gave an "official version" of events quoted verbatim from the complaint but also noted, under "comments/recommendations," the differing version relator had given to police.Relator was sentenced to 58 months in prison.

Relator's criminal record dates to 1979, when he was convicted in North Dakota of felony gross sexual imposition and aggravated assault, apparently arising from separate incidents.The record contains no official descriptions of the details of these offenses.Between 1980 and 1990, relator had 13 convictions of theft and burglary and one of simple robbery.

In March 1997, Jeffrey Brown, the psychologist who recommends post-incarceration placement for all sex offenders held in Minnesota prisons, recommended to the End of Confinement Review Committee(ECRC) that relator be classified as a level III sex offender, the level indicating the highest risk of reoffense.Brown based his recommendation on relator's long history of alcohol and drug addiction and failed attempts at treatment and on his score on the Sex Offender Screening Tool (SOST) developed by the Department of Corrections.Relator's SOST score treated the March 1993 offense involved here as a sex offense.Brown also spoke to a North Dakota prosecuting attorney about the details of relator's earliest offenses, which he testified affected his assessment of relator's risk level.Brown made no attempt to obtain official documents regarding these convictions.The ECRC, of which Brown is a member, concurred with Brown's recommendation.

Relator appealed the ECRC's classification to an administrative law judge (ALJ).Relator argued (1) that he did not qualify as a sex offender under the notification statute because he had not been convicted of a sex offense, (2) that he should not have been classified as level III, and (3) that several aspects of the procedure violated his due process rights.The ALJ concluded that he lacked jurisdiction to consider relator's due process claims but that relator had adequately preserved them for appeal.At the review hearing, Brown testified that in classifying the 1993 offense as a sex offense, he had assumed the truth of C.B.'s statement in the complaint that the sexual intercourse with relator had not been consensual.

The ALJ concluded that relator was a sex offender under the plain meaning of the notification statute.He also determined that the evidence Brown obtained from the North Dakota prosecutor"must be disregarded as unreliable and uncorroborated hearsay."But the ALJ decided that Brown could legitimately classify the 1993 incident as a sex offense because relator's claim that C.B. consented "is absurd and contrary to all the facts even as presented by [relator]."The ALJ upheld relator's level III classification, and relator appealed to this court.

In October 1997, relator fulfilled the conditions for release in mid-November from the halfway house in which he then resided.Both the ALJ and this court denied relator's motion for a stay of community notification pending appeal.The notice police prepared for distribution to residents of the Loring Park neighborhood in Minneapolis states that "the individual who appears on this notification has been convicted of a sex offense that requires registration" and, under "description of offense," states that "[o]ffender burglarized a female acquaintance's home and forced her against her will in sexual acts."We reverse.

ISSUES

1.Is this court required to strike respondent's appendix as outside the record?

2.Did the ALJ err in determining that relator is a sex offender within the meaning of the notification statute?

3.Did application of the statute to relator, who was charged with, but not convicted of, a sex offense, violate constitutional guarantees of due process?

ANALYSIS

I.Motion to Strike

The state has compiled an appendix comprising a number of scientific and popular articles on sex offender recidivism and the effects of sex offenses on victims, and including a model notification policy promulgated by the Minnesota Board of Peace Officer Standards and Training, in support of its argument on appeal that the notification statute is constitutional.Relator moves to strike the entire appendix on the ground that the contents are outside the record.

We have found no case law addressing whether new evidence may be introduced in an appeal from an administrative agency where the agency lacked jurisdiction to consider the question to which the evidence pertains.In general, new evidence may be introduced on appeal if it is documentary, essentially uncontroverted, and is not offered in support of a reversal.In re Objections and Defenses to Real Property Taxes, 335 N.W.2d 717, 718 n. 3(Minn.1983).We have stated that statistical and social scientific evidence that otherwise meets this test may be introduced on appeal to illuminate, "in the manner of a Brandeis Brief," the social context for a decision, particularly where the appellate decision will have widespread social, economic, or legal consequences.Economy Fire & Cas. Co. v. Iverson, 426 N.W.2d 195, 202(Minn.App.1988), rev'd in part on other grounds, 445 N.W.2d 824(Minn.1989).The supreme court has accepted the belated introduction of a government-prepared statistical report because "we could refer to such a report in the course of our own research, if we were so inclined."In re Estate of Turner, 391 N.W.2d 767, 771(Minn.1986).

In support of his motion to strike, relator relies on decisions involving attempts to introduce evidence pertaining to the facts of the individual cases rather than to matters of public record relevant to broad policy issues.See, e.g., Richardson v. Employers Mut. Cas. Co., 424 N.W.2d 317, 319-20(Minn.App.1988), review denied (Minn. Aug. 24, 1988).The evidence offered here, while not necessarily uncontroverted, is documentary, ² and we conclude that it may properly be introduced in this court in support of a constitutional argument now raised for the first time because the agency below lacked jurisdiction to consider it.Relator's motion to strike is therefore denied.But we also note that we are entitled to take judicial notice of the problem of sex offender recidivism in any event and that the model notification policy is irrelevant to determination of this case.

II.Interpretation of Notification Statute

This case arises under the sex offender community notification act, which is codified at Minn.Stat. § 244.052(1996and Supp.1997).The statute defines "sex offender" and "offender" as "a person who has been convicted of an offense for which registration under section 243.166 is required."Id. at subd. 1(4).It provides that at least 90 days before an offender's release from prison, an end-of-confinement review committee shall convene to determine the offender's risk level.Id. at subd. 3(d).The statute requires that the offender be notified of the time and place of the ECRC's meeting and grants the offender "a right to be present and be heard at the meeting."Id."An offender assigned * * * to risk level II or III * * * has the right to seek administrative review of [the ECRC's] risk assessment determination" but on review has "the burden of proof to show, by a preponderance of the evidence, that the end-of-confinement review committee's risk assessment determination was erroneous."Id. at subd. 6(a), (b).On administrative review, the offender has the right to "a reasonable opportunity to prepare for the hearing," to appointment of counsel, to provide evidence and supporting witnesses, and to cross-examine adverse witnesses.Id. at subd. 6(b).

The notification statute empowers the law enforcement agency in "the area where the sex offender resides, expects to reside, is employed, or is regularly found," to disclose to the public any information that the agency...