Cite as 2013 Ark. App. 654
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-297
Opinion Delivered November 6, 2013
STATE OF ARKANSAS SEX
OFFENDER RISK ASSESSMENT APPEAL FROM THE GARLAND
COMMITTEE COUNTY CIRCUIT COURT
APPELLANT [NO. CV-11-58-1]
V. HONORABLE JOHN HOMER
WRIGHT, JUDGE
MICHAEL G. WALLACE AGENCY AFFIRMED;
APPELLEE CIRCUIT COURT REVERSED
KENNETH S. HIXSON, Judge
This appeal concerns the community notification level assigned to appellee Michael
Wallace pursuant to the Sex Offender Registration Act of 1997. The express purpose of that
act is to release certain information about sex offenders to the public in order to protect the
public safety. Ark. Code Ann. § 12-12-902 (Repl. 2009). Appellant State of Arkansas Sex
Offender Risk Assessment Committee appeals the order entered by the Garland County
Circuit Court reducing Wallace’s notification level from a Level 2 to a Level 1. The
Committee contends that the agency decision setting notification at a Level 2 was supported
by substantial evidence and should be affirmed. We agree and affirm the agency decision,
reversing the circuit court order.
This appeal is governed by the Administrative Procedures Act (“APA”). The APA
provides that an agency decision may be reversed if the substantial rights of the petitioner have
Cite as 2013 Ark. App. 654
been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
in violation of constitutional or statutory provisions; in excess of the agency’s statutory
authority; made upon unlawful procedure; affected by other error or law; not supported by
substantial evidence of record; or arbitrary, capricious, or characterized by an abuse of
discretion. Ark. Code Ann. § 25-15-212(h) (Repl. 2002). The appellate court’s review is
directed not toward the circuit court but toward the decision of the agency. Holloway v. Ark.
State Bd. of Architects, 352 Ark. 427, 101 S.W.3d 805 (2003). Our court reviews the entire
record to determine whether any substantial evidence supports the agency decision. Ark.
Dep’t of Corr. Sex Offender Screening & Risk Assessment v. Claybaugh, 93 Ark. App. 11, 216
S.W.3d 134 (2005). In determining whether substantial evidence exists to support an agency
decision, we ascertain whether there is relevant evidence that a reasonable mind might accept
as adequate to support the agency’s conclusion. Id. The issue is not whether we would have
made a different decision, but rather whether reasonable minds could conclude as the agency
did. Id.
Wallace was subject to registering as a sex offender following his 2007 no-contest plea
to sexual assault in the fourth degree, a misdemeanor. He was initially charged with rape.
Wallace, age eighteen at the time, was accused of having sexual intercourse with the fourteen-
year-old sister of Wallace’s friend during an overnight stay at the friend’s home. The crime
to which he pleaded guilty required proof that the defendant engaged in sexual contact with
another person who was less than sixteen years old. Ark. Code Ann. § 5-14-127(a)(2) (Repl.
2006).
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The Sex Offender Registration Act of 1997 required that guidelines and procedures
be put in place for the disclosure of relevant and necessary information regarding sex offenders
to the public. Gwaltney v. Sex Offender Assessment Comm., 2009 Ark. App. 668. These
guidelines and procedures must identify factors relevant to an offender’s future dangerousness
and likelihood of reoffense or threat to the community. Ark. Code Ann. § 12-12-
913(c)(2)(A) (Repl. 2009). These guidelines and procedures must set forth the extent of
information to be made public, depending on the offender’s level of dangerousness, pattern
of offending behavior, and the extent to which the information will enhance public safety.
Ark. Code Ann. § 12-12-913(c)(2)(B) (Repl. 2009). An individual assessment of each sex
offender’s risk to the public must be made. Ark. Code Ann. § 12-12-917(b) (Repl. 2009).
The assessor should consider factors such as the offender’s criminal history, the interview, a
polygraph examination, any relevant mental-health records, psychological testing, actuarial
instruments designed to assess individuals convicted of sexual offenses, and any other
information relevant to the offender’s history and/or pattern. Gwaltney, supra.
The Sex Offender Assessment Committee Guidelines and Procedures describe the
community notification levels as 1 (low) through 4 (high), compatible with the public’s need
to know about the sex offender depending upon the severity of risk to the public. As relevant
to this appeal, the levels are described as follows:
Level 1: Typically offenders in this category have no prior history of sexual offending
and the community can be protected with notification inside the home and to local
law enforcement authorities.
Level 2: Typically offenders in this category have a history of sexual offending where
notification inside the home is insufficient. Community notification requires notice
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to the offender’s known victim preference and those likely to come into contact with
the offender.
Wallace was interviewed as part of his assessment. According to Wallace, he had just
graduated high school and was spending the night with a friend when the friend’s sister came
home from a party, where she had been drinking and smoking marijuana. Wallace said that
she told him that she was sixteen. He admitted that they engaged in kissing and heavy
petting, which he said was consensual, but he denied having intercourse with her.
Investigative materials included medical documentation evidencing that the female’s genitalia
showed abrasions consistent with penetrating trauma. A condom wrapper was found in her
bedroom’s wastebasket. Wallace denied ever attending sex-offender treatment. The
interviewer observed that “Wallace took no responsibility for this offense.” Actuarial
indicators showed a low-to-moderate risk to reoffend.
Wallace was assigned a community notification Level 2, which he appealed to circuit
court. The circuit court found that there was no evidence of any sexual misbehavior apart
from this offense, in the years preceding and following this event. The circuit court
determined that anything other than the minimum level of notification was arbitrary,
capricious, and not supported by substantial evidence. This appeal followed.
We hold that the agency decision is supported by substantial evidence. In Gwaltney,
supra, our court upheld an administrative decision to assign a Level 2 designation to
Mr. Gwaltney where he had only one known victim, he had not participated in sex-offender
treatment, and he was an adult male who admitted to sexual contact with a fourteen-year-old
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girl. Our court recognized there that because Gwaltney’s victim was outside his home, a
Level 1 assessment would not be sufficient. The same is true here.
Because substantial evidence supports the assessment at Level 2, we affirm the agency
decision and reverse the circuit court.
WALMSLEY and BROWN, JJ., agree.
Dustin McDaniel, Att’y Gen., by: Amy L. Ford, Ass’t Att’y Gen., for appellant.
Hurst, Morrissey & Hurst, PLLC, by: Q. Byrum Hurst, Jr., for appellee.
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