IN THE SUPREME COURT OF IOWA
No. 20–0353
Submitted February 16, 2021—Filed April 9, 2021
DENNIS BECHER,
Appellant,
vs.
STATE OF IOWA,
Appellee.
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
Sex offender registrant appeals decision of district court denying
modification of his sex offender registry requirements. REVERSED AND
REMANDED.
Appel, J., delivered the opinion of the court, in which all justices
joined.
Nicholas A. Sarcone of Stowers & Sarcone PLC, West Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and John R. Lundquist,
Assistant Attorney General, for appellee.
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APPEL, Justice.
In this case, Dennis Becher appeals from a decision of the district
court denying his application to modify his sex offender registry
requirements. On appeal, Becher asserts that the district court
misinterpreted or misapplied the provisions of Iowa Code section 692A.128
(2019). For the reasons expressed below, we reverse the decision of the
district court and remand for further proceedings.
I. Factual and Procedural Background.
A. Introduction. On June 2, 2000, Dennis Becher pled guilty to
two counts of sexual abuse in the third degree against his nine-year-old
adopted daughter in violation of Iowa Code sections 709.1 and 709.4(1)
(2000). The district court sentenced Becher to two consecutive ten-year
terms in prison. Becher fully discharged his sentence and was released
from incarceration on May 10, 2009.
According to his prison discharge report, Becher “has done well at
[the correctional facility].” During the period of his incarceration, he did
not receive any disciplinary reports. He made connections with church
groups, and “poured himself into treatment just as hard as he poured
himself into church and his religious classes.” While in prison, Becher
completed a correspondence course in religious studies that was the
equivalent of an associate of arts degree.
Because each of his convictions is an “aggravated offense,” Becher
is subject to lifetime registration as a sex offender. See Iowa Code
§§ 692A.101(1)(a)(3) (defining sexual abuse in the third degree as an
aggravated offense), .106(5) (mandating life registration for persons who
are convicted of aggravated offenses) (2019). Becher has been on the
registry since June 2, 2009, without any violation of the registration
requirements.
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On October 29, 2019, approximately ten years after his release from
prison, Becher filed on an application for modification of his sex offender
registry requirements pursuant to Iowa Code section 692A.128. In
support of his application, Becher presented the results of an evaluation
of his likelihood to reoffend prepared by the Iowa Department of
Correctional Services (DCS) based on validated assessment tools. In
addition, Becher and Ed Bateman, a pastor, counselor, and teacher to
Becher, each testified in support of modification at a hearing before the
district court.
B. Department of Correctional Services Evaluation. DCS
evaluated Becher using the five validated tools. The results were as
follows:
STATIC-99R Below average risk
ISORA Low risk
ISORA/STATIC-99R Combined Low risk
STABLE 2007 Lowest risk
STABLE 2007/STATIC-99R Low risk
The evaluation indicated, however, that the STATIC-99R result may
have overstated the risk based on the time Becher has been offense-free
since his release. Because Becher has been offense-free for ten years, the
evaluation stated that risk level should be very low risk.
C. Testimony at Hearing.
1. Becher. Becher testified that he was fifty-three years old and
currently employed as a truck driver. He has been employed since his
release from prison. He had been married for eight years, divorced, and
at the time of the hearing was engaged to be married. Both women were
aware of his sex offender status.
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Becher admitted to two convictions of sex abuse between 1999 and
2000. Specifically, he admitted he fondled his adopted nine-year-old
daughter over and under her clothing. After he pled guilty, he served nine
years and two months for his offenses.
Becher told the district court that while in prison he had completed
all required treatment programs. Becher testified that the treatment
programs helped him learn a lot about empathy and anger, as well as
resentments he had from his childhood. Becher stated he was able to
openly discuss his actions which led to his convictions and stated that his
victim is still a victim even today.
Becher testified that he does not have any desire to reoffend, is
mentally stable, has a great support system, and knows how to deal with
stress and depression. Since his release from prison, Becher stated he
has not committed any criminal offenses nor violated the requirements of
his sex offender registration.
Becher told the district court he had a history of depression and
mental health treatment that predated his offenses. He indicated that he
had no further treatment upon his release from prison but had developed
a support network through biblical support groups. As to triggers, Becher
admitted he would get angry while driving his truck if automobile drivers
tried to make him stop on a dime on the road.
As to negative impacts of registration, Becher stated that there were
limited places where he could live. Becher told the court, however, that
he recently purchased a home in Dubuque. Becher also noted that he had
to report if he engaged in travel and, as a result, he did not travel much.
He and his fiancée planned to honeymoon at Okoboji after their marriage.
2. Bateman. Ed Bateman worked with Becher when he was in
prison and is now a close friend. Bateman told the district court he had
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worked with many persons in prison and that he had no doubt that Becher
would not reoffend.
D. District Court Ruling. The district court denied Becher’s
application. It noted that Becher was assessed at Level II on the STATIC-
99R, which is described as “below average.” The district court noted that
a Level II offender “would be higher risk than nonoffenders, but lower risk
than typical offenders.” The district court further noted that at Level II,
“[i]t is expected that . . . offenders would have some criminogenic needs,
but that these life problems would be few and transient.”
The district court noted that the registration requirements have not
significantly affected Becher’s life. Although Becher testified it was hard
to find a place to live, Becher nonetheless had purchased a home in
Dubuque. When he traveled, the district court noted, Becher had been
able to check in with local authorities as required by his registration
status.
The district court noted that Becher had not received a stipulation
from DCS. The district court noted, however, that the lack of a stipulation
does not “end the analysis” as under Iowa Code section 692A.128(6),
stipulation is not mandatory. Yet, the district court later noted that the
record does not contain such a stipulation, suggesting its absence was a
factor in the district court’s analysis.
II. Standard of Review.
Under Iowa Code section 692A.128 a district court may consider
modification of a sex offender’s registry requirement when certain
mandatory criteria are met. Determining whether the mandatory criteria
are met and any other questions of interpretation of section 692A.128 are
reviewed for correction of errors at law. See State v. Iowa Dist. Ct., 843
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N.W.2d 76, 79–80 (Iowa 2014); Schaefer v. Putnam, 841 N.W.2d 68, 74
(Iowa 2013).
After the district court determines that the threshold requirements
are met, the district court “may” grant modification. Iowa Code
§ 692A.128(5). The word “may” ordinarily vests the trial court with
discretion. See, e.g., State v. Adams, 554 N.W.2d 686, 690 (Iowa 1996)
(“The use of the word ‘may’ shows the legislature’s intention to confer a
discretionary power, not to impose a requirement.”); see also Iowa Code
§ 4.1(30)(c) (“The word ‘may’ confers a power.”). “A court abuses its
discretion when its ruling is based on grounds that are unreasonable or
untenable.” In re Tr. #T–1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013).
“A ruling is clearly unreasonable or untenable when it is ‘not supported by
substantial evidence or when it is based on an erroneous application of
the law.’ ” In re Marriage of Kimbro, 826 N.W.2d 696, 698–99 (Iowa 2013)
(quoting In re Marriage of Schenkelberg, 824 N.W.2d 481, 484 (Iowa 2012)).
III. Discussion.
A. Legal Framework for Modification Applications. The parties
dispute the proper legal approach to modification applications under Iowa
Code section 692A.128. In the companion case of Fortune v. State, ___
N.W.2d___ (Iowa 2021), we laid out in detail the proper approach to be
used by district courts in assessing modification applications. Our
discussion in Fortune is incorporated herein by reference.
B. Positions of the Parties. Like Fortune, Becher argues that
although Iowa Code section 692A.128 allows the district court to use
discretion in its decision to modify registration requirements, the exercise
of district court discretion must be informed by the mandatory statutory
criteria provided in Iowa Code section 692A.128(2)(a)–(e). Specifically,
Becher notes that the threshold criteria of successful completion of sex
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offender treatment, time on the registry, and a low-risk evaluation are all
oriented toward determining risk of reoffense.
Further, Becher relies on our decision in In re A.J.M., 847 N.W.2d
601 (Iowa 2014). In In re A.J.M., we considered the appropriate standards
for a district court to apply when considering whether to waive the sex
offender registration requirements for juvenile offenders under Iowa Code
section 692A.103(3). In re A.J.M., 847 N.W.2d at 604–07. Becher asserts
that in In re A.J.M., we established that in considering whether to waive
the sex offender registration requirements for a juvenile, the focus should
be on the juvenile’s risk of reoffending. Id. at 605–07. In In re A.J.M., we
noted,
[I]t is important to recognize it is possible for any juvenile sex
offender to reoffend. Yet, the mere possibility of reoffending
does not preclude waiver or subsequent modification. The
standard intended by our legislature is built on a likelihood of
reoffending. This means the risk of reoffending would be
“probable or reasonably to be expected.”
Id. at 606 (quoting In re Foster, 426 N.W.2d 374, 377 (Iowa 1988)). Becher
invites us to utilize the same approach in this case involving adult
modification of sex offender registration requirements.
Becher then proceeds to challenge specific features of the district
court’s ruling in this case. Becher claims, for instance, that the district
court erred in applying a “persuasive reason” standard that used Becher’s
history of compliance as a negative factor in the analysis. Becher asserts
that successful management of one’s life to ensure compliance with
registration should not be a strike against an applicant.
Becher further notes that the district court erroneously relied upon
the lack of a stipulation from DCS. Becher points out that he was not
under supervision, and thus Iowa Code section 692A.128(2)(e) does not
apply.
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Becher also asserts that the district court in denying modification
improperly cherry-picked his score on the STATIC-99R. While the STATIC-
99R score alone did place Becher in the below-average risk category, the
evaluation expressly stated that this score did not take into account the
time Becher had been in the community without reoffending. Becher notes
that when ten years of elapsed time outside of prison without reoffending
is considered, the adjusted STATIC-99R score becomes very low risk.
Finally, Becher claims that the district court improperly considered
the nature of the offense. Becher asserts that all sex crimes are heinous.
Further, Becher notes that the legislature did not exclude any type of crime
from the modification provision.
The State responds by asserting that the likelihood of reoffense is
not the sole criteria for the exercise of discretion under the statute. With
respect to In re A.J.M., the State stresses that case involved the waiver of
registration, not a modification, and involved a juvenile offender, not an
adult offender. According to the State, the district court gave appropriate
consideration not only to Becher’s risk assessment but also to the
underlying facts of the criminal offense and the lack of a persuasive reason
for the modification.
With respect to the district court’s treatment of the STATIC-99R
score, the State argues that the district court order was supported by the
record evidence that the STATIC-99R score, which never changes, showed
a below-average risk.
On the question of the lack of a stipulation from DCS, the State
simply observes that such a stipulation is not required under the statute
when the offender is not under supervision. The State makes no further
argument on this point.
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C. Discussion. We first consider the application of In re A.J.M. to
this case. It is true, as the State indicates, that the case involved the
waiver of registration for a juvenile, not the modification of registration for
an adult. Yet we think that In re A.J.M. generally stands for the proposition
that the exercise of discretion by district courts regarding waiver and
modification provisions of sex offender registration statutes should focus
on the risk of reoffense and the ongoing need for registration to protect
public safety—and not on other factors. To that extent, we agree with
Becher.
We do not agree, however, that under the terms of Iowa Code section
692A.128, the standard for modification of sex offender registration for
adults is whether an offender is “probable or reasonably to be expected” to
reoffend, as is the case for waiver of registration for juveniles. In re A.J.M.,
847 N.W.2d at 606 (quoting In re Foster, 426 N.W.2d at 377). There is a
difference between juveniles and adults. Recognizing that difference, the
legislature has made it clear that in order for adults to qualify for a
modification of registration, an offender must be classified as low risk
using standard validated assessment tools. Iowa Code § 692A.128(2)(c).
The legislature’s selection of low risk as the proper standard to be applied
with respect to adults differs from our approach in In re A.J.M. Low risk,
of course, does not mean no risk, and the teaching of In re A.J.M. that the
mere possibility of reoffense cannot be considered determinative is sound.
See also Fortune, ___ N.W.2d at ___. But the risk analysis applied by the
district court must be consistent with the requirement that an offender be
considered low risk under applicable validated assessment tools.
We now turn our discussion to specifics of the district court’s order.
Becher challenges the district court’s treatment of the STATIC-99R score.
Narrowly, the State is correct in its assertion that Becher scored below-
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average on that metric. But the context is missing. The DCS evaluation
specifically reviewed relevant literature on the STATIC-99R. The
evaluation itself noted that the STATIC-99R assessment was valid at the
date of release from prison and did not take into account time in the
community without reoffense. The DCS evaluation observes that if
adjusted for time in the community without reoffense, the STATIC-99R
score puts Becher in the very low-risk category.
We think the district court abused its discretion by not putting
Becher’s STATIC-99R score into proper context. The State, while noting
that the district court’s observation was technically accurate, does not
defend the failure of the district court to recognize the adjustment to the
STATIC-99R contained in Becher’s evaluation. The State contends, rightly
we think, that the district court is not bound by an evaluation that
determines that an offender, like Becher, is at low risk to reoffend. But it
is weighty evidence on the modification issue that should not be evaluated
out of its proper context.
We next consider the district court’s reliance on the absence of a
stipulation from DCS approving of a modification of the registration
requirement. Such a stipulation makes sense when the offender is under
the department’s supervision. See Iowa Code § 692A.128(6). When an
offender is under such supervision, the department is in a position to have
a good working knowledge of the offender and his adjustment to life
outside of prison. But here, since his release from prison, Becher has
never been under supervision. Instead, Becher has been “off paper.” The
State in its brief makes a passing reference to the fact that the stipulation
from DCS was not required but makes further argument in support of
consideration of its absence in Becher’s case. We think it clear that the
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failure to obtain a stipulation cannot be a factor in denying Becher’s
modification. The district court erred in giving it any consideration.
The district court also emphasized that Becher has adjusted well to
the registration regime, and as a result, presented no persuasive reason
for a modification. On the undisputed evidence, Becher has achieved ten
years of compliance, is gainfully employed as a truck driver within the
registration regime, and has managed to find a house in Dubuque that is
not located within a prohibited geographic location for Becher as a tier III
sex offender.
We do not agree, however, that successful adjustment to the sex
offender registration requirements is a factor for denying modification.
Indeed, the mandatory requirement in Iowa Code section 692A.128(2)(a)
that an offender experience a period of time in the community without
reoffense suggests that successful adjustment over time is a positive factor
that reduces the need for ongoing compliance with the registration
requirements. The same notion arises from the DCS evaluation, which
notes the adjustment to the STATIC-99R based on time in the community
without reoffense. If we penalize an offender seeking modification who has
a history of failure to comply with the sex offender registration
requirements, can we also penalize an offender for successfully complying
with the same requirements over a ten-year period? We think not.
Finally, we consider whether the district court properly considered
the underlying nature of the crime. As noted in Fortune, we do not
conclude that the underlying nature of the crime can never be considered
by the district court. But care must be taken to ensure that registration
is not punishment. On remand, any consideration of the underlying
nature of the crime must be linked to the public safety purposes of the
statute and not to a desire to punish.
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In sum, we find that the district court erred in its consideration of
the STATIC-99R evaluation, consideration of the lack of stipulation from
DCS, and penalizing Becher for his years of successful adjustment to sex
offender registration.
IV. Conclusion.
For the above reasons, we vacate the ruling of the district court in
this case and remand the matter to the district court for further
consideration consistent with this opinion.
REVERSED AND REMANDED.