{ "id": 6141375, "name": "L.W. v. STATE of Arkansas", "name_abbreviation": "L.W. v. State", "decision_date": "2005-02-09", "docket_number": "CA 04-613", "first_page": "318", "last_page": "324", "citations": [ { "type": "official", "cite": "89 Ark. App. 318" }, { "type": "parallel", "cite": "202 S.W.3d 552" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "339 Ark. 274", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130708 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0274-01" ] }, { "cite": "326 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12021534 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0201-01" ] }, { "cite": "470 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299693 ], "year": 1985, "pin_cites": [ { "page": "573-74" } ], "opinion_index": 0, "case_paths": [ "/us/470/0564-01" ] }, { "cite": "355 Ark. 392", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2648146 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "403", "parenthetical": "quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)" }, { "page": "497", "parenthetical": "quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)" } ], "opinion_index": 0, "case_paths": [ "/ark/355/0392-01" ] }, { "cite": "78 Ark. App. 112", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137675 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/78/0112-01" ] }, { "cite": "355 Ark. 590", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2650613 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/355/0590-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-356", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 2003, "pin_cites": [ { "page": "(e)" }, { "page": "(e)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 562, "char_count": 9390, "ocr_confidence": 0.756, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17494379015919462 }, "sha256": "b12f411bba1eb25695e924d6b5a50449b3ab169bd2340e1b6c55ac6d68a5ef90", "simhash": "1:f7f5eca3969dbde7", "word_count": 1476 }, "last_updated": "2023-07-14T22:09:44.662329+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Griffen and Crabtree, JJ., agree." ], "parties": [ "L.W. v. STATE of Arkansas" ], "opinions": [ { "text": "Larry D. Vaught, Judge.\nOn appeal L.W., a minor, argues that the trial court\u2019s determination that clear and convincing evidence supported the need for him to register as a sexual offender, pursuant to Ark. Code Ann. \u00a7 9-27-356(e) (Supp. 2003), was clearly erroneous. We disagree and affirm the decision of the trial court.\nThe facts giving rise to the predicate offense that resulted in appellant\u2019s sex-offender status are as follows. On December 2, 2003, appellant pleaded guilty to rape (Y felony), attempted rape (A felony), and two counts of sexual indecency with a child (D felony). Appellant was adjudicated delinquent and placed on eighteen months\u2019 probation. These charges resulted from a series of events, beginning when appellant was fourteen years old, where he sexually assaulted his best friend\u2019s seven-year-old sister.\nAppellant and the victim\u2019s brother lived near one another and attended the same school. Appellant was the quarterback of his school\u2019s football team and the victim\u2019s brother played center. Beginning in April of 2002 and continuing through August of that year, appellant would frequently visit his friend\u2019s home and attend family outings with his friend\u2019s family. During these visits and outings appellant sought opportunities to be alone with his friend\u2019s younger sibling. On four separate occasions during the summer of 2002, appellant penetrated the victim with either his finger or his penis. At one point during the summer, he feigned illness while playing basketball so he could enter his friend\u2019s home and rape his victim. Appellant was eventually discovered, in the act of coitus with his young victim, by his best friend who reported the incident. After the police became involved, appellant was charged with, and pleaded guilty to, four felony counts.\nAppellant was required to undergo counseling and submit to a statutorily required sexual-offender assessment. Following his sexual-offender assessment and an evidentiary hearing, the trial court ordered appellant to register as a sex offender pursuant to Ark. Code Ann. \u00a7 9-27-356, despite the fact that the assessment and the discharge recommendations did not indicate that appellant would likely re-offend. Based primarily on the favorable prognosis of the assessment and discharge reports, appellant argues that the trial court\u2019s decision to require that he register as a sex offender was clearly erroneous and urges us to reverse that decision.\nArkansas Code Annotated \u00a7 9-27-356(d) provides that \u201cfollowing a sex offender screening and risk assessment the prosecutor may file a motion to request that a juvenile register as a sex offender at any time while the court has jurisdiction of the delinquency case.\u201d The State filed such a motion on October 10, 2003. According to Ark. Code Ann. \u00a7 9-27-356(e), after such a motion is filed, the court must conduct a hearing within ninety days of the State\u2019s registration motion, to consider the following \u201cfactors in making its decision to require the juvenile to register as a delinquent sex offender\u201d:\n(i) The seriousness of the offense;\n(ii) The protection of society;\n(iii) The level of planning and participation in the alleged offense;\n(iv) The previous sex offender history of the juvenile, including whether the juvenile has been adjudicated delinquent for prior sex offenses;\n(v) Whether there are facilities or programs available to the court that are likely to rehabilitate the juvenile prior to the expiration of the court\u2019s jurisdiction;\n(vi) The sex offender assessment and any other relevant written reports and other materials relating to the juvenile\u2019s mental, physical, educational, and social history; and\n(vii) Any other faet\u00f3n deemed relevant by the court.\nOn December 19, 2003, the court conducted such a hearing. After making written findings on all of the factors in subsection (e), as required by law, the trial court concluded that by clear and convincing evidence appellant should be required to register as a sex offender. Ark. Code. Ann. \u00a7 9-27-356(f).\nClear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (2004). On appeal, when factual findings require clear and convincing evidence, we consider whether the trial court\u2019s findings are clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. See, e.g., Johnson v. Ark. Dep\u2019t of Human Servs., 78 Ark. App. 112, 119 82 S.W.3d 183 (2002). Further, \u201c \u2018where there are two possible views of the evidence, the fact-finder\u2019s choice between them cannot be clearly erroneous.\u2019 \u201d Allen v. Rutledge, 355 Ark. 392, 403, 139 S.W.3d 491, 497 (2003) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)).\nHere, prior to reaching its decision, the trial court carefully considered each of the seven factors and made specific factual findings as to each factor. First, the court found that the multiple sexual offenses \u2014 including one Y felony rape, which is by definition a serious offense \u2014 were serious, particularly in light of the victim\u2019s age and the physical and emotional gap between her and appellant. A trial court is not required to give equal weight to all statutory factors, and this factor \u2014 logically so \u2014 heavily factored into the trial court\u2019s decision to require registration. See Brooks v. State, 326 Ark. 201, 929 S.W.2d. 160 (1996).\nSecond, as to the protection of society, the trial court found that appellant had exhibited manipulative behavior by infiltrating his best friend\u2019s family, gaining the family\u2019s trust, then sexually abusing their young daughter. The court also noted appellant\u2019s lack of remorse and manipulative behavior. Further, the diagnostic reports indicated that appellant was at low to moderate risk to re-offend \u2014 if a careful regime of therapy was followed. As the trial court recognized, this status is distinctly different than being at no risk to re-offend. The court also acknowledged that several of the reports instructed that appellant should have no unsupervised contact with younger children.\nThird, the court concluded that appellant\u2019s level of planning and participation weighed against him because he committed the sexual offenses against his best friend\u2019s younger sister in her own home, on more than one occasion. The court also noted that appellant lacked remorse, \u201ccreated the opportunity to get his victim alone,\u201d and \u201cused manipulation to get his way.\u201d According to the diagnostic reports, he utilized \u201cintimidation\u201d and \u201cthreats\u201d to coerce his victim\u2019s cooperation in the abuse. Further, the abuse occurred six to seven times, with the seriousness gradually escalating over the course of the summer, until appellant was caught in the act.\nAs to the fourth factor, the trial court found that appellant had no previous sex-offender history.\nIn considering the fifth factor \u2014 the treatment options available to appellant \u2014 the trial court expressed concern that he was not fully \u201crehabilitated\u201d and that he \u201cfailed to sincerely meet all of the criteria for discharge.\u201d Indeed, appellant completed four stages of treatment in only five months, with only one month of compliance. He argues that his rapid progress should be considered in his favor and not against him. However, the court expressed concern over the depth of the progress in light of the fact that appellant\u2019s original anticipated stay was nine to twelve months.\nThe sixth factor considered by the trial court was the sex-offender assessment, which did not recommend registration. The court noted this recommendation, but also pointed to language in the report stating that \u201cthere is currently no valid or reliable tool for assessment of risk for re-offending in juvenile sexual offenders.\u201d Appellant concedes this point, but asks the court to acknowledge that it is currently the only indicator, and that the legislature placed great significance on the report by requiring that it be mandatory.\nFinally, the trial court was asked to consider all other relevant factors prior to making its determination. The court noted that a decision to require registration would have a \u201cserious implication\u201d on appellant, placing restrictions on his future. However, while there are some punitive characteristics to registration, the registration is essentially regulatory and therefore non-punitive in nature. See, e.g., Kellar v. Fayetteville Police Dep\u2019t, 339 Ark. 274, 5 S.W.3d 402, (1999).\nAfter careful consideration of appellant\u2019s argument, we are satisfied that the legislature recognized that the best indicator of need for registration is a synthesis \u2014 conducted by the trial court \u2014 of the seven factors listed in the statute, among which the sex-offender assessment is merely one. Although there was some proof that weighed in appellant\u2019s favor, there was clear and convincing evidence supporting the trial court\u2019s decision to require registration. Therefore, the trial court\u2019s decision cannot be said to have been clearly erroneous, and we affirm.\nAffirmed.\nGriffen and Crabtree, JJ., agree.", "type": "majority", "author": "Larry D. Vaught, Judge." } ], "attorneys": [ "Buckley, McLemore & Hudson, by: Kent McLemore, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Laura Shue, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "L.W. v. STATE of Arkansas\nCA 04-613\n202 S.W.3d 552\nCourt of Appeals of Arkansas\nOpinion delivered February 9, 2005\nBuckley, McLemore & Hudson, by: Kent McLemore, for appellant.\nMike Beebe, Att\u2019y Gen., by: Laura Shue, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0318-01", "first_page_order": 344, "last_page_order": 350 }