{ "id": 6136305, "name": "ARKANSAS DEPARTMENT of CORRECTION SEX OFFENDER SCREENING & RISK ASSESSMENT v. Robert J. CLAYBAUGH Jr.", "name_abbreviation": "Arkansas Department of Correction Sex Offender Screening & Risk Assessment v. Claybaugh", "decision_date": "2005-10-26", "docket_number": "CA 05-427", "first_page": "11", "last_page": "30", "citations": [ { "type": "official", "cite": "93 Ark. App. 11" }, { "type": "parallel", "cite": "216 S.W.3d 134" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7\u00a7 12-12-901", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 25-15-210", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "69 Ark. App. 313", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141577 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/69/0313-01" ] }, { "cite": "88 Ark. App. 202", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139752 ], "weight": 3, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark-app/88/0202-01" ] }, { "cite": "64 Ark. App. 325", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141507 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/64/0325-01" ] }, { "cite": "352 Ark. 427", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159681 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/352/0427-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-15-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "pin_cites": [ { "page": "(h)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 12-12-913", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(j)(1)(A)", "parenthetical": "Spec. Supp. 2003-2004" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 12-12-917", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "pin_cites": [ { "parenthetical": "Spec. Supp. 2003-2004" }, { "page": "(b)(4)(B)(ii)(a)", "parenthetical": "Spec. Supp. 2003-2004" }, { "page": "(b)(4)(B)(ii)(a)" } ], "opinion_index": 0 }, { "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": "Ark. Code Ann. \u00a7 12-12-902", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2003, "opinion_index": 0 } ], "analysis": { "cardinality": 1117, "char_count": 31370, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1748435912672901 }, "sha256": "17eaf729365c08550aacc0f9ade265f796f30ea1bcc0c9c6ef4d60da52147860", "simhash": "1:0f7c51b0b79c2f48", "word_count": 5343 }, "last_updated": "2023-07-14T22:52:25.043286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Baker and Roaf, JJ., agree." ], "parties": [ "ARKANSAS DEPARTMENT of CORRECTION SEX OFFENDER SCREENING & RISK ASSESSMENT v. Robert J. CLAYBAUGH Jr." ], "opinions": [ { "text": "Sam Bird, Judge.\nThis case involves the risk level assigned to udge. J. Claybaugh Jr. under the Sex Offender Registration Act of 1997, which was enacted by the General Assembly for the express purpose of protecting the public from sex offenders and assisting law enforcement in so protecting the public safety. Ark. Code Ann. \u00a7 12-12-902 (Repl. 2003); Kellar v. Fayetteville Police Dep\u2019t, 339 Ark. 274, 5 S.W.3d 402 (1999). The Act specifies that individuals convicted of particular sex offenses must register with the State as sex offenders and must submit to an assessment of the risk that they pose to the public. Ark. Code Ann. \u00a7 12-12-917 (Spec. Supp. 2003-2004).\nAppellant S.ex Offender Screening and Risk Assessment (SOSRA), a unit of the Sex Offender Assessment Committee (Committee), brings this appeal from the Sebastian County Circuit Court\u2019s order of January 3, 2005, which reduced the risk assessment that the Committee had assigned to Claybaugh from Level 3 to Level 1. SOSRA contends that the Committee\u2019s decision was supported by substantial evidence, was not based upon unlawful procedure, and was not arbitrary and capricious. We do not agree. The decision of the Committee is reversed, and the decision of the trial court is affirmed.\nOn June 3, 2002, Claybaugh pled no contest to the charge of second-degree violation of a minor, based upon allegations that he rubbed his fourteen-or-fifteen-year-old daughter with a vibrator on her vagina on top of her clothing while she was sleeping. He was found guilty, was sentenced to seventy-two months in the Arkansas Department of Correction, and was incarcerated. He was released on parole, and on September 17, 2003, he presented himself to the Sex Offender Assessment Committee for sex-offender risk assessment.\nGuidelines and procedures for public disclosure of information about sex offenders that are necessary for public protection are developed by the Sex Offenders Assessment Committee. Those guidelines \u201cidentify factors relevant to a sex offender\u2019s future danger\u00f3usness and likelihood of reoffense or threat to the community\u201d and determine public notification according to the risk level that an offender is assigned after undergoing the assessment process. See Ark. Code Ann. \u00a7 12-12-913.\nIn the present case, a \u201crisk assessment and offender profile report\u201d signed by George K. Simon Jr., Ph.D., included the following summary of Claybaugh\u2019s assessment interview:\nThis offender was interviewed on 9-17-03 by Diane Gray, Correctional Counselor. He was extremely uncooperative and incompre-hensively evasive when questioned. George K. Simon, Ph.D. was also present for a portion of the interview and advised the offender about the lack of need for and the possible consequences of his refusal to cooperate. The offender continued to make implausible assertions and to refuse to answer questions in a straightforward manner. His refusal to cooperate reached a point that the interview had to be terminated.\nThe report found that Claybaugh\u2019s \u201cextreme uncooperativeness in the face of a relatively minor sex offense of record suggests his sexual deviancy and offense history as well as his antisociality may be greater than the official conviction record suggests.\u201d Although noting the low risk given Claybaugh under the Vermont Assessment of Sexual Offense Risk (VASOR) Composite Risk, the report assessed Clay-baugh at Level 3 by default \u201cbecause he refused to comply or cooperate with Risk Assessment procedures.\u201d\nClaybaugh filed an administrative appeal of his risk classification to SOSRA, which appointed a member of the Sex Offender Assessment Committee to conduct the review. The written review included the following findings:\nMr. Claybaugh did not have to admit guilt, he did have to be honest as to his state of mind, intent and actions. I have listened to the tape and though he tries to come across as credible, I do not find him so. It is the policy of the Sex Offender Assessment Committee that if the individual is not open and honest during the assessment he/she cannot be adequately assessed.\nThereupon, the Committee found no reason to change the risk level from the default Level 3 that had been assigned.\nClaybaugh appealed the Committee\u2019s ruling to the Sebastian County Circuit Court, essentially asserting that substantial evidence did not support the agency decision. A hearing was conducted before the trial court on December 20, 2004. The record of the hearing includes these comments by the court:\nI have been talking to the attorneys in chambers. I have reviewed the file and part of the record that was submitted. I haven\u2019t had a chance yet to review it all. Let me tell you what I had actually determined and then these attorneys can see if that is what we actually decided. I told the attorneys that based on my review of the file and the partial review of the record, level 3 seemed an inappropriate level to me. It seemed too high, but I didn\u2019t know what provisions there were. Mr. Walker indicated that the Committee was meeting today and that they could take this matter up and vote today. If they voted to leave it at a level 3, then what I propose to do is, well, I propose to suspend this hearing today. If the Committee votes to leave it at level 3, there is no need to have the attorneys or Dr. Mobley come back. I will review the file and the complete record and make a written order either saying it should stay level 3, it should be lowered to level 2 or level 1.\nIf the Committee lowers it from level 3, then Mr. Metcalf [defense counsel] has agreed to be satisfied with the lower level and there would be an order entered. I guess, Mr. Walker, you would prepare it basically stating that, that the Committee has reduced it to a level whatever and that\u2019s it.\nThe parties, after agreeing to suspension of the hearing so that a compromise settlement proposal could be presented to the Sex Offender Assessment Committee the same day, submitted their statements to the trial court and introduced exhibits into evidence in the event that the Committee did not change the level. The Committee met and, rather than accept the parties\u2019 proposed compromise, let the Level 3 classification stand. The trial court then reviewed the case.\nThe evidence before the trial court included a consent/refusal/disclosure form bearing Claybaugh\u2019s signature; the Committee\u2019s 2002 guidelines for assessment, registration, and notification; pertinent statutes; and audio tapes. The form that Claybaugh signed stated that an assessment \u201cis based primarily on documented information\u201d as opposed to the examiner\u2019s opinions, but that Level 3 would be assigned if the offender should \u201cwithhold information, give false information or seriously compromise the assessment team\u2019s ability to do a fair and accurate assessment.\u201d Similarly, the 2002 guidelines state that a high-risk classification will be given to individuals \u201cwho attempt to conceal or lie about their behavioral histories.\u201d The State informed the trial court that 2002 regulations allowed an increased risk for an offender \u201cdeemed to have provided deliberately false or misleading information to the assessment team\u201d and that later regulations, adopted in June of 2004, attempted to clarify \u201cfalse or deliberate\u201d as follows:\nIt is important that the person being interviewed answer the questions openly and honestly. If the answers do not match up with the documents previously obtained, the interviewer may conclude that the individual is withholding information or being deceptive.\nAlso in evidence was a copy of Ark. Code Ann. \u00a7 12-12-917(b)(4)(B)(ii)(a) (Spec. Supp. 2003-2004), which reads in part:\nIf a sex offender fails to appear, is shown by substantial evidence to have been deceptive, or voluntarily terminates the assessment process after having been advised of the potential consequences:\n(1) The sex offender shall be classified in risk level 3; and\n(2) The parole or probation officer, if applicable, shall be notified.\nFinally, the State introduced into evidence cassette tapes and the transcript of Claybaugh\u2019s assessment interview.\nIn its order of January 3, 2005, the trial court stated that it had listened to the tapes and reviewed the entire record. The court\u2019s order included the following:\nThe actual testing results indicate a Level 1, low risk assessment, which is consistent with the criminal history. Petitioner [Clay-baugh] did not voluntarily terminate the interview process, which lasted over one hour. Petitioner was cooperative throughout the examination and was compliant with the general instructions and requests for information. There is not substantial evidence that he was deceptive after having been warned of the possible consequences of being rated Level 3 by default.\nRuling that the default Level 3 classification was not supported by substantial evidence, was arbitrary and capricious, and was made upon unlawful procedure, the court modified the classification of Level 3 to Level 1.\nThe appeal arises from the trial court\u2019s order. We now turn to the point on appeal that appellant SOSRA has presented to us.\nWhether SOSRA\u2019s Level 3 classification of Claybaugh is not supported by substantial evidence, is based upon unlawful procedure, and is arbitrary and capricious\nThe Arkansas Administrative Procedure Act provides that the agency decision may be reversed if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional or statutory provisions;\n(2) In excess of the agency\u2019s statutory authority;\n(3) Made upon unlawful procedure;\n(4) Affected by other error or law;\n(5) Not supported by substantial evidence of record; or\n(6) Arbitrary, capricious, or characterized by abuse of discretion.\nArk. Code Ann. \u00a7 25-15-212(h) (Repl. 2002).\nThe appellate court\u2019s review is directed not toward the circuit court, but toward the decision of the agency. Holloway v. Arkansas State Bd. of Architects, 352 Ark. 427, 101 S.W.3d 805 (2003). When reviewing administrative decisions, the court reviews the entire record to determine whether any substantial evidence supports the agency\u2019s decision. Arkansas Bd. of Registration for Professional Geologists v. Ackley, 64 Ark. App. 325, 984 S.W.2d 67 (1998). In determining whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Arkansas State Bd. of Nursing v. Morrison, 88 Ark. App. 202, 197 S.W.3d 16 (2004). In doing so, we give the evidence its strongest probative force in favor of the administrative agency; the question is not whether the testimony would have supported a contrary finding, but whether it supports the finding that was made. Id.\nSOSRA argues that the evidence strongly supports the decision of the Committee, and that the trial court erred in ruling that the agency\u2019s decision was not supported by substantial evidence. Claybaugh responds that the examiner does not say how Claybaugh refused to comply or cooperate with this assessment or testing procedure, nor how he was deceptive and uncooperative.\nCorrectional counselor Diane Gray conducted the first portion of Claybaugh\u2019s assessment interview but was joined by Dr. George Simon after she requested his assistance. SOSRA, contending that substantial evidence supports its assessment that Clay-baugh was uncooperative in his interview, alleges that Claybaugh \u201cqualified\u201d some of his answers to \u201csimple yes or no\u201d questions. When asked if he had shoplifted as a teenager, Claybaugh responded by asking if that included a pack of cigarettes; he also told Ms. Gray he had not been caught for the incident. He answered \u201cno\u201d when asked if he had set a building on fire but answered \u201cnot intentionally\u201d when asked about ground fires. He was asked if he had ever had sex with a prostitute, and he answered \u201cnot that I paid for.\u201d He said that he had \u201cseldom\u201d experienced group sex. As shown in the dialogue later reproduced in this opinion, Claybaugh said that he \u201cmay have been high\u201d when he committed the offense for which he was convicted and that he \u201cdid some methamphetamine\u201d that night.\nSOSRA argues that the answers in the previous paragraph show that Claybaugh was evasive and deceptive in his answers. SOSRA also lists Claybaugh\u2019s answers to questions about drug use as further evidence of evasive answers. Those include Ms. Gray\u2019s asking the last time he smoked \u201cpot\u201d and his answer, \u201cI don\u2019t know . . . it\u2019s been years\u201d; he did not answer when she asked how many years. Ms. Gray then asked, \u201cDid you smoke? That would be just yes or no.\u201d Claybaugh replied, \u201cOnce.\u201d Ms. Gray asked how much he was smoking before his incarceration, and he said \u201cAlmost none.\u201d She asked, \u201cOccasionally?\u201d He replied:\nI was not going out and getting any or buying any or working for any. I just can\u2019t honestly tell you I did not smoke any is what I am really telling you because I am sure I took a puff here or there somewhere, but basically it\u2019s been years since. . . .\nMs. Gray interrupted this answer to ask Claybaugh if he used \u201cmeth.\u201d He replied that he had not used it in years.\nBecause the transcript of the interview was central to the agency\u2019s determination, we reproduce much of it here and we italicize portions that SOSRA relies on in its brief. -We begin when Ms. Gray asked Claybaugh to tell \u201chis side,\u201d and in his own words, \u201cwhat happened with the sex offense and what was going on.\u201d He responded that he had touched his fifteen-year-old daughter with a vibrator. The interview continued:\nQ. What were you thinking about when you did that?\nA. That\u2019s really hard to say. I don\u2019t really know.\nQ. Ok. So you don\u2019t know what you were wanting to happen.\nA. I know what I was not wanting to happen but that\u2019s neither here nor there.\nQ. What did you not want to happen?\nA. I wasn\u2019t out to have sex with my daughter.\nQ. So what were you out to do?\nA. I really don\u2019t know.\nQ. What do you remember thinking about when that happened.\nA. I really don\u2019t know what to say. I really don\u2019t.\nQ. Ok. So, was this the first time that something like this ever happened?\nA. Yes.\nQ. Ok, so were you drunk or were you high, were you sober, what kind of state were you in?\nQ. Do you remember if you were drinking?\nA. I was not drinking.\nQ. Ok. Were you high?\nA. I may have been.\nQ. Ok. You would have been high on what?\nA. That\u2019s a good question.\nQ. What kind of drugs were you doing back in that time?\nA. I wasn\u2019t really doing drugs at that time.\nQ. Ok. I am going to shoot straight with you Mr. Clay-baugh, you are starting to get on my nerves. When I ask you a question, you better give me an answer. Ok? I got other people I got to see. I just need for you to shoot straight.\nA. Ok.\nQ. Don\u2019t beat around the bush, don\u2019t go all the way over there to give me an answer, just spit it out, OK? Or I\u2019m going to have to send you on your way.\nA. Alright.\nQ. Were you high on some kind of drugs when you touched your daughter with a vibrator?\nA. Yes.\nQ. What were you on?\nA. It was supposed to have been methamphetamine, I don\u2019t believe it was.\nQ. Ok. What kind of drug do you recall doing before you touched her[?]\nA. It was supposed to have been methamphetamine.\nQ. So alright, she woke up and she asked you what you were doing and you told her that you were trying to wake her up. Do you recall all that happening?\nA. Okay, yes I do.\nQ. And she said that you left out of the room that she was in and she said that she saw you zipping up your shorts as you walked away.\nA. That is not correct.\nQ. You weren\u2019t masturbating her?\nA. No, I was not.\nQ. Ok. Why do you think she would make a statement like that?\nA. That may have been what she thought she saw, I don\u2019t know.\nQ. Ok. Any other things happen with your daughter. Did you ever touch her inappropriately before this time?\nA. No.\nQ. Did you ever have thoughts about her?\nA. No.\nQ. So, basically one day you just woke up and decided that you would take a vibrator and touch her between the legs.\nA. I did not touch her between the legs.\nQ. That\u2019s her statement.\nA. I am aware of that.\nQ. I am going with her statement today.\nA. Ok.\nQ. Because that\u2019s the official record and that\u2019s what you pled no contest to and that\u2019s what you go[t] convicted of. That\u2019s what I have to go with.\nQ. So how did you touch her? What do you say happened?\nA. I touched her in about the area of her belly button.\nQ. Ok. So she was sleeping.\nA. I don\u2019t think so.\nQ. Then what were you doing?\nA. I really don\u2019t know what I was thinking... you know, I\u2019m hoping getting some counseling.\nQ. The counselor can\u2019t tell you what you were doing. Only you know what you were doing at that time.\nA. I\u2019m not trying to ... .\nQ. I know this is not pleasant and it\u2019s not something that you really want to dweh on . . . but I am trying to understand exactly what you were thinking or going through your head at the time.\nA. Well, it wasn\u2019t anything _, I really don\u2019t know, okay? I\u2019m being honest with you. I\u2019m not trying to put you off. I\u2019m not trying to say anybody else is at fault for this but me. There have been two or three times that I thought I had done things_behind me. I believe I have to put it behind me. I have counseling. I\u2019m not going to say that I don\u2019t need it. I\u2019m not going to tell you I don\u2019t welcome it. If I need it, I welcome it. I\u2019m not going to tell you I was a perfect father, but I was a damn good father.\nQ. She made a statement that there has been several times that she felt like you were looking at her in a way that made her uncomfortable.\nA. Are you aware that this is not the first time that she has made accusations of this type?\nQ. Against you?\nA. No.\nQ. Against other people?\nA. I am not pleading innocent here. I\u2019m not.\nQ. Ok. So, you don\u2019t remember having any kind of sexual thoughts or_about her before this time when you touched her?\nA. No, I did not.\nQ. So, I want you to help me to understand this because I have to present your case before a team ofpeople who will decide what your risk level is going to be.\nA. I understand that.\nQ. And you are really not giving me anything to work with here. Ok?\nQ. That\u2019s where I\u2019m coming from.\nA. Here\u2019s where I\u2019m coming from .... I took care of. . . I don\u2019t know how to explain this. I have done the best I could to put things behind us. I\u2019m not a_detective, I\u2019m not a psychiatrist, I don\u2019t know whether she was abused very young or not I don\u2019t know for sure.\nThe transcript shows that taping ceased after four more short questions and answers. When taping resumed six minutes later, at 2:16 p.m., Dr. Simon was present with Ms. Gray. He was the only interviewer from then until the interview ended at 2:28 p.m. The italicized portions of the interview are those that SOSRA points to as further evidence of \u201cevasive answers\u201d:\nDr. Simon: Is this the only sex offense that you have?\nClaybaugh: Yes.\nDr. Simon: Do you have any other criminal history?\nClaybaugh: I have been arrested on drugs once, you say twice, but I only remember once.\nDr. Simon: Were you convicted on the drug charges?\nClaybaugh: Yes.\nDr. Simon: What was your conviction?\nClaybaugh: If I remember correcdy it was possession of marijuana with intent and possession of methamphetamine.\nDr. Simon: This is your only sex offense?\nClaybaugh: Yes.\nDr Simon: And what did you do exactly?\nClaybaugh: I touched my daughter with a vibrator. It just happened. I am not trying to put you people off, I\u2019m really not. I want to put this thing behind me and get some help. Ok? I don\u2019t see her.\nDr. Simon: You could have gotten help any time. You can stop with the theatrics.\nClaybaugh: I\u2019m not...\nDr. Simon: You need to lower your voice. You need to stop with the theatrics.\nClaybaugh: Okay.\nDr. Simon: And you can stop immediately.\nClaybaugh: Okay.\nDr. Simon: And you can stop lying when you\u2019re caught.\nClaybaugh: I\u2019m not lying.\nDr. Simon: You can stop lying when you\u2019re caught. You know like I\u2019m not gonna catch ya.\nClaybaugh: Okay.\nDr. Simon: I just want to know the situation of the circumstances how you came to do this. Was she visiting you?\nClaybaugh: No, I have had custody of her for years.\nDr Simon: As a single role father?\nClaybaugh: On two different occasions, yes.\nDr. Simon: How did you happen to get custody?\nClaybaugh: It\u2019s a pretty long, drawn out battle.\nDr. Simon: Give me the simple ...\nClaybaugh: Her mother physically abandoned her with her father.\nDr. Simon: Her natural mother and natural father abandoned her?\nClaybaugh: I am her natural father.\nDr. Simon: And then what happens that one day you decided to do this ... what was going on?\nClaybaugh: I am not trying to be_I really.\nDr. Simon: It is_stop.\nClaybaugh: I\u2019m not trying\nDr. Simon: Stop with the theatrics and I won\u2019t warn you again.\nClaybaugh: She was scheduled to go to her maternal [sic] for visitation. I had not allowed her to go the year before....\nClaybaugh: It\u2019s been a rule of mine all along, okay? That the adults discuss the business end of things and she had been trying to ... the time before had been the only time that I had not allowed her to go ... there had been a reason\nDr. Simon: Right, but you\u2019re going someplace I hope because I just want to know the circumstances under which this happened.\nClaybaugh: I guess I got too screwed up and just screwed up.\nDr. Simon: I don\u2019t know what you mean.\nClaybaugh: I did some methamphetamine, I got too screwed up I guess, and I just screwed up I guess.\nDr. Simon: Do you typically get hypersexual on methamphetamine?\nClaybaugh: hypersexual? I don\u2019t think so. (inaudible)\nDr. Simon: Is it one of the reasons you use it?\nClaybaugh: Actually, I quit using it years ago.\nDr. Simon: Is that one of the reasons you used it?\nClaybaugh: To be honest with you, I don\u2019t know why I did.\nDr. Simon: Who would know?_\nClaybaugh: _\nDr. Simon: The question being exactly the same, who would you know?\nClaybaugh: Methamphetamine does feel good. I\nDr. Simon: Why did it take you so long to give such a straight forward, simple answer?\nClaybaugh: I didn\u2019t really think it did, I\u2019m sorry.\nDr. Simon: We\u2019ve already wasted 20 minutes more of my time than I had time to waste.\nClaybaugh: (inaudible) I\u2019m sorry.\nDr. Simon: Do you think taking methamphetamine had something to do with what you did?\nClaybaugh: Ok, yes.\nDr. Simon: Were you doing anything else besides methamphetamine?\nClaybaugh: No.\nDr. Simon: And you said you did something with a vibrator?\nClaybaugh: I touched my daughter.\nDr. Simon: Touched her where?\n(inaudible)\nDr. Simon: Was there anything else that_?\nClaybaugh: I especially wanted _you a straight answer about what happened.\nDr. Simon: _that\u2019s just part of his character. He knows his character and he knows it\u2019s flawed. And he knows the reason it\u2019s flawed is that he\u2019s not straight with himself or other people. That\u2019s why his life is the way it is and why he has troubles in it; he knows that. He doesn\u2019t need us to tell him that. It\u2019s just not in him to be straightforward_when the truth is just_. But I\u2019m not seeing anything else myself. Are you seeing anything?\nGray: Just this right here.\nDr. Simon: And I wouldn\u2019t expect that in this case. Based on what I\u2019m sensing.\nGray: Alright, I just wanted to check with you before I let him go.\nDr. Simon: Anything else you want to tell us... anything you think is important?\nClaybaugh: I don\u2019t guess so.\nDr. Simon: You can wipe that serious look off your face. _can do that. You heard every word I said and you understand every word that I meant. You know exactly what it means so there\u2019s no reason for you to look surprised. You know exactly what\u2019s wrong with your character; you know how long it\u2019s been flawed; you know exactly what you need to do to fix it; and you really ought to stop acting_; you really ought [to]; for your own sake.\nRepeating its argument that Claybaugh\u2019s answers were deceptive, SOSRA submits that he \u201ccontinued\u201d refusing to give straightforward answers despite being warned by Dr. Simon. SOSRA points to Ms. Gray\u2019s written report of the interview: she stated that Claybaugh was evasive and acted as if he did not know why he committed the offense, and she noted Dr. Simon\u2019s conclusion that Claybaugh\u2019s character did not allow him to be truthful. SOSRA notes that the Committee, after listening to the tapes, found that Claybaugh was not credible. SOSRA complains that the trial court did not note what procedure was unlawful, and it concludes that the trial court substituted its judgment for that of the agency.\nDefault Level 3\nSOSRA maintains on appeal that there was substantial evidence in the record to support the Committee\u2019s finding of default Level 3 against Claybaugh and, further, that the Committee properly followed all guidelines and laws with respect to his assessment. SOSRA notes that where an agency\u2019s decision is supported by substantial evidence, it automatically follows that the decision cannot be classified as arbitrary and capricious. See Olsten Health Servs. v. Arkansas Health Servs. Comm\u2019n, 69 Ark. App. 313, 12 S.W.3d 656 (2000).\nA sex offender who is shown by substantial evidence to have been deceptive, or who voluntarily terminates the assessment process after having been advised of the potential consequences, shall be classified by default as a Level 3 risk to the public safety. Ark. Code Ann. \u00a7 12-12-917(b)(4)(B)(ii)(a). The SOSRA guidelines at issue in this appeal allowed the Committee to override a low-risk actuarial assessment if an offender attempted to conceal or lie about behavioral histories, provided deliberately false or misleading information, or refused to submit to or seriously compromised the interview and assessment. Claybaugh had been informed that he would be assigned a high-risk classification should he withhold information, give false information, or seriously compromise the assessment team\u2019s ability to do a fair and accurate assessment.\nIn rendering its decision, the Committee noted that an offender was not required to admit guilt but was required to be open and honest as to his state of mind, intent, and actions. The Committee found Claybaugh not to be credible in the taped interview. Citing its policy that an offender who was \u201cnot open and honest during the assessment\u201d could not be adequately assessed, the Committee allowed the Level 3 risk assessment to stand.\nContending that substantial evidence supports the Committee\u2019s decision, SOSRA argues that Claybaugh was uncooperative to the extent that the interviewer could not properly assess him. SOSRA characterizes particular answers by Claybaugh in the interview as qualified, evasive, and not being straightforward. These answers were in response to questions about a shoplifting incident while he was a teenager, sexual experiences, use of marijuana in past years, and use of methamphetamine at the time he committed the offense of second-degree violation of a minor. SOSRA concludes that a fair-minded person would conclude from these answers that appellant was deceptive in his responses.\nClaybaugh characterizes the issue on appeal as not one of credibility, but whether he was deceptive during his assessment. He argues that his answers \u201cappear to be consistent with the documents assembled for the interview which are part of this record.\u201d Particularly, when Dr. Simon asked Claybaugh about the circumstances under which the offense occurred, Claybaugh admitted that he \u201cdid some methamphetamine\u201d and \u201cgot too screwed up,\u201d and he responded affirmatively when asked if taking methamphetamine had something to do with his committing the offense. We agree that Claybaugh\u2019s answers appear to be consistent with documents assembled for the interview, and we hold that fair-minded persons considering his answers could not have concluded that he was deceptive.\nFurthermore, Claybaugh argues that the Committee did not comply with the requirement of our Administrative Procedure Act that a final decision or order in an administrative adjudication shall include findings of fact and conclusions of law, separately stated. See Ark. Code Ann. \u00a7 25-15-210(b). (Repl. 2002). As Claybaugh notes in his brief, SOSRA has not cited any incident where his answers differed from documents assembled for the interview.\nSOSRA responds in its reply brief that Claybaugh was deceptive in his answers. SOSRA argues that Claybaugh\u2019s 2002 interview could not be assessed by the 2004 guideline allowing an interviewer to conclude, if an individual\u2019s answers did not match up with the documents presented, that an individual was deceptive. However, SOSRA presented the 2004 guideline to the trial court to support its argument that 2002 regulations allowed an increased risk for an offender, and SOSRA has included the 2004 guidelines in the addendum to its appellate brief. Therefore, we will not consider its new argument that the guideline should not be considered.\nWe hold that the Committee disregarded the facts and circumstances of this case, as well as the applicable law and guidelines. We hold that fair-minded persons could not have reached the Committee\u2019s conclusion and that, under applicable statutes and the guidelines developed by SOSRA, there is no substantial evidence to support the Committee\u2019s decision to assign Claybaugh a default Level 3 on the basis of his answers during the assessment interview. Thus, we agree with the circuit court\u2019s finding that Claybaugh\u2019s default classification was not supported by substantial evidence, was arbitrary and capricious, and was made upon unlawful procedure. Consequently, we reverse the decision of the Committee, and we affirm the decision of the circuit court reducing the default Level 3 to Level 1.\nAffirmed.\nBaker and Roaf, JJ., agree.\nThe Sex Offender RegistrationAct, codified at Ark. Code Ann. \u00a7\u00a7 12-12-901 et seq., was last amended by Act 1962 of 2005. We refer in this opinion to provisions of the statute as amended by Act 21 of 2003.\nUnder Ark. Code Ann. \u00a7 12-12-913(j)(1)(A) (Spec. Supp. 2003-2004), the following information is to be made public concerning a Level 3 or Level 4 registered sex offender:\n(i) The sex offender\u2019s complete name, as well as any aliases;\n(ii) The sex offender\u2019s date of birth;\n(iii) The sexual offense or offenses to which the sex offender has pleaded guilty or nolo contendere or of which the sex offender has been found guilty by a court of competent jurisdiction;\n(iv) The street name and block number, county, city, and zip code where the sex offender resides;\n(v) The sex offender\u2019s race and gender;\n(vi) The date of the last address verification of the sex offender provided to the center;\n(vii) The most recent photograph of the sex offender that has been submitted to the center; and\n(viii) The sex offender\u2019s parole or probation office.\nSo as not to interfere with the exchange between Claybaugh and his interviewers, we have left the punctuation, parentheses, and blanks largely intact and as it has been presented through the written transcript.", "type": "majority", "author": "Sam Bird, Judge." } ], "attorneys": [ "Mike Beebe, Arkansas Attorney General, by: Eric F. Walker, Assistant Attorney General, and Amy L. Ford, Assistant Attorney General, for appellant.", "Ronald W. Metcalf, for appellee." ], "corrections": "", "head_matter": "ARKANSAS DEPARTMENT of CORRECTION SEX OFFENDER SCREENING & RISK ASSESSMENT v. Robert J. CLAYBAUGH Jr.\nCA 05-427\n216 S.W.3d 134\nCourt of Appeals of Arkansas\nOpinion delivered October 26,2005\nMike Beebe, Arkansas Attorney General, by: Eric F. Walker, Assistant Attorney General, and Amy L. Ford, Assistant Attorney General, for appellant.\nRonald W. Metcalf, for appellee." }, "file_name": "0011-01", "first_page_order": 37, "last_page_order": 56 }