This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Risk Level Determination of E.M.N.
Filed July 25, 2006
Administrative Hearings Office
File No. 15-1100-16510-2
Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant State Public
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from an administrative law judge’s (ALJ) determination upholding the End of Confinement Review Committee’s assignment to petitioner of a risk level III, petitioner argues that (1) he did not qualify for registration as a predatory offender because the criminal-sexual-conduct and kidnapping charges against him were dismissed under the plea agreement and he was charged only with deprivation of parental rights, without any admission of sexual conduct; (2) he was denied due process of law when he was designated as a sex offender and labeled a high-risk sex offender without having committed a sexual offense; and (3) there was insufficient evidence to justify an assignment of a risk level III to him. We affirm.
In March 1994, a 17-year-old girl, who had been in a relationship with E.M.N. and was trying to break it off, reported to police that E.M.N. had raped her. In October 1994, E.M.N. was charged with and convicted of fifth-degree assault and sentenced to 90 days in jail, with 60 days stayed. The stay was revoked in December 1995, and E.M.N. was referred to a treatment program that addressed both chemical-dependency and assaultive-behavior issues. E.M.N. did not successfully complete the program.
In October 1995, E.M.N. physically assaulted an adult woman, J.P., whom he had met a few days earlier. E.M.N. knocked J.P. to the ground and kicked her in the face, fracturing bones in her nose. E.M.N. was charged with and convicted of third-degree assault. E.M.N. was placed on probation but violated probation by being terminated from the Portland House treatment program.
In 1996, E.M.N. was convicted of motor-vehicle theft and sentenced to 15 months in prison. This offense constituted another violation of E.M.N.’s probation on the third-degree-assault conviction. The district court executed the sentences for the assault and theft convictions. E.M.N. was scheduled to be released from prison on May 12, 1997.
In September 1997, an adult female, A.N.S., reported to police that E.M.N. had raped her the previous day. A.N.S. reported that she and E.M.N. were outside her apartment with some friends when E.M.N. suggested that they go upstairs to her apartment, where he restrained her and had intercourse with her.
In March 2002, E.M.N. assaulted his grandmother. He was convicted of assault and sentenced to 90 days in jail, with 81 days stayed. In May 2002, E.M.N. was arrested on another fifth-degree assault charge. He was convicted and sentenced to 90 days in jail. In February 2003, E.M.N. was again arrested for assaulting his grandmother. He was convicted and sentenced to 90 days in jail.
During the night of July 17 and 18, 2003, E.M.N. met a 16-year-old girl, K.H., on a street in Minneapolis. Upon learning that K.H. was a runaway, E.M.N. offered to let her stay at his home. K.H. alleged that at his home, E.M.N. sexually assaulted her, forcing her to perform oral sex on him and penetrating her vaginally and anally with his penis. K.H. alleged that E.M.N. held a knife to her throat and threatened to kill her if she did not perform oral sex. E.M.N. used shoe laces to tie up K.H. After E.M.N. fell asleep, K.H. freed herself from the laces, fled to a nearby nursing home, and contacted police. K.H. consistently described the assaults and her escape to police and in a later statement to an investigator.
The two police officers who responded to K.H.’s call noted that K.H. “was visibly upset,” it appeared that she had been crying, she was “slightly shaking,” and her face was red. The officers observed ligature marks on K.H.’s wrists, consistent with being tied up. K.H. reported that she had left at E.M.N.’s home a bloody tampon, leopard-patterned underwear, and a bra. K.H. directed the officers to E.M.N.’s home. The officers went to E.M.N.’s home. As they proceeded to a downstairs bedroom, the officers observed shoe laces and duct tape on the floor, a bloody tampon, and the underwear described by K.H. near the bed. A sexual-assault examination revealed no sperm and no DNA matching E.M.N.’s on K.H.’s person or clothing, and there was no evidence of bruising, redness, or injuries to her anal or vaginal areas.
As a result of K.H.’s allegations, E.M.N. was charged by complaint with two counts of first-degree criminal sexual conduct and one count of kidnapping. Ultimately, the prosecutor amended the kidnapping charge to depriving another of parental rights, E.M.N. pleaded guilty to the amended charge, and the criminal-sexual-conduct charges were dismissed.
As a factual basis for the plea, E.M.N. admitted that he knew K.H. was a runaway, that she had nowhere to go, that he offered to let her stay at his home, and that she did not have parental consent to do so. He also admitted that the court could fairly find that K.H. suffered neglect by his conduct.
The district court sentenced E.M.N. to a stayed term of 17 months in prison, placed him on probation, and ordered him to register as a sex offender. In the summer of 2004, E.M.N. repeatedly violated his probation by consuming alcohol, driving while intoxicated, and failing to complete chemical-dependency treatment on two occasions. E.M.N. also violated probation by failing to comply with registration requirements. E.M.N. requested that the court execute his sentence because he did not want to remain on probation.
While E.M.N. was incarcerated, the department of corrections began the process of assigning him a risk level for community-notification purposes. Brian Heinsohn, a corrections-program therapist in the risk-assessment/community-notification unit, performs intakes on new inmates and release violators and has worked at prisons as the sex-offender-treatment professional on the End of Confinement Review Committee (ECRC). At the hearing before the ALJ, Heinsohn explained the process leading up to the ECRC’s risk-level determination. Initially, Heinsohn obtains a packet of information about the individual, which can include criminal complaints, presentence-investigation reports, police reports, and psychological evaluations. Heinsohn reviews the information, assigns the person a score based on the Minnesota Sex Offender Screening Tool – Revised (MnSOST-R) and writes a risk-level recommendation report. The information packet and Heinsohn’s report are forwarded to each member of the ECRC.
The MnSOST-R is an actuarial-risk assessment tool based on empirical research. It takes into account 16 different items and gives a score that places the individual in a pool of offenders who have been shown to offend at various rates, categorized as a low, moderate, or high risk. By statutory mandate, the department uses the MnSOST-R to assess the reoffense risk for community-notification purposes. Minn. Stat. § 244.052, subd. 2 (2004). The MnSOST-R score is used to provide a presumptive risk level. The sex-offender-treatment professional and the ECRC can adjust the risk level based on the presence of special concerns, a list of defined factors that may affect risk and that may not be taken into account by the MnSOST-R.
Heinsohn assigned E.M.N. a score of five based on the MnSOST-R. This score placed E.M.N. in the presumptive level-two risk category. Heinsohn prepared a sex-offender-risk-assessment-recommendation report for the ECRC. Heinsohn’s report addresses E.M.N.’s offense history, including the characteristics of E.M.N.’s alleged sexual assault of K.H., and all of the factors required by Minn. Stat. § 244.052, subd. 3(g) (2004). Heinsohn recommended that E.M.N. be assigned a risk level of three. Heinsohn based his recommendation on the MnSOST-R score and the presence of aggravating factors. As aggravating factors, Heinsohn noted that E.M.N. had one conviction as a result of sexually assaulting a juvenile female stranger; the assault involved the use of death threats, a weapon, and tying the victim up to prevent her escape; E.M.N. appeared to have some motivation to force the victim to work as a prostitute; the court revoked E.M.N.’s probation for the conviction because of chemical use, and the assault involved the use of chemicals; E.M.N. had been investigated numerous times for sex offenses involving physical force, use of restraints, and a wide victim pool; and E.M.N. remained untreated for his sex-offense behavior. The report also states:
Although it does not appear that [E.M.N.] was charged with any previous sex-related offense behavior, the number of past allegations, the similarity of some of these allegations to his current conviction, and the violent, predatory nature of his current offense provides evidence that [E.M.N.] is at high risk for sexual re-offense and that the gravity of any future sex offense would likely be severe.
To support the risk level of three, Heinsohn also noted special concerns, specifically, special concern six, which concerns predatory offense behavior and special concern seven, which encompasses an extensive number of victims for which the offender was not charged. Heinsohn testified that the kind of predatory behavior described in the reports of E.M.N.’s assaults of K.H. suggests a need for a higher level of community notification because, as a stranger, K.H. was a member of a large pool of potential victims. Under a level-two notification, only potential victims can be notified and, within the confines of a level one or two, it becomes very difficult to notify potential victims of a person who preys on strangers in a predatory manner.
On January 6, 2005, the ECRC met to assign E.M.N. a risk level for community-notification purposes under Minn. Stat. § 244.052, subd. 3(d)(i) (2004). E.M.N. appeared at the meeting, represented by an attorney. Heinsohn read his risk-assessment-recommendation report into the record. E.M.N.’s counsel provided an affidavit by E.M.N.’s attorney in the criminal case involving K.H. supporting E.M.N. E.M.N. objected to the characterization of his last offense as a sex offense, denied committing any other sex offenses, and requested that he be assigned a risk level of two.
E.M.N. responded to questions from ECRC members. When asked about the evidence found in his bedroom after the assaults of K.H., such as the tampon and underwear, E.M.N. claimed that the police officers must have concocted a case against him because they saw an older black man with a white girl and needed a reason to justify entering his home without a warrant. E.M.N.’s counsel speculated that K.H. may have fabricated the allegations against E.M.N. to cover herself for when she got caught.
The ECRC voted unanimously to assign E.M.N. a risk level of three, specifically noting the special concerns cited in Heinsohn’s report. E.M.N. appealed the risk-level assignment to an ALJ.
E.M.N. was released from prison on February 7, 2005, and placed on intensive supervised release (ISR). His ISR conditions included strict house arrest, monitoring by a GPS system, and the successful completion of sex-offender programming. On April 1, 2005, E.M.N. returned to his home more than two and a half hours late. E.M.N. told his ISR agent that he had been in Crystal, applying for a job. When confronted with the information that the GPS system showed he had been elsewhere, E.M.N. admitted lying about applying for a job.
The ISR agent contacted the sex-offender treatment program and learned that E.M.N. had failed to attend the treatment program on February 19 and April 2, 2005. E.M.N. admitted that he did not attend the program on April 2, 2005. E.M.N. repeatedly told his ISR agent that he does not feel he is a sex offender and does not need to participate in sex-offender treatment.
As a result of E.M.N.’s violations of house-arrest and treatment conditions, his probation was revoked, and he was ordered to serve the remainder of his sentence. Accordingly, E.M.N. has not been under department supervision since his release from prison on July 29, 2005.
The ALJ conducted an evidentiary hearing on E.M.N.’s appeal on June 1, 2005. Heinsohn testified that E.M.N.’s violations while on ISR raise additional concerns about his reoffense risk for community-notification purposes. Heinsohn testified that E.M.N.’s previous probation violations coupled with his violations of ISR conditions satisfy the elements of special concern four, which encompasses prior supervision failures. Heinsohn testified that E.M.N. has had a pattern of engaging in high-risk behaviors, particularly chemical use, which was present in his offenses and his supervision violations, and of being unaccountable, as evidenced by his violating house-arrest rules and lying to his agent about it. Heinsohn opined that E.M.N.’s failure to attend sex-offender therapy would add to the risk.
The ALJ issued an order affirming the risk-level-three assignment. The ALJ found:
In this case, given the number of different reports of suspected criminal behavior, combined with his six prior adult convictions, use of chemicals, lack of participation in sex offender programming, and lack of education and stable employment, the ECRC’s assignment of Risk Level III is not erroneous.
[E.M.N.’s] prior criminal record is especially significant in determining the risk of reoffense. He was convicted of 5th Degree assault five times and 3rd Degree (felony) assault on one occasion. He admits that a former girlfriend obtained a restraining order against him, and that on two occasions former girlfriends complained that he had assaulted them, although he denied each allegation. Although these incidents are not reflected by the SOST-R, they are the type of special circumstances that would reasonably affect the ECRC’s determination of risk. Although several reports of sexual abuse were not charged, the number of them, made by a range of victims at a range of times, suggests that at a minimum, [E.M.N.] has had difficulty in prior relationships that led others to file complaints against him. The complaints alone may not be sufficient to justify raising the risk level, but neither must their existence be ignored when assessing the risk he presents.
This appeal followed.
D E C I S I O N
contested case, this court reviews the agency’s decision under the
Administrative Procedure Act. Zahler v. Minn. Dep’t of Human Servs.,
624 N.W.2d 297, 300-01 (Minn. App. 2001), review
Questions of statutory interpretation are reviewed de novo. But, a reviewing court affords substantial deference to an administrative agency’s interpretation of its own rules and regulations. If an administrative agency’s authority is questioned, a reviewing court independently reviews the enabling statute.
In re R.B.P.,
640 N.W.2d 351, 353 (Minn. App. 2002) (citations and quotation omitted), review denied (
E.M.N. argues that the ALJ erred by determining that he is a “predatory offender” required to register under Minn. Stat. § 243.166 (2004) and, therefore, subject to the ECRC’s risk-level assignment authority. E.M.N. argues that he is not a “predatory offender” because his deprivation-of-parental-rights conviction did not “arise from the same set of circumstances” as the criminal-sexual-conduct and kidnapping charges.
The ECRC shall assess on a case-by-case basis the public risk posed by “predatory offenders” who are about to be released from confinement and assign a risk level accordingly. Minn. Stat. § 244.052, subd. 3(a), (d)(i) (2004). A “predatory offender” means “a person who is required to register as a predatory offender under section 243.166.” Id., subd. 1(5) (2004).
Minn. Stat. § 243.166, subd. 1(a), states:
A person shall register under this section if:
(1) the person was charged with or petitioned for a felony violation of or attempt to violate any of the following, and convicted of . . . that offense or another offense arising out of the same set of circumstances: . . .
(ii) kidnapping under section 609.25; or (iii) criminal sexual conduct under section 609.342; 609.343; 609.344; 609.345; or 609.3451, subdivision 3[.]
The state argues that, under Boutin v. LaFleur, 591 N.W.2d 711, 713 (Minn. 1999), the ALJ properly determined that E.M.N.’s conviction arose out of the same set of circumstances as the charged offenses. The defendant in Boutin was charged with two counts of third-degree criminal sexual conduct, one count of third-degree assault, and one count of fifth-degree assault. 591 N.W.2d at 713. The charges resulted from the defendant’s girlfriend’s report that the defendant had physically and sexually assaulted her. Id. The defendant pleaded guilty to third-degree assault, and the remaining charges were dismissed. Id. at 713-14. The defendant brought an action challenging the requirement that he register as a sex offender under Minn. Stat. § 243.166, and the supreme court upheld the requirement, finding that the assault conviction arose from the same set of circumstances as the original criminal-sexual-conduct charges. Id. at 714-16.
enactment, Minn. Stat. § 243.166 required only that persons convicted of
certain enumerated felony offenses register upon release from prison. 1991
Minn. Laws ch. 285, §§ 3, 13(a). In
1993, the legislature amended the statute to require that a person register if
convicted of an enumerated felony or “another offense arising out of the same
set of circumstances.” 1993 Minn. Laws
ch. 326, art. 10, § 1. The issue
addressed in Boutin was defendant’s
argument that the phrase “‘another offense arising out of the same set of
circumstances’ should be read to mean ‘another [enumerated predatory] offense
arising out of the same set of circumstances.’”
591 N.W.2d at 716. The supreme
court rejected the argument because it would have made the phrase “another
E.M.N. pleaded guilty to depriving another of parental rights in violation of Minn. Stat. § 609.26, subd. 1(8) (2002), which states that a person is guilty of depriving another of parental rights if the person intentionally “causes or contributes to a child being a runaway as defined in section 260C.007, subdivision 28, and is at least 18 years old and more than 24 months older than the child[.]” E.M.N. was charged with the enumerated offense of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(2) (2002), which states, “Whoever, for any of the following purposes, confines or removes from one place to another, any person without the person’s consent or, if the person is under the age of 16 years, without the consent of the person’s parents or other legal custodian, is guilty of kidnapping . . . : to facilitate commission of any felony or flight thereafter.” E.M.N. was also charged with the enumerated offense of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) (2002) (sexual penetration and “circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another”), and Minn. Stat. § 609.342, subd. 1(d) (2002) (sexual penetration and “the actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit”).
E.M.N. argues that, because the elements of the offense of which he was convicted differ from those of the charged offenses, the offense of conviction did not arise out of the same set of circumstances as the charged offenses. E.M.N.’s argument is inconsistent with the plain statutory language, which nowhere refers to the elements of the offenses. The same set of circumstances refers to the set of circumstances that provided the basis for the felony charge in the original complaint or petition. It is not limited to individual events that prove elements of the felony violation but rather includes the entire course of events described in the complaint or petition. The facts that provide the factual basis for the offense of conviction must have occurred during the course of events that are described in the complaint or the petition, and the charged offense and the offense of conviction must be united in time and place.
The facts that provided the factual basis for E.M.N.’s plea occurred during the course of events described in the complaint charging him with kidnapping and criminal sexual conduct. The facts providing the factual basis were united in time and place with the events described in the complaint. The ALJ properly determined that E.M.N.’s deprivation-of-parental-rights conviction arose out of the same circumstances as the charged offenses.
argues that the assignment of a risk level to him for community-notification
purposes violates due-process guarantees.
In a due-process analysis, the first inquiry is whether a protected liberty or property interest is implicated. In re Risk Level Determination of C.M., 578 N.W.2d 391, 396 (Minn. App. 1998). In C.M., police publicly distributed a notice that clearly suggested that relator had been convicted of criminal sexual conduct when in fact he had not been. The language of the community-notification statute appeared to grant immunity to state and local entities even for making false statements in the course of community notification. This court determined that the deprivation of the right to pursue a common-law defamation action for the false statements of law-enforcement officials gave rise to a liberty interest protected by the Due Process Clause. This court concluded that the risk of erroneous, irrevocable attachment of stigma outweighed the state’s interest in protecting the public from individuals who had never been proven to be sex offenders, and, therefore, interpreting the community-notification statute to permit community notification where an offender is charged with, but not convicted of, a sex offense would violate due-process guarantees. Id. at 397-98.
In rejecting Boutin’s procedural-due-process challenge because being labeled a predatory offender is injurious only to one’s reputation, the supreme court noted, “While it is true that the information regarding Boutin’s case is available to the general public in the form of court documents, there is a distinct difference between the mere presence of such information in court documents and the active dissemination of such information to the state’s law enforcement community.” 591 N.W.2d at 718.
Following the C.M. and Boutin decisions, the legislature amended the community-notification statute to provide state and local officials with immunity that applies “only to disclosure of information that is consistent with the offender’s conviction history.” 2000 Minn. Laws ch. 311, art. 2, § 12. The conclusion in C.M. that a protected liberty interest was at stake depended on the deprivation of the remedy of a defamation action for false statements. In light of the legislative amendment and Boutin, E.M.N.’s argument that the assignment of a risk level for community-notification purposes violated due-process guarantees is not persuasive. We also note that the administrative review process provides a sufficient opportunity for an offender to challenge the accuracy of the ECRC’s determination.
E.M.N. objects to the evidence relied on in finding him a predatory offender. While concerns noted by the C.M. court are present here, the authority cited by E.M.N. does not support the position that there is a potential for injury other than to reputation.
E.M.N. also argues that the community-notification statute implicates a liberty interest because it can limit a person’s choice of residence. But there is no evidence in the record that E.M.N. has suffered such an injury.
E.M.N. argues that the evidence does not support the assignment of risk level three to him. An agency decision will be reversed if unsupported by substantial evidence. Minn. Stat. § 14.69. “Substantial evidence” has been defined as “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).
In an appeal from a risk-level assignment, the offender bears the burden of proving by a preponderance of the evidence that the ECRC’s risk-level determination was erroneous. Minn. Stat. § 244.052, subd. 6(b) (2004). In the appeal hearing, the ALJ’s role is to determine whether the ECRC’s risk assessment was erroneous and based on that decision, the ALJ shall either uphold or modify the ECRC’s determination. Minn. Stat. § 244.052, subd. 6(c) (2004).
The ECRC’s role is to assess on a case-by-case basis the risk posed to the public by predatory offenders who are about to be released from prison. Minn. Stat. § 244.52, subd. 3(a). In determining the offender’s risk level, the ECRC is to take into consideration the risk-assessment scale referenced in Minn. Stat. § 244.052, subd. 2 (2004), and the risk factors set forth in Minn. Stat. § 244.052, subd. 3(g) (2004). Minn. Stat. § 244.052, subd. 3(d)(i). This court has also recognized that the ECRC may draw upon its experience and expertise to exercise some discretion in assigning a risk level on a case-by-case basis. R.B.P., 640 N.W.2d at 353.
The assignment of risk level three to E.M.N. is consistent with the statutes governing risk-level assignment. Heinsohn determined that E.M.N.’s risk level was two based on the MnSOST-R. Heinsohn then specifically addressed the factors listed in Minn. Stat. § 244.052, subd. 3(g). Heinsohn also considered the presence of special concerns. Based on these factors, Heinsohn recommended that E.M.N. be assigned a risk level of three. Heinsohn forwarded his report and the documentation regarding E.M.N. to the ECRC. E.M.N. appeared before the ECRC, was afforded the opportunity to present evidence, and was represented by counsel. Substantial evidence supports the assignment of risk level three to E.M.N.
 Both parties cite unpublished opinions of this court to support their constructions of the term “same set of circumstances.” Unpublished opinions lack precedential authority in deciding appeals. Minn. Stat. § 480A.08, subd. 3(c) (2004); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (addressing dangers of miscitation and unfairness associated with use of unpublished opinions and stating that “[t]he legislature has unequivocally provided that unpublished opinions are not precedential”); see also Vlahos v. R & I Constr., Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004) (stating that district court erred “both as a matter of law and as a matter of practice” by relying on an unpublished opinions).