Sweet v. State

ADKINS, Judge. Christopher Sweet, Appellant, has been twice convicted of sexually assaulting young girls. In this appeal from an order requiring Sweet to register as a sexually violent predator (“predator registration”) pursuant to former Md.Code (1957, 2001 RepLVol.), Art. 27 section 792(a)(12), 1 we are asked to decide whether the State sufficiently proved that Sweet is “at risk of committing a subsequent sexually violent offense” by presenting statistical studies predicting Sweet’s risk of recidivism to be in the “medium to low range.” Sweet complains that the court erred in relying on two such assessments in determining that he is “at risk.” We disagree. BACKGROUND In Sweet v. State, 371 Md. 1 , 806 A.2d 265 (2002), the Court of Appeals reversed Sweet’s convictions for second degree assault and third degree sexual offense against a minor and remanded the case for a new trial.

With respect to the sentencing court’s order that Sweet must register as “a sexually violent predator,” the Court of Appeals held that “the trial court erred in failing to find, on the record, the factual predicate necessary for finding that petitioner was a sexually violent predator as defined by the statute.” Id. at 8 , 806 A.2d 265 . Vacating the judgment, the Court remanded for, inter alia, a new hearing on the issue of whether Sweet should be ⁶⁷⁹ ordered to register as a sexually violent predator or as a lesser degree of sexually violent offender. After remand, Sweet pleaded guilty to a third degree sexual offense and was sentenced to a seven-year term of imprisonment. The State filed a memorandum in support of its request that Sweet be required to register as a sexually violent predator.

That memorandum included the following information: The defendant was convicted of Sexual Offense in the Third Degree in case number 81278. In that case, the defendant sexually molested a 6-year-old girl by climbing on top of her, simulating intercourse and ejaculating on her clothing. He told her they were playing “the slobber game.” On May 28, 1998, the defendant was sentenced to ten years suspend all but one year plus special conditions during the five years of probation imposed. On November 14, 2000, the defendant was sentenced to nine years back-up for violating his probation.

The defendant violated his probation by committing another offense against another child. In that case, the defendant, a 40-plus-year-old man, sexually molested an eleven-year-old girl[ 2 ] by repeatedly rubbing his penis up against her buttocks and commenting on the size of her breasts while playing video games. On December 5, 2003, a hearing was conducted on the State’s registration request. Dr. Ronald Weiner, executive director of Clinical and Forensic Associates, which “does assessments and treatment for convicted sex offenders,” testified at the hearing, explaining the results and reliability of three statistical risk assessment tests he consulted in evaluating Sweet’s risk of re-offending.

The defense stipulated that Weiner was an expert in the use of risk assessment evaluations. ⁶⁸⁰ Dr. Weiner explained that “offense risk assessment instruments” are “standard tools that are used in the sex offender assessment field[.]” They are “large-scale, meta analyses .... that have been done on convicted sex offenders nationally here in the United States and in Canada[.]” These “studies have come up with a series of factors ... identified as the factors that predict risk for re-offending.” Although such studies are “not clinical” in that they do not reflect information obtained from the individual offender, Weiner stated that “they have the best validity. In other words, they’re better than clinical judgment in predicting whether someone is likely to re-offend sexually and violently.” Consequently, to evaluate risk of recidivism, “you don’t need to have the individual present[,]” but “you do need to have a pre-sentence investigation report.” Weiner testified that, of the three risk assessment instruments he used, 3 “Static 99” had “the strongest empirical evidence of predicting risk for re-offense sexually and violently.” The Static 99 assessment for Sweet was admitted into evidence without objection. Sweet was assigned a score of three out of five, which Weiner explained in detail: What that means is that the individuals that scored a three, that 12 percent of the individuals sexually recidivated in five years, and 22 percent of individuals scoring a three re-offended in a violent way. Over a 10-year period of time, 14 percent of individuals scoring a three sexually recidivated, and 27 percent who scored a three committed a violent offense.

Over a 15-year period of time, a person who scored a three, 19 percent of them re-offended sexually and 34 percent of them re-offended violently. (Emphasis added.) ⁶⁸¹ Also admitted into evidence were results of the Rapid Risk Assessment of Sexual Offense Recidivism (RRASOR), which Dr. Weiner observed were “strikingly similar” to the Static 99 results, even though it “does not include ... predictions of sexual violence and violence in general, just sexual recidivism.” The RRASOR results indicated that the risk that persons like Sweet, who received a score of two (out of a maximum five), will commit another sexual offense within a five-year period is 14.2% and the risk that the same person will commit another sexual offense within a ten-year period is 21.1%. Asked by the court whether he was able to form an opinion as to whether Sweet is at risk for committing a subsequent sexually violent offense, Dr. Weiner replied: “I do have an opinion. The opinion is that based upon his score, there is evidence of risk for re-offense, both sexually and in terms of possible violence.” That risk was in the “medium to low range.” The State argued that Sweet qualifies as a sexually violent repeat offender who should be ordered to register as a sexually violent predator for several reasons: One is the commonsense argument that the defendant molested a little girl, a six-year-old girl.

He was caught for doing that, he was prosecuted, he was convicted, and he was sentenced in that case. After he got out of jail in that case, he went again and molested another little girl. The commonsense argument is that he did it once, he got caught, and he was even sent to jail, he got out of jail, and he went and did it again and he got caught. There is no reason to believe that he would not do it again.

Furthermore, the prosecutor emphasized, the statistical risk assessment made by Dr. Weiner supported that conclusion. Pointing to the scores explained by Dr. Weiner, she argued that Sweet “is at risk, in fact, of re-offending and to a significant degree, as is indicated in these risk assessment tools.” Defense counsel conceded that Sweet’s molestations of both the six and the nine year old victims fall within the statutory ⁶⁸² definition for sexually violent offenses. 4 Asked by the court whether he was arguing that there was “no basis” for the court to find that Sweet was “at. risk because of what [Weiner] said,” defense counsel responded: No, ... I am not saying that at all. I am saying that clearly he is at risk.

I don’t think I could look you in the eye and say he is not at risk, because clearly he is at risk if for no other reason than the fact that he re-offended. Counsel posited that, notwithstanding that Sweet’s crimes are defined by the registration statute as “sexually violent,” neither should be treated as “violent,” given the lack of evidence that he used a weapon, threat, or other force. Based on that distinction and the “medium to low” risk predicted by the Static 99 and RRASOR studies, he vigorously disputed that Sweet could be characterized as “at risk for committing a subsequent sexually violent offense.” (Emphasis added.) Defense counsel acknowledged that “there is [no] question” that Sweet is properly classified “as a sex offender” and that [h]e is at risk of violating probation or re-offending. That is — I mean, I can’t argue that he is not at risk, because I can’t predict the future and neither can the State.

He might not re-offend; he might. What the statistics that they have presented to you say is he is at 14.2 percent by one study and 12 percent on another study.....I think there is a reason for the distinction [in the statutory classifications]. Not every sex offender is a sexually violent predator, and ... that is the point I am trying to make to Your Honor. ⁶⁸³ Yes, he is a sex offender, but no, he is not a sexually violent predator. (Emphasis added.) Ultimately, defense counsel agreed with the court that the issue of whether the State proved that Sweet is a sexually violent predator turns on the meaning of “at risk” as that phrase is used in the registration statute.

The debate then focused on what level of risk warrants such an at-risk finding. THE COURT: The legislature didn’t say “is likely to do this again.” The legislature said “is at risk to do it again.” [DEFENSE COUNSEL]: Right. And I don’t believe 14 percent or 12 percent is that level of risk necessary— THE COURT: Okay. [DEFENSE COUNSEL]: — that allows Your Honor to make that classification. THE COURT: Is that the heart of your argument? [DEFENSE COUNSEL]: Yes.

After considering the evidence and argument, the court granted the State’s motion, because ... it is clear that he has been convicted of a subsequent sexually violent offense. So, the only arguable issue is whether or not I should conclude based on what is before me that he is at risk for committing a subsequent sexually violent offense. For two reasons, I find that he is at risk: first, from the testimony of the witness, the expert witness, who said what he said; and second, from the fact that ... the commonsense argument has appealed to me.... [T]hose two factors cause me to conclude that there is a risk of him committing a subsequent sexually violent offense. Sweet noted this timely appeal, which challenges only the order to register as a sexually violent predator.

DISCUSSION Sexually Violent Predator Registration When this case was initiated, the registration of sexual offenders was governed by section 792 of Article 27 of the ⁶⁸⁴ Maryland Code. 5 Orders to register as a sexual offender “are tailored to protect the public[.]” Young v. State, 370 Md. 686, 712 , 806 A.2d 233 (2002). Such registration orders serve the “goal of alerting law enforcement officers and the community to the presence of sexual predators who may reoffend[,]” by requiring “registrants to supply basic information [that] apprise[s] law enforcement officials about an offender residing or working in the area.” Id. at 712, 715 , 806 A.2d 233 . Registration requirements apply to persons convicted of different degrees of sexual offenses. Relevant to this appeal is that there are distinct obligations for “child sexual offenders,” “sexually violent offenders,” and “sexually violent predators,” although all are defined as “registrants” who must comply with the specific registration requirements applicable to them.

See Art. 27 § 792(a)(7). For example, all registrants are required to register with their supervising authority, but sexually violent predators are also required to register with the Department of Public Safety and Correctional Services “every 90 days throughout the individual’s life,” whereas other registrants register only annually, for a period of from 10 years to life depending on the offenses. See Art. § 792(c)-(d). It is the classification of an offender as a “sexually violent predator” that triggers heightened registration requirements.

This classification is governed by section 792, which provides in pertinent part: § 792 Registration of sexual offenders. (a) Definitions.— (1) In this section the following words have the meanings indicated.... (12) “Sexually violent predator” means an individual who: (i) Is convicted of a second or subsequent sexually violent offense; and ⁶⁸⁵ (ii) Has been determined in accordance with this section to be at risk of committing a subsequent sexually violent offense. ... (b) Determination; procedure. ...

(3) In making a determination [whether an individual is a sexually violent predator], the court shall consider: (i) Any evidence that the court considers appropriate to the determination of whether the individual is a sexually violent predator, including the presentencing investigation and sexually violent offender’s inmate record; (ii) Any evidence introduced by the individual