Cite as 2024 Ark. App. 407



## ARKANSAS COURT OF APPEALS

DIVISION I V No. CV - 22 - 597

ARKANSAS DEPARTMENT OF CORRECTIONS SEX OFFE NDER ASSESSMENT COMMITTEE APPELLANT

V.

TERRY W. HASTINGS APPELLEE Opinion Delivered September 4, 2024 APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO. 60CV

- 19 - 8241 ]

HONORABLE HERBERT T. WRIGHT , JR., JUDGE REVERSED

CINDY GRACE THYER , Judge This appeal concerns the community - notification level assigned to appellee Terry Hastings pursuant to the Sex Offender Registration Act of 1997

. Appellant Arkansas Department of Corrections Sex Offender Assessment Committee ( the “ Committee ” ) appeal s the order entered by the Pulaski County C ircuit C ourt re vers ing the agency decision setting notification at Level 3. The Committee contends that the Level 3 assessment was supported by substantial evidence and should be affirmed . We agree and affirm the agency ’ s decision and revers e the circuit court ’ s order. I. Background and Procedural History The purpose of the Sex Offender Registration Act of 1997 is to release certain information about sex offenders to the public in order to protect the public safety. Ark. Code2

Ann. § 12 - 12 - 902 (Repl. 2016)

. To advance th is effort, the A ct directed the Committee to promulgate guidelines and procedures for the disclosure of relevant and necessary information regarding sex offenders to the public. These guidelines and procedures set forth the extent of information to be made public, depending on the offender ’ s level of dangerousness and pattern of offending behavior and the extent to which the information will enhance public safety. Id

. F or the purpose of determining the most appropriate level of community notification, an individual ized community - notification assessment is conducted

on each sex offender required to register in Arkansas. Ark. Code Ann. § 12 - 12 - 917 (Supp. 2023)

. These assessments may include , but are not limited to, a review of the offender ’ s criminal history , the assessor ’ s interview of the sex offender , a review of available mental health or treatment records that may be relevant to the offender ’ s risk to the community, psychological testing when deemed necessary , comp letion of appropriate actuarial
instrume nts designed to assess convicted sex offenders, and any other information that is relevant to the offender ’ s offense history and/or pattern of behavior. 004.00

. 3 - 12 Ark. Admin. Code (WL current through Ma y 15, 2024). After completing the assessment process, each offender is assigned a community - notification level of “1 (low) through 4 (high), compatible with the public ’ s need to know about the sex offender depending on the severity of the risk to the public. ” Dillard v. Sex Offender Assessment Comm

. , 2016 Ark. App. 147, at 3

– 4, 485 S.W.3d 701, 703. Relevant to this appeal, the community - notification levels are des cribed as follows:3

 Level 2: Typically offenders in this category have a history of sexual offending where notification inside the home is in sufficient. Community notification requires notice to the offender ’ s known victim preference and those likely to come into contact with the offender.

 Level 3: Typically offenders in this category have a history of repeat sexual offending, and/or strong an tisocial, violent or predatory personality characteristics. These are individuals whose offense and criminal history require notification throughout the community. 004.00.3 - 22 Ark. Admin. Code (WL current through Ma y 15, 2024). Hastings was required to register as a sex offender following his 2018 no - contest plea to four counts of third - degree sexual assault against female inmates in the Independence County Detention Center. 1 H e was assessed by the Sex Offender Community Notification Assessment Unit (SOC NA) and was assigned Level 3 for community - notification purposes. The Committee upheld this assessment on administrative review. At the time of the sexual - assault offenses, Hastings was in his late forties and was employed as the supervisor of the Independ ence County Recycling Center. Each of the
inmate victims had been assigned to work at the recycling center under Hastings ’ s supervision. In 2017, one of these inmates, KM, a twenty - eight - year - old woman, told jail

1 These crimes required proof that Hastings engaged in sexual intercourse or deviate sexual activity with another person who was not his spouse and that Hastings was “[ e]mployed or contracted with or otherwise providing services, supplies, or supervision to an agency maintaining custody of inmates, detaine es, or juveniles, and the victim [was] in the custody of . . . any city or county jail[.] ” Ark

. Code Ann

. § 5 - 14 - 126(a)(1)(B) (Repl. 2013). C onsent by the victim is no defense to a prosecution for the offense of third - degree sexual assault. Ark. Code Ann. § 5 - 14 - 126(b).4

officials that Hastings had sexually assaul ted her on several occasions wh en she work ed at the recycling center

. She reported that while riding in the “ trash truck, ” Hastings “ would take her to a secluded area, pull her pants down, begin by digitally penetrating her anus and her vagina, and then perform oral sex on her ” when she “ didn ’ t want him to. ” She said that Hastin gs gave her razors and shaving cream that he kept under the seat of his truck , and he made her use a bathroom at the recycling center or at the “ city yard ” to groom her pubic hair before perform ing oral sex on her. He also bought her food, sodas, and tobac co , and he promised that if she worked hard and did a good job for him, she would “ be okay ” and would “ get out on [her] review. ” KM believed that this was Hastings ’ s way of showing her that he could easily get her removed from community - service duty , and b ecause of th at , she was afraid to say no to his sexual demands. Log sheets from the recycling center confirmed that KM had ridden with Hastings on ten separate days during the months of August and September 2017. And during a search of Hastings ’ s c ounty - is sued truck, investigators found several items, including a can of women ’ s shave gel, a razor, a bottle of men ’ s sexual - health pills, and a padlock and key labeled “ bathroom. ” Another former inmate, SW, told authorities that when she worked at the recyclin g center, Hastings “ made sexual advances towards her and that she felt like she could not say

no. ” She stated that Hastings “ felt her up, ” sucked her breasts, and tried to perform oral sex on her , and he “ was very persistent and kept trying over and over. ” S he , too , reported that Hastings bought her food, sodas, and tobacco . She believed that she was expected to do5

sexual favors for Hastings and that she had no choice “ because she was an inmate and [Hastings] was the boss .” A third inmate, nineteen - year - old KW, reported that on two occasions when she

w orked at the recycling center, Hastings touched her vagina “ with his mouth and also penetrated her vagina with his fingers[.] ” S he s aid that Hastings “ made her feel like he had to do th ose things to her because he bought her food, sodas, and tobacco and when you ’ re in jail you don ’ t get anything. ” She explained that Hastings “ made her feel guilty because he had bought stuff for her. ” Like KM, she , too , reported that Hastings had given he r razors and shaving cream to groom her pubic hair. In his assessment interview, Hastings admitted having engaged in sexual contact with three additional female inmates over the course of his eighteen years of employment with the recycling center. He said that these additional incidents had gone “ undetected. ” He claimed that he “ did not know it was against the law to have sexual contact ” with female
inmates under his supervision , although “ he knew it was wrong because he was married. ” H e “ never believed he was abusing anyone in regards to the position he held

. ” In his mind, the female inmates “ made sexual advances toward him

. ” He said that it was “ typical ” for the female inmates to “ show skin ” and “ be provocative ” and claimed that he “ gave in ” to their advances because he was “ too nice. ” He acknowledged that “ it appeared there was a pattern ” of sexual contact but maintained that he had been “ set up ” by the female inmates. SOCNA set the community

- notification recommendation at Level 3.6

Hastings t imely requested an administrative review from the Committee, asserting that (1) substantial evidence did not support the Level 3 assessment ; (2) SOCNA staff did not properly follow rules and procedures because there was no psychological testing and no

actu arial analysis ; and (3) the statutory residency restrictions placed on Level 3 and Level 4 offenders are unconstitutional. As part of its administrative review, the Committee reviewed, among other things, the following items: ( 1 ) the entire SOCNA file ; ( 2 ) a recording of Hastings ’ s assessment interview ; ( 3 ) actuarial results ; and ( 4 ) the prosecutor ’ s file and other documents relating to Hastings ’ s 2018 sexual - assault convictions. The Committee voted to uphold the Level 3 assessment, finding as follows: As a n initial matter, Petitioner fails to put forth any evidence that SOCNA failed to properly follow the rules and procedures in reaching a decision on the appropriate level of community notification, and the undersigned finds none herein. The record includes actuarial analysis results from the Vermont Assessment of Sex

- Offender Risk (VASOR) and the STATIC - 99R. Also included in the record is correspondence from SOCNA to Petitioner ’ s attorney dated November 13, 2018, which acknowledges receipt of this request f or review and identifies copies of these instrument results as being enclosed with copies of the offender Fact Sheet, Assessment Report, disclosure form, Interview Summary, Appointment Letter, Personal History Questionnaire (PHQ), Incomplete Sentences F orm , Information Request Log, List of Documents, Community Notification Level Letter, and DVD of the interview. As Petitioner correctly states, the actuarial instruments are merely one component of the assessment process, and the Guidelines do not mandate an automatic departure with the existence of any factor or combination of factors. The entire Assessment Report is the conclusory statement on Petitioner ’ s threat to the community and the need for broader notification than the Level 2 designation he suggests. In any event substantial evidence supports the Level 3 assessment. Petitioner used his position of trust and authority to offend on especially vulnerable victims. All of the victims reported feelings of powerlessness and obligation due to their detainee status and having received the food and tobacco he used7

to facilitate his offending. The victims ’ descriptions of events are verified not only during the investigation but also by Petitioner, himself. During his SOCNA interview, Petitioner disclosed having engaged in sexual contact with at least three other female detainees under his supervision. He reported that these encounters went undetected and began as far back as fifteen years before the index offense. Petitioner ’ s assertion that he had no contact wi th two detainees who had exposed themselves to him is highly improbable based on his failure to report these events. This falls in line with his belief that he does not have a problem with his sexual behavior. Accordingly, because Petitioner has multiple v ictims and multiple offenses committed over a span of years, has strong antisocial and predatory personality characteristics, does not believe he has a problem with his sexual behavior, and has yet to participate in sex offender treatment, the Level 3 Comm unity Notification Level assessment should be upheld. Hastings timely sought judicial review o f the Committee ’ s decision. On July 26, 2022, after reviewing the record and the parties ’ briefs, the circuit court revers ed the Committee ’ s decision on the basis that “ the administrative record does not contain substantial evidence to support [Hastings ’ s] classification at Level 3. ” The Committee appeal ed to this court from the circuit court ’ s July 26, 2022 order.
II. Standard of Review T his appeal is governed by the Administrative Procedure Act (APA)

. Brown v. Sex Offender Assessment Comm

. , 2014 Ark. App. 236, at 2. Judicial r eview of administrative - agency decisions under the APA is limited in scope. Id

. A n agency decision may be reversed if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of8

record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Ark. Code Ann. § 25 - 15 - 212(h) (Supp. 2021)

. Our review is directed not toward the circuit court but toward the decision of the agency and is limited to determining whether any substantial evidence
support s the agency decision or whether the agency decision runs afoul of one of the other
criteria set out in section 25 - 15 - 212

. Sex Offender Assessment Comm

. v. Sera , 2023 Ark. App. 239, at 5

– 6 , 666 S.W. 3 d 862 , 8 65

. The burden of prov ing an absence of substantial evidence is on the challenging party and requires a demonstration that the proof before the administrative agency was so nearly undisputed that fair - minded persons could not reach its conclusion. Bolding v. Ark. Pub

. Emp

. Ret

. Sys

. , 2022 Ark. App. 275, at 6, 646 S.W.3d 696, 700. In reviewing the administrative record , we give the evidence the strongest probative force in favor of the agency’s ruling. Sex Offender Assessment Comm

. v. Cochran , 2019 Ark. App. 396, at 7, 587 S.W.3d 562, 566. The question is not whether the evidence would have supported a contrary finding but whether it would s upport the finding made. Id

. Witness credibility and the weight of the evidence are within the agency ’ s discretion, and it is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord to that evidence. Brown , 20 14 Ark. App. 236, at 3. Once substantial evidence is found, it automatically follows that a n agency decision cannot be classified as unreasonable or arbitrary. Sera , 2023 Ark. App. 239, at 6, 666 S.W.3d at 865. III. Discussion9

The question we must answer in this appeal is whether there is any “ relevant evidence that a reasonable mind might accept as adequate to support ” the Committee ’ s decision. Mid

S

. R .R. Builders, Inc. v. Ark

. Contractor s Licensing Bd. , 328 Ark. 630, 633, 946 S.W.2d 649, 651 (1997). Has tings argues that , even if we disagree with the circuit court ’ s basis for revers al

— that is, that Level 3 assessment is not supported by substantial evidence

— we may affirm the
circuit court ’ s order for any reason supported by the record. We disagree. Again, our review
is limited to the decision of the agency and not the circuit court. Cochran , 2019 Ark. App. 396, at 9, 587 S.W.3d at 567 . We will not address issues on which the agency made no ruling. S ee Hanks v. Sneed , 366 Ark. 371, 381

– 82, 235 S.W.3d 883, 890 (2006) (holding that where the agency made no specific ruling on issues, the court will not address the points on appeal) ; s ee also Ark. Contractors Licensing Bd. v. Pegasus Renovation Co. , 347 Ark. 320, 330 n.1, 64 S.W.3d 241, 247 n.1 (2001) (holding that constitutional argument was not preserved when appellee “ did not get a ruling on it from the Board, ” noting , too , that “ the circuit court specifically declined to rule on the [constitutional] issue ”)

. Here, t he Committee made t wo rul ings: (1) SOCNA properly followed the rules and procedures in determining the appropriate level of community notification; and (2) substantial evidence supported the Level 3 assessment. Having review ed this appeal under the proper standards , we are satisfied that the agency followed its procedures and correctly assessed Hastings at Level 3 for community

- notification purposes

. 2

2 W e need not consider Hastings ’ s a dditional arguments that the residency restrictions set out in Ark ansas Code Ann otated section 5 - 14 - 128 are unconstitutional and that the10

We agree that the agency properly followed its rules and procedures in determining the appropriate level of communi ty notification for Hastings. Contrary to Hastings’s
argument , p sychological testing is not a required component of every communitynotification assessment. See 004.00.3 - 12 Ark. Admin. Code (providing that communitynotification assessments may include “[ p]sychological testing when deemed necessary by SOCNA p sychologists ”) ; s ee also Sera , 2023 Ark. App. 239, at 7, 666 S.W.3d at 886 (rejecting unlawful - procedure argument alleging that the assessment committee failed to conduct its own psychologi cal evaluation and holding that substantial evidence supported Level 4 assessment). Further, the administrative record shows that the agency complied with its own established actuarial - determination process in assessing Hastings’s “risk” score (based on both the VASOR and the STATIC - 99 scores). A ctuarial scores placing Hastings in the “ Low ” risk category did not preclude a Level 3 commu nity - notification assessment. “ There is no set correlation between [actuarial scores] and the assessment level; instead, it is merely a tool for evaluation, and the Committee is free to believe or disbelieve any witness, evidence, or testimony. ” Brown , 201 4 Ark. App. 236, at 4; see also 004.00.3 - 23 Ark. Admin. Code (WL current through Ma y 15, 2024) (actuarial tools used during the assessment are only one component of a community - notification assessment and do not preclude an increased

Committee ’ s assessment procedure fails to provide a meaningful opportunity to be heard in violation of his due - process rights because Hastings failed to obtain rulings on the se issues
. See Pegasus , 347 Ark. at 330 n.1, 64 S.W.3d at 247 n.1

.11

community

- notification level); 004.00.3 - 24 Ark. Admin. Code (WL current through Ma y 15, 2024) (providing list of nonexclusive considerations for increased community notification). We also agree that t he Level 3 assessment is supported by more than substantial

e vidence of both Hastings ’ s history of repeat sexual offending and his predatory personality characteristics

. The law governing sex - offender registration defines predatory as “ an act directed at a stranger or a person with whom a relationship has been established or promot ed for the primary purpose of victimization of that person or individuals over whom that person has control .” Ark. Code Ann. § 12 - 12 - 903(9) (Supp. 2023) . The administrative record contains accounts by m ultiple female jail inmates who reported that Hastings , on numerous occasions, engaged in sexual contact with them while they were working under his supervision at the recycling center. For this conduct, Hastings was convicted o f four separate counts of third - degree sexual assault. I n his assessment interview , Hastings admitted that he had engaged in (undetected) sexual contact with at least three other female jail inmates from as far back as fifteen years before his crimes of conviction. He also insisted that he had been “ set
up ” by his victims and refused to believe that his sexual conduct was problematic

. As the Committee found, t he nature and circumstances of the offenses

— both convicted and undetected

— demonstrate that Hastings repeatedly “ used his position of trust and authority to offend on espec ially vulnerable victims. ” Giving the evidence its strongest probative force in favor of the Committee ’ s decision, we hold that substantial evidence supports the Level 3 community

- notification assessment . It automatically follows that the Committee’s decision12

cannot be classified as unreasonable or arbitrary. See Sera , 2023 Ark. App. 239, at 6, 666 S.W.3d at 865. T he circuit court’s order is reversed; the agency’s decision is affirmed. Reversed. H IXSON and M URPHY , JJ., agree. Tim Griff in , Att ’ y Gen., by: Nga Mahfouz , Sr. Ass ’ t Att ’ y Gen., for appell ant . Jeremy B. Lowrey , for appellee.