389
Argued and submitted May 21, 2019, affirmed July 8, petition for review denied
October 22, 2020 (367 Or 218)
In the Matter of A. L. M.,
a Youth.
STATE OF OREGON,
Respondent,
v.
A. L. M.,
Appellant.
Crook County Circuit Court
14JU02574; A166888
469 P3d 244
Youth was adjudicated delinquent in relation to two counts of attempted
first-degree sodomy, and the juvenile court ordered him to serve probation. Near
the end of his probationary term, youth requested to be relieved of the obligation to report as a sex offender, in accordance with ORS 163A.030. Under that
statute, youth had the burden to prove by clear and convincing evidence that he
was “rehabilitated and [did] not pose a threat to the safety of the public.” The
juvenile court denied youth’s request after an evidentiary hearing. On appeal,
youth argues that the record does not support the juvenile court’s decision.
Held: A reasonable juvenile court could conclude, on this record, that the evidence
did not demonstrate clearly and convincingly that youth was rehabilitated and
did not pose a public-safety threat. Accordingly, the court did not err when it
ordered youth to report as a sex offender.
Affirmed.
Daniel Joseph Ahern, Judge.
Christa Obold Eshleman argued the cause for appellant.
On the brief was Adrian T. Smith.
Jonathan N. Schildt, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
HADLOCK, J. pro tempore.
Affirmed.
390 State v. A. L. M.
HADLOCK, J. pro tempore
Youth was adjudicated delinquent in relation to two
counts of attempted first-degree sodomy, and the juvenile
court ordered him to serve probation. As the end of his probationary term approached, youth requested to be relieved
of the obligation to report as a sex offender, pursuant to
ORS 163A.030.1 Under that statute, youth had the burden
to prove by clear and convincing evidence that he was “rehabilitated and [did] not pose a threat to the safety of the public.” ORS 163A.030(7)(b). The juvenile court denied youth’s
request after an evidentiary hearing, explaining that youth
had not met his burden of persuasion. It therefore ordered
youth to report as a sex offender pursuant to ORS 163A.025.
On appeal, youth argues that the record does not support the
juvenile court’s decision, emphasizing his successful completion of both probation and sex-offender treatment. We disagree with youth’s contention that the record in this case does
not support the juvenile court’s decision. To the contrary, the
record permitted the court not to be persuaded, by clear and
convincing evidence, that youth was rehabilitated and did not
pose a public-safety threat. Accordingly, we affirm.
The sole question before us is whether the juvenile
court erred when it denied youth’s request to be relieved of
the obligation to report as a sex offender. Accordingly, we
describe only those aspects of the record that are pertinent
to the challenged decision. In doing so—and for reasons we
discuss later in this opinion—we describe the pertinent facts
consistently with the trial court’s factual findings, “reviewing for any evidence that supports those findings.” Husk v.
Adelman, 281 Or App 378, 383,
383 P3d 961 (2016). Where
the trial court has not made express findings, we describe
the evidence “consistently with the trial court’s implicit
findings in support of its conclusion.” State v. J. D. S.,
242
Or App 445, 448,
263 P3d 1017 (2011).
When youth was 15 years old, he sexually abused
two of his young relatives, then ages eight and 10. Youth and
1
Although the legislature has amended ORS 163A.030 and some of the
other pertinent statutes since the hearing in this case, those amendments do not
affect our analysis. Accordingly, all references are to the current versions of the
statutes.
Cite as 305 Or App 389 (2020) 391
the victims were staying at their grandparents’ house. Over
the course of three days, youth abused the victims repeatedly while the grandparents were in bed. Youth anally penetrated both victims, made them perform oral sex on him,
and made them touch his penis while he watched pornography. Youth bribed the victims by saying they could play
certain games and could smoke some of youth’s marijuana.
The abuse was physically painful to the victims, and youth
did not stop assaulting them when they asked him to. The
victims felt intimidated by youth in association with the
abuse.
In August 2014, the state filed a delinquency petition in juvenile court alleging that youth had committed
acts which, if done by an adult, would constitute multiple
counts of third-degree sodomy and attempted first-degree
sodomy. Before the petition was adjudicated, youth was
evaluated by a psychologist at his attorney’s request. The
psychologist reported that youth’s “behavior appears to have
been largely impulsive rather than a sexual preference,”
and concluded that youth did not qualify for a diagnosis of
pedophilia, although “one must rule out the possibility of
… paraphilia.” The psychologist reported that youth was
not antisocial, that his prognosis was positive, and that
he needed treatment, which could dramatically reduce his
recidivism risk.
Youth subsequently admitted to two counts of
attempted first-degree sodomy, one involving each of the victims, and the juvenile court adjudicated youth delinquent on
those two counts in early 2015. As part of its disposition, the
court placed youth on probation for 36 months, ordered him
to enter and successfully complete sex-offender treatment
with counselor Jeff Rex, and ordered him to take and pass
a “full disclosure polygraph and maintenance polygraphs
as directed by” Rex. Youth began treatment with Rex as
ordered.
In July 2015, youth took a polygraph that indicated
deception in relation to youth’s conduct toward the younger
of his two victims. At that point, youth had been in treatment
for five months, but he still was denying having sexually
392 State v. A. L. M.
abused that child. A few months later, another polygraph
examination reflected “full disclosure” by youth.
In November 2015, Rex reported that, “[a]lthough
[youth had] struggled at times with complete transparency
and work ethic,” he was “doing very well” at the time of the
report. Youth had passed “a full-disclosure polygraph” and
“an incident specific examination clarifying details regarding the adjudicated offenses.” He was also progressing well in
other areas and, as part of his treatment, had written “clarification letters” to the victims in which he apologized for
his behavior.2 Youth completed his sex-offender treatment in
2016. At that point, youth had completed all assignments and
benchmarks, including “being able to discuss [his offenses]
with … Rex and being able to document what had taken
place and the effects that it had on the victims of the case.”
In 2017, the county juvenile department notified
the court that youth’s probation would expire soon and that
youth “wishe[d] to address his registration requirements.”
A hearing was held in January 2018, and the parties submitted exhibits that included documentation of the victims’ reports of abuse, as well as youth’s 2014 psychological
examination and a 2016 discharge report from counselor
Rex. Youth called a single witness, his counselor with the
county juvenile department (Scott Grasle), who testified
that youth had met the requirements of his probation, had
successfully completed sex-offender treatment, and had paid
restitution.
Grasle also testified that youth had not been
charged with any additional offenses or probation violations. However, during an April 2016 polygraph examination, youth disclosed that he had once smoked marijuana,
which was unlawful. Youth agreed to submit to urinalyses
so Grasle could monitor his performance. An early urinalysis showed a low level of THC, but a later urinalysis “tested
2
Youth’s juvenile-department counselor, Grasle, felt that youth took responsibility for his conduct in those letters. However, the victims’ mother viewed the
letters as “very generic” and felt “it was obvious that [youth] was only writing
them because he had to for probation.” She had not let the victims read the letters
because she “felt like it would have been a slap in the face to them to even read
what he wrote.”
Cite as 305 Or App 389 (2020) 393
clean,” and Grasle testified that “that was pretty much
where it was left as far as marijuana use.” The indication
that youth had once used marijuana “wasn’t necessarily a
major concern” to Grasle and he did not consider it “indicative of something problematic.” However, months after
youth’s initial disclosure, Grasle “obtained a couple of [urinalyses] which did test positive for THC,” so he thought “it’s
always something that is potentially an issue.” Youth’s most
recent test before the January 2018 hearing was “clean.”3
Despite youth’s marijuana use, Grasle had no reservations
about his performance on probation. However, he declined
to give an opinion on whether youth should be required to
report as a sex offender because of the “long list of what
needs to be considered.”
The state also called one witness, the victims’
mother, who testified about how the abuse had affected
her children. Before the abuse occurred, the victims had
“idolized” youth, “wanted to be like him,” and “wanted to
hang out with him all the time.” Now, though, both victims
exhibit an “extreme amount of anger.” One of the victims
“lets everything build up … and then flies off the handle at
the smallest thing,” while the other boy has “more of just a
constant anger” that shows “in almost everything he does.”
In making their closing arguments to the juvenile
court, both parties acknowledged that the juvenile court’s
decision about whether to relieve youth of his reporting
requirement would involve consideration of many factors,
including those listed in ORS 163A.030(8). Broadly speaking,
that statute identifies considerations related to the nature
and circumstances of the youth’s acts, the effect of those
acts on the victims, the youth’s performance on supervision
and in treatment, other characteristics of the youth and the
victims, and the “protection afforded the public by records
3
Grasle also testified that youth had not successfully passed a math test
that was necessary for youth to complete his GED; despite certain challenges
youth faced in that regard, Grasle felt that youth could have passed the test if he
was “really working on it.” However, when the juvenile court explained its decision not to relieve youth of the sex-offender reporting requirement, it emphasized
that it was “not relying [on the] educational issue” in making that ruling because
“[t]he fact that [youth] can’t pass a GED math test has nothing to do with [the
court’s] decision whether [youth is] a risk to the community or not.”
394 State v. A. L. M.
of sex offender registration.” 4 The statute also expressly
authorizes the juvenile court to consider “[a]ny other relevant factors.” ORS 163A.030(8)(s). Youth acknowledged that
4
ORS 163A.030(8) provides:
“In determining whether the person has met the burden of proof, the
juvenile court may consider but need not be limited to considering:
“(a) The extent and impact of any physical or emotional injury to the
victim;
“(b) The nature of the act that subjected the person to the duty of reporting as a sex offender;
“(c) Whether the person used or threatened to use force in committing
the act;
“(d) Whether the act was premeditated;
“(e) Whether the person took advantage of a position of authority or trust
in committing the act;
“(f) The age of any victim at the time of the act, the age difference
between any victim and the person and the number of victims;
“(g) The vulnerability of the victim;
“(h) Other acts committed by the person that would be crimes if committed by an adult and criminal activities engaged in by the person before and
after the adjudication;
“(i) Statements, documents and recommendations by or on behalf of the
victim or the parents of the victim;
“(j) The person’s willingness to accept personal responsibility for the act
and personal accountability for the consequences of the act;
“(k) The person’s ability and efforts to pay the victim’s expenses for counseling and other trauma-related expenses or other efforts to mitigate the
effects of the act;
“(l) Whether the person has participated in and satisfactorily completed
a sex offender treatment program or any other intervention, and if so the
juvenile court may also consider:
“(A) The availability, duration and extent of the treatment activities;
“(B) Reports and recommendations from the providers of the treatment;
“(C) The person’s compliance with court, board or supervision requirements regarding treatment; and
“(D) The quality and thoroughness of the treatment program;
“(m) The person’s academic and employment history;
“(n) The person’s use of drugs or alcohol before and after the adjudication;
“(o) The person’s history of public or private indecency;
“(p) The person’s compliance with and success in completing the terms of
supervision;
“(q) The results of psychological examinations of the person;
“(r) The protection afforded the public by records of sex offender registration; and
“(s) Any other relevant factors.”
Cite as 305 Or App 389 (2020) 395
some of the statutory factors “weigh in favor of registration,”
but he characterized those factors as centering “around the
original events, the circumstances, the youth, the age, the
gender” and being “from early on.” Youth argued that consideration of the factors related to the progress he had made
in the years following the abuse weighed “more heavily” and
should lead the court “to find by clear and convincing evidence that [youth] is rehabilitated and that he does not pose
a danger to society and that he not be required to register.”5
The state emphasized several factors in arguing to
the contrary: the young ages of the victims; that the abuse
happened repeatedly, at separate times over the course of a
weekend; the nature of youth’s conduct; and how physically
painful youth’s abusive acts had been for the victims. The
state also pointed out that youth had acted illegally in using
marijuana.
In announcing its ruling, the juvenile court expressly
recognized youth for having done well on probation and for
having successfully completed community-based treatment.
The juvenile court then explained its remaining concerns,
which focused on the nature and circumstances of youth’s
sexual assault of the victims. The court noted that the abuse
was not “an isolated incident,” but “occurred over three
days.” Moreover, youth’s acts were not the type of conduct
“that could be confused as to what’s horseplay and what’s
inappropriate behavior.” To the contrary, the court found
that the state had been accurate when, in closing argument,
it described the evidence of youth’s conduct as including
forcible anal sex, oral sex, intimidation, forced masturbation, and pornography. The court also focused on the age difference between youth and the victims, that youth had been
entrusted with their care, and that the victims were vulnerable in that situation and because of their young ages and
their family relationship to youth. Finally, the court also
took into account youth’s marijuana use, given the court’s
understanding that youth had used marijuana “as an offer
5
We note that the pertinent statutes refer expressly to a reporting requirement, not to a registration requirement. ORS 163A.025(1)(a); ORS 163A.030(1), (7).
The parties and the juvenile court sometimes referred to the requirement relating to “registration,” but neither party attributes any significance to that discrepancy, and it does not affect our analysis on appeal.
396 State v. A. L. M.
or an incentive at the time of this abuse.” The court was concerned that, when youth used drugs or thought about using
drugs, he did that in connection “with things that aren’t
necessarily healthy.” The court concluded by stating that
youth had not “convince[d it] by clear and convincing evidence that the requirement of registering as a sex offender
should be eliminated in [youth’s] case.” The court therefore
ordered that youth “register as a sex offender pursuant to
ORS 163A.025.”
On appeal, youth argues that the juvenile court
erred “when it found that youth had failed to prove by clear
and convincing evidence that he was ‘rehabilitated and [did]
not pose a threat to the safety of the public’ as ORS 163A.030
requires, and required him to register as a sex offender.”
Youth’s argument has two parts. First, youth focuses on our
standard of review, asserting that we review for legal error
the trial court’s ruling that youth failed to meet his burden of proving that he is rehabilitated and does not pose
a public-safety threat. In that regard, youth relies on our
decision in Patterson v. Foote, 226 Or App 104,
204 P3d 97
(2009), which we discuss below. Second, youth asserts that
the record includes ample evidence that he has been rehabilitated and does not pose a safety threat; he claims further
that “the state presented no evidence to the contrary.”
In response, the state takes on youth’s characterization of the standard of review on appeal:
“Although the state agrees that whether youth failed to
meet his ‘burden of proof’ is reviewed ‘as a matter of law,’
… the more precise question here is whether the evidence
in the record compelled the juvenile court to find that youth
had met his burden.”
Applying that standard, the state argues that the evidence
did not require the juvenile court to find itself persuaded
that youth had met his burden. Put differently, the state
argues that it was permissible for the juvenile court to find
itself unpersuaded that youth had met his burden, even if
another court might have reached a different conclusion,
given “the severity and characteristics” of youth’s offenses,
his victimization of vulnerable children, and his repeated
unlawful use of marijuana while on probation.
Cite as 305 Or App 389 (2020) 397
We begin our analysis by setting out the pertinent
statutory provisions and discussing the standards of review
we apply on appeal. When a youth has been found within
juvenile court jurisdiction for conduct that would constitute
a felony sex crime if committed by an adult, the juvenile
court must “hold a hearing on the issue of reporting as a sex
offender,” generally in the six-month period before juvenilecourt jurisdiction is terminated. ORS 163A.030(1)(a); see
ORS 163A.030(1)(b)(A) (timing). At that hearing, the youth
“has the burden of proving by clear and convincing evidence
that [the youth] is rehabilitated and does not pose a threat
to the safety of the public.” ORS 163A.030(7)(b). The juvenile
court may consider “[a]ny … relevant factors” in making
that decision, including those listed in ORS 163A.030(8). If
the trial court finds that the youth has not met the burden
of proving by clear and convincing evidence that the youth
is rehabilitated and does not pose a public-safety risk, “the
court shall enter an order requiring [the youth] to report as
a sex offender under ORS 163A.025.” ORS 163A.030(7).
Thus, ORS 163A.030 encompasses multiple legal
principles applicable here: (1) it describes the factual question
before the juvenile court in a hearing under that statute—
whether a youth is rehabilitated and does not pose a
public-safety threat; (2) it assigns the burden to the youth
to establish those facts by clear and convincing evidence;
(3) it specifies nonexclusive factors that the court may consider in making its decision; and (4) it specifies what the
juvenile court must do if the youth does not meet the youth’s
burden—the court must require the youth to report as a sex
offender.
Those different aspects of ORS 163A.030 also implicate different standards of review on appeal. We review for
legal error the juvenile court’s application of the law that the
statute announces, determining whether, as a matter of law,
the juvenile court erred when it determined (1) what facts it
had to decide, (2) which party bore the burden of persuading
the juvenile court regarding those facts, and what burden
of persuasion applied, (3) whether the court considered relevant factors, and (4) given the court’s factual findings, what
result the statute required.
398 State v. A. L. M.
But with respect to the juvenile court’s factual findings themselves, “our appellate function is limited to resolving whether there was sufficient evidence for the trial court,
sitting as the trier of fact, to have made the required findings ….” Husk, 281 Or App at 383 (emphasis in original)
(addressing a different statutory scheme that also put the
burden on one party to establish certain facts by clear and
convincing evidence). We do not substitute our judgment for
that of the juvenile court, deciding whether the evidence
would have satisfied us that youth was rehabilitated and
did not pose a public-safety threat. See
id. (“[B]ecause we
are not undertaking de novo review, we do not endeavor to
make our own findings of fact or to determine for ourselves
whether” a party met its burden of persuasion.). Rather, the
question is whether, based on the evidence in the record,
any reasonable juvenile court could have made the factual
findings that the court did in this case.
That standard of review—that we review the juvenile court’s factual findings only to determine whether evidence in the record supports them—applies even though the
burden on youth was high, viz., to establish rehabilitation
and lack of a public-safety threat by clear and convincing
evidence. See J. D. S., 242 Or App at 447-48 (in reviewing
trial court’s decision in an involuntary commitment case,
“we review the sufficiency of the evidence by viewing the
evidence in the light most favorable to the state to determine whether any rational trier of fact … could have found
appellant to be a danger to himself or others by clear and
convincing evidence”; the appellate court does “not reweigh
the evidence”). Cf. Husk,
281 Or App at 383 (“The clear and
convincing standard of proof simply refers to the degree
of certainty that must exist in the mind of the trial court
regarding its ultimate determination.” (Internal quotation
marks omitted.)).
And that standard—reviewing only to determine if
the record includes evidence supporting the juvenile court’s
factual findings—applies even though we are reviewing the
juvenile court’s finding that it was not persuaded that youth
met his burden of proof, rather than reviewing (as we more
frequently do) a trial court’s finding that it was persuaded
Cite as 305 Or App 389 (2020) 399
by a party’s evidence. See State v. Johnson,
335 Or 511, 523,
73 P3d 282 (2003) (explaining that an appellate court is
“bound by a trial court’s ‘finding’ that a party’s evidence is
not sufficiently persuasive” and is “equally bound by a trial
court’s acceptance or rejection of evidence”).
Thus, the juvenile court’s finding that it was not
persuaded by clear and convincing evidence that youth was
rehabilitated and did not pose a public-safety threat will
withstand appellate challenge “unless the evidence in the
case is such that the [juvenile] court as finder of fact could
decide [the] factual question in only” the other way. Id.; see
id. at 526 (reviewing trial court’s finding that a party had
not met its burden of proof to determine whether “the evidence was of such a character or of such weight that the trial
court was required to rule” in that party’s favor). That is,
we will disturb the juvenile court’s finding that it was not
persuaded that youth had met his burden of persuasion only
if the record would compel every reasonable juvenile court
to be persuaded that youth had met that burden. State v.
T. C.,
268 Or App 615, 621,
342 P3d 1112 (2015) (reviewing
to determine whether the evidence was such as to compel
the trial court to find that a party had met its burden of
proof). In reviewing the trial court’s decision, we view the
evidence “in the light most favorable to the juvenile court’s
determinations and assum[e] the correctness of that court’s
explicit factual findings if any evidence in the record supports them.” Dept. of Human Services v. T. J.,
302 Or App
531, 532-33 & n 2, 538,
462 P3d 315 (2020) (so stating in
appeal from juvenile-dependency proceeding in which the
court assumed, without deciding, that the petitioning party
bore the burden of proving certain facts by “clear and convincing” evidence).
Although the foregoing appellate principles are
well-settled, we discuss them here because youth does not
acknowledge that we review the trial court’s factual findings only to determine whether evidence in the record supports them. To the contrary, relying heavily on our decision
in Patterson, youth argues that we should determine, “as a
matter of law, whether the trial court correctly determined
that youth failed” to meet his burden of proof. (Emphasis
added.)
400 State v. A. L. M.
Youth’s reliance on Patterson is understandable
but, ultimately, misplaced. In Patterson, a person who had
been convicted of a misdemeanor sex offense petitioned to be
relieved from the duty to report as a sex offender, pursuant
to former ORS 181.820 (2007), renumbered as ORS 163A.120
(2015). Patterson, 226 Or App at 106. Under that statute,
if the trial court was “satisfied by clear and convincing
evidence that [a qualifying] petitioner [was] rehabilitated
and … [did] not pose a threat to the safety of the public,”
then the court was required to “enter an order relieving the
petitioner of the duty to report” as a sex offender. Former
ORS 181.820(3), renumbered as ORS 163A.120(3) (2015). In
Patterson, the petitioner had completed probation 10 years
before seeking relief from the reporting obligation, and he
submitted uncontradicted evidence that he had successfully
completed sex-offender treatment, that he was remorseful,
and that he “was leading a law-abiding and socially constructive life.”
226 Or App at 115. Moreover, the petitioner’s treating psychologist asserted that the petitioner was
“in the lowest risk group” of convicted sex offenders, that
he did not represent a danger to public safety, and “that his
recidivism risk [was] virtually nil, being less than one percent.”
Id. at 108. Nonetheless, the trial court concluded that
the petitioner had not met his burden of proving that he
was rehabilitated and not a safety threat, given the court’s
concern that the psychologist “[gave] any percentage of the
possibility of reoffending, even if it’s less than one percent.”
Id.
We reversed, holding that the trial court had misconstrued what the petitioner had to prove to meet his burden. Specifically, we rejected the idea that a petitioner can
prove that he or she is “rehabilitated” only by establishing,
as the trial court had suggested, “that he or she is now absolutely free of any risk—however small—of future error.”
Id. at 113 (emphasis in original). Put differently, we rejected
the idea—urged by the state in that case—that the statute
required the petitioner to supply “an absolute guarantee of
future perfection.”
Id. Rather, we held, the statute required
the petitioner “to demonstrate by clear and convincing
evidence” that, as a result of successfully completing services that were “designed to ameliorate his or her previous
Cite as
305 Or App 389 (2020) 401
behavioral and psychological patterns and to prevent a
recurrence of unlawful conduct,” the petitioner “does not
present a threat, that is, he or she is not likely to reoffend.”
Id. at 114-15. Applying that legal standard to the evidence
in Patterson, we observed that the evidence of the petitioner’s successful completion of sex-offender treatment and his
extremely low recidivism risk was uncontroverted, that is,
“there [was] a complete absence of evidence to the contrary,
either factual or in the form of an opinion.” Id. at 115. The
record included a letter from the petitioner’s victim, who
addressed how she had been affected by the petitioner’s
crime, but that letter “provided no information pertinent to
the ultimate criteria for obtaining relief, viz., that the petitioner is rehabilitated and does not pose a threat to public safety.” Id. Given those circumstances, we held that the
trial court had erred in determining that the petitioner had
not met his burden of proving the prerequisites to obtaining
relief from the reporting requirement. Id.
If that is all that Patterson said, we would easily
read it—including the standard of review it applied to the
trial court’s decision—in keeping with the principles discussed earlier in this opinion. Given the compelling evidence
of the Patterson petitioner’s rehabilitation and “virtually
nil” recidivism risk, and the “complete absence” of any evidence to the contrary, id., we would readily view Patterson
as being one of those rare cases in which the evidentiary
record would compel every reasonable trial court to find that
the petitioner had met his burden of persuasion.
But the opinion in Patterson is more complicated
than we have yet described. In reaching our conclusion in
that case, we interpreted former ORS 181.820 (2007) as
establishing a standard of review dramatically different
from the standard we have discussed in this case—a standard that more closely (albeit implicitly) resembles de novo
review of the facts. We found that standard embodied in
the terms of former ORS 181.820 (2007), specifically in two
aspects of the statute: (1) that it required the petitioner to
prove his case by clear and convincing evidence, and (2) that
it required the court to grant relief if the petitioner met
that burden. See id. at 110. “Taken together, those aspects
402 State v. A. L. M.
of [former] ORS 181.820 [(2007)] suggest[ed] to us that, on
review of the trial court’s order, we determine as a matter
of law whether, on this record, the trial court reached the
correct result.” Id. (emphases added).
That part of Patterson suggests that—unlike in
other circumstances where we acknowledge that an evidentiary record might support a range of permissible factual findings, and we review only to determine whether the
evidence would allow any reasonable trial court to make
the findings that were made—former ORS 181.820 (2007)
allowed for only one “correct answer” to flow from a given
evidentiary record, and we reviewed to determine whether
the trial court made that “correct” factual finding. Put differently, we decided whether the petitioner had met his burden of proof—an undertaking that we generally would characterize as exercising de novo review.
For at least three reasons, we decline to follow that
aspect of Patterson here. First, because Patterson involved
a statute different from the one at issue in this case, any
statutory construction announced in that opinion does not
bind our construction of ORS 163A.030, even though the two
statutes have similarities. Former ORS 181.820 (2007) is
not a direct predecessor to ORS 163A.0306 and former ORS
181.820 (2007) and ORS 163A.030 differ in material ways.7
Our discussion of the standard of review in Patterson therefore does not bind us here, as it would if we were addressing
6
Former ORS 181.820 (2007) set out a process that allowed a convicted sex
offender to seek relief from reporting requirements when 10 years had passed
after termination of the offender’s supervision on probation, conditional release,
parole, or post-prison supervision. It did not relate, as does ORS 163A.030, to
allowing youth offenders to seek relief from reporting requirements immediately
upon the termination of juvenile court jurisdiction. Former ORS 181.820 (2007)
has since been renumbered ORS 163A.120(3).
7
For example, former ORS 181.820 (2007) stated only that a trial court was
required to grant relief when it “was satisfied by clear and convincing evidence”
that the petitioner had rehabilitated and was not a threat; it did not explicitly
assign a burden of persuasion to either party. When the legislature enacted ORS
163A.030(7)(b), it chose to expressly assign that burden to the person seeking
relief from the reporting requirement. In addition, the list of factors the legislature contemplates a court will consider in making a decision under ORS 163A.030
is much broader than the factors that were identified as pertinent to a decision
under former ORS 181.820 (2007), suggesting more room for differing—yet still
permissible—findings about a youth’s rehabilitation.
Cite as 305 Or App 389 (2020) 403
the same statute at issue in that case. Cf. State v. Civil,
283
Or App 395, 405-06,
388 P3d 1185 (2017) (explaining that
we will overrule our own prior construction of a statute only
when it is “plainly wrong”).
Second, although we discussed the standard of
review in some detail in Patterson, that discussion ultimately was unnecessary to our decision. As explained above,
given the compelling and one-sided evidentiary record in
Patterson, the opinion can be understood to hold that no
reasonable trial court could find that the petitioner had not
met his burden of proof. Because the evidentiary record in
Patterson could not support a case-specific finding that the
petitioner had not met his burden of proof, we had no need
to go further and explore whether there is only one “correct
answer” in all sex-offender-reporting cases. Put differently,
we had no need to depart from our ordinary standards of
review in Patterson to determine that the evidentiary record
did not support the trial court’s finding.
Third, we find Patterson’s discussion of the standard
of review under former ORS 181.820 (2007) to be idiosyncratic. It is not unusual for a statute to impose a “clear and
convincing” standard of proof; nor is it unusual for a statute to require a trial court to take certain action if a party
meets (or does not meet) its burden of proving certain facts
by that “clear and convincing” standard. And—as explained
above, and leaving Patterson aside—we have consistently
viewed our task under such statutes as reviewing trial
courts’ factual findings to determine whether evidence in
the record supports them—we do not deem there to be only
a single “correct” finding and then determine, as a matter of
law, whether the trial court made that required finding. See,
e.g., Husk, 281 Or App at 381-84 (in determining whether a
party met its burden of proving a certain matter by clear
and convincing evidence—successful proof of which would
require the trial court to grant relief to that party—“our
appellate function [was] limited to resolving whether there
was sufficient evidence for the trial court, sitting as the trier
of fact, to have made the required findings and determination” (emphasis in original)). It is not entirely clear why
we nonetheless interpreted former ORS 181.820 (2007) to
require a different standard of review, and we decline to
404 State v. A. L. M.
extend Patterson’s announcement of that standard beyond
the context of the statute at issue in that case.
We therefore apply our ordinary standard of review
to the juvenile court’s decision under ORS 163A.030, determining whether the juvenile court’s factual findings are
supported by evidence in the record. That is, we ask whether
any reasonable juvenile court could have found itself unpersuaded, on this record, that youth had established by clear
and convincing evidence that he was rehabilitated and did
not pose a public safety threat.
So framed, we answer the question affirmatively.
ORS 163A.030 specifically authorizes a juvenile court to
consider the character of a youth’s sexual offenses and the
vulnerability of the youth’s victims when deciding whether
the court is persuaded, by clear and convincing evidence,
that the youth is rehabilitated and no longer presents a
threat. Here, the juvenile court did just that, acknowledging
youth’s successful completion of probation and sex-offender
treatment, but finding that youth had repeatedly sodomized his very young and vulnerable victims, that youth had
taken advantage of the difference between his age and their
ages, and that youth had taken advantage of the position of
authority or trust he had been given over the children. The
court also found that youth uses drugs “in connection with
things that aren’t necessarily healthy,” noting the evidence
that he offered marijuana to his victims in conjunction
with abusing them. Based on that, the court was concerned
by youth’s repeated use of marijuana while on probation.
Finally, the court observed that it could have “no idea” how
youth would do once he was “off supervision,” given that—
up to the point of the hearing—youth had “been monitored
fairly closely” since the abuse occurred.
The record in this case supports each of those findings. This is not a case, like Patterson, where there was both
compelling evidence of rehabilitation (there, a psychologist’s
opinion that the petitioner posed a “virtually nil” risk of
recidivism) and “a complete absence of evidence” suggesting
a lack of rehabilitation. 226 Or App 104. Given the evidence
before the juvenile court, we cannot say that no court could
find itself unpersuaded that youth was rehabilitated and no
Cite as
305 Or App 389 (2020) 405
longer presented a threat to public safety (even though other
juvenile courts might have found, on the same record, that
youth had been rehabilitated). To the contrary, a reasonable juvenile court could determine—as this one did—that
the evidence did not demonstrate clearly and convincingly
that youth was unlikely to reoffend, given the severity of his
repeated sexual offenses against very young and vulnerable
victims, his continued unlawful use of a drug that he had
utilized in association with those offenses, and the fact that
no evidence yet existed of how youth would perform when he
no longer was being supervised.8 Accordingly, the juvenile
court did not err when it ordered youth to report as a sex
offender pursuant to ORS 163A.025.
Affirmed.
8
We note that this is not a case, like Patterson, in which the issue was
whether (under a different statute) to relieve a person from sex-offender reporting requirements once 10 years had passed after the person completed the probationary sentence that he had received in association with his conviction for
a single misdemeanor sex crime. 226 Or App at 106. The question before the
trial court here was very different: whether a youth who committed acts that
would constitute felony sex crimes if committed by an adult should be relieved
of sex-offender reporting requirements immediately upon the termination of his
probation. We also note that youth may have future opportunities to seek relief
from the reporting requirement. See generally ORS 163A.130(1), (2)(a) (setting out
process for a person who was required to report as a sex offender for conduct that
would constitute a Class A or Class B felony sex crime if committed by an adult
to seek relief from the reporting requirement “no sooner than two years after the
termination of juvenile court jurisdiction over the person”).
