Criminal Law:

Bethany M. Whitmarsh, LeClairRyan Providence, R.I.
Experienced litigator represented clients in a wide range of financial service and real estate litigation.

Rockingham, No. 2017-0403, September 18, 2018

Reversed and remanded.

  • Whether the trial court properly denied petitioner’s request to be relieved of the obligation to register as a sex offender in New Hampshire.

In 1985, Petitioner was convicted of two counts of indecent assault and battery of an eight-year-old girl in Massachusetts. Petitioner served three years in prison before being paroled and during his parole, he successfully completed a sex offender treatment program. Petitioner subsequently moved to New Hampshire and he became subject to lifetime registration as a sex offender for his Massachusetts convictions; he later was classified as a Tier III offender.

As a Tier II offender whose convictions pre-dated the establishment of the sex-offender registry, Petitioner could only be subject to the registration requirement if he was afforded the opportunity for a hearing at which he could present argument demonstrating that he did not pose a risk sufficient to justify continued registration. This process’s requirements are set forth in RSA 651-B:6, which allows an offender who has completed all terms and conditions of his or her sentence to file a petition to be relieved of the registration requirements and to have a hearing. Such petition must be accompanied by a risk assessment by a qualified psychiatrist or psychologist indicating that the petitioner is no longer a danger or poses a risk sufficient to justify continued registration.

Petitioner filed a petition to be relieved of the registration requirements and presented a risk assessment. In considering the risk assessment, which had two components, the trial court concluded that the results were problematic and that Petitioner failed to carry his burden to demonstrate that he was no longer a danger to the public and no longer posed a risk sufficient to justify continued registration. The trial court denied the petition and Petitioner appealed.

The court reviewed the decision to deny the Petitioner’s request pursuant to an unreasonable exercise of discretion standard and determined that the trial court properly exercised its discretion to deny the petition.  Petitioner argued that the trial court erred by (1) failing to weigh properly the proffered expert testimony, (2) substituting its own unqualified judgment for that of the expert, and (3) finding the assessment results to be somewhat problematic. In discounting these arguments, the court noted that the trial court could accept or reject any portion of the expert’s testimony and was not required to accept or reject the testimony as a whole. The court found that a reasonable person could have resolved the conflicting evidence presented by the expert as the trial court did and upheld its decision.

 

Michael J. Iacopino and Jenna M. Bergeron, Brennan, Lenehan, Iacopino & Hickey, Manchester, for petitioner; Gordon J. MacDonald, attorney general, and Dianne Martin, assistant attorney general, for the State.