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State v. Elliott

Superior Court of Rhode Island, Providence

April 26, 2019

STATE OF RHODE ISLAND
v.
JASON ELLIOTT

          For Plaintiff: Laura N. Nicholson, Esq.

          For Defendant: Glenn S. Sparr, Esq.

          DECISION

          LANPHEAR, J.

         This case is before the Court on Jason Elliott's (Petitioner) appeal from a decision of a magistrate affirming the decision of the Sex Offender Board of Review classifying Petitioner as a Level III offender for community notification purposes.

         Facts and Travel

         In November 2015, Petitioner was convicted of one count of possession of child pornography, one count of production of child pornography and five counts of indecent solicitation of a child in P2-2014-1285A, for which he received time to serve at the Adult Correctional Institutions and additional time in a suspended sentence. As coach of a local basketball team, Petitioner secretly recorded juvenile males while they were in the bathrooms at hotels. While searching Petitioner's apartment, police located a laptop with images of child pornography. Several hidden surveillance cameras were located. Police also discovered chat conversations on Petitioner's iPhone where he posed as a young female to solicit nude photos of young males. Petitioner sent various images to other email accounts. Several members of the basketball team were victims.

         Prior to his release from incarceration, the Petitioner was brought before the Sex Offender Board of Review for classification of his risk to reoffend. The Board considered Petitioner's scores from three risk assessment instruments: the Static-2002R, the Stable-2007, and the Static-99R, and other materials. Two of these tests found that Petitioner had less than a 7% risk of reoffending during the first five years after conviction. Petitioner had no history of violence or aggression and no prior criminal record, but had been involved in counseling for his sexual interest at the time of the crimes. In a Risk Assessment Report prepared by the Sex Offender Board of Review on April 28, 2017, the Board considered many considerations of the acts resulting in the convictions (including the secrecy, sharing of the images, and his position of trust), his prior history, available support systems, treatment progress, the test results and the accuracy of the tests' predictions during extended periods.

         On May 3, 2017, the Sex Offender Board of Review determined that Petitioner's risk of reoffending is high, and he was placed at a Level III community notification level. The Petitioner appealed that determination to a Superior Court magistrate and on December 18, 2018, the Magistrate affirmed the decision of the Sex Offender Board of Review. Petitioner appealed the Order of the Magistrate, bringing the matter before this Court for review. After memoranda were submitted, the parties waived the introduction of additional evidence[1] and the matter is now ripe for decision.

         Standard

         Both this Court and the Magistrate are statutorily limited concerning the scope of review of the Sex Offender Board of Review. Unlike the Administrative Procedures Act, the burdens of proof are uniquely set forth in a different statute:

§ 11-37.1-16. Application review - Burden of production and persuasion.
(a) In any proceeding under this chapter, the state shall have the burden of going forward, which burden shall be satisfied by the presentation of a prima facie case that justifies the proposed level of and manner of notification.
(b) For purposes of this section, "prima facie case" means:
(1) A validated risk assessment tool has been used to determine the ...

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