Plaintiff: Laura N. Nicholson, Esq.
Defendant: Glenn S. Sparr, Esq.
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.
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.
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
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 and the matter is now ripe for decision.
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
(1) A validated risk assessment tool has been used to
determine the ...