IN THE MATTER OF REGISTRANT M.H. (18040006, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2632-18T1
IN THE MATTER OF
REGISTRANT M.H.
Argued telephonically May 7, 2020 –
Decided May 19, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. 18040006.
Jesse M. DeBrosse, Assistant Deputy Public Defender,
argued the cause for appellant/cross-respondent M.H.
(Joseph E. Krakora, Public Defender, attorney; Jesse
M. DeBrosse, of counsel and on the briefs).
Matthew T. Spence, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent/cross-appellant State of New Jersey (Jill S.
Mayer, Acting Camden County Prosecutor, attorney;
Matthew T. Spence, of counsel and on the briefs).
PER CURIAM
M.H. was originally charged in Pennsylvania with forty-three counts of
sexual assault, involving both his minor son R.H. and his minor daughter A.H.
The charges were brought after he admitted in a family counseling session to
committing sexual acts against both children. He pled guilty to one count of
"Involuntary Deviate Sexual Intercourse With a Child," involving his then five-
year-old son. The Pennsylvania Board of Probation and Parole's Sexual
Offenders Assessment Board found that he met the state's criteria for pedophilia
and Sexually Violent Predator status. In accord with his negotiated plea, on
September 27, 2005, M.H. was sentenced to a minimum of five, maximum of
ten years, and paroled on November 15, 2013.
M.H. eventually relocated to New Jersey, and on February 7, 2019, after
a Megan's Law classification hearing, was assessed as a Tier II moderate risk
offender, with notification to community organizations and law enforcement
agencies likely to encounter him. See N.J.S.A. 2C:7-8(c)(2). M.H. appeals,
contending he should have been classified as a Tier I low-risk offender. The
judge also found that because M.H. pled guilty and was sentenced on only one
offense, involving conduct against only one of his two victims, he fell within
the household/incest exception to Internet registration. See N.J.S.A. 2C:7-
13(d)(2). The State cross-appeals the decision. We affirm.
At the hearing, M.H. presented a psychosexual risk assessment in support
of his position that he should be classified as a Tier I offender. The expert who
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authored the report found "no counter-indication to downward modification of
[M.H.'s] registration requirements," that M.H. was at low risk for sexual
recidivism, and did not pose a significant risk of sexually inappropriate or
deviant behavior or sexual coercion of children.
The expert's actuarial risk assessment of M.H. was based on a number of
factors, including his presence in his community for five years without sexual
recidivism. His age at the time, forty-eight, also reduced his risk of recidivism.
M.H. had no convictions for nonsexual violence, no other sexual offense charges
or convictions, and his victims were not unrelated or strangers. The only risk
factor was that one of his victims was male.
The expert weighed several dynamic risk factors. They included sexual
interest, distorted attitudes to sexual assault or sexual contact, difficulties with
self-management, and social emotional functioning. He evaluated M.H.'s
potential for sexual recidivism in the low range.
In October 2017, M.H. was diagnosed with "autism spectrum disorder
(ASD)." At the hearing, he also provided the court with a report from the ARC
of New Jersey on the disorder as it relates to the criminal justice system. The
report stated that M.H.'s diagnosis placed him in a group "considered at low risk
of reoffending because, once they had been educated on societal norms and
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expectations, they adhere to them very carefully and closely." The report also
discussed certain factors specific to people with the ASD diagnosis in relation
to their risk of re-offense. The trial judge did not mention the report when
rendering her oral decision.
M.H. has a "live-in patient advocate," funded by the Department of
Developmental Disabilities (DDD), who assists M.H. with his day-to-day life
including "medical needs, access to resources, house repairs, job applications,
financial management, and daily living needs." Additionally, M.H. participated
in sex offender treatment.
The trial court found M.H.'s Registrant Risk Assessment Scale (RRAS)
score of forty-six placed him in the moderate risk range. See N.J.S.A. 2C:7-
8(c). M.H. did not dispute his actual score.
Nonetheless, M.H. argued that, based on the expert report, he was not in
the "heartland" of Tier II offenders. Because the expert relied upon M.H.'s live-
in advocate's characterization that he is a highly functioning autistic adult, the
judge gave the expert report little weight and refused to classify him outside the
"heartland" of moderate risk offenders.
The judge also discounted the expert's report because he did not discuss
M.H.'s Pennsylvania Sexually Violent Predator assessment, nor explain how that
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assessment fit with his diagnosis. In rendering her decision, the judge said "the
defense has failed to show the court by clear and convincing evidence that an
out of the heartland application should be granted."
The judge considered the Internet registry statute to be clearly written,
allowing for little interpretation. Relying on In the Matter of Registrant N.B.,
222 N.J. 87 (2015), she concluded that despite the fact defendant was charged
with multiple acts against two victims, the Internet exception did not apply
because he was convicted of only one offense against one child.
On appeal, M.H. argues the following:
POINT I
THE LAW DIVISION CORRECTLY EXCLUDED
M.H. FROM THE INTERNET REGISTRY UNDER
N.J.S.A. 2C:7-13(D)(2), THE HOUSEHOLD
EXCEPTION, BECAUSE HIS CONVICTION FOR
ONE COUNT INVOLVING HIS SON WHO LIVED
WITH HIM WAS A "SINGLE CONVICTION" FOR A
SEX OFFENSE INVOLVING "MEMBERS OF NO
MORE THAN A SINGLE HOUSEHOLD."
A. Although M.H. offended against both his son and
daughter, his predicate conviction only involved
one victim, and thus the issue could be resolved
on narrow grounds.
B. Since the phrase "members of no more than a
single household" is plural, it applies to cases
involving more than one victim, provided the
offenses were committed within a single
household.
A-2632-18T1
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POINT II
THE LAW DIVISION ERRED BY SHIFTING THE
BURDEN OF PROOF TO M.H. ON HIS REQUEST
FOR TIER 1 NOTIFICATION, AS THE [NEW
JERSEY] SUPREME COURT HAS RULED THAT
THE STATE ALWAYS BEARS THE BURDEN OF
PROOF ON THE SCOPE OF NOTIFICATION.
POINT III
THE LAW DIVISION ABUSED ITS DISCRETION
BY ORDERING NOTICE TO COMMUNITY
ORGANIZATIONS, AS M.H. IS A HOUSEHOLD
OFFENDER WHO HAS BEEN OFFENSE FREE IN
THE COMMUNITY FOR 10 YEARS, IS
SUPERVISED BY A LIVE-IN CARE PROVIDER,
AND IS ENGAGED IN TREATMENT.
On cross-appeal, the State contends:
POINT I
THE LAW DIVISION WAS CORRECT WHEN IT
ALLOWED NOTIFICATION TO SCHOOLS AND
COMMUNITY GROUPS.
POINT II
THE LAW DIVISION WAS INCORRECT WHEN IT
DID NOT ALLOW PUBLICATION ON THE
INTERNET REGISTRY.
I.
It is black-letter law that a trial court's interpretation of a statute is subject
to de novo review. State v. Nance, 228 N.J. 378, 393 (2017).
Furthermore, "the ultimate determination of a registrant's risk of reoffense
and the scope of notification is reserved to the sound discretion of the trial
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court." In re G.B., 147 N.J. 62, 79 (1996). Any classification based on the
RRAS is subject to judicial review for an abuse of that discretion. Id. at 81.
New Jersey's Megan's Law requires that the state "develop and maintain a
system for making certain information in the central registry . . . publicly
available by means of electronic Internet technology." N.J.S.A. 2C:7-13(a).
The statute provides exceptions to Internet registration when
the sole sex offense committed by the offender which
renders him subject to the requirements of [Megan's
Law] is one of the following:
....
(2) A conviction or acquittal by reason of insanity for a
violation of N.J.S.[A.] 2C:14-2 or N.J.S.[A.] 2C:14-3
under circumstances in which the offender was related
to the victim by blood or affinity to the third degree or
was a resource family parent, a guardian, or stood in
loco parentis within the household . . . .
....
For purposes of this subsection, "sole sex offense"
means a single conviction, adjudication of guilty or
acquittal by reason of insanity, as the case may be, for
a sex offense which involved no more than one victim,
no more than one occurrence or, in the case of an
offense which meets the criteria of paragraph (2) of this
subsection, members of no more than a single
household.
[N.J.S.A. 2C:7-13(d).]
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Subsection (d)(2) is known as the household/incest exception. The issue
here is whether M.H. qualifies under the exception because he was convicted of
only one charge against one victim but admitted to repeated acts against two
victims.
II.
M.H. pled guilty to one count of "involuntary deviate sexual intercourse"
with only R.H. The trial court found this to be "a single conviction" as defined
by the statute, qualifying M.H. for the exception. M.H. contends that this was
the correct interpretation; the State cross-appeals claiming the decision was
error.
Statutory interpretation requires this court to "determine . . . the intent of
the Legislature, and to give effect to that intent." N.B., 222 N.J. at 98 (quoting
State v. Lenihan, 219 N.J. 251, 262 (2014)). The best indicator of the
Legislature's intent is the plain language of the statute. Ibid. A statute's "words
and phrases shall be read and construed with their context, and shall, unless
inconsistent with the manifest intent of the Legislature . . . be given their
generally accepted meaning, according to the approved usage of the language."
Ibid. (quoting State v. Bolvito, 217 N.J. 221, 228 (2014)). Only when the
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statutory language yields more than one interpretation do we seek out extrinsic
evidence like legislative history. Ibid.The New Jersey Supreme Court has addressed whether the "single
conviction" exception applies to a registrant who pled guilty to one count of
sexual assault based on multiple acts of unlawful sexual contact with one minor
relative. Id. at 90-91. The Court found it was a single conviction per the
statutory definition, "notwithstanding the offender's admission to multiple acts
. . . against the victim." Id. at 90.
Of course, the facts of N.B. are not the same facts as these. Indeed, in
N.B., the Court said it would not address whether the household exception
applies to these factual circumstances. Id. at 102 n.7 ("Accordingly, we do not
address whether an offender with a single conviction premised upon multiple
admitted acts upon multiple victims, all within the household and to whom the
offender was related 'by blood or affinity to the third degree . . . ,' would fall
within the household/incest exception . . . .").
A registrant qualifies for an exception to Internet registration where there
is a "sole sex offense." N.J.S.A. 2C:7-13(d). The statute defines "sole sex
offense" as a single conviction involving (1) no more than one victim, no more
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than one occurrence; or (2), when the offense falls under subsection (d)(2),
members of no more than a single household. Ibid.The parties do not dispute that M.H.'s offense falls under subsection
(d)(2). So, in order for the exception to apply, M.H's "sole sex offense" must be
a single conviction which involved members of a single household. The plain
language of that definition includes M.H.—he and his son were "members" of a
single household.
Like the registrant in N.B., M.H. pled guilty to one count. The Court in
N.B. recognized the disparity between "sole sex offense," which implies a single
act, and N.J.S.A. 2C:7-13(d)(2) requiring a conviction, which is not necessarily
limited to one act. 222 N.J. at 99. After a detailed analysis of the legislative
history, the Court determined that N.B.'s guilty plea qualified as a "single
conviction" under the Internet exception, regardless of defendant's multiple acts.
Id. at 102. Nothing in the opinion suggests that the same logic would not apply
here. M.H. pled guilty to only one count of involuntary deviate sexual
intercourse, even though he committed multiple acts against two victims with
whom he lived. Thus, he was guilty of a single offense.
Our interpretation aligns with the N.B. Court's finding that the household
exception "is intended to be less restrictive than the two other exceptions
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prescribed by N.J.S.A. 2C:7-13(d)." Id. at 100. Where the other two exceptions
to Internet registration, subsections (d)(1) and (3), define "sole sex offense"
strictly as meaning only one victim and one occurrence, the household exception
is more expansive, allowing for multiple victims and multiple occurrences, so
long as they are within the same household.
M.H.'s single conviction was related only to his acts against R.H. A plain
reading of the statute indicates that this alone qualifies him for the household
exception under N.J.S.A. 2C:7-13(d). The cross-appeal lacks merit.
III.
M.H.'s second and third points relate to the trial court's denial of his
application for a lower tier classification and a lesser notification requirement.
M.H. contends the trial court made two mistakes by: (1) erroneously shifting the
burden of proof from the State to him, and (2) abusing its discretion in ordering
notice to community organizations.
1. The Trial Court's Burden Shifting
In determining the scope of notification to which a registrant must adhere,
the trial court must balance the registrant's right to privacy against the
community's interest in safety and notification. G.B., 147 N.J. at 74. The RRAS
score quantifies the results of the court's balancing test by determining a
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registrant's risk of re-offense. See State v. C.W., 449 N.J. Super. 231, 260 (App.
Div. 2017). In establishing a registrant's RRAS score, courts consider thirteen
factors across four categories: (a) seriousness of the offense; (b) the offender 's
history; (c) community support available; and (d) the characteristics of the
offender. Ibid.A registrant's risk of re-offense can fall into one of three levels: low (Tier
I), moderate (Tier II), or high (Tier III). Ibid. If a registrant is a Tier I risk of
re-offense, the statute requires only law enforcement be notified of his presence
in the community. N.J.S.A. 2C:7-8(c)(1). If a registrant is a Tier II risk of re-
offense, the statute requires "organizations in the community including schools,
religious and youth organizations" be notified. N.J.S.A. 2C:7-8(c)(2). If a
registrant is a Tier III risk of re-offense, notification must "reach members of
the public likely to encounter" the registrant. N.J.S.A. 2C:7-8(c)(3).
While the RRAS is a "useful tool" to determine a registrant's risk of re-
offense, it should not be viewed as "absolute." In re C.A., 146 N.J. 71, 108-09
(1996). Tier classification and notification should be made "on a case-by-case
basis" within the discretion of the court and based on all evidence available, not
just a registrant's RRAS score. G.B., 147 N.J. at 78-79.
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A registrant cannot challenge his RRAS score, but can challenge his
proposed tier designation. He can, for example:
introduce evidence at the hearing that the Scale
calculations do not properly encapsulate his specific
case; or phrased differently, a registrant may maintain
that his case falls outside the "heartland" of cases and,
therefore, that he deserves to be placed in a tier other
than that called for by the prosecutor's Scale score.
[Id. at 85.]
While the registrant bears the burden of producing evidence that the case
falls out of the heartland of cases, it is ultimately the State's burden of proof and
persuasion to establish by clear and convincing evidence that the proposed tier
classification is warranted. E.B. v. Verniero, 119 F.3d 1077, 1108-11 (3d Cir.
1997).
The trial court misspoke in this case by stating that the burden fell on M.H.
to prove by clear and convincing evidence that his case falls out of the heartland.
The issue then becomes whether the error, not objected to during the hearing,
was harmful—"clearly capable of producing an unjust result." R. 2:10-2. Given
the strengths of the State's proofs, however, the error was harmless.
The judge expressed the reasons she discounted the expert report, reasons
supported by the record. The expert ignored significant material available to
him, and relied too heavily on information gleaned from a caregiver not
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qualified to give expert opinions. Further, it is always within the provenance of
the trial judge to determine whether to accept or reject an expert report, and
decide the weight to be accorded to it. Maison v. N.J. Transit Corp., 460 N.J.
Super. 222, 232 (App. Div. 2019). The judge's decision to reject the report thus
seems a reasonable exercise of her discretion. Since the report was the basis for
M.H.'s request that his case be taken out of the heartland of Tier II cases, this
claim, like the appeal, lacks merit.
That M.H. has not reoffended in over twenty years, has a state-funded
caregiver, and is enrolled in counseling do not add up to factors so compelling
as to establish a heartland exception to the Tier II notification. See G.B., 147
N.J. at 82.
Affirmed.
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