Christopher H.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

In the Interest of Christopher H., a Juvenile under the age
of Seventeen, Appellant.

Appellate Case No. 2017-001257

Appeal From Richland County
W. Greg Seigler, Family Court Judge

Opinion No. 5797
Submitted November 2, 2020 – Filed February 3, 2021

REVERSED

Appellate Defender Taylor Davis Gilliam, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Deborah R.J. Shupe,
both of Columbia; and Solicitor Samuel R. Hubbard, III,
of Lexington, all for Respondent.

THOMAS, J.: Christopher H. appeals a sentencing court's order requiring him to
register as a sex offender on the private sex offender registry. On appeal, he argues
the sentencing court erred by finding good cause existed to place him on the
private sex offender registry because there was insufficient evidence showing he
was at risk of reoffending. We reverse.

FACTS
On December 11, 2014, the State filed a juvenile petition alleging Christopher
committed two counts of first-degree criminal sexual conduct (CSC) and two
counts of second-degree assault and battery against his six-year-old female cousin
and her nine-year-old female friend. Christopher was between twelve and thirteen
years old at the time of the offenses. Christopher pled guilty to two counts of
second-degree assault and battery, and the State dropped the two counts of
first-degree CSC. The plea court accepted the plea and ordered Christopher to
undergo a secure evaluation at Midlands Evaluation Center (MEC), including a sex
offender risk assessment and a psychiatric evaluation, with a dispositional hearing
to follow. Following his evaluation, the sentencing court committed Christopher to
the Department of Juvenile Justice (DJJ) for an indeterminate sentence not to
exceed his twenty-first birthday, suspended upon alternative placement at
Generations, an inpatient sex offender treatment facility, and two years of
probation. Christopher was discharged from Generations and released to his
parents' custody on July 22, 2016, after approximately sixteen months of inpatient
sex offender treatment.

On March 29, 2017, the family court held a sentencing hearing to determine
whether to place Christopher on the private sex offender registry. The State called
Adam Whitsett, general counsel for the State Law Enforcement Division, as its
only witness. He testified to the law regarding the public and private sex offender
registry and stated Christopher's guilty plea to two counts of second-degree assault
and battery would not qualify him for placement on the public registry. Whitsett
testified placement on the private registry would prohibit Christopher from living
on campus while he attended college. Whitsett also testified an order to register as
a sex offender creates a lifetime requirement to register. The State relied on its
brief and supporting documentation, which consisted of Christopher's records.

Generations noted the following post-treatment recommendations on Christopher's
discharge report: (1) no unsupervised access to children under thirteen years old;
(2) no access to internet without parental controls installed; (3) monitoring of text
messages and other communications with peers; (4) consistent access to outpatient
therapy; (5) no access to electronics in his room at night; (6) consistent monitoring
of his medications by a physician; (7) no contact with the victims or their families;
(8) accountability for school work; (9) adult supervision in the community and at
home until age eighteen; and (10) attendance at monthly meetings with his
probation officer until released. Meredith Lutz, Christopher's therapist at
Generations, testified Christopher successfully completed all four levels of
treatment. Lutz explained the restrictions regarding access to children and adult
supervision at home and in the community as recommendations placed on every
resident's discharge care plan. She explained the restrictions were not personalized
toward Christopher. Lutz declined to give her personal recommendation regarding
the sex offender registry, stating she does not recommend for or against placement
on the registry for any of her patients. However, she explained Generations' view
of the sex offender registry aligned with studies indicating placement on the
registry does not reduce the rate of recidivism or otherwise provide safety to the
community. Lutz concluded Christopher's risk of reoffending decreased because
he completed treatment.

Dr. McKee, qualified and testifying as an expert in forensic psychology, testified
he conducted a forensic psychological assessment of Christopher. He explained he
assessed Christopher's risk of reoffending using four different sexual recidivism
risk scales for juveniles widely used by clinicians. Dr. McKee testified the results
from each assessment indicated Christopher had a low risk of reoffending and his
prognosis was "good, even perhaps excellent." He added, "There are no
psychological tests, no risk guides, no set of research that can ever say somebody
will not reoffend. . . . [Y]ou never get to [zero] . . . . You just try to get as close
as you can to [zero]." Dr. McKee testified the question was the degree of risk, not
the existence of risk. He concluded "there [was no] empirical basis for placing
Christopher on the sex offender registry."

Melanie Hendricks, qualified as an expert in social work as it relates to adolescent
care, testified she supervised Christopher's outpatient therapist, Sara Hood.
According to Hendricks, research indicates placement on the registry creates
unintended negative consequences for juvenile offenders, such as difficulty being
accepted to college, the inability to live in on-campus housing or participate in
ROTC or the military, and an increased risk of alcohol and drug abuse and suicide.
Hendricks testified there was no research indicating placement on the sex offender
registry reduced the recidivism rate. She asserted Christopher should not be placed
on the sex offender registry because his family was involved in and cooperated
with his treatment, which increased his likelihood of success. She concluded she
"would not deem [Christopher] to be appropriate for lifetime monitoring, whether
public or private."

Finally, Sara Hood testified she was Christopher's outpatient therapist. Hood
explained Christopher was definitely making good progress: he had a job at Sonic,
attended school every day and was doing well in school, had not had any behavior
problems at school, was playing the cello in Orchestra, and was in ROTC. She
explained Christopher's family was involved in his therapy, contacted her with
concerns and questions, and attended therapy sessions with Christopher. When
asked if she believed Christopher was at a risk of reoffending, Hood answered, "I
look for . . . red flag issue[s during his sessions] and there hasn't been anything like
that. . . . I haven't seen anything there that's raised any real concern to me." She
also stated she did not recommend that Christopher be placed on the sex offender
registry because of his "low risk [of reoffending]."

The sentencing court found good cause existed to place Christopher on the private
sex offender registry because there was evidence showing Christopher was at risk
of reoffending. Christopher filed a motion to reconsider, which was denied. This
appeal followed.

LAW/ANALYSIS

Christopher argues the sentencing court erred by placing him on the private sex
offender registry because the evidence in the record indicated he had only a low
risk of reoffending, which was insufficient to establish good cause. We agree.

"A [sentencing court] has broad discretion in sentencing within statutory limits."
In re M.B.H., 387 S.C. 323, 326, 692 S.E.2d 541, 542 (2010). "A [sentencing
court] must be permitted to consider any and all information that reasonably might
bear on the proper sentence for a particular defendant." Id. The sentence imposed
will not be overturned on appeal absent an abuse of discretion. Id. An abuse of
discretion occurs when the sentence imposed was based on either an error of law or
a factual conclusion not supported by evidence in the record. Id.

A sentencing court "may order as a condition of sentencing that the person be
included in the sex offender registry if good cause is shown by the solicitor."
S.C. Code Ann. § 23-3-430(D) (2007). In M.B.H., our supreme court stated "good
cause" for the purposes of placing a juvenile offender on the private sex offender
registry "means only that the [sentencing court] must consider the facts and
circumstances of the case to make the determination of whether or not the evidence
indicates a risk to reoffend sexually." 387 S.C. at 327, 692 S.E.2d at 542.

In M.B.H., as in this case, the solicitor introduced the evaluation center's report to
support the request for M.B.H. to be placed on the private sex offender registry.
Id. In M.B.H., "the [sentencing court] enumerated the issues identified in the
[c]enter's report that constitute good cause for requiring Appellant to register,
including: multiple offenses; multiple younger, same-sex victims; a sense of
victimization; denial of harm to others; borderline intellectual functioning; and the
[c]enter's recommendation that Appellant receive inpatient sexual offender
treatment." Id. at 326, 692 S.E.2d at 542. Our supreme court found the sentencing
court did not abuse its discretion by placing M.B.H. on the private registry because
it "considered all the facts and circumstances of th[e] case, both aggravating and
mitigating" and the evidence in the record supported the determination that M.B.H.
was at risk of reoffending. Id. at 327, 692 S.E.2d at 542−43.

In this case, the State called one witness, who testified only regarding the law
governing the registry and otherwise relied on Christopher's records. Unlike in
M.B.H., Christopher was doing well in school, had admitted his offenses, and had
successfully completed his treatment. Christopher called four witnesses as fact or
expert witnesses who either testified to his low risk to reoffend, that risk of
reoffending can never be eliminated, or that Christopher should not be placed on
the registry. Dr. McKee testified there is never no risk of reoffending and there
was no basis to place Christopher on the registry. Here, there was other evidence
indicating there was no cause to place Christopher on the registry. The sentencing
court noted the testimony indicated Christopher was at a low risk of reoffending,
but found "a" risk of reoffending existed; thus, good cause was established.

Our legislature explained the intent of the sexual registry statutes, stating, "[t]he
intent of this article is to promote the state's fundamental right to provide for the
public health, welfare, and safety of its citizens." S.C. Code Ann. § 23-3-400
(Supp. 2019). Our supreme court indicated, "[t]he intent of the legislature in
enacting the sex offender registry law is to protect the public from those offenders
who may re-offend." In re Ronnie A., 355 S.C. 407, 409, 585 S.E.2d 311, 312
(2003). The requirement to register is considered non-punitive. In Interest of
Justin B., 419 S.C. 575, 583, 799 S.E.2d 675, 679 (2017).

However, placement of a juvenile convicted of a sexual offense on the registry is
not automatic and requires the solicitor to show good cause. § 23-3-430(D). This
requirement indicates an intent by the legislature to require more than a scintilla of
evidence of risk. It is axiomatic that a juvenile with a history of a sexual offense or
offenses will be at some risk, even if the risk is very low. As Dr. McKee testified,
"[Y]ou never get to [zero risk]." If any risk is sufficient to establish good cause,
the statute requiring the solicitor to show good cause would be of no purpose
because all juveniles would automatically be placed on the registry. An appellate
court "must presume the legislature did not intend a futile act, but rather intended
its statutes to accomplish something." Denene, Inc. v. City of Charleston, 352 S.C.
208, 212, 574 S.E.2d 196, 198 (2002). We presume the legislature must have
intended some juveniles would not be required to register. Otherwise, there would
be no need for the legislative requirement for a showing of good cause.
The State's brief to the sentencing court states it "offered to withdraw its request to
enter the juvenile's name on the private sex offender registry if the defense
witnesses could provide affidavits indicating he is not at risk to reoffend. None of
the witnesses . . . were willing to do that . . . ." Their willingness, however, was
explained by their testimony, which indicated there can never be zero risk because
to completely eliminate all risk is impossible. As previously stated, if our
legislature intended this, it would not have placed the burden of proving good
cause on the solicitor.

We find the weight of the evidence indicated the State failed to show good cause
for placing Christopher on the registry. The only evidence of risk indicated a low
risk, and the evidence overwhelmingly indicated registry in this case was not
appropriate. Such a low risk of reoffending does not seem to meet the intent of the
statute. Thus, we find the sentencing court abused its discretion in ordering
Christopher placed on the registry. M.B.H., 387 S.C. at 326, 692 S.E.2d at 542
(explaining the sentencing court abuses its discretion when the sentence imposed
was "based on an error of law or a factual conclusion without evidentiary
support").

CONCLUSION

Based on the foregoing, the order on appeal is

REVERSED.1

HILL and HEWITT, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.