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White v. State

Supreme Court of New Hampshire

September 18, 2018

EDWARD WHITE
v.
STATE OF NEW HAMPSHIRE

          Argued: April 17, 2018

          Brennan, Lenehan, Iacopino & Hickey, of Manchester (Michael J. Iacopino and Jenna M. Bergeron on the brief, and Mr. Iacopino orally), for the petitioner.

          Gordon J. MacDonald, attorney general (Dianne Martin, assistant attorney general, on the brief and orally), for the State.

          HICKS, J.

         Following an evidentiary hearing on the merits, the petitioner, Edward White, appeals an order of the Superior Court (Abramson, J.) denying his petition to be relieved of the obligation to register as a sex offender in New Hampshire. We affirm.

         The relevant facts follow. In 1985, the petitioner was convicted in Massachusetts of two counts of indecent assault and battery arising from allegations that he sexually assaulted an eight-year-old female. He served three years in prison and then was paroled. At the evidentiary hearing, he represented that, during his parole, he successfully completed a sex offender treatment program.

         In January 1994, as a New Hampshire resident, the petitioner became subject to lifetime registration as a sex offender for his Massachusetts convictions. See RSA 632-A:11-:19 (1993) (repealed and recodified at RSA 651-B:1-:12 by Laws 1996, 293:2). He was later classified as a Tier III offender. See Laws 2008, 334:1; see also RSA 651-B:1, X (2016).

         Because of constitutional limitations, a Tier III offender, like the petitioner, whose convictions pre-date the establishment of the sex offender registry, may be subject to the registration requirement "only if he is promptly given an opportunity for either a court hearing, or an administrative hearing subject to judicial review, at which he is permitted to demonstrate that he no longer poses a risk sufficient to justify continued registration." Doe v. State of N.H., 167 N.H. 382, 411-12 (2015); see RSA 651-B:6, V (Supp. 2017). RSA 651-B:6, V sets forth the process affording such an offender that opportunity.

         Once an offender has completed "all the terms and conditions of the sentence, including any period of supervised release," he or she may file a petition to be relieved of the registration requirements. RSA 651-B:6, V(a). The petition must be accompanied by, among other items, "a risk assessment prepared by a qualified psychiatrist or psychologist at the offender's expense, which indicates that the petitioner is not a danger to the public and no longer poses a risk sufficient to justify continued registration." Id.

         After the petition has been filed, the court must hold a hearing at which the victim may appear personally or through a representative. RSA 651-B:6, V(b). The court "may grant the petition if the offender": (1) "has not been convicted of any subsequent offense requiring registration"; (2) "has successfully completed any period of supervised release, probation, or parole"; (3) "has successfully completed an appropriate sex offender treatment program"; and (4) "has demonstrated that he or she is no longer a danger to the public and no longer poses a risk sufficient to justify continued registration." RSA 651-B:6, V(c). If the petition is denied, the offender may not file another petition "for 5 years from the date of denial." Id.

         The risk assessment in the instant case was completed by Carol J. Ball, Ph.D. Ball reported that she administered two assessments to the petitioner: (1) the Millon Clinical Multiaxial Inventory-III (MCMI-III); and (2) the Abel Assessment of Sexual Interest (the Abel Assessment).

         According to Ball, "the MCMI-III consists of 175 items." (Italics omitted.) A person's responses to those items are then "matched against . . . diagnostic subgroups that are described in the Diagnostic and Statistical Manual of Mental Disorders." (Italics omitted.) Ball stated that the MCMI-III "yields personality profiles that correspond to standard diagnostic groups, including major mental illness, character problems, clinical syndromes . . ., and substance abuse." (Italics omitted.)

         Ball reported that the petitioner's MCMI-III profile "suggests a personality style in which he courts undeserved blame and criticism and feels that he's being cheated, misunderstood and unappreciated." Ball stated that "no distinctive Axis I clinical syndrome" appeared in the petitioner's "diagnostic picture" and that "no specific personality configuration is evident" from the MCMI-III assessment, but that he "does demonstrate some self-defeating Personality Traits, and Obsessive Compulsive and Avoidant Personality Features."

         According to Ball, the Abel Assessment is "used widely to assess a person's sexual interest patterns." Ball reported that "[o]ngoing research has demonstrated" the assessment's "validity, reliability, and ...


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