State v. A. L. M.

389

Argued and submitted May 21, 2019, affirmed July 8, petition for review denied

October 22, 2020 (367 Or 218)

In the Matter of A. L. M.,

a Youth.

STATE OF OREGON,

Respondent,

v.

A. L. M.,

Appellant.

Crook County Circuit Court

14JU02574; A166888

469 P3d 244

Youth was adjudicated delinquent in relation to two counts of attempted

first-degree sodomy, and the juvenile court ordered him to serve probation. Near

the end of his probationary term, youth requested to be relieved of the obliga-

tion to report as a sex offender, in accordance with ORS 163A.030. Under that

statute, youth had the burden to prove by clear and convincing evidence that he

was “rehabilitated and [did] not pose a threat to the safety of the public.” The

juvenile court denied youth’s request after an evidentiary hearing. On appeal,

youth argues that the record does not support the juvenile court’s decision.

Held: A reasonable juvenile court could conclude, on this record, that the evidence

did not demonstrate clearly and convincingly that youth was rehabilitated and

did not pose a public-safety threat. Accordingly, the court did not err when it

ordered youth to report as a sex offender.

Affirmed.

Daniel Joseph Ahern, Judge.

Christa Obold Eshleman argued the cause for appellant.

On the brief was Adrian T. Smith.

Jonathan N. Schildt, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and

Hadlock, Judge pro tempore.

HADLOCK, J. pro tempore.

Affirmed.

390 State v. A. L. M.

HADLOCK, J. pro tempore

Youth was adjudicated delinquent in relation to two

counts of attempted first-degree sodomy, and the juvenile

court ordered him to serve probation. As the end of his pro-

bationary term approached, youth requested to be relieved

of the obligation to report as a sex offender, pursuant to

ORS 163A.030.1 Under that statute, youth had the burden

to prove by clear and convincing evidence that he was “reha-

bilitated and [did] not pose a threat to the safety of the pub-

lic.” ORS 163A.030(7)(b). The juvenile court denied youth’s

request after an evidentiary hearing, explaining that youth

had not met his burden of persuasion. It therefore ordered

youth to report as a sex offender pursuant to ORS 163A.025.

On appeal, youth argues that the record does not support the

juvenile court’s decision, emphasizing his successful comple-

tion of both probation and sex-offender treatment. We dis-

agree with youth’s contention that the record in this case does

not support the juvenile court’s decision. To the contrary, the

record permitted the court not to be persuaded, by clear and

convincing evidence, that youth was rehabilitated and did not

pose a public-safety threat. Accordingly, we affirm.

The sole question before us is whether the juvenile

court erred when it denied youth’s request to be relieved of

the obligation to report as a sex offender. Accordingly, we

describe only those aspects of the record that are pertinent

to the challenged decision. In doing so—and for reasons we

discuss later in this opinion—we describe the pertinent facts

consistently with the trial court’s factual findings, “review-

ing for any evidence that supports those findings.” Husk v.

Adelman, 281 Or App 378, 383, 383 P3d 961 (2016). Where

the trial court has not made express findings, we describe

the evidence “consistently with the trial court’s implicit

findings in support of its conclusion.” State v. J. D. S., 242

Or App 445, 448, 263 P3d 1017 (2011).

When youth was 15 years old, he sexually abused

two of his young relatives, then ages eight and 10. Youth and

1

Although the legislature has amended ORS 163A.030 and some of the

other pertinent statutes since the hearing in this case, those amendments do not

affect our analysis. Accordingly, all references are to the current versions of the

statutes.

Cite as 305 Or App 389 (2020) 391

the victims were staying at their grandparents’ house. Over

the course of three days, youth abused the victims repeat-

edly while the grandparents were in bed. Youth anally pen-

etrated both victims, made them perform oral sex on him,

and made them touch his penis while he watched pornog-

raphy. Youth bribed the victims by saying they could play

certain games and could smoke some of youth’s marijuana.

The abuse was physically painful to the victims, and youth

did not stop assaulting them when they asked him to. The

victims felt intimidated by youth in association with the

abuse.

In August 2014, the state filed a delinquency peti-

tion in juvenile court alleging that youth had committed

acts which, if done by an adult, would constitute multiple

counts of third-degree sodomy and attempted first-degree

sodomy. Before the petition was adjudicated, youth was

evaluated by a psychologist at his attorney’s request. The

psychologist reported that youth’s “behavior appears to have

been largely impulsive rather than a sexual preference,”

and concluded that youth did not qualify for a diagnosis of

pedophilia, although “one must rule out the possibility of

* * * paraphilia.” The psychologist reported that youth was

not antisocial, that his prognosis was positive, and that

he needed treatment, which could dramatically reduce his

recidivism risk.

Youth subsequently admitted to two counts of

attempted first-degree sodomy, one involving each of the vic-

tims, and the juvenile court adjudicated youth delinquent on

those two counts in early 2015. As part of its disposition, the

court placed youth on probation for 36 months, ordered him

to enter and successfully complete sex-offender treatment

with counselor Jeff Rex, and ordered him to take and pass

a “full disclosure polygraph and maintenance polygraphs

as directed by” Rex. Youth began treatment with Rex as

ordered.

In July 2015, youth took a polygraph that indicated

deception in relation to youth’s conduct toward the younger

of his two victims. At that point, youth had been in treatment

for five months, but he still was denying having sexually

392 State v. A. L. M.

abused that child. A few months later, another polygraph

examination reflected “full disclosure” by youth.

In November 2015, Rex reported that, “[a]lthough

[youth had] struggled at times with complete transparency

and work ethic,” he was “doing very well” at the time of the

report. Youth had passed “a full-disclosure polygraph” and

“an incident specific examination clarifying details regard-

ing the adjudicated offenses.” He was also progressing well in

other areas and, as part of his treatment, had written “clar-

ification letters” to the victims in which he apologized for

his behavior.2 Youth completed his sex-offender treatment in

2016. At that point, youth had completed all assignments and

benchmarks, including “being able to discuss [his offenses]

with * * * Rex and being able to document what had taken

place and the effects that it had on the victims of the case.”

In 2017, the county juvenile department notified

the court that youth’s probation would expire soon and that

youth “wishe[d] to address his registration requirements.”

A hearing was held in January 2018, and the parties sub-

mitted exhibits that included documentation of the vic-

tims’ reports of abuse, as well as youth’s 2014 psychological

examination and a 2016 discharge report from counselor

Rex. Youth called a single witness, his counselor with the

county juvenile department (Scott Grasle), who testified

that youth had met the requirements of his probation, had

successfully completed sex-offender treatment, and had paid

restitution.

Grasle also testified that youth had not been

charged with any additional offenses or probation viola-

tions. However, during an April 2016 polygraph examina-

tion, youth disclosed that he had once smoked marijuana,

which was unlawful. Youth agreed to submit to urinalyses

so Grasle could monitor his performance. An early urinaly-

sis showed a low level of THC, but a later urinalysis “tested

2

Youth’s juvenile-department counselor, Grasle, felt that youth took respon-

sibility for his conduct in those letters. However, the victims’ mother viewed the

letters as “very generic” and felt “it was obvious that [youth] was only writing

them because he had to for probation.” She had not let the victims read the letters

because she “felt like it would have been a slap in the face to them to even read

what he wrote.”

Cite as 305 Or App 389 (2020) 393

clean,” and Grasle testified that “that was pretty much

where it was left as far as marijuana use.” The indication

that youth had once used marijuana “wasn’t necessarily a

major concern” to Grasle and he did not consider it “indic-

ative of something problematic.” However, months after

youth’s initial disclosure, Grasle “obtained a couple of [uri-

nalyses] which did test positive for THC,” so he thought “it’s

always something that is potentially an issue.” Youth’s most

recent test before the January 2018 hearing was “clean.”3

Despite youth’s marijuana use, Grasle had no reservations

about his performance on probation. However, he declined

to give an opinion on whether youth should be required to

report as a sex offender because of the “long list of what

needs to be considered.”

The state also called one witness, the victims’

mother, who testified about how the abuse had affected

her children. Before the abuse occurred, the victims had

“idolized” youth, “wanted to be like him,” and “wanted to

hang out with him all the time.” Now, though, both victims

exhibit an “extreme amount of anger.” One of the victims

“lets everything build up * * * and then flies off the handle at

the smallest thing,” while the other boy has “more of just a

constant anger” that shows “in almost everything he does.”

In making their closing arguments to the juvenile

court, both parties acknowledged that the juvenile court’s

decision about whether to relieve youth of his reporting

requirement would involve consideration of many factors,

including those listed in ORS 163A.030(8). Broadly speaking,

that statute identifies considerations related to the nature

and circumstances of the youth’s acts, the effect of those

acts on the victims, the youth’s performance on supervision

and in treatment, other characteristics of the youth and the

victims, and the “protection afforded the public by records

3

Grasle also testified that youth had not successfully passed a math test

that was necessary for youth to complete his GED; despite certain challenges

youth faced in that regard, Grasle felt that youth could have passed the test if he

was “really working on it.” However, when the juvenile court explained its deci-

sion not to relieve youth of the sex-offender reporting requirement, it emphasized

that it was “not relying [on the] educational issue” in making that ruling because

“[t]he fact that [youth] can’t pass a GED math test has nothing to do with [the

court’s] decision whether [youth is] a risk to the community or not.”

394 State v. A. L. M.

of sex offender registration.” 4 The statute also expressly

authorizes the juvenile court to consider “[a]ny other rele-

vant factors.” ORS 163A.030(8)(s). Youth acknowledged that

4

ORS 163A.030(8) provides:

“In determining whether the person has met the burden of proof, the

juvenile court may consider but need not be limited to considering:

“(a) The extent and impact of any physical or emotional injury to the

victim;

“(b) The nature of the act that subjected the person to the duty of report-

ing as a sex offender;

“(c) Whether the person used or threatened to use force in committing

the act;

“(d) Whether the act was premeditated;

“(e) Whether the person took advantage of a position of authority or trust

in committing the act;

“(f) The age of any victim at the time of the act, the age difference

between any victim and the person and the number of victims;

“(g) The vulnerability of the victim;

“(h) Other acts committed by the person that would be crimes if commit-

ted by an adult and criminal activities engaged in by the person before and

after the adjudication;

“(i) Statements, documents and recommendations by or on behalf of the

victim or the parents of the victim;

“(j) The person’s willingness to accept personal responsibility for the act

and personal accountability for the consequences of the act;

“(k) The person’s ability and efforts to pay the victim’s expenses for coun-

seling and other trauma-related expenses or other efforts to mitigate the

effects of the act;

“(l) Whether the person has participated in and satisfactorily completed

a sex offender treatment program or any other intervention, and if so the

juvenile court may also consider:

“(A) The availability, duration and extent of the treatment activities;

“(B) Reports and recommendations from the providers of the treatment;

“(C) The person’s compliance with court, board or supervision require-

ments regarding treatment; and

“(D) The quality and thoroughness of the treatment program;

“(m) The person’s academic and employment history;

“(n) The person’s use of drugs or alcohol before and after the adjudication;

“(o) The person’s history of public or private indecency;

“(p) The person’s compliance with and success in completing the terms of

supervision;

“(q) The results of psychological examinations of the person;

“(r) The protection afforded the public by records of sex offender registra-

tion; and

“(s) Any other relevant factors.”

Cite as 305 Or App 389 (2020) 395

some of the statutory factors “weigh in favor of registration,”

but he characterized those factors as centering “around the

original events, the circumstances, the youth, the age, the

gender” and being “from early on.” Youth argued that con-

sideration of the factors related to the progress he had made

in the years following the abuse weighed “more heavily” and

should lead the court “to find by clear and convincing evi-

dence that [youth] is rehabilitated and that he does not pose

a danger to society and that he not be required to register.”5

The state emphasized several factors in arguing to

the contrary: the young ages of the victims; that the abuse

happened repeatedly, at separate times over the course of a

weekend; the nature of youth’s conduct; and how physically

painful youth’s abusive acts had been for the victims. The

state also pointed out that youth had acted illegally in using

marijuana.

In announcing its ruling, the juvenile court expressly

recognized youth for having done well on probation and for

having successfully completed community-based treatment.

The juvenile court then explained its remaining concerns,

which focused on the nature and circumstances of youth’s

sexual assault of the victims. The court noted that the abuse

was not “an isolated incident,” but “occurred over three

days.” Moreover, youth’s acts were not the type of conduct

“that could be confused as to what’s horseplay and what’s

inappropriate behavior.” To the contrary, the court found

that the state had been accurate when, in closing argument,

it described the evidence of youth’s conduct as including

forcible anal sex, oral sex, intimidation, forced masturba-

tion, and pornography. The court also focused on the age dif-

ference between youth and the victims, that youth had been

entrusted with their care, and that the victims were vulner-

able in that situation and because of their young ages and

their family relationship to youth. Finally, the court also

took into account youth’s marijuana use, given the court’s

understanding that youth had used marijuana “as an offer

5

We note that the pertinent statutes refer expressly to a reporting require-

ment, not to a registration requirement. ORS 163A.025(1)(a); ORS 163A.030(1), (7).

The parties and the juvenile court sometimes referred to the requirement relat-

ing to “registration,” but neither party attributes any significance to that discrep-

ancy, and it does not affect our analysis on appeal.

396 State v. A. L. M.

or an incentive at the time of this abuse.” The court was con-

cerned that, when youth used drugs or thought about using

drugs, he did that in connection “with things that aren’t

necessarily healthy.” The court concluded by stating that

youth had not “convince[d it] by clear and convincing evi-

dence that the requirement of registering as a sex offender

should be eliminated in [youth’s] case.” The court therefore

ordered that youth “register as a sex offender pursuant to

ORS 163A.025.”

On appeal, youth argues that the juvenile court

erred “when it found that youth had failed to prove by clear

and convincing evidence that he was ‘rehabilitated and [did]

not pose a threat to the safety of the public’ as ORS 163A.030

requires, and required him to register as a sex offender.”

Youth’s argument has two parts. First, youth focuses on our

standard of review, asserting that we review for legal error

the trial court’s ruling that youth failed to meet his bur-

den of proving that he is rehabilitated and does not pose

a public-safety threat. In that regard, youth relies on our

decision in Patterson v. Foote, 226 Or App 104, 204 P3d 97

(2009), which we discuss below. Second, youth asserts that

the record includes ample evidence that he has been reha-

bilitated and does not pose a safety threat; he claims further

that “the state presented no evidence to the contrary.”

In response, the state takes on youth’s characteriza-

tion of the standard of review on appeal:

“Although the state agrees that whether youth failed to

meet his ‘burden of proof’ is reviewed ‘as a matter of law,’

* * * the more precise question here is whether the evidence

in the record compelled the juvenile court to find that youth

had met his burden.”

Applying that standard, the state argues that the evidence

did not require the juvenile court to find itself persuaded

that youth had met his burden. Put differently, the state

argues that it was permissible for the juvenile court to find

itself unpersuaded that youth had met his burden, even if

another court might have reached a different conclusion,

given “the severity and characteristics” of youth’s offenses,

his victimization of vulnerable children, and his repeated

unlawful use of marijuana while on probation.

Cite as 305 Or App 389 (2020) 397

We begin our analysis by setting out the pertinent

statutory provisions and discussing the standards of review

we apply on appeal. When a youth has been found within

juvenile court jurisdiction for conduct that would constitute

a felony sex crime if committed by an adult, the juvenile

court must “hold a hearing on the issue of reporting as a sex

offender,” generally in the six-month period before juvenile-

court jurisdiction is terminated. ORS 163A.030(1)(a); see

ORS 163A.030(1)(b)(A) (timing). At that hearing, the youth

“has the burden of proving by clear and convincing evidence

that [the youth] is rehabilitated and does not pose a threat

to the safety of the public.” ORS 163A.030(7)(b). The juvenile

court may consider “[a]ny * * * relevant factors” in making

that decision, including those listed in ORS 163A.030(8). If

the trial court finds that the youth has not met the burden

of proving by clear and convincing evidence that the youth

is rehabilitated and does not pose a public-safety risk, “the

court shall enter an order requiring [the youth] to report as

a sex offender under ORS 163A.025.” ORS 163A.030(7).

Thus, ORS 163A.030 encompasses multiple legal

principles applicable here: (1) it describes the factual question

before the juvenile court in a hearing under that statute—

whether a youth is rehabilitated and does not pose a

public-safety threat; (2) it assigns the burden to the youth

to establish those facts by clear and convincing evidence;

(3) it specifies nonexclusive factors that the court may con-

sider in making its decision; and (4) it specifies what the

juvenile court must do if the youth does not meet the youth’s

burden—the court must require the youth to report as a sex

offender.

Those different aspects of ORS 163A.030 also impli-

cate different standards of review on appeal. We review for

legal error the juvenile court’s application of the law that the

statute announces, determining whether, as a matter of law,

the juvenile court erred when it determined (1) what facts it

had to decide, (2) which party bore the burden of persuading

the juvenile court regarding those facts, and what burden

of persuasion applied, (3) whether the court considered rele-

vant factors, and (4) given the court’s factual findings, what

result the statute required.

398 State v. A. L. M.

But with respect to the juvenile court’s factual find-

ings themselves, “our appellate function is limited to resolv-

ing whether there was sufficient evidence for the trial court,

sitting as the trier of fact, to have made the required find-

ings * * *.” Husk, 281 Or App at 383 (emphasis in original)

(addressing a different statutory scheme that also put the

burden on one party to establish certain facts by clear and

convincing evidence). We do not substitute our judgment for

that of the juvenile court, deciding whether the evidence

would have satisfied us that youth was rehabilitated and

did not pose a public-safety threat. See id. (“[B]ecause we

are not undertaking de novo review, we do not endeavor to

make our own findings of fact or to determine for ourselves

whether” a party met its burden of persuasion.). Rather, the

question is whether, based on the evidence in the record,

any reasonable juvenile court could have made the factual

findings that the court did in this case.

That standard of review—that we review the juve-

nile court’s factual findings only to determine whether evi-

dence in the record supports them—applies even though the

burden on youth was high, viz., to establish rehabilitation

and lack of a public-safety threat by clear and convincing

evidence. See J. D. S., 242 Or App at 447-48 (in reviewing

trial court’s decision in an involuntary commitment case,

“we review the sufficiency of the evidence by viewing the

evidence in the light most favorable to the state to deter-

mine whether any rational trier of fact * * * could have found

appellant to be a danger to himself or others by clear and

convincing evidence”; the appellate court does “not reweigh

the evidence”). Cf. Husk, 281 Or App at 383 (“The clear and

convincing standard of proof simply refers to the degree

of certainty that must exist in the mind of the trial court

regarding its ultimate determination.” (Internal quotation

marks omitted.)).

And that standard—reviewing only to determine if

the record includes evidence supporting the juvenile court’s

factual findings—applies even though we are reviewing the

juvenile court’s finding that it was not persuaded that youth

met his burden of proof, rather than reviewing (as we more

frequently do) a trial court’s finding that it was persuaded

Cite as 305 Or App 389 (2020) 399

by a party’s evidence. See State v. Johnson, 335 Or 511, 523,

73 P3d 282 (2003) (explaining that an appellate court is

“bound by a trial court’s ‘finding’ that a party’s evidence is

not sufficiently persuasive” and is “equally bound by a trial

court’s acceptance or rejection of evidence”).

Thus, the juvenile court’s finding that it was not

persuaded by clear and convincing evidence that youth was

rehabilitated and did not pose a public-safety threat will

withstand appellate challenge “unless the evidence in the

case is such that the [juvenile] court as finder of fact could

decide [the] factual question in only” the other way. Id.; see

id. at 526 (reviewing trial court’s finding that a party had

not met its burden of proof to determine whether “the evi-

dence was of such a character or of such weight that the trial

court was required to rule” in that party’s favor). That is,

we will disturb the juvenile court’s finding that it was not

persuaded that youth had met his burden of persuasion only

if the record would compel every reasonable juvenile court

to be persuaded that youth had met that burden. State v.

T. C., 268 Or App 615, 621, 342 P3d 1112 (2015) (reviewing

to determine whether the evidence was such as to compel

the trial court to find that a party had met its burden of

proof). In reviewing the trial court’s decision, we view the

evidence “in the light most favorable to the juvenile court’s

determinations and assum[e] the correctness of that court’s

explicit factual findings if any evidence in the record sup-

ports them.” Dept. of Human Services v. T. J., 302 Or App

531, 532-33 & n 2, 538, 462 P3d 315 (2020) (so stating in

appeal from juvenile-dependency proceeding in which the

court assumed, without deciding, that the petitioning party

bore the burden of proving certain facts by “clear and con-

vincing” evidence).

Although the foregoing appellate principles are

well-settled, we discuss them here because youth does not

acknowledge that we review the trial court’s factual find-

ings only to determine whether evidence in the record sup-

ports them. To the contrary, relying heavily on our decision

in Patterson, youth argues that we should determine, “as a

matter of law, whether the trial court correctly determined

that youth failed” to meet his burden of proof. (Emphasis

added.)

400 State v. A. L. M.

Youth’s reliance on Patterson is understandable

but, ultimately, misplaced. In Patterson, a person who had

been convicted of a misdemeanor sex offense petitioned to be

relieved from the duty to report as a sex offender, pursuant

to former ORS 181.820 (2007), renumbered as ORS 163A.120

(2015). Patterson, 226 Or App at 106. Under that statute,

if the trial court was “satisfied by clear and convincing

evidence that [a qualifying] petitioner [was] rehabilitated

and * * * [did] not pose a threat to the safety of the public,”

then the court was required to “enter an order relieving the

petitioner of the duty to report” as a sex offender. Former

ORS 181.820(3), renumbered as ORS 163A.120(3) (2015). In

Patterson, the petitioner had completed probation 10 years

before seeking relief from the reporting obligation, and he

submitted uncontradicted evidence that he had successfully

completed sex-offender treatment, that he was remorseful,

and that he “was leading a law-abiding and socially con-

structive life.” 226 Or App at 115. Moreover, the petition-

er’s treating psychologist asserted that the petitioner was

“in the lowest risk group” of convicted sex offenders, that

he did not represent a danger to public safety, and “that his

recidivism risk [was] virtually nil, being less than one per-

cent.” Id. at 108. Nonetheless, the trial court concluded that

the petitioner had not met his burden of proving that he

was rehabilitated and not a safety threat, given the court’s

concern that the psychologist “[gave] any percentage of the

possibility of reoffending, even if it’s less than one percent.”

Id.

We reversed, holding that the trial court had mis-

construed what the petitioner had to prove to meet his bur-

den. Specifically, we rejected the idea that a petitioner can

prove that he or she is “rehabilitated” only by establishing,

as the trial court had suggested, “that he or she is now abso-

lutely free of any risk—however small—of future error.”

Id. at 113 (emphasis in original). Put differently, we rejected

the idea—urged by the state in that case—that the statute

required the petitioner to supply “an absolute guarantee of

future perfection.” Id. Rather, we held, the statute required

the petitioner “to demonstrate by clear and convincing

evidence” that, as a result of successfully completing ser-

vices that were “designed to ameliorate his or her previous

Cite as 305 Or App 389 (2020) 401

behavioral and psychological patterns and to prevent a

recurrence of unlawful conduct,” the petitioner “does not

present a threat, that is, he or she is not likely to reoffend.”

Id. at 114-15. Applying that legal standard to the evidence

in Patterson, we observed that the evidence of the petition-

er’s successful completion of sex-offender treatment and his

extremely low recidivism risk was uncontroverted, that is,

“there [was] a complete absence of evidence to the contrary,

either factual or in the form of an opinion.” Id. at 115. The

record included a letter from the petitioner’s victim, who

addressed how she had been affected by the petitioner’s

crime, but that letter “provided no information pertinent to

the ultimate criteria for obtaining relief, viz., that the peti-

tioner is rehabilitated and does not pose a threat to pub-

lic safety.” Id. Given those circumstances, we held that the

trial court had erred in determining that the petitioner had

not met his burden of proving the prerequisites to obtaining

relief from the reporting requirement. Id.

If that is all that Patterson said, we would easily

read it—including the standard of review it applied to the

trial court’s decision—in keeping with the principles dis-

cussed earlier in this opinion. Given the compelling evidence

of the Patterson petitioner’s rehabilitation and “virtually

nil” recidivism risk, and the “complete absence” of any evi-

dence to the contrary, id., we would readily view Patterson

as being one of those rare cases in which the evidentiary

record would compel every reasonable trial court to find that

the petitioner had met his burden of persuasion.

But the opinion in Patterson is more complicated

than we have yet described. In reaching our conclusion in

that case, we interpreted former ORS 181.820 (2007) as

establishing a standard of review dramatically different

from the standard we have discussed in this case—a stan-

dard that more closely (albeit implicitly) resembles de novo

review of the facts. We found that standard embodied in

the terms of former ORS 181.820 (2007), specifically in two

aspects of the statute: (1) that it required the petitioner to

prove his case by clear and convincing evidence, and (2) that

it required the court to grant relief if the petitioner met

that burden. See id. at 110. “Taken together, those aspects

402 State v. A. L. M.

of [former] ORS 181.820 [(2007)] suggest[ed] to us that, on

review of the trial court’s order, we determine as a matter

of law whether, on this record, the trial court reached the

correct result.” Id. (emphases added).

That part of Patterson suggests that—unlike in

other circumstances where we acknowledge that an evi-

dentiary record might support a range of permissible fac-

tual findings, and we review only to determine whether the

evidence would allow any reasonable trial court to make

the findings that were made—former ORS 181.820 (2007)

allowed for only one “correct answer” to flow from a given

evidentiary record, and we reviewed to determine whether

the trial court made that “correct” factual finding. Put dif-

ferently, we decided whether the petitioner had met his bur-

den of proof—an undertaking that we generally would char-

acterize as exercising de novo review.

For at least three reasons, we decline to follow that

aspect of Patterson here. First, because Patterson involved

a statute different from the one at issue in this case, any

statutory construction announced in that opinion does not

bind our construction of ORS 163A.030, even though the two

statutes have similarities. Former ORS 181.820 (2007) is

not a direct predecessor to ORS 163A.0306 and former ORS

181.820 (2007) and ORS 163A.030 differ in material ways.7

Our discussion of the standard of review in Patterson there-

fore does not bind us here, as it would if we were addressing

6

Former ORS 181.820 (2007) set out a process that allowed a convicted sex

offender to seek relief from reporting requirements when 10 years had passed

after termination of the offender’s supervision on probation, conditional release,

parole, or post-prison supervision. It did not relate, as does ORS 163A.030, to

allowing youth offenders to seek relief from reporting requirements immediately

upon the termination of juvenile court jurisdiction. Former ORS 181.820 (2007)

has since been renumbered ORS 163A.120(3).

7

For example, former ORS 181.820 (2007) stated only that a trial court was

required to grant relief when it “was satisfied by clear and convincing evidence”

that the petitioner had rehabilitated and was not a threat; it did not explicitly

assign a burden of persuasion to either party. When the legislature enacted ORS

163A.030(7)(b), it chose to expressly assign that burden to the person seeking

relief from the reporting requirement. In addition, the list of factors the legisla-

ture contemplates a court will consider in making a decision under ORS 163A.030

is much broader than the factors that were identified as pertinent to a decision

under former ORS 181.820 (2007), suggesting more room for differing—yet still

permissible—findings about a youth’s rehabilitation.

Cite as 305 Or App 389 (2020) 403

the same statute at issue in that case. Cf. State v. Civil, 283

Or App 395, 405-06, 388 P3d 1185 (2017) (explaining that

we will overrule our own prior construction of a statute only

when it is “plainly wrong”).

Second, although we discussed the standard of

review in some detail in Patterson, that discussion ulti-

mately was unnecessary to our decision. As explained above,

given the compelling and one-sided evidentiary record in

Patterson, the opinion can be understood to hold that no

reasonable trial court could find that the petitioner had not

met his burden of proof. Because the evidentiary record in

Patterson could not support a case-specific finding that the

petitioner had not met his burden of proof, we had no need

to go further and explore whether there is only one “correct

answer” in all sex-offender-reporting cases. Put differently,

we had no need to depart from our ordinary standards of

review in Patterson to determine that the evidentiary record

did not support the trial court’s finding.

Third, we find Patterson’s discussion of the standard

of review under former ORS 181.820 (2007) to be idiosyn-

cratic. It is not unusual for a statute to impose a “clear and

convincing” standard of proof; nor is it unusual for a stat-

ute to require a trial court to take certain action if a party

meets (or does not meet) its burden of proving certain facts

by that “clear and convincing” standard. And—as explained

above, and leaving Patterson aside—we have consistently

viewed our task under such statutes as reviewing trial

courts’ factual findings to determine whether evidence in

the record supports them—we do not deem there to be only

a single “correct” finding and then determine, as a matter of

law, whether the trial court made that required finding. See,

e.g., Husk, 281 Or App at 381-84 (in determining whether a

party met its burden of proving a certain matter by clear

and convincing evidence—successful proof of which would

require the trial court to grant relief to that party—“our

appellate function [was] limited to resolving whether there

was sufficient evidence for the trial court, sitting as the trier

of fact, to have made the required findings and determi-

nation” (emphasis in original)). It is not entirely clear why

we nonetheless interpreted former ORS 181.820 (2007) to

require a different standard of review, and we decline to

404 State v. A. L. M.

extend Patterson’s announcement of that standard beyond

the context of the statute at issue in that case.

We therefore apply our ordinary standard of review

to the juvenile court’s decision under ORS 163A.030, deter-

mining whether the juvenile court’s factual findings are

supported by evidence in the record. That is, we ask whether

any reasonable juvenile court could have found itself unper-

suaded, on this record, that youth had established by clear

and convincing evidence that he was rehabilitated and did

not pose a public safety threat.

So framed, we answer the question affirmatively.

ORS 163A.030 specifically authorizes a juvenile court to

consider the character of a youth’s sexual offenses and the

vulnerability of the youth’s victims when deciding whether

the court is persuaded, by clear and convincing evidence,

that the youth is rehabilitated and no longer presents a

threat. Here, the juvenile court did just that, acknowledging

youth’s successful completion of probation and sex-offender

treatment, but finding that youth had repeatedly sodom-

ized his very young and vulnerable victims, that youth had

taken advantage of the difference between his age and their

ages, and that youth had taken advantage of the position of

authority or trust he had been given over the children. The

court also found that youth uses drugs “in connection with

things that aren’t necessarily healthy,” noting the evidence

that he offered marijuana to his victims in conjunction

with abusing them. Based on that, the court was concerned

by youth’s repeated use of marijuana while on probation.

Finally, the court observed that it could have “no idea” how

youth would do once he was “off supervision,” given that—

up to the point of the hearing—youth had “been monitored

fairly closely” since the abuse occurred.

The record in this case supports each of those find-

ings. This is not a case, like Patterson, where there was both

compelling evidence of rehabilitation (there, a psychologist’s

opinion that the petitioner posed a “virtually nil” risk of

recidivism) and “a complete absence of evidence” suggesting

a lack of rehabilitation. 226 Or App 104. Given the evidence

before the juvenile court, we cannot say that no court could

find itself unpersuaded that youth was rehabilitated and no

Cite as 305 Or App 389 (2020) 405

longer presented a threat to public safety (even though other

juvenile courts might have found, on the same record, that

youth had been rehabilitated). To the contrary, a reason-

able juvenile court could determine—as this one did—that

the evidence did not demonstrate clearly and convincingly

that youth was unlikely to reoffend, given the severity of his

repeated sexual offenses against very young and vulnerable

victims, his continued unlawful use of a drug that he had

utilized in association with those offenses, and the fact that

no evidence yet existed of how youth would perform when he

no longer was being supervised.8 Accordingly, the juvenile

court did not err when it ordered youth to report as a sex

offender pursuant to ORS 163A.025.

Affirmed.

8

We note that this is not a case, like Patterson, in which the issue was

whether (under a different statute) to relieve a person from sex-offender report-

ing requirements once 10 years had passed after the person completed the pro-

bationary sentence that he had received in association with his conviction for

a single misdemeanor sex crime. 226 Or App at 106. The question before the

trial court here was very different: whether a youth who committed acts that

would constitute felony sex crimes if committed by an adult should be relieved

of sex-offender reporting requirements immediately upon the termination of his

probation. We also note that youth may have future opportunities to seek relief

from the reporting requirement. See generally ORS 163A.130(1), (2)(a) (setting out

process for a person who was required to report as a sex offender for conduct that

would constitute a Class A or Class B felony sex crime if committed by an adult

to seek relief from the reporting requirement “no sooner than two years after the

termination of juvenile court jurisdiction over the person”).