                                                                                        September 17 2013


                                          DA 12-0645

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 265



JAMES MARTIN LANGFORD,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV-12-610C
                       Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Carolyn Gill; Gill Law Office, PLLC; Kila, Montana

                For Appellee:

                       Timothy C. Fox; Montana Attorney General; Pamela P. Collins; Assistant
                       Attorney General; Helena, Montana

                       Ed Corrigan, Flathead County Attorney; Travis R. Ahner; Deputy County
                       Attorney; Kalispell, Montana



                                                   Submitted on Briefs: June 12, 2013

                                                              Decided: September 17, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     James Martin Langford appeals from an order of the Eleventh Judicial District

Court, Flathead County, denying his petition requesting relief from his duty to register as

a sexual offender, filed pursuant to § 46-23-506(3)(b), MCA. We affirm.

¶2     The sole issue on appeal is whether the District Court abused its discretion in

denying Langford’s petition.

                                    BACKGROUND

¶3     Langford was convicted in 1992 of incest in violation of § 45-5-507, MCA (1991).

He pleaded guilty to having sexual intercourse or sexual contact with his daughter, B.S.,

who was sixteen at the time of the offense. On August 28, 1992, Langford was sentenced

to Montana State Prison for twenty years, with ten years suspended. The sentencing

court, in addition to standard conditions for sexual offenders, required that Langford

register as a sexual offender and complete a sexual offender treatment program at

Montana State Prison. Langford was prohibited from having contact with the victim,

B.S., unless approved by his probation officer. He was also prohibited from having

contact with any children under the age of sixteen years. Langford could not reside or

frequent places where children congregated and was prohibited from accessing child

pornography.    Langford was further subject to polygraph testing.        At the time of

Langford’s conviction, level designation of a sexual offender was not required.

Therefore, Langford did not receive a level designation by the sentencing court.

¶4     Many of the arguments Langford currently advances resound with those advanced

at his sentencing hearing. The sentencing court observed that Langford argued he should


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not be incarcerated because of the efforts he had made in developing alcohol treatment

programs in the western part of Montana. The sentencing court noted that “[a]pparently

the defendant has remained free of intoxicating substances, and has dedicated himself to

helping others to recover from such addiction.” In response to Langford’s arguments, the

sentencing court stated:

              While the defendant should be commended for his efforts in his
       recovery, as well as his efforts in helping others, this court is nonetheless
       mindful that one of the goals of sentencing is punishment. . . .
              In imposing the sentence specified below, this court is struck by the
       fact that the defendant has admitted hundreds of the instances of sexual
       abuse against his daughter. The fact that the defendant has disclosed the
       full history of his sexual abuse of his daughter is also commendable.
       However, this long history of sexual abuse, coupled with physical violence
       against the daughter, indicates to this court an extensive problem.

¶5     The psychosexual evaluator, Dr. Michael Scolatti, recommended that Langford

could be treated in the community. The sentencing court rejected this recommendation,

noting Scolatti’s statement, in his report, that “Mr. Langford represents a sex offender

whose crime is horrendous. There is no doubt that Mr. Langford has caused significant

psychological harm to his victim and should be held accountable for his sexually abusive

behavior.”

¶6     On June 8, 2012, Langford filed his petition in the District Court requesting relief

from his requirement to register as a sexual offender. The District Court conducted a

hearing on August 31, 2012, and received evidence from Langford and the State.

¶7     Langford presented evidence that he was (as he states in his opening brief on

appeal) “a model prisoner”; that he completed Phases I and II of sex-offender treatment;

that he accumulated no infractions or violations of prison rules; and that he received all of


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his good time credit. Following his release from prison in 1997, Langford completed a

two-year aftercare sexual offender program; registered as a sexual offender for the past

fifteen years; was regularly employed; and has been a member of the Fresh Life Church.

Langford represented that the registration requirement negatively impacts his personal

life and his business life. He presented testimony from Dr. Scolatti, who conducted a

follow-up evaluation of Langford in 2012. Dr. Scolatti opined that Langford’s treatment

had been successful—though, upon questioning by the District Court, Dr. Scolatti

admitted that he could not say that there is “no risk” Langford will reoffend. For these

reasons, as well as others, Langford argued that the District Court should relieve him

from his requirement to register as a sexual offender pursuant to § 46-23-506(3)(b),

MCA.

¶8     B.S. was present by way of videoconference and expressed her opposition to

Langford’s petition. In addition, she submitted a letter, dated June 25, 2012, which the

State filed in the District Court and the District Court referenced in its Order. B.S.

opened her letter by stating her emphatic opinion that her father should be a lifetime

sexual offender registrant. The letter went on to describe Langford’s sexual abuse of her

“hundreds to thousands of times,” beginning when she was about three years old. When

B.S. was very little, Langford threatened that her mother would leave them if B.S. told

anyone what he was doing to her; when she was older, he told her he would kill her

mother and brothers if she told anyone, and she believed that he would. B.S. described

escalating violence as she grew older—Langford choked her, punched her, and placed

pillows over her face so no one would hear her screams. “There were many times I


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thought he was going to kill me, and many that I wished he had.” B.S. states she

continues to suffer from flashbacks, trust issues, and PTSD, and that she lives in fear of

her father and people like him. “It seems like a small price for him to have to pay to have

to register as a sex offender in comparison to what I will go through for the rest of my

life.”

¶9       The District Court determined, after “[c]onsidering the testimony of Dr. Michael

Scolatti and most importantly the testimony of the victim, Petitioner has failed to

establish the statutory requirements necessary to be relieved from the requirements of

lifetime registration.” The District Court specifically found, after considering all the

circumstances, that “[c]ontinued registration is necessary for public protection and is in

the best interests of society.”

                                  STANDARDS OF REVIEW

¶10      A district court’s interpretation and application of a statute and its conclusions of

law are reviewed for correctness. In re C.D.H., 2009 MT 8, ¶ 21, 349 Mont. 1, 201 P.3d

126. We have not previously discussed the standard for reviewing a district court’s

decision regarding a petition for relief from the duty to register as a sexual offender filed

under § 46-23-506(3), MCA. As with designation of a sexual offender level, see State v.

Hill, 2009 MT 134, ¶ 22, 350 Mont. 296, 207 P.3d 307, a district court must exercise

considerable discretion in determining whether to grant or deny relief from registration.

Accordingly, the standard of review is whether the district court abused its discretion in

granting or denying the petition. This Court will not disturb a discretionary decision of a

district court absent an abuse of that discretion. State v. Burke, 2005 MT 250, ¶ 11, 329


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Mont. 1, 122 P.3d 427. A district court abuses its discretion when it acts arbitrarily

without employment of conscientious judgment or exceeds the bounds of reason,

resulting in substantial injustice. State v. Rovin, 2009 MT 16, ¶ 23, 349 Mont. 57, 201

P.3d 780. Further, a district court would necessarily abuse its discretion if it based its

ruling on an erroneous view of the law or on a clearly erroneous assessment of the

evidence. City of Missoula v. Girard, 2013 MT 168, ¶ 10, 370 Mont. 443, 303 P.3d

1283.

                                       DISCUSSION

¶11     Did the District Court abuse its discretion in denying Langford’s petition?

¶12     Langford argues on appeal that the District Court incorrectly interpreted the first

prong of § 46-23-506(3)(b)(ii), MCA, to mean that no one can be relieved of the duty to

register unless an evaluator can predict that there is no possible chance of reoffending.

Such an interpretation, Langford argues, would render the statute meaningless and make

it impossible for someone to ever obtain relief from registration. Langford also argues

that the harm to the victim is addressed at sentencing and should not be the basis for

determining the best interests of society. Further, the preferences of the victim do not

equate, Langford maintains, to the best interests of society.

¶13     The State argues that the District Court properly exercised its discretion when it

denied Langford’s petition. Citing protection from recidivism as the primary purpose of

the Sexual or Violent Offender Registration Act, the State maintains that the District

Court was correct in finding that Langford continues to present a threat of reoffending

and that protection of the public is necessary so long as that possibility exists.


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¶14    Section 46-23-506, MCA, provides for several distinct duration periods for

registration of sexual or violent offenders. The relevant provisions for sexual offenders

are set forth as follows:

               (1) A sexual offender required to register under this part shall
       register for the remainder of the offender’s life, except as provided in
       subsection (3) or during a period of time during which the offender is in
       prison.
                                        . . .

               [(3)](b) Except as provided in subsection (5), at any time after
       10 years of registration for a level 1 sexual offender and at any time after
       25 years of registration for a level 2 sexual offender, an offender may
       petition the sentencing court or the district court for the judicial district in
       which the offender resides for an order relieving the offender of the duty to
       register. The petition must be served on the county attorney in the county
       where the petition is filed. Prior to a hearing on the petition, the county
       attorney shall mail a copy of the petition to the victim of the last offense for
       which the offender was convicted if the victim’s address is reasonably
       available. The court shall consider any written or oral statements of the
       victim. The court may grant the petition upon finding that:
               (i) the offender has remained a law-abiding citizen; and
               (ii) continued registration is not necessary for public protection and
       that relief from registration is in the best interests of society.

                                          .   .   .

              (5) Subsection (3) does not apply to an offender who was convicted
       of:
              (a) a violation of 45-5-503 [sexual intercourse without consent] if:
              (i) the victim was compelled to submit by force, as defined in
       45-5-501, against the victim or another; or
              (ii) at the time the offense occurred, the victim was under 12 years of
       age;
              (b) a violation of 45-5-507 if at the time the offense occurred the
       victim was under 12 years of age and the offender was 3 or more years
       older than the victim;
              (c) a second or subsequent sexual offense that requires registration;
       or
              (d) a sexual offense and was designated as a sexually violent
       predator under 46-23-509.


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¶15    The statute presents a scheme whereby a sexual offender generally must register

for the remainder of the offender’s life. However, with certain exceptions, a sexual

offender may petition for relief from registration. Thus, an offender designated a Level 1

offender may petition after 10 years of registration and a sexual offender designated a

Level 2 may petition after 25 years of registration. The court must consider statements of

the victim and “may” grant the petition upon finding that (1) the offender has remained

law-abiding; (2) continued registration is not necessary for public protection; and

(3) relief from registration is in the best interests of society.

¶16    Langford incorrectly asserts that the District Court misinterpreted the statute to

mean that no one could be relieved of the duty to register unless an evaluator could

predict there is no possibility of recidivism. The District Court determined that there was

a low risk of Langford’s reoffending based upon the testimony of Dr. Scolatti. The

District Court also properly considered Langford’s crime and B.S.’s statements.

Considering that protection from recidivism by sexual offenders is the primary purpose of

the Sexual or Violent Offender Registration Act, evidence that there is some risk of

reoffending is a sufficient basis to deny relief from the duty to register. We conclude that

the District Court correctly interpreted § 46-23-506(3), MCA. We must now consider

whether the District Court abused its discretion in denying the relief requested.

¶17    The trial court is in the best position to judge the credibility and demeanor of

witnesses and their testimony. State v. Lally, 2008 MT 452, ¶ 24, 348 Mont. 59, 199 P.3d

818; State v. Gray, 2001 MT 250, ¶ 25, 307 Mont. 124, 38 P.3d 775. Although finding



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that Langford’s registration requirements posed problems for him in his personal life and

business life, the District Court also found that B.S.’s statement and request for continued

registration were more compelling. The District Court considered the nature of abuse in

the underlying offense and the years in which it had been perpetrated upon B.S.

Consideration was given to Langford’s progress, but the District Court ultimately

determined that B.S., as a member of society, demonstrated that Langford still posed a

threat to the public. This conclusion was supported by Dr. Scolatti’s testimony, which

established that Langford had a low risk of reoffending.

¶18    A district court abuses its discretion when it acts arbitrarily without employment

of conscientious judgment or exceeds the bounds of reason, resulting in substantial

injustice. Rovin, ¶ 23. This Court will not disturb a discretionary decision of the District

Court absent an abuse of discretion. Burke, ¶ 11. The sexual abuse perpetrated by

Langford upon his daughter was horrific. B.S., in her letter to the court, articulated her

fears and concerns regarding Langford’s petition in a well-reasoned and logical manner.

The District Court was required to consider her statements, and it ultimately decided that

Langford remained a threat to public safety. In doing so, the District Court demonstrated

that it employed conscientious judgment and did not exceed the bounds of reason. We

see no injustice in the District Court’s denial of Langford’s petition. We agree with the

State that the District Court exercised its discretion properly.

¶19    Finally, we note that Langford has admitted to years of sexual abuse beginning

when B.S. was eight years old. B.S. indicates that the abuse began when she was much

younger and that Langford threatened to kill her mother and brothers if she told about the


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abuse. Although Langford only pleaded to one incident of incest under the Information

filed in 1991, occurring when B.S. was sixteen years of age, B.S. testified that this was

because the State, at that time, believed a specific date of sexual abuse, rather than a

continuing course of abuse beginning when she was younger, was necessary. We note

that under the registration statute, had the 1991 Information accurately represented the

same conduct as Langford has admitted in the psychosexual evaluation, Langford would

have been required to register for life, with no ability to petition for relief, because B.S.

was under the age of twelve, § 46-23-506(5)(b), MCA, and because B.S. was compelled

to submit to force based upon threats to kill her mother and brothers,

§ 46-23-506(5)(a)(i), MCA. This issue, however, was not raised in the trial court and is

thus not currently before us. We also observe that Langford’s repeated petitions to the

District Court (three), and B.S.’s plea that she be spared the continual trauma of

addressing her abuse on any subsequent petitions by requiring Langford to register for

life, is also not before us. We nevertheless note these considerations regarding the

legislative scheme, Langford’s admissions, and B.S.’s plea in order to further enlighten

Langford that his petition is not well-founded and the District Court exercised proper

discretion in denying his petition.

¶20    Affirmed.


                                                          /S/ LAURIE McKINNON




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We Concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS




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