                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1448
                            Filed November 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KORY MICHAEL WALLACE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Susan Choate

Cox, District Associate Judge.



      Kory Wallace appeals the district court’s denial of his application to modify

his sex offender registration obligation. AFFIRMED.



      Nicholas A. Sarcone of Stowers & Sarcone P.L.C., West Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Heard by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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VAITHESWARAN, Presiding Judge.

       Kory Wallace appeals the district court’s denial of his application to modify

his sex offender registration obligation. He contends the district court’s findings

are not supported by substantial evidence.

I.     Background Proceedings

       Wallace pled guilty to assault with intent to commit sexual abuse. See

Iowa Code § 709.11 (2001). The district court granted him a deferred judgment,

placed him on probation for two years, ordered him to “successfully complete the

Sexual Offender Treatment Program,” and required him “to comply with the

Sexual Abuse Registry.” At the time Wallace was sentenced, the registration

period was ten years. See id. § 692A.2(1). The law was subsequently amended

to require lifetime registration for this offense.   See id. §§ 692A.101(1)(a)(5)

(2009) (defining “[a]ssault with intent to commit sexual abuse in violation of

section 709.11” as an aggravated offense); 692A.106(5) (increasing the

registration duration for a sex offender convicted of an aggravated offense from

ten years to life); 692A.125(2) (applying the lifetime registration requirement

retroactively to “[a]ny sex offender including a juvenile offender who is required to

be on the sex offender registry as of June 30, 2009”).

       Wallace violated the terms of his probation by using marijuana and

methamphetamine.      Abstinence from illegal drug use was part of successful

completion of the sex offender program. The district court revoked his deferred

judgment, sentenced him to a prison term not exceeding two years, suspended

the sentence, and placed him on probation for two years.
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       Wallace again violated the terms of his probation, by appearing at a group

therapy session “looking and acting high, or under the influence of something.” A

urine test was positive for methamphetamine. The district court found Wallace in

contempt of court, ordered him placed at a halfway house for drug treatment, and

required him to participate in a “certified sex offender treatment program and . . .

successfully complete sex offender treatment through such certified program.”

       In time, Wallace’s counselor sent the department of correctional services a

“discharge summary” stating Wallace had “done a pretty good job of continuing

to address his issues related to his abusive sexual behavior” and opining that if

he remained “active in his recovery program which enables him to remain sober

from methamphetamine use he poses a small risk to reoffend in a sexual

manner.”     The counselor further opined that Wallace had “successfully

internalized the lessons of his sex offender program,” which he completed while

on extended probation.

       Wallace was discharged from probation. The probation officer’s discharge

report noted Wallace had “done a poor job with treatment and supervision” but

“[h]is time on probation” was “up.”

       Twelve years after his sentence was imposed, Wallace filed an application

to modify the sex offender registration requirements pursuant to Iowa Code

section 692A.128 (2013). Following a hearing at which the State offered no

resistance, a district court judge determined that Wallace had “successfully

completed all sex offender treatment programs that [were] required of him” but

had not obtained a risk assessment from the department of correctional services.

The court held the matter in abeyance until he obtained the assessment.
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         After the assessment was completed, a different district court judge held a

hearing at which the assessment preparer testified.             The court determined

Wallace failed to complete “all sex offender treatment programs that ha[d] been

required” and, according to the risk assessment, was not “classified as a low risk

to reoffend.”      The court denied Wallace’s application for modification of the

lifetime registration requirement as well as a subsequent motion to enlarge the

ruling. Wallace appealed.

II.      Analysis

         A. Standard of Review

         As a preliminary matter, Wallace and the State disagree on our standard

of review. Wallace argues our review is for correction of legal error, with fact-

findings binding us if supported by substantial evidence. The State asks us to

examine the ruling for an abuse of discretion. We believe both standards apply.

         Iowa Code section 692A.128 “grants the district court authority to modify

[sex offender] registration obligations if certain conditions are met.” State v. Iowa

Dist. Court ex rel. Story Cty., 843 N.W.2d 76, 77 (Iowa 2014). Iowa Code section

692A.128(2) sets forth those conditions. In pertinent part, the provision states:

         An application [for modification] shall not be granted unless all of
         the following apply:
                 ....
                 (b) The sex offender has successfully completed all sex
         offender treatment programs that have been required.
                 (c) A risk assessment has been completed and the sex
         offender was classified as a low risk to reoffend. The risk
         assessment used to assess an offender as a low risk to reoffend
         shall be a validated risk assessment approved by the department of
         corrections.[1]

1
    Section 692A.128(6) also applies to this case. It states,
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Iowa Code § 692A.128(2). These prerequisites to modification of the registration

requirements are mandatory. Accordingly, we will review a court’s conclusion on

whether an applicant has satisfied the prerequisites for errors of law and the

underlying fact findings for substantial evidence.

       Assuming an applicant has satisfied these conditions, the court “may

modify the registration requirements.”        See id. § 692A.128(5).         The authority

conferred by this provision is clearly discretionary. Accordingly, we will review

the district court’s ultimate conclusion granting or denying a modification

application for an abuse of discretion.

       B. Conditions

       Wallace takes issue with the district court’s findings and conclusions on

two conditions: (1) successful completion of sex offender treatment and (2) an

assessment finding a low risk to reoffend.

       1. Successful Completion of Sex Offender Treatment

       The district court determined Wallace failed to successfully complete sex

offender treatment. In part, the court relied on probation reports stating Wallace

(a) did not perform well with “treatment and supervision” and (b) was “unable to

successfully complete sex offender treatment and probation.”                These reports

constitute substantial evidence in support of the district court’s determination.

While the final discharge report stated Wallace “had . . . satisfactorily complied


      A sex offender may be granted a modification if the offender is required to
      be on the sex offender registry as a result of an adjudication for a sex
      offense, the offender is not under the supervision of . . . a judicial district
      judicial department of correctional services, and the department of
      corrections agrees to perform a risk assessment on the sex offender.
Iowa Code § 692A.128(6).
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with the terms and conditions of supervision,” the district court as fact-finder

could determine what weight to assign each portion of the probation officer’s

report. See State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (“The function

of the [fact finder] is to weigh the evidence and ‘place credibility where it

belongs.’”) (citation omitted).

       We recognize the reports were hearsay evidence. But Wallace concedes

he stipulated to consideration of the entire court file, including the reports, and he

simply argues “better evidence exists in the record[].” Again, it was up to the

district court to weigh the evidence.         See id.     Because drug use was

contraindicated for individuals participating in the sex offender treatment

program, the court reasonably could have discounted the testimony of Wallace’s

expert—a former clinical director of the sex offender treatment program—that

“the [probation] violation . . . certainly was not a violation that would constitute a

concern with regard to sexual misconduct.” See id.

       Similarly, the court acted within its authority in ascribing less weight to the

letter of Wallace’s counselor than to the probation violation reports.           The

counselor essentially found that Wallace had addressed the concerns underlying

the reports.   But the preparer of the department of correctional services risk

assessment disagreed, finding the conduct reflected in the reports were

emblematic of a person who was simply “going through the motions.”               The

preparer reached the following conclusion:

       Based on information obtained in his probation records, it is
       apparent that [Wallace] routinely violated treatment and probation
       rules, was charged with new crimes on two separate occasions,
       absconded from probation at one point, and was seen by his
       probation officer as doing quite poorly throughout his probation. He
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       was subsequently placed in individual treatment . . . as opposed to
       group sex offender treatment. Therefore, I would conclude, based
       on this information, that, although there is no information available
       stating that he failed treatment, there is compelling evidence that he
       did not “. . . successfully complete all sex offender treatment
       programs that have been required.”

The court found the preparer’s “testing and conclusions to be credible,” albeit in a

different context. This was the district court’s prerogative. See Mercy Hosp. v.

Hansen, Lind & Meyer, P.C., 456 N.W.2d 666, 672 (Iowa 1990) (stating it was for

the fact finder “to decide which of the experts was more credible, which used the

more reliable data, and whose opinion—if any—the [fact-finder] would accept”).

       This brings us to the following appealing construct: successful completion

of the sex offender treatment program was a prerequisite to discharge of

Wallace’s probation, Wallace discharged his probation, so he must have

successfully completed sex offender treatment. While the district court could

have adopted this construct, the court was not required to do so, given the

equivocal statements in the probation violation reports and the risk assessment,

which we will discuss next.

       The probation violation reports and the report and testimony of the risk

assessment preparer constitute substantial evidence in support of the

determination that Wallace failed to successfully complete the sex offender

treatment program.     We affirm the district court’s determination that section

692A.128(2)(b) was not satisfied.

       2. Risk Assessment

       The preparer of the department of correctional services risk assessment

report concluded: “Actuarial risk assessments place [Wallace] at a Low-Medium
                                         8


to Moderate risk level. . . . Based on the accumulated information obtained from

this evaluation [Wallace] is not determined to be a Low risk offender at this time.”

       At the hearing, the preparer acknowledged errors in his scoring on certain

tests. At the same time, he stood by his conclusion that Wallace was not a low-

risk offender. He reasoned as follows:

       [Wallace] came to the Department of Correctional Services with
       many issues, concerns, drug use, acting out, criminal thinking, and
       there is not enough evidence to persuade me that anything has
       changed. There isn’t that stability that we would be looking for.
       There’s still marijuana use on a monthly basis, criminal behavior.
       And so there’s just enough going on that I don’t believe his risk has
       modified in the downward way that some offenders have with time
       off of supervision.

The district court found his testimony credible. While the court could have made

a contrary finding based on the testing errors, credibility findings are within the

purview of the district court. See Shanahan, 712 N.W.2d at 135.

       We are left with the court’s attempt to address the testing errors by

rescoring Wallace. The court stated “if [Wallace’s] risk scores were recomputed

on either or both . . . validated risk assessments, then the risk scores would be

increased and establish[] the defendant at an increased risk to sexually reoffend.”

In our view, it was up to the department of correctional services to perform the

risk assessment; the court’s role was simply to determine whether the risk

assessment supported a determination of a low risk to reoffend. See Iowa Code

§ 692A.128(2)(c), (6).   Accordingly, we decline to consider the discussion of

rescoring or the evidence garnered in support of rescoring.

       The preparer’s risk assessment report and testimony constitutes

substantial evidence in support of the district court’s determination that Wallace
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was not at low risk to reoffend. We affirm the district court’s determination that

section 692A.128(2)(c) was not satisfied.

      C. Modification Decision

      The district court declined to modify Wallace’s sex offender registration

requirements.    Because the court’s key fact findings were supported by

substantial evidence, the decision was not clearly untenable or clearly

unreasonable. See In re B.A., 737 N.W.2d 665, 667-68 (Iowa Ct. App. 2007).

We conclude the district court did not abuse its discretion in denying the

application to remove Wallace from the sex offender registry.

      AFFIRMED.
