Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                      No. 21-0866
                               Filed December 21, 2022


LARRY TWIGG,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,

Judge.



      Larry Twigg appeals the denial of his application to modify sex-offender-

registry requirements. REVERSED AND REMANDED WITH INSTRUCTIONS.



      Philip B. Mears of Mears Law Office, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.



      Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
                                          2


BADDING, Judge.

       This is the latest in a recent spate of appeals challenging the denial of an

application to modify sex-offender-registry requirements under Iowa Code

section 692A.128 (2020).1 The applicant here is Larry Twigg, a former high school

teacher who was convicted of five counts of lascivious conduct with a minor. After

registering as a sex offender for seven years, Twigg sought removal from the

registry. The district court denied his application, finding he had not successfully

completed all required sex-offender-treatment programs and was not classified as

a low risk to reoffend. Twigg appeals, claiming those findings were not supported

by substantial evidence. We agree and reverse the court’s ruling.

I.     Background Facts and Proceedings

       In November 2020, Twigg filed an application to modify his sex-offender-

registry requirements so that “he no longer is required to register at all under” Iowa

Code chapter 692A. Twigg had to register as a sex offender because of his

convictions in 2013 for lascivious conduct with a minor.2           See Iowa Code



1 See, e.g., Evans v. State, No. 21-0904,
2022 WL 3907741
, at *1–4 (Iowa Ct. App.
Aug. 21, 2022); Brown v. State, No. 21-0785,
2022 WL 3420890
, at *1–3 (Iowa Ct.
App. Aug. 17, 2022); State v. Oltrogge, No. 21-0776,
2022 WL 2824774
, at *1–6
(Iowa Ct. App. July 20, 2022); State v. Seidell, No. 21-0493,
2022 WL 951002
, at
*1–4 (Iowa Ct. App. Mar. 30, 2022); State v. Buck, No. 21-0129,
2022 WL 951067
,
at *1–3 (Iowa Ct. App. Mar. 30, 2022); State v. Larvick, No. 20-1273,
2022 WL 610361
 at *1–4 (Iowa Ct. App. Mar. 2, 2022); State v. Todd, No. 19-2001,
2021 WL 3075756
, at *1–6 (Iowa Ct. App. July 21, 2021); see also Becher v. State,
957 N.W.2d 710
, 712–17 (Iowa 2021); Fortune v. State,
957 N.W.2d 696
, 700–10 (Iowa
2021).
2 Twigg was first convicted of five counts of lascivious conduct with a minor in 2011.

His convictions were reversed on direct appeal, and he was granted a new trial
based on evidentiary error. See generally State v. Twigg, No. 11-0733,
2012 WL 3590045
 (Iowa Ct. App. Aug. 22, 2012). On retrial, Twigg was again convicted
of all five counts.
                                         3


§ 692A.103 (2013). The convictions stemmed from incidents that occurred at the

end of 2009 and beginning of 2010 between Twigg and one of his seventeen-year-

old high school students. Twigg’s combined sentences for the convictions totaled

two years, plus a ten-year special sentence under Iowa Code section 903B.2. His

convictions and sentences were affirmed following a second appeal.              See

generally State v. Twigg, No. 13-1094,
2014 WL 3747676
 (Iowa Ct. App.

July 30, 2014). Twigg had posted bond on appeal, so he was not taken into

custody until shortly after procedendo issued in March 2015.

       Twigg discharged his sentence in February 2016, upon which his ten-year

special sentence began. See Iowa Code § 903B.2. According to the supervision

history contained in a report prepared by the judicial district department of

correctional services, Twigg entered a residential correctional facility on

February 6 and was released to his own residence on March 29.               He then

“remained on parole supervision until his successful discharge on 8/23/2020,”

following which he sought removal from the registry.

II.    Statutory Framework

       As explained by our supreme court in Fortune v. State, modification of sex-

offender-registration requirements is a two-step process. 957 N.W.2d at 702–03.

The first step for the district court is determining whether an applicant has met the

threshold requirements of Iowa Code section 692A.128. Id. at 703. If not, “that is

the end of the matter and the district court must deny the modification.” Id. at 705.

But if those requirements have been met, “the district court proceeds to the second

step,” determining whether, “in its discretion, the registration requirements should

be modified.” Id. “In this second step, the district court should consider the
                                            4


statutory factors and any other factors that the district court finds relevant to the

modification issue.” Id.

       The first step is reviewed for the correction of errors at law. Id.; see also

Becher, 957 N.W.2d at 714. This legal question turns on whether the district

court’s conclusions about satisfaction of the prerequisites for modification are

supported by substantial evidence. See State v. Wallace, No. 15-1448,
2016 WL 6636681
, at *2 (Iowa Ct. App. Nov. 9, 2016). If the criteria are satisfied, the

district court’s decision on the second step is reviewed for an abuse of discretion.

Fortune, 957 N.W.2d at 705; see also Becher, 957 N.W.2d at 714.

III.   Analysis

       As a tier II offender, Twigg had to meet the following threshold requirements

in the first step of the analysis to be considered for modification: (a) “[t]he date of

the commencement of the requirement to register occurred at least . . . five years

prior to the filing of the application,” (b) he “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,” and (d) he

was    “not   incarcerated   when     the   application   is   filed.”3   Iowa    Code

§ 692A.128(2)(a)–(d).

       In a report filed with the district court, the judicial district department of

correctional services found that Twigg had met all those requirements. Breaking



3 The statute also requires that the director of the judicial district department of
correctional services supervising the offender stipulate to the modification. See
Iowa Code § 692A.128(2)(e). But because Twigg was not being supervised when
he filed his application, this requirement does not apply. See Becher, 957 N.W.2d
at 716–17.
                                         5


the requirements down, the department concluded that Twigg’s “registration was

initiated on 6/24/2013,” which “meets the 5 year requirement.”4              See id.

§ 692A.128(2)(a). As to the second requirement, the department concluded that

Twigg successfully completed all sex-offender-treatment programs that were

required. See id. § 692A.128(2)(b). The report detailed Twigg’s participation in

six treatment programs while incarcerated, five of which closed with “[c]ompleted

[r]equirements” and one with “Noncompliant/Behavioral Issues.”            Twigg also

successfully completed sex offender treatment and aftercare following his release.

       Next, the department found Twigg met the third requirement, noting a risk

assessment had been completed classifying Twigg at a low risk to reoffend. See

id. § 692A.128(2)(c). Three standard tests were used for the assessment: the

STATIC-99R,     Iowa   Sex    Offense    Risk   Assessment     (ISORA),    and   the

STABLE 2007. When the STATIC-99R was conducted in February 2017, Twigg’s

score placed him in the “average risk” to reoffend category. But after adjusting the

score for his time “at liberty in the community,” that category was reduced to “below

average risk” to reoffend. The ISORA was conducted in December 2019, and

Twigg’s score placed him at a “low risk” level to reoffend. The combined score for

those two tests assessed Twigg at a “very low risk” to reoffend.             On the

STABLE 2007, Twigg’s score “represent[ed] a risk level of moderate,” though the



4 Because Twigg was free on bond during his second appeal, his registration
requirement started when he posted that bond after his 2013 conviction. See
Maxwell v. Iowa Dep’t of Pub. Safety,
903 N.W.2d 179, 182
 (Iowa 2017) (finding a
defendant’s release on an appeal bond “constituted a ‘release from incarceration’
under section 692A.103(1)(c) that required him to register at that time,” even
though the defendant was never incarcerated between the time sentence was
imposed and he posted bond).
                                          6


combined STATIC-99R/STABLE 2007 projected categorization was either “very

low risk” or “below average risk.” All-in-all, the department found Twigg’s scoring

on the ISORA and the combined STATIC-99R/ISORA satisfied the statutory

requirement. Finally, the report noted Twigg was not incarcerated when he filed

his application. See
id.
 § 692A.128(2)(d).

       At the hearing on the application, the State resisted modification based on

the protective purpose of the registry requirement and the nature of Twigg’s

crimes. The State also pointed out that one of the three risk assessment tests

identified Twigg as having a moderate risk to reoffend. For his part, Twigg’s

attorney argued that he was now “63 years old, no longer teaching, he’s not going

back to teaching, [and] that he’s judged by the people who supervised him as being

low or very low” risk. In an affidavit submitted to the court, Twigg additionally noted

he had been married for forty-two years and, if the modification was granted,

planned “to move to [his] wife’s family home in Ohio.”

       Following the hearing, and Twigg’s notification of the Iowa Supreme Court’s

recent decisions in Fortune and Becher, the district court denied the application.

Though the court did not specifically follow the two-step analysis laid out in those

cases, it issued findings consistent with concluding Twigg met the first, fourth, and

fifth threshold requirements for modification. But as to the second requirement,

the court found:

              Section 692A.128(2)(b) requires [Twigg] to have successfully
       completed all sex offender treatment programs that have been
       required. The information provided by the department of correctional
       services does not state that [Twigg] completed the requirements of
       “SOTP Track 2: Disclosure.” The other sex offender treatment
       programs listed in the report indicate that [Twigg] “Completed
                                               7


       Requirements” or successfully completed them, but “SOTP Track 2:
       Disclosure” does not.

       Twigg      challenges     this    finding,   arguing   the   department’s   report

unequivocally stated he completed all sex-offender treatment that was required.

The State agrees with Twigg, and so do we.

       The department specifically concluded Twigg successfully completed all

required programs, both by checking the “yes” box for that requirement and by

explaining that after his release, Twigg “successfully completed” formal sex

offender treatment and aftercare. While the report detailed all of the treatment

programs he participated in while confined, it never stated the “SOTP Track 2:

Disclosure”—the one the court said was not completed—was a required treatment

program.      As a result, we conclude the court’s finding that this statutory

requirement was not met is not supported by substantial evidence.                   See

Wallace,
2016 WL 6636681
, at *2; see also Todd,
2021 WL 3075756
, at *5

(“[T]here is not substantial evidence Todd was ever ‘required’ to complete any sex

offender treatment programming.               Because no such programming was

required section 692A.128(2)(b) was satisfied, and the district court erred in

denying Todd’s application for modification for want of satisfaction of that

criteria . . . .” (footnote omitted)).

       Twigg also challenges the court’s treatment of his risk assessment, the third

threshold requirement. See Iowa Code § 692A.128(2)(c). The court appears to

have concluded that Twigg did not meet this requirement in noting the STATIC-

99R “classifies him as below average risk to reoffend but does not classify him as

a low risk to reoffend,” and the STABLE 2007 “classifies [him] as a moderate risk
                                          8


to reoffend, not a low risk.” Again, Twigg points to the department’s specific

conclusion that he met this requirement, as well as the fact that other assessment

tools were used that classified him as low risk.           See, e.g., Brown,
2022 WL 3420890
, at *2 (“[T]he results from one assessment instrument cannot be used

in isolation, as the best assessment of an offender’s risk level comes from viewing

the instruments as a whole.”). The State once more agrees with Twigg, and so do

we. See Fortune, 957 N.W.2d at 707 (“The district court cannot disqualify Fortune

from eligibility for modification for his assessment that meets the statutory

requirement for consideration as a low-risk offender.”).

       Because the uncontested evidence, along with the State’s concessions on

appeal, establish that Twigg met the threshold requirements for modification, we

conclude he successfully completed the first step of the process. See Brown,
2022 WL 3420890
, at *2. But what about the second step?

       The State argues that even though the district court’s ruling “does not align

with the structure espoused in Fortune—that is to say, there is no clear

demarcation which factors the court believed addressed the threshold inquiry or

the second, discretionary inquiry,” we can still affirm the court’s “decision to deny

modification because its ruling indicates it reached the second inquiry, is sufficient

to permit appellate review and can be sustained on a ground that was not clearly

untenable nor unreasonable.” We disagree.

       Though the court could have stopped after it concluded that two of the

threshold requirements were not met, Fortune, 957 N.W.2d at 705, it then

discussed other factors informing its decision to deny Twigg’s application. Those

factors included the purpose of the registry, the circumstances of the crime, and
                                         9


Twigg’s planned move to Ohio, which the court found would aid Twigg in “avoiding

detection and apprehension if he reoffends.” But see Oltrogge,
2022 WL 2824774
,

at *4 (finding no apparent tie between an applicant’s move to another state and

public safety). But interspersed in that discussion were the court’s erroneous

findings on the second and third threshold requirements.

       We considered a similar ruling in Brown,
2022 WL 3420890
, at *2, where,

as here, the court erroneously concluded the applicant was not classified as a low

risk to reoffend but then “went on to discuss additional facts.” In reviewing that

ruling, this court held:

       The purpose of that discussion [about additional facts] is not clear
       given the court’s finding that Brown was not a low risk to reoffend.
       The court never said it was analyzing the second step, possibly as a
       belt-and-suspenders approach to try to rule on step two despite its
       finding that Brown did not clear step one. Further, the discussion of
       those facts is so intertwined with the repeated finding that Brown was
       not a low risk to reoffend that we are unable to determine if the facts
       discussed were part of the court’s analysis on step two. Under these
       circumstances, we are not in a position to assess whether Brown has
       satisfied step two. Further proceedings will be needed to do that.

Brown,
2022 WL 3420890
, at *2.            We reach the same conclusion here.

Cf. Oltrogge,
2022 WL 2824774
, at *5 (holding that the court abused its discretion

in denying an application to modify sex-offender-registry requirements where, after

properly finding the first step was met, the court considered irrelevant and improper

factors in the second step).

IV.    Conclusion

       We conclude the district court erred in determining that Twigg did not meet

the threshold statutory requirements to modify his sex-offender-registry

obligations. Because those requirements were met, but we cannot determine
                                       10


whether the court exercised its discretion in the second step of the modification

process, we remand this matter to the court. On remand, the court shall “exercise

its discretion under section 692A.128(5) and (6) to determine whether to grant

modification and what the scope of any such modification should be.” Brown,
2022 WL 3420890
, at *3; accord Becher, 957 N.W.2d at 714. “The proceedings on

remand may be conducted on the existing record, [although] the court is not

prohibited from taking additional evidence if it deems appropriate . . . .” Brown,
2022 WL 3420890
, at *3.

      REVERSED AND REMANDED WITH INSTRUCTIONS.