Munson v. Ark. Dep't of Correction Sex Offender Screening & Risk Assessment Comm.
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Cite as 2009 Ark. 469
ARKANSAS SUPREME COURT
No.
08-554
Opinion Delivered
October 1, 2009
PRO SE MOTION TO SUPPLEMENT
RECORD [CIRCUIT COURT OF
PULASKI COUNTY, CV 2007-13276]
JAMES R. MUNSON
Appellant
v.
MOTION DENIED.
ARKANSAS DEPARTMENT OF
CORRECTION SEX OFFENDER
SCREENING AND RISK ASSESSMENT
COMMITTEE
Appellee
PER CURIAM
A jury found appellant James R. Munson guilty of first-degree violation of a minor and this
court affirmed the judgment. Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). The Arkansas
Department of Correction Sex Offender Screening and Risk Assessment Committee (“SOSRA”)
assessed appellant as a level III offender and appellant requested administrative review of the
assessment. Appellant filed a pro se petition for judicial review. The Pulaski County Circuit Court
dismissed the petition, and, on appeal, we dismissed the appeal, holding that no final order had been
issued by SOSRA. Munson v. Ark. Dep’t of Corr. Sex Offender Screening & Risk Assessment, 369
Ark. 290, 253 S.W.3d 901 (2007). Appellant thereafter filed a petition requesting judicial review
of a final order affirming the level and appellant’s assessment dated July 27, 2007, that the circuit
court denied and dismissed. Appellant lodged an appeal of that order in this court and has now filed
a motion to supplement the record.
Cite as 2009 Ark. 469
Appellant attached to his motion to supplement an affidavit dated April 22, 2009, sworn by
Ms. Karen Sue Nichols, who avers as to certain statements and actions by the victim and other
family members during the investigation of the charges against appellant. Appellant asserts that the
affidavit would show that appellee failed to follow proper procedures and that the assigned level
should be lower than that assessed. Appellant requests that the affidavit be made a part of the record
for review.
Judicial review of SOSRA assessment decisions are governed by the provisions of the
Arkansas Administrative Procedure Act. Ark. Code Ann. § 12-12-922(b)(7)(A)(ii) (Supp. 2007).
Under the act, the record shall include the following: (1) pleadings, motions, and intermediate
rulings; (2) evidence received or considered; (3) a statement of matters officially noticed; (4) offers
of proof, objections, and rulings thereon; (5) proposed findings and exceptions thereto; (6) all staff
memoranda or data submitted to the hearing officer or members of an agency in connection with
their consideration of the case. Ark. Code Ann. § 25-15-208(a)(5) (Repl. 2002). Appellant does not
show that the affidavit that he would include would fall within any of those categories in order to
support its inclusion.
This court has long and consistently held that it cannot, in the exercise of its appellate
jurisdiction, receive testimony or consider anything outside of the record below. Hudson v. Kyle,
365 Ark. 341, 229 S.W.3d 890 (2006); see also Clark v. Pine Bluff Civil Serv. Comm’n, 353 Ark.
810, 120 S.W.3d 541 (2003); Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002); Boswell, Tucker
& Brewster v. Shirron, 324 Ark. 276, 921 S.W.2d 580 (1996); McLeod v. Mabry, 206 Ark. 618, 177
S.W.2d 46 (1944). The date of the affidavit that appellant would include within the record falls after
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Cite as 2009 Ark. 469
the date of the final SOSRA order. While there is a previous affidavit from Ms. Nichols that was
apparently considered by the committee and included within the record, the affidavit that appellant
would include could not have been considered or offered as proof. It was not a part of the record
and we cannot consider it in our review. Accordingly, we deny appellant’s motion.
Motion denied.
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