Brian D. Smith, of Saunderstown, as he appears on the R.I. Sex Offender Registry. Smith “touched several children inappropriately” during a Newport International Polo event in July 2014, according to Portsmouth Police. He was later convicted of second-degree child molestation in separate cases.

The petitioner submits that while he was incarcerated he did not pose a threat to the community and that, therefore, community notification should not have occurred.”

The R.I. Supreme Court, which rejected that argument

PORTSMOUTH — A Saunderstown man who was first arrested in 2014 after police said he touched two children inappropriately during a polo match in Portsmouth will keep his Level III sex offender status, the R.I. Supreme Court has ruled.

Brian D. Smith, 63, had appealed a Superior Court judgement that sided with the R.I. Attorney General’s Office, which upheld the R.I. Sex Offender Board of Review’s classification of Smith as a Level III sex offender. In a ruling handed down Thursday, Feb. 13, however, the Supreme Court affirmed the lower court’s judgement and denied Smith’s appeal.

The Sex Offender Board of Review assesses and assigns a risk of sexual recidivism for sex offenders in the community. The three levels of risk it assigns to offenders are: 

• Level I — low risk. Notification is made to other law enforcement only. Victims and case witnesses may receive notification upon request to police.

• Level II — moderate risk. Notification made to other law enforcement and agencies likely to encounter the offender, plus posting to the public website for adult offenders. Victims and case witnesses may receive notification upon request to police.

• Level III — high risk. Notification made to other law enforcement and individuals and agencies likely to encounter the offender, plus posting to the public website for adult offenders. Victims and case witnesses may receive notification upon request to police.

Smith was arrested by Portsmouth Police in 2014, following an investigation into a July 19 incident at the Newport International Polo grounds at Glen Farm. According to police, Smith struck up a conversation with two 10-year-olds — a boy and a girl — and embraced them from behind and proceeded to rub their shoulders. The girl further alleged that Smith “put his hand up her skirt rubbing her thigh,” according to court records. 

After a jury trial in April 2016, Smith was found not guilty of a count of second-degree child molestation but guilty of simple assault. He was later sentenced to serve two years at the Adult Correctional Institutions (ACI) in Cranson.

More trouble

While that case was pending, Smith was charged with second-degree child molestation in a separate case in November 2015. Smith’s niece reported to Portsmouth Police that he had sexually assaulted her in 2004, when she was 9, and local law enforcement officials contacted the Smithfield Police Department. 

Smith pled no contest to one count of second-degree child molestation and was sentenced to 10 years at the ACI with two years to serve, eight years suspended, and 10 years’ probation.

“It was this conviction that triggered Smith’s case for the board’s determination of petitioner’s risk to reoffend,” Justice Maureen McKenna Goldberg wrote for the court.

In November 2016, Smith was charged in yet a third case after “an anonymous source contacted the Portsmouth Police Department and advised that it was possible that Smith had molested numerous children years ago in the town of East Greenwich,” according to Goldberg. The East Greenwich Police Department subsequently reported that Smith had assaulted three girls over a period of time, “all of whom reported to having been sexually abused by Smith when they were as young as 5 years old, and two who reported that the abuse continued for another six to seven years,” Goldberg wrote.

Smith pled no contest in December 2017 to two of the four second-degree child molestation charges in Kent County, and the remaining two charges were dismissed. He was sentenced to 10 years at the ACI, with six years to serve, four years suspended, and 10 years’ probation for each count, to run concurrently.

Shortly before his plea, Smith’s sex offender classification was set at Level III and his risk to reoffend was determined as “high.” He appealed the classification while at the ACI, but a Superior Court magistrate affirmed the board’s classification after a hearing in November 2021. Smith then appealed to a justice of the Superior Court, which ruled against him in January 2023.

Supreme Court rejects appeal

In his appeal to the high court, Smith claimed his right to due process was violated when his sex-offender classification was first published because he was not given the opportunity to challenge the findings of the board “through standard adversarial proceedings.” The court rejected that argument, saying Smith failed to articulate what “adversarial proceedings were lacking,” and that he was provided ample opportunity for a full and meaningful hearing.

Smith also argued that since he was incarcerated at the ACI from April 4, 2016, through Nov. 16, 2021, he did not pose a threat to the community at that time and, therefore, community notification should not have occurred. However, there is no record that Smith “made any effort to have the notification removed from the sex-offender website, nor did Smith timely object to this issue during his appeal before the magistrate,” Goldberg wrote, adding that Smith’s claims lacked merit. 

The high court also struck down Smith’s argument that his pleas of no contest could not be considered either an admission of guilt or a conviction. Goldberg wrote that “a plea of nolo contendere is to be treated the same as a guilty plea or a guilty verdict under the Notification Act.”