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In re Care and Treatment of George

Court of Appeals of Missouri, Western District, Second Division

January 24, 2017

IN THE MATTER OF THE CARE AND TREATMENT OF MILTON GEORGE a/k/a MILTON D. GEORGE, a/k/a MILTON DEWAYNE GEORGE, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Kathleen A. Forsyth, Judge

          Before Lisa White Hardwick, Presiding Judge, and Karen King Mitchell and Anthony Rex Gabbert, Judges

          Karen King Mitchell, Judge

         Following a jury trial, Milton George was found to be a sexually violent predator (SVP) under § 632.480, [1] and he was committed to the custody of the Department of Mental Health. George appeals. He argues that the evidence was insufficient to prove clearly and convincingly that his diagnosis of schizophrenia made him more likely than not to commit future predatory acts of sexual violence if not confined to a secure facility and that the State's use at trial of the term "sexually violent predator" unconstitutionally prejudiced the jury against him. We affirm.

         Background[2]

         In 2009, George was convicted of rape and forcible sodomy and sentenced to eight years in the Department of Corrections. Prior to George's release, the Department provided written notice to the multidisciplinary team under § 632.483.4 that George may meet the criteria of a sexually violent predator. The multidisciplinary team determined that George appeared to meet the definition of a sexually violent predator, and it notified the Attorney General of its assessment. The prosecutors' review committee reviewed the assessment under § 632.483.5 and determined that George met the definition of a sexually violent predator. Prior to George's release, the State filed a petition seeking George's commitment to the Department of Mental Health as a sexually violent predator under the Sexually Violent Predator Act ("SVP Act"), § 632.480, et seq.

         At trial, the State called Dr. Steven Mandracchia, a psychologist, in support of its petition. He was the only witness to testify. Dr. Mandracchia evaluated George to determine if he was an SVP. The doctor testified that he has done approximately forty similar evaluations and that he had reviewed George's records, including criminal records, social history records, treatment records, and records from the Department of Corrections. Based on George's treatment history, including forty to forty-five hospital admissions for schizophrenia over the past 25 years, as well as his behaviors, Dr. Mandracchia opined that George had the mental abnormality of schizophrenia.

         Dr. Mandracchia testified that George had difficulty controlling his behavior, as demonstrated by his aggression toward others and attempt to harm himself, as well as his bizarre sexual behaviors. The doctor said that, on several occasions, George was brought to psychiatric facilities because of his hypersexual behavior, which included exposing himself in public.

         While in prison, George had multiple conduct violations for breaking rules, including a physical altercation with a fellow inmate and another with a guard. George had at least three violations that were of a sexual nature. Dr. Mandracchia testified that George urinated in an area of the cell where he should not have been urinating, in full view of an officer. George also masturbated in front of officers on two occasions; on one of the occasions, George rolled up his mattress and masturbated into it. Dr. Mandracchia said that, when instructed to stop, George refused. While in jail awaiting this trial, George fondled himself in front of other inmates on two occasions.

         During his incarceration, George was so psychiatrically impaired that he was unable to participate in the sex offender treatment program, although he did complete a clinical review form. On the form, George indicated that he masturbated six times a day; had fantasies including voyeurism, exposing himself, and fetishes with objects; looked at pornographic materials; and had sexual activity with animals.

         Dr. Mandracchia also relied on an actuarial evaluation, which determined that George was "in the moderate to moderately high range" to reoffend if not in a secure facility. Dr. Mandracchia testified that the actuarial test underestimated George's likelihood to commit sexually violent crimes if not in a secure facility, because it measured the likelihood only of a person being rearrested or reconvicted.

         Based on this information, Dr. Mandracchia found that George was an SVP. Dr. Mandracchia opined that George's schizophrenia caused him to have serious difficulty controlling his behavior and made him more likely than not to commit another predatory act of sexual violence if not placed in a controlled facility.

         The jury found that George was an SVP. On May 12, 2015, the probate court issued its Judgment and Commitment Order finding that George was an SVP and committing him to the custody of the Department of Mental Health for control, care, and treatment until such time as George's mental abnormality had so changed that he was safe to be at large.

         Standard of Review

         "Appellate review in an SVP case is limited to a determination of whether there was sufficient evidence admitted from which a reasonable jury could have found each necessary element by clear and convincing evidence." In re A.B., 334 S.W.3d 746, 752 (Mo. App. E.D. 2011). "The appellate court does not reweigh the evidence but determines only whether the judgment was supported by sufficient evidence." Id. "Matters of credibility and weight of testimony are for the jury to determine." Id. "For that reason, the evidence is viewed in the light most favorable to the judgment, accepting as true all evidence and reasonable inferences favorable to the judgment and disregarding all contrary evidence and inferences." Id. "A judgment will be reversed on insufficiency of the evidence only if there is a complete absence of probative facts supporting the judgment." Id.

         Questions of law are reviewed de novo. In re Murphy, 477 S.W.3d 77, 81 (Mo. App. E.D. 2015).

         Analysis

         "Missouri's SVP statute requires a finding that, to be committed, the individual 1) has a history of past sexually violent behavior; 2) a mental abnormality; and 3) the abnormality creates a danger to others if the person is not incapacitated." In re Murrell, 215 S.W.3d 96, 105 (Mo. banc 2007). Under § 632.480(5)(a), an offender has a history of sexually violent behavior if he "[h]as pled guilty or been found guilty . . . of a sexually violent offense." George does not dispute that rape and forcible sodomy are sexually violent offenses. Once a history of sexual violence has been established, before an offender may be committed as an SVP, "the State must satisfy a two-prong test: (1) the offender must suffer from a mental abnormality; (2) that makes him more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility." A.B., 334 S.W.3d at 752.

         George offers five points on appeal. In his first three points, George argues that there was insufficient evidence to find him to be an SVP because the evidence was insufficient to demonstrate that it was more likely than not that he would engage in predatory acts of sexual violence in that: (1) there was no evidence that George's mental abnormality, schizophrenia, predisposes him to commit predatory acts of sexual violence; (2) the State's expert testimony was without foundation because Dr. Mandracchia failed to specify that the threat of future sexual violence must be predatory and failed to define the term; and (3) there was no evidence that any future sexual violence George might commit would be for the primary purpose of victimization, a requirement for the behavior to be predatory. In George's fourth and fifth points, he argues that he was deprived of a fair trial because the State was allowed to use the "inherently pejorative" phrase "sexually violent predator" at trial, and the phrase appeared in the instructions.

         I. Predisposition to acts of predatory violence.

         In his first point, George claims that the State failed to prove that his mental abnormality, schizophrenia, predisposes him to commit sexual violence. In support, George argues that, while Dr. Mandracchia did testify that George suffers from schizophrenia, Dr. Mandracchia never explicitly testified that schizophrenia predisposed George to commit predatory acts of sexual violence. In fact, according to George, "Dr. Mandracchia's testimony established the opposite" because he "testified to his own opinion that 'it does not predispose people to commit sex crimes, when you say just the diagnosis of schizophrenia.'"

         But George simply misunderstands that the SVP statute does not require proof of "a mental abnormality that, in and of itself, predisposes a person to commit sexually violent offenses." Murrell, 215 S.W.3d at 106. Rather, "Missouri's SVP statute . . . only require[s] 'evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated.'" Id. (quoting Kansas v. Hendricks, 521 U.S. 346, 357-58 (1997)). "Under [ยง] 632.480 . . ., 'mental abnormality' is (1) a congenital or acquired condition; (2) affecting the emotional or volitional capacity; (3) that predisposes the person to commit sexually violent offenses; (4) in a ...


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