Court of Appeals of Missouri, Western District, Third Division
IN THE MATTER OF THE CARE AND TREATMENT OF JACK BROWN a/k/a GARY JONES, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Jackson County, Missouri The
Honorable Kathleen A. Forsythe, Judge
Karen King Mitchell, Presiding Judge, and Victor C. Howard
and Gary D. Witt, Judges.
King Mitchell, Presiding Judge.
Brown appeals, following a jury trial, his civil commitment
for control, care, and treatment as a sexually violent
predator. Brown raises seven points on appeal. The first four
challenge the constitutionality of various aspects of the
Sexually Violent Predator Act (SVPA). Brown's fifth point
argues that the court erred in permitting use of the term,
"sexually violent predator, " during trial. His
sixth point challenges the court's ruling permitting both
comment and testimony regarding the screening process for
civil commitment under the SVPA. And his final point argues
that the court plainly erred in admitting statements from the
victim of a sexual assault allegedly committed by Brown in
1990. Finding no reversible error, we affirm.
2005, Brown pled guilty to forcible sodomy for his acts of
grabbing a woman from a bus stop, dragging her to a vacant
lot, forcing her onto her knees, and anally raping her; he
was sentenced to ten years in the Department of Corrections.
During his first eight and one-half years of incarceration,
Brown had 130 conduct violations, 64 of which involved sexual
misconduct. Most of the sexual misconduct violations involved
masturbating in front of or exposing his penis to female
staff members. But one of the violations involved Brown
holding a razor blade to another inmate's throat while
Brown anally raped him.
of his numerous and repeated conduct violations, Brown spent
a large portion of his incarceration in administrative
segregation at a maximum security facility; consequently, he
was unable to participate in the Missouri Sex Offender
Program, as the program was conducted only at a medium
security facility. Though Brown was advised that he would
need to change his behavior in order to change his security
level and obtain admission into the program, Brown did not do
review of Brown's offense history revealed two
convictions for indecent conduct in 1982 and 1985 (though the
nature of the conduct was unclear), as well as charges of
rape and forcible sodomy against the same victim in 1990.
During cross-examination of Brown's expert witness, after
Brown's expert testified that the 1990 offense was
"totally different" from the 2005 conviction, the
State introduced the 1990 victim's statements from two
days after the incident. In her statement, the victim
indicated that Brown, then a co-worker, had come over to her
home to deliver some work-related papers. After Brown
arrived, he stayed and drank for a while, even leaving at one
point to purchase more alcohol and then returning. Because
the victim had two loud roommates, she and Brown went into
her bedroom to continue talking. Once they entered the
victim's bedroom, Brown shut the door and locked it,
advising the victim that she "was going to do
something." Brown then pulled his pants down to his
ankles and began to hit the victim in the face with his
penis. Brown warned the victim not to say anything or he
would hurt her. Brown then turned off the lights, pushed the
victim down onto the bed, put his hand over her mouth, and
began to vaginally rape her. Brown then forced the victim to
perform oral sex, after which, he vaginally raped her again
and then anally raped her. The 1990 case was ultimately
dismissed because the victim refused to appear for trial.
Brown's release from the Department of Corrections, Dr.
Nena Kircher drafted an end-of-confinement report, wherein
she opined that Brown potentially met the definition of a
sexually violent predator under the SVPA. Dr. Steven
Mandracchia was later appointed by the court, pursuant to the
SVPA, to conduct an evaluation of Brown and render an opinion
as to whether Brown met the definition of a sexually violent
predator under the SVPA. Dr. Mandracchia determined that
Brown suffered from paraphilia, not otherwise specified,
non-consent, that Brown's paraphilia constituted a mental
abnormality under the SVPA, and that Brown's paraphilia
caused him serious difficulty controlling his behavior and
rendered him more likely than not to engage in predatory acts
of sexual violence if not confined in a secure facility.
hired Dr. Luis Rosell to conduct a separate evaluation.
Though Dr. Rosell diagnosed Brown with antisocial personality
disorder, Dr. Rosell opined that Brown did not have a mental
abnormality under the SVPA and that Brown was not more likely
than not to engage in predatory acts of sexual violence if
a trial, the jury found Brown to be a sexually violent
predator, and the court ordered him committed to the custody
of the Department of Mental Health for control, care, and
treatment. Brown appeals.
Brown raises four claims challenging the constitutionality of
the SVPA, we must address our jurisdiction over this appeal,
as "[a]rticle V, section 3 of the Missouri Constitution
vests th[e Missouri Supreme] Court with exclusive appellate
jurisdiction in all cases involving the validity of a
statute." McNeal v. McNeal-Sydnor, 472 S.W.3d
194, 195 (Mo. banc 2015). But the Missouri Supreme
Court's "exclusive appellate jurisdiction is not
invoked simply because a case involves a constitutional
issue." Id. To invoke the Court's exclusive
jurisdiction, "[t]he constitutional issue must be real
and substantial, not merely colorable." Id.
"When a party's claim is not real and substantial,
but, instead, merely colorable, our review is proper."
Ahern v. P & H, LLC, 254 S.W.3d 129, 134 (Mo.
App. E.D. 2008).
determining whether a constitutional claim is real and
substantial or merely colorable, [the reviewing c]ourt makes
a preliminary inquiry as to whether [the claim] presents a
contested matter of right that involves fair doubt and
reasonable room for disagreement." Mo. Hwy. and
Transp. Comm'n v. Merritt, 204 S.W.3d 278, 285 (Mo.
App. E.D. 2006). "If this initial inquiry shows that the
claim is so legally or factually insubstantial as to be
plainly without merit, the claim may be deemed merely
each of the constitutional challenges Brown raises have been
addressed by either the United States Supreme Court or the
Missouri Supreme Court. Thus, they do not involve fair doubt
or reasonable room for disagreement. Rather, they are merely
colorable. Accordingly, we have jurisdiction over this
first three points on appeal, Brown argues that the probate
court erred in overruling his motions to dismiss, which
alleged that the SVPA was unconstitutional insofar as it
violates due process and equal protection, as well as the
bars on ex post facto laws, double jeopardy, and cruel and
unusual punishment. In his fourth point, he argues that the
probate court erred in overruling his motion to dismiss,
alleging that the SVPA is unconstitutional because it fails
to require proof of serious difficulty controlling behavior.
All of these claims have been addressed and ruled against
Brown's position by either the United States Supreme
Court or the Missouri Supreme Court.
Standard of Review
this Court reviews the trial court's ruling on a motion
to dismiss for an abuse of discretion." State v.
Williams, 411 S.W.3d 315, 319 (Mo. App. E.D. 2013).
"However, this Court reviews the circuit court's
determination of the constitutional validity of a state
statute de novo." Id. "Statutes are
presumed constitutional and will be found unconstitutional
only if they clearly contravene a constitutional
provision." Id. "The rules applicable to
constitutional construction are the same as those applied to
statutory construction, except that the former are given a
broader construction, due to their more permanent
The SVPA is civil, not criminal.
first and third points, Brown argues, on the basis of a
federal district court decision, that the SVPA is punitive
and, as such, it violates his right to be free from ex post
facto laws, double jeopardy, and cruel and unusual
punishment. But the SVPA is largely similar to the statutory
scheme at issue in Kansas v. Hendricks, 521 U.S. 346
(1997), wherein the United States Supreme Court held that
this statutory scheme for civil commitment did not establish
criminal proceedings and was, thus, nonpunitive. Id.
at 361, 369. The Court held:
Where the State has disavowed any punitive intent; limited
confinement to a small segment of particularly dangerous
individuals; provided strict procedural safeguards; directed
that confined persons be segregated from the general prison
population and afforded the same status as others who have
been civilly committed; recommended treatment if such is
possible; and permitted immediate release upon a showing that
the individual is no longer dangerous or mentally impaired,
we cannot say that it acted with punitive intent.
Id. at 368-69 (internal quotation omitted).
2008, following Hendricks, the Missouri Supreme
Court addressed a constitutional challenge to the SVPA.
In re Van Orden, 271 S.W.3d 579 (Mo. banc 2008).
And, like the United States Supreme Court in
Hendricks, the Missouri Supreme Court ultimately
determined that "[a]lthough the proceedings involve a
liberty interest, they are civil proceedings."
Id. at 585.
phrase 'ex post facto law' applies exclusively to
criminal laws . . . ." State v. Honeycutt, 421
S.W.3d 410, 419 (Mo. banc 2013). Because the SVPA has been
conclusively determined by our Supreme Court to be civil,
rather than criminal, it cannot constitute an ex post facto
law. And, "[b]ecause . . . the . . . Act is civil in
nature, initiation of its commitment proceedings does not
constitute a second prosecution"; thus, it "does
not violate the Double Jeopardy Clause, even though that
confinement may follow a prison term."
Hendricks, 521 U.S. at 369. And, because confinement
upon commitment does not constitute punishment, commitment
cannot be deemed cruel or unusual punishment.
are bound to follow the latest Missouri Supreme Court
precedent." State v. D.W.N., 290 S.W.3d 814,
829 (Mo. App. W.D. 2009). Thus, despite Brown's urging
that we reject the law as stated in Van Orden, we
will not do so. The SVPA is civil in nature; thus, Brown has
failed to ...