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In re Care and Treatment of Brown

Court of Appeals of Missouri, Western District, Third Division

March 28, 2017


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

          Before Karen King Mitchell, Presiding Judge, and Victor C. Howard and Gary D. Witt, Judges.

          Karen King Mitchell, Presiding Judge.

         Jack 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.


         In 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.

         Because 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 so.

         A 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.

         Before 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.

         Brown 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 not confined.

         Following 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.


         Because 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).

         "In 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 colorable." Id.

         Here, 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 appeal.


         Points I-IV

         In his 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.

         A. Standard of Review

         "Typically, 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 character." Id.

         B. The SVPA is civil, not criminal.

         In his first and third points, Brown argues, on the basis of a federal district court decision, [1]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).

         In 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.

         "[T]he 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.

         "We 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 ...

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