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In re Care and Treatment of Underwood

Court of Appeals of Missouri, Western District, First Division

May 2, 2017



          Before: Gary D. Witt, Presiding Judge, Alok Ahuja, Judge and Edward R. Ardini, Jr., Judge


         James Underwood (Underwood) appeals his civil commitment for control, care, and treatment as a sexually violent predator. Underwood raises eight points on appeal. The first three points challenge the constitutionality of various aspects of the Sexually Violent Predator Act (Act). Underwood's fourth point argues that the trial court erred in permitting use of the term "sexually violent predator" during trial. His fifth point argues that the trial court plainly erred in admitting diagnoses from six non-testifying doctors. Underwood's sixth point contends that the trial court's finding that Underwood suffered from a "mental abnormality" was not supported by substantial evidence. Underwood argues in his seventh point that the trial court erroneously declared and applied the law regarding the phrase "more likely than not." His final point claims that the trial court erred because the judgment that Underwood was more likely than not to commit "predatory" acts was not supported by substantial evidence. Finding no error, we affirm.


         In 2007, Underwood was found not guilty by reason of mental disease or defect (NGRI) on eight charges: six counts of statutory sodomy in the first degree, two counts of attempted statutory sodomy in the first degree, and one count of assault in the second degree. He was committed to the Department of Mental Health (DMH). In 2013, the State of Missouri filed a petition in the Circuit Court of Jackson County seeking to civilly commit Underwood as a sexually violent predator. A bench trial was conducted in 2015. The trial court found Underwood to be a sexually violent predator and ordered that he be committed to the custody of DMH. Underwood appeals.

         Dr. Jeffrey Kline

         The evidence at trial established that Underwood's underlying sexual offenses occurred over a period of four years. His first charge for sexual assault occurred in Illinois in 2001 for acts committed against his eight-year-old stepson. Underwood discussed the incident with Dr. Jeffrey Kline, a certified forensic examiner with DMH and a psychologist at Fulton State Hospital, who had performed sexually violent predator evaluations since 2003. Underwood indicated to Dr. Kline that he "accidentally touched" his stepson's penis and reported himself to the child abuse hotline. Underwood stated that he thought he was "sick" at the time. Underwood also reported four additional sexual encounters with his stepson that had previously occurred and involved forcing his stepson to perform oral sex on him and performing oral sex on his stepson. As a result of the incident that Underwood self-reported, he was placed on probation in the state of Illinois. Underwood also revealed that he had engaged in sexual relations with his six-year-old stepdaughter and six-year-old niece, including digital penetration, oral sex, and vaginal sex, prior to his 2001 arrest. He found the encounters to be sexually arousing and indicated that he acted on his sexual urges more frequently when he was intoxicated. Underwood told Dr. Kline that he felt he "was always one step ahead of the law."

         Within three months of being placed on probation, Underwood relocated to Missouri, despite the fact that Missouri did not accept transfer of his probation. Underwood engaged in sexual behaviors with two nieces and a nephew between 2001 and 2004, leading to his arrest in Missouri in 2005. The nephew disclosed that Underwood had touched, licked, and rubbed his penis "lots of times." He also disclosed that Underwood penetrated him with his penis on at least one occasion and performed oral sex on him multiple times. He was eight- to nine-years-old during this time. One of Underwood's nieces reported that Underwood performed oral sex on her and also touched her both vaginally and anally. She was four- to five-years-old at the time. Underwood told Dr. Kline that he felt aroused by the activities with his niece and nephew. Underwood indicated that he consumed large quantities of methamphetamine, marijuana, cocaine, and phencyclidine (PCP) during these timeframes, which made his urges more difficult to control. Underwood denied engaging in any sexual behavior with his other niece, but she reported that he touched her breasts or genital area on top of her clothing.

         Underwood reported to Dr. Kline that he first became sexually active at twelve-years-old. Underwood hosted parties at his home, inviting other children around his age and providing them with alcohol and marijuana in hopes of disinhibiting his guests so that they would engage in sexual behavior. Underwood would sexually engage with multiple male and female individuals. Although Underwood was investigated as a juvenile several times, formal charges were never filed.

         Throughout Underwood's treatment at Fulton State Hospital while in the custody of DMH, he engaged in inappropriate sexual encounters with his peers. Underwood was once found masturbating and kissing with a male peer in his room. Underwood later told Dr. Kline that he had felt threatened by the other man and that the act was not voluntary. Other sexual encounters, however, were consensual. These encounters were against the facility rules and demonstrated to Dr. Kline that Underwood was not able to control his behavior even when he was being sanctioned for it. The sanctions included being placed in "one-to-one, " which meant that a staff member was always sitting within arm's reach of Underwood when he was awake to ensure that he did not engage in further sexual encounters. On another occasion, Underwood masturbated in front of a female staff member while he tried to engage her in conversation. Dr. Kline was also concerned that Underwood engaged in these actions when he knew that he was being evaluated for referral to the Sexual Offender Rehabilitation and Treatment Services (SORTS) program.

         During an interview with Dr. Kline, Underwood stated that he had "no sexual urges towards prepubescent early adolescent children" but disclosed that he retains "strong urges for sex." These urges involved adult women and sometimes men. He revealed that "he thinks about it all the time" and "masturbates all day long." Underwood acknowledged that he had sexual feelings for children in the past but stated that the feelings had stopped for reasons that he was unable to explain around the time of his arrest.

         Dr. Kline diagnosed Underwood with pedophilia, non-exclusive type, per the criteria in the Diagnostic and Statistical Manual of Mental Disorders. The diagnosis was in part based on the incidents with Underwood's stepson, stepdaughter, niece, and two nephews, all prepubescent victims. Dr. Kline found that Underwood had a sexual attraction, fantasies, and urges toward prepubescent children that had occurred for more than six months in time. Dr. Kline also found Underwood's claim that he no longer had sexual feelings toward children suspect, as he never had an individual suffering from pedophilia have the urges totally disappear. Dr. Kline additionally considered that Underwood was on probation for three months or less when he began to engage in sexual behaviors with a new set of victims after relocating to Missouri.

         Dr. Kline also diagnosed Underwood with borderline personality disorder, antisocial personality disorder, and polysubstance dependence while in a controlled environment. Dr. Kline additionally found that Underwood had a prior history of malingering because Underwood had lied in the past about suffering from auditory hallucinations and had exaggerated his psychiatric symptoms. Dr. Kline reviewed reports showing Underwood had previously been diagnosed as bipolar but concluded that the records did not support a present or past bipolar diagnosis.

         Dr. Kline further found that Underwood was more likely than not to perpetrate future acts of predatory sexual violence, relying on both actuarial assessments and other factors. Dr. Kline used two actuarial tools to assess Underwood's likelihood of perpetrating future acts of sexual violence. Underwood's scores indicated a moderate to high risk of (1) reoffending and (2) reoffending and getting caught. These tools underestimate the risk because they rely upon the person being either arrested and charged or actually convicted; individuals likely commit offenses but are never caught or detected. Dr. Kline also considered other factors that might decrease or increase Underwood's future risk of reoffending. Dr. Kline considered that pedophilia can increase a person's risk to reoffend in the future. Underwood's antisocial personality disorder further contributed to a higher risk of re-offense in the future because research has shown that individuals with antisocial attitudes were more likely to commit future acts of sexual violence. Underwood's serious difficulty controlling his sexual behavior was also a contributing factor. For example, the fact that Underwood engaged in new sexual behavior while on probation from his prior sexual offenses was predictive of him again engaging in sex offending behavior in the future. Underwood also had serious difficulty controlling his behavior in other areas, including anger, aggression, and general emotional regulation.

         Dr. Kline found nothing in Underwood's records that would reduce his risk of committing sexual acts in the future. For example, Underwood did not actively participate in sexual offender therapy and would stop going to group therapy for periods of time. There was also nothing in the records demonstrating that he made any substantive change in his understanding of his sexual behavior or his ability to control his behavior. Dr. Kline believed that Underwood had exhausted psychiatric treatment at Fulton State Hospital and would be better served in the SORTS program, which would provide more targeted treatment for his sex offending behaviors while also addressing his emotional dysregulation.

         Based on the evidence described above, Dr. Kline's opinion, within a reasonable degree of psychological certainty, was that Underwood met the criteria of a sexually violent predator.

         Dr. Jeanette Simmons

         Dr. Jeanette Simmons, who had been the Forensic Coordinator and Director of Psychology at Northwestern Missouri Psychiatric Rehabilitation Center and had ten years of experience conducting sexually violent predator evaluations, similarly concluded that Underwood suffers from non-exclusive type pedophilia and that he met the statutory definition of a sexually violent predator. Dr. Simmons reviewed Underwood's records and utilized the Diagnostic and Statistical Manual of Mental Disorders in reaching her opinion.

         Dr. Simmons' opinion was based on Underwood's sexual offenses against his stepson, stepdaughter, nieces, and nephew, as well as his admissions to various examiners that he had an attraction to prepubescent children. Dr. Simmons observed that, with the exception of Dr. Abbott, multiple doctors had diagnosed him with pedophilia. Underwood's records reflected his attraction to children and that he had acted on that urge and desire. Underwood continued to admit an attraction to both boys and girls following his transfer to the SORTS program. He compared young children trying to look older to police entrapment. Underwood also made several additional admissions in his deposition that Dr. Simmons found to be significant. Underwood admitted that "young kids attract [him]" and that he was attracted to the "looks of young children" because of their innocence. Underwood described how he engaged his nieces and nephews in sexual encounters. Underwood also admitted to liking television shows with "a lot of children, " such as Full House. The records also revealed that Underwood had been inconsistent in his reporting of which offenses did or did not occur as well as the extent of the offenses and any harm caused to the victims. At one time, Underwood indicated that his sister may be partially to blame because she was aware that he was on probation for the sexual offense in Illinois and nevertheless left him with her children. Underwood also stated that he had more respect for his brother, found his sister's children to be more attractive, and was disappointed when his request for his siblings to bring their children to visit him at Fulton State Hospital was denied. Underwood additionally admitted to volunteering with a church to work with young children while he was on probation for his sexual offenses committed in Illinois. He indicated that he knew he should not have volunteered but did it anyway because he liked to do it. Underwood has also indicated that it is difficult to go places in the community, such as a grocery store, and entirely avoid children.

         Dr. Simmons additionally found that Underwood has demonstrated an inability to control himself sexually. Underwood engaged in sexual activity with other patients on several occasions; although the encounters may have been consensual, they were not permitted within the facility. Dr. Simmons noted that Underwood had masturbated in front of a "one-to-one" staff member, initially rubbing himself under the covers, asking about her children, and then exclaiming something along the lines of "I just can't stand it anymore" and throwing off the covers. Most recently, Underwood had been moved from one unit to another due to physical altercations, including an alleged sexual assault of another peer. Significantly, Underwood's behavior continued even while he was aware that he was being evaluated for possible referral as a sexually violent predator, which Dr. Simmons believed spoke to his lack of impulse control.

         Dr. Simmons also found that Underwood was more likely than not to commit acts of sexual violence if not confined to a secure facility. Dr. Simmons performed an assessment to determine the risk of Underwood reoffending. Like Dr. Kline, Dr. Simmons' assessment score placed Underwood in the moderate to high risk category. Dr. Simmons testified that recidivism rates of other individuals with the same score are between eighteen and thirty percent. However, the assessment underestimates the risk of re-offense because it only refers to convictions. Dr. Simmons additionally considered other factors to reach her conclusion, such as Underwood's childhood maladjustment, poor impulse control, sexual preoccupation, and the fact that Underwood's prognosis did not change significantly during his several years of treatment. Underwood's refusal to take his medications was also noted. Dr. Simmons did not see any mitigating factors that might lower his risk of reoffending.

         In addition to pedophilia, Dr. Simmons diagnosed Underwood with polysubstance dependence based on his extensive history of abusing many different substances and with borderline personality disorder. Dr. Simmons was aware that Dr. Brian Abbott had diagnosed Underwood with bipolar disorder, but she did not assign him that diagnosis. Dr. Simmons believed the symptoms relevant to a bipolar disorder were better accounted for in borderline personality disorder and also could have been affected by his substance abuse and thyroidism.

         Unlike Dr. Abbott, Dr. Simmons did not believe the evidence established that Underwood's sexual behavior occurred during bipolar manic episodes. She testified that Underwood's sexual behavior was a planned action, as he "groomed" the children to cooperate with him by making statements such as, "I have something to show you, " and drawing them into conversations about sex in a way that appeared innocent and not threatening, such as through the use of games like playing house or doctor. His numerous victims also demonstrated that Underwood was sexually attracted to prepubescent children rather than having a transient attraction or merely taking advantage of opportunistic events. Dr. Simmons additionally noted that Underwood was punished for the behavior and then went to another state and again acted upon those behaviors.

         Underwood acknowledged in his deposition that he suffers from a mental illness, which he referred to as bipolar disorder, and that when his disorder "kicks in, " he loses control, things just happen that he does not always remember, and he does not think about consequences. He indicated some episodes had occurred within a few months of the deposition, including some physical altercations, punching walls, and threatening staff. Underwood reported that he thought his bipolar disorder would "kick in" again. Underwood also admitted to being dishonest in his court proceedings, which was also documented in his records. For example, he stated to examiners that he faked symptoms in order to avoid jail but then later contradicted that assertion and admitted to the symptoms occurring.

         Dr. Brian Abbott

         Dr. Abbott testified as an expert on behalf of Underwood. Dr. Abbott ruled out pedophilia, antisocial personality disorder, and borderline personality disorder and diagnosed Underwood with bipolar disorder. Dr. Abbott found that Underwood's bipolar disorder did not constitute a mental abnormality. Dr. Abbott also found that Underwood's risk level of reoffending "fell well below 50 ...

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