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In re Care and Treatment of Kirk

Supreme Court of Missouri, En Banc

June 27, 2017


         APPEAL FROM THE CIRCUIT COURT OF HENRY COUNTY The Honorable Debra Hopkins, Judge

          Paul C. Wilson, Judge

         Following a jury trial, Carl Kirk ("Kirk") was committed to the custody of the Department of Mental Health under the Sexually Violent Predator Act, sections 632.480 through 632.525[1] (the "SVPA" or the "Act"). Kirk appealed to the court of appeals, and the court of appeals transferred the case to this Court prior to opinion on the ground that the appeal involves issues within this Court's exclusive appellate jurisdiction as set forth in article V, section 3, of the Missouri Constitution. This Court has jurisdiction, [2] and the judgment is affirmed.


         Under section 632.480(5), to commit someone to the custody of the Department of Mental Health as a sexually violent predator, the state must prove by clear and convincing evidence that the respondent: (1) has committed a sexually violent offense; (2) suffers from a mental abnormality; and (3) this mental abnormality "makes the person more likely than not to engage in predatory acts of violence if not confined in a secure facility." Taken in the light most favorable to the jury's verdict, Kirk's committal was based upon the following facts.

         Around 1985, Kirk pleaded guilty to having inserted his penis between the legs of a young boy. He was released from the Department of Corrections in 1987 and, less than three months after his release, he sodomized his 10- or 11-year-old nephew. Sodomy is a sexually violent crime under section 632.480(4). Based on Kirk's history of sexual behaviors directed toward young boys, Dr. Nena Kircher, a licensed psychologist, diagnosed Kirk as suffering from pedophilia as described in the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV-TR"). Dr. Kircher opined that Kirk's pedophilia caused him serious difficulty in controlling his behavior. Dr. Kircher further opined that Kirk was a sexually violent predator and concluded that it was more likely than not that Kirk would commit a future act of sexual predatory violence if not securely confined.

         As part of Dr. Kircher's risk assessment, Kirk was given the Static-99R and Stable-2007 tests. Kirk scored seven on the Static-99R test, a score that Dr. Kircher characterized as "pretty rare" and that placed Kirk's likelihood of reoffending in the 97thpercentile of all test subjects. Kirk also scored 16 on the Stable-2007 test, placing him in the high-risk category. Among the other factors supporting Dr. Kircher's conclusion Kirk was more likely than not to commit a future act of sexual predatory violence if not securely confined were that he exhibited deviant sexual interest, that he had a history of childhood behavior problems and negative social influences, and that he had violated his parole.

         Dr. Stephen Mandracchia, a licensed psychologist, similarly concluded Kirk was a sexually violent predator and it was more likely than not Kirk would commit a future act of sexual predatory violence if not securely confined. Like Dr. Kircher, Dr. Mandracchia diagnosed Kirk as a pedophile and determined that this mental abnormality caused Kirk serious difficulty in controlling his behavior. Dr. Mandracchia administered the Stable- 2002R test, on which Kirk received a score of nine. This score, too, placed Kirk in the high-risk category.

         Kirk testified at trial and admitted to sexually victimizing his first young victim, which conduct resulted in his incarceration. Kirk also admitted to sodomizing his young nephew less than three months after being released on parole. Though Kirk completed sex offender treatment while in prison, he admitted to characterizing this program as "a joke for real" and was not able to articulate any tools he learned to reduce his risk of reoffending if released.


         Point I

         Kirk claims that, by not granting his motions to dismiss, the trial court violated his

… rights to due process, equal protection, free thought, and a fair trial, to be free from double jeopardy, ex post facto laws, and cruel and unusual punishment, protected by U.S. Const., amends. I, X, VIII, XIV and Mo. Const. art. I, §§ 2, 9, 8, 10, 13, 21, in that [a] the purpose and effect of the SVP Act is punitive, lifetime confinement in DMH; [b] the law created a second punishment for past offenses; [c] the law does not provide a least restrictive environment or release men once no longer mentally ill or dangerous; and[d] the law permits commitment because of emotional capacity, without any proof of behavioral impairment.

         This entire collection[3] of arguments has been rejected in the past. Kirk's arguments that unconditional release is not offered under the statute as revised in 2006 does not persuade the Court to depart from the relevant precedents. Whether the release provisions of the statute are constitutionally sufficient is not before the Court in this case, as this case involves only the issue of whether Kirk's commitment is constitutionally permitted. This Court finds it is.

         One common theme in Kirk's arguments is that SVPA is a criminal statute because its purpose is to punish offenders for past conduct. This is incorrect. In reviewing a statutory scheme substantially similar to the SVPA, the United States Supreme 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.

Kansas v. Hendricks, 521 U.S. 346, 368-69 (1997) (quotation marks omitted).

         Applying Hendricks, this Court held that - on its face - the SVPA evidences no punitive intent. In re Care & Treatment of Van Orden, 271 S.W.3d 579, 585 (Mo. banc 2008). Instead, even though SVPA "proceedings involve a liberty interest, they are civil proceedings." Id.

         This Court's conclusion in Van Orden necessarily disposes of Kirk's argument that the SVPA violates constitutional prohibitions against ex post facto laws. See State v. Honeycutt, 421 S.W.3d 410, 419 (Mo. banc 2013) (noting "the phrase 'ex post facto law' applies exclusively to criminal laws"). "Because ... the ... Act is civil in nature, initiation of its commitment proceedings does not constitute a second prosecution" and, therefore, "does not violate the Double Jeopardy Clause, even though that confinement may follow a prison term." Hendricks, 521 U.S. at 369.

         Kirk's third and fourth arguments also fail. He argues the SVPA, unlike general civil commitment statutes, is unconstitutional because it does not require that he be held in the least restrictive environment. This Court previously rejected this argument. In In re Care & Treatment of Norton, 123 S.W.3d 170, 174 (Mo. banc 2003), this Court held that the SVPA "is narrowly tailored to serve [the] compelling state interest ... [of] protecting the public from crime, " and that "interest justifies the differential treatment of those persons adjudicated as sexually violent predators." Id. "Because the basis for commitment of sexually violent predators is different from general civil commitments, there is no requirement that sexually violent predators be afforded exactly the same rights as persons committed under the general civil standard." In re Care & Treatment of Coffman, 225 S.W.3d 439, 445 (Mo. banc 2007).

         Finally, Kirk argues the SVPA is unconstitutional because it does not require proof that his mental abnormality impairs his ability to control his future behavior. In Kansas v. Crane, 534 U.S. 407, 413 (2002), the United States Supreme Court held that for civil commitment statutes such as the SVPA to be constitutional, "there must be proof of serious difficulty in controlling behavior." After that decision, this Court determined the SVPA does require such proof. The Court went on to explain, "To comply with Crane, the [jury] instruction defining mental abnormality must read as follows: As used in this instruction, 'mental abnormality' means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior." In re Care & Treatment of Thomas, 74 S.W.3d 789, 792 (Mo. banc 2002). This instruction was given in Kirk's case and was supported by sufficient evidence.

         Kirk contends this Court should ignore all the precedents cited above and grant relief on his claims, relying almost exclusively on Van Orden v. Schafer, 129 F.Supp.3d 839 (E.D. Mo. 2015) (amended, in part, by order dated December 11, 2015) (not reported in F.Supp.3d, see 2015 WL 9269251). But the district court in that case expressly rejected claims that the SVPA is unconstitutional on its face. Id. at 865. More importantly, that case involved the claims of those who previously had been committed to the custody of the Department of Mental Health under the SVPA and who were claiming the release and treatment provisions of the SVPA had been unconstitutionally applied in their cases.[4] Kirk's appeal, on the other hand, involves the committal process under the Act, not the release process.

         Even if the facts surrounding the application of the release provisions in other cases could somehow be relevant to the disposition of Kirk's claims concerning the committment provisions, Kirk adduced no evidence concerning those facts in this case. Instead, he attempts to import wholesale the evidence and findings from an unrelated, not-yet-final litigation in federal district court. Had Kirk attempted to make a new, and more up-to-date, factual record regarding the application of the SVPA release provisions - and, again, assuming such a record would have any relevance to Kirk's facial constitutional challenges to the committal provisions of the SVPA - the state suggests the record would show significant changes implemented since the 2015 district court decision. Accordingly, for all these reasons, this Court declines to find the interlocutory decision of the federal district court on unrelated claims in an unrelated litigation a sufficient basis to overrule the binding precedents cited to above.

         Point II

         Kirk claims the SVPA is unconstitutional because it does not require proof beyond a reasonable doubt. This argument, too, previously has been rejected. In Addington v. Texas, 441 U.S. 418, 432-33 (1979), the Supreme Court held that a clear and convincing burden of proof is sufficient for a civil commitment proceeding to pass constitutional muster. In Van Orden, this Court held that "Missouri's law for the civil commitment of sexually violent predators constitutionally may utilize the clear and convincing evidence burden of proof." Van Orden, 271 S.W.3d at 586. Addington and Van Orden made clear that the use of the clear and convincing standard was a decision the legislature constitutionally could make. In 2006, the legislature made that decision. The standard of proof now required under the SVPA and employed in Kirk's case is not unconstitutional.

         Point III

         Kirk argues his case should have been dismissed because, even though the Attorney General determined that Kirk apparently met the statutory definition of a sexually violent predator, and even though the statutorily designated "prosecutors review committee" ("PRC") unanimously agreed, the "multi-disciplinary team" ("MDT") did not. Nothing in the SVPA requires the concurrence of the MDT before the Attorney General may file a civil commitment petition, and this Court declines to impose such a precondition.

         Section 632.486 sets forth the preconditions for the Attorney General to file a civil commitment petition under the SVPA. It provides, in relevant part:

When it appears that the person presently confined may be a sexually violent predator and the prosecutor's review committee appointed as provided in subsection 5 of section 632.483 has determined by a majority vote, that the person meets the definition of a sexually violent predator, the ...

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