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In re Care and Treatment of Nelson

Supreme Court of Missouri, En Banc

June 27, 2017

IN THE MATTER OF THE CARE AND TREATMENT OF JAY NELSON, a/k/a JAY T. NELSON, a/k/a JAY T. NELSON, JR., Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Kathleen Forsyth, Judge

          PAUL C. WILSON, JUDGE

         Following a jury trial, Jay Nelson ("Nelson") was committed to the custody of the Department of Mental Health under the Sexually Violent Predator Act, sections 632.480 through 632.525 (the "SVPA"). [1] Nelson appealed, and the court of appeals transferred the case to this Court prior to opinion on the ground the appeal involves issues within this Court's exclusive appellate jurisdiction as set forth in article V, section 3, of the Missouri Constitution. For the reasons set forth in In re Care & Treatment of Kirk, No. SC95752, ___ S.W.3d ___ (Mo. banc June ___, 2017) (slip op. at 1 n.2), decided concurrently herewith, Nelson's constitutional claims are merely colorable and do not invoke this Court's exclusive jurisdiction. Nevertheless, the Court - on its own motion - grants transfer from the court of appeals prior to opinion pursuant to Rule 83.01 and, therefore, has jurisdiction under article V, section 10, of the Missouri Constitution. Id.; Armstrong-Trotwood, LLC v. State Tax Comm'n, No. SC96126, 2017 WL 2118656, at *2 (Mo. banc May 16, 2017).

         Facts

         In 1988, Nelson broke into a woman's home, threatened to kill her, and brutally raped her on top of broken glass. While serving his sentence for that crime, Nelson received 55 conduct violations for sexual misconduct and failed to complete the Missouri Sex Offender Program. Nelson would often masturbate in a way that would allow female correctional staff to see him and would often target certain individuals. He also shouted violent sexual threats at the female staff, threatening to kidnap them, sexually assault them, and kill them. On several occasions, Nelson went beyond threats and sexually assaulted female corrections staff. Nelson grabbed the buttocks of one staff member; he brushed his hand against the pubic bone of another; and he grabbed the crotch of a third staff member.

         Dr. Nena Kircher, a licensed psychologist, evaluated Nelson to determine whether he satisfied the statutory definition of a sexually violent predator. She reviewed his history of sexual violence, Nelson's responses during an interview she had with him, and Nelson's medical, mental health, and probation and parole records. Dr. Kircher diagnosed Nelson with Antisocial Personality Disorder ("ASPD") and exhibitionism. She opined these conditions rose to the level of a mental abnormality and concluded this mental abnormality caused Nelson serious difficulty in controlling his behavior.

         Finally, Dr. Kircher concluded it was more likely than not Nelson would commit a future act of predatory sexual violence unless placed in a secure facility. In reaching this conclusion, Dr. Kircher relied on the Static-99R and the Stable-2007 tests. Nelson scored a four on the Static-99R, indicating he had a moderate-to-high risk of reoffending, and a score of 17 on the Stable-2007, indicating he had a high risk of reoffending. In addition, Dr. Kircher testified that Nelson demonstrated several other risk factors, including sexual preoccupation, numerous grievances and hostility, non-compliance with supervision, poor cognitive problem solving, impulsiveness, and a lack of emotionally intimate relationships. Considering all of this information, Dr. Kircher opined that Nelson had a high risk of reoffending if not securely confined and, therefore, satisfied the statutory definition of a sexually violent predator.

         Another licensed psychologist, Dr. Jeannette Simmons, also concluded Nelson was a sexually violent predator and it was more likely than not he would commit a future act of predatory sexual violence if not securely confined. Dr. Simmons considered Nelson's history of sexual violence, the answers he gave in an interview, his score on the Static-99R, and risk factors. Dr. Simmons diagnosed Nelson with the mental abnormalities of exhibitionism and paraphilia NOS, non consent. These abnormalities, in Dr. Simmons' opinion, caused Nelson serious difficulty controlling his behavior. She concluded Nelson "seeks out individuals that he would like to prey upon" and would continue this predatory sexual violence unless confined to a secure facility.

         Analysis

         Nelson's constitutional claims proceed principally from his assertion that the purpose and effect of the SVPA is punitive. As explained in Kirk, this and similar assertions (as well as the constitutional claims flowing from them) have been thoroughly reviewed and rejected by this Court in the past. Kirk, ___ S.W.3d at ___ (slip op. at 4-9). Nelson, like Kirk, claims various amendments to the SVPA - including amendments to the release provisions procedures and, more importantly, claims as to how those provisions are being or could be applied unconstitutionally under circumstances not now before the Court - should convince this Court that the essential purpose and effect of the SVPA have changed and, therefore, that constitutional claims previously rejected should now carry the day. Kirk rejects those arguments. Accordingly, the claims properly preserved and presented in Nelson's Points I-IV also are rejected and the balance of this opinion deals solely with Nelson's other claims.

         Point V

         Nelson's fifth point is the trial court erred in allowing the use of the phrase "sexually violent predator" at trial and thereby violated his right to due process and a fair trial. To establish a due process violation in this context, Nelson has the burden of establishing the improper statements "had a decisive effect on the jury's determination." State v. Perry, 275 S.W.3d 237, 245 (Mo. banc 2009). There must be a "sound, substantial manifestation, a strong clear showing, that injustice or miscarriage of justice will result if relief is not given." Id.

         The Court rejects Nelson's argument because the term "sexually violent predator" was specifically chosen and defined by the legislature when it enacted the SVPA. At the trial in this case, the state bore the burden of proving by clear and convincing evidence that Nelson met the statutory definition of a sexually violent predator and that he was more likely than not to commit a future act of predatory sexual violence. The state's experts testified extensively about the statutory criteria to be a sexually violent predator, and Nelson provides no precedent or compelling argument why the use of the term chosen and defined by the legislature was so unfairly prejudicial as to deprive him of his constitutional right to due process. See Perry, 275 S.W.3d at 246 (finding no error in permitting the state to label the defendant a child molester when on trial for molesting a child). The jury was rightfully and necessarily exposed to evidence concerning Nelson's history of sexual violence, expert testimony that Nelson preyed on female victims, and expert opinion that Nelson was more likely than not to commit future acts of sexual violence if not securely confined. In that context, it cannot be said the use of the phrase "sexually violent predator" resulted in a clear miscarriage of justice.

         Poin ...


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