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,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable
Kathleen Forsyth, Judge
C. WILSON, JUDGE
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").  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).
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.
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.
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.
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
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.
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
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.