IN THE MATTER OF THE CARE AND TREATMENT OF NICHOLAS GRADO A/K/A NICHOLAS R. GRADO, A/K/A NICHOLAS RYAN GRADO, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Jackson County, Missouri The
Honorable Kathleen A. Forsyth, Judge.
Division Two: Anthony Rex Gabbert, Presiding Judge, Thomas H.
Newton, Judge and Gary D. Witt, Judge.
D. Witt, Judge.
a jury trial, Nicholas Grado ("Grado") was
committed to the custody of the Department of Mental Health
("Department") under the Sexual Violent Predator
Act, sections 632.480 through 632.525 (the "SVP Act").
Grado appeals his commitment alleging eight points of error.
State filed a petition in the Circuit Court of Jackson County
on October 16, 2014 ("Petition"), seeking a hearing
to determine whether Grado qualified as a sexually violent
predator ("SVP") under the statute. At the time of
the Petition, Grado was serving a five-year sentence in the
Missouri Department of Corrections ("DOC") for
child molestation in the first degree. When Grado was
eighteen years old, he had sexual contact with three
children, ages five to seven, over the course of three weeks.
This contact included having his nephew and niece perform
oral sex on him. He was charged with four felony counts
regarding the sexual contact with the three children. He
plead guilty to three counts of the Class B Felony of Child
Molestation in the first degree. In 2012, the criminal court
sentenced him to five years in the DOC on each count to be
served concurrently, but suspended the execution of that
sentence and placed Grado on probation on condition that he
complete a 120 day treatment program in the DOC for sex
offenders. Less than one year after being placed on probation
he was alleged to have violated the terms of his probation by
watching pornography, using the internet to view
inappropriate videos, frequenting the library without
permission, and other violations. His probation was revoked
in 2013 for violating its terms and he was sentenced to serve
his previously suspended prison term.
trial was held on the State's Petition
("Trial") to declare Grado a SVP. At the Trial, Dr.
Lisa Witcher ("Dr. Witcher") testified for the
State. Dr. Witcher, a licensed psychologist for the
Department was appointed by the probate court to conduct a
sexually violent predator examination of Grado. Dr. Witcher
testified that, in addition to the molestation for which he
was convicted, Grado had multiple prior instances of sexual
abuse of children. When Grado was fourteen, he had his
one-year-old nephew place his hand on Grado's penis while
Grado was masturbating. At fifteen, Grado showed pornography
to a boy of eight or nine; the two touched one another's
genitals and Grado had the boy perform oral sex on him.
Grado's interactions with this boy took place multiple
times over a six to seven month period.
Witcher testified that she reviewed Grado's
records and relied on her interview with him to
see if he met the criteria for any mental disorder listed in
the DSM-V. Dr. Witcher diagnosed Grado with
pedophilic disorder non-exclusive type, sexually attracted to
both males and females. In her testimony, Dr. Witcher stated
that Grado had "recurrent intense sexually arousing
fantasies, sexual urges, or behavior involving sexual
activity with a prepubescent child or children, generally 13
years or younger" for a period of over six months.
evidence was presented that Grado watched Hentai, Japanese
animated pornography featuring half-human, half-animal adult
characters with exaggerated sexual features. Grado also
played a video game in which an adult babysitter cared for a
child to earn "trust points" which could then be
traded for sexual interactions between the babysitter and
child. Both the babysitter and child were human but had the
heads of Sonic the Hedgehog cartoon characters. The game
amounted to a game from which the player learned grooming
behavior to manipulate child victims; behaviors which were
strikingly similar to Grado's actions with his victims.
Finally, Grado also had sexual contact with animals which
lead to Dr. Witcher diagnosing him with
zoophilia. Dr. Witcher testified that a person with
two or more paraphilias--in this case pedophilia and
zoophilia--is at greater risk to reoffend.
Witcher used her findings to score Grado on the Static 99-R
and Static 2002-R actuarial instruments to determine
Grado's risk to reoffend. Grado received a score of four
on the Static 99-R, which placed him in the moderate to high
risk category of being reconvicted of another offense within
the next five to ten years. Grado was scored as a six on the
Static 2002-R placing him at moderate risk to reoffend. Based
on the totality of Grado's behaviors, Dr. Witcher opined
that Grado was more likely than not to commit a future act of
sexually predatory violence unless confined to a secure
testified that his first sexual experience was with another
boy when they were both in the second grade. He watched
progressively more disturbing pornography on the internet
when home alone. At approximately fourteen, Grado had his
nephew touch Grado's erect penis. When Grado was
approximately fifteen, he began having sexual contact with
various cats and dogs by rubbing his penis on their fur and
using them to masturbate or encouraging them to lick his
penis. He also sexually penetrated a Great Dane with his
penis. When Grado was sixteen he had a thirteen-year-old boy
touch his penis. Finally, when he was eighteen, Grado had
sexual contact with his nephew, niece, and another young
girl--the crimes for which he was arrested. Grado testified
that he could not say if he was still attracted to children
and was equivocal on whether he would reoffend if left alone
with a child. Grado believed he could still
"easily" manipulate children but testified that he
no longer had the desire. Further, Grado stated that seeing
animals still acts as a sexual trigger.
mother and brother testified regarding Grado's childhood
and their continued support. Dr. Richard Wollert ("Dr.
Wollert"), a clinical and forensic psychiatrist, also
testified for the defense. Dr. Wollert did not conduct an
evaluation of Grado but generally discussed research on the
developmental psychology of persons from the age of twelve
through their early twenties. Dr. Wollert was unable to state
whether any of the general psychological research he
testified to would be applicable to Grado.
jury found Grado to be a sexually violent predator
("SVP"). The court ordered Grado to be committed to
the Department for control, care and treatment. This appeal
Appellate review in a SVP case is limited to a
determination of whether there was sufficient evidence
admitted from which a reasonable jury could have found each
necessary element by clear and convincing evidence. The
appellate court does not reweigh the evidence but determines
only whether the judgment was supported by sufficient
evidence. Matters of credibility and weight of testimony are
for the jury to determine. For that reason, the evidence is
viewed in the light most favorable to the judgment, accepting
as true all evidence and reasonable inferences favorable to
the judgment and disregarding all contrary evidence and
inferences. A judgment will be reversed on insufficiency of
the evidence only if there is a complete absence of probative
facts supporting the judgment. Questions of law are reviewed
In re George, 515 S.W.3d 791, 795-96 (Mo. App. W.D.
2017) (internal quotations and citations omitted).
applicable to this case, a "sexually violent
predator" is "any person who suffers from a mental
abnormality which makes the person more likely than not to
engage in predatory acts of sexual violence if not confined
in a secure facility" and who "[h]as pled guilty or
been found guilty in this state or any other jurisdiction, or
been found not guilty by reason of mental disease or defect
pursuant to section 552.030, of a sexually violent
offense[.]" Section 632.480(5). A "mental
abnormality" is "a congenital or acquired condition
affecting the emotional or volitional capacity which
predisposes the person to commit sexually violent offenses in
a degree constituting such person a menace to the health and
safety of others[.]" Section 632.480(2).
first point on appeal alleges that the trial court erred in
finding him to be a SVP because the criminal conviction
("Index Offense") leading to his incarceration took
place when he was a juvenile and commitment to the Department
constitutes a life sentence without the possibility of
parole, and as a juvenile, this is tantamount to cruel and
unusual punishment. This argument, however, is contrary both
to the facts of this case and existing caselaw.
we note that Grado concedes this claim was not raised in the
probate court and thus has not been preserved for appeal.
State v. Worthington, 8 S.W.3d 83, 87 (Mo. banc
1999). Instead, Grado asks that we review this claim for
plain error which requires this Court to find that manifest
injustice or a miscarriage of justice resulted from the
alleged error. State v. Baumruk, 280 S.W.3d 600, 607
(Mo. banc 2009).
Review for plain error involves a two-step process. The first
step requires a determination of whether the claim of error
facially establishes substantial grounds for believing that
manifest injustice or miscarriage of justice has resulted.
All prejudicial error, however, is not plain error, and
[p]lain errors are those which are evident, obvious, and
clear. If plain error is found, the court must proceed to the