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In re Care and Treatment of Grado

Court of Appeals of Missouri, Western District

October 17, 2017


         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Kathleen A. Forsyth, Judge.

          Before Division Two: Anthony Rex Gabbert, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge.

          Gary D. Witt, Judge.

         Following 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[1] (the "SVP Act"). Grado appeals his commitment alleging eight points of error. We affirm.

         Factual Background

         The 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 His probation was revoked in 2013 for violating its terms and he was sentenced to serve his previously suspended prison term.

         A jury 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.

         Dr. Witcher testified that she reviewed Grado's records[2] and relied on her interview with him to see if he met the criteria for any mental disorder listed in the DSM-V.[3] 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.

         Additionally, 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[4]. Dr. Witcher testified that a person with two or more paraphilias--in this case pedophilia and zoophilia--is at greater risk to reoffend.

         Dr. 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 facility.

         Grado 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.

         Grado's 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.

         The 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 followed.

         Standard of Review

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 de novo.

In re George, 515 S.W.3d 791, 795-96 (Mo. App. W.D. 2017) (internal quotations and citations omitted).


         As 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).


         Grado's 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.

         First, 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 ...

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