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In re Care and Treatment of Mitchell

Court of Appeals of Missouri, Southern District, First Division

November 16, 2017

In the Matter of the Care and Treatment of STERLING MITCHELL, a/k/a STERLING A. MITCHELL, a/k/a STERLING ALTON MITCHELL, Respondent-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Michael J. Cordonnier.


          GARY W. LYNCH, J.


         Sterling Alton Mitchell appeals the trial court's judgment committing him to the custody of the Department of Mental Health following a jury finding that he is a sexually violent predator ("SVP"). See sections 632.480 through 632.513.[1] He claims in nine points relied on: (1) the "[t]rial court plainly erred in instructing the jurors to define 'more likely than not' for themselves[;]" (2) the "[t]rial court plainly erred in submitting verdict directing Instruction 6 to the jury without defining 'more likely than not' as used therein[;]" (3) "[t]he trial court plainly erred in failing to substitute the alternate juror for [a sleeping juror;]" (4) "the State's evidence was insufficient to support a commitment verdict . . . in that the State failed to clearly and convincingly prove that any mental abnormality makes Mitchell more likely than not to commit future predatory acts of sexual violence if not confined[;]" and (5-9) the trial court erred in denying Mitchell's motion to dismiss. Because his first three points are not preserved for our review, his fourth point has no merit, and the latter five points have been resolved by our supreme court adverse to Mitchell's positions, we affirm.

         Standard of Review and Applicable Principles of Law

Appellate review in an 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. This means that the credibility of witnesses and the weight to be given to their testimony are for the jury to determine. This Court does not reweigh the evidence. Instead, we view the record most favorably to the judgment, disregarding all contrary evidence and inferences, and will not reverse for insufficiency of the evidence unless there is a complete absence of probative facts supporting the judgment.

In re Care and Treatment of Morgan, 398 S.W.3d 483, 485 (Mo.App. 2013) (internal citations and quotations omitted).

         In order for Mitchell to be committed to the custody of the director of the Department of Mental Health under section 632.495(2), the State was required to prove two statutory elements: (1) that Mitchell "suffers from a mental abnormality which makes [him] more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility[;]" and (2) that Mitchell had pleaded guilty to or been found guilty of "a sexually violent offense[.]" Section 632.480(5)(a); see also In re Morgan, 398 S.W.3d at 485. Statutory sodomy in the first degree is a sexually violent offense. Section 632.480(4).

         Factual and Procedural Background

         Mitchell has previously been convicted of statutory sodomy in the first degree. Although not captured by his criminal record, Mitchell's history of assaulting children began when he was 14 years old and continued throughout his life. By Mitchell's account, there have been 15 victims over his lifetime, although he was not prosecuted for all. He was 59 years old at the time of his last offense. While imprisoned, Mitchell was enrolled in the Missouri Sexual Offender Program (MoSOP) but did not complete it. He later re-enrolled and graduated, but he made a joke that was disparaging toward women during the graduation ceremony. Then, on a post-program test, Mitchell indicated that he strongly agreed that "adults having sex with children can be helpful." The test also indicated that Mitchell repeatedly attempted to minimize and justify his conduct, for example, by noting that he only used digital penetration or by concluding that his conduct was acceptable because he wasn't receiving sex from adult women.

         Before Mitchell was released from prison, the State petitioned for him to be committed to the Department of Mental Health. At trial, the State called two expert witnesses who testified that Mitchell was more likely than not to reoffend.

         Dr. Christopher Robertson, a forensic psychologist with the Department of Mental Health, reviewed Mitchell's psychological and criminal history before interviewing him. In his interview, Mitchell described himself as having an "unconscious" attraction to children. Dr. Robertson concluded that Mitchell met the criteria for pedophilic disorder as set forth in the Diagnostic and Statistical Manual. Pedophilia is a lifelong condition-the attraction to children will never go away.

         In determining an offender's potential for reoffense, Dr. Robertson typically used "an actuarial risk instrument;" although, he also relies on his own "clinical psychology background and on occasion common sense." The actuarial tool utilized by Dr. Robertson is called the Static-2002 Revised. It is so named because it analyzes offenders based on "static" factors such as age and one's history of sexual offenses. This tool indicated that Mitchell was in the low-medium range for reoffense. According to Dr. Robinson, researchers are beginning to acknowledge that the risk for reoffense must also include analysis of "dynamic" factors such as sexual preoccupation, grievances, and poor cognitive problem-solving. Dr. Robertson disagreed with the results of the Static-2002 Revised based on his examination (which included dynamic factors) and concluded that Mitchell was more likely than not to reoffend.

         Dr. Nena Kircher, a psychologist with Southeast Missouri Mental Health, reviewed Mitchell's "Department of Corrections records, including things like probation and parole reports that would have contained the history of his offense, his conduct within the Department of Corrections[;]" reviewed "his MoSOP . . . records, which would have contained the details of his treatment and his progress through treatment, including any difficulties he had during that time[;]" and "met with him also in person for an interview." During their interview, Mitchell stated that he was "sexually attracted to children because they show affection, are easier to control and manipulate, and are vulnerable and helpless[]" but that "he didn't think he would offend [again] because he wasn't going to isolate." Dr. Kircher found Mitchell's plan to be "unrealistic" because "none of us could really have other people around us 24/7 to essentially protect us from ourselves[.]" Mitchell also hoped to volunteer after release by building bicycles for children. This connection concerned Dr. Kircher, who would recommend only focusing on "hobbies that involve adults[.]"

         Based on her examination, Dr. Kircher also diagnosed Mitchell with pedophilic disorder and concluded that he had a mental abnormality. Dr. Kircher utilized an actuarial tool known as the Static-99R and a non-actuarial tool known as the Stable 2007 in considering Mitchell's chances of reoffending. She also considered "protective factors[, ]" which are factors separate from the tools that would reduce the likelihood of reoffending. According to Dr. Kircher, the Static-99R characterized Mitchell as low risk. She noted that the Static-99R considers historical characteristics; it does not consider the offender's present mentality. Although generally useful for establishing a baseline, the Static-99 was largely unhelpful to Dr. Kircher in Mitchell's case because he received his first conviction in his 40s-older than most individuals in the sample. Dr. Kircher also considered the Stable-2007, which resulted in a summary score of 16 for Mitchell. She testified that any score of 12 or higher indicates a "high need for further treatment." Including consideration of factors not contained within the actuarial tools, Dr. Kircher also concluded that Mitchell was more likely than not to reoffend.

         The jury concluded that Mitchell was an SVP, and the trial court ordered him committed to the Department of Mental Health "until such time as [Mitchell's] mental abnormality has so changed that he is safe to be at large." Mitchell timely appealed.


         Points One and Two-Plain ...

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