Court of Appeals of Missouri, Eastern District, Fourth Division
IN THE MATTER OF THE CARE AND TREATMENT OF: J.D.B.
from Lincoln County Circuit Court Cause No. 13L6-PR00185
Honorable James D. Beck.
Colleen Dolan, PJ
appeals the judgment from Lincoln County Circuit Court
committing him to the care, custody, and treatment of the
Department of Mental Health because he was found to qualify
as a "sexually violent predator" (a
"SVP") within the meaning of § 632.480(5) of
the Sexually Violent Predator Act (the
"SVPA"). This determination was made at a jury
trial held in the Lincoln County Circuit Court, Probate
Division. J.D.B. offers six points on appeal. In his first
three points, J.D.B. challenges the constitutionality of the
SVPA's statutory scheme, which includes §§
632.480-632.513. Additionally, J.D.B. raises challenges
specific to his trial in his last three points. After
reviewing the record and applicable law, we affirm the
judgment of the trial court.
J.D.B. raises several arguments challenging the
constitutionality of the SVPA, we must examine whether our
Court has jurisdiction over this appeal. "[A]rticle V,
section 3 of the Missouri Constitution vests the Missouri
Supreme Court with exclusive appellate jurisdiction in all
cases involving the validity of a statute." Matter
of Brown v. State, 519 S.W.3d 848, 853 (Mo. App. W.D.
2017) (quoting McNeal v. McNeal-Sydnor, 472 S.W.3d
194, 195 (Mo. banc 2015)). Nonetheless, this exclusive
appellate jurisdiction is only invoked when the
constitutional issues are "real and substantial, not
merely colorable." Id. (quoting
McNeal, 472 S.W.3d at 195). "When a party's
claim is not real and substantial, but, instead, merely
colorable, our review is proper." Id. (quoting
Ahern v. P & H, LLC, 254 S.W.3d 129, 134 (Mo.
App. E.D. 2008)). In light of the Supreme Court of
Missouri's recent disposition of Kirk v. State,
520 S.W.3d 443, 448-49 (Mo. banc 2017) and Nelson v.
State, 521 S.W.3d 229, 231 (Mo. banc 2017), "each
of the constitutional challenges [J.D.B.] raises have been
addressed by either the United States Supreme Court or the
Missouri Supreme Court, " which means "they are
merely colorable." See Matter of Brown v.
State, 519 S.W.3d at 853 (internal citations omitted).
Thus, we have jurisdiction over this appeal. Id.
order to commit an individual to the custody of the
Department of Mental Health as a sexually violent predator,
the State is required to prove-with clear and convincing
evidence- that the individual "(1) has committed a
sexually violent offense; (2) suffers from a mental
abnormality; and (3) this mental abnormality 'makes the
person more likely than not to engage in predatory acts of
violence if not confined in a secure facility.'"
Kirk, 520 S.W.3d at 448-49 (quoting §
III. Factual and Procedural
the age of 15, J.D.B. began to realize he "was
interested in" younger children. Around this time, he
began to use "general pornography." He continued
using "general pornography" exclusively until he
became 19, at which time, the content's stimulating
effects had greatly diminished. In response, "he moved
on to more deviant pornography, which included exposure to
child pornography." Several years later, "in the
neighborhood of about 2002 or , " he began living
with his sister, her partner, and her partner's daughter
("K.W."). K.W. was five years old when J.D.B. began
having sexual contact with her. Dr. Rick Scott, a licensed
psychologist, described how the sexual contact escalated:
It progressed over two and a half years of putting his finger
inside her vagina, having her kiss him, or he would kiss her.
Having her masturbate him with her hand, and on one occasion,
making her perform oral sex on him. This went on on a very
regular basis, two to three times per week, when he was in
the home…he was routinely sexually abusing
her…until around 2005 when he was arrested for
possession of child pornography and removed from the home.
was on probation from 2005 through 2008 for the possession of
child pornography. During that time, K.W. disclosed that
J.D.B. had committed sexual offenses against her. Ultimately,
J.D.B. pleaded guilty to Child Molestation in the First
Degree, resulting in him being imprisoned until 2011, when he
was paroled. Before being paroled, J.D.B. completed a
Missouri Sexual Offender Treatment Program. J.D.B.'s
parole was revoked in 2012 due to using child pornography.
J.D.B. admitted that he resumed masturbating to fantasies of
children as recently as five months before the trial for the
current case, despite receiving treatment beforehand.
December 16, 2013, the State filed a petition seeking the
civil commitment of J.D.B. as a sexually violent predator
under the SVPA, §§ 632.480-632.525. See
Nelson, 521 S.W.3d at 231. A jury trial was held from
March 28-30, 2016, in the Lincoln County Circuit Court,
Probate Division. The jury concluded that J.D.B. qualified as
a SVP under the SVPA, and the court ordered that J.D.B. be
"committed to the custody of the director of the
Department of Mental Health for control, case and treatment
until such time as [J.D.B.'s] mental abnormality has so
changed that he is safe to be at large."
trial court's judgment was initially appealed to our
Court under Case Number ED104442 in May of 2016. On January
1, 2017, J.D.B. filed an application to transfer the case to
the Supreme Court of Missouri pursuant to Rule 83.01,
explaining that this case "presents constitutional
challenges to the statutory provisions of the SVP Act
identical to the issues presented" in two matters that
were then-pending before the Court: Kirk, 520 S.W.3d
at 443 and Nelson, 521 S.W.3d at 229. On February 8,
2017, our Supreme Court granted J.D.B.'s transfer request
(case number: SC96221). On July 13, 2017, the Supreme Court
of Missouri retransferred the cause to our Court under Case
Number ED104442-01 in light of its disposition of
Kirk and Nelson. The retransferred cause is
the focus of this appeal.
of Dr. Rick Scott
trial, the State largely relied on the testimony of Dr. Rick
Scott to make its case for the commitment of J.D.B. In fact,
Dr. Scott was the only witness called by the State. Dr. Scott
has a PhD in Clinical Psychology, and he has been a licensed
Psychologist in Missouri since 1992. Dr. Scott interviewed
J.D.B. for four hours on March 11, 2014. He also reviewed
approximately 3, 800 pages of records related to J.D.B.'s
history. Dr. Scott noted that these are the types of records
that are "reasonably relied on by professionals in [his]
field in assessing a person's mental condition and
Dr. Scott used three types of "instruments generally
relied on by professionals in [his] field [for] assessing a
person's future risk of sexual offending": the
Static 99, the Static 2002, and the Stable 2007. These
instruments are "actuarial assessments" that try to
measure an individual's risk of reoffending based on a
variety of factors. See Matter of Sohn, 473 S.W.3d
225, 228 (Mo. App. E.D. 2015). On the Static 99, J.D.B.
received a raw score of 6, which is classified as being in
the "high-risk" of reoffending category and placed
J.D.B. in the 94th percentile among sex offenders.
Dr. Scott explained that this test could be interpreted as
meaning, "if you have 100 sex offenders in the room, 93
are less risky than [J.D.B.]." On the Static 2002
assessment, J.D.B. received a raw score of 6, placing him in
the 88th percentile and in the high-risk category.
Dr. Scott noted that the Static 99 and Static 2002 had a lot
of similarities, but the Stable 2007 was "very
different, " in terms of which variables were used in
computing a score. On the Stable 2007, J.D.B. scored a 14 out
of 26, which also put him in the high-risk category. Dr.
Scott also noted that the 5-year recidivism rate of someone
with the same score as J.D.B. (from the Static 99 test) would
be "in the neighborhood of 20.5 percent, " with the
recidivism rate meaning the person was "rearrested or
reconvicted in five years." Nonetheless, Dr. Scott
concluded J.D.B. was "more likely than not" to
commit a sexually violent offense if he was not committed.
Scott explained the apparent discrepancy. First, Dr. Scott
noted that "sex offenders don't get caught,
reported, arrested and convicted at a very high rate."
Thus, the 5-year recidivism rate from the assessment
underestimates the number of sexually violent offenses that
are actually committed during that 5-year period, as the data
does not capture offenses that do not lead to arrests or
convictions. Moreover, Dr. Scott explained that the score
vastly underestimates the "potential lifetime risk"
for reoffending, as the 20.5 percent metric only accounts for
a 5-year period. He testified that although the likelihood of
reoffending declines after the first 5-year period, the total
likelihood of reoffending over the course of the
offender's life is much higher than 20.5 percent on
average. For example, he estimates the number would increase
to about 30 percent likelihood of being rearrested or
reconvicted if measured over a 10-year period.
everything into account, Dr. Scott explained his concern of
J.D.B. repeating predatory acts of sexual violence if he was
I believe that in [J.D.B.'s] mind right now he actually
does not want to perpetrate against another child. I
definitely believe that. But my concern, as I look at this
case and I look at the risk factors and I look at his
behavior when he had the opportunity to apply his treatment,
I don't believe that he's going to be able to manage
his behavior in a way that's going to protect potential
Scott noted that J.D.B.'s inability to avoid child
pornography when he was on parole was a cause for concern. He
had accessed the child pornography while he lived with his
parents, which led to his parole being revoked. His parents
kept the computer in their room and prohibited him from using
the computer. Typically, the parents would lock their room
when they were not in the house. J.D.B. found where the key
was hidden, and he would unlock the door and use the computer
to view child pornography while his parents were out of the
house. Dr. Scott explained this was worrisome because it
shows J.D.B. was unable to apply what he knew from the
Missouri Sexual Offender Treatment Program to refrain from
accessing such content. Additionally, the threat of parole
revocation did not deter him from viewing child pornography.
Dr. Scott also believed that child pornography was "his
path to a contact offense to a new victim, " because he
believed that J.D.B.'s viewing of such pornography was
influential in the predatory acts committed against K.W. Dr.
Scott noted that J.D.B. had continued to escalate his
behavior to satiate his needs: he began by viewing child
pornography, he then began fondling K.W. over her clothes,
and "it got more and more intrusive" as time
Scott ultimately concluded, "[i]t is my opinion to a
reasonable degree of certainty that [J.D.B.] suffers from a
mental abnormality and that that mental abnormality does make
him more likely than not to commit predatory acts of sexual
violence if not confined to a secure facility."
of J.D.B.'s Witnesses
witnesses were called on J.D.B.'s behalf: Pastor Bob
Ingle, J.D.B.'s father ("Father"), Dr. Louis
Rosell, and J.D.B. testified on his own behalf. These four
witnesses covered many of the same subjects, including the
history and development of J.D.B.'s interest in children,
his progress in controlling this interest, as well as his
educational and social struggles throughout his life. As the
evidence adduced at trial is most pertinent to our analysis
under Point V (whether the State made a submissible case) and
we disregard any evidence that does not support the
jury's verdict, we will limit our discussion here and
adduce the particulars of these witnesses' testimony as
they become relevant.
Point I - Burden of Proof
J.D.B.'s first point on appeal, he claims the trial court
erred in giving Instruction 5 to the jury because it only
required a "clear and convincing" burden of proof,
but SVP proceedings are "punitive, " and therefore
require a "beyond a reasonable doubt" burden of
proof to satisfy due process. This argument has recently been
addressed by the Supreme Court of Missouri in Kirk,
and it controls the outcome of Point I. See Kirk v.
State, 520 S.W.3d 443.
Kirk, our Supreme Court found that even though SVPA
"proceedings involve a liberty interest, they are civil
proceedings." Id. at 450 (quoting In re
Care & Treatment of Van Orden, 271 S.W.3d 579, 585
(Mo. banc 2008)). Additionally, the Court reaffirmed its
previous finding from Van Orden, explaining that
both the Supreme Court of Missouri and the United States
Supreme Court have held "a clear and convincing burden
of proof is sufficient for a civil commitment proceeding to
pass constitutional muster." Id. at 452 (citing
Van Orden, 271 S.W.3d at 586 and Addington v.
Texas, 441 U.S. 418, 432-33, 99 S.Ct. 1804 (1979)).
we deny Point I.
Point II - Various Constitutional Challenges
argues that the entire statutory scheme of §§
632.480-632.513 is unconstitutional as amended in 2006,
claiming the statutes are punitive in that they (1) do not
require the least restrictive environment, (2) infringe on
J.D.B.'s right to silence, (3) provide the State with a
right to a jury trial, and (4) permit lifetime confinement
without constitutional safeguards allowing for
release. Accordingly, J.D.B. asserts that the SVPA
"violates due process, equal protection, double jeopardy
and ex post facto prohibitions."
of J.D.B.'s arguments presume the SVPA is a criminal (or
at least "punitive") statutory scheme, thereby
invoking certain constitutional rights because "criminal
protections must apply." Examining the SVPA after the
2006 amendments, the Missouri Supreme Court rejected this
argument, stating "[t]his is incorrect…the SVPA
evidences no punitive intent…[i]nstead, even though
SVPA 'proceedings involve a liberty interest, they are
civil proceedings.'" Kirk, 520 S.W.3d at
450 (quoting Van Orden, 271 S.W.3d at 585) (applying
Kansas v. Hendricks, 521 U.S. 346, 368-69, 117 S.Ct.
2072, (1997) to the SVPA). Accordingly, to the extent
J.D.B.'s positions rely on SVP proceedings being
characterized as "criminal" or "punitive"
proceedings, they necessarily fail.
Least Restrictive Environment
contends that failure to consider and provide the "least
restrictive environment" or "alternative and less
harsh methods" of confinement "violates equal
protection and double jeopardy because it shows that the
legislature's purpose was to punish." In
Norton, the Supreme Court of Missouri found:
[S]ecure confinement of persons adjudicated to be SVPs, as
provided in sections 632.480 to 632.513, is narrowly tailored
to serve a compelling state interest. The State has a
compelling interest in protecting the public from crime. This
interest justifies the differential treatment of those
persons adjudicated as sexually violent predators when, as
determined by the legislature, such mental abnormality makes
them distinctively dangerous because of the ...