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In re Care and Treatment of J.D.B.

Court of Appeals of Missouri, Eastern District, Fourth Division

December 19, 2017


          Appeal from Lincoln County Circuit Court Cause No. 13L6-PR00185 Honorable James D. Beck.


          Colleen Dolan, PJ

         J.D.B. 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").[1] 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.

          I. Jurisdiction

         Because 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.

         II. The SVPA

         In 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 § 632.480(5)).

          III. Factual and Procedural Background

         Around 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 [2003], " 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.

         J.D.B. 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.

         On 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."

         The 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.

         Testimony of Dr. Rick Scott

         At 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 risk."

         Additionally, 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.[2] 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.

         Dr. 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.

         Taking everything into account, Dr. Scott explained his concern of J.D.B. repeating predatory acts of sexual violence if he was not committed:

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 victims.

         Dr. 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 progressed.

          Dr. 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."

         Testimony of J.D.B.'s Witnesses

         Four 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.

         IV. Discussion

         a. Point I - Burden of Proof

         In 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.

         In 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)).

         Accordingly, we deny Point I.

         b. Point II - Various Constitutional Challenges

         J.D.B. 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.[3] Accordingly, J.D.B. asserts that the SVPA "violates due process, equal protection, double jeopardy and ex post facto prohibitions."

         Several 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

         J.D.B. 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 ...

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