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In re Care and Treatment of Derby

Court of Appeals of Missouri, Western District, Second Division

June 19, 2018



          Before Karen King Mitchell, Presiding Judge, Alok Ahuja, Judge, and Edward R. Ardini, Jr., Judge


         Adam Derby ("Derby") appeals his commitment as a "sexually violent predator" ("SVP") within the meaning of section 632.480(5)[1] of the Sexually Violent Predator Act ("SVP Act").[2] Derby raises four points on appeal. His first point alleges that the trial court abused its discretion in allowing expert witnesses to testify about statements made by Derby during his treatment. Derby's second point alleges that the trial court abused its discretion in denying his request for certain discovery prior to his probable cause hearing. Derby alleges in his third point that the trial court erred in committing him to the custody of the Department of Mental Health ("DMH") because the evidence was insufficient to establish that he currently meets the definition of an SVP. And, Derby's last point challenges the constitutionality of various aspects of the SVP Act. Finding no error, we affirm the judgment of the trial court.


         In June 2009, law enforcement officers executed a search warrant at Derby's residence and seized a computer containing child pornography. Derby was later found guilty of possession of child pornography and sentenced to fifteen years in the Missouri Department of Corrections ("DOC"). On March 1, 2016, in anticipation of Derby's release, the State filed a petition alleging Derby to be an SVP under the SVP Act. Pursuant to section 632.480(5), a person will be committed to the custody of DMH as an SVP if the State proves by 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.'" In re Kirk, 520 S.W.3d 443, 448-49 (Mo. banc 2017). A jury trial was held, and Derby was found to meet the SVP criteria based on the following facts.

         Around the age of eleven, Derby sexually abused his younger brother by touching his genitals and performing oral sex on him. This conduct resulted in Derby being removed from his home and placed in the custody of the Division of Youth Services.

         Several years later, when Derby was seventeen, a thirteen-year-old girl performed oral sex on him. When Derby was eighteen, his sister reported to police that she believed Derby had inserted his finger into the rectum of his three-year-old nephew. This allegation did not lead to the filing of criminal charges. When the nephew was four, he accused Derby of fondling him. This incident resulted in Derby pleading guilty to child molestation in the first degree and being sentenced to five years in prison. Derby reported at the time that he had tried to stop himself from touching his nephew but was sexually frustrated after being unable to pay for child pornography on the computer. During this incarceration, Derby chose not to participate in the Missouri Sex Offender Treatment Program ("MoSOP").

         In December 2006, approximately four months after his release from prison, a search warrant executed at a residence Derby shared with his brother resulted in the discovery of child pornography. Although he initially claimed the pornography belonged to his brother, Derby later admitted that he had downloaded and viewed the child pornography. He was found guilty of two counts of possession of child pornography and sentenced to consecutive one-year terms in the county jail.

         Derby was released in October 2008 and relocated to St. Louis, Missouri, where he began living with two other sex offenders. Derby admitted that this housing decision was motivated, in part, by an expectation that the arrangement would provide him access to child pornography. In June 2009, law enforcement executed a search warrant at the home and seized a computer containing child pornography. During the course of the ensuing investigation, Derby admitted that a ten-year-old at some point had kissed him on the lips.[4] Derby was convicted of possession of child pornography and sentenced to fifteen years in the DOC. While serving this sentence, he completed MoSOP.

         Two experts, Dr. Jeffrey Kline ("Kline") and Dr. Amy Griffith ("Griffith"), testified at trial that Derby met the definition of an SVP under the SVP Act. Both experts diagnosed Derby with two mental abnormalities-pedophilic disorder and antisocial personality disorder-that predisposed Derby to commit predatory, sexually violent offenses if not confined in a secure facility.[5] Both doctors relied on the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders in reaching their diagnoses.

         Testimony of Dr. Kline

         Dr. Kline explained that pedophilic disorder is a sexual attraction to prepubescent children, generally under the age of thirteen, which causes a person to have serious difficultly controlling his or her behavior or causes the person to engage in behavior harmful to others. Dr. Kline diagnosed Derby with pedophilic disorder based on a history of engaging in sexual behavior toward a child on at least two occasions, fantasizing about having sex with children, and actively using child pornography during at least three different time periods. Derby had also expressed a belief that the age of consent should be lowered and acknowledged during his MoSOP treatment that he was still having sexual fantasies and urges about children. Dr. Kline testified that Derby currently suffered from pedophilic disorder because, although his sexual urges might decline with age, Derby's fundamental attraction to prepubescent children would not completely dissipate.

         Dr. Kline also found that Derby currently suffered from antisocial personal disorder, which is characterized by not following societal rules prior to the age of fifteen and extending into adulthood. Dr. Kline noted that Derby engaged in sexual offending behavior at a young age, engaged in similar illegal conduct shortly after being released from incarceration, and lacked remorse for some of his conduct. Dr. Kline also noted that Derby often deflected blame onto others such as his brother and roommates in St. Louis.

         Dr. Kline testified that both of Derby's mental abnormalities-pedophilic and antisocial personality disorders-affect Derby's ability to control his behavior and thus predispose him to commit sexually violent offenses. Derby's inability to control his behavior has been demonstrated by a history of reoffending very quickly (months rather than years) after being punished. Although Dr. Kline acknowledged that Derby had not recently offended, he attributed this to a lack of opportunity due to his incarceration.

         Finally, Dr. Kline concluded that Derby was more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Dr. Kline explained that predatory acts are those directed towards individuals, including family members, for the primary purpose of victimization. Dr. Kline noted that children portrayed in child pornography are also victimized. Dr. Kline explained that Derby's past offense against his nephew was a predatory, sexual act and that Derby's purpose in molesting his nephew was victimization. Dr. Kline opined that future acts by Derby were similarly more likely than not to be of a predatory, sexually violent nature involving some victimization.

         Dr. Kline also used an instrument that assesses an individual's risk of committing sexual offenses in the future-the Static-99R-in reaching his conclusion that Derby was more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Based on this assessment, Dr. Kline placed Derby at a risk level of seven on a scale of -3 to 13. Historically, thirty percent of individuals with this score reoffend in five years and forty-two percent reoffend in ten years. Dr. Kline further noted that the Static-99R often understates a person's risk of reoffending because it only considers conduct that has come to the attention of authorities and does not factor in predatory acts of sexual violence committed by an individual who is not caught. In addition, the assessment does not specifically consider diagnoses such as pedophilic and antisocial personality disorders. Research has shown that the risk of re-offending is higher for individuals diagnosed with pedophilic disorder.

         Testimony of Dr. Griffith

         Dr. Griffith, a licensed psychologist and the clinical director of MoSOP, also concluded that Derby suffered from pedophilic and antisocial personality disorders and met the SVP criteria.

         In diagnosing Derby with pedophilic disorder, Dr. Griffith relied on Derby's conviction for sexually molesting his four-year-old nephew and a self-reported, uncharged offense involving a thirteen-year-old female. Also diagnostically relevant were Derby's two convictions for possessing child pornography as well as his admission that he had a sexual preference for children over adults. Additionally, Derby rated at the maximum score on the Screening Scale for Pedophilic Interest, which evaluates an individual's sexual interest in children and the likelihood of sexual recidivism. Derby's score was consistent with a diagnosis of pedophilic disorder.

         Dr. Griffith also considered whether Derby suffers from antisocial personality disorder. To be diagnosed with antisocial personality disorder, an individual must meet three of seven criteria involving a generally pervasive disregard for others and the violation of rules and norms. This disregard must manifest prior to the age of fifteen. Some of the criteria includes deceitfulness, reckless disregard for self and others, lack of remorse, lack of concern for the welfare of others, and impulsivity. Dr. Griffith testified that Derby met all seven criteria, specifically noting that Derby at times denied committing his offenses or blamed others for his conduct.

         To determine whether Derby was more likely than not to commit a predatory act of sexual violence if not confined in a secure facility, Dr. Griffith also performed a Static-99R risk assessment. Dr. Griffith scored Derby at a ten, three points higher than Dr. Kline.[6] Dr. Griffith also used another instrument called the Stable-2007, which measures dynamic risk factors not captured by the Static-99R. Derby scored a nineteen out of twenty-six possible points, indicating a high treatment need.[7] Derby's composite scores from the Static-99R and Stable-2007 placed him at a very high risk to reoffend.

         Dr. Griffith also examined additional risk factors relating to sexual recidivism. Dr. Griffith noted that Derby had denied committing the offense of possessing child pornography, even though he acknowledged looking at and masturbating to child pornography, and maintained a defensive attitude and deflected his behavior or offenses onto others throughout treatment.

         Dr. Griffith concluded that Derby would continue to suffer from pedophilic and antisocial personality disorders, affecting his volitional capacity and predisposing him to commit sexually violent offenses in the future if not confined in a secure facility, based on his sexual urges toward children and lack of concern for the impact of his actions on others. This conclusion was supported by Derby's documented inability to be in the community without committing an offense against children.

         Testimony of Derby

         Derby's testimony at trial substantially reflected the State's case-in-chief. Derby testified about his exposure to sexual experiences while growing up. Derby admitted to touching his brother's genitalia when he was five and later questioning the appropriateness of his actions after learning about good and bad touching at school. When Derby was in middle school, he reported to his school counselor that he had been molesting his brother, causing him to be removed from the home.

         Derby eventually returned to the home to live with his mother but later moved in with his sister, where Derby's nephew also lived. Derby testified that this stressful living situation led him to revert to old habits of using sexual conduct-often masturbation, deviant fantasies, and child pornography-to handle stress. When Derby's nephew was three, Derby's sister noticed that there was blood in the child's stool, and she reported that Derby had inserted his finger in the child's rectum. Although investigators were unable to establish evidence of sexual abuse in that instance, Derby was convicted of child molestation a year later based on a separate allegation of abusing his nephew. Derby was sentenced to five years of incarceration.

         After Derby's release, he returned home to live with his mother. Derby's brother was also living at the home. Derby testified that he had discovered child pornography on a computer that, he alleged, was downloaded by his brother. Derby admitted to viewing the child pornography, which led to a conviction for which he spent two years in jail. Derby attempted to minimize this behavior by saying that he only viewed, rather than downloaded, the child pornography.

         While in jail, Derby re-established contact with two sex offenders that he had met while incarcerated for the sexual abuse of his nephew. After his release from jail, Derby asked the individuals to move in with him, in part because he knew that they also enjoyed child pornography. Derby was again found to possess child pornography, resulting in his most recent incarceration. During this prison term, he completed MoSOP.

         Derby was flagged as a person who may meet the SVP criteria. Additional facts are set forth throughout this opinion as necessary.


         Because Derby raises several arguments challenging the constitutionality of the SVP Act, we must examine whether we have jurisdiction over this appeal, as "[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." In re J.D.B., 541 S.W.3d 662, 666 (Mo. App. E.D. 2017) (citations omitted). However, we may review a case raising such issues "[w]hen a party's claim is not real and substantial, but, instead, [is] merely colorable[.]" Id. at 667 (citations omitted). A claim challenging the validity of a statute is "merely colorable" if it has already "been addressed by either the United States Supreme Court or the Missouri Supreme Court[.]" Id. (citation omitted). Because the constitutional issues raised in this appeal have already been addressed by the United States or Missouri Supreme Courts, our jurisdiction is proper.


         For ease, we address Derby's points on appeal out of order. Derby's last point on appeal alleges that the SVP Act is unconstitutional because it is punitive in effect or purpose. Derby argues that the SVP Act is punitive because it (1) permits lifetime custody or confinement without allowing for release and (2) does not require the least restrictive environment of confinement. Based on this, he argues that he should be afforded the same protections as a criminal defendant and thus (3) the State should bear a higher burden of proof. Derby also argues that (4) the right to request a jury trial should belong to Derby and not the State, (5) he should have the right to remain silent and the right to counsel during his end-of-confinement evaluation, and (6) the SVP Act's conditional release procedures are unconstitutional.[8]

         Pursuant to Rule 84.04, a point relied on must "(1) identify the challenged ruling, (2) concisely state the legal reasons for the challenge, and (3) explain in summary fashion why, in the context of [this] case, those legal reasons support the challenge." Kirk, 520 S.W.3d at 450 n. 3 (citation and internal quotation marks omitted). A point relied on that contains more than one basis for reversal, i.e., "groups together multiple, independent claims rather than a single claim of error, " is multifarious and does not comply with Rule 84.04. Id. (citations omitted). Because multifarious points do not comply with Rule 84.04(d), they "preserve nothing for review" and are "subject to dismissal." ...

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