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In re Care and Treatment of D.D.

Court of Appeals of Missouri, Eastern District, Second Division

May 21, 2019


          Appeal from the Circuit Court of the City of St. Louis Honorable Philip D. Heagney

          Philip M. Hess, Presiding Judge.


         D.D. ("Appellant") appeals a judgment committing him as a sexually violent predator ("SVP"). Appellant raises three points on appeal. Appellant claims the Sexually Violent Predator Act ("the Act"), under which he was committed, is unconstitutional for violating his rights to due process and equal protection as the use of the Act was arbitrarily chosen over civil commitment under a guardianship petition. Appellant argues the court which tried Appellant's SVP proceeding ("SVP court") erred or abused its discretion by failing to sua sponte continue the trial ("SVP trial") under § 632.492[1] until the completion of a concurrent guardianship proceeding. Appellant also claims his counsel at the SVP trial was ineffective for failing to request a continuance from the SVP court to allow for the completion of the guardianship proceedings.[2]

         We disagree. We deny Appellant's three points on appeal, and we affirm the judgment of the SVP court committing Appellant as an SVP.

         Factual and Procedural Background

         Appellant was arrested in 2002 and entered guilty pleas for two counts of harassment for making phone calls of a sexual nature to a grocery store. Appellant entered guilty pleas for three more counts of harassment occurring in 2002. In 2004, Appellant was given a citation for lewd and indecent conduct for masturbating in public. Appellant received another citation for lewd and indecent conduct in 2005 when he was seen with his genitals exposed in a parking lot. On another occasion in 2005, Appellant knocked on a nursing home window with his genitals exposed.

         On November 7, 2006, Appellant exposed his penis to a woman entering her building. Appellant came toward the woman from hiding and asked if she wanted to "play" with his genitals. Appellant then began masturbating. The woman yelled at Appellant, and Appellant grabbed her buttocks. Before she could get away, Appellant said, "Watch this," and ejaculated onto the steps leading into the apartment building.

         On November 23, 2006, Appellant stepped out from hiding, grabbed a female employee walking into work at a fast food chain, and pulled her into the restaurant. When Appellant grabbed her, the woman fell to one knee. With his pants around his ankles while holding his erect penis, Appellant demanded oral sex from the woman.

         On November 28, 2006, two women reported Appellant for sexual misbehavior. The first woman told police Appellant was staring at her while masturbating in public. Appellant confronted a second woman at a building she owned. Appellant followed her into a stairwell with his pants down and masturbated. He ejaculated onto the landing of the stairs. This woman was running from Appellant when he ran up the stairs to her and attempted to pull down her pants. She screamed and threw her keys. Appellant fled from the building.

         In 2009, Appellant entered guilty pleas for a charge of both attempted forcible sodomy[3]and sexual assault as well as multiple second degree sexual misconduct charges, related to the incidents in November 2006. After the plea, Appellant was sentenced to 10 years in Missouri Department of Corrections ("DOC").

         Appellant accumulated over one hundred conduct violations in the six years in prison following his guilty plea. On three separate occasions, Appellant received a conduct violation for intentionally getting the attention of a female officer while masturbating.

         Appellant was scheduled to be released on November 29, 2015. In August 2015, a psychologist at the DOC filed an end-of-confinement report notifying the office of the Attorney General of Missouri ("Attorney General") and a multidisciplinary team in the Department of Mental Health ("DMH") that Appellant may be an SVP. Appellant was transferred to DMH for holding during the SVP proceedings. A multidisciplinary team consisting of one DOC and two DMH medical practitioners voted unanimously Appellant met the statutory definition of an SVP[4]. A review committee of prosecuting attorneys also later voted unanimously Appellant met the definition. On October 7, 2015, the Attorney General filed a petition in the Probate Division of the Circuit Court of St. Louis City to commit Appellant as an SVP.

          On December 1, 2015, a division of the probate court ("Probable Cause court") found probable cause based on the pleadings that Appellant was an SVP. The Probable Cause court ordered Appellant to be detained at DMH and be examined by a psychiatrist or psychologist to continue the statutory SVP procedure. Dr. Richard Scott ("SVP Evaluator") examined Appellant and filed an evaluation with the SVP court on February 1, 2016. The case was transferred to a different division in the SVP court and set for trial on March 30, 2016[5].

         During these proceedings, Appellant was held at DMH. He was transferred to Ste. Genevieve County Jail, but behavior problems caused him to be transferred to the Sex Offender Rehabilitation and Treatment Service ("SORTS") at the Southeast Missouri Mental Health Center ("SMMHC"). SORTS documented aggressive behavior toward female security aides and nursing staff which the SVP Evaluator mentioned as reason for a high risk of reoffending.

         Appellant's counsel withdrew from the case, and Appellant filed a motion to proceed pro se. The SVP court denied this motion and continued the trial to October 24, 2016[6].

         On July 26, 2016, the State through the General Counsel for DMH ("General Counsel") filed a petition for appointment of a guardian for Appellant. In the petition, General Counsel claimed Appellant:

"displays inability to cope with frustration which results in him becoming physically aggressive. He refused medications regularly, and is unable to provide for his own food, safety and medical treatment."

         General Counsel sought to appoint the Public Administrator as guardian of Appellant's person and conservator of Appellant's estate.

         The SVP Evaluator diagnosed Appellant with two mental abnormalities: exhibitionism and anti-social personality disorder. The SVP Evaluator did not find him delusional in any way. According to a psychiatrist on Appellant's treatment team with DMH, Dr. Nezar El-Ruwie ("Treating Psychiatrist") in response to interrogatories, Appellant's principal diagnosis was an unspecified paraphilic disorder. The Treating Psychiatrist also diagnosed: bipolar affective disorder mixed with psychosis; anti-social personality disorder; substance abuse; and PTSD. The Treating Psychiatrist also mentioned the possibility Appellant suffered from shizoaffective disorder, but Appellant's treatment team was not able to rule this out as of the time of the guardianship petition. The Treating Psychiatrist also noted "verbal/physical aggression towards staff and peers repeatedly." In response to which environment would be "least restrictive" for Appellant, Appellant's Treating Psychiatrist said he should be kept in the SORTS maximum security mental health facility at SMMHC.

         A guardianship hearing was scheduled for September 30, 2016 but was continued to November 16, 2016[7]. With the parties' consent, the SVP court continued the SVP trial for a second time from October 24, 2016 to December 5, 2016[8]. The Guardianship hearing was continued from November 16, 2016 to December 12, 2016[9]. Neither court made reference to the other proceeding in ordering any of the continuances. On October 25, 2016, the SVP Evaluator was deposed to discuss his evaluation of Appellant. At the deposition, the SVP ...

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