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In re Care and Treatment of White

Court of Appeals of Missouri, Western District, Second Division

May 28, 2019


          Appeal from the Circuit Court of Atchison County, Missouri The Honorable Corey Keith Herron, Judge

          Before: Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, and Cynthia L. Martin, Judges


         Following a jury trial in the Probate Division of the Circuit Court of Atchison County, Missouri, Ronald White (White) was involuntarily committed to the Missouri Department of Mental Health as a Sexually Violent Predator (SVP)[1] under the Sexually Violent Predator Act, Sections 632.480 through 632.525 (the "Act")[2]. In Point I White claims that the trial court erred in not granting his request for a limiting instruction regarding hearsay relied upon by the State's experts. In Point IV, White argues that the trial court erred in denying his motion for a directed verdict because the State failed to produce sufficient evidence to establish that he was more likely than not to commit a future act of sexual predatory violence. In his three other points on appeal White contends that his commitment is improper because he was denied effective assistance of counsel: (in Point II) that Counsel failed to call White's own expert witness, a psychologist that would have purported to testify that White was not more likely than not to commit a future predatory act; and (in Points III and V) that, during cross-examination of the State's experts, White's counsel elicited hearsay evidence of a past act of sexual violence against a child and the results of psychological tests (which indicated he had an elevated risk to recidivate). We affirm.


         White had sexually abused ten children by the time he was age 19, but was not prosecuted for those acts of abuse. In 1992, White was convicted of Aggravated Sexual Assault of an eight-year-old boy in the State of Texas; and a 10-year sentence was imposed. Five months after being paroled on that Texas offense, White committed the offenses which resulted in his conviction on May 7, 1996, in Atchison County, Missouri. White was convicted on two counts of statutory sodomy in the first degree, and was sentenced to twenty years in the Missouri Department of Corrections (DOC).

         While serving in the DOC White was enrolled in the Missouri Sexual Offender Program (MOSOP), which is designed to help educate and rehabilitate those convicted of a sexual offense. While in the MOSOP program White struggled to control his behavior and indicated difficulty in understanding the program materials; and ultimately voluntarily withdrew from the program. White never re-enrolled or completed the MOSOP program.

         Prior to White completing his sentences in the DOC for the convictions in Atchison County, the State filed the instant action in the Probate Division of the Circuit Court of Atchison County, seeking civil confinement of White as a sexually violent predator upon his release from the DOC. In the course of a three-day jury trial, the State presented testimony from licensed psychologists Heather McMahon (McMahon) and Amy Griffith (Griffith), both of whom had performed their own independent evaluations of White. It was the opinion of both McMahon and Griffith that White had a mental abnormality that made it more likely than not that he would reoffend. Their opinions were based on their interviews of White, review of his records, and the results of tests that were administered to White.

         With respect to the 1996 offenses (the index offenses) McMahon testified that White admitted to her that he had (then age 27) coaxed a young boy into an alley and compelled him to perform a sex act on White, and that White did the same. White admitted that he had sexually assaulted ten other pre-pubescent children, both male and female, by the time he was nineteen, that he had been previously imprisoned in Texas for sexually assaulting an eight year old boy, and that he had been on parole for five months when he committed the index offenses in Atchison County in 1996. McMahon noted that White continued to act out sexually in prison, despite negative consequences for that behavior. McMahon determined, based on her interview with appellant and the review of his records and his history, that White met the criteria for pedophilic disorder, that his ability to make decisions was impaired, and that he still had the urge to act out with children. McMahon also conducted the Static-99R, the Static-2002R, and the STABLE 2007[3] actuarial assessments with White. McMahon testified that she was able to give an opinion, with a reasonable degree of psychological certainty, whether White had a mental abnormality that made him more likely than not to engage in predatory acts of sexual violence if not confined; and indicated that he did suffer such an abnormality that made him more likely than not to reoffend.

         During McMahon's testimony, counsel for White (Trial Counsel) requested that the trial court instruct the jury that, while McMahon was allowed to use hearsay evidence of White's prior offenses in arriving at her expert opinion, the statements could not be considered "independent substantive evidence" that he had had actually committed those acts.[4] The trial court indicated that if any such instruction were given it would be at the conclusion of the case and not during testimony. Ultimately, the trial court determined that, because the hearsay evidence was properly relied upon by the expert in forming her opinion, a limiting instruction would confuse the jury. Consequently, the trial court did not submit the limiting instruction proposed by White (nor any other such limiting instruction).

         Griffith, the Clinical Director for the Missouri Sex Offender Program in the Missouri Department of Corrections, also testified as to her evaluation of White. In a telephone interview White admitted to Griffith that he had engaged in sexual violence against prepubescent children. He also related that, prior to engaging in his first offense, he had sexually fantasized about his victim. Griffith noted that White's committing the index offense while on parole and in treatment, within five months of release from prison in Texas, was consistent with her finding that he suffered from an inability to control his urges. White indicated, at the time of the interview, that he had recently been purposely masturbating to sexual thoughts of children. Griffith testified that White's persistent sexual urges directed at children, despite being confined and in treatment, showed difficulty controlling those urges.

         White's Trial Counsel elicited testimony from two expert witnesses that challenged the opinions of McMahon and Griffith. Dr. Kamel Rekab (Rekab), a professor of statistics at the University of Missouri-Kansas City, testified that actuarial instruments such as the Static-99R and the Static-2002 were inaccurate predictors of behavior. Rekab also pointed out that according to the Static 99R model, White's score of 4, did not statistically predict him to recidivate.

Q. So even if we accept the Static-99R and use it on it's [sic] own terms, the model itself says that with a score of 4 that person is predicted not to recidivate?
A. It's not that -- I can say more. Any score of 5 and up he will recidivate. Any score of 5 and up; 5, 6, 7 and up to 12 will recidivate. Any score from 4 and below will not recidivate because of the threshold. Threshold is 18 percent.

         White's second expert, Eric Janus (Janus), was a law professor who specialized in the study of how the law addresses sexually violent offenders and had published on the subject of volitional control. Janus testified that, after he had reviewed the reports completed by the State's experts, it was his opinion that the reports failed to incorporate the standard and principles accepted in the field of law and psychology to distinguish a sexually violent predator from a typical recidivist. However, the trial court limited Janus' testimony, sustaining objections that Janus could not testify regarding the sufficiency of the work of the state's experts, as follows: "The question is whether he's qualified to offer an opinion about whether the forensic psychologists did their jobs properly which he's not qualified to do, so the objection is sustained."

         At the conclusion of the evidence the jury returned a verdict finding that White was a sexually violent predator, and the trial court then entered its judgment committing him to the Department of Mental Health as a sexually violent predator. This appeal follows.


         No error in refusing to submit the limiting instruction proposed by White.

         In order to have White committed as a sexually violent predator, the State was required to prove that he had been convicted of an "index" sexually violent offense[5] and that he had a mental abnormality making him more likely than not to commit a future act of sexually predatory violence unless confined to the custody of the Department of Mental Health. § 632.480(5). There is no dispute that the 1996 convictions in Atchison County (of statutory sodomy in the first degree) met the first requirement that White had been convicted of an "index" sexually violent offense. Id. The dispute at trial was whether White had a mental abnormality that made him more likely than not to commit a future act of predatory sexual violence if not confined. Id.

         In his first point on appeal, White contends that the trial court erred in failing to give a limiting instruction regarding hearsay evidence that the experts related to the jury as part of the basis for their opinions. White concedes that such "evidence which is inadmissible for one purpose may be admissible for another." Danbury v. Jackson Cty., 990 S.W.2d 160, 165 (Mo. App. W.D. 1999). At the instruction conference, White submitted the following proposed jury instruction: "An expert can rely on hearsay information provided that those sources are not offered as independent substantive evidence, but rather serve only as a background for his or her opinion." The trial court found this instruction improper, and Trial Counsel did not provide an alternative limiting instruction.

         "Whether to give a cautionary instruction is generally within the trial court's discretion. When exercising its discretion, the court should be guided by the degree to which the jury may be misled by the evidence." Martin v. Durham, 933 S.W.2d 921, 924 (Mo. App. W.D. 1996) (internal citations omitted). In this case, White asserts that, under Missouri law, he is entitled to the limiting instruction as a matter of right. Eltiste v. Ford Motor Co., 167 S.W.3d 742, 756 (Mo. App. E.D. 2005) ("'When a trial court receives evidence admissible for one purpose but not for another, a party upon request is entitled to an instruction limiting the extent and purpose for which the jury may consider the evidence.'") (quoting Clayton Center Associates v. W.R. Grace & Company, 861 S.W.2d 686, 691 (Mo. App. E.D. 1993)). Our inquiry is not only into whether White was entitled to a limiting instruction, but also whether the failure to provide the instruction materially affected the result of the trial, resulting in prejudice to White. Id. ("While failure to give an instruction to which a party is entitled to [sic] is error, reversal is warranted only if the error is prejudicial, that is when the merits of the action are materially affected.").

         White argues that he was prejudiced because the jury could have considered the hearsay statements relied upon by the experts in forming their opinions as substantive evidence of the truth of the matters asserted in those statements. In particular, White contends that there was a danger that the jury would commit him because of the incidents of sexual abuse that he related to McMahon. White maintains that the State encouraged this in its closing argument. "[W]e know that he has at least 11 victims in his history that we never charged, that he was never punished for. Mr. White is the reason why we have this [SVP] legislation, why we have this proceeding."[6] White's claim that the trial court was required to provide the instruction, and the prejudice he contends sprang from it, fails to acknowledge the nature of the proceeding.

In Missouri, SVP commitments are civil proceedings. While some criminal due process protections are afforded to those facing commitment, there is no requirement that the trial court give a 'statement to doctors' instruction in civil cases generally or under the SVP statute. The instruction is required only in criminal cases to protect the accused from self-incrimination, a constitutional right which the U.S. Supreme Court has held is not applicable in civil commitment proceedings. Because treatment, rather than punishment, was the purpose of the proceeding, Mr. Wadleigh's statements to the mental health experts were not shielded by the Fifth Amendment privilege.

Care & Treatment of Wadleigh v. State, 145 S.W.3d 434, 439-40 (Mo. App. W.D. 2004) (internal citations omitted).

         In Missouri, the statements made by White to McMahon, even though hearsay, would be admissible as an admission against interest. Gamble v. Browning, 277 S.W.3d 723, 728 (Mo. App. W.D. 2008). Consequently, the jury would have been free to view White's admissions to McMahon and Griffith as substantive evidence of the truth of the matter they asserted.

         White's proposed limiting instruction asked that the jury be informed that all hearsay evidence utilized by the experts not be viewed "as independent substantive evidence." In the context of evidence which is admissible for one purpose but not another "the giving of a limiting instruction depends on the making of 'a proper request'… '[i]n the absence of a proper request therefor, the objector cannot successfully complain of the failure of the court to give a limiting instruction.'" Sapp v. Morrison Bros. Co., 295 S.W.3d 470, 484 (Mo. App. W.D. 2009) (quoting Dyer v. Globe-Democrat Publ'g Co., 378 S.W.2d 570, 581 (Mo. 1964)). When a party's request for a limiting instruction does not "recognize[] the full range of the issues to which the…evidence was relevant, they cannot obtain reversal here based on the trial court's refusal to give the limiting instruction they actually tendered." Id. at 486. Since White's proposed limiting instruction failed to delineate which hearsay statements relied upon by the State's experts were not admissible as substantive evidence of the truth asserted, we do not find that the trial court erred in failing to give it.

         Furthermore, White's own admissions (that he had sexually abused 11 other children before the 1996 offenses in Atchison County) were the primary sources of hearsay discussed by the State's experts in explaining their opinions at trial. White's counsel made no specific contemporaneous objection to hearsay of others relied upon by the State's experts, and, in fact, it appears there is little discussion in the direct examination of the State's experts regarding such other hearsay.[7] In light of White's own damning admissions, even if defense counsel had made a timely or proper request for a limiting instruction regarding the other hearsay relied upon by the State's experts, the failure to give a limiting instruction did not materially affect the result of the trial. See Eltiste, 167 S.W.3d at 756.

         Point I is denied.

         No error in denying White's motion for a ...

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