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In re Care and Treatment of Bohannon

Court of Appeals of Missouri, Southern District, First Division

June 18, 2019

IN THE MATTER OF THE CARE AND TREATMENT OF DANIEL BOHANNON a/k/a DANIEL R. BOHANNON, a/k/a DANIEL RAY BOHANNON, a/k/a DANIEL BOHANNAN, a/k/a DANIEL R. BOHANNAN, a/k/a DANIEL RAY BOHANNAN, a/k/a DANIEL R. BOHANON, Respondent-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY Honorable Steve Jackson

          DON E. BURRELL, P.J.

         Daniel Bohannon ("Bohannon") appeals the Laclede County circuit court's judgment committing him to the Department of Mental Health ("DMH") as a sexually violent predator ("SVP"). Bohannon claims he received ineffective assistance of counsel at his trial because his lawyer: (1) failed to file an answer and object to the qualifications of the State's "end of [c]onfinement report" author; and (2) chose to inject evidence of his prior SVP commitment proceeding. He also claims that the trial court abused its discretion in refusing to receive an exhibit into evidence.

         Finding no merit in any of these claims, we affirm.

         Factual Background

         Bohannon's sexual offenses began when he sexually abused his two younger sisters for a period of years starting when he was around 13 years old. Bohannon was never charged with those offenses.[1] In 1982, Bohannon was convicted of sodomizing a four-year-old and six-year-old while babysitting. Bohannon was released from prison onto parole in 1984, and less than two years later, he was charged with sexually abusing two young girls he had been babysitting. Bohannon was convicted of sexual abuse in the first degree (a sexually-violent offense) and was sentenced to serve ten years in the Department of Corrections ("DOC") for his abuse of each victim. See section 566.100, RSMo 1986.[2]

         In 2006, the sexually-violent-predator screening process began for Bohannon when the State sought his commitment as a SVP after an "end of confinement evaluator" found that Bohannon met the criteria. The State voluntarily dismissed that case after Bohannon incurred additional assault charges for throwing hot water on a corrections officer ("the hot water incident") and was ultimately sentenced to DOC for that offense.

         Ten years later, in 2016, another end of confinement evaluator, Dr. Angela Webb ("Dr. Webb"), again found that Bohannon met the criteria for a SVP based upon his history and ongoing behavior. The State filed its petition in July 2016 and sought a hearing to determine whether there was probable cause to believe that Bohannon qualified as a SVP.

         The circuit court held a hearing pursuant to section 632.489.2, and Dr. Webb was the only witness. Based upon her testimony, the trial court found probable cause to believe that Bohannon was a SVP.

         The State's retained expert, clinical psychologist Dr. Kent Franks ("Dr. Franks") performed an evaluation of Bohannon, and he testified for the State at trial. Dr. Franks opined that Bohannon suffered from the mental abnormality of pedophilic disorder, as well as alcohol use disorder, antisocial personality disorder, and borderline intellectual functioning. He also believed that Bohannon suffered from a severe mental disorder of a psychotic nature. Dr. Franks concluded that Bohannon's mental abnormality rendered him more likely than not to commit more predatory acts of sexual violence if not confined in a secure facility, and Bohannon thereby qualified as a SVP under Missouri law.

         In his defense, Bohannon presented the testimony of Dr. Lisa Mathews ("Dr. Mathews"), a licensed psychologist and certified forensic examiner with DMH at Fulton State Hospital. She diagnosed Bohannon with the mental abnormalities of pedophilic disorder and antisocial personality disorder, but she opined that Bohannon was not a SVP.

         The jury unanimously found Bohannon to be a SVP, and the trial court entered an order and judgment committing him to DMH. This appeal timely followed.

         Analysis

         Points one and two allege ineffective assistance of counsel. The right to counsel in SVP cases includes the right to effective counsel. Grado v. State, 559 S.W.3d 888, 896 (Mo. banc 2018). When resolution of such claims "involve counsel's actions at trial, and are evident on the record[, ]"[3] they may be raised and resolved on direct appeal. Id. at 897. Our high court has demurred on deciding whether counsel's effectiveness should be measured by the "meaningful hearing based on the record" standard applied in termination of parental rights cases or on the Strickland v. Washington, 466 U.S. 668 (1984), standard applied in SVP cases in other states and in our post-conviction cases (hereafter "both standards" or "either standard"). Instead, it has reviewed such claims under both standards. See Grado, 559 S.W.3d at 892; Matter of Care and Treatment of Braddy, 559 S.W.3d 905, 910 (Mo. banc 2018). We follow suit here.[4]

Under the "meaningful hearing" standard, this Court would determine - based on the record on appeal - whether counsel provided [Bohannon] with a meaningful SVP hearing. Strickland would require [Bohannon] to show by a preponderance of the evidence: "(1) his or her counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he or she was prejudiced by that failure." Mallow v. State,439 S.W.3d 764, 768-69 (Mo. 2014). In order to overcome the "strong presumption that counsel's conduct was reasonable and effective," Smith v. State,370 S.W.3d 883, 886 (Mo. banc 2012), [Bohannon] would have to identify "specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance," Zink v. State,278 S.W.3d 170, 176 (Mo. banc 2009). "Trial strategy decisions may only serve as a basis for ineffective counsel if they are unreasonable." Id. In order to prove the prejudice prong of Strickland, the ...

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