Court of Appeals of Missouri, Southern District, First Division
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.
FROM THE CIRCUIT COURT OF LACLEDE COUNTY Honorable Steve
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.
no merit in any of these claims, we affirm.
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. 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
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.
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.
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.
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.
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
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.
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[, ]" 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.
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 ...