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In re Care and Treatment of D.N.

Court of Appeals of Missouri, Eastern District, Third Division

July 9, 2019


          Appeal from the Circuit Court of Clark County 16CK-PR00032 Honorable Rickey R. Roberts


          James M. Dowd, Judge.

         This civil commitment case was brought by the State in July 2016 against Appellant D.N. as he was completing a 15-year prison sentence for his conviction on the unclassified felony of sexual abuse. The State's petition filed pursuant to § 632.486[1] sought to have Appellant committed to the custody of the Department of Mental Health ("DMH") as a sexually violent predator ("SVP"), as defined by § 632.480, in light of the evidence that Appellant had committed sexual offenses against his mentally disabled 39-year-old sister-in-law; his eight-year-old son; his four-year-old stepson; and an unrelated adult woman. The jury found Appellant to be an SVP and the trial court entered judgment on the verdict committing him to the DMH.

         Appellant now asserts that the trial court abused its discretion during voir dire by prohibiting his counsel from informing the venire panel of the ages of the two children he had abused and from inquiring of the venire panel about potential bias or prejudice stemming from those facts. Because the trial court prevented Appellant in this regard from exercising his "right to inquire about potential bias due to the critical facts of the case," State v. Clark, 981 S.W.2d 143, 148 (Mo.banc 1998)-and because Appellant was prejudiced by that denial-we find the court abused its discretion requiring reversal and remand for a new trial.


         Appellant was convicted in 2005 of felony sex abuse of his mentally disabled sister-in-law for which he was sentenced to 15 years in prison. He was scheduled to be released in August 2016. Approximately two months prior to that scheduled release date, a Department of Corrections psychologist evaluated Appellant and found that he met § 632.480's definition of a "sexually violent predator." On that basis, the State filed its July 2016 petition seeking to commit Appellant to civil confinement as an SVP. Following a September 7, 2016 hearing held pursuant to § 632.489, the court found that probable cause existed to support the allegations in the petition so the court transferred Appellant to the custody of the DMH for further evaluation on the question of whether he met the statutory definition of an SVP.

         As a result, DMH psychologist Dr. Jeffrey Kline examined Appellant and issued his SVP evaluation report on December 5, 2016 finding that Appellant was not an SVP. Dr. Kline determined that Appellant did not suffer from a mental abnormality as defined by § 632.480 and was unlikely to engage in predatory acts of sexual violence if released into the community. In response, the State requested and was permitted to have Appellant examined by Dr. Harry Goldberg, a clinical psychologist, who also served as the State's expert at trial. Dr. Goldberg concluded that Appellant satisfied the definition of an SVP.

         Trial was set for June 2017 pursuant to § 632.492. During voir dire, Appellant's counsel attempted to inform the venire panel of the specific ages of his child victims. The State objected on the basis that the ages of the victims were facts too inflammatory for the panel to hear. The court sustained the State's objection. Instead, Appellant's counsel was limited to asking, without providing any specific detail about his victims, whether any venire member was "worried that because of having kids or grandkids that are small" they might have trouble following the court's instructions. Several venire members, none of whom was subsequently seated on the jury, admitted that they would have difficulty being fair and impartial for that reason.

         But counsel was not allowed to inform the panel of the ages of any of Appellant's victims or to divulge less specifically that the case would involve evidence that his victims included a preschool-aged child. As a result, the jury was selected without having been voir dired in light of those facts.

         Then trial began and the State, from its opening statement onward, repeatedly highlighted the extent to which its SVP case rested on the facts that Appellant sexually abused his stepson beginning when he was four years old, and his own son beginning when he was eight years old. The State's expert, Dr. Goldberg, testified that he diagnosed Appellant with three disorders, including pedophilic disorder (sexual attraction to prepubescent children), all of which "worked together" to meet the definition of a mental abnormality under § 632.480(2)-and that the diagnosis of pedophilic disorder was based on two particular facts: (1) Appellant's son "said he was eight years old when [Appellant's sexual] molestation [of him] began," and (2) Appellant's stepson "said he was four years old when [Appellant's sexual] molestation [of him] began." (Emphasis added). The State kept the focus on the particular ages of Appellant's victims throughout the case and into its closing argument.

         The jury found Appellant to be an SVP and the circuit court entered its judgment adopting the jury's verdict and ordered Appellant committed to the DMH for care, control, and treatment.

         This appeal follows.


         1. The purpose of' voir dire is to select a ...

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