Opinion
No. WD66469
July 10, 2007
Appeal from Circuit Court of Jackson County, Hon. Kathleen A. Forsyth.
Emmett D. Queener, Counsel for Appellant.
Karen A. Winn, Counsel for Respondent.
Opinion
Richard Tyson appeals his involuntary civil commitment under Missouri's Sexually Violent Predator (SVP) Act. Tyson claims that the State lacked jurisdiction to commit him while using a diagnosis of pedophilia as the predicate mental abnormality because the probate court explicitly found that it lacked probable cause to conclude that he suffered from pedophilia. Tyson raises two additional claims; however, the first point is dispositive.
Missouri's SVP Act
Missouri's SVP Act provides a mechanism for civilly committing sexually violent predators for incapacitation and treatment. The statute provides a labyrinth of necessary "strict procedural safeguards" for the accused SVP, who faces a deprivation of his fundamental right to liberty for criminal acts a jury believes he is likely to commit in the future. Kansas v. Hendricks, 521 U.S. 346, 368 (1997).
Under the Missouri statute, two requirements must be met for an individual to be considered an SVP. One requirement centers on the predator's mental defect while the other on a predicate criminal conviction. The first requirement is that the person must suffer "from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility." Section 632.480(5). A mental abnormality is defined as "a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." Id. at (2). While the term "acts of sexual violence" is not defined by statute, it has generally been held to be equivalent with the defined term "sexually violent offense." See Schottel v. State, 159 S.W.3d 836, 842 (Mo. banc 2005). Sexually violent offenses are:
All citation to statutes refers to Revised Missouri Statutes (2000) unless otherwise noted.
Compare Armco Steel v. City of Kansas City, Mo., 883 S.W.2d 3, 7 (Mo. banc 1994) (when different terms appear in different sections of a statute, we presume that the legislature intended the terms to have different meaning and effect).
forcible rape, rape, statutory rape in the first degree, forcible sodomy, sodomy, statutory sodomy in the first degree, or an attempt to commit any of the preceding crimes, or child molestation in the first or second degree, sexual abuse, sexual assault, deviate sexual assault, or the act of abuse of a child as defined in subdivision (1) of subsection 1 of section 568.060, RSMo, which involves sexual contact, and as defined in subdivision (2) of subsection 1 of section 568.060, RSMo.
Section 632.480(4). The second requirement is generally met by demonstrating that the person "[h]as pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030, RSMo, of a sexually violent offense." Id. at (5)(a). Both the mental abnormality and the criminal conviction must be present for the person to be considered an SVP.
The conviction requirement can also be met if the SVP "[h]as been committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13, 1980." Section 632.480(5)(b).
The process of committing an SVP generally begins while the individual is incarcerated. The Department of Corrections (DOC) then gives notice to the attorney general and a seven-person multidisciplinary team that the convict may be an SVP. Section 632.483.1. The multidisciplinary team then prepares a report and forwards such to the attorney general and the prosecutor's review committee, a five-person panel. Section 632.483.4-5. If the prosecutor's review committee determines that the individual is an SVP, the attorney general may then file a petition in probate court alleging such and supporting that allegation with sufficient facts. Section 632.486. The probate judge must then make an initial determination if there is probable cause that the suspect is an SVP. Section 632.489.1. If such a determination is made, then the inmate may be bound over for up to 72 hours for a contested preliminary hearing. Id. at .2. At this hearing, the inmate is afforded the right to an attorney, the right to present evidence, and the right to cross-examine the attorney general's evidence. Id. at .3. If the probate court finds probable cause to believe that the person is an SVP, the inmate may then be bound over for a full trial. Section 632.492. There is no explicit statutory requirement or prohibition that the probate judge make findings in conjunction with the probable cause determination.
The proceeding may also begin after the suspected SVP commits a "recent overt act."
Section 632.483.4 states:
The director of the department of mental health and the director of the department of corrections shall establish a multidisciplinary team consisting of no more than seven members, at least one from the department of corrections and the department of mental health, and which may include individuals from other state agencies to review available records of each person referred to such team pursuant to subsection 1 of this section. The team, within thirty days of receiving notice, shall assess whether or not the person meets the definition of a sexually violent predator. The team shall notify the attorney general of its assessment.
Section 632.483.5 states:
The prosecutors coordinators training council established pursuant to section 56.760, RSMo, shall appoint a five-member prosecutors' review committee composed of a cross section of county prosecutors from urban and rural counties. No more than three shall be from urban counties, and one member shall be the prosecuting attorney of the county in which the person was convicted or committed pursuant to chapter 552, RSMo. The committee shall review the records of each person referred to the attorney general pursuant to subsection 1 of this section. The prosecutors' review committee shall make a determination of whether or not the person meets the definition of a sexually violent predator. The determination of the prosecutors' review committee or any member pursuant to this section or section 632.484 shall not be admissible evidence in any proceeding to prove whether or not the person is a sexually violent predator. The assessment of the multidisciplinary team shall be made available to the attorney general and the prosecutors' review committee.
A jury trial is then available if requested. Id. To be committed, the fact finder must determine by clear and convincing evidence that the suspect is an SVP. Section 632.495.1. Additional conditions of confinement, treatment, and annual evaluation, irrelevant to the current appeal, are provided by other sections of the SVP Act.
Facts and Background
Richard Tyson, in his sixties when most recently incarcerated, is an undisputed exhibitionist. His record reveals no less than fifteen charges and seven convictions for indecent exposure. However, the evidence is less than clear that Tyson suffers from pedophilia. In 1998, Tyson pled guilty to first-degree child molestation and was incarcerated. The guilty plea resulted from two separate incidents, with two sisters, three weeks apart. These incidents are the only known instances of contact offenses committed, which are probative of pedophilia. In August of 2004, one month prior to his anticipated release, the State filed a petition to commit Tyson as an SVP. The DOC's clinical director of sex offender services diagnosed Tyson with pedophilia, exhibitionism, and anti-social personality disorder with psychopathic traits and concluded that Tyson was an SVP. This report was incorporated into the State's commitment petition.
In a section of the probate court's order entitled "Finding," it ruled that it lacked probable cause to conclude that Tyson suffered from pedophilia. It stated, "[t]his court finds that the State failed to prove by clear and convincing evidence that the respondent is a pedophile, not because it failed to show that Defendant has an attraction to prepubescents, but because it failed to show that the attraction lasted 6 months." It had insufficient evidence that Tyson was sexually attracted to prepubescents for over six months, a standard requirement of pedophilia. Am. Psychiatric Ass'n, Diagnostic Statistical Manual of Mental Disorders 572 (4th ed. Text Revision 2000) (hereinafter "DSM-IV"). The court did, however, conclude that it had "probable cause to believe that [Appellant] Richard Tyson suffers from anti-social personality disorder with psychopathic traits, that such disorder is a mental abnormality . . . an[d] that he is a sexually violent predator."
Prior to trial, Stephen Jackson, Ph.D., of the Missouri Department of Mental Health, Forensic Services, examined Tyson and concluded that Tyson "does not suffer from a mental abnormality within the meaning of" the SVP Act. The State sought a second opinion from Dr. Bradley Grinage, a psychiatrist from Kansas. Dr. Grinage diagnosed Tyson with pedophilia, non-exclusive type. The State then proceeded to trial, over Tyson's objection, on the ground that he suffered from pedophilia, which made him more likely than not to reoffend. The State argued that the combination of pedophilia, anti-social personality disorder, and exhibitionism constituted a "mental abnormality." Two other experts testified that they could not diagnose Tyson with pedophilia. The State also introduced evidence that when Tyson was between the ages of 17 and 20, he lived with and impregnated a girl between the ages of 13 and 15.
The record is unclear as to how old Tyson was at the time and if he cohabited with one or two different girls.
After deliberation, the jury unanimously found Tyson was an SVP, thereby subjecting him to indefinite incarceration.
Standard of Review
Appellate review of statutory interpretation is de novo. Barker v. Barker, 98 S.W.3d 532, 534 (Mo. banc 2003). "The primary rule in statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning." Nelson v. Crane, 187 S.W.3d 868, 869-70 (Mo. banc 2006). Furthermore, where the facts are uncontested, as is the case here, questions of subject matter jurisdiction are reviewed de novo as well. Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 22 (Mo. banc 2003).
Use of Pedophilia as a Mental Abnormality
We are now charged with the task of determining the function of the SVP preliminary hearing and effect of additional findings offered by the probate court in conjunction with a finding of probable cause. We note at the outset that this is a case of first impression and few, if any other, states have approached the issue.
Two Southern District cases described a similar problem; however, in those cases the issue was unpreserved. See In re Care Treatment of Spencer, 103 S.W.3d 407, 419-20 (Mo.App.S.D. 2003); In re Care Treatment of Johnson, 161 S.W.3d 873, 881 (Mo.App.S.D. 2005). Furthermore, these cases are distinguishable. There, the State proceeded to trial on a new mental abnormality, not a mental abnormality for which the probate court explicitly found that it lacked probable cause.
Over Tyson's objection, the State went to trial on a theory that Tyson suffered from pedophilia, as well as anti-social personality disorder with psychopathic traits, and, therefore, he suffered from the requisite mental abnormality. Pedophilia, as defined by the DSM-IV, is a paraphilia which "involves sexual activity with a prepubescent child (generally age 13 years or younger). The individual with Pedophilia must be age 16 years or older and at least 5 years older than the child." DSM-IV at 571. "Individuals with Pedophilia who act on their urges with children may limit their activity to undressing the child and looking, exposing themselves, [or] masturbating in the presence of the child. . . ." Id. The sexual attraction or behavior with prepubescent children must occur for at least six months. Id. at 572. Practitioners are warned not to diagnose pedophilia for "an individual in late adolescence involved in an ongoing sexual relationship with a 12-or 13-year old." Id.
In support of its theory of pedophilia, the State claimed it discovered new probative evidence after the probable cause hearing and before the trial. One record noted that Tyson stood naked in a window as a woman and her eight-year-old daughter walked past. It was unclear if Tyson intended to expose himself to the mother, the daughter, both, or neither. The other record stated he exposed himself to a group of preteen and teenage girls. It is unclear how old the girls were, who he intended to expose himself to, and if any appeared to be prepubescent. Over Tyson's objection, the State relied heavily on a diagnosis of pedophilia at trial.
The SVP commitment procedure is a creature of statute and it follows that the question before us is essentially one of statutory interpretation. While facially a civil statute, the SVP Act imports significant elements from criminal law. "In Missouri, SVP proceedings are not considered criminal, but may be considered of a special statutory nature. An alleged SVP, however, is afforded many rights conferred on a defendant in a criminal proceeding. . . ." In re Care Treatment of Burgess, 147 S.W.3d 822, 833 (Mo.App.S.D. 2004) (internal citation omitted). These imported criminal elements serve to protect the suspected predator's fundamental liberty interest in remaining free from unwarranted incarceration.
Section 632.489.1 requires that the probate court "determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator." This requires the probate court to determine if the named person "suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence." Section 632.480(5). The preliminary hearing conducted by the probate court and the finding of probable cause is, at its core, an imported criminal procedure. In re Care Treatment of Norton, 123 S.W.3d 170, 174 (Mo. banc 2003) (stating, "[t]he SVP Act erects an elaborate, step-by-step procedure, conferring on the suspected predator a number of rights enjoyed by defendants in criminal prosecutions. Those rights include: the right to a preliminary determination by the probate judge of whether probable cause exists to believe the suspected predator is [an SVP and] the right to contest an adverse probable cause determination."); see also Section 544.250.
As the plain language of the SVP Act is less than clear as to the effect of additional findings made by the probate court, we draw upon case law determining the effect of extraneous findings made by the court at a criminal preliminary hearing.
A criminal preliminary hearing serves several vital functions. It is a check on possible abuse of power, saves the expense of prosecuting an unsupportable charge, and weeds out groundless charges. State v. Mattic, 84 S.W.3d 161, 166 (Mo.App.W.D. 2002); State v. Hill 438 S.W.2d 244, 246 (Mo. 1969); People in Interest of M. V., 742 P.2d 326, 328 (Colo. 1987). Another purpose of the preliminary hearing, in conjunction with the indictment, is to narrow the issues set for trial so that the accused may prepare a defense. At the preliminary hearing, the indictment is tested. "The test of the sufficiency of an indictment [information] is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution." State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980).
It is a rule of criminal law, however, based upon sound principles, and unaffected by the statute of jeofails, that every indictment must contain a complete description of the offense; i.e., must set forth the facts constituting the crime with such certainty that the accused may have notice of what he is called upon to meet and controvert, and the court, applying the law to the facts charged, may see that an offense has been committed. Indeed, it has been held that the Legislature has no power to dispense with such allegations as are essential to reasonable particularity and certainty in the description of the offense.
Henry S. Kelly, A Treatise on Criminal Law and Practice 133-34 (4th ed. 1928). We can gather from this that the preliminary hearing, whether criminal or SVP, serves to narrow the scope of issues for trial: to apprise the defendant of the operative facts that will be used against him at trial.
Our examination of SVP preliminary hearing is further guided by State ex rel. Buresh v. Adams, 468 S.W.2d 18 (Mo. banc 1971), a case involving a criminal preliminary hearing. There, the State filed a two-count complaint against Buresh. Both counts alleged stealing under the same statute: one count for submitting fraudulent travel vouchers and the other for stealing electricity. Id. at 20. After a preliminary hearing, the magistrate bound Buresh over for trial on the first count: submitting false travel vouchers. However, the court found that it lacked probable cause for the second count, stealing electricity. Id. Prior to trial, the State filed a substitute information charging a single count of stealing, alleging the facts for both stealing electricity and submitting false travel vouchers. Id. at 21. Buresh sought a writ of prohibition. The State argued the amended information was sufficient because it charged stealing under the same statute. Id. at 21. The Missouri Supreme Court granted a writ of prohibition, noting that the State had no authority to proceed on a charge for which the magistrate did not bind over the defendant. Id. Buresh was only bound over for stealing by submitting false travel vouchers, not stealing electricity. Id. The court continued, "the charge contained in the information relating to the stealing and conversion of electricity was the subject of Count II of the amended complaint upon which the Magistrate discharged relator and consequently there was no authority in the prosecutor to include this charge in the information." Id.
Much like in Buresh, in the current case the State proceeded to trial and presented a position for which the court at the preliminary proceeding could not find probable cause. The current case is even stronger; here the court made an explicit finding that it lacked probable cause to believe Tyson suffered from pedophilia. Where the probate court explicitly finds a lack of probable cause to proceed on a certain theory, the State lacks authority to proceed under that theory. We cannot permit the confinement to stand where the State lacked authority to proceed.
Several other jurisdictions have also determined that when a magistrate conducting a criminal preliminary hearing makes explicit findings of fact, beyond whether there is probable cause to bind over the suspect, then the State will be limited by those explicit findings of fact. In Illinois, where the magistrate conducting a preliminary hearing makes an express finding of fact, the State may not proceed on a charge which contradicts such a finding.
The State should not be able to ignore an express finding of no probable cause for an offense made at a preliminary hearing and file an information charging the same offense. . . . where a magistrate at a preliminary hearing makes an express finding that, as a matter of fact, no probable cause exists for a certain offense, that offense may not be included in an information subsequently filed by the prosecutor.People v. Hovanec, 394 N.E.2d 1340, 1348 (Ill.App.Ct. 1979) (internal citations omitted); see also People v. Torres, 562 N.E.2d 1110, 1112 (Ill.App.Ct. 1990). The same rule has been adopted in New Mexico. State v. McCrary, 639 P.2d 593, 599 (N.M.Ct.App. 1982) (where magistrate found probable cause for second-degree murder but not first-degree murder, the State lacked authority to charge first-degree murder). And the same rule, if not stronger, prevails in California. There, the suspect may not be charged with a crime inconsistent with the material factual holdings of the magistrate who made the findings of probable cause:
if the factual findings made by the magistrate are "fatal to the asserted conclusion that a particular offense was committed," that offense may not be included in the information. Thus, whether the prosecutor may successfully challenge the magistrate's conclusion that probable cause exists limited to a designated offense by inclusion of another charge, must be determined "within the context of the magistrate's [material] findings on the evidence."Walker v. Super. Court, 166 Cal. Rptr. 209, 212 (Cal.Ct.App. 1980) (internal citation omitted). "Thus, if the magistrate makes `material factual findings' which prove fatal to the offense by negating any possibility that it occurred, the prosecution may not ignore those findings and refile the charge." People v. Super. Court (Day), 220 Cal. Rptr. 330, 334 (Cal.Ct.App. 1985).
While we can find no Missouri case directly on point, our SVP preliminary hearing serves much the same purpose as these criminal preliminary hearings and we therefore interpret the additional findings of the probate court in a similar light. When the court makes a finding in addition to its probable cause determination, the State may not proceed in a manner contrary to that finding. To do otherwise would emasculate the probate court's role in determining probable cause and render it little more than a meaningless procedural gesture. When the probate court made its finding, it weeded out one theory of mental abnormality; the State is bound by that determination.
To counter this interpretation, the State contends that as a matter of statutory construction, the criminal preliminary hearing is very different from the SVP preliminary hearing. The State argues that the additional opportunity for examination after the probable cause hearing contemplates that the State may not have a final diagnosis prior to the preliminary hearing.
The current situation was likely not contemplated by the legislature. The statute does not require the probate court make findings on particular diagnoses. Furthermore, even in the current scenario, the additional examination may only be intended as an opportunity to find additional evidence for the original mental abnormality; the additional evidence may be required because the State has a higher burden at trial than at the preliminary hearing. The post-preliminary hearing examination does not open the door for a trial on a theory previously found to lack probable cause.
We would find a contrary rule troubling. The State proposes one mental disorder, which may be persuasive to a probate judge, and an entirely different mental disorder, which may be persuasive to a jury. The State's reading of the SVP Act threatens the statutorily conceived role of the probate court as independent gatekeeper. The United States Supreme Court has determined that "strict procedural safeguards" are necessary for any SVP commitment statute. See Kansas v. Hendricks, 521 U.S. 346, 368 (1997). The State's approach would permit the erosion of these necessary and strict procedural safeguards. While the probate court need not precisely define the mental abnormality, see generally State v. Ancell, 62 S.W.2d 443, 446 (Mo. 1933), once the probate court explicitly finds that it lacks probable cause that a particular abnormality is present, the State is no longer free to proceed on that ground.
Nathaniel E. Plucker, Note, Debating the End of the World and Other Pointless Endeavors: Thomas v. State and the Civil Commitment of Sex Offenders in Missouri After Kansas v. Crane, 47 St. Louis U. L.J. 1151, 1183 (2003) ("Public concern and fear of sex offenders will almost universally guarantee a decision of commitment regardless of any constitutional restraints placed before the jury."). This dynamic may be exacerbated when an expert witness diagnoses pedophilia.
We make no statement as to the State's authority to proceed on mental abnormalities not mentioned in the petition or grounds mentioned in the petition but not the subject of an explicit finding by the probate court.
We remand Tyson's case for a new jury trial. The probate court found that Tyson suffered from anti-social personality disorder with psychopathic traits. At the new trial, the State will be prohibited from using the diagnosis of pedophilia as the predicate mental abnormality.
A personality disorder may constitute a "mental abnormality." In re Care Treatment of Murrell, 215 S.W.3d 96, 108 (Mo. banc 2007) (holding anti-social personality disorder is a mental abnormality so long as there is competent expert testimony that the anti-social personality disorder makes it more likely that not that the suspected predator will reoffend. "Antisocial personality disorder qualifies as a mental abnormality within the meaning of section 632.480 . . . if it is linked to past sexually violent behavior"); In re Care Treatment of Pate, 137 S.W.3d 492, 497 (Mo.App.E.D. 2004) (holding that Pate's narcissistic personality disorder predisposed Pate to sexual aggression).
Our cursory investigation reveals no impediment to a request for a new preliminary hearing at which the probate court may find probable cause for the existence of pedophilia based on the new evidence. Nevertheless, the issue was not briefed, and we, therefore, make no statement as to whether the State may seek a new finding of probable cause for pedophilia.
Conclusion
The cause is reversed and remanded for a new trial.