Boone v. State

• Decision Date: 24 August 2004
• Docket Number: No. ED 82669-01.,ED 82669-01.
• Citation: 147 S.W.3d 801
• Parties: In the Matter of the Care and Treatment of Clifford T. BOONE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

147 S.W.3d 801

In the Matter of the Care and Treatment of Clifford T. BOONE, Appellant, v.STATE of Missouri, Respondent.

No. ED 82669-01.

Missouri Court of Appeals, Eastern District, Division One.

August 24, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 28, 2004.

Application for Transfer Denied November 23, 2004.

Emmett D. Queener, Assistant Public Defender, Columbia, MO, for Appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Gary L. Gardner, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Clifford T. Boone("Boone"), appeals from the judgment of the Circuit Court of St. Louis County, after a jury in the probate division found Boone to be a sexually violent predator ("SVP") under section 632.486 RSMo 2000.¹We affirm.

On September 24, 1993, Boone was convicted of rape and was sentenced to eight years imprisonment.He was scheduled for release on February 18, 2000.However, the respondent, the State of Missouri("state"), filed a motion on February 3, 2000 pursuant to section 632.480 et seq. seeking to indefinitely confine Boone as a SVP.A probable cause hearing was held on February 17, 2000.

At the probable cause hearing, evidence of Boone's criminal record was admitted, which included, inter alia, his 1993 conviction for rape and a conviction in 1988 for sexual abuse in the first degree.Jerry Hoeflein, an Associate Psychologist for the Missouri Department of Corrections, testified for the state.Hoeflein, who interviewed Boone for approximately four hours and reviewed his file, served as a therapist in the Missouri Sexual Offender Program ("MOSOP").He described the MOSOP as a group therapy program to help individuals learn to not reoffend.He explained that the MOSOP is set up in two stages.The first stage lasts three months and is a "psychoeducational phase" where the participants are taught certain material.Once a participant completes Phase I, they enter Phase II, "which is approximately nine months of cognitive behavioral therapy" conducted in a group setting.

Hoeflein testified about Boone's participation in the MOSOP.He stated that Boone completed Phase I of the MOSOP, then started Phase II.Boone was removed from Phase II for a conduct violation prior to completing the course, but he was later offered a second opportunity to enroll and complete Phase II.Boone declined to re-enroll in the program.

Hoeflein further testified that in addition to the convictions for rape and sexual abuse, Boone had several other sexual assault charges in the past, which for various reasons did not result in convictions.Hoeflein stated Boone showed no remorse for any of his victims, and that he denied he had ever committed a sexual assault, including the offenses for which he was convicted.

Hoeflein testified that he diagnosed Boone with an antisocial personality disorder, and that it was his opinion that Boone would be likely to commit another sexual assault if he was not confined.Following the hearing, the probate court found probable cause to hold Boone as a SVP.

Prior to the jury trial to determine whether the state could detain Boone as a SVP, Boone filed numerous motions, including a motion styled "Motion to Dismiss: Violation of Freedom of Religion, With Incorporated Suggestions in Support."In that motion, Boone argued that the SVP statutes were unconstitutional as applied to him because he was targeted as a SVP because of his refusal, on religious grounds, to complete the MOSOP.Boone attached a letter to his motion that he had written to Cameron Daniel, his therapist in the MOSOP.In that letter, Boone told Daniel that he was declining the opportunity to re-enroll because of his belief that he has "a sin problem which the MOSOP program does not address and even seems not to acknowledge."He continued that he believed that "the Word of God only has the answers" to his problem and that "only the Lord Jesus Christ and His Holy Spirit can make any necessary changes in my life."(Emphasis in the original.)

In his motion to dismiss, Boone further argued that he was targeted for SVP status because he did not complete the MOSOP, which he described as "a cognitive behavioral modification program grounded in the practice of psychology."He continued that such psychological treatment is a form of secular humanism, which he argued is a religion for First Amendment purposes.Boone argues that attempting to force him to complete a program based on secular humanism violated the Establishment Clause and the Free Exercise Clause of the First Amendment of the United States ConstitutionandArticle I, Sections 5and6 of the Missouri Constitution.

The case proceeded to trial, and the jury determined that Boone was a SVP under the statutes.

In the jurisdictional statement of his brief, Boone argues jurisdiction lies in the Missouri Supreme Court because this appeal involves a real and substantial claim challenging the constitutionality of a Missouri statute.We transferred this case to the Supreme Court, which found that the case was properly under our jurisdiction and transferred it back to us.

In his first point on appeal, Boone argues the probate court erred in denying his motion to dismiss because the MOSOP establishes a secular humanist religion that is hostile to theistic religious beliefs.Therefore, according to Boone, using his election not to participate on religious grounds to target him for SVP commitment was a substantial burden on his right to free exercise of his religious beliefs.

We will first evaluate Boone's establishment claim and then his free exercise claim.

The First Amendment has been made applicable to the states through incorporation into the Fourteenth Amendment.Oliver v. State Tax Com'n of Missouri,37 S.W.3d 243, 248(Mo.banc 2001).The United States Supreme Court has provided a test for determining whether a statute violates the Establishment Clause.First, the statute must have a secular legislative purpose.Lemon v. Kurtzman,403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745(1971).Second, its primary or principal effect must be one that neither advances nor inhibits religion.Id.Third, the statute must not encourage government to be excessively entangled in religion.Id. at 613, 91 S.Ct. 2105.

Section 589.040.1 provides that the director of the department of corrections is to develop a treatment program for people serving time for sexual assault offenses.Further, "the ultimate goal [in developing these programs] shall be the prevention of future sexual assaults by the participants in such programs..."Section 589.040.1.Therefore, it is clear that the MOSOP has a secular legislative purpose.

Boone argues the MOSOP therapist's report, which stated "[Boone's] internalized distortions prevented him from benefiting from the concepts presented [through the MOSOP] and he consistently exhibited resistance to change or things that he did not agree with," illustrates that Boone's religious convictions prevented him from participating in the MOSOP.Boone maintains that the MOSOP is, in effect, the state's advancement of a religion, secular humanism, and such advancement violates the Establishment Clause.

We disagree.The stated goal of the program is to prevent recidivism in sex offenders.Boone is unquestionably a repeat sex offender.We find that as applied in this case the MOSOP does not excessively entangle the government with a particular religion in violation of the United States or Missouri Constitutions.

We now turn to the question of whether requiring Boone to participate in the MOSOP burdened his right to free exercise in violation of the United States and Missouri Constitutions.

The Missouri Constitution deals with separation of church and state with greater particularity than the United States Constitution.Oliver,37 S.W.3d at 251.The Missouri Constitution provides "[t]hat all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences [and] that no human authority can control or interfere with the rights of conscience..."Mo. Const. art. I, § 5.Further, "no person can be compelled to ... attend any place or system of worship..."Id. at § 6.

The Free Exercise Clause absolutely prohibits governmental regulation of religious beliefs.Cantwell v. State of Connecticut,310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213(1940).It guarantees that persons shall have the right to freely exercise their religion and prohibits a government-established religion.Id.The First Amendment protects both freedom to believe and freedom to act.Id.Freedom to believe is absolute.Id.Freedom to act, however, remains subject to regulation for the protection of society.Id. at 304, 60 S.Ct. 900.

Where there is a challenge relating to the constitutional protection of free exercise, a compelling governmental interest is not necessary to justify a law that is neutral and of general applicability, even if the law has the incidental effect of burdening a particular religious practice.Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472(1993).Neutrality and general applicability are interrelated.Id.When one is not satisfied, it is likely that the other has not been satisfied.Id."A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest."Id. at 531-32, 113 S.Ct. 2217.

In this case, we need not determine whether the law is neutral and generally applicable because there is a compelling government interest, i.e., protecting the public from future crime.SeeWhitnell v. State,129 S.W.3d 409, 420(Mo.App. E.D.2004).The MOSOP's goal is to prevent recidivism in sex offenders.Further, the program is narrowly tailored to advance that goal.It is a voluntary program.Failure to...