Bradley v. State

• Citation: 554 S.W.3d 440
• Decision Date: 09 May 2018
• Docket Number: WD 80406
• Parties: In the MATTER OF the CARE AND TREATMENT OF LESTER BRADLEY a/k/a Lester B. Bradley, a/k/a Lester Bernard Bradley, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

554 S.W.3d 440

In the MATTER OF the CARE AND TREATMENT OF LESTER BRADLEY a/k/a Lester B. Bradley, a/k/a Lester Bernard Bradley, Appellant,

v.STATE of Missouri, Respondent.

WD 80406

Missouri Court of Appeals, Western District.

OPINION FILED: May 9, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied July 3, 2018

Application for Transfer Denied September 25, 2018

Chelseá R. Mitchell, Assistant Public Defender, Columbia, MO, Attorney for Appellant.

Joshua D. Hawley, Attorney General, and Christine Lesicko, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division Two: Karen King Mitchell, Presiding Judge, and Alok Ahuja and Edward R. Ardini, Jr., Judges

Karen King Mitchell, Presiding Judge

Lester Bradley appeals, following a jury trial, a judgment finding him to be a sexually violent predator and committing him to the Department of Mental Health for control, care, and treatment. Bradley raises eight points on appeal. The first two points challenge the trial court’s denial of his motion to dismiss based upon the court’s failure to hold a probable cause hearing within 72 hours of Bradley’s detention, as required by § 632.489.¹ Bradley’s third and fourth points challenge the admission of testimony from the State’s expert witness Dr. Kimberly Weitl. His fifth point challenges the sufficiency of the evidence to support the jury’s determination that Bradley is a sexually violent predator. And his final three points raise constitutional challenges to the Sexually Violent Predator Act (SVPA). Finding no error, we affirm.

Background²

This appeal comes after a second jury found Bradley to be a sexually violent predator. The following background information is taken from Bradley’s first appeal to this court after his first trial held in January of 2013:

Beginning in October of 1996, Bradley began molesting his twelve-year-old step-daughter by fondling her vagina, forcing her to fondle his penis, forcing her to lie on top of him and rub herself against his penis, and performing oral sex on her. Bradley advised the victim that she was participating in classes on rape, and at the conclusion, she would receive "feely certificates." These "classes" lasted approximately two months, until Bradley advised the victim of the final lesson, which would involve insertion of his penis into her vagina, after which she would receive a "rape certificate." Bradley advised the victim that after her final lesson, Bradley would then begin lessons with the victim’s eight-year-old sister. After Bradley advised the victim of his future plans, the victim reported Bradley’s abuse to her mother sometime around Christmas of 1996. Bradley was subsequently charged with and convicted of one count of first-degree statutory sodomy and two counts of second-degree child molestation.

While in prison, Bradley completed the Missouri Sex Offender Program (MOSOP) in December 2007, and he was released on parole in March 2008. Conditions of Bradley’s parole included: registration as a sex offender, participation in sex offender treatment, no unsupervised contact with children, and no viewing or possessing pornographic material. Within months of being paroled, Bradley began watching pornography and started a relationship with a woman who had a ten-year-old daughter. Bradley would spend two or three nights per week at the woman’s home, babysit the daughter without supervision for up to ten hours at a time while the mother worked, and drive the daughter to and from school approximately two days per week, all in violation of his parole conditions. Although he was in sex offender treatment at the time, which required him to self-identify and report risky behaviors, Bradley did not reveal his relationship or his contact with the ten-year-old girl. He did, however, report that, just before he was paroled, he began having sexual fantasies about his prior victim and masturbating to those fantasies. After his violations were discovered, Bradley’s parole was revoked in October 2008 and he returned to the Department of Corrections to finish serving his sentence. When asked about his unauthorized contact with the ten-year-old girl, Bradley indicated: "I'm not attracted to her because she’s fat."

Before Bradley’s scheduled release date on June 9, 2011, Dr. Kimberly Weitl, a licensed psychologist with the Department of Corrections, filed an end-of-confinement report, indicating her belief that Bradley met the definition of a sexually violent predator (SVP) and referring the matter to the multidisciplinary team (MDT) for further evaluation. The MDT reviewed Bradley’s records and unanimously concluded that Bradley did not appear to meet the definition of a sexually violent predator. Thereafter, the prosecutors' review committee met and, contrary to the MDT, unanimously concluded that Bradley did meet the definition of a sexually violent predator. The Attorney General, acting on behalf of the State, then filed a petition to civilly commit Bradley as a sexually violent predator.

Within the petition, the State requested that the probate court find probable cause to believe that Bradley was a sexually violent predator and set a hearing within 72 hours of his detention on the petition in order to allow Bradley the opportunity to appear and contest the probable cause determination. On May 24, 2011, the probate court entered an order finding probable cause to believe that Bradley met the definition of a sexually violent predator under section 632.480(5) and ordering that Bradley be brought to Jackson County for a probable cause hearing on June 10, 2011 (the day after his scheduled release from the Department of Corrections).

On May 26, 2011, the State filed a motion to move the probable cause hearing due to unavailability of its expert witness on the scheduled hearing date. The State proposed three alternative dates: June 8, June 9, or June 13, 2011. Also on May 26, 2011, Assistant Public Defender Randall Schlegel entered his appearance on Bradley’s behalf and consented to either June 8 or June 9, but indicated his own conflict with June 13.

On June 3, 2011, the court held what appears to have been a status or scheduling conference, wherein both the State and Mr. Schlegel appeared, to discuss the State’s motion. It appears that, at this hearing, the court indicated that it was not available on any of the proposed dates. The State indicated that it was ready to present evidence in support of the petition. Mr. Schlegel, acting on Bradley’s behalf, indicated that Bradley freely and voluntarily waived his right to have the probable cause hearing held within the 72-hour time period prescribed by section 632.489.2, but "request[ed] a continuance of this opportunity." The court found that Bradley freely and voluntarily waived the 72-hour time limitation for the probable cause hearing and that Bradley would not be prejudiced by a continuance of the hearing. The court then ordered that the probable cause hearing be continued until July 6, 2011, and that Bradley was to remain in the custody of the Jackson County Sheriff’s Department until the proceedings were concluded. The court held the probable cause hearing on July 6, 2011, without objection, and found probable cause to believe that Bradley was a sexually violent predator.

Thereafter, pursuant to court order, Bradley was evaluated by Department of Mental Health psychologist, Dr. Stephen Jackson. Although Dr. Jackson believed that Bradley suffered from a mental abnormality (pedophilia) that caused him serious difficulty controlling his behavior, Dr. Jackson did not believe that Bradley was more likely than not to reoffend sexually if not confined; thus, he opined that Bradley was not a sexually violent predator.

The State retained Dr. Angeline Stanislaus, a psychiatrist, to review Bradley’s records and determine whether he met the definition of a sexually violent predator. Dr. Stanislaus diagnosed Bradley with both pedophilia and anti-social personality disorder, both of which she deemed to constitute mental abnormalities that caused Bradley serious difficulty controlling his behavior. Dr. Stanislaus also opined, based upon her use of actuarial tools, that Bradley was more likely than not to reoffend sexually if not confined; thus, Dr. Stanislaus was of the opinion that Bradley met the definition of a sexually violent predator.

Bradley retained Dr. Jarrod Steffan, a psychologist, to conduct an evaluation. Dr. Steffan diagnosed Bradley with anti-social personality disorder, a mental abnormality that caused Bradley serious difficulty controlling his behavior. Unlike Drs. Jackson and Stanislaus, however, Dr. Steffan rejected the diagnosis of pedophilia based upon his perception of the victim’s stage of puberty at the time of the crimes. Like Dr. Jackson, Dr. Steffan also rejected the notion that Bradley was more likely than not to reoffend sexually if not confined. Dr. Steffan specifically took issue with the manner in which Dr. Stanislaus scored the actuarial instruments when assessing Bradley’s future risk; he believed that Dr. Stanislaus improperly relied upon Bradley’s parole violation, rather than his sexual convictions, to establish Bradley’s index offense for scoring purposes.

On January 4, 2013, twenty-four days before trial and eighteen months after the probable cause hearing, Bradley filed a motion to dismiss due to the court’s failure to hold the probable cause hearing within 72 hours of Bradley being taken into custody on the petition. Bradley argued that he did not consent to the untimely hearing and that he was prejudiced in that, without its expert, the State would not have been able to establish probable cause, and Bradley would have been released. Bradley argued that the 72-hour time period was jurisdictional and that the court’s failure to timely hold the probable cause hearing deprived the court of jurisdiction to proceed on the State’s petition. The State filed a response, conceding that the

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