Com. v. Jackson, Record No. 070524.

• Decision Date: 06 June 2008
• Docket Number: Record No. 070524.
• Citation: 661 S.E.2d 810,276 Va. 184
• Parties: COMMONWEALTH of Virginia v. Kenneth Edward JACKSON.
• Court: Virginia Supreme Court

661 S.E.2d 810

276 Va. 184

COMMONWEALTH of Virginia v. Kenneth Edward JACKSON.

Record No. 070524.

Supreme Court of Virginia.

June 6, 2008.

Angela Boice Axselle, Assistant Attorney General (Robert F. McDonnell, Attorney General; Francis S. Ferguson, Deputy Attorney General; Pamela A. Sargent, Senior Assistant Attorney General, on brief), for appellant.

Esther J. Windmueller, Richmond, for appellee.

Present: All the Justices.

OPINION BY Justice G. STEVEN AGEE.

The Commonwealth appeals from the judgment of the Circuit Court for the City of Richmond, which dismissed the Commonwealth's petition for the civil commitment of Kenneth Edward Jackson as a sexually violent predator ("SVP"). The Commonwealth contends that the circuit court erred because the requirements to establish probable cause under Code § 37.2-906 had been met. For the reasons set forth below, we will affirm the judgment of the circuit court.

I. RELEVANT FACTS AND PROCEEDINGS BELOW

The Commonwealth timely filed a petition under Code § 37.2-905 seeking a determination that Jackson was a SVP under the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 et seq. (the "SVPA").¹ The circuit court appointed counsel for Jackson and conducted a probable cause hearing on December 18, 2006 pursuant to Code § 37.2-906. At the hearing, the Commonwealth introduced three exhibits: a stipulation that Jackson was serving a criminal sentence for a sexually violent offense, the Virginia Department of Corrections Static-99 risk assessment scoring sheet which rated Jackson's relative risk as "[m]oderate-[h]igh," and the mental health evaluation report prepared by the Commonwealth's expert, Dr. Dennis R. Carpenter.

Dr. Carpenter's report consisted of two parts. Dr. Carpenter opined in his original report that "Jackson does not meet the criteria as a[s]exually [v]iolent [p]redator." In a later addendum, Dr. Carpenter reached the opposite conclusion, primarily due to additional information he received from the Commitment Review Committee ("CRC") about a 1997 rape charge against Jackson which had been dismissed.²

The Commonwealth also introduced testimony from two witnesses: Eric Madsen, a senior psychologist with the Department of Corrections and supervisor of the sex offender screening unit, and Dr. Carpenter. Madsen testified that Jackson was referred to the CRC pursuant to Code § 37.2-903 because Jackson received a score of four on the Static-99 test and had been convicted of a sexually violent offense as defined in Code § 37.2-900 because the victim was under the age of 13 and suffered physical bodily injury. This offense, a 1998 conviction for aggravated sexual battery of an eight-year old girl, served as the requisite predicate offense for purposes of meeting the definition of a SVP under Code § 37.2-900.

Dr. Carpenter testified that based on his review of Jackson's criminal and medical records, conversations with his prior probation and parole officers, and his clinical interview with Jackson, Jackson met the statutory requirements to be classified as a SVP. More specifically, Dr. Carpenter testified that based on Jackson's criminal and sexual histories, he diagnosed Jackson with "paraphilia NOS" or paraphilia "[n]ot otherwise specified." According to Dr. Carpenter, an individual suffering from paraphilia NOS has "intense sexuality urges or fantasies or behaviors that involve . . . engaging in sex with a non-consenting person . . . tak[ing] place over a six month period at least or longer."

In addition to paraphilia NOS, Dr. Carpenter testified that he also diagnosed Jackson with "a personality disorder NOS [not otherwise specified] with antisocial features in addition to . . . dependent and avoiding features." This diagnosis describes an individual who is "involved in a pervasive pattern usually of unlawful behavior, that violates the rights of others." Dr. Carpenter also identified Jackson's "extensive substance abuse history beginning at an early age" and diagnosed Jackson with "alcohol abuse in remission in a controlled environment," "cocaine dependency in a controlled environment in remission," and "opium [dependency] in remission in a controlled environment." Taking all of these factors into consideration, Dr. Carpenter characterized the risk that Jackson would commit another sexual offense in the future "from moderate to high." In arriving at his final opinion, Dr. Carpenter testified that when both the adjudicated 1998 aggravated sexual battery conviction was considered with the unadjudicated 1997 rape charge, "[i]t appears that [Jackson] had established a pattern of having inappropriate sexual behavior with minors."

On cross-examination Dr. Carpenter admitted that in his original report to the CRC, he concluded that Jackson was not a SVP. He explained that when he reviewed Jackson's criminal record to formulate his first diagnosis, that record included the 1997 rape charge but contained no further information about that offense. Dr. Carpenter testified that in the absence of further information regarding that charge, he could not conclude that Jackson exhibited a pattern of inappropriate sexual behavior consistent with that of a SVP.

To formulate his revised opinion about Jackson's SVP status, Dr. Carpenter stated that he relied upon more specific information about the 1997 rape charge, which the CRC sent to him following his original diagnosis. According to Dr. Carpenter, the additional information from the CRC indicated that Jackson had been charged with rape for "sexually assaulting a 14-year-old girl in which according to the victim stated that he had fondled her breasts and had stuck his penis in her vagina." The victim had been examined by a nurse practitioner who concluded, "that the physical trauma was consistent with sexual activity/sexual assault." Based on this additional information, Dr. Carpenter assumed that the 1997 rape charge was true for the purposes of his evaluation, then filed an addendum to his original evaluation finding that Jackson met the statutory requirements as a SVP. The circuit court acknowledged Jackson's argument that if Dr. Carpenter was unable to rely on the unadjudicated 1997 rape charge, then Dr. Carpenter would be "back to [his] original provisional diagnosis" that Jackson did not qualify for SVP status.

Dr. Carpenter opined, in the original evaluation, that the risk that Jackson would commit another sexual offense in the future was lowered because of Jackson's age and his health status.³ After receiving the supplemental information from the CRC, Dr. Carpenter reassessed these factors and opined that in finding Jackson was a SVP, "it is evident that his present medical conditions were not debilitating enough to prevent him from committing his sexual offenses."

Dr. Carpenter also testified that he had performed approximately 40 mental health evaluations under the SVPA. On cross-examination, Dr. Carpenter testified that of the 40 individuals examined, he found only three to be non-SVPs upon his initial evaluation. In two of those three cases, including Jackson's, the Commonwealth or CRC forwarded additional information to Dr. Carpenter, and he subsequently changed his diagnosis to find SVP status.

At the conclusion of the probable cause hearing, the circuit court held that "I don't believe that probable cause is found here. I'm going to dismiss the case at this stage." The circuit court confirmed its bench ruling in an order entered December 19, 2006, which stated "the court determines that probable cause does not exist to believe that Kenneth E. Jackson is a sexually violent predator." We granted the Commonwealth this appeal.

II. ANALYSIS

A. Standard of Review

Code § 37.2-906 requires a circuit court to "determine whether probable cause exists to believe that the [defendant] is a sexually violent predator." The meaning of "probable cause" and the standards of a probable cause hearing under the SVPA have not been previously addressed by this Court. The General Assembly has also not defined "probable cause" for purposes of the SVPA. See Code § 37.2-900 (setting forth definitions under the SVPA). Although SVP adjudication under Code § 37.2-906(C) is a civil and not a criminal proceeding, Code § 37.2-908(H), see Ellison v. Commonwealth, 273 Va. 254, 256, 639 S.E.2d 209, 211 (2007) (a proceeding under Code § 37.2-900 et seq., is a "civil proceeding"), we believe it reasonable to look to the standards applicable to probable cause determinations in a criminal proceeding for guidance.

Probable cause is assessed in preliminary hearings in Virginia criminal cases "essentially [as] a screening process." Moore v. Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187, 190 (1977). "Its primary purpose is to determine whether there is `sufficient cause' for charging the accused with the crime alleged." Id. Like a criminal probable cause hearing, the SVP probable cause hearing is concerned with the liberty interest of the defendant and whether sufficient grounds exist to warrant further proceedings against him. We conclude that the SVP probable cause hearing serves a similar purpose as the criminal probable cause hearing, that of ensuring that there is "sufficient cause" to believe the individual is a SVP.

Probable cause in the criminal context is found when "there is reasonable ground to believe that the crime has been committed and . . . the accused is the person who committed it." Moore, 218 Va. at 391, 237 S.E.2d at 190. Similarly, under the SVPA, the circuit court must determine whether probable cause exists to believe that the defendant is a SVP.Code § 37.2-906(C).

With such strong similarities between probable cause in the criminal and SVP contexts, we shall apply the standard of review in a SVPA proceeding that we use in criminal cases:

On appellate review, we give deference to the historical facts determined by the trial court, but we review de novo whether the legal standard of probable...