Goddard v. State

• Decision Date: 10 August 2004
• Docket Number: No. 25799.,25799.
• Citation: 144 S.W.3d 848
• Parties: In the Matter of the Care and Treatment of Michael GODDARD, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

144 S.W.3d 848

In the Matter of the Care and Treatment of Michael GODDARD, Appellant, v. STATE of Missouri, Respondent.

No. 25799.

Missouri Court of Appeals, Southern District, Division Two.

August 10, 2004.

Motion for Rehearing and Transfer Denied August 31, 2004.

Application for Transfer Denied October 26, 2004.

Appeal from the Circuit Court, Jasper County, Probate Division, Jon A. Dermott, J.

Emmett D. Queener, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Amy E. Randles, Office of Atty. Gen., Jefferson City, for respondent.

KENNETH W. SHRUM, Judge.

This is a "Sexually Violent Predator" commitment case, authorized via sections 632.480 to 632.513 (the "Act").¹ In accord with a jury verdict, Michael Goddard ("Appellant") was adjudged to be a sexually violent predator and was ordered confined by the Department of Mental Health ("DMH").

On appeal, Appellant argues that the trial court made a prejudicially erroneous evidentiary ruling by allowing "testimony regarding risk prediction based on the results of actuarial instruments." He insists that admission of this evidence violated section 490.065, the statute governing expert testimony in civil cases. He also claims instructional error was committed at trial. Finally, Appellant maintains the court erred in denying his "motion to dismiss the petition against him as a means of enforcing the plea agreement entered into between himself and the State." This court affirms.

RELEVANT PROVISIONS OF THE ACT

The Act defines a "sexually violent predator" as a person suffering 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 and who has previously pled guilty or been found guilty of a sexually violent offense. § 632.480(5), RSMo Cum.Supp. (2001). A "mental abnormality" is defined as a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior. § 632.480(2), RSMo Cum.Supp. (2001); Thomas v. State, 74 S.W.3d 789, 792[3] (Mo.banc 2002).

If a court or jury determines beyond a reasonable doubt that a person is a sexually violent predator as defined in the Act, such person "shall be committed to the custody of the director of the department of mental health for control, care and treatment until such time as the person's mental abnormality has so changed that the person is safe to be at large." § 632.495, RSMo Cum.Supp. (2001).

FACTS

Primarily, the testimony of Dr. Rintu Khan was used to prove Appellant was a sexually violent predator. Moreover, Appellant's first point charges that some of Dr. Khan's testimony was erroneously admitted over Appellant's objection. Since his other two points do not involve testimony adduced at the trial, nor do they challenge the sufficiency of the evidence, we only recount Dr. Khan's testimony at this point.

Dr. Khan testified that Appellant "suffers from a mental abnormality, namely pedophilia, sexually attracted to males." Because of that abnormality, Appellant has "serious difficulty controlling his behavior." He based this diagnosis and opinion on a number of factors including Appellant's conduct in the past. Appellant's history revealed he began having a sexual interest in young boys when he was fifteen years old. At that age, Appellate molested a boy between the ages of seven and eight.

Then in 1989, when Appellant was eighteen, he sodomized an eleven-year-old boy. He pled guilty to sodomy and "was sentenced to four years suspended, fifty days shock jail time, then probation." His probation conditions included a requirement that he attend "sex offenders treatment" and that he not be alone with children under the age of seventeen. During this probation period, Appellant began dating Teresa Cade, a mother of three children (each under the age of ten). After four probation violations stemming from his contact with Cade's children and his refusal to participate in treatment programs, he was sent to the Fulton State Hospital for in-patient treatment.

Approximately one month later, in August of 1992, Appellant admitted to molesting Cade's six-year-old son "several times." At the same time, he admitted to molesting two other boys. In September 1992, he was kicked out of the Fulton treatment program for failing to participate and totally lacking remorse for his crimes. Finally, in October 1992, Appellant's probation was revoked and he was ordered to serve the four-year sentence.

In November 1992, he pled guilty to the sodomy of Cade's son and was sentenced to ten years in prison to be served concurrently with the original four-year sentence. During Appellant's incarceration from 1992 to 2001, he refused any kind of sexual offender treatment. He repeatedly asserted he did not need the treatment and blamed others for his current situation.

When asked whether Appellate would recidivate, Dr. Khan testified it was his opinion, within a reasonable degree of medical certainty, that because of Appellant's mental abnormality, he was "more likely than not to engage in future predatory acts of sexual violence" if not confined for treatment. He reached this conclusion based on the following: (1) Appellant's track record and history; (2) Appellant's demeanor and denial of having a major problem; (3) Appellant's total lack of effort in addressing his problems; (4) Appellant's ability to deceive his probation officer while on probation, i.e., continuing to commit sexual crimes against boys; (5) Appellant's continued use of alcohol while on probation "when he claims alcohol had something to do with his previous offenses;" (6) Appellant's sexual assault of another inmate while in prison; and (7) Appellant's lack of family support.

While explaining why he believed Appellant was more likely than not to re-offend, Dr. Khan mentioned "actuarial instruments" that he considered, specifically one called "Static 99" and another denominated "MnSOST-R." Thereon, Appellant renewed his pre-trial objection to testimony about these instruments. As before, the trial judge overruled the objection and allowed Dr. Khan to continue. Dr. Khan then explained that the Static-99 and MnSOST-R are "actuarial instruments" derived from cross-sectional studies of sex offenders made throughout the country. These studies examined the characteristics of repeat sexual offenders and assigned them a score. By using this statistical study and comparing it with the characteristics of the person being tested, an evaluator can get a "rough estimate" of whether the test subject will re-offend.²

When asked if the Static-99 and MnSOST-R tests were "well accepted, widely used and generally accepted in your field for helping predict a person's future risk[ ]" potential, Dr. Khan replied:

"In our field these are the two that are widely used. But then again, I think the majority of the clinicians base their evaluations on their opinion and just use the actuarials in a way to support them and not the other way around."

"Q. [To Dr. Khan] So you would have the same opinion whether or not you used any actuarials?"

"A. That is correct."

Dr. Khan also testified that these instruments are only used after a diagnosis is completed as a way to "support" that evaluation, and in his opinion, these instruments actually underestimated the risk of re-offending. Moreover, Dr. Khan unequivocally testified that his opinion (that Appellant was more likely than not to re-offend if left unconfined) would not change regardless of the score on the instruments.

A jury found Appellant was a violent sexual predator and the trial court entered a judgment committing him to the "control, care and treatment" of DMH. This appeal followed.

Point I: Alleged Error In Admitting Evidence

Appellant's first point maintains the trial court abused its discretion when it allowed Dr. Khan to testify about risk prediction based on the use of actuarial instruments, i.e., the Static-99 and MnSOST-R. Specifically, he cites section 490.065 for the proposition that, as a prelude to allowing any testimony concerning those instruments, the State had to establish that the instruments and tests performed using those instruments were "reasonably relied upon by experts in the field in forming opinions" and had to be "otherwise reasonably reliable." He argues that no such showing was made and that any opinion based on these instruments was inadmissible because the instruments themselves were not "reasonably reliable to predict risk of sexual re-offense."

To determine the admissibility of expert testimony in civil cases in Missouri, "[t]he relevant standard is that set out in section 490.065." State Bd. of Reg. Healing Arts v. McDonagh, 123 S.W.3d 146, 153 (Mo.banc 2003). In pertinent part, that statute provides:

"1. In any civil action, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."

....

"3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable."

Section 490.065 (emphasis supplied).

Preliminarily, we observe that "[f]ew cases have interpreted section 490.065." McDonagh, 123 S.W.3d at 155. Until McDonagh, no court had clearly stated the standard for admission of expert testimony prescribed by section 490.065. That changed, at least in part, when McDonagh interpreted section 490.065.3, the "facts or data" prong of the statute.³ We say in...