In re Care and Treatment of Francis

• Decision Date: 18 April 2005
• Docket Number: No. 26162.,26162.
• Citation: In re Care & Treatment of Francis, 159 S.W.3d 873 (Mo. App. 2005)
• Parties: In the Matter of the CARE AND TREATMENT OF James Alvin FRANCIS, Respondent-Appellant.
• Court: Missouri Court of Appeals

159 S.W.3d 873

In the Matter of the CARE AND TREATMENT OF James Alvin FRANCIS, Respondent-Appellant.

No. 26162.

Missouri Court of Appeals, Southern District, Division Two.

April 18, 2005.

Emmett D. Queener, Columbia, MO, for appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Alana M. Barragan-Scott, Deputy Solicitor, Jefferson City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

After a bench trial, James Francis("Francis") was found to be a sexually violent predator ("SVP") pursuant to the Sexually Violent Predators Civil Commitment Act ("SVPCCA"), §§ 632.480-.513.¹Francis appeals from the judgment ordering him committed to the custody of the Department of Mental Health for control, care and treatment until such time as his mental abnormality has so changed that he is safe to be at large.²In Francis' sole point relied on, he challenges a single factual finding made by the trial court: "That [Francis'] mental abnormality makes him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility."Francis claims there is insufficient evidence to prove this fact beyond a reasonable doubt because: (1) destructive contradictions within the testimony of Dr. Lucinda Baker, the State's expert, deprived her testimony of probative value; and (2)the court's judgment rests on mere speculation as to Francis' future behavior.Finding these arguments to be without merit, we affirm.

I.Standard of Review

In order to have Francis committed to the custody of the Department of Mental Health for treatment, the State had to prove beyond a reasonable doubt that: (1) Francis has a congenital or acquired condition affecting his emotional or volitional capacity that predisposes him to commit sexually violent offenses to a degree that causes him serious difficulty in controlling his behavior; and (2)he is more likely than not to engage in predatory acts of sexual violence if not confined.§ 632.480(2);§ 632.480(5);§ 632.495;Thomas v. State,74 S.W.3d 789, 791-92(Mo. banc 2002);In re Coffel,117 S.W.3d 116, 121(Mo.App.2003).Francis only challenges the sufficiency of the evidence to establish the second element.

We assess the sufficiency of the evidence to support a judgment of commitment in a SVPCCA case by the same standard used in criminal cases.SeeSmith v. State,148 S.W.3d 330, 335(Mo.App.2004);In re Care and Treatment of Collins,140 S.W.3d 121, 125-26(Mo.App.2004);In re Care and Treatment of Pate,137 S.W.3d 492, 496(Mo.App.2004).Review of a bench-tried criminal case is the same as for a jury-tried case.State v. Garriott,151 S.W.3d 403, 410(Mo.App.2004);State v. Daniels,18 S.W.3d 66, 67-68(Mo.App.2000).Appellate review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense was established beyond a reasonable doubt.State v. Mann,129 S.W.3d 462, 465(Mo.App.2004);State v. Thompson,112 S.W.3d 57, 62(Mo.App.2003);Daniels,18 S.W.3d at 68.It is not our function to reweigh the evidence.State v. Winsor,110 S.W.3d 882, 885(Mo.App.2003).Instead, we only determine whether the judgment is supported by sufficient evidence.Id."The credibility and weight of testimony are for the fact-finder to determine.The fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case."State v. Crawford,68 S.W.3d 406, 408(Mo. banc 2002)(citation omitted).

When the sufficiency of the evidence is challenged, we view the evidence in the light most favorable to the trial court's judgment, "accepting as true all evidence favorable to the state, including all favorable inferences drawn from the evidence and disregarding all contrary evidence and inferences."Whitnell v. State,129 S.W.3d 409, 415(Mo.App.2004).In reviewing the evidence, however, "this Court will not give the State the benefit on any unreasonable, speculative, or forced inferences; nor will we supply any missing evidence."In re Care and Treatment of Burgess,147 S.W.3d 822, 830(Mo.App.2004).We will not reverse a trial court's decision based on insufficiency of the evidence unless there is a complete absence of probative facts supporting the judge's conclusion.SeeSmith,148 S.W.3d at 335.The following summary of the evidence has been prepared in accordance with these principles.

II.Statement of Facts

Francis had a long pattern of repeated sexual offenses against children.In 1969, he married E.M.She already had a number of children from a prior relationship.These children included four young daughters: A.L.M., age 6; R.M., age 4; A.M.M., age 3; and S.M., age 2.From 1969 through 1972, Francis repeatedly molested all four of these young girls.On multiple occasions, he simulated sexual intercourse with them by placing his penis between their legs and masturbating to ejaculation.He frequently forced them to endure digital penetration of their vaginas with his fingers.On one occasion, he forced R.M. to have either vaginal or anal intercourse with him.Francis used fear, force and threats of violence to accomplish his sexual abuse of these children.During one incident involving A.L.M., for example, Francis placed a knife to her throat and threatened to kill her if she did not allow him to abuse her.

In 1972, a complaint was made against Francis accusing him of molesting a 7-year-old girl.When that information was relayed to the prosecutor, he reported that Francis was "known for that sort of thing, he had molested children previously."In lieu of charges being filed, Francis was treated for a month at the Farmington State Hospital.³

After Francis was released, he returned to live with E.M. and renewed his abuse of her four daughters.In 1974, Francis was sent to Farmington again for three days of treatment after he was reported to have been exposing himself to E.M.'s children and threatening to molest them.In 1975, he was arrested and charged with molesting A.M.M. Afterwards, Francis threatened to kill A.M.M. if she testified against him.Francis eventually pled guilty to this offense and was found to be a criminal sexual psychopath pursuant to §§ 202.700-.770 RSMo (1969).He was committed to Farmington for treatment for five years.

Francis was conditionally released from Farmington in 1980.In August 1980, Francis had anal intercourse with W.L., a 12-year-old boy.Francis also sexually assaulted J.L. who was W.L.'s 11-year-old sister, by placing his penis between her legs and masturbating until he ejaculated.In 1981, Francis pled guilty to the class B felony of sodomy for assaulting W.L. and to the class D felony of sexual abuse in the first degree for assaulting J.L. Francis was sentenced to five-years imprisonment on the sodomy conviction and two-years imprisonment on the first degree sexual abuse offense.The sentences were ordered to run consecutively.

Francis was released from prison in January 1988.He was rearrested in June 1989 and charged with the class B felony of sodomy for forcing C.S., a 5-year-old boy, to perform oral sex on Francis and for forcing C.S. to engage in anal intercourse with Francis.Francis pled guilty to this charge and was sentenced to serve ten years in prison.

In May 1999, the State filed a petition in the probate division of the Circuit Court of Butler County, Missouri.The petition alleged Francis was a SVP and should not be released from prison at the expiration of his sentence.After conducting a hearing, the trial court concluded there was probable cause to believe Francis was a SVP and should be detained for evaluation.At the State's request, Francis was evaluated by Dr. Lucinda Baker("Dr. Baker"), a psychologist employed by the Mid-Missouri Mental Health Center in Columbia, Missouri.

After remand (see note 2), this case was tried to the court.At the State's request, the trial judge admitted in evidence the following documentary evidence: (1) a certified copy of Francis' 1981 conviction for sodomizing W.L.; (2) a certified copy of Francis' 1981 conviction for sexually abusing J.L.; (3) a certified copy of Francis' 1989 conviction for sodomizing C.S.; and (4) transcripts of the testimony given at the first trial by A.L.M., R.M., A.M.M., and S.M. in which they described in detail how they were sexually abused by Francis over a period of six years.The State's only live witness was Dr. Baker.

After interviewing Francis and examining "hundreds of pages" of records concerning him, Dr. Baker testified Francis suffers from the mental abnormality of pedophilia.⁴This condition consists of recurrent and intense fantasies, impulses or behaviors directed toward prepubescent children and children who are below the age of consent.Based on Francis' pattern of offenses, he is attracted to both boy and girl children.This mental abnormality of pedophilia predisposes Francis to commit sexually violent crimes.Pedophiles cannot be cured; the best that can be achieved is that they learn to control their pedophilia through treatment or other methods.As Dr. Baker explained, however, Francis has not accepted, or not responded to, treatment while committed or incarcerated.Francis showed little response to treatment he received at Farmington while committed from 1975-80 and while detained since 1999.He was quite resistant to treatment and had not received any treatment "that would modify in any way his sexual preferences."While Francis was incarcerated, he started the first phase of the Missouri Sex Offenders Program ("MOSOP"), but he never completed the second treatment phase.He was offered the opportunity to do so twice, but he refused.

The mental abnormality of pedophilia causes Francis serious difficulty in controlling his behavior.Despite having served lengthy prison sentences, something is compelling him to reoffend regardless of the consequences.He is...