In re Care and Treatment of Burgess

• Citation: 147 S.W.3d 822
• Decision Date: 23 September 2004
• Docket Number: No. 25768.,25768.
• Parties: In the Matter of the CARE AND TREATMENT OF Kenneth K. BURGESS, Respondent-Appellant.
• Court: Missouri Court of Appeals

147 S.W.3d 822

In the Matter of the CARE AND TREATMENT OF Kenneth K. BURGESS, Respondent-Appellant.

No. 25768.

Missouri Court of Appeals, Southern District, Division One.

September 23, 2004.

Petition for Rehearing and Transfer Denied October 15, 2004.

Application for Transfer Denied November 23, 2004.

Emmett D. Queener, Columbia, for Appellant.

Jeremiah W. Nixon, Attorney General, Ronald Molteni, Assistant Attorney General, Jefferson City, for State.

PREWITT, Judge.

The State of Missouri petitioned the Probate Division of the Circuit Court of Greene County ("trial court"), seeking to confine Kenneth K. Burgess ("Appellant") as a sexually violent predator. Following jury trial, Appellant was adjudicated a sexually violent predator pursuant to § 632.480, RSMo 2000, and ordered "committed to the custody of the director of the Department of Mental Health for control, care and treatment until such time as [Appellant's] mental abnormality has so changed that he is safe to be at large."

The commitment followed Appellant's confinement for forcible rape, in violation of § 566.030, RSMo 1986, and sodomy, in violation of § 566.060, RSMo 1986. In 1990, Appellant entered Alford pleas of guilt to the charges (see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)), and was sentenced to two concurrent seven year prison terms.

Appellant raises two points in this appeal. First, he contends that the trial court erred in ordering his commitment because there was insufficient evidence to prove beyond a reasonable doubt that he had a mental abnormality as defined by § 632.480, RSMo 2000. Second, Appellant contends that the trial court abused its discretion by failing to declare a mistrial because the State stated in closing argument that Appellant refused to be interviewed by an expert thus preventing that expert from making a diagnosis of a particular mental abnormality, which Appellant contends allowed the jurors to infer the presence of that mental abnormality.

Background

In 1981, Theresa Blinzler met Appellant at a bar or tavern. Appellant indicated he needed a ride to his sister's house, and Blinzler and a friend of hers gave him a ride to a house. While the friend stayed outside, Blinzler accompanied Appellant into the house, after which he locked the door and "had a sudden change in demeanor[.]" Appellant then "ripped [Blinzler's] clothing off ..., got her onto a bed, and forced himself on her, had intercourse with her." Charges were filed in the case, but Appellant was not convicted of any criminal offense.

In September of 1986, Rebecca Simpson worked at K Highway Liquor in Aurora, Missouri. On September 24, 1986, Appellant entered the store and purchased cigarettes and a bottle of wine. Appellant was known to Simpson, as he was in the store nearly every day, sometimes more than once a day.

On the morning of September 24, 1996, Simpson could tell that Appellant had been drinking. Simpson noticed that Appellant was becoming angrier, apparently because his wife was pregnant and possibly seeing another man. Simpson was not initially concerned about Appellant's behavior, but as his demeanor became more belligerent, Simpson thought he might rob the store. Simpson tried to walk toward the phone, but Appellant asked her to sit down and listen to him.

At some point, Appellant took off his belt, started dancing, and then placed the belt around Simpson's neck. He unzipped his pants and forced his penis into Simpson's mouth. A customer entered the store and noticed Simpson crying and left to get the store's owner. Appellant was still in the store when the owner arrived, but Appellant's manner changed and Appellant indicated that everything was fine and left. Simpson told the owner about Appellant placing the belt around her neck and the owner called the police.

Simpson was hesitant to tell anyone what happened, but after Appellant returned to the store a couple of days later and confronted Simpson in a grocery store, she told her husband at least some of the details. Simpson ultimately told her husband and the store's owner the complete details. Approximately two weeks after the incident, Simpson gave a statement to the police. Charges were filed and a trial held, but Appellant was acquitted.

The conduct that provided the basis for the Alford pleas occurred in April 1987. On April 12, 1987, Georgianne James, after completing her shift and going home to clean up, returned to the Battlefield Lanes to practice bowling. Her brother gave her a ride there. James met Appellant when she went to the bar to get a drink. They struck up a conversation and Appellant indicated he was in town to visit his sister and wanted to find a place to cash a check. James indicated Appellant could cash a check at a grocery store down the street, and she offered to go with him and show him where the store was located. They left together in Appellant's car, and Appellant was driving.

Appellant, however, drove past the grocery store and told James he was going to his sister's house instead to get some money. Appellant turned down a street that was very dark and at some point James saw a mobile home, which Appellant indicated belonged to his sister, and two vehicles. Rather than stop at the home, Appellant turned his vehicle around and noted that his sister had company, and he did not want to bother her.

Appellant kept driving, west on Highway M, until "[t]here weren't hardly any houses and it was just like fields, and trees, and then he kept going." Appellant eventually stopped the car, and proceeded to rape and sodomize James. James was able to get the license plate number of Appellant's car, and she also managed to hide in a ditch and get away from Appellant as he drove off. James went to a house and from there the Sheriff's Office was contacted.

Charges were subsequently filed against Appellant, and he was convicted following a jury trial. The convictions were later reversed, however, and the cause remanded, after which Appellant entered Alford pleas to the forcible rape and sodomy counts. Appellant was sentenced to two concurrent seven-year terms of imprisonment.

In addition to the other charges indicated above, Appellant's pre-sentence investigation showed records of arrest for second degree assault, vehicular injury, felonious restraint, and more than one DWI (driving while intoxicated) charge. While serving his two concurrent seven-year sentences, Appellant was convicted of delivery/possession of drugs on a correctional facility and received a two-year sentence, to be served consecutive to his previous sentences.

In March 1997, Appellant was released on parole and placed under community supervision. Two conditions of his parole were that he "enter and successfully complete" both an outpatient substance abuse program and an outpatient sex offender program. He never met either of those two conditions.

While out on parole, Appellant was arrested twice for DWI, once in Aril 1997, and the second time in July 1997. Following the second DWI arrest, Appellant was ordered to a residential treatment center, but he did not complete that substance abuse program. On October 23, 1997, Appellant was arrested for disorderly conduct. He was staggering in the street and "clearly intoxicated to the arresting officer." In November 1997, based on the non-completion of the residential treatment program, Appellant was placed in an institutional treatment center in Farmington, but refused to participate in the program, which led to his return to incarceration at Farmington's Division of Adult Institutions.

Over the course of his incarceration, including following his return in December 1997, Appellant received a total of six conduct violations, the first of which occurred after he was found with a bag of marijuana in his shoe, which resulted in his conviction for delivery/possession of drugs on a correctional facility. His most recent conduct violation, written on December 11, 1997, was based on his refusal to participate in the Farmington Treatment Center drug and alcohol program. This was despite "long-term self-reported alcohol dependence problems."

Regarding the Missouri Sexual Offender Program (MOSOP), Appellant was sent a notice in April 1994 to attend MOSOP Phase I, but he signed a refusal-to-participate form. Appellant indicated to staff of the program that he had no intention of participating in the program. He was sent another notice to attend Phase I of the program on January 19, 1996, but he did not attend the scheduled session. Appellant was sent a third notice in March 1996, but he signed a refusal-to-participate form. On November 3, 1998, Appellant indicated "his choice to not request another chance to complete MOSOP." Because of his refusal to participate in the program, Appellant was never interviewed by a MOSOP therapist.

Prior to Appellant's anticipated release date, March 3, 1999, Gerald Hoeflin, an associate psychologist at Farmington Correctional Center, completed an end-of-confinement report. In February 1999, Appellant completed a set of psychological tests and participated in a clinical interview with Hoeflin. During the interview, Appellant denied any deviant sexual history and described "a history that was very unremarkable." Appellant appeared annoyed throughout the interview, indicating that he had served his sentence for the crimes and would not be in this situation had two years not been added to his sentence for the conviction on drug charges while incarcerated.

Appellant completed three psychological tests, the Multiphasic Sexual Inventory (MSI), the Minnesota Multiphasic Inventory (MMPI-2), and the Million Clinical Multiphasic Inventory (MCMI-II). The results of the MMPI-2 and the MCMI-II were considered unusable because of the large number of questions Appellant left unanswered. The MSI results showed a pattern of a denial of sex desires and interests. The score on a validity scale ...