In re Care and Treatment of Kapprelian

• Decision Date: 30 August 2005
• Docket Number: No. 26435.,26435.
• Parties: In the Matter of the CARE AND TREATMENT OF Rodney KAPPRELIAN, a/k/a Rodney A. Kapprelian, a/k/a Robert McCloud, a/k/a Rodeau A. Kaprielian, a/k/a Rodney A. Kapprelian, a/k/a Rodney Kaprielian, a/k/a Rodney Cole, a/k/a Allen Kapprielian, Respondent-Appellant.
• Court: Missouri Supreme Court

Page 708

168 S.W.3d 708

In the Matter of the CARE AND TREATMENT OF Rodney KAPPRELIAN, a/k/a Rodney A. Kapprelian, a/k/a Robert McCloud, a/k/a Rodeau A. Kaprielian, a/k/a Rodney A. Kapprelian, a/k/a Rodney Kaprielian, a/k/a Rodney Cole, a/k/a Allen Kapprielian, Respondent-Appellant.

No. 26435.

Missouri Court of Appeals, Southern District, Division Two.

July 5, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 21, 2005.

Application for Transfer Denied August 30, 2005.

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

Jeremiah W. (Jay) Nixon, Atty. Gen., Ryan Bertels, Asst. Atty. Gen. of Jefferson City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

After a bench trial, Rodney Kapprelian ("Kapprelian") was found to be a sexually violent predator ("SVP") pursuant to the Sexually Violent Predators Civil Commitment Act ("SVPCCA"), §§ 632.480-.513.¹ Kapprelian appeals from the judgment ordering him committed to the custody of the Department of Mental Health ("DMH") for control, care and treatment until such time as his mental abnormality has so changed that he is safe to be at large. In Kapprelian's sole point relied on, he challenges the sufficiency of the evidence to support the trial court's factual finding that Kapprelian's 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. Kapprelian argues there is insufficient evidence to prove this fact beyond a reasonable doubt because: (1) it ignores Kapprelian's recent good behavior in confinement, which is a better predictor of future behavior than his past history of repeatedly molesting children while not confined; and (2) Dr. Jackson's opinion about Kapprelian's future behavior was essentially based on nothing more than clinical judgment, which causes the trial court's finding to rest on mere speculation. Finding these arguments to be without merit, we affirm.

I. Standard of Review

In order to have Kapprelian committed to the custody of the DMH for treatment, the State had to prove beyond a reasonable doubt that: (1) Kapprelian 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). Kapprelian 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. See Smith 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. See Smith, 148 S.W.3d at 335. The following summary of the evidence has been prepared in accordance with these principles.

II. Statement of Facts

Between August 1984 and June 1995, Kapprelian sexually abused 13 young boys in Washington, California, Florida and Missouri. This pattern of molestation began when Kapprelian was 29 years old and continued until he was approximately 40 years old. Several of Kapprelian's offenses against children were committed while he was on parole for prior convictions of sexually molesting children. In 1995, he was incarcerated in Missouri after pleading guilty to statutory sodomy in the first degree for engaging in deviate sexual intercourse with a 13-year-old boy.

Just prior to Kapprelian's release from confinement on the sodomy conviction in April 2003, the State filed a petition alleging that Kapprelian was a SVP who needed to be committed to the DMH for control, care and treatment. The trial court entered an order appointing Dr. Steve Jackson, a licensed psychologist employed by the DMH, to conduct an evaluation of Kapprelian to determine whether he met the criteria for a SVP. Dr. Jackson had previously conducted over 20 such SVP evaluations. As a part of the evaluation process, Dr. Jackson interviewed Kapprelian and also reviewed approximately 2,000 pages of documentary information concerning him.²

A bench trial was held July 9, 2004. Dr. Jackson was the only witness who testified. His written evaluation of Kapprelian also was admitted in evidence. The facts set forth below are drawn from Dr. Jackson's trial testimony or his report.

Dr. Jackson opined to a reasonable degree of psychological certainty that Kapprelian suffers from the mental abnormality of pedophilia. This condition consists of "recurrent intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with children." Based on Kapprelian's pattern of offenses, he is attracted to male children. Pedophilia does not go away and constitutes a "lifelong and chronic problem" for persons afflicted by it. Kapprelian's mental abnormality of pedophilia predisposes him to commit sexually violent crimes because it causes him to have serious difficulty in controlling his behavior. There are two factors which tend to strongly support this conclusion. The first is Kapprelian's history of being a repeat sexual offender. This factor is significant because Kapprelian molested a large number of child victims over a long period of time, and incarceration did not deter him from sexually abusing more children. The second is Kapprelian's history of reoffending while on parole or under court supervision for a prior sexual offense involving a child. In Dr. Jackson's opinion, such past behavior is the best predictor of future behavior.

After Kapprelian was incarcerated in Missouri, his pedophilia did not respond to the treatment offered in prison. Although he completed the first phase of the Missouri Sex Offender Treatment Program ("MOSOP"), he was "kicked out" of the program before completing the second phase for failure to apply the concepts he had learned during the first phase. Kapprelian was found to be evasive, untruthful and manipulative by MOSOP staff, and they considered him to be at a "very, very high risk of reoffending." One MOSOP therapist concluded that Kapprelian had "no intention of surrendering to the change process which requires rigorous honest . . . self-examination." Kapprelian also did not understand what triggered him to sexually abuse children, and he had only a "vague ill-defined" plan to avoid relapses if released from confinement.

In addition to the mental abnormality of pedophilia, Dr. Jackson also diagnosed Kapprelian as suffering from sexual masochism. This condition is defined as "sexually arousing fantasies, urges or behaviors wherein acts that cause either humiliation or physical suffering of a victim are sexually exciting to an individual." Kapprelian admitted, and his records also confirmed, that he tried to get the children he sexually abused to harm themselves for Kapprelian's own sexual gratification.

Dr. Jackson testified that Kapprelian's mental abnormality of pedophilia, coupled with the additional diagnosis of sexual masochism, makes him more likely than not to engage in predatory acts of sexual violence if not confined to a secure facility. This conclusion was based upon two independent considerations: (1) the results of Kapprelian's score on the Static-99 assessment; and (2) a review of other relevant factors drawn from the relevant professional literature on the subject.

Dr. Jackson first explained his assessment of Kapprelian using the Static-99. This assessment tool is an actuarial instrument that is widely used and accepted in the field of psychology to make statistical predictions about the likelihood of a sex offender being reconvicted of another sexual offense within five, ten and fifteen year periods after being released from confinement. It measures 10 risk factors for reconviction. Kapprelian scored an 8 on the Static-99 assessment, which predicted his risk of reconviction as 33% within five years, 52%...