In re Care and Treatment of Johnson, 26023.

• Decision Date: 31 May 2005
• Docket Number: No. 26023.,26023.
• Parties: In the Matter of the CARE AND TREATMENT OF Joseph M. JOHNSON, Respondent-Appellant.
• Court: Missouri Supreme Court

161 S.W.3d 873

In the Matter of the CARE AND TREATMENT OF Joseph M. JOHNSON, Respondent-Appellant.

No. 26023.

Missouri Court of Appeals, Southern District, Division Two.

April 6, 2005.

Motion for Rehearing or Transfer to Supreme Court Denied April 22, 2005.

Application for Transfer Denied May 31, 2005.

COPYRIGHT MATERIAL OMITTED

Nancy A. McKerrow, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Assoc. Solicitor, Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

This is the second appeal arising from the State's effort to have Joseph Johnson ("Johnson") confined to a secure facility for treatment pursuant to the Sexually Violent Predators Civil Commitment Act ("SVPCCA"), §§ 632.480-.513.¹ In March 1999, the State filed a petition in the probate division of the Circuit Court of Newton County, Missouri, alleging that Johnson was a sexually violent predator ("SVP"). In September 1999, a jury returned a unanimous verdict finding that Johnson was a SVP. This verdict was based on expert testimony given by Gerald Hoeflein ("Hoeflein"), who opined that Johnson suffered from mental abnormalities which made him more likely to commit crimes of a sexually violent nature. The trial court admitted Hoeflein's opinions over Johnson's objection that Hoeflein was unqualified to render such expert testimony.

In Johnson's appeal from the judgment entered after the first trial, the Supreme Court of Missouri agreed the trial court erred in admitting Hoeflein's testimony:

Without Hoeflein's testimony, the state lacks sufficient evidence to support two of the three essential elements of its case — that Johnson suffers from a mental abnormality and that he suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Finding that the trial court abused its discretion in admitting Hoeflein's testimony and that the admission of the testimony was prejudicial, the judgment is reversed. The state, however, is entitled to rely on the trial court's erroneous ruling in determining what evidence to produce. There may be other evidence that the state can present to make a submissible case. Therefore, the case is remanded.

Johnson v. State, 58 S.W.3d 496, 499-500 (Mo. banc 2001) (citation omitted).

On remand, the State obtained another expert, Dr. Roy Lacoursiere, to evaluate Johnson and testify at the trial in place of Hoeflein. The case was tried to the court because Johnson waived his right to a jury trial after the case was remanded. The State presented all of the evidence at the trial. The evidence and inferences favorable to the judgment are summarized below.

Johnson had two prior convictions for sexual offenses. In 1991, Johnson was convicted of two counts of sodomy. The victim in that case was his 9-year-old stepdaughter, April. Johnson fondled April's breasts and vaginal area, both over and under her clothing, with his hand; he also had her perform oral sex upon him on one occasion. In 1995, Johnson was convicted of committing sexual assault in the first degree on his 15-year-old niece, Crystal, by having sexual intercourse with her. Johnson used verbal and physical force on Crystal to accomplish the assault. He was on parole from his first conviction when he committed the sexual assault on Crystal. Each time Johnson was incarcerated, he was placed in the Missouri Sex Offenders Program ("MOSOP"). MOSOP is a 9 to 12 month psycho-educational program involving cognitive behavioral therapy to help offenders reduce their risk of reoffending. Johnson did not successfully complete MOSOP on either occasion.

There was evidence that Johnson had sexual contact with other underage girls besides April and Crystal. Hoeflein was called as a fact witness to testify about information he obtained from Johnson during an interview. Johnson admitted having sex with a young neighbor named Joanna, who was between 16-18 years old at the time. She became pregnant as a result of this sexual contact. April's older sister, Paula, was called as a witness and testified that she was sexually abused by Johnson when she was 11 years old. This sexual abuse by Johnson included the following acts by him: (1) forcibly removing Paula's clothes and fondling her vaginal area; (2) performing oral sex on her against her will; (3) forcing her to perform oral sex on him; and (4) placing his fingers inside her vagina. On several occasions, this sexual abuse by Johnson was accompanied by physical violence toward Paula or threats to kill her. Johnson's sexual abuse of April began after Paula moved to Missouri to live with her grandmother.

The State presented expert testimony from two witnesses: a psychologist, Dr. Steven Mandracchia; and a psychiatrist, Dr. Roy Lacoursiere. Dr. Mandracchia testified that he was concerned about a statement by Johnson that he was "missing teenage girls the most" because this appeared to be an admitted preference for an inappropriate sexual object. Assuming that this was a true statement and that Johnson did have sexual contact with Paula, Dr. Mandracchia would diagnose Johnson as having paraphilia NOS.² Dr. Lacoursiere testified that Johnson suffered from two mental abnormalities: paraphilia NOS and personality disorder NOS with antisocial traits. Each of these mental abnormalities predisposes Johnson to commit sexually violent offenses in a degree that causes him serious difficulty in controlling his behavior. These mental abnormalities make Johnson more likely than not to engage in predatory acts of sexually violent behavior if not confined to a secure facility.

After hearing the evidence, the trial judge found beyond a reasonable doubt that Johnson was a SVP. The court ordered Johnson committed to the custody of the Department of Mental Health for care, control and treatment until such time as his mental abnormality has so changed that he is safe to be at large. Johnson appeals from this judgment.

In this court-tried case, our review is governed by Rule 84.13(d).³ We must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In re Care and Treatment of Lieurance, 130 S.W.3d 693, 696 (Mo.App.2004).⁴ A judgment is presumed correct, and the appellant has the burden of proving it erroneous. Wingate v. Griffin, 610 S.W.2d 417, 419 (Mo.App. 1980). "We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences." Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). Credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness. Keller v. Friendly Ford, Inc., 782 S.W.2d 170, 173 (Mo.App.1990). We defer to the trial judge's superior opportunity to assess the witnesses' credibility. Harris v. Lynch, 940 S.W.2d 42, 45 (Mo.App.1997). We independently review the trial court's conclusions of law. See Lieurance, 130 S.W.3d at 696 (when the issues on appeal are legal in nature, we do not defer to the trial court's judgment).

Johnson asserts five points of trial court error in this appeal. He contends the trial court erred by: (1) basing its judgment on two mental abnormalities that were not pled in the State's petition; (2) denying Johnson's motion for summary judgment because there were no factual issues in dispute on remand; (3) denying Johnson's motion for summary judgment based on a constitutional equal protection challenge to the SVPCCA as applied to persons in custody when the commitment process is commenced; (4) overruling Johnson's motion to dismiss the case at the probable cause hearing because of insufficiency of the evidence; and (5) overruling Johnson's motion to prohibit the State from obtaining a second mental evaluation on remand. For ease of analysis and discussion, we shall address Johnson's points inversely. Additional facts are provided below when relevant to our discussion of the issues raised in Johnson's appeal.

Point V

Shortly after the case was remanded for a new trial, Johnson's counsel filed a motion to prohibit the State from seeking a second mental examination of Johnson. The evident purpose of this motion was to prevent the State from obtaining another expert witness to replace Hoeflein, who was not qualified to give the expert testimony necessary to make a submissible case. See Johnson, 58 S.W.3d at 499-500. The motion was overruled, and Dr. Lacoursiere was permitted to examine Johnson. In Johnson's fifth point, he contends this ruling was error because § 632.489.4 limits the State to a single mental examination of Johnson. We disagree. Subsection 4 of § 632.489 states, in pertinent part, as follows:

If the probable cause determination is made, the court shall direct that the person be transferred to an appropriate secure facility, including, but not limited to, a county jail, for an evaluation as to whether the person is a sexually violent predator.... The court shall direct the director of the department of mental health to have the person examined by a psychiatrist or psychologist as defined in section 632.005 who was not a member of the multidisciplinary team that previously reviewed the person's records. In addition, such person may be examined by a consenting psychiatrist or psychologist of the person's choice at the person's own expense. Any examination shall be conducted in the facility in which the person is confined. Any examinations ordered shall be made at such time and under such conditions as the court deems proper; except that, if the order directs the director of the department of mental health to have the person examined, the director shall determine the time, place and...