In re Care and Treatment of Spencer, 24596.

• Decision Date: 29 April 2003
• Docket Number: No. 24596.,24596.
• Citation: 103 S.W.3d 407
• Parties: In the Matter of the CARE AND TREATMENT OF Troy L. SPENCER. Troy L. Spencer, Respondent-Appellant, v. State of Missouri, Petitioner-Respondent.
• Court: Missouri Court of Appeals

103 S.W.3d 407

In the Matter of the CARE AND TREATMENT OF Troy L. SPENCER Troy L. Spencer, Respondent-Appellant, v.State of Missouri, Petitioner-Respondent.

No. 24596.

Missouri Court of Appeals, Southern District, Division Two.

April 29, 2003.

Nancy L. Vincent and Dave Hemingway of St. Louis, MO., and Emmett D. Queener of Columbia, MO, for Appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., and James R. Layton, Assistant Attorney General, for Respondent.

JAMES K. PREWITT, Presiding Judge.

Following a bench trial, Troy Spencer("Appellant") was found to be 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 "care and treatment until such time as [Appellant's] mental abnormality has so changed that he is safe to be at large."

Appellant raises five points relied on, including that the trial court erred by entering judgment without first considering whether, as a result of a mental abnormality, Appellant had serious difficulty controlling his behavior.In his other points, Appellant contends that the trial court erred by failing to assure that his waiver of counsel was knowing and intelligent and in failing to comply with the written waiver requirement of § 600.051, RSMo 2000; by allowing the testimony of a doctor who conducted a second evaluation of Appellant because the sexually violent predator ("SVP")statute does not afford the State the opportunity for more than one evaluation of a detainee; by entering judgment finding Appellant to be a SVP because the State had introduced evidence about narcissistic personality disorder ("NPD"), which was irrelevant to claims alleged in the petition; and by failing to dismiss the case because the prosecuting attorney for Scott County did not participate in the prosecutor's review committee that voted to commence SVP proceedings against Appellant.

In 1985, Appellant pled guilty to sodomy and received a fifteen-year sentence.The conduct that provided the basis for the charge was Appellant sexually abusing his daughter for at least four years, beginning when she was just six years old, by forcing her to perform oral sex on him.During the pre-sentence investigation for that crime, Appellant also admitted to sexually molesting his sister when she was nine and he was sixteen.Records indicated that Appellant had sexual intercourse with a sixteen-year-old when he was twenty-two, during which he psychologically pushed the "virginal" female into intercourse, and that he also had intercourse with a fourteen-year-old while he was in the military.

Between 1994 and 2000, Appellant was placed into the Missouri Sex Offender Program ("MoSOP") four times, and each time was subsequently terminated from the program or refused to participate.In December of 2000, an end-of-confinement report was prepared by Craig McIntosh, a licensed clinical social worker and therapist with MoSOP.Within it, McIntosh noted that Appellant refused to participate in a clinical interview regarding his status as a potential SVP.Based on the information contained in or reviewed for the report, McIntosh diagnosed Appellant with pedophilia and NPD and concluded that Appellant may meet the criteria of a SVP under § 632.480(5), RSMo 2000.

On January 10, 2001, Appellant's records were reviewed by a multidisciplinary team pursuant to § 632.483.4, RSMo 2000, and the majority found that Appellant did not meet the definition of a sexually violent predator.On January 16, 2001, pursuant to § 632.483.5, RSMo 2000, the prosecutor's review committee reviewed the matter and concluded, by a majority vote, that Appellant met the definition of a sexually violent predator.The Scott Countyprosecutor did not participate in the prosecutor's review committee meeting, but was represented by a designee.

On January 19, 2001, the Attorney General's Office filed a petition requesting that the trial court find cause to believe that Appellant is a SVP, order him to be taken into custody by the sheriff of Scott County and transferred to a secure facility, set a hearing date for a finding of probable cause, and, if probable cause was found, to hold a trial on the merits.The probable cause hearing was held, and on March, 8 2001, the trial court found probable cause that Appellant is a SVP and ordered that he be evaluated pursuant to § 632.489.4, RSMo 2000, to determine whether he suffers from a mental abnormality and, if so, whether that mental abnormality makes him more likely than not to engage in predatory acts of sexual violence.The trial court's order included the definition from § 632.480(3), RSMo 2000, which defines predatory acts as "acts directed toward strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization."

The evaluation ordered by the trial court pursuant to § 632.489.4, RSMo 2000, was conducted by Dr. Bruce Harry, a psychiatrist.However, Dr. Harry was limited to a review of the associated records because Appellant refused to consent to be interviewed or participate in any way in the evaluation.In his report filed May 17, 2001, Dr. Harry concluded that Appellant suffered from two mental abnormalities, pedophilia and NPD, but that, given the definition of predatory acts, Appellant did not satisfy the specific requirement that he is more likely than not to engage in predatory acts of sexual violence.

The State filed a motion to permit a second evaluation and asked the trial court to order Appellant to cooperate in the second evaluation.The court granted the State's motion for the second evaluation to be conducted by Dr. Harry Hoberman, a clinical and forensic psychologist, but indicated that it could not compel Appellant to cooperate with the evaluation.Dr. Hoberman did conduct an evaluation, but also was limited to a review of the essential documents, as Appellant refused to be interviewed.Dr. Hoberman concluded that Appellant suffered from the mental abnormalities of pedophilia and NPD, and that those conditions made it more likely than not that Appellant would re-offend.It was Dr. Hoberman's opinion that Appellant was a SVP.

During hearings held on various pretrial motions, Appellant expressed that he no longer wanted to be represented by the public defender assigned to his case, and that further, he no longer wanted any legal representation as he felt that neither the public defender"nor any other attorney, would be able to argue [the motions and his case] as well or as clearly for the [c]ourt's benefit as [Appellant] could."When Appellant was questioned as to whether he understood that he had the right to counsel and that another attorney would be appointed to represent him at no cost, he expressed that he understood his rights but requested that the trial court allow the current public defender to withdraw and Appellant to represent himself.After hearing argument from all sides, including from the public defender that his office would not allow him to serve as second chair in the proceedings to provide assistance to Appellant, the trial court sustained the public defender's motion to withdraw and Appellant's request to represent himself.

In addition to requesting that he be allowed to represent himself, Appellant also asked that the hearing be converted into a bench trial.Appellant requested that the State"agree to convert this hearing into a bench trial and make [its] arguments and present them and [Appellant] will make [his] statement, and we will let [the judge] make his decision today and conclude this matter."The trial judge questioned Appellant as to whether he indeed wanted to waive his right to a jury trial, to which Appellant responded, "What I had agreed to, sir, is for conclusion today."However, Appellant then proceeded to ask the trial court to set a tentative date for the bench trial.The State, who had originally requested the jury trial, asked for some time to consider its options, indicating that if Appellant wished to waive jury trial, the State might be amenable to that.The trial court left the matter open to provide the State time to respond.¹

A bench trial was held on September 20-21, 2001, and among the State's witnesses were Dr. Harry, Dr. Hoberman, and McIntosh.Viewed in the light most favorable to the judgment, the State's evidence was as follows.Dr. Harry, who had also assessed Appellant in 1988, reiterated the diagnoses of pedophilia and NPD, which were from his evaluation of Appellant conducted for the trial.Dr. Harry considered both the pedophilia and NPD to be mental abnormalities.Dr. Harry testified that, based on Appellant's interactions with his daughter and sister, he met the criteria of pedophilia, which include a sexual attraction over a period of at least six months involving sexually-arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child typically age thirteen or younger.Dr. Harry indicated that the attraction associated with pedophilia could be to adults as well.According to Dr. Harry, the pedophile is generally at least sixteen years old and five years older than his victims.

As for the NPD, which Dr. Harry defined as "a pervasive sense of what's called grandiosity or need for admiration and a lack of empathy,"Appellant exhibited at least five of the nine different kinds of grandiosity or needs for admiration.These criteria include a grandiose sense of self-importance; preoccupation with fantasies of unlimited success or power; belief that one is unique and only capable of understanding by those of special or high status; requirement of excessive admiration; sense of entitlement; interpersonal "exploitativeness" or taking advantage of others to one's own ends; lack of empathy or an unwillingness to recognize or identify with the feelings and needs of others; envy of others or the belief that others are envious of him; and show...