In re Care of Coffman, ED 80511.

• Decision Date: 05 November 2002
• Docket Number: No. ED 80511.,ED 80511.
• Citation: 92 S.W.3d 245
• Parties: In the Matter of the CARE and Treatment OF Larry L. COFFMAN. Larry L. Coffman, Respondent/Respondent, v. State of Missouri, Petitioner/Appellant.
• Court: Missouri Court of Appeals

92 S.W.3d 245

In the Matter of the CARE and Treatment OF Larry L. COFFMANLarry L. Coffman, Respondent/Respondent, v.State of Missouri, Petitioner/Appellant.

No. ED 80511.

Missouri Court of Appeals, Eastern District, Division Two.

November 5, 2002.

Nancy L. Vincent, Asst. Public Defender, Appellate/PCR Division, Eastern Dist., St. Louis, MO, for respondent.

Theodore A. Bruce, Assistant Attorney General, James R. Layton, Chief Deputy Attorney General, Jefferson City, MO, for appellant.

KATHIANNE KNAUP CRANE, Judge.

After a jury found respondent to be a sexually violent predator under Sections 632.480 through 632.513 RSMo (2000), the trial court ordered a new trial on the grounds that the verdict-directing instruction did not unambiguously inform the jury that the state was required to prove impairment of volition and the state did not adduce expert testimony on the issue.The state appeals.It argues that respondent's proffered verdict directors contained an improper standard and the verdict directors submitted to the jury contained the proper standard and were supported by the evidence.We agree that the grounds relied on by the trial court were erroneous.We have considered respondent's argument that the new trial order can be affirmed on the grounds that the subsequently decided case of Thomas v. State,74 S.W.3d 789(Mo. banc 2002) required a different definitional instruction, although that ground was not preserved.For the reasons set out herein, we conclude that we must consider Thomas and that Thomas requires a new trial with the definitional instruction set out therein.Accordingly, we affirm the order granting a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

On July 22, 1985, respondent pleaded guilty to three counts of sodomy, in violation of Section 566.060, arising from the repeated sexual abuse of his children.He was sentenced to three consecutive five-year terms of imprisonment.He was subsequently placed on parole.After multiple parole violations, his parole was revoked and he was returned to prison to finish serving his sentence.Respondent's anticipated release date was August 7, 2000.On July 27, 2000, the state filed a petition to commit respondent to the Missouri Department of Mental Health pursuant to Missouri's sexual predator law, Sections 632.480 et seq.RSMo (2000).

The case was tried before a jury in August, 2001.At trial, the victims testified to their repeated abuse.Dr. Richard Scott, a licensed psychologist, testified to his opinion that respondent had two mental disorders which qualified as mental abnormalities, one of which was pedophilia.He defined pedophilia as "a mental disorder, in which a person has a recurrent pattern of interest in, arousal by, or behavior with prepubescent children that involves sexual contact or other sexually-related activities."He testified that pedophilia is a non-transient, continuing disorder which is not curable or outgrown.While pedophilia is not curable, treatment for pedophilia involves developing a relapse prevention plan, which can help pedophiles learn to control their behavior.To be successful, pedophiles must learn what motivates their actions and develop a relapse prevention plan in order to control their behavior.Respondent was twice terminated from the treatment phase of the Missouri Sex Offender Program.Dr. Scott testified that, although it was possible for respondent to learn enough about his behavior to control it, he found it very unlikely, because respondent had failed the opportunities he had been given for treatment.He testified that respondent also suffered from a personality disorder with antisocial and narcissistic features, which, combined with the pedophilia, made it more likely than not that he would commit acts of sexual violence if not kept in a secure facility.His repeated abuse of multiple victims of different ages and sexes over a twenty-year period, terminations from treatment, and his denial of any offenses increased the likelihood that he would reoffend.

At the jury instruction conference, the trial court refused the verdict directors submitted by the state and respondent.Instead, it submitted the following verdict director to the jury:

INSTRUCTIONNO. 6

If you find and believe from the evidence beyond a reasonable doubt:

First, that the respondent pleaded guilty to sodomy in the Circuit Court of St. Louis City, State of Missouri, on July 22, 1985, and

Second, that the offense for which the respondent was convicted was a sexually violent offense, and

Third, that the respondent suffers from a mental abnormality, and

Fourth, that this mental abnormality makes the respondent more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility,

then you will find that the respondent is a sexually violent predator.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the respondent is not a sexually violent predator.

As used in this instruction, "sexually violent offense" includes the offense of sodomy.

As used in this instruction, "mental abnormality" means a congenital or acquired condition affecting the volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others

As used in this instruction, "predatory" means acts directed toward strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization.

The state's tendered verdict director, Instruction H, was similar to that given by the trial court¹ except that the definition of "mental abnormality" tracked the statutory definition found in Section 632.480(2) RSMo (2000) as follows:

As used in this instruction, "mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.

(emphasis added).The court deleted the words "emotional or" in its instruction.

Respondent's tendered verdict director, Instruction G, contained a fifth element requiring the jury to find "that this mental abnormality impairs respondent's volitional capacity to such a degree that he is unable to control his sexually violent behavior."Respondent submitted the same definition of "mental abnormality" as did the state.The court indicated that it refused Instruction G because the court had eliminated the words "emotional or" in its definition of "mental abnormality," which it did based on its reading of Kansas v. Hendricks,521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501(1997).

The jury returned a verdict finding respondent to be a sexually violent predator.Respondent filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.The trial court granted the motion for a new trial on the grounds that its refusal to submit respondent's tendered Instruction G was error because the instruction given did not unambiguously inform the jury that the state was required to prove an impairment of volition.It also concluded that the absence of expert testimony that respondent's volition was impaired undermined its confidence that the jury in fact found this element.

DISCUSSION

In its sole point on appeal, the state contends that the trial court erred in granting a new trial because the verdict director submitted to the jury satisfied due process and the instructions proffered by respondent improperly set forth the law of the case and added elements for the state to prove not required by the applicable statutes.

Standard of Review

When we review a trial court's award of a new trial based on an erroneous instruction, we determine if the instruction is erroneous as a matter of law upon the record presented, not as a matter within the trial court's discretion.Egenreither v. Carter,23 S.W.3d 641, 645(Mo.App.2000).If the instruction was erroneous, then we consider whether it prejudiced the party challenging the instruction.Wallace v. May,822 S.W.2d 471, 472(Mo.App.1991).See alsoSloan v. Bankers Life & Cas. Co.,1 S.W.3d 555, 566(Mo.App.1999);Lashmet v. McQueary,954 S.W.2d 546, 549(Mo.App.1997).

In its opening brief, the state argued that the trial court's reason for granting the new trial, because the jury was not instructed on respondent's tendered fifth element, was expressly rejected in Kansas v. Crane,534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856(2002).It further argued that the evidence of respondent's mental abnormality and his difficulty controlling his behavior was overwhelming and uncontroverted.In his brief, respondent argued that the trial court's new trial order can be affirmed on the basis that Thomas, handed down after the state filed its brief, requires the instruction defining "mental abnormality" to include language different from that given by the trial court.The state replied that the trial court's definition of mental abnormality placed a higher burden on the state than required by Thomas or Crane, and therefore Thomas does not require affirmance of the new trial order.

We will first take up the state's original argument and then address respondent's arguments.

A.Failure to Include Fifth Element in Verdict Director

The trial court concluded that a new trial was required so that the jury could be given the instruction tendered by respondent that contained a fifth element, "that this mental abnormality impairs respondent's volitional capacity to such a degree that he is unable to control his sexually violent behavior."It read Hendricks to require that the statute be applied only to those who are unable to control their dangerousness.In Hendricks,the Supreme Court upheld the constitutionality of the Kansas civil commitment statute for...