In re Coffel

• Decision Date: 04 March 2003
• Docket Number: No. ED 79989.,ED 79989.
• Citation: 117 S.W.3d 116
• Parties: In The Matter of the Care and Treatment of Angela M. COFFEL, Respondent/Appellant.
• Court: Missouri Court of Appeals

117 S.W.3d 116

In The Matter of the Care and Treatment of Angela M. COFFEL, Respondent/Appellant.

No. ED 79989.

Missouri Court of Appeals, Eastern District, Division Five.

March 4, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 5, 2003.

Case Transferred to Supreme Court July 1, 2003.

Case Retransferred to Court of Appeals October 28, 2003.

Original Opinion Reinstated November 3, 2003.

Nancy L. Vincent, St. Louis, MO, for appellant.

Jeremiah W.(Jay) Nixon, Attorney General, Theodore A. Bruce, Jefferson City, MO, for respondent.

LAWRENCE G. CRAHAN, Judge.

Angela Coffel appeals the judgment entered following a bench trial declaring her to be a "sexually violent predator" pursuant to sections 632.480 through 632.513 RSMo 2000¹ and ordering her committed for an indefinite period to the custody of the Director of the Department of Mental Health for treatment.We find that the judgment is not supported by substantial evidence and is against the weight of the evidence.Accordingly, we reverse the judgment and remand with directions to discharge Ms. Coffel from custody.

In October 1994, when Angela² was eighteen years old, she was at a neighbor's house where she sometimes assisted in cleaning.Two boys, ages eleven and thirteen were also at the house, as was the neighbor, who was in another room.At some point, someone suggested that Angela and the boys play "Truth or Dare," a children's game in which each party must either tell the truth in response to a question or do something they are dared to do.In response to a dare, Angela briefly took the penis of each boy into her mouth.³When the boys later learned that Angela was HIV-positive, they reported the incident to their mother, who called the police.Angela admitted to the basic facts of the incident, although she told a Lincoln County family services worker that she thought the boys were older.

Angela was taken into custody and later pled guilty to two counts of sodomy arising from the incident.While on bond and awaiting sentencing, Angela engaged in consensual sexual relations with Timothy Ahrens, a fifteen year-old who claimed that Angela denied she was HIV-positive.He later confirmed that Angela had been diagnosed as HIV-positive.Although Angela was never charged as a result of this incident, the sentencing court was made aware of the details.

As part of her presentence investigation, Angela was evaluated by Marie Clark, an expert in the treatment of sexual offenders.She concluded that Angela's behavior was not predatory in the clinical sense of a person who preys on others or seeks out others to prey upon sexually or to abuse or harm them in some way.The probation officer recommended probation.Angela was sentenced to five years in the custody of the Department of Corrections.

In April of 2000, as Angela was approaching her scheduled release date of July 31, 2000, an End of Confinement Report was prepared by Rebecca Woody, M.A., an associate psychologist at the Farmington Correctional Center.Ms. Woody is not a licensed psychiatrist, psychologist or clinical social worker and thus is not qualified to diagnose or testify in Missouri.In re Johnson,58 S.W.3d 496, 498(Mo. banc 2001).This report reviewed Angela's conduct violations during her incarcerations, her participation in and failure to complete the Missouri Sexual Offender Program ("MOSOP"), her "criminal" history⁴ gleaned largely from admissions she made in an interview, psychiatric history (again, gleaned largely from the interview) and diagnostic summary.The report states that Angela appears to have the mental abnormalities of antisocial personality disorder, sexual sadism and alcohol abuse.Noting Angela's perceived lack of remorse or concern about the possibility of infecting others with HIV and her history of promiscuity, the report concludes that Angela is more likely than not to reoffend and that she may therefore meet the criteria of a sexually violent predator as defined in section 632.480(5).⁵

The report was forwarded to the Attorney General and the matter was referred to a multidisciplinary team designated pursuant to section 632.483.4.The multidisciplinary team concluded that Angela did not meet the definition of sexually violent predator.This assessment was made available to the Attorney General and to the prosecutors' review committee pursuant to section 632.483.5.The prosecutors' review committee concluded that Angela did meet the definition of a sexually violent predator.Based on that determination, on June 22, 2000, the Attorney General filed a petition requesting the court to find cause to believe Angela is a sexually violent predator, order Angela to be taken into the custody of the Sheriff of Lincoln County and placed in 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.⁶

The next day the trial court entered an order finding, based on the allegations of the petition, that there was probable cause to believe Angela is a sexually violent predator.The court ordered the Sheriff to assume custody, appointed the Public Defender to represent Angela and set a date for a probable cause hearing, which was later continued.On August 25, 2000, following a hearing, the trial court entered an order finding that there was probable cause to believe that Angela is a sexually violent predator and ordering Angela transferred to the Fulton State Hospital⁷ for an evaluation.The court further ordered that the evaluation be performed by a psychiatrist or psychologist who was not a member of the multidisciplinary team to determine: (1) whether Angela suffers from a mental abnormality; and (2) if so, whether the mental abnormality makes Angela more likely than not to engage in predatory acts of sexual violence ("predatory" acts defined as acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization.)A report of the examination was ordered to be filed with the court and forwarded to the parties within sixty days.

On October 30, 2000, Dr. Richard Scott, Ph.D, a licensed psychologist and forensic examiner for the Missouri Department of Mental Health,⁸ submitted a 12 page report of his evaluation of Angela.Dr. Scott noted Angela's family history included significant physical and emotional abuse.Angela and her younger brother had each been removed from the home at various times.At the time of Angela's offense, her brother was in the custody of the Department of Family Services because he had raped Angela.Angela witnessed extensive promiscuity on the part of both of her parents, both of whom have also had problems with substance abuse.Assessments of Angela's intellectual abilities have consistently placed her at the high end of the borderline range or at the low end of the low average range.She dropped out of school in the tenth grade.Her initial evaluation by the Department of Corrections placed her reading abilities at the first-grade level, which Angela claimed had improved significantly through her participation in educational activities while incarcerated.Dr. Scott considered Angela to be very knowledgeable about her HIV status and her medications and noted she understood basic issues of viral transmission and precautions.

Based on his interview and available records, Dr. Scott found that Angela has historically used sexual activity as a means of gaining the interest, affection and acceptance of others.Angela told Dr. Scott in the interview that she has been with five persons in consensual relationships, three males and two females.On other occasions, however, she has claimed to have performed oral sex on a far greater number of male partners.

Dr. Scott diagnosed Angela with the following disorders: disorder of written expression; reading disorder; alcohol abuse in a controlled environment; cannabis abuse in a controlled environment; borderline personality disorder; and antisocial personality disorder.He stated that neither of the substance abuse disorders qualify as a mental abnormality within the meaning of the statute because neither creates a predisposition to sexually violent behavior.He stated that borderline personality disorder is a severe personality disorder which is associated with sexual promiscuity but is not related to sexually violent behavior.Although antisocial personality disorder may qualify as a mental abnormality, he found nothing that suggested that Angela's antisocial behavior is related in any way to her sexual behavior, which he felt was better explained by borderline personality disorder.He specifically disputed the End of Confinement Report's speculation that Angela is a sexual sadist, noting that such conclusion was based on an incorrect assumption that she risked transmitting HIV with her saliva in committing her offense.Dr. Scott stated unequivocally that this is incorrect because saliva does not transmit HIV.

As for the likelihood that Angela would engage in sexually predatory acts in the future, Dr. Scott stated that the overall base rate for sexual recidivism among women who sexually offend is unknown.Research to date suggests that the rate is extremely low (less than 3 percent in one study and 0 percent in another).However, those studies have small samples.No large-scale studies of female sexual offenders have been reported to date.Accordingly, Dr. Scott opined that it could appropriately be said that the overall rate of re-offense by female sexual offenders is unknown, but likely to be extremely low.

Dr. Scott found that Angela does not have a paraphilia (a sexually related disorder in which a person achieves arousal from non-consenting or non-human partners).⁹Although Angela has not completed the MOSOP program, Dr. Scott noted that no accommodation was made for her severe learning problems in MOSOP.Dr. Scott found nothing in...