In re Sebastian

• Decision Date: 08 August 2018
• Docket Number: No. SD 35060,SD 35060
• Citation: 556 S.W.3d 633
• Parties: In the MATTER OF the CARE AND TREATMENT OF Aaron SEBASTIAN, a/k/a Aaron W. Sebastian, a/k/a Aaron Wade Sebastian, Respondent-Appellant.
• Court: Missouri Court of Appeals

556 S.W.3d 633

In the MATTER OF the CARE AND TREATMENT OF Aaron SEBASTIAN, a/k/a Aaron W. Sebastian, a/k/a Aaron Wade Sebastian, Respondent-Appellant.

No. SD 35060

Missouri Court of Appeals, Southern District, Division Two.

Filed: August 8, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied August 29, 2018

Application for Transfer Denied October 30, 2018

Attorney for Appellant—Chelsea R. Mitchell of Columbia, MO.

Attorneys for Respondent—Joshua D. Hawley (Attorney General), Daniel N. McPherson of Jefferson City, MO.

JEFFREY W. BATES, J.

Aaron Sebastian (Sebastian) appeals from a judgment committing him to the custody of the Department of Mental Health (DMH) after a jury found that he was a sexually violent predator (SVP). See § 632.480(5).¹ Sebastian presents 11 points for decision. For ease of analysis, we will consider some of Sebastian’s points in combination due to the intertwined nature of the issues presented. The points can be grouped together into the following three general categories: the evidence was insufficient to prove he was an SVP (Points 1 and 2); the trial court erred in the admission of evidence (Points 3 and 4); and various parts of the SVP law are unconstitutional (Points 5 through 11). The facts relevant to the various points will be included as a part of our discussion and disposition of the issues.

Sufficiency of the Evidence

Points 1 and 2 challenge the sufficiency of the evidence.² In relevant part, § 632.495.1 states that "[t]he court or jury shall determine whether, by clear and convincing evidence, the person is a sexually violent predator. If such determination that the person is a sexually violent predator is made by a jury, such determination shall be by unanimous verdict of such jury." Id . Because this case was tried to a jury, this Court "views the evidence in a light most favorable to the jury verdict, disregarding all contrary evidence and inferences, and determines whether the evidence was sufficient for twelve reasonable jurors to have believed beyond a reasonable doubt that [Sebastian] is an SVP." Murrell v. State , 215 S.W.3d 96, 106 (Mo. banc 2007) ; see also Matter of Mitchell , 544 S.W.3d 250, 252 (Mo. App. S.D. 2017) (in reviewing a jury’s verdict in an SVP case, an appellate court determines whether there was sufficient evidence admitted from which a reasonable juror could have found each necessary element by clear and convincing evidence); In re Morgan , 398 S.W.3d 483, 485 (Mo. App. S.D. 2013) (same holding).

To commit Sebastian to DMH’s custody as an SVP, the State had to prove that Sebastian: (1) committed a sexually violent offense; (2) suffers from a mental abnormality; and (3) this mental abnormality "makes [him] more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility[.]" § 632.480(5); Kirk v. State , 520 S.W.3d 443, 448-49 (Mo. banc 2017). There is no dispute that the State met the first element. Sebastian’s underlying conviction was for attempted statutory sodomy in the first degree, which is defined by statute to be a "sexually violent offense[.]" § 632.480(4); § 566.062. With respect to the remaining elements, our Supreme Court has stated that the "language of section 632.480 is written in the present tense and necessarily requires the jury to find an individual presently poses a danger to society if released." Murrell , 215 S.W.3d at 104 (emphasis in original).

This Court will not reverse for insufficiency of the evidence unless there is a complete absence of probative facts supporting the judgment. Morgan , 398 S.W.3d at 485. In determining sufficiency, we do not reweigh the evidence. In re A.B. , 334 S.W.3d 746, 752 (Mo. App. 2011). "Matters of credibility and weight of testimony are for the jury to determine." Id . For that reason, we view the record in the light most favorable to the judgment, accepting as true all evidence and reasonable inferences favorable to the judgment and disregarding all contrary evidence and inferences. Id . ; Morgan , 398 S.W.3d at 485. The following summary of evidence has been prepared in accordance with these principles.

When Sebastian was 14 or 15, he sexually abused his 9-year-old sister and two 8-year-old girls on different occasions. He performed oral sex on all three victims. He was caught and sent to a juvenile sex offender treatment program. He was released at age 16. When Sebastian was 17, he sexually abused a fourth victim, a 7-year-old girl, "by pulling down her pants and penetrating her vagina with [his] tongue." When Sebastian was almost 19, he sexually abused a previous victim again, this time when the victim was 11 years old. Sebastian went into her room while she was sleeping, unbuttoned her pants, and put his hand down her waistband. She woke up, slapped his hand away, told him to stop and ran out of the room. Sebastian followed her and asked her not to tell anyone, but she called for her mother anyway.

Sebastian was charged for this offense, which occurred in 2011, and pled guilty to first-degree attempted statutory sodomy (hereinafter referred to as the index offense). He was sentenced for this offense and sent to prison, where he participated in the Missouri Sex Offender Program (MOSOP). Prior to his release from prison, the State filed a petition to commit Sebastian to the DMH as an SVP. The matter was tried to a jury in April 2016.

Two experts called by the State, Dr. Nena Kircher (Dr. Kircher) and Dr. Lisa Witcher (Dr. Witcher), testified at trial that Sebastian met the definition of an SVP. Both experts diagnosed Sebastian with pedophilia, a mental abnormality that predisposed Sebastian to commit a predatory, sexually violent offense if not confined in a secure facility. Sebastian presented testimony from his expert, Dr. John Fabian (Dr. Fabian), who provided contrary testimony. Viewing the evidence favorable to the verdict, and ignoring contrary evidence and inferences as we must, the expert testimony is summarized below.

Testimony of Dr. Kircher

Dr. Kircher, a licensed clinical psychologist, performed an SVP evaluation of Sebastian in December 2014. The doctor reviewed Sebastian’s probation and parole records, as well as treatment records from Sebastian’s participation in MOSOP. The records she reviewed were of a type reasonably relied on by members of her profession. Dr. Kircher also interviewed Sebastian.

Dr. Kircher used the diagnostic criteria in the DSM-5 to diagnose Sebastian with pedophilic disorder, sexually attracted to females, non-exclusive type.³ She testified to a reasonable degree of psychological certainty that Sebastian’s pedophilic disorder rose to the level of a mental abnormality.

Pedophilic disorder involves an interest in prepubescent children, generally 13 years or younger. To diagnose an individual with pedophilia, the individual must be 16 or older. Dr. Kircher noted that Sebastian had undergone juvenile sex offender treatment after being detected for an offense. Sebastian then committed: (1) a subsequent sex offense when he was 17 years old against a 7-year-old child; and (2) the qualifying sexually violent offense when he was 18. Dr. Kircher interviewed Sebastian while he was going through MOSOP treatment. He said that he was having an intrusive fantasy roughly every other week regarding a female child under the age of 12. According to Dr. Kircher, Sebastian’s history demonstrated that he had either behaviors or fantasies involving prepubescent children for a period of at least five years. This met the diagnostic criteria of having recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children. Dr. Kircher also pointed out that, with respect to pedophilic behaviors, an offense after 2011 would not have been possible because Sebastian did not have access to children in prison. Dr. Kircher testified that "[p]edophilia is something that doesn't go away. So if someone is attracted to children, that’s just going to be there. The ideal of treatment is to give individuals tools to be able to deal with that attraction."

Dr. Kircher also described information obtained from her review of Sebastian’s MOSOP records. Sebastian told his therapist that he became very preoccupied and driven to get sexual gratification when he was aroused. Sebastian reported that he became aroused during treatment when listening to another patient’s discussion of his own offense against a teenage girl. Sebastian admitted in written disclosures that he had performed oral sex on his sister and two other girls multiple times as a juvenile, and that he had performed oral sex on a 7-year-old girl when he was 17. Sebastian told Dr. Kircher that he had a fantasy that the sister whom he had molested had grown up and had a daughter, and that he had molested that imaginary girl.

Dr. Kircher performed a risk assessment on Sebastian using the Static-99 to look at historical factors and the Stable-2007 to look at dynamic factors. She testified that both devices are widely used and are reasonably relied on by experts in the field.

Dr. Kircher gave Sebastian a score of four on the Static-99. The developers of the instrument had come up with several options for explaining what the scores meant. On the nominal risk scale, Sebastian’s score placed him within the moderate high-risk category (at or above the 80^th percentile). Sebastian’s relative risk ratio was 1.94, meaning that he was roughly two times as likely as the typical sex offender to reoffend.

Because the Static-99 only looks at the likelihood of being charged with a sex offense in the next five to ten years, Dr. Kircher also looked at additional measures that would give Sebastian credit for the work he was doing in treatment. She used the Stable-2007 to measure factors which are more likely to change with treatment. Sebastian’s score of 17 placed him in the nominal risk range of "high need" for treatment.

Dr. Kircher then performed a...