In re Sohn

• Decision Date: 27 October 2015
• Docket Number: No. ED 102172,ED 102172
• Citation: 473 S.W.3d 225
• Parties: In the Matter of the Care and Treatment of Michael Sohn, Appellant.
• Court: Missouri Court of Appeals

473 S.W.3d 225

In the Matter of the Care and Treatment of Michael Sohn, Appellant.

No. ED 102172

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

FILED: October 27, 2015

Erika R. Eliason, 1000 W. Nifong, Bldg. 7, Suite 100, Columbia, MO 65203, for appellant.

Chris Koster, Mary H. Moore, P.O. Box 899, Jefferson City, MO 65102, for respondent.

KURT S. ODENWALD, Judge

Introduction

Appellant Michael Sohn ("Sohn") appeals from the judgment of the probate court, following a jury trial, committing Sohn to the Missouri Department of Mental Health as a sexually violent predator ("SVP"). Sohn, who is deaf, unsuccessfully sought to exclude from evidence at trial expert witness testimony from Dr. Griffith about her interview with Sohn and Sohn's Missouri Sex Offender Program ("MOSOP") records. On appeal, Sohn challenges the probate court's rulings on the grounds that the statements at issue in the interview and the MOSOP records were not sufficiently reliable to allow Dr. Griffith to offer expert opinion testimony as to whether Sohn was an SVP. Dr. Griffith's testimony at trial sufficiently established that her interview with Sohn and Sohn's MOSOP records represent the type of evidence reasonably relied on by experts in Dr. Griffith's field and are "otherwise reasonably reliable." Accordingly, the probate court did not abuse its discretion in denying Sohn's motions to exclude such evidence. We affirm the judgment of the probate court.

Factual and Procedural History

In July 2013, the State filed a petition seeking Sohn's commitment to the Department of Mental Health as an SVP. The State alleged Sohn suffered from a mental abnormality making him more likely than not to engage in predatory acts of sexual violence if released from confinement. Sohn was previously convicted of forcible sodomy and child molestation in the first degree in a case involving an eight-year-old boy. Both of those crimes are sexually violent offenses. Sohn did not successfully complete MOSOP treatment. Sohn was medically discharged from MOSOP, in part because he had difficulty comprehending sexual offender treatment.

Dr. Griffith, a licensed psychologist, evaluated Sohn to determine whether he was an SVP. Dr. Griffith based her evaluation of Sohn on her review of Sohn's MOSOP file, her interview of Sohn (in which Dr. Griffith was aided by two interpreters), an actuarial assessment, and consideration of any other risk factors related to Sohn's likelihood of re-offending.

Sohn filed several motions in limine to exclude evidence with the probate court. Two of these motions are the focus of this appeal. In his third motion in limine, Sohn sought to exclude Dr. Griffith from testifying at trial and further sought to exclude Dr. Griffith's report and its contents from being used at trial. In support of his motion, Sohn argued that Dr. Griffith's evaluation of him was not conducted in a reasonably reliable manner as required by Section 490.065.3.¹ Specifically, Sohn maintained that the interpreters assisting in the interview had difficulty communicating with Sohn, rendering the interview unreliable. In his sixth motion in limine, Sohn sought to exclude his MOSOP records from evidence because the MOSOP records at issue were not reasonably reliable as required by Section 490.065 and therefore could not be relied upon by expert witnesses. Specifically, Sohn stated that he had substantial communication and comprehension problems while participating in MOSOP, rendering the MOSOP records unreliable. The probate court denied both motions in limine.

A jury trial was held in which Dr. Griffith testified as an expert witness as to her findings.² Dr. Griffith testified that she had performed between 400 and 500 SVP evaluations, and that she had received approximately 40 hours of intensive training in working with the deaf. Dr. Griffith stated that in conducting her evaluation and rendering her expert opinion, she relied upon her interview with Sohn and her review of Sohn's records, including notes and information from Sohn's participation in MOSOP.

Dr. Griffith interviewed Sohn for approximately four hours. Two American Sign Language interpreters were present during the interview. Dr. Griffith testified that, in order to make sure that Sohn understood the purpose of the interview and SVP evaluation, she and the interpreters spent approximately one hour explaining the process to Sohn. Both sign language interpreters were familiar with Sohn and had assisted him during his treatment. Dr. Griffith noted that Sohn tended to mix his pronouns, which sometimes made it difficult for the interpreters to convey his statements. Additionally, there were a few times when the interpreters disagreed about the meaning of Sohn's signs, and Sohn at one point provided a "confusing" narrative about one of his offenses. Dr. Griffith testified that the interpretation issues usually were related to a specific word and that Sohn's responses to her questions were relevant and corroborated the victims' accounts of the offenses. Dr. Griffith further testified that her communication with Sohn was adequate and that all of his responses were clarified.

Dr. Griffith also testified that she relied on notes and information from Sohn's participation in MOSOP in performing her evaluation and rendering an expert opinion. These notes included written statements made by Sohn and his victim disclosure form. Dr. Griffith noted that although the victim disclosure form was apparently written by Sohn, she was uncertain if Sohn wrote the statements with the assistance of an interpreter. Dr. Griffith testified that the information contained in the documents she reviewed and the contents of the interview were the types of evidence reasonably relied upon by experts in her field of expertise.

Dr. Griffith diagnosed Sohn with a mental abnormality, concluding that Sohn had pedophilia and was sexually attracted to both males and females, "nonexclusive" type. Dr. Griffith noted that Sohn had sexual fantasies about children, admitted to seeking out children in public restrooms in an attempt to see "beautiful boy penis," and admitted to "peeping" into the windows of a neighbor's home to watch children. Dr. Griffith testified that Sohn's pedophilia predisposed him to committing sexually violent offenses. Dr. Griffith stated that Sohn had serious difficulty controlling his behavior and was unable to prevent himself from acting out in a sexually violent manner, noting additionally that Sohn reported driving around looking for victims.

Dr. Griffith also assigned Sohn scores based on two actuarial assessments, the Static–99R, which considers historic risk factors, and the Stable–2007, which measures dynamic risk factors. Dr. Griffith testified that Sohn's composite score on the two assessments indicated that he had a moderate-high risk level to re-offend. Dr. Griffith noted that her assessment was also based on a consideration of additional risk factors, including Sohn's deviant sexual interest, offense supportive attitude, emotional congruence with children, poor problem solving, and lack of emotionally intimate relationships with adults. Ultimately, Dr. Griffith found that Sohn was more likely than not to re-offend if not confined to a secure facility, and concluded that he was an SVP.

The jury found Sohn to be an SVP and the probate court then issued its Judgment and Commitment Order finding Sohn to be an SVP and committing him to the custody of the Department of Mental Health. This appeal follows.

Points on Appeal

Sohn presents two points on appeal. First, Sohn contends the probate court abused its discretion when it denied his motion in limine to exclude Dr. Griffith's report and testimony and allowed Dr. Griffith to testify about Sohn's statements made during an interview. Sohn claims the interview statements cannot be reasonably relied upon by Dr. Griffith because the interview was conducted through interpreters who repeatedly had issues understanding Sohn and who expressed concern as to whether Sohn understood the questions being presented to him. Second, Sohn claims the probate court abused its discretion in denying his motion in limine to exclude MOSOP records and allowing Dr. Griffith to testify about Sohn's statements made during MOSOP. Sohn posits that the MOSOP records also could not reasonably be relied upon by Dr. Griffith in rendering an expert opinion because it is unclear whether the statements attributed to Sohn in the records were made with the assistance of interpreters or whether Sohn actually wrote one of the statements.

Standard of Review

A probate court's decision to allow evidence at trial is reviewed for abuse of discretion, as the determination of whether to admit evidence is within the sound discretion of the court. Elliott v. State, 215 S.W.3d 88, 92 (Mo. banc 2007). The probate court abuses its discretion only where its ruling is clearly against the logic of the circumstances and so arbitrary or unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. On appeal, this Court reviews for prejudice, not mere error. State v. Strong, 142 S.W.3d 702, 710 (Mo. banc 2004). The probate court's decision will be reversed only if the error was so prejudicial that it deprived Sohn of a fair trial. Id. Accordingly, even if an abuse of discretion is found, "we will not reverse unless the error had a material effect upon the merits of the action." In the Matter of the Care & Treatment of Wadleigh, 145 S.W.3d 434, 438 (Mo. App. W.D. 2004).

Discussion

Missouri's SVP statute is civil in nature. Murrell v. State, 215 S.W.3d 96, 110 (Mo. banc 2007). Admission of expert testimony in civil cases is governed by Section 490.065. Section 490.065 states, in relevant part:

The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the

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