In re Van Orden
| Decision Date | 16 December 2008 |
| Docket Number | No. SC 89224.,No. SC 89408.,SC 89224.,SC 89408. |
| Citation | 271 S.W.3d 579 |
| Parties | In the Matter of the Care and Treatment of John R. VAN ORDEN. In the Matter of the Care and Treatment of Richard Wheeler, a/k/a Richard D. Wheeler, a/k/a Richard Dale Wheeler. |
| Court | Missouri Supreme Court |
Emmett D. Queener, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Alana M. Barragan-Scott, for Respondent.
Richard Wheeler and John Van Orden previously were convicted of sexually violent offenses. Because of their previous convictions, the state filed a petition for civil commitment of Van Orden and Wheeler as sexually violent predators pursuant to section 632.480 et seq.1 The court, in the case of Wheeler, and the jury, in the case of Van Orden, found that they met the definition of a "sexually violent predator" by clear and convincing evidence pursuant to section 632.495, and judgment was entered ordering their commitment.
Van Orden and Wheeler appeal their respective judgments on several grounds. They both argue that section 632.4952 is unconstitutional because due process requires that the state prove that a person meets the definition of a "sexually violent predator" beyond a reasonable doubt. They also both argue, although for different reasons, that the state failed to strictly comply with the terms of section 632.483.13 in the civil commitment proceedings. Van Orden argues separately that the trial court erred in failing to define "clear and convincing evidence" in the jury instructions as well as in admitting testimony about the results of the Static-99 actuarial instrument.
Because Wheeler and Van Orden challenge the validity of section 632.495, this Court has exclusive jurisdiction pursuant to article V, section 3, of the Missouri Constitution.
The provision requiring the burden of proof of clear and convincing evidence in section 632.495 is constitutional, and the phrase "clear and convincing evidence" is not required to be defined in the jury instructions. Van Orden and Wheeler fail to show that the state did not comply with section 632.483.1 or that the trial court abused its discretion in admitting the testimony on the Static-99. The judgments are affirmed.
Richard Wheeler was born in 1947. Wheeler has a history of sexually violent behavior, usually involving children. In 1967, Wheeler was charged with sodomy for allegedly molesting his nine-year-old male cousin and was admitted to Fulton State Hospital. Four years later, in 1971, he was charged with molesting a minor child, a four-year-old female who lived in his neighborhood, and was sentenced to one year in jail. In 1981, Wheeler was convicted of first-degree sexual abuse of an adult woman and was sentenced to two years in prison with five years probation. Wheeler's wife subsequently filed for dissolution of marriage, asserting as a basis that Wheeler sexually abused their son.
In 1996, Wheeler pleaded guilty to first-degree sexual misconduct involving an eleven-year-old boy and received two years probation. A year later, in April 1997, Wheeler was convicted of first-degree statutory sodomy involving a four-year-old boy and was sentenced to ten years. During this period of incarceration, Wheeler continually refused sex offender treatment and continued to engage in sexually offending behaviors. Prior to his release, the psychologist for the department of corrections conducted an end of confinement review to determine if Wheeler met the definition of a "sexually violent predator." During the review process, the psychologist requested and received information from the attorney general. After determining that Wheeler may meet the criteria, she sent notice to the attorney general, and he filed a petition for commitment.
At the probable cause hearing, Wheeler filed a motion to dismiss based on the state's failure to strictly comply with the statutory procedure in section 632.483.1 because the psychologist contacted the attorney general prior to completing the end of confinement review. The court overruled the motion and ordered a psychiatric evaluation. Prior to trial, Wheeler filed a motion to declare the 2006 amendment to section 632.495 unconstitutional because it reduced the burden of proof from beyond a reasonable doubt to clear and convincing evidence. The court overruled the motion and a bench trial was held. The court found that Wheeler met the definition of a "sexually violent predator" and ordered commitment.
John Van Orden was born in 1962. In 1987, Van Orden pleaded guilty to sexual misconduct for his sexual contact with his sixteen-year-old niece and received two years unsupervised probation. In 1992, Van Orden was convicted of first-degree sexual abuse for the abuse of his five-year-old daughter. He was sentenced to four years, and his parental rights were terminated based upon this abuse and the abuse of his four-year-old son. While incarcerated, Van Orden attended a sex offender treatment program but terminated treatment in the second phase.
In 1998, he was convicted of first-degree child molestation for abuse of a four-year-old female and was sentenced to seven years. Van Orden completed the first two phases of sex offender treatment and was released on parole in 2004, at which time he stopped attending treatment. Van Orden violated the conditions of his parole and was returned to prison. He was released on parole a second time and was arrested on September 6, 2005 for violating its conditions, including consuming alcohol and receiving unsuccessful termination from sex offender treatment. Van Orden was transported to the Fulton Reception and Diagnostic Center.
On October 5, 2005, the department of corrections sent written notice to the attorney general that Van Orden may meet the definition of a "sexually violent predator." The state filed its petition for Van Orden's commitment on October 14, 2005. The board of probation and parole issued an order of revocation on October 20, 2005.
The court found probable cause and ordered a formal hearing. Van Orden filed a motion to dismiss the petition, arguing that the state failed to strictly comply with section 632.483.1 because the petition was filed prior to the revocation of parole. The trial court overruled the motion and ordered a psychiatric evaluation. Van Orden, similarly to Wheeler, filed a motion to declare the 2006 amendment to section 632.495 unconstitutional because it reduced the burden of proof from beyond a reasonable doubt to clear and convincing evidence. The trial court overruled the motion.
A jury trial was held in May 2007. The state's evidence included the testimony of Dr. Mandracchia, a psychologist, who diagnosed Van Orden with pedophilia and anti-social personality disorder and found that he was more likely than not to reoffend if not committed. He based this assessment on the results of the Static-99 actuarial test, which measures a person's likelihood of reoffending, as well as his own assessment of Van Orden's risk factors, including anti-social personality disorder, alcoholism, offense pattern of sexually deviant behavior, and the fact that he offended while under supervision.
At the instruction conference, Van Orden objected to the burden of proof on the basis that "clear and convincing evidence" should be defined. Specifically, Van Orden argued that the instruction should include:
Clear and convincing evidence means that you are clearly convinced of the affirmative of the proposition to be proved. This does not mean that there may not be contrary evidence ... For evidence to be clear and convincing it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and your mind is left with unabiding conviction that the evidence is true.
The trial court overruled the objection and submitted the instructions to the jury without the additional language. The jury found that Van Orden was a sexually violent predator. Judgment of commitment was entered.
Section 632.480 et seq. provides the procedure for civil commitment of sexually violent predators. To qualify for commitment as a sexually violent predator, the person must have either pleaded guilty or been found guilty by reason of a mental disease or defect of a sexually violent offense or have been committed as a criminal psychopath pursuant to section 632.475. Section 632.480(5). The person also must be found to suffer from "a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility." Id.
If the person is currently in the custody of the department of mental health or the department of corrections, the proceedings for commitment begin prior to the person's release. Section 632.483. The psychologist completes an end of confinement review and sends written notice to the attorney general and the multidisciplinary team if the person may meet the definition of a "sexually violent predator." Id. If the multidisciplinary team and the prosecutorial review committee confirm that finding, the attorney general files a petition for commitment. Section 632.486.
The court will determine if probable cause exists and hold a formal hearing. Section 632.489. If the probable cause determination is made, the court orders a psychiatric evaluation and holds a trial sixty days after the evaluation. Section 632.489.4. The person may request a jury trial and has a right to counsel at all stages of the proceeding. Section 632.492.
Section 632.495(1) provides that the court or jury "shall determine whether, by clear and convincing evidence, the person is a sexually violent predator." Prior to the 2006 amendment, the court or jury was required to find that the person is a sexually violent predator beyond a reasonable doubt.
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