In the Matter of The Care v. State , No. SC 91186.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: ZEL M. FISCHER, Judge.
• Citation: 332 S.W.3d 115
• Parties: In the Matter of the Care and Treatment of James BRASCH, Appellant,v.STATE of Missouri, Respondent.
• Decision Date: 08 February 2011
• Docket Number: No. SC 91186.

332 S.W.3d 115

In the Matter of the Care and Treatment of James BRASCH, Appellant,
v.
STATE of Missouri, Respondent.

No. SC 91186.

Supreme Court of Missouri, En Banc.

Feb. 8, 2011.Rehearing Denied March 29, 2011.

[332 S.W.3d 116]

Emmett D. Queener, Public Defender's Office, Columbia, for Brasch.Jayne T. Woods, Shaun T. Mackelprang, Attorney General's Office, Jefferson City, for the State.ZEL M. FISCHER, Judge.

James Brasch appeals a judgment based on a jury verdict finding him to be a sexually violent predator (SVP) pursuant to § 632.495, RSMo Supp.2009. ¹ He claims that this statute as applied to him violates his due process rights under the Sixth and Fourteenth Amendments of the United States Constitution and article I, section 10, of the Missouri Constitution. He also claims that the court abused its discretion in overruling its objection to the State telling the jury during closing argument that it was their responsibility to prevent another victim from being added to Brasch's list and denying his request for a mistrial. Because Brasch challenges the constitutionality of § 632.495 as applied to him, jurisdiction of this direct appeal is appropriate in this Court. MO. CONST. art. V, § 3.

Facts

Brasch has been diagnosed with paranoid schizophrenia, antisocial personality disorder, major depressive disorder, and substance dependence for alcohol, marijuana, cocaine, and amphetamine. Brasch experiences auditory hallucinations and paranoid delusions as a result of his schizophrenia. One such delusion is that Brasch believes the CIA has been tracking him through a microchip implanted in him. He also believes the CIA has put “lenses” in his eyes capable of tracking the activities of others around him. Further, he believes the officials of St. Charles County and the CIA can physically control his body.

[332 S.W.3d 117]

The evidence presented detailed a significant juvenile and criminal history. Prior to 1993, Brasch was accused twice of sexual abuse, but both times charges against him were dropped. He spent time in and out of both the division of youth services and jail for stealing, forgery and burglary offenses until 1993.

In 1993, Brasch entered the house of a former girlfriend and went into the bedroom of her 10–year–old daughter. He removed the daughter's underpants and began caressing her buttocks. Upon realizing what was going on, the daughter ran away from him and locked herself in the bathroom. He was arrested and pleaded guilty to third degree assault; the burglary and sexual abuse charges were dropped. He was sentenced to and served 15 days in jail.

Two months later, Brasch entered the home of a 10–year–old girl, whom he awoke by lying on top of her, kissing her, and fondling her buttocks. Brasch was arrested and pleaded guilty to first degree burglary; the prosecutor dismissed the sexual abuse charge. Brasch was sentenced to five years in the department of corrections for this incident.

Brasch was paroled in 1996. Shortly thereafter, Brasch unlawfully entered or attempted to enter at least four homes. He did not succeed in entering the first two homes, because both times he was seen by a resident and fled. He managed to enter the third house, where he found a woman asleep on the couch. Brasch digitally penetrated the woman's vagina before being chased off by her husband. Brasch then entered a fourth house through an unlocked patio door and stood over a woman who was in bed asleep. Upon waking up, the woman asked Brasch to leave and he complied. Brasch was again arrested.

Upon examination in 1997, Dr. Richard Scott determined Brasch was incompetent to stand trial. Dr. Scott diagnosed Brasch with schizophrenia and paranoid delusions. In 1999, after two years of treatment, Brasch was restored to sufficient competency to stand trial. He pleaded guilty to one count of sodomy and three counts of burglary. He was sentenced to 12 years imprisonment.

Prior to Brasch's scheduled release date in 2007, the State filed a petition to involuntarily commit Brasch to the custody of the department of mental health (DMH) as a SVP. Brasch's counsel filed a counter-petition requesting involuntary civil commitment, which was subsequently dismissed by the court.

Brasch then filed a motion to dismiss the SVP commitment petition, arguing that as a result of the cognitive problems caused by his schizophrenia, he would be unable to successfully participate in the SVP treatment program because DMH could not provide an adequate medical regimen. For this reason, Brasch argued that the SVP act, § 632.480 et seq., was unconstitutional as applied to him because he was “not amenable to sex offender treatment.” The court overruled Brasch's motion.

Pursuant to § 632.489, the court found probable cause to believe that Brasch was a SVP and ordered DMH to evaluate him. Dr. Scott conducted this evaluation. During the evaluation, Dr. Scott asked Brasch about his repeated behavior of breaking into homes to have sex with women. Brasch responded that he would go into the houses to have sex because “usually if [the women] see who [he is] they have sex with [him.]” Dr. Scott diagnosed this belief as a faulty core belief that demonstrated Brasch's lack of recognition of the boundary of the home. Dr. Scott noted that Brasch continued to repeat his unlawful behavior despite each situation not having the outcome he desired. Dr. Scott also believed that the mental abnormality that caused Brasch's repeated behavior was his

[332 S.W.3d 118]

antisocial personality disorder. This assessment was based partly on Dr. Scott's determination that Brasch did not develop schizophrenia until 1996, when he was 29 years old.

Dr. Scott completed a risk assessment on Brasch using a combination of static and dynamic risk factors to determine whether he was more likely than not to commit predatory acts of sexual violence if not confined in a secure facility. Dr. Scott evaluated Brasch using two actuarial instruments: the RRASOR and the STATIC–99. Both of these tests placed Brasch in the high-risk range. In addition, Dr. Scott performed his own analysis of dynamic factors. Dr. Scott noted the absence of protective factors, such as parole supervision and Brasch's failure to successfully complete sex offender treatment. He also noted the presence of many risk-increasing factors, such as Brasch's sexual coping, repeated parole violations, high measure of psychopathy, non-compliance with medication, heavy use of alcohol and drugs, poor judgment, failure to learn from his mistakes, heightened impulsivity, and molestation of children younger than 12 years.

Dr. Scott also assessed the treatment that Brasch was receiving as part of his risk assessment. He determined that Brasch had the full range of medical and psychiatric treatments available to him. He determined that Brasch was receiving proper treatment and that he was at the “psychiatric baseline.” However, Dr. Scott also stated that some of Brasch's delusions were fixed and were unaffected by Brasch's treatment. Dr. Scott summarized Brasch's treatment by saying that Brasch “is at the best he can be.” Dr. Scott concluded that Brasch was more likely than not to commit predatory acts of sexual violence if not confined in a secure facility and that Brasch met the definition of a SVP...