Lee v. State, 2D00-1430.

• Decision Date: 15 August 2003
• Docket Number: No. 2D00-1430.,2D00-1430.
• Parties: Roderick D. LEE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

854 So.2d 709

Roderick D. LEE, Appellant, v. STATE of Florida, Appellee.

No. 2D00-1430.

District Court of Appeal of Florida, Second District.

August 15, 2003.

Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Jennifer R. Haymes, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Roderick Lee appeals from a commitment order placing him in the custody of the Department of Children and Family Services pursuant to section 394.917(2), Florida Statutes (1999). That statute is contained in part V of chapter 394, which is commonly referred to as the "Jimmy Ryce Act" (the Act). Although Lee raises numerous substantive and procedural issues, none require reversal. As a result, we affirm the commitment order.

On March 30, 1999, the State commenced involuntary civil commitment proceedings against Lee pursuant to the Act. The petition for a probable cause determination alleged that Lee had been convicted of three counts of lewd, lascivious, or indecent act or assault upon a child under sixteen years of age and that he suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined to a secure facility for long-term control, care, and treatment.

Prior to trial, Lee filed a motion requesting that "certain novel and allegedly scientific evidence" derived from tests or measuring devices that had been administered to him be excluded from evidence. These tests included several instruments: the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR), the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), the Violence Risk Appraisal Guide (VRAG), and the Sex Offense Risk Appraisal Guide (SORAG). Lee also challenged the admissibility of the Hare Psychopathy Checklist-Revised (PCL-R). Lee asserted that these instruments had not gained acceptance in the relevant scientific community and that the State could not properly use them to establish his future sexual dangerousness or his classification as a sexually violent predator.

After conducting a Frye¹ hearing, the trial court denied Lee's motion. The trial court concluded that the use of the instruments was not based on a new or novel scientific principle within the purview of Ramirez v. State, 651 So.2d 1164 (Fla. 1995), and that the instruments had sufficient general scientific acceptance among experts who deal with sexually violent or dangerous individuals to satisfy the State's burden of proof. The trial court denied Lee's other objections, finding that they went to the weight of the evidence and not to its admissibility.

Lee also filed numerous motions attacking the constitutionality of the Act and seeking to exclude or limit the admission of certain evidence at the commitment trial. These motions were denied.

During the trial, the State presented evidence that Lee was at a very high risk of reoffending without secure residential treatment, that residential treatment was required, and that Lee suffered from a mental abnormality. In formulating their opinions, the State's experts reviewed records relating to Lee's prior offenses and interviewed Lee. The experts testified that Lee had repeatedly approached young boys and fondled their genitals, masturbating some of the victims. They described Lee's attraction to and molestation of boys and the significance of his prior offenses in predicting sexual reoffense. They stated that Lee's history was indicative of a very powerful urge to engage in the described behavior, and Lee was a high risk to repeat the behavior in the future. The State's and Lee's experts agreed that a person's prior sexual offenses and history are the single biggest or the best predictor of the person's future behavior, although one of Lee's experts stated that there are no highly accurate predictors.

While Lee denied any attraction to children, there was evidence that he harbored cognitive distortions about his conduct and characterized himself as a protector of children. The evidence also showed that he derived pleasure or satisfaction from committing sexual acts on children, and according to expert testimony, his distorted beliefs allowed him to engage in deviant behavior.

One expert diagnosed Lee as suffering from pedophilia and a personality disorder with antisocial and possibly paranoid features that placed him at a very high risk to commit future acts of sexual violence without secure residential treatment. The expert opined that Lee's severe cognitive distortions were a serious risk factor but that Lee was treatable and residential treatment was necessary. Another expert diagnosed a sexual disorder and pedophilic tendencies, although the expert stated that he could not definitively diagnose Lee with pedophilia. The expert concluded that Lee had very poor impulse control, poor judgment, and strong deviant characteristics. He reiterated that Lee had difficulty controlling his inappropriate behavior and was a high probability risk for sexual recidivism. The expert testified that Lee believed he did not need treatment, and even if it were offered on an outpatient basis, he would not participate because he did not see himself as having a sexual disorder. A defense expert acknowledged that Lee had a high likelihood for reoffending due to his multiple sex offenses, his denial of responsibility, and his refusal of treatment.

The jury unanimously found that Lee was a sexually violent predator in need of commitment. On that basis, the trial court entered the commitment order.

In this appeal, Lee first challenges the trial court's admission of the State's scientific evidence, arguing that the evidence was unreliable and untested. When expert opinion testimony involves new or novel scientific principles, the trial court must use a four-step process to determine whether the testimony is admissible. Ramirez, 651 So.2d at 1166. The trial court must determine the following: (1) whether the expert testimony will assist the jury in understanding the evidence or in determining a fact that is at issue; (2) whether the expert's testimony is based on a scientific principle or discovery that has gained general acceptance in the particular field in which it belongs; and (3) whether the witness is qualified as an expert to present opinion testimony on the subject at issue. Id. at 1166-67. If the first three steps are satisfied, then as the fourth step the trial court may allow the expert to render an opinion on the subject of his or her expertise, and the jury is then able to determine the expert's credibility and accept or reject the testimony. Id. at 1167.

As the proponent of the evidence, the State bears the burden of establishing the general acceptance of the underlying scientific principle and the testing procedures that were used to apply that principle to the facts of the case. Id. at 1168. The question of general acceptance must be established by a preponderance of the evidence. Id. Reliability of the evidence is fundamental to the issues involved in the question of admissibility. Hadden v. State, 690 So.2d 573, 578 (Fla.1997). Evidence that is "based on a novel scientific theory is inherently unreliable and inadmissible in a legal proceeding in Florida unless the theory has been adequately tested and accepted by the relevant scientific community." Ramirez v. State, 810 So.2d 836, 843 (Fla.2001).

Although there were conflicts in the evidence as to the reliability of the tests and the conclusions drawn by the experts, we conclude that the trial court did not err by allowing the test results to be presented to the jury as part of the experts' testimony. See Jackson v. State, 833 So.2d 243, 246 (Fla. 4th DCA 2002) (upholding the trial court's determination that the actuarial instruments "are generally accepted in the relevant scientific community as part of the overall risk assessment for sexual predators"). However, even if there were any error regarding the Frye analysis and the admissibility of actuarial evidence, a harmless error analysis must be undertaken. See Green v. State, 826 So.2d 351, 353 (Fla. 2d DCA 2002).

The expert witnesses discussed their clinical evaluations of Lee, the results of tests that were administered to him, and the basis for their conclusions and recommendations. While they differed in their views of the value of the test results, they acknowledged that the results were useful as one part of the evaluation process and to verify the conclusions that were reached. The record contains substantial evidence, apart from the test results, supporting the State's claim that Lee met the requirements for commitment under the Act. We are satisfied that even if there were any error in the admission of the test results, the error would be harmless. See In re Commitment of Williams, 841 So.2d 531 (Fla. 2d DCA 2003) (determining that any error in the admission of the results of risk assessment instruments was harmless).

Lee next argues that the trial court erred in admitting unreliable hearsay evidence pursuant to section 394.9155(5), Florida Statutes (1999). That statute allows the admission of hearsay in civil commitment proceedings unless the trial court finds that the evidence is not reliable, and it prohibits the use of hearsay as the sole basis for commitment. Lee also challenges the constitutionality of section 394.9155(5) on due process, equal protection, and separation of powers grounds.

The State responds that the hearsay evidence discussed by the experts was admissible pursuant to the statute; the expert's opinions were not being used as conduits for otherwise inadmissible evidence; and in accordance with the requirement of section 394.9155(5), hearsay evidence was not the sole basis for Lee's commitment. The State also notes that experts are permitted to base their opinions or inferences on facts or data...