Nelson v. State

• Decision Date: 27 June 2017
• Docket Number: No. SC 95975,SC 95975
• Citation: 521 S.W.3d 229
• Parties: In the Matter of the Care and Treatment of Jay NELSON, a/k/a Jay T. Nelson, a/k/a Jay T. Nelson, Jr., Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

521 S.W.3d 229

In the Matter of the Care and Treatment of Jay NELSON, a/k/a Jay T. Nelson, a/k/a Jay T. Nelson, Jr., Appellant,

v.STATE of Missouri, Respondent.

No. SC 95975

Supreme Court of Missouri, en banc.

Opinion issued June 27, 2017

Nelson was represented by Chelsea R. Mitchell of the public defender's office in Columbia, (573) 777-9977.

The state was represented by Gregory M. Goodwin of the attorney general's office in Jefferson City, (573) 751-3321.

Paul C. Wilson, Judge

Following a jury trial, Jay Nelson ("Nelson") was committed to the custody of the Department of Mental Health under the Sexually Violent Predator Act, sections 632.480 through 632.525 (the "SVPA").¹ Nelson appealed, and the court of appeals transferred the case to this Court prior to opinion on the ground the appeal involves issues within this Court's exclusive appellate jurisdiction as set forth in article V, section 3, of the Missouri Constitution. For the reasons set forth in In re Care & Treatment of Kirk, No. SC95752, 520 S.W.3d 443, 448 (Mo. banc June ___, 2017) 2017 WL 2774419, decided concurrently herewith, Nelson's constitutional claims are merely colorable and do not invoke this Court's exclusive jurisdiction. Nevertheless, the Court—on its own motion—grants transfer from the court of appeals prior to opinion pursuant to Rule 83.01 and, therefore, has jurisdiction under article V, section 10, of the Missouri Constitution. Id.; Armstrong-Trotwood, LLC v. State Tax Comm'n , 516 S.W.3d 830, 835 (Mo. banc 2017).

Facts

In 1988, Nelson broke into a woman's home, threatened to kill her, and brutally raped her on top of broken glass. While serving his sentence for that crime, Nelson received 55 conduct violations for sexual misconduct and failed to complete the Missouri Sex Offender Program. Nelson would often masturbate in a way that would allow female correctional staff to see him and would often target certain individuals. He also shouted violent sexual threats at the female staff, threatening to kidnap them, sexually assault them, and kill them. On several occasions, Nelson went beyond threats and sexually assaulted female corrections staff. Nelson grabbed the buttocks of one staff member; he brushed his hand against the pubic bone of another; and he grabbed the crotch of a third staff member.

Dr. Nena Kircher, a licensed psychologist, evaluated Nelson to determine whether he satisfied the statutory definition of a sexually violent predator. She reviewed his history of sexual violence, Nelson's responses during an interview she had with him, and Nelson's medical, mental health, and probation and parole records. Dr. Kircher diagnosed Nelson with Antisocial Personality Disorder

("ASPD") and exhibitionism. She opined these conditions rose to the level of a mental abnormality and concluded this mental abnormality caused Nelson serious difficulty in controlling his behavior.

Finally, Dr. Kircher concluded it was more likely than not Nelson would commit a future act of predatory sexual violence unless placed in a secure facility. In reaching this conclusion, Dr. Kircher relied on the Static-99R and the Stable-2007 tests. Nelson scored a four on the Static-99R, indicating he had a moderate-to-high risk of reoffending, and a score of 17 on the Stable-2007, indicating he had a high risk of reoffending. In addition, Dr. Kircher testified that Nelson demonstrated several other risk factors, including sexual preoccupation, numerous grievances and hostility, non-compliance with supervision, poor cognitive problem solving, impulsiveness, and a lack of emotionally intimate relationships. Considering all of this information, Dr. Kircher opined that Nelson had a high risk of reoffending if not securely confined and, therefore, satisfied the statutory definition of a sexually violent predator.

Another licensed psychologist, Dr. Jeannette Simmons, also concluded Nelson was a sexually violent predator and it was more likely than not he would commit a future act of predatory sexual violence if not securely confined. Dr. Simmons considered Nelson's history of sexual violence, the answers he gave in an interview, his score on the Static-99R, and risk factors. Dr. Simmons diagnosed Nelson with the mental abnormalities of exhibitionism and paraphilia

NOS, non consent. These abnormalities, in Dr. Simmons' opinion, caused Nelson serious difficulty controlling his behavior. She concluded Nelson "seeks out individuals that he would like to prey upon" and would continue this predatory sexual violence unless confined to a secure facility.

Analysis

Nelson's constitutional claims proceed principally from his assertion that the purpose and effect of the SVPA is punitive. As explained in Kirk , this and similar assertions (as well as the constitutional claims flowing from them) have been thoroughly reviewed and rejected by this Court in the past. Kirk , 520 S.W.3d at 449–52. Nelson, like Kirk, claims various amendments to the SVPA—including amendments to the release provisions procedures and, more importantly, claims as to how those provisions are being or could be applied unconstitutionally under circumstances not now before the Court—should convince this Court that the essential purpose and effect of the SVPA have changed and, therefore, that constitutional claims previously rejected should now carry the day. Kirk rejects those arguments. Accordingly, the claims properly preserved and presented in Nelson's Points I-IV also are rejected and the balance of this opinion deals solely with Nelson's other claims.

Point V

Nelson's fifth point is the trial court erred in allowing the use of the phrase "sexually violent predator" at trial and thereby violated his right to due process and a fair trial. To establish a due process violation in this context, Nelson has the burden of establishing the improper statements "had a decisive effect on the jury's determination." State v. Perry , 275 S.W.3d 237, 245 (Mo. banc 2009). There must be a "sound, substantial manifestation, a strong clear showing, that injustice or miscarriage of justice will result if relief is not given." Id.

The Court rejects Nelson's argument because the term "sexually violent predator" was specifically chosen and defined by the legislature when it enacted the SVPA.

At the trial in this case, the state bore the burden of proving by clear and convincing evidence that Nelson met the statutory definition of a sexually violent predator and that he was more likely than not to commit a future act of predatory sexual violence. The state's experts testified extensively about the statutory criteria to be a sexually violent predator, and Nelson provides no precedent or compelling argument why the use of the term chosen and defined by the legislature was so unfairly prejudicial as to deprive him of his constitutional right to due process. See Perry , 275 S.W.3d at 246 (finding no error in permitting the state to label the defendant a child molester when on trial for molesting a child). The jury was rightfully and necessarily exposed to evidence concerning Nelson's history of sexual violence, expert testimony that Nelson preyed on female victims, and expert opinion that Nelson was more likely than not to commit future acts of sexual violence if not securely confined. In that context, it cannot be said the use of the phrase "sexually violent predator" resulted in a clear miscarriage of justice.

Point VI

Nelson asserts the state failed to prove he suffered from a qualifying mental abnormality that caused him serious difficulty controlling sexually violent behaviors, as required by section 632.480(5). When reviewing a sufficiency of the evidence claim, this Court will view "the evidence in a light most favorable to the jury verdict, disregarding all contrary evidence and inferences, and determine[ ] whether the evidence was sufficient" for the jury to determine Nelson suffered from a qualifying mental abnormality. In re Care & Treatment of Murrell v. State , 215 S.W.3d 96, 106 (Mo. banc 2007). To establish Nelson had a qualifying mental abnormality, the state had to prove Nelson had: "(1) a congenital or acquired condition; (2) affecting the emotional or volitional capacity; (3) that predisposes [him] to commit sexually violent offenses; (4) in a degree that causes [him] serious difficulty controlling his behavior." Id.

Nelson was diagnosed with ASPD and paraphilia

NOS, non consent, and both have been found to be qualifying mental abnormalities. Murrell , 215 S.W.3d at 108 (holding that ASPD qualifies as a mental abnormality); In re Care & Treatment of Cozart , 433 S.W.3d 483, 491 (Mo. App. 2014) (holding that paraphilia NOS, non consent, qualifies as a mental abnormality). Dr. Kircher testified Nelson had ASPD and exhibitionism. This diagnosis, combined with Nelson's "sex offending behavior," convinced Dr. Kircher that Nelson had a mental abnormality rendering him unable to control his behavior. Similarly, Dr. Simmons diagnosed Nelson with exhibitionism and paraphilia NOS, non consent. She testified this meant Nelson was aroused by non-consenting partners. Dr. Simmons opined that paraphilia NOS, non consent, is a mental abnormality that rendered Nelson unable to control his impulses. Nelson attacked the credibility of these experts and their opinions, but the jury was persuaded otherwise. Accordingly, even though Nelson offered contrary evidence, there was sufficient evidence for a reasonable juror to find Nelson suffered from a qualifying mental abnormality.

Point VII

Nelson argues the state failed to prove he was more likely than not to commit "predatory acts of sexual violence" if not confined, as required by section 632.480(5). As stated above, 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 the jury to conclude Nelson satisfied this aspect of the statutory definition of a sexually violent...