Ortega-Mantilla v. State, 3D02-2336.

• Decision Date: 06 April 2005
• Docket Number: No. 3D02-2336.,3D02-2336.
• Citation: 898 So.2d 1164
• Parties: Carlos ORTEGA-MANTILLA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

898 So.2d 1164

Carlos ORTEGA-MANTILLA, Appellant, v. The STATE of Florida, Appellee.

No. 3D02-2336.

District Court of Appeal of Florida, Third District.

April 6, 2005.

Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.

Before GREEN, WELLS, and ROTHENBERG, JJ.

GREEN, J.

Carlos Ortega-Mantilla, a convicted sex offender, appeals a civil order declaring him a sexually violent predator and committing him indefinitely for treatment pursuant to the Jimmy Ryce Act ("Jimmy Ryce Act"). See §§ 394.910 — .931, Fla. Stat. (1999). We affirm for the reasons that follow.

In 1990, Ortega-Mantilla was charged criminally, by information, with two counts of armed sexual battery and one count of kidnapping. On November 6, 1991, he and the State entered into a plea agreement by which he agreed to plea nolo contendere to the charges in exchange for a fifteen-year prison sentence to be followed by ten years of probation with the special condition that he receive counseling for mentally disordered sex offenders. Ortega-Mantilla's scheduled release date from prison was August 1, 1999. Just days prior to that date, however, the State filed a civil petition pursuant to the Jimmy Ryce Act seeking to have Ortega-Mantilla declared a sexually violent predator and indefinitely committed for treatment. Ortega-Mantilla, through counsel, answered the petition and raised affirmative defenses. In one of the affirmative defenses Ortega-Mantilla asserted that the State was equitably estopped from pursuing the civil commitment because of his plea agreement with the State.

The trial court preliminarily entered an order finding probable cause to believe that Ortega-Mantilla was a sexually violent predator, as defined in section 394.912(10), Florida Statutes,¹ and eligible for civil commitment. By virtue of this order, Ortega-Mantilla was detained during the pendency of the civil commitment proceeding.

Prior to the trial, the State moved to exclude any reference to a polygraph examination Ortega-Mantilla took at the request of his lawyers. The defense argued that it was not seeking to introduce the results of the polygraph, but was seeking, through its defense expert, to introduce evidence of a disclosure made by Ortega-Mantilla during the course of the examination. The trial court ruled that the State could hire its own polygrapher and that if the defense sought to introduce any polygraph evidence, all polygraph evidence would be admissible.

At the close of the trial, both sides moved for a directed verdict. Both motions were denied. The case was submitted to the jury, which unanimously found Ortega-Mantilla to be a sexually violent predator. As a result of this finding, Ortega-Mantilla was involuntarily committed to the Department of Children and Family Services for care, control, and treatment until such time as it is deemed safe for him to be released into the public at large. Ortega-Mantilla has timely perfected this appeal and raises six issues.

I

The appellant first argues that the State was equitably estopped from instituting this civil commitment action because he and the State had entered into a contractual plea agreement in 1991 pursuant to which he pled guilty to the criminal charges in exchange for a specific term of imprisonment followed by probation. We find no merit to this argument. After the appellant filed his amended initial brief in this appeal, the Florida Supreme Court addressed this precise issue in State v. Harris, 881 So.2d 1079 (Fla.2004). In Harris, the court held that the State does not violate a plea agreement when it later initiates a discretionary civil commitment proceeding under the Jimmy Ryce Act, nor does the doctrine of equitable estoppel preclude the initiation of such proceedings. Id. at 1085.

II

The appellant next contends that the trial court improperly permitted the State to elicit evidence that he was untruthful about his commission of prior sexual batteries during a polygraph examination. This evidence was admitted because the defense chose to inform the jury that its expert had utilized certain disclosures made by the appellant during polygraph examinations as part of the expert's evaluation of the appellant. The appellant nevertheless argues on appeal that he is entitled to a new trial because polygraph examination results are inadmissible in Florida. See Delap v. State, 440 So.2d 1242, 1247 (Fla.1983); Frazier v. State, 425 So.2d 192, 193 (Fla. 3d DCA 1983).

Our review of the record, however, reveals that the defense objected to the admissibility of the polygraph results only on Frye² and/or hearsay grounds. Consequently, we find that this issue has not been adequately preserved for appellate review. Tillman v. State, 471 So.2d 32, 35 (Fla.1985) ("In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved."); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982); Castro v. State, 791 So.2d 1114, 1115 (Fla. 4th DCA 2000). Even, assuming arguendo, that it had been properly preserved, we conclude that, at best, any error was invited by the defense and, at worst, the error was harmless based on the record before us. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)

(holding that the harmless error test requires a showing that "there is a reasonable possibility that the error affected the verdict."). See, e.g., Williams v. State, 841 So.2d 531 (Fla. 2d DCA 2003) (applying DiGuilio to civil commitment proceeding); Collier v. State, 857 So.2d 943, 946 (Fla. 4th DCA 2003) (same). Therefore, this argument presents no basis for reversal of the order.

III

The appellant next asserts that the trial court erred in allowing the State to qualify as an expert Dr. Karen Parker, the Clinical Director for Florida's Sexually Violent Predator Program, and in allowing her to testify about, among other things, the screening process or criteria for the commencement of a civil commitment proceeding.³ Appellant argues that the testimony about the screening process that led to the filing of the civil commitment petition was irrelevant as he had not challenged it.

We agree that Dr. Parker's testimony regarding the process used in filing the petition for civil commitment against the appellant was irrelevant because the sole issue in this case was whether the appellant could be classified as a sexually violent predator. In order to establish this, the state was required to prove the following elements by clear and convincing evidence:

1) The appellant has been convicted of an enumerated sexually violent offense; and

2) The appellant suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.

See §§ 394.912(9), .912(10), Fla. Stat. (1999); Hale v. State, 891 So.2d 517 (Fla.2004); Harris, 881 So.2d 1079.

The appellant correctly points out that Dr. Parker's testimony regarding the screening process was irrelevant to these issues, just as a State Attorney's testimony about the screening process used to determine whether to file charges against certain arrestees would be irrelevant in a criminal trial. Nevertheless, our review of the record reveals that this portion of Dr. Parker's testimony was not made a feature of the trial, nor was it repeated by either side during closing arguments. Therefore, we deem this error also to be harmless. See McQueen v. State, 848 So.2d 1220 (Fla. 1st DCA 2003)

; Williams v. State, 841 So.2d 531 (Fla. 2d DCA 2003).

IV

In his fourth issue on appeal, the appellant contends that the trial court erred in its determination, after a Frye hearing, that certain actuarial instruments were not scientific evidence subject to Frye, and, therefore, admissible. Those actuarial instruments, namely: 1) the Rapid Risk Assessment of Sexual Offense Recidivism ("RRASOR"); 2) the Static 99; 3) Minnesota Sex Offender Screening Tool-Revised ("MnSOST-R"); and 4) the Hare Psycopathy Checklist-Revised ("PCL-R"), purport to predict the propensity to commit future sexual offenses.

We agree with the appellant that the actuarial instruments are scientific evidence, and therefore, in order for them to be admissible, they must pass the Frye test. Although the trial court erred by finding that the actuarial instruments were not subject to the Frye analysis, we nonetheless find that they were properly admitted because they do pass the Frye test. In Roeling v. State, 880 So.2d 1234, 1239 (Fla. 1st DCA 2004), the court held that testimony regarding appellant's propensity to commit future acts of sexual violence, based in part on the use of risk-assessment actuarial evidence, was admissible because the actuarial instruments passed the Frye test. In so doing, the Roeling court noted that,

[c]ourts in Florida and other jurisdictions have also considered the admissibility of expert opinion testimony regarding propensity to commit acts of sexual violence in the future which is based in part on use of risk-assessment instruments. Not one court has held such testimony inadmissible as a matter of law.

Roeling v. State, 880 So.2d 1234, 1239 (Fla. 1st DCA 2004). See, e.g., Rodgers v. State, 875 So.2d 737, 739 (Fla. 2d DCA 2004) (holding that trial court did not err in allowing testimony regarding the use of RRASOR, VRAG, MnSOST-R, and PCL-R); Lee v. State, 854 So.2d 709, 712 (Fla. 2d DCA 2003) ("we conclude that the trial court did not err by allowing the [actuarial] test results to be presented to the jury as part of the experts' testimony."); Jackson v. State, 833 So.2d 243, 246 (Fla. 4th DCA 2002) (upholding the trial court's determination...