Grado v. State

559 S.W.3d 888
CourtSupreme Court of Missouri
DecidedSeptember 25, 2018
DocketNo. SC 96830
StatusPublished
Cited by38 cases

This text of 559 S.W.3d 888 (Grado v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grado v. State, 559 S.W.3d 888 (Mo. 2018).

Opinion

Laura Denvir Stith, Judge

Nicholas Grado appeals the circuit court's judgment committing him to the custody of the Department of Mental Health under the Sexually Violent Predator Act, sections 632.480 through 632.525 (the "Act").1 Mr. Grado argues he was entitled to, but deprived of, effective assistance of counsel in defending against the State's attempt to commit him as an SVP. This Court agrees Mr. Grado has a constitutional right under the Due Process Clause of the Fourteenth Amendment to effective assistance of counsel in defending against an attempt to commit him under the Act. Because Mr. Grado alleges his counsel's errors occurred in open court and so can be reviewed on the trial record, this Court does not reach the difficult issue of how such claims would be raised and determined for errors allegedly occurring off the record or on appeal, in light of the lack of a post-hearing process applicable to civil SVP commitments.

This Court also need not decide whether Missouri will apply the "meaningful hearing based on the record" standard for ineffective assistance of counsel now applied in Missouri termination of parental rights cases as suggested by the State, In Interest of J.P.B., 509 S.W.3d 84, 97 (Mo. banc 2017) , or the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) , standard applied in other states, because under either standard Mr. Grado's counsel was not ineffective in failing to object to evidence Mr. Grado watched animalistic pornography, played a pedophilic video game, and was sexually attracted to animals. This evidence was admissible because the State's expert relied on it in assessing Mr. Grado's diagnosis and risk of re-offense. He had a meaningful hearing and it was a matter of trial strategy to determine whether the impact of this evidence would be minimized were it also discussed by Mr. Grado's counsel. For the reasons set out below, this Court also rejects Mr. Grado's claim there was insufficient evidence to support the finding he was an SVP as well as his claim he was insufficiently mature at the time of committing the index offense at age 18 for it to be constitutional to find he is an SVP as that finding allegedly becomes, in effect, a sentence of commitment for life. The judgment is affirmed.

I. PROCEDURAL AND FACTUAL BACKGROUND

On October 16, 2014, while Mr. Grado was serving three concurrent five-year sentences for first-degree child molestation, the State filed the underlying petition seeking to have Mr. Grado committed as *893an SVP2 . The probate division of the circuit court held a three-day jury trial.

To have Mr. Grado committed as an SVP, the State was required to prove he had been convicted of an "index" sexually violent offense3 and has a mental abnormality making him more likely than not to commit a future act of sexual predatory violence unless confined to a secure facility. § 632.480(5). To meet its burden, the State presented testimony from Dr. Lisa Witcher, a licensed psychologist hired by the Missouri Department of Mental Health to perform an SVP examination of Mr. Grado. Dr. Witcher testified based on her interview of Mr. Grado and on her review of an abundance of his records from elementary and high school all the way through his incarceration.

Here, Mr. Grado's index offense was his three convictions of first-degree child molestation.4 In pleading guilty, Dr. Witcher testified, Mr. Grado admitted when he was 18 years old he engaged in sexual contact with three children all under the age of seven. He started with his five-year-old nephew. He told his nephew they were playing a "game" where they pretended to be "in a dream." He then proceeded to play a game of truth or dare, and Mr. Grado pulled down his pants and showed his nephew his genitals. He played a similar "game" with his six-year-old niece and his niece and nephew's seven-year-old cousin, only the "game" escalated and he "dared" the two girls to put their hands and mouths on his genitals. On other occasions, he tried to manipulate the three children into performing oral sex on him.

In addition to his index offense, Dr. Witcher testified Mr. Grado had multiple prior instances of sexual abuse of children. When he was 14, Mr. Grado had his one-year-old nephew place his hand on Mr. Grado's penis while he was masturbating. At 15, Mr. Grado and an eight- or nine-year-old boy touched one another's genitals, and Mr. Grado had the boy perform oral sex on him. Mr. Grado continued to have sexual interactions with that same boy multiple times over approximately a six-month period. Because Mr. Grado received sexual gratification from these interactions, Dr. Witcher diagnosed him with the paraphilia of pedophilic disorder non-exclusive type, sexually attracted to both males and females. Dr. Witcher further testified that because Mr. Grado continued to engage in predatory sexual conduct despite reporting feeling guilty for his conduct, he suffered from a mental abnormality that caused him serious difficulty in controlling his behavior.

Dr. Witcher also scored Mr. Grado on the Static 99-R and Static 2002-R, actuarial instruments used to determine Mr. Grado's risk. The Static 99-R and Static 2000-R placed him in the moderate to high risk category and moderate risk category to be reconvicted, respectively. In addition, Dr. Witcher testified Mr. Grado demonstrated several other risk factors, including his emotional congruence with children (Mr.

*894Grado thought the child victims were his friends), sexual impulsivity, strong manipulation techniques, and sexual attraction to animals. Because of his sexual attraction to animals, Dr. Witcher diagnosed Mr. Grado with zoophilia, which is also a paraphilia. She testified he was at an increased risk to reoffend because he had two paraphilias. Based on the totality of Mr. Grado's behaviors, Dr. Witcher gave her opinion to a reasonable degree of psychological certainty he would commit future acts of predatory sexual violence unless confined in a secure facility, and Mr. Grado met the criteria of an SVP.

The State also presented testimony from Robert Gould, the operations manager for MOSOP and the primary therapist for Mr. Grado's group in the program. Mr. Gould testified that throughout the program Mr. Grado "discussed more readily, more frequently, the interactions with animals" and "did not as readily discuss the human victims, child victims and" admitted watching animated pornography featuring half-human, half-animal adult characters with exaggerated sexual features and playing a pedophilic video game which involved grooming techniques similar to those Mr. Grado used on his child victims. Mr. Grado maintained throughout MOSOP he was not a risk to children, but Mr. Gould testified he observed nothing during treatment which would signal Mr. Grado was no longer sexually attracted to children as well as animals.

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Bluebook (online)
559 S.W.3d 888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grado-v-state-mo-2018.