In re the Care & Treatment of Morgan

398 S.W.3d 483, 2013 WL 268644, 2013 Mo. App. LEXIS 88
CourtMissouri Court of Appeals
DecidedJanuary 24, 2013
DocketNo. SD 31761
StatusPublished
Cited by8 cases

This text of 398 S.W.3d 483 (In re the Care & Treatment of Morgan) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Care & Treatment of Morgan, 398 S.W.3d 483, 2013 WL 268644, 2013 Mo. App. LEXIS 88 (Mo. Ct. App. 2013).

Opinion

DON E. BURRELL, J.

Dean Morgan (“Appellant”) appeals the judgment committing him to the custody of the Department of Mental Health after a jury found him to be a sexually violent predator (“SVP”) (see section 632.480(5) 1). Appellant contends the trial court erred in overruling his motion for a directed verdict at the close of the evidence because there was insufficient evidence clearly and convincingly demonstrating that it was more likely than not that Movant would commit a sexually violent act in the future in that the State’s expert witness “greatly inflated [485]*485[Appellant’s] risk of reoffending[.]”2 Because the appropriate weight of the challenged testimony was for the jury to determine, we deny the point and affirm the judgment.

Applicable Principles of Review and Governing Law

As relevant here, the State was required to prove two statutory elements: 1) that Appellant “suffers from a mental abnormality which makes [him] more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility”; and 2) that Movant had pleaded guilty to “a sexually violent offense[.]”3 Section 632.480(5)(a); see also In re Care & Treatment of Berg v. State, 342 S.W.3d 374, 381-82 (Mo.App. S.D.2011) (discussing the required mental abnormality). Felony sodomy is considered a sexually violent offense. Section 632.480(4).

“Appellate review in an SVP ease is limited to a determination of whether there was sufficient evidence admitted from which a reasonable jury could have found each necessary element by clear and convincing evidence.” In re Care & Treatment of A.B., 334 S.W.3d 746, 752 (Mo. App. E.D.2011). This means that the credibility of witnesses and the weight to be given to their testimony are for the jury to determine. Id. “This Court does not reweigh the evidence.” In re Care & Treatment of Gormon, 371 S.W.3d 100, 103 (Mo.App. E.D.2012). Instead, “[w]e view the record most favorably to the judgment, disregarding all contrary evidence and inferences, and will not reverse for insufficiency of the evidence unless there is a complete absence of probative facts supporting the judgment.” In re Care & Treatment of Dunivan v. State, 247 S.W.3d 77, 78 (Mo.App. S.D.2008).

Facts and Procedural Background

The State filed its petition seeking Appellant’s commitment in April 2009, and the matter was tried in November 2011. Dr. Rick Scott, a certified forensic examiner, testified on behalf of the State that he evaluated Appellant in September 2009. That evaluation consisted of a personal meeting with Appellant and a review of records related to Appellant from medical providers, the military, the Scott County Sheriffs Department, and the Department of Corrections. Dr. Scott was trained in how to perform evaluations of individuals for purposes of SVP proceedings, and he had been conducting such evaluations since 1999.

Dr. Scott learned that Appellant first had sexual contact with another child, a relative, when Appellant was ten years old and the other child was six years old. Appellant’s sexual contact with this child continued over the course of ten years, and Appellant estimated that such contact had occurred in excess of “100 times.” Appellant also molested his younger brother, who had an intellectual disability, both before and after the brother became an [486]*486adult. The reports revealed that Appellant had admitted that before he reached 17 years of age, he had engaged in sexual contact with five other children, including multiple instances of sexual contact with at least two of those children. One of these children, another female relative who was eight years old when the sexual contact started, “was told by her mother to stay away from [Appellant after the contact was discovered]. No other consequences occurred.”

When he was between the ages of 17 and 20, Appellant had sexual contact with six other children. One of these children was the younger brother of the first child Appellant had sexual contact with. When the family finally discovered Appellant’s behavior with the girl and told him to stop, he began sexually abusing the girl’s younger brother, who was then eight years old. Appellant estimated that these incidents “happened between 50 and 60 times over a five-year period.” When Appellant was 26 years old, he sexually abused one boy (“about eight or nine years old”) on one occasion and another boy (“[n]ine to 10 years old”) on another occasion after he had encountered the boys at a park.

Approximately three years later, in 1988, Appellant performed oral sex “a few times” on two neighbor boys, ages six and ten. Around the same time, he performed oral sex on a five-year-old girl. The events from 1988 resulted in three charges of sodomy. Appellant pleaded guilty to the offenses, and a copy of his conviction record was entered into evidence as State’s Exhibit 2. Appellant was sentenced to consecutive seven-year sentences on each count, and his incarceration on those offenses ended in May 2009.

While in prison, Appellant completed “Phase 1” of the Missouri Sex Offender Program (“MOSOP”); the program involved “education and testing.” Appellant began “Phase 2” of MOSOP in 2001, which was an “intensive” program of education, therapy, and application of therapy, but Movant “quit” Phase 2 in 2002. When Movant was offered a second opportunity to complete Phase 2, he “declined it.” Appellant told Dr. Scott that he did so because it “was too much” for him to confront his behavior and “apply the principles of treatment on a day-to-day basis[.]” During a 2009 interview in prison, Appellant “said he wasn’t sure if he could control his behavior or not control it.” Appellant admitted to Dr. Scott that he still had “sexually oriented fantasies toward children[,]” and he masturbated to such fantasies. Dr. Scott made the general comment that “[t]here are at least 13 sets of victims,” and Dr. Jarrod Steffan, Appellant’s expert, acknowledged that there were “approximately 18 victims.”

Dr. Scott diagnosed Appellant as having “[p]edophilia, sexually attracted to both male and female children, and nonexclusive type.”4 Dr. Scott testified that this was “a deviant sexual interest[.]” Dr. Scott included the qualification of “nonexclusive” because Appellant reported having one intimate relationship with an adult while they were both incarcerated. Dr. Scott testified that pedophilia can be either a congenital or acquired condition and affects an individual’s “ability to control [his] behavior, the volitional component.” Because such behavior with a child involving oral and genital contact “virtually equates to sexually violent behavior” under Missouri law, he agreed that it is understood [487]*487as “predisposing a person to commit sexually violent offenses[.]”

Dr. Scott’s method of evaluating Appellant was known as “anchored and adjusted, or adjusted actuarial[.]” This method combined “actuarial instruments” based on “static factors” with the consideration of additional information. Dr.

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In re Sebastian
556 S.W.3d 633 (Missouri Court of Appeals, 2018)
Care & Treatment of Martin Reddig v. State
550 S.W.3d 107 (Missouri Court of Appeals, 2018)
In re Mitchell
544 S.W.3d 250 (Missouri Court of Appeals, 2017)
Underwood v. State
519 S.W.3d 861 (Missouri Court of Appeals, 2017)
Care & Treatment of Berg v. State
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In re the Care & Treatment Jones
420 S.W.3d 605 (Missouri Court of Appeals, 2013)

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Bluebook (online)
398 S.W.3d 483, 2013 WL 268644, 2013 Mo. App. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-care-treatment-of-morgan-moctapp-2013.