WILLIAM RAY PRICE, JR., Judge.
Richard Wheeler and John Van Orden previously were convicted of sexually violent offenses. Because of their previous convictions, the state filed a petition for civil commitment of Van Orden and Wheeler as sexually violent predators pursuant to section 632.480 et seq.1 The court, in the ease of Wheeler, and the jury, in the case of Van Orden, found that they met the definition of a “sexually violent predator” by clear and convincing evidence pursuant to section 632.495, and judgment was entered ordering then1 commitment.
Van Orden and Wheeler appeal them respective judgments on several grounds. [582]*582They both argue that section 632.4952 is unconstitutional because due process requires that the state prove that a person meets the definition of a “sexually violent predator” beyond a reasonable doubt. They also both argue, although for different reasons, that the state failed to strictly comply with the terms of section 632.483.13 in the civil commitment proceedings. Van Orden argues separately that the trial court erred in failing to define “clear and convincing evidence” in the jury instructions as well as in admitting testimony about the results of the Static-99 actuarial instrument.
Because Wheeler and Van Orden challenge the validity of section 632.495, this Court has exclusive jurisdiction pursuant to article V, section 3, of the Missouri Constitution.
The provision requiring the burden of proof of clear and convincing evidence in section 632.495 is constitutional, and the phrase “clear and convincing evidence” is not required to be defined in the jury instructions. Van Orden and Wheeler fail to show that the state did not comply with section 632.483.1 or that the trial court abused its discretion in admitting the testimony on the Static-99. The judgments are affirmed.
I. FACTS
A. Richard Wheeler
Richard Wheeler was born in 1947. Wheeler has a history of sexually violent behavior, usually involving children. In 1967, Wheeler was charged with sodomy for allegedly molesting his nine-year-old male cousin and was admitted to Fulton State Hospital. Four years later, in 1971, he was charged with molesting a minor child, a four-year-old female who lived in his neighborhood, and was sentenced to one year in jail. In 1981, Wheeler was convicted of first-degree sexual abuse of an adult woman and was sentenced to two years in prison with five years probation. Wheeler’s wife subsequently filed for dissolution of marriage, asserting as a basis that Wheeler sexually abused their son.
In 1996, Wheeler pleaded guilty to first-degree sexual misconduct involving an eleven-year-old boy and received two years probation. A year later, in April 1997, Wheeler was convicted of first-degree statutory sodomy involving a four-year-old boy [583]*583and was sentenced to ten years. During this period of incarceration, Wheeler continually refused sex offender treatment and continued to engage in sexually offending behaviors. Prior to his release, the psychologist for the department of corrections conducted an end of confinement review to determine if Wheeler met the definition of a “sexually violent predator.” During the review process, the psychologist requested and received information from the attorney general. After determining that Wheeler may meet the criteria, she sent notice to the attorney general, and he filed a petition for commitment.
At the probable cause hearing, Wheeler filed a motion to dismiss based on the state’s failure to strictly comply with the statutory procedure in section 632.483.1 because the psychologist contacted the attorney general prior to completing the end of confinement review. The court overruled the motion and ordered a psychiatric evaluation. Prior to trial, Wheeler filed a motion to declare the 2006 amendment to section 632.495 unconstitutional because it reduced the burden of proof from beyond a reasonable doubt to clear and convincing evidence. The court overruled the motion and a bench trial was held. The court found that Wheeler met the definition of a “sexually violent predator” and ordered commitment.
B. John Van Orden
John Van Orden was born in 1962. In 1987, Van Orden pleaded guilty to sexual misconduct for his sexual contact with his sixteen-year-old niece and received two years unsupervised probation. In 1992, Van Orden was convicted of first-degree sexual abuse for the abuse of his five-year-old daughter. He was sentenced to four years, and his parental rights were terminated based upon this abuse and the abuse of his four-year-old son. While incarcerated, Van Orden attended a sex offender treatment program but terminated treatment in the second phase.
In 1998, he was convicted of first-degree child molestation for abuse of a four-year-old female and was sentenced to seven years. Van Orden completed the first two phases of sex offender treatment and was released on parole in 2004, at which time he stopped attending treatment. Van Or-den violated the conditions of his parole and was returned to prison. He was released on parole a second time and was arrested on September 6, 2005 for violating its conditions, including consuming alcohol and receiving unsuccessful termination from sex offender treatment. Van Orden was transported to the Fulton Reception and Diagnostic Center.
On October 5, 2005, the department of corrections sent written notice to the attorney general that Van Orden may meet the definition of a “sexually violent predator.” The state filed its petition for Van Orden’s commitment on October 14, 2005. The board of probation and parole issued an order of revocation on October 20, 2005.
The court found probable cause and ordered a formal hearing. Van Orden filed a motion to dismiss the petition, arguing that the state failed to strictly comply with section 632.483.1 because the petition was filed prior to the revocation of parole. The trial court overruled the motion and ordered a psychiatric evaluation. Van Or-den, similarly to Wheeler, filed a motion to declare the 2006 amendment to section 632.495 unconstitutional because it reduced the burden of proof from beyond a reasonable doubt to clear and convincing evidence. The trial court overruled the motion.
A jury trial was held in May 2007. The state’s evidence included the testimony of Dr. Mandraechia, a psychologist, who diagnosed Van Orden with pedophilia and anti[584]*584social personality disorder and found that he was more likely than not to reoffend if not committed. He based this assessment on the results of the Static-99 actuarial test, which measures a person’s likelihood of reoffending, as well as his own assessment of Van Orden’s risk factors, including anti-social personality disorder, alcoholism, offense pattern of sexually deviant behavior, and the fact that he offended while under supervision.
At the instruction conference, Van Or-den objected to the burden of proof on the basis that “clear and convincing evidence” should be defined. Specifically, Van Or-den argued that the instruction should include:
Clear and convincing evidence means that you are clearly convinced of the affirmative of the proposition to be proved. This does not mean that there may not be contrary evidence ...
Free access — add to your briefcase to read the full text and ask questions with AI
WILLIAM RAY PRICE, JR., Judge.
Richard Wheeler and John Van Orden previously were convicted of sexually violent offenses. Because of their previous convictions, the state filed a petition for civil commitment of Van Orden and Wheeler as sexually violent predators pursuant to section 632.480 et seq.1 The court, in the ease of Wheeler, and the jury, in the case of Van Orden, found that they met the definition of a “sexually violent predator” by clear and convincing evidence pursuant to section 632.495, and judgment was entered ordering then1 commitment.
Van Orden and Wheeler appeal them respective judgments on several grounds. [582]*582They both argue that section 632.4952 is unconstitutional because due process requires that the state prove that a person meets the definition of a “sexually violent predator” beyond a reasonable doubt. They also both argue, although for different reasons, that the state failed to strictly comply with the terms of section 632.483.13 in the civil commitment proceedings. Van Orden argues separately that the trial court erred in failing to define “clear and convincing evidence” in the jury instructions as well as in admitting testimony about the results of the Static-99 actuarial instrument.
Because Wheeler and Van Orden challenge the validity of section 632.495, this Court has exclusive jurisdiction pursuant to article V, section 3, of the Missouri Constitution.
The provision requiring the burden of proof of clear and convincing evidence in section 632.495 is constitutional, and the phrase “clear and convincing evidence” is not required to be defined in the jury instructions. Van Orden and Wheeler fail to show that the state did not comply with section 632.483.1 or that the trial court abused its discretion in admitting the testimony on the Static-99. The judgments are affirmed.
I. FACTS
A. Richard Wheeler
Richard Wheeler was born in 1947. Wheeler has a history of sexually violent behavior, usually involving children. In 1967, Wheeler was charged with sodomy for allegedly molesting his nine-year-old male cousin and was admitted to Fulton State Hospital. Four years later, in 1971, he was charged with molesting a minor child, a four-year-old female who lived in his neighborhood, and was sentenced to one year in jail. In 1981, Wheeler was convicted of first-degree sexual abuse of an adult woman and was sentenced to two years in prison with five years probation. Wheeler’s wife subsequently filed for dissolution of marriage, asserting as a basis that Wheeler sexually abused their son.
In 1996, Wheeler pleaded guilty to first-degree sexual misconduct involving an eleven-year-old boy and received two years probation. A year later, in April 1997, Wheeler was convicted of first-degree statutory sodomy involving a four-year-old boy [583]*583and was sentenced to ten years. During this period of incarceration, Wheeler continually refused sex offender treatment and continued to engage in sexually offending behaviors. Prior to his release, the psychologist for the department of corrections conducted an end of confinement review to determine if Wheeler met the definition of a “sexually violent predator.” During the review process, the psychologist requested and received information from the attorney general. After determining that Wheeler may meet the criteria, she sent notice to the attorney general, and he filed a petition for commitment.
At the probable cause hearing, Wheeler filed a motion to dismiss based on the state’s failure to strictly comply with the statutory procedure in section 632.483.1 because the psychologist contacted the attorney general prior to completing the end of confinement review. The court overruled the motion and ordered a psychiatric evaluation. Prior to trial, Wheeler filed a motion to declare the 2006 amendment to section 632.495 unconstitutional because it reduced the burden of proof from beyond a reasonable doubt to clear and convincing evidence. The court overruled the motion and a bench trial was held. The court found that Wheeler met the definition of a “sexually violent predator” and ordered commitment.
B. John Van Orden
John Van Orden was born in 1962. In 1987, Van Orden pleaded guilty to sexual misconduct for his sexual contact with his sixteen-year-old niece and received two years unsupervised probation. In 1992, Van Orden was convicted of first-degree sexual abuse for the abuse of his five-year-old daughter. He was sentenced to four years, and his parental rights were terminated based upon this abuse and the abuse of his four-year-old son. While incarcerated, Van Orden attended a sex offender treatment program but terminated treatment in the second phase.
In 1998, he was convicted of first-degree child molestation for abuse of a four-year-old female and was sentenced to seven years. Van Orden completed the first two phases of sex offender treatment and was released on parole in 2004, at which time he stopped attending treatment. Van Or-den violated the conditions of his parole and was returned to prison. He was released on parole a second time and was arrested on September 6, 2005 for violating its conditions, including consuming alcohol and receiving unsuccessful termination from sex offender treatment. Van Orden was transported to the Fulton Reception and Diagnostic Center.
On October 5, 2005, the department of corrections sent written notice to the attorney general that Van Orden may meet the definition of a “sexually violent predator.” The state filed its petition for Van Orden’s commitment on October 14, 2005. The board of probation and parole issued an order of revocation on October 20, 2005.
The court found probable cause and ordered a formal hearing. Van Orden filed a motion to dismiss the petition, arguing that the state failed to strictly comply with section 632.483.1 because the petition was filed prior to the revocation of parole. The trial court overruled the motion and ordered a psychiatric evaluation. Van Or-den, similarly to Wheeler, filed a motion to declare the 2006 amendment to section 632.495 unconstitutional because it reduced the burden of proof from beyond a reasonable doubt to clear and convincing evidence. The trial court overruled the motion.
A jury trial was held in May 2007. The state’s evidence included the testimony of Dr. Mandraechia, a psychologist, who diagnosed Van Orden with pedophilia and anti[584]*584social personality disorder and found that he was more likely than not to reoffend if not committed. He based this assessment on the results of the Static-99 actuarial test, which measures a person’s likelihood of reoffending, as well as his own assessment of Van Orden’s risk factors, including anti-social personality disorder, alcoholism, offense pattern of sexually deviant behavior, and the fact that he offended while under supervision.
At the instruction conference, Van Or-den objected to the burden of proof on the basis that “clear and convincing evidence” should be defined. Specifically, Van Or-den argued that the instruction should include:
Clear and convincing evidence means that you are clearly convinced of the affirmative of the proposition to be proved. This does not mean that there may not be contrary evidence ... For evidence to be clear and convincing it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and your mind is left with unabiding conviction that the evidence is true.
The trial court overruled the objection and submitted the instructions to the jury without the additional language. The jury found that Van Orden was a sexually violent predator. Judgment of commitment was entered.
II. ANALYSIS
A. The Sexually Violent Predator Commitment Proceedings
Section 632.480 et seq. provides the procedure for civil commitment of sexually violent predators. To qualify for commitment as a sexually violent predator, the person must have either pleaded guilty or been found guilty by reason of a mental disease or defect of a sexually violent offense or have been committed as a criminal psychopath pursuant to section 632.475. Section 632.480(5). The person also must be found to suffer from “a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.” Id.
If the person is currently in the custody of the department of mental health or the department of corrections, the proceedings for commitment begin prior to the person’s release. Section 632.483. The psychologist completes an end of confinement review and sends written notice to the attorney general and the multidisciplinary team if the person may meet the definition of a “sexually violent predator.” Id. If the multidisciplinary team and the prosecutorial review committee confirm that finding, the attorney general files a petition for commitment. Section 632.486.
The court will determine if probable cause exists and hold a formal hearing. Section 632.489. If the probable cause determination is made, the court orders a psychiatric evaluation and holds a trial sixty days after the evaluation. Section 632.489.4. The person may request a jury trial and has a right to counsel at all stages of the proceeding. Section 632.492.
Section 632.495(1) provides that the court or jury “shall determine whether, by clear and convincing evidence, the person is a sexually violent predator.” Prior to the 2006 amendment, the court or jury was required to find that the person is a sexually violent predator beyond a reasonable doubt.
B. Constitutionality of Section 632.495
Van Orden and Wheeler argue that section 632.495 is unconstitutional because due process requires the state to prove they are subject to commitment beyond a [585]*585reasonable doubt.4 They argue that the proceedings affect a fundamental liberty interest because the proceedings may subject them to indefinite commitment. Further, they argue that it is feasible for the state to meet this burden of proof because many other states with similar commitment proceedings require it.
Due process requires the use of a burden of proof that “reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.” Jamison v. State, Dept. of Social Sevas., 218 S.W.3d 399, 411 (Mo. banc 2007). In the usual civil litigation, the burden of proof is preponderance of the evidence because private interests predominate; therefore, the litigants share the risk of error equally. See Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). In civil cases that involve a fundamental right or liberty, due process lessens the risk of an erroneous decision by requiring proof by clear and convincing evidence. Id. at 424, 99 S.Ct. 1804. In criminal proceedings, because of the implication on the defendant’s liberty interest, the state has the burden of persuading the factfin-der of guilt beyond a reasonable doubt, a burden that imposes almost the entire risk of error on the state. See In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
The Supreme Court of the United States found that clear and convincing evidence was an appropriate burden of proof in civil commitment proceedings. Addington, 441 U.S. at 432-33, 99 S.Ct. 1804. The Court specifically found that proof beyond a reasonable doubt was not constitutionally required because the state was not exercising its power in a punitive sense and the continuing opportunities for review minimized the risk of error. Id. at 427-31, 99 S.Ct. 1804. The Court also questioned the feasibility of meeting the higher burden because of the uncertainties of psychiatric diagnosis. Id. The Court found that the precise burden, whether clear and convincing evidence or beyond a reasonable doubt, was a matter of state law. Id. at 433, 99 S.Ct. 1804.
Whether a beyond a reasonable doubt or cleai1 and convincing evidence burden of proof is utilized to commit sexually violent predators is a matter of legislative prerogative. See Addington, 441 U.S. at 433, 99 S.Ct. 1804. Although the proceedings involve a liberty interest, they are civil proceedings. The purpose of the proceedings is to determine whether the person suffers from a mental abnormality that makes the person more likely than not to engage in predatory acts if not confined. The commitment of those who meet these criteria not only furthers the state interest of protecting society, but also provides them with necessary treatment. The statutory requirements and procedures effectively minimize the risk of an erroneous commitment by requiring the person to have a previous conviction of a sexually violent offense and to undergo psychiatric evaluations. The person is afforded many of the same rights of a criminal defendant, including a formal probable cause hearing, the right to a jury trial, the right to an attorney, and the right to appeal.
[586]*586Further, if commitment is ordered, the term of commitment is not indefinite. A person committed as a sexually violent predator receives an annual review to determine if the person’s mental abnormality has so changed that commitment is no longer necessary. Section 632.498. The court reviews this report, and even if release is not recommended, the person may file a petition for release with the court at any time. Id.
Missouri’s law for the civil commitment of sexually violent predators constitutionally may utilize the clear and convincing evidence burden of proof. Section 632.495, as amended, is constitutional.5
C. Jury Instructions
Van Orden also argues that the burden of proof of clear and convincing evidence must be defined in the jury instructions and that the trial court abused its discretion in rejecting his proposed jury instructions. The decision to submit a definitional instruction is in the sound discretion of the trial court. See DeWitt v. Am. Family Mut. Ins. Co., 667 S.W.2d 700, 711 (Mo. banc 1984). Rule 70.02(b) provides that the instructions should be “simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” Legal or technical words occurring in the instructions should be defined, but the meaning of ordinary words used in their usual or conventional sense need not be defined. See Huff v. Union Elec. Co., 598 S.W.2d 503, 510 (Mo.App.1980). Further, a short, simple instruction on the burden of proof is preferred. See Mochar Sales Co. v. Meyer, 373 S.W.2d 911, 915 (Mo.1964).
“Clear and convincing evidence” requires no further defining. The words are commonly used and readily understandable, and the phrase provides the jury with sufficient instruction on the applicable burden of proof. The additional phrases offered by Van Orden only would increase the possibility of confusion and complicate the instructions. The trial court did not abuse its discretion in rejecting Van Or-den’s proposed jury instructions.
D. Compliance with Section 632.483.1
Van Orden and Wheeler argue that the trial court erred in each case in overruling them motions to dismiss because the state failed to strictly comply with section 632.483.1.
Van Orden argues that the state filed its petition prematurely because section 632.483.1 only permits the state to file the petition if parole is formally revoked.
Section 632.483.1 says nothing about the timing for filing the petition for commitment. Instead, it addresses when the agency in jurisdiction must send written notice to the attorney general that a person in its custody may meet the criteria for a sexually violent predator. This section indirectly affects the filing of the petition only because the attorney general’s office cannot file until it receives notice from the agency in jurisdiction.
[587]*587Section 632.48B.1 provides that if the person has been previously convicted of a sexually violent offense, written notice should be sent to the attorney general 360 days prior to the person’s release. Id. However, a separate notice procedure is followed for those who committed sexually violent offenses but have been released on parole, providing that
... in the case of persons who are returned to prison for no more than one hundred eighty days as a result of revocation of postrelease supervision, written notice shall be given as soon as practicable following the person’s readmission to prison ...
The plain language of the statute does not state that parole must be formally revoked before the agency in jurisdiction can begin the review process for civil commitment. Rather, it is the person’s “readmission to prison” that triggers the agency’s duty to begin the determination if the person may meet the requirements of the statute and send written notice to the attorney general.
The purpose of this provision is to ensure timely notice is given to the attorney general and the multidisciplinary team to determine if civil commitment proceedings should be initiated. Allowing the agency in jurisdiction to begin their assessment at the earliest opportunity gives the most effect to this purpose.
Van Orden has shown no prejudice resulting from the date of filing of the petition or from the written notice requirements. Van Orden’s point is denied.
Wheeler argues that the state violated section 632.483.1 because the psychologist for the department of corrections contacted the attorney general before completing the end of confinement evaluation. The psychologist requested information from the attorney general’s office and received additional police records pertaining to Wheeler’s sexual assault of the eleven-year-old boy.
The plain language of the statute does not restrict the contact between the attorney general and the agency with jurisdiction prior to the completion of the assessment and recommendation. Section 632.483.1 only provides the time limits for when the agency in jurisdiction must send written notice to the attorney general to begin the civil commitment process.
The record reveals no impropriety concerning the contact between the psychologist and the attorney general or any prejudice resulting from it. The psychologist could have received this information from many other sources, and the information was' cumulative and consistent with the other records reviewed to complete the report. Wheeler’s point is denied.
E. Admissibility of Static-99
Lastly, Van Orden argues that the trial court abused its discretion in admitting, over his objection, testimony about the results of the Static-99 actuarial instrument because the instrument only predicts group risk, not individual risk, and this will confuse the jury.
The trial court’s decision to allow evidence at trial is reviewed for an abuse of discretion. See In the Matter of the Care and Treatment of Murrell, 215 S.W.3d 96, 109 (Mo. banc 2007). The Court addressed the same argument regarding the admissibility of testimony as to the results of the Static-99 in Murrell. The Court found that the testimony was admissible pursuant to section 490.065.3 in cases involving the civil commitment of a sexually violent predator so long as the instrument is used in conjunction with a full clinical evaluation. Id. at 110-114.
[588]*588The trial court did not abuse its discretion in admitting the results of the Static-99. Dr. Mandracchia did not rely solely on the instrument to support the belief that Van Orden has a high risk of reconviction of a sexually violent offense, but conducted an independent review of his risk factors, including anti-social personality disorder, alcoholism, offense pattern of sexually deviant behavior, and the fact that he offended while under supervision.
III. CONCLUSION
The judgments are affirmed.
STITH, C.J., RUSSELL and BRECKENRIDGE, JJ., concur.
COOK, Sp.J., concurs in separate opinion filed.
WOLFF, J., concurs in opinion of COOK, Sp.J.
TEITELMAN, J., dissents in separate opinion filed.
FISCHER, J., not participating.