In re Treatment P.L.

561 S.W.3d 62
CourtMissouri Court of Appeals
DecidedAugust 21, 2018
DocketNo. ED 105930
StatusPublished
Cited by1 cases

This text of 561 S.W.3d 62 (In re Treatment P.L.) 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 Treatment P.L., 561 S.W.3d 62 (Mo. Ct. App. 2018).

Opinion

ROBERT G. DOWD, JR., Judge

The State appeals from the judgment dismissing its petition to civilly commit P.L. as a sexually violent predator. We reverse and remand.

The State filed a petition asserting that P.L. met the criteria for civil commitment under Missouri's Sexually Violent Predator Act ("SVPA"). See Sections 632.480 RSMo, et seq. The State predicated its petition on P.L.'s conviction for attempted sexual assault on a child in Colorado, P.L, moved to *64dismiss the petition on the ground that the Colorado offense did not meet the definition of "sexually violent offense" in the SVPA because it was not substantially similar to the Missouri offenses listed therein. See Section 632.480(4). The court took up the motion to dismiss at the probable cause hearing, held pursuant to Section 632.489, at which the State also presented the testimony of a psychologist regarding P.L.'s mental health. The trial court concluded that, as a matter of law, the Colorado offense did not constitute a sexually violent offense under the SVPA and dismissed the petition. The court did not, therefore, make any determinations about P.L.'s mental health. This appeal follows.

The SVPA provides for confinement of a person found to be a "sexually violent predator," one who has committed a sexually violent offense and suffers from a mental abnormality that makes it more likely than not he or she will engage in predatory acts of sexual violence if not confined. See Section 632.480(5). The SVPA does not impose punishment, but is instead rehabilitative, Holtcamp v. State, 259 S.W.3d 537, 539-40 (Mo. banc 2008). "The law seeks, above all else, the protection of society against a particularly noxious threat: sexually violent predators." Id. To be found a sexually violent predator the State must show that P.L. pled or was found guilty-in this State or any other jurisdiction-of a sexually violent offense. Section 632.480(5). A "sexually violent offense" is defined as follows:

the felonies of rape in the first degree, forcible rape, rape, statutory rape in the first degree, sodomy in the first degree, forcible sodomy, sodomy, statutory sodomy in the first degree, or an attempt to commit any of the preceding crimes, or child molestation in the first, second, third, or fourth degree, sexual abuse, sexual abuse in the first degree, rape in the second degree, sexual assault, sexual assault in the first degree, sodomy in the second degree, deviate sexual assault, deviate sexual assault in the first degree, or the act of abuse of a child involving either sexual contact, a prohibited sexual act, sexual abuse, or sexual exploitation of a minor, or any felony offense that contains elements substantially similar to the offenses listed above.

Section 632.480(4) (emphasis added).

The Colorado offense to which P.L. pled guilty and on which the State relies here-attempted sexual assault on a child-is a "felony offense" in Colorado. See Colo. Rev. Stat. Section 18-3-405. Thus, the only question here is whether it "contains elements substantially similar to" one of the enumerated sexually violent offenses in Section 632.480(4). No Missouri court has construed this "catchall language." This statutory construction question of first impression is strictly a matter of law, and we review the question de novo, giving no deference to how the trial court resolved it. See In re Gormon, 371 S.W.3d 100, 104 (Mo. App. E.D. 2012). The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to the intent if possible and to consider the words in their plain and ordinary meaning. Holtcamp, 259 S.W.3d at 540. This Court gives broad effect to the language in the SVPA to effectuate the legislative purpose. Id. The SVPA is remedial and therefore "should be construed so as to meet the cases that are clearly within the spirit or reason of the law, or within the evil which it was designed to remedy, provided such interpretation is not inconsistent with the language used, resolving all reasonable doubts in favor of applicability of the statute to the particular case." Id. at 540 (emphasis added).

*65The plain and ordinary meaning of "contains elements substantially similar to" indicates that the legislature intended there be a high degree of likeness between the elements of the predicate offense on which the State relies and one of the enumerated offenses in Section 632.480(4). "Similar," as defined in relevant part by our courts' dictionary of choice, is "having characteristics in common," "very much alike" and "alike in substance or essentials." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2120 (2002). In the SVPA, the legislature indicated that more than just similarity is required; the similarly must be substantial, meaning "considerable" and to a "large degree." Id. at 2280. Thus, the elements of the predicate offense must have considerable characteristic in common with and be, to a large degree, very much alike in substance and essentials to one of the enumerated sexually violent offenses. Importantly, by its plain terms, the legislature only requires that the elements of the two offenses being compared be substantially similar. The legal term "elements" refers only to those "constituent parts of a crime" that the prosecution must prove to sustain a conviction, typically consisting of an actus reus, mens rea and causation. BLACK'S LAW DICTIONARY (10th ed. 2014).

The elements of attempted sexual assault on a child in Colorado are knowingly taking a substantial step toward sexual contact with a person less than fifteen years old where the actor is at least four years older than the victim. See Colo. Rev. Stat. Section 18-3-405 and Section 18-2-101. "Sexual contact" is defined in Colorado as the touching of intimate parts, or the clothing covering intimate parts, for the purposes of sexual arousal, gratification or abuse. Colo. Rev. Stat. Section 18-3-401(4). "Intimate parts" means the "external genitalia or the perineum or the anus or the buttocks or the pubes or the breast." Colo. Rev. Stat. Section 18-3-401 (2). In lay terms, this offense prohibits both skin-to-skin touching and over-the-clothes touching, but not penetration.

The State argues that this Colorado offense contains elements substantially similar to attempted statutory sodomy in the first degree in Missouri, one of the specifically enumerated sexually violent offenses in the SVPA. See

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561 S.W.3d 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-treatment-pl-moctapp-2018.