In the Missouri Court of Appeals Western District IN THE MATTER OF THE CARE ) AND TREATMENT OF ERIC HELM ) A/K/A ERIC T. HELM A/K/A ERIC ) WD85477 THOMAS HELM, ) ) OPINION FILED: Appellant, ) DECEMBER 12, 2023 ) v. ) ) STATE OF MISSOURI, ) ) Respondent. )
Appeal from the Circuit Court of Clay County, Missouri The Honorable David P. Chamberlain, Judge
Before Division Three: Lisa White Hardwick, Presiding Judge, Karen King Mitchell, Judge and Cynthia L. Martin, Judge
Eric Helm ("Helm") appeals from the trial court's judgment finding him to be a
sexually violent predator ("SVP") and committing Helm to the custody of the Missouri
Department of Mental Health. Helm asserts that the trial court abused its discretion in
admitting documents from his parole file and in allowing his parole officer to testify
about her supervision of Helm. Helm also claims that he received ineffective assistance of counsel because trial counsel failed to object to his parole officer's opinions about
Helm's risk to the community. Finding no error, we affirm.
Factual and Procedural Background
Helm pleaded guilty to one count of sodomy in July 1993 and was sentenced to
twenty-five years' incarceration in the Missouri Department of Corrections. In
anticipation of his release from the Department of Corrections, the State filed a petition
alleging Helm to be an SVP pursuant to the sexually violent predator act ("SVP Act")1 on
June 29, 2017. An SVP is "any person who suffers 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 and who . . . [h]as pled guilty or been found guilty in this
state or any other jurisdiction . . . of a sexually violent offense." Section 632.480(5)(a).
Sodomy is a sexually violent offense. See section 632.480(4). After a two-day trial, a
jury returned a verdict finding that Helm is an SVP, and the trial court entered a judgment
in accordance with the jury's verdict. Helm does not challenge that the evidence admitted
at trial supports the conclusion that he is an SVP. Viewed in the light most favorable to
the jury's verdict, 2 that evidence was as follows:
In March 1986, Helm was alone with a nine-year-old girl ("Victim 1") in his car.
Helm exposed his penis to Victim 1 and then told her to climb on his lap. Victim 1 sat on
1 Sections 632.480-632.525. All statutory references are to RSMo 2016, as supplemented through June 29, 2017, unless otherwise indicated. 2 We view the facts in the light most favorable to the jury's verdict, disregarding all contrary evidence and inferences drawn therefrom. In re Care & Treatment of Derby v. State, 557 S.W.3d 355, 359 n.3 (Mo. App. W.D. 2018). 2 Helm's lap, facing the same direction as Helm so that her back was against his chest.
Helm touched Victim 1's chest and asked her to touch his penis by "working it up and
down." Helm then rubbed his penis on Victim 1's genitals. Victim 1's older sister
approached the car and saw Helm zipping up his pants but did not see Victim 1 in the car
and then went back inside the home. Helm's sexual touching of Victim 1 resumed.
Victim 1's mother realized that Victim 1 was still outside, and asked Victim 1's older
sister to go outside to get her. Victim 1's sister then saw Victim 1 in the vehicle with
Helm. When police officers interviewed Helm in connection with this incident, Helm
said, "young girls do turn me on sexually" and told the police that Victim 1 "does things
sexual to try to turn me on." Helm explained that, when he refers to "young girls," he
means girls fifteen and younger. Helm received probation for this offense.3
Almost immediately following the March 1986 offense, Helm sought mental
health treatment. Helm spoke about his behavior during treatment, characterizing himself
as "a timebomb, waiting to explode" and remarking that he was "getting really scared
about what [he] might do" and that "the temptations are getting stronger." Helm was
ultimately discharged from the mental health treatment facility for engaging in "sexually
inappropriate behavior" with women in treatment at the facility.
Six years later, in the summer of 1992, police received reports that Helm was
loitering at a playground. A few days after the school year ended, Helm began spending
every day at the playground and would be there from "sun-up to sundown." According to
3 The record on appeal does not indicate the specific crime of which Helm was charged and convicted in connection with this offense. 3 two girls, ages nine and ten, who were interviewed by police about Helm's presence at the
playground, Helm wore very short shorts with no underwear so that his genitals were
exposed and spoke with children about sexual acts. When children confronted Helm
about what he was wearing, Helm acted like it was "no big deal" not to wear underwear.
Helm was not convicted of any crimes in connection with this behavior.
In August 1992, Helm victimized two other girls, a six-year-old girl ("Victim 2")
and a four-year-old girl ("Victim 3"). Victim 2's mother witnessed Helm touch Victim
2's genitals while Victim 2 was in a tent with Helm, and witnessed Victim 2 touching
Helm's genitals. Victim 2 reported to police that Helm touched her "right in the privates"
and that "he wouldn't quit." Victim 2 stated that Helm touched her genitals more than
five times. On at least one of those occasions, Victim 2 was wearing a bathing suit, and
Helm stuck his finger into Victim 2's bathing suit and felt her genitals. With respect to
Victim 3, Helm "pinched her on the arm, bit her on the back and touched . . . her
privates" on four occasions. Victim 3 reported to police that she told Helm to stop, but he
refused. Helm pleaded guilty to sodomy for his actions with Victim 2 and was sentenced
to twenty-five years' incarceration, but Helm was not convicted of any crimes for his
actions with Victim 3.
There were no reports of Helm engaging in any sexually inappropriate behavior
during the first eleven years of his incarceration. However, in 2004, Helm received a
conduct violation for having "copious amounts of inappropriate drawings" that depicted
nude or partially clothed prepubescent girls in sexually explicit poses. Helm received
conduct violations for possessing these types of drawings in 2004, 2005, 2006, and 2007.
4 In January 2008, Helm began attending the Missouri Sex Offender Treatment
Program ("MOSOP") within the Department of Corrections.4 Successful completion of
the MOSOP program renders an offender eligible for consideration for early release.5 In
February 2008, Helm was once again found to have drawings of nude children in his
possession. Nevertheless, Helm completed the first phase of MOSOP in May 2008. In
July 2008 and March 2009, Helm once again possessed drawings of nude children. Helm
eventually began the second phase of MOSOP during which participants receive
treatment tailored to their individual risk factors. Each participant learns about the
"sexual deviant cycle," including the participant's triggers, how to remove themselves
from a triggering situation, and how to prevent themselves from acting on their deviant
sexual interest.
During the second phase, Helm was confronted by fellow offenders attending
MOSOP on two occasions. A fellow offender confronted Helm about continuing to
possess drawings of nude children. Helm had given another offender a cookbook, and
the fellow offender found several drawings of nude females in the cookbook. During the
confrontation, Helm maintained that he had tried to erase the drawings several years
earlier in an attempt to reuse the paper and did not realize that the drawings were still
4 MOSOP is a "program of treatment, education, and rehabilitation for all imprisoned offenders who are serving sentences for sexual assault offenses," the goal of which is "the prevention of future sexual assaults by the participants in such programs." Section 589.040.1. 5 See section 589.040.2 ("All persons imprisoned by the department of corrections for sexual assault offenses shall be required to successfully complete [MOSOP] prior to being eligible for parole or conditional release."). 5 visible on the paper. Helm later attempted to flush the drawings down the toilet. On
another occasion, fellow offenders confronted Helm about "objectifying" an underage
female who was on television, requiring the fellow offenders to turn the television off so
that Helm would stop.
Despite these reports, Helm completed MOSOP in September 2010. In August
2012, Helm received a conditional release from prison. The Department of Corrections
placed Helm on parole and sent Helm to the Kansas City Conditional Release Center,
where he lived for five months while being supervised by a parole officer. Helm failed to
meet several conditions of his parole, including obtaining a job and entering a sex
offender treatment program. Moreover, Helm's parole officer observed Helm loitering in
a park with other sex offenders. In January 2013, while still on parole, Helm was found
to have over 120 drawings of nude or partially clothed children, consistent with the
drawings Helm possessed while incarcerated.
Helm's parole was revoked in 2013, and he was returned to the Department of
Corrections. In July 2017, while incarcerated and while the State's petition in the instant
case was pending, Helm was found with additional nude drawings of children.
A jury trial was held in February 2022. A certified forensic examiner and
psychologist employed by the Missouri Department of Mental Health ("certified forensic
examiner") testified about her SVP evaluation of Helm. The certified forensic examiner
reviewed at least 5,000 pages of records relating to Helm, interviewed Helm, and
6 evaluated Helm's risk for reoffending based on actuarial assessment tools.6 The certified
forensic examiner concluded based on a reasonable degree of psychological certainty that
Helm suffers from a "mental abnormality,"7 namely pedophilic disorder, that renders him
more likely than not to engage in a predatory act of sexual violence so that he must be
confined to a secure facility.
During the certified forensic examiner's testimony, the State offered twenty
drawings that were confiscated from Helm during either his incarceration in the
Department of Corrections or while he was at the Kansas City Conditional Release
Center. Prior to offering the drawings into evidence and anticipating objections from
Helm, the State approached the bench. The State informed the trial court that the twenty
drawings it would be seeking to enter into evidence were business records that were part
of either Helm's Department of Corrections file or Helm's probation and parole file, and
that Helm admitted that he either drew the twenty drawings or that they were in his
possession during a search of his belongings. Helm objected to admission of the
drawings that were a part of his probation and parole file. He argued that section 559.125
renders all information and data obtained by a parole officer privileged and not
admissible in any court. The trial court overruled the objection, reasoning that section
632.510, as construed by In re Care & Treatment of Derby v. State, 557 S.W.3d 355 (Mo.
6 The actuarial assessments tools used by the certified forensic examiner were the Static-99R, the Static-2002R, and the Stable-2007. 7 A "mental abnormality" is "a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." Section 632.480(2). 7 App. W.D. 2018), creates an exception to the privilege described in section 559.125.
Accordingly, the drawings were admitted into evidence.
Helm's parole officer testified at trial. Helm's parole officer testified that she holds
a bachelor's degree in social psychology, a master's degree in communication, and a
"partial doctorate" in psychology; that she has published a book in the field of
criminology, particularly case studies of various offenders, including sex offenders; and
she has worked as a probation and parole officer for the Missouri Department of
Corrections for over twenty years, including eight to ten years in the sex offender unit.
Helm's parole officer testified that she has provided testimony in approximately four or
five SVP proceedings.
At that point, and before the parole officer was asked any specific questions about
Helm, Helm objected to the parole officer's testimony, once again arguing that section
559.125 rendered her anticipated testimony about Helm's conduct while on parole
privileged and inadmissible. Helm also argued that pursuant to section 549.500, all
documents prepared and data obtained by a parole officer during supervision of an
offender are privileged and cannot be directly or indirectly disclosed to anyone. The trial
court again overruled Helm's objection. Helm's parole officer proceeded to testify about
Helm's behavior while on parole, and specifically about his noncompliance with the
terms of his parole.
Helm's parole officer also testified about Helm's risk to the safety and security of
the community:
8 Research shows, and it's just based on my experience, that if you're not compliant with your conditions [of parole], you're at a higher [risk] to violate those conditions and create victims if you're a sex offender or a violent offender.
....
. . . I monitored his employment because employment is a big component of success if you're a sex offender, so that you can remain stable in the community.
. . . I was becoming increasingly concerned that [Helm] posed a safety risk to the community by refusing to get employment, refusing to comply with the conditions such as mental health treatment. . . .
[After 200 drawings were confiscated while Helm was on parole,] I had him taken immediately into custody . . . because at that time he's fantasizing about his victims, not going to mental health treatment, not going to sex offender treatment, drawing pictures of small children in various stages of undress, performing sexually acts. And I knew he was an imminent risk to the safety and security of the community. . . .
In the final end, [Helm] posed an [imminent] risk to the safety and security of the community because he refused to get employment, he refused to go to sex offender treatment, although the state would provide it, the funding. He refused to take mental health medication or go to mental health appointments and meet with a psychiatrist. He refused even to seek employment or go to the resources that I requested him to go. . . . But at the end, he just posed a risk to the safety and security of the community, especially as he was fantasizing about drawing children.
Although Helm's attorney had objected generally at the beginning of the parole officer's
testimony on the basis that statutory privileges prohibited the parole officer from
disclosing information obtained during her supervision of Helm's parole, Helm's attorney
did not further object to the parole officer's testimony involving opinions or impressions
that Helm posed a risk to the community.
9 Helm presented the testimony of his pastor about Helm's religious journey and the
testimony of a competing expert witness as to Helm's risk of reoffending. After
deliberating for 90 minutes, the jury returned its verdict finding that Helm is an SVP.
The trial court entered its written judgment and commitment order ("Judgment")
on February 16, 2022. The Judgment determined that Helm is a sexually violent
predator, and ordered him to be kept in a secure facility and "committed to the custody of
the director of the Department of Mental Health for control, care and treatment until such
time as [Helm's] mental abnormality has so changed that he is safe to be at large."
Helm filed a timely motion for judgment notwithstanding the verdict or, in the
alternative, motion for new trial ("motion for new trial"). The motion for new trial
asserted that the trial court committed error in admitting drawings from Helm's probation
and parole file, and in allowing Helm's parole officer to testify, because that evidence and
testimony was privileged and inadmissible pursuant to sections 559.125 and 549.500.
The trial court denied the motion for new trial.
Helm appeals.
Analysis
Helm presents three points on appeal. Helm's first point on appeal challenges the
trial court's admission of drawings confiscated from Helm while he was on parole.
Helm's second point on appeal challenges the trial court's admission of his parole officer's
testimony regarding her supervision of Helm while on parole. Helm's final point on
appeal asserts that he received ineffective assistance of counsel because trial counsel
10 failed to object when his parole officer testified about her opinion that Helm presented a
risk to the community because it was not proper expert testimony.
Points One and Two: The Trial Court Did Not Err in Admitting Drawings and Testimony Gathered During or Related to Helm's Parole
Helm's first and second points on appeal are addressed together because they
collectively challenge the admission of drawings and testimony relating to Helm's time
on parole on the basis that such evidence is privileged and inadmissible pursuant to
sections 549.500 and 559.125.2.8
The trial court enjoys "considerable discretion" in the decision to admit or exclude
evidence. In re Care & Treatment of Ballard, 667 S.W.3d 219, 222 (Mo. App. S.D.
2023). Accordingly, we review the trial court's decision to admit evidence for abuse of
8 Though twenty drawings were admitted at trial, some were confiscated from Helm when he was incarcerated at the Department of Corrections. Helm did not object at trial, and does not claim on appeal, that the drawings confiscated during his incarceration were privileged or inadmissible. Yet, in his first point on appeal, Helm makes no effort to identify which, or how many, of the twenty admitted drawings he claims were privileged and inadmissible because they were confiscated while he was on parole. On that basis alone, we could deny the first point on appeal, as Helm has not crafted a point relied on that "[i]dentif[ies] the trial court ruling or action that the appellant challenges" as required by Rule 84.04(d)(1). Moreover, Helm's lack of specificity results in a fatal defect in Helm's contention that "drawings" in his probation and parole file where erroneously admitted to his prejudice. At worst, the drawings in Helm's probation and parole file were cumulative of admissible drawings confiscated while Helm was incarcerated, and of substantial other testimonial evidence about incidents where similar drawings had been found in Helm's possession over the years during his incarceration. "A party cannot be prejudiced by the admission of allegedly inadmissible evidence if the challenged evidence is merely cumulative to other evidence admitted without objection." Linton by & through Linton v. Carter, 634 S.W.3d 623, 630 (Mo. banc 2021) (quoting Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 134 (Mo. banc 2007)). All Rule references are to Missouri Supreme Court Rules (2023), unless otherwise indicated. 11 discretion. Id. A trial court abuses its discretion when its "ruling is clearly against the
logic of the circumstances then before the court and is so unreasonable and arbitrary that
it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Id.
(quoting In re Care & Treatment of Stiles, 662 S.W.3d 322, 331 (Mo. App. S.D. 2023)).
Moreover, reversal is only appropriate if the trial court's error "materially affected the
merits of the action." Id. (quoting In re Care & Treatment of Stiles, 662 S.W.3d at 331).
Helm correctly observes that sections 549.500 and 559.125.2 create a privilege
protecting against the disclosure of parole records, information, and data. Section
549.500 provides:
All documents prepared or obtained in the discharge of official duties by any member or employee of the board of probation and parole shall be privileged and shall not be disclosed directly or indirectly to anyone other than members of the board and other authorized employees of the department [of corrections] pursuant to section 217.075.9 The board may at its discretion permit the inspection of the report or parts thereof by the offender or his attorney or other persons having a proper interest therein.
Section 559.125.2 provides:
Information and data obtained by a probation or parole officer shall be privileged information and shall not be receivable in any court. Such information shall not be disclosed directly or indirectly to anyone other than the members of the parole board and the judge entitled to receive reports, except the court or the board may in its discretion permit the inspection of the report, or parts of such report, by the defendant, or offender, or his or her attorney or other person having a proper interest therein.
9 Section 217.075 declares offender records as public records and then sets forth exceptions, none of which are relevant in the instant case. 12 However, section 632.510 describes an exception to these (and other) statutory privileges
that is applicable to SVP proceedings. It states:
In order to protect the public, relevant information and records which are otherwise confidential or privileged shall be released to the . . . attorney general for the purpose of meeting the notice requirement provided in section 632.483 or 632.484 and determining whether a person is or continues to be a sexually violent predator.
Section 632.510.
Helm acknowledges that section 632.510 permits documents and information that
is otherwise privileged pursuant to sections 549.500 and 559.125.2 to be released to the
attorney general for the purpose of determining whether a person is an SVP, but asserts
that the exception does not contemplate the admission of privileged documents,
information, or data into evidence during an SVP proceeding. An indistinguishable
argument was raised and rejected in In re Care & Treatment of Derby v. State, 557
S.W.3d 355 (Mo. App. W.D. 2018).
In In re Care & Treatment of Derby, two expert witnesses testified that Derby met
the statutory definition of an SVP, and in doing so, relied on and testified about
statements Derby made to treatment providers. Id. at 360, 367. Derby claimed that
statements he made to treatment providers were privileged pursuant to section 337.540,10
10 Section 337.540 provides, "[a]ny communication made by any person to a licensed professional counselor in the course of professional services rendered by the licensed professional counselor shall be deemed a privileged communication." The statutory definition of licensed professional counselor encompasses "any person who offers to render professional counseling services to individuals, groups, organizations, institutions, corporations, government agencies or the general public for a fee, monetary or otherwise, implying that the person is trained, experienced, and licensed in counseling, and who holds a current, valid license to practice counseling." Section 337.500(5). 13 and that the statements were thus inadmissible during the SVP trial because, although the
exception created by section 632.510 permits the release of privileged or confidential
information and records to the attorney general, the exception does not extend to
admission of the privileged or confidential information and records in an SVP trial. Id. at
367-68. We soundly rejected this argued interpretation of section 632.510. We
explained:
Derby's strained interpretation of section 632.510 is inconsistent with its plain language, which specifically permits otherwise privileged information and records to be used "for the purpose of . . . determining whether a person is or continues to be a sexually violent predator." Moreover, section 632.489.4 provides that the psychiatrist or psychologist conducting an examination "shall have access to all materials provided to and considered by the multidisciplinary team[,]" which includes, pursuant to section 632.483.2(2), "[d]ocumentation of institutional adjustment and any treatment received or refused, including the Missouri sexual offender program[.]" The Missouri Supreme Court has made clear that "[s]ection 632.510's mention of providing 'relevant information and records' with an intent to 'protect the public' demonstrates that the SVP Act intends that a thorough assessment of an alleged offender's history and likelihood to reoffend be considered when making the case for his commitment as an SVP." In re Tyson, 249 S.W.3d 849, 853 (Mo. banc 2008). The narrow interpretation of section 632.510 proffered by Derby is inconsistent with the language and purpose of the waiver, irreconcilable with other provisions in the SVP Act permitting the use of this information by others in assessing whether an individual meets the definition of a sexually violent predator, and would inhibit the fact-finder from being presented a complete picture of the person's mental condition.
Id. at 368.
In re Care & Treatment of Derby is controlling here. Helm nonetheless attempts
to distinguish In re Care & Treatment of Derby by arguing that "[section] 559.125.2
contains more specific language than [section] 337.540" because section 559.125.2
provides that information and data obtained by a parole officer is both privileged and not
14 receivable in court, whereas section 337.540 merely provides that communications with a
licensed professional counselor are privileged. [Appellant's Brief, p. 24]
This is a distinction without meaning or import. This court's conclusion that the
exception to statutory privileges for SVP proceedings described in section 632.510
plainly authorizes the admission of otherwise privileged or confidential evidence in an
SVP trial was neither controlled nor limited by statutory language creating or describing
the underlying privilege. Instead, the conclusion reached in In re Care & Treatment of
Derby was controlled by the rule of statutory construction which required this court to
"ascertain the intent of the legislature from the language used [in section 632.510], . . .
giv[ing] effect to the intent if possible, and . . . consider[ing] the words in their plain and
ordinary meaning." In re of Care & Treatment of Derby, 557 S.W.3d at 368 (quoting In
re of Care & Treatment of Norton, 123 S.W.3d 170, 172 (Mo. banc 2003)). It is thus
immaterial that section 337.540 and section 559.125.2 use different language to describe
the extent of the statutory privilege therein created. Regardless, the exception set forth in
section 632.510 permits otherwise privileged or confidential information to be admitted
into evidence during an SVP trial.
Accordingly, the trial court did not abuse its discretion in admitting into evidence
drawings confiscated from Helm while he was on parole, or in permitting testimony from
Helm's parole officer about her supervision of Helm while he was on parole.
Helm's first and second points on appeal are denied.
15 Point Three: Helm Has Failed to Demonstrate That He Received Ineffective Assistance of Counsel
Helm's third point on appeal asserts that he received ineffective assistance of
counsel because trial counsel failed to object to his parole officer's opinion testimony that
Helm posed a risk to the community. Helm asserts that a reasonably competent attorney
would have objected to the parole officer's testimony because she was not properly
qualified as an expert witness to opine about an ultimate issue in the case, and because
her opinion was not based on well recognized standards. Helm requests that we either
reverse and remand for a new trial, or remand for an evidentiary hearing to further
develop the facts regarding his claim of ineffective assistance of counsel.
The SVP Act gives an offender alleged to be an SVP the right to counsel. See
section 632.489.3(1) (providing that the offender has a right to be represented by counsel
at a hearing to determine whether probable cause exists to believe that the person named
in the petition is an SVP); section 632.492 (providing that an offender accused of being
an SVP has a right to counsel "[a]t all stages of the proceedings," and that if an offender
is indigent, "the court shall appoint counsel to assist" the offender). Moreover, our
Supreme Court has consistently held that "civil commitment in SVP proceedings
impinges on the SVP's fundamental liberty interest and so is protected by due process."
In re Care & Treatment of Grado v. State, 559 S.W.3d 888, 895 (Mo. banc 2018) (citing
In re Care & Treatment of Coffman, 225 S.W.3d 439, 445 (Mo. banc 2007); In re
Treatment & Care of Bernat v. State, 194 S.W.3d 863, 868 (Mo. banc 2006); In re Care
& Treatment of Norton, 123 S.W.3d 170, 173 (Mo. banc 2003)). In re Care & Treatment
16 of Grado recognized that "an SVP's due process right to counsel in SVP proceedings
would be hollow were there no accompanying requirement counsel be effective." 559
S.W.3d at 896.
While the right to counsel in SVP proceedings is statutorily guaranteed and is
protected by due process, the SVP Act does not describe a mechanism for an offender to
assert that he was deprived of the right to effective assistance of counsel. In re Care &
Treatment of Haggerman v. State, 637 S.W.3d 697, 700 (Mo. App. W.D. 2021).
Accordingly, In re Care & Treatment of Grado held that an SVP may raise a claim of
ineffective assistance of counsel on direct appeal from the SVP proceeding if the "alleged
errors can be determined through review of the appellate record." 559 S.W.3d at 898. In
re Care & Treatment of Grado did not, however, decide the proper analytical framework
for evaluating claims of ineffective assistance of counsel in an SVP proceeding, and
instead concluded that this issue "must be left for another day" because, in that case, the
offender would not have been entitled to relief under either a "meaningful hearing" or
Strickland11 standard. Id. Accordingly, Missouri courts analyze claims of ineffective
assistance of counsel in SVP proceedings pursuant to two possible standards: the
meaningful hearing standard used in termination of parental rights proceedings and the
Strickland standard employed in post-conviction proceedings. In re Care & Treatment of
D.N., 598 S.W.3d 108, 121 (Mo. banc 2020). Before doing so, however, our courts must
first determine that the claim raised may be determined based on the appellate record, or
11 Strickland v. Washington, 466 U.S. 668 (1984). 17 whether remand for an evidentiary hearing is required because the appellate record is
insufficient to determine the merits of the claim. In re Care & Treatment of Haggerman,
637 S.W.3d at 701.
Helm claims that he did not receive a "full and fair trial with the meaningful
opportunity to be heard because the ultimate issue was tainted and distorted by an
incorrect standard" used by his parole officer--her personal experience.12 [Appellant's
Brief, p. 36] Helm asserts that section 490.065, which governs the admissibility of expert
testimony in all proceedings before the probate division,13 does not allow expert
testimony as to the ultimate issue in an SVP proceeding to be based on personal
experience. Helm claims that his parole officer's testimony led the jury "to believe that
drawing inappropriate pictures created an 'imminent' risk that [he] would commit another
sexually violent offense." [Appellant's Brief, p. 36]
Helm's claim of ineffective assistance of counsel is of a nature that can be
determined on our present record without remanding for an evidentiary hearing. We thus
address the merit of Helm's ineffective assistance of counsel claim employing both of the
potentially applicable standards for doing so.
"Under a meaningful hearing standard, the 'meaningful hearing' is not evaluated on
a step-by-step basis but instead represents meaningful opportunity to participate and be
heard in the entire judicial process." In re Care & Treatment of D.N., 598 S.W.3d at 122;
12 For the purpose of resolving this point on appeal, we need not decide whether Helm's parole officer was testifying as a fact witness or as an expert witness. 13 Section 632.486 provides that an SVP petition may be filed "in the probate division of the circuit court in which the person was convicted." 18 see also In re Care & Treatment of Haggerman, 637 S.W.3d at 701-02 ("A review of the
record reveals that [the offender] is not entitled to relief under the 'meaningful hearing'
standard, as he plainly received a meaningful hearing, despite his waiver of a jury trial.
[The offender] received a full and fair trial, wherein the State presented the evidence
supporting its petition for civil commitment, and [the offender's] counsel cross-examined
the State's witnesses and presented evidence on [the offender's] behalf, including [the
offender's] own testimony."). Here, Helm's counsel was an active participant before,
during, and after trial in that his counsel filed pretrial motions; objected to testimony and
evidence, including the parole officer's testimony regarding her supervision of Helm
while on parole; cross-examined the State's witnesses, including the parole officer;
presented evidence on Helm's behalf; and filed a motion for new trial. While Helm's trial
attorney did not raise the specific objection about which Helm now complains, it cannot
be said that this "failure" deprived Helm of a meaningful hearing. See In re Care &
Treatment of D.N., 598 S.W.3d at 122 (holding that "[o]n the entirety of the proceeding,
any failure by counsel to object to the qualifications of the end-of-confinement report
author did not deprive [o]ffender of a meaningful hearing"). That conclusion is
particularly appropriate given that the jury heard unopposed testimony from the certified
forensic examiner that Helm's drawings of nude and partially clothed children constituted
"putting [himself] into a place" to commit another offense against a child and thus the
drawings were part of Helm's deviant sexual cycle. Helm's parole officer's testimony,
even if presumed to have been offered as expert testimony, was merely cumulative of
19 other evidence admitted without objection at trial, and did not deprive Helm of a
meaningful hearing.
Helm's claim of ineffective assistance of counsel fails under the Strickland
standard for the same reason. The Strickland standard, which is used in criminal post-
conviction proceedings, requires an offender to show by a preponderance of the evidence
that "(1) his or her counsel failed to exercise the level of skill and diligence that a
reasonably competent counsel would in a similar situation, and (2) he or she was
prejudiced by that failure." In re Care & Treatment of Grado, 559 S.W.3d at 898
(quoting Mallow v. State, 439 S.W.3d 764, 768-69 (Mo. banc 2014)). The Strickland
standard thus requires proof both that counsel's performance was deficient and that, but
for counsel's deficient performance, the result of the proceeding would have been
different. In re Care & Treatment of Grado, 559 S.W.3d at 898. The failure to prove
either prong is fatal to a claim of ineffective assistance of counsel. See C.R.B. v. Juv.
Officer, 673 S.W.3d 135, 140 (Mo. App. W.D. 2023) (recognizing that, in a claim of
ineffective assistance of counsel in juvenile certification proceedings, if the juvenile fails
to demonstrate the prejudice prong, there is no need to address the performance prong
because the juvenile's claim fails).
Helm asserts that "[t]here is a reasonable probability that if [his] counsel would
have objected, then [he] would not be found to be a sexually violent predator" because
the suggestion of the parole officer's testimony was that if she "had not stopped him [after
Helm was discovered to have drawings of children in various stages of undress], . . .
Helm would have offended again." [Appellant's Brief, p. 36] This assertion ignores the
20 certified forensic examiner's testimony regarding the drawings, and her testimony that, to
a reasonable degree of psychological certainty, Helm met the statutory definition of an
SVP in that he has a mental abnormality that renders Helm more likely than not to engage
in predatory acts of sexual violence if not confined in a secure facility. The testimony
from Helm's parole officer regarding his likelihood of reoffending was at best
cumulative. Under Strickland, "[c]ounsel's failure to object to cumulative evidence, even
where the trial court would have sustained the objection, does not result in prejudice."
Hendricks v. State, 663 S.W.3d 875, 889 (Mo. App. E.D. 2023) (quoting Lusk v. State,
655 S.W.3d 230, 238 (Mo. App. E.D. 2022)).
The record demonstrates that Helm's claim that he received ineffective assistance
of counsel is without merit.
Helm's third point on appeal is denied.
Conclusion
The Judgment is affirmed.
__________________________________ Cynthia L. Martin, Judge
All concur