Roeling v. State

880 So. 2d 1234, 2004 WL 1919571
CourtDistrict Court of Appeal of Florida
DecidedAugust 30, 2004
Docket1D03-1658
StatusPublished
Cited by17 cases

This text of 880 So. 2d 1234 (Roeling v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roeling v. State, 880 So. 2d 1234, 2004 WL 1919571 (Fla. Ct. App. 2004).

Opinion

880 So.2d 1234 (2004)

Robert ROELING, Appellant,
v.
STATE of Florida, Appellee.

No. 1D03-1658.

District Court of Appeal of Florida, First District.

August 30, 2004.

*1236 Nancy A. Daniels, Public Defender; M. Lilja Dandelake, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

WEBSTER, J.

Appellant seeks review following the entry of a "Final Order of Adjudication and Order of Commitment" adjudging him to be a "sexually violent predator" within the meaning of section 394.912(10), Florida Statutes (2002) (a part of what is commonly referred to as the "Jimmy Ryce Act"), and committing him to the custody of the Department of Children and Family Services for control, care and treatment in a secure facility pursuant to section 394.917(2), Florida Statutes (2002). He argues that the trial court should have (1) excluded expert opinion testimony regarding his propensity to commit acts of sexual violence in the future which was based in part on use of risk-assessment instruments because those "instruments have not gained general acceptance among psychiatrists, psychologists, and other mental health professionals and their use is limited to only a few psychologists who are attempting to predict sexual offense recidivism"; and (2) granted his motion for directed verdict because the state failed to carry its burden of proof on the element of lack of volitional control. We affirm as to the second argument without further discussion because it is clear that the argument was not preserved and, even if preserved, the evidence was more than sufficient to permit the jury to find as it did on the element of lack of volitional control. We also affirm as to the first argument because we conclude that the use of risk-assessment instruments in this case satisfied the requirements of Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

I.

The state filed a petition to have appellant declared a "sexually violent predator" as that term is defined in section 394.912(10), Florida Statutes. Appellant responded with a "Motion To Exclude Testimony Regarding Risk Prediction," raising a Frye challenge to anticipated expert psychological opinion testimony regarding future dangerousness and risk prediction based in part on actuarial instruments such as the Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR), the Static-99 (developed from the RRASOR), the Violence Risk Appraisal Guide (VRAG), the Sex Offender Risk Appraisal Guide (SORAG), the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) and the Sexual Violent Risk-20 (SVR-20). Appellant's motion was consolidated with those of 32 others for purposes of the Frye hearing.

At the Frye hearing, the parties presented the live testimony of two expert witnesses regarding the use of risk-assessment instruments as a tool in arriving at opinions as to an individual's propensity to commit acts of sexual violence in the future. The depositions of four additional experts were also received in evidence, all without objection. The testimony established that risk-assessment instruments are based on empirically derived actuarial data, resulting from years of research, that identify characteristics and the likelihood that one will reoffend based on the presence or absence of such characteristics. The trial court subsequently entered an order denying the motions seeking to exclude the expert testimony. In its order, the trial court said:

Based on the testimony received in evidence, this Court finds that the [state] has sufficiently established that *1237 the actuarial instruments used in Respondents' evaluations, as part of the assessment of their risk of recidivism, are supported by a clear majority of the members of the relevant scientific community, and are based on scientific principles that are sufficiently established to have gained general acceptance in the relevant field.... Furthermore, this Court finds that the testimony concerning the use of the actuarial instruments in Respondents' assessments will assist the jury in understanding the evidence before it.

During appellant's ensuing jury trial, four psychologists testified. All were of the opinion that appellant was highly likely to reoffend. Three of the four testified that they had used one or more commonly used risk-assessment instruments as one tool in arriving at their opinions. The risk assessments used included RRASOR, Static-99 and MnSOST-R. The jury unanimously found that appellant met the criteria for involuntary commitment pursuant to the Jimmy Ryce Act, and the trial court entered its order of adjudication and commitment. This appeal follows.

II.

Initially, the state argues that use of risk-assessment instruments as a tool in arriving at opinions as to an individual's propensity to commit acts of sexual violence in the future need not pass the Frye test because it is in the nature of the "pure opinion testimony" which our supreme court has recognized need not pass the Frye test, citing Flanagan v. State, 625 So.2d 827 (Fla.1993), and Hadden v. State, 690 So.2d 573 (Fla.1997). The state also points out that a number of other jurisdictions that have considered this question have concluded that this type of testimony is not "novel scientific evidence" and, therefore, Frye testing is unnecessary. See, e.g., In re Detention of Thorell, 149 Wash.2d 724, 72 P.3d 708 (2003); State v. Fields, 201 Ariz. 321, 35 P.3d 82 (Ct.App. 2001); Garcetti v. Superior Court, 102 Cal. Rptr.2d 214 (Ct.App.2000), rev'd on other grounds sub nom. Cooley v. Superior Court, 29 Cal.4th 228, 127 Cal.Rptr.2d 177, 57 P.3d 654 (2003); In re Commitment of Stevens, 345 Ill.App.3d 1050, 281 Ill.Dec. 415, 803 N.E.2d 1036 (2004); In re Detention of Holtz, 653 N.W.2d 613 (Iowa Ct. App.2002); Commonwealth v. Dengler, 843 A.2d 1241 (Pa.Super.Ct.2004). We are unable to agree with this argument.

In the first place, the state did not make this argument in the trial court. Moreover, it seems to us that the use of risk-assessment instruments is more akin to the use of "sexual offender profiles" at issue in Flanagan and the use of the "child sexual abuse accommodation syndrome" at issue in Hadden than to "pure opinion testimony," as that term was used in those two cases. In Flanagan, the court held that expert opinion testimony based in part on "sexual offender profiles" must meet the Frye test (625 So.2d at 828); and in Hadden, the court reached the same conclusion regarding expert opinion testimony based in part on the "child sexual abuse accommodation syndrome." 690 So.2d at 574-75. Accordingly, based on Flanagan and Hadden, we conclude that expert opinion testimony regarding an individual's propensity to commit acts of sexual violence in the future that is based in part on the use of risk-assessment instruments must pass the Frye test.

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880 So. 2d 1234, 2004 WL 1919571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roeling-v-state-fladistctapp-2004.