IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, ) Respondent, ) ) v. ) WD83120 ) WILLIAM G. CARTER a/k/a ) FILED: September 29, 2020 BILLY CARTER, ) Appellant. ) Appeal from the Circuit Court of Adair County The Honorable Gary L. Dial, Judge Before Division Four: Cynthia L. Martin, C.J., P.J., and Alok Ahuja and Edward R. Ardini, JJ. William Carter is currently involuntarily committed to the custody of the
Department of Mental Health for care and treatment at Fulton State Hospital.
Carter is committed on two separate statutory grounds: (1) pursuant to § 552.040,1
as a result of a finding in 2002 that he was not guilty of certain sex offenses by reason of mental disease or defect (an “NGRI” finding); and (2) pursuant to a finding
following a jury trial that he is a sexually violent predator under § 632.495.
Carter applied for unconditional release from his NGRI commitment. The
circuit court denied Carter’s application following an evidentiary hearing. Carter
appeals. He argues that the circuit court erred in denying his application for
unconditional release because it failed to consider that, even if he is released from
the NGRI commitment, he will remain in Department of Mental Health custody in a
1 Statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated by the 2019 Cumulative Supplement. secure facility pursuant to the separate order committing him as a sexually violent
predator.
We affirm.
Factual Background In January 2000, Carter was charged in the Circuit Court of Macon County
with forcible sodomy, kidnapping, first-degree burglary, felonious restraint, and
deviate sexual assault. The charges arose from an incident in which Carter
removed his sixteen-year-old female victim from a neighboring home, took her to his
own home, and sexually assaulted her. The case was transferred on a change of
venue to Adair County. On January 21, 2002, the circuit court accepted Carter’s
plea of not guilty by reason of mental disease or defect, and ordered that he be
committed to the custody of the Department of Mental Health for care and
treatment.
Carter applied for conditional release from Department custody less than a
month later. Following an evidentiary hearing, the circuit court denied Carter’s
application. We affirmed. State v. Carter, 125 S.W.3d 377 (Mo. App. W.D. 2004).
Although Carter contended that the circuit court’s finding that he suffered from a
mental disease or defect was not supported by substantial evidence and was against
the weight of the evidence, we held that “[a]n insanity acquittal creates a
presumption of continuing mental illness,” and that, “[a]s long as the presumption
of continuing mental illness has not been broken following an acquittal by reason of
insanity, the burden of proof need not shift to the State and remains on the insanity
acquittee to prove that he no longer has a mental disease or defect rendering him
dangerous to himself or others.” Id. at 380 (citations omitted). We held that the
circuit court, as fact-finder, could properly have disbelieved Carter’s evidence
suggesting that he no longer suffered from a mental disease or defect, and that its “finding that Mr. Carter continues to suffer from a mental disease or defect was
2 supported by substantial evidence and was not against the weight of the evidence.”
Id. at 382.
Triggered by Carter’s application for conditional release, the State evaluated
Carter and commenced a separate proceeding to have him involuntarily committed
as a sexually violent predator under § 632.495. In 2003, a jury found Carter to be a
sexually violent predator and, based on that finding, the circuit court entered a
separate judgment committing Carter to the custody of the Department of Mental
Health under § 632.495. We affirmed this judgment on appeal. In re Care and
Treatment of Carter, No. WD63327, 147 S.W.3d 872 (Mo. App. W.D. 2004) (mem.).
In June 2015, Carter filed a second application for conditional release from
his NGRI commitment. The circuit court denied Carter’s application for conditional
release as moot.
The trial court reasoned that any relief granted to Carter on his application for conditional release under section 552.040.10 would not afford him “any effectual relief” because Carter would remain civilly committed under the SVP Act. Accordingly, the trial court held that “as long as [Carter] remains a[n] SVP under civil commitment pursuant to [the SVP Act], any relief granted under Section 552 is moot.” State v. Carter, 551 S.W.3d 573, 575 (Mo. App. W.D. 2018).
We reversed. We drew an analogy between Carter’s dual commitment under
chapters 552 and 632 and a criminal defendant who is sentenced to concurrent
terms of incarceration for separate offenses. Courts have held that a defendant’s
challenge to less than all of the convictions giving rise to concurrent sentences is not
moot, since a defendant might be “‘subject . . . to disabilities and legal consequences
unique to th[e] [challenged] offense.’” Id. at 576 (quoting State v. Reynolds, 819
S.W.2d 322, 326 (Mo. 1991)). We held that the same principle should apply to
Carter’s dual commitments, and should permit him to seek release from one commitment order even while the other remained in effect. We explained that
3 Carter’s two commitment orders, and his potential release from those commitment
orders, were subject to separate statutes, having separate standards and procedural
requirements:
[c]ivil commitments pursuant to an NGRI plea and an SVP determination are each subject to statutory procedures for securing release. Conditional release from an NGRI commitment can be sought pursuant to section 552.040.10, and unconditional release can be sought from an NGRI commitment pursuant to section 552.040.5. Conditional release from an SVP commitment can be sought pursuant to section 632.498.3. In either case, the court entertaining the application is bound to consider statutory factors, subject to the standard and burden of proof specified by statute. To suggest, however, that a court can deem moot an application filed pursuant to one basis for civil commitment simply because the applicant is concurrently committed pursuant to the other basis for civil commitment is to deprive the committed person of any opportunity to secure release. A concurrently committed person must be able to start somewhere. Though Carter cannot be actually released from confinement given his concurrent SVP commitment, he is nonetheless entitled to a hearing and a determination with respect to whether grounds supporting conditional release from his NGRI commitment have been established. Id. at 576-77. We remanded the case to the circuit court for further proceedings on
Carter’s conditional-release application. Id. at 578.
On remand, Carter filed a pro se application for unconditional release from
his NGRI commitment. On March 15, 2019, the court held an evidentiary hearing
at which Carter (represented by appointed counsel) elected to proceed solely on his
application for unconditional release.
The circuit court denied Carter’s application for unconditional release on
August 15, 2019, in an eleven-page judgment containing detailed findings of fact.
The circuit court found that Carter continued to suffer from Delusional Disorder,
although the illness was in remission based on the administration of anti-psychotic
medication. The court found that, although Carter “may not be verbalizing delusional symptoms, . . . he has refused to actively participat[e] in treatment
4 groups . . . where his mental status can be evaluated by mental health
professionals.” The judgment emphasizes that the symptoms of Carter’s delusional
disorder would return if he stopped taking his medication. The court found that
Carter had “refused to take his anti-psychotic medication several times while
inpatient at DMH facilities,” and had been subjected to involuntary medication
orders in 2005, 2007, and in 2011. The court noted that Carter had discarded his
medication, and had repeatedly requested that the dosage of his medication be
reduced, reflecting “his limited insight into his need for medication for his mental
illness.” The judgment found that “if given a choice [Carter] will not take anti-
psychotic medication freely and willingly without measures in place to compel him
to do so.”
The court found that Carter’s underlying offenses were “violent crimes . . .
[which] have had a traumatic and everlasting impact on his victim.” The court
found that, “[e]xcept for November 2011 to the summer of 2013 [Carter’s] behavior
while in DMH custody has been riddled with problematic, inappropriate behavior,
and non-compliant behavior.” The court noted that Carter had “refus[ed] to engage
in treatment modalities offered to him for the last four years.” He had also
“accumulated one hundred and four problem worksheets for inappropriate behavior” in a four-month period. The court noted that Carter had repeatedly been placed on
telephone and mail restrictions, most recently for the past four years, because he
had tried to contact his victim and Department staff members at their residences,
had written threatening letters to individuals outside the facility, and had obtained
pornographic material through the mail, including “some that included sexual
violence.” The court found that “[w]hile in the custody of DMH [Carter] has on four
separate occasions become fixated on four different female staff in a manner similar
to his committing offenses.” In at least one of those cases, Carter’s inappropriate
5 behavior toward a female staff member occurred while Carter was not taking his
anti-psychotic medication.
Ultimately, the court concluded that Carter “has not met his burden of
showing by clear and convincing evidence that he would not be dangerous to himself
or others if unconditionally released.” The court found that, if released, Carter “is
likely to commit another violent crime against another person because of his mental
illness,” and “could not conform his conduct to the requirements of the law for more
than a few months.” The court found that Carter “is at a risk of reoffending and
engaging in violent behavior if not in a secure mental health facility such as the
SORTS [(Sexual Offender Rehabilitation Treatment Services)] unit” in which he
was currently housed.
Carter appeals.
Standard of Review “When we review a judgment on an application for unconditional release, we
affirm the judgment unless it is not supported by substantial evidence, it is against
the weight of the evidence, or it erroneously declares or applies the law.” Grass v.
State, 220 S.W.3d 335, 339 (Mo. App. E.D. 2007) (citing State v. Revels, 13 S.W.3d
293, 297 (Mo. 2000), in turn citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.
1976)); accord State v. Weekly, 107 S.W.3d 340, 345 (Mo. App. W.D. 2003). We
review questions of law de novo, including issues of statutory interpretation. King
v. State, 571 S.W.3d 169, 173 (Mo. App. W.D. 2019).
Discussion Carter raises two Points on appeal. First, he argues that the circuit court
failed to give proper weight to the fact that Carter will remain subject to
commitment as a sexually violent predator even if his application for unconditional
release from the NGRI commitment is granted. In his second Point, Carter argues
6 that the circuit court’s denial of his application for unconditional release is not
supported by substantial evidence.
I. In his first Point, Carter argues that the circuit court erred in denying his
application for unconditional release from NGRI commitment because it failed to
consider his concurrent commitment as a sexually violent predator.
Carter contends that statutes governing commitment as a sexually violent
predator, which currently allow only for the conditional release of a committed
individual, supersede and displace the separate statutes specifying the standards
and procedures for release from an NGRI commitment. He suggests that the
sexually violent predator and NGRI commitment statutes are in irreconcilable
conflict, and that the later-enacted sexually violent predator statutes must be
construed to impliedly repeal or amend the NGRI commitment statutes for persons
subject to both. He argues categorically that “[a]n NGRI acquittee who is also
committed as a[n] SVP poses no threat to public safety if released from the NGRI” –
apparently suggesting that the circuit court was required to grant his application
for unconditional release, as a matter of law. He asserts that, “since release from
the custody of DMH for those who are dually committed is impossible, the hearings
[on an application for unconditional release from an NGRI commitment] are empty
exercises that waste the time and resources of the court.” Carter argues that he is
subject to a “zombie NGRI commitment[ ]” in light of his concurrent commitment as
a sexually violent predator.
We reject Carter’s argument that his NGRI commitment is simply a
meaningless formality, from which the circuit court was required to release him,
because he separately satisfied the criteria for commitment as a sexually violent
predator. The fact that Carter’s actions and mental state make him subject to two different civil commitment statutes, each with its own standards and procedures,
7 does not establish an irreconcilable conflict between the two statutory schemes, or
require that one of the statutes be applied to the exclusion of the other.
“[R]epeals by implication are not favored, and if by any fair interpretation
both statutes . . . can stand, there is no repeal by implication and both should be
given effect.” Kliethermes v. City of Eldon, 972 S.W.2d 473, 476 (Mo. App. W.D.
1998) (citing Matter of Nocita, 914 S.W.2d 358, 359 (Mo. 1996)). “If two statutes
appear to conflict, we attempt to reconcile the language to give effect to both.”
Smith v. Mo. Local Gov’t Emps. Retirement Sys., 235 S.W.3d 578, 581 (Mo. App.
W.D. 2007) (citations and internal quotation marks omitted).
The NGRI statute expressly provides that its release procedures are not
displaced by other statutes. Section 552.040.3 states that certain other statutory
provisions are applicable to NGRI commitments (including certain provisions of
chapter 632). But § 552.040.3 also explicitly provides: “[n]othwithstanding any
other provision of law to the contrary, no person committed to the department of
mental health who has been tried and acquitted by reason of mental disease or
defect as provided in section 552.030 shall be conditionally or unconditionally
released unless the procedures set out in this section are followed.” (Emphasis
added.) It is frequently the case that an individual’s conduct may subject that person
to regulation under more than one statute. The fact that an individual’s actions
may subject the individual to consequences under multiple statutes does not create
ambiguity or require that one statute give way to the other. Thus, in State v. Watts,
601 S.W.2d 617 (Mo. 1980) – a case which Carter himself cites – the Missouri
Supreme Court held that there was no irreconcilable conflict between a statute
which prohibited individuals from “operat[ing] a motor vehicle while in an
intoxicated condition,” and a later-enacted statute which made it a crime to “drive a motor vehicle when the person has ten-hundredths of one percent or more by weight
8 of alcohol in his blood.” Id. at 619. The court noted that “[c]onvictions under [the
two statutes] have different effects upon the defendant’s driving privileges.” Id.
Nevertheless, the Court held that “[i]t is not enough to show that the two statutes
produce differing results when applied to the same factual situation. Rather, the
legislative intent to repeal must be manifest in the positive repugnancy between the
provisions.” Id. at 620 (quoting United States v. Batchelder, 442 U.S. 114, 122
(1979) (other citations and internal quotation marks omitted)). “This Court has
long recognized that when an act violates more than one criminal statute, the
Government may prosecute under either so long as it does not discriminate against
any class of defendants.” Id. (quoting Batchelder, 442 U.S. at 123).
Similarly, in State v. Ondo, 232 S.W.3d 622 (Mo. App. S.D. 2007), this Court
held that there was no conflict between a criminal statute which classified the
defendant’s conduct as domestic assault in the second degree (because he caused
physical injury “by choking” his victim), and another statute which defined the
same actions as domestic assault in the third degree (for “recklessly caus[ing]”
physical injury).
The fact that another statute proscribes the same conduct does not create an ambiguity. It is axiomatic that a single offense may constitute an offense under two different statutes. When that occurs, the prosecutor has the discretion to decide under which statute to charge the defendant. The fact that two statutes which proscribe substantially the same conduct carry a different category of crime and punishment does not eliminate the prosecutor's discretion to charge the defendant under the statute with harsher punishment. Id. at 629 (citations and internal quotation marks omitted); accord, State v.
Edwards, 579 S.W.3d 249, 257-58 (Mo. App. E.D. 2019).
This is the result we reached in Carter’s prior appeal. In that case, the
circuit court dismissed Carter’s application for conditional release from his NGRI
commitment using essentially the same reasoning that Carter advocates now: that Carter’s NGRI commitment was essentially meaningless as a legal matter because
9 he was also subject to commitment as a sexually violent predator. We reversed. As
explained in our factual statement above, in Carter’s prior appeal we found that
civil commitment on the basis that a defendant is not guilty by reason of a mental
disease or defect, and civil commitment on the basis that the defendant is a sexually
violent predator, are subject to different statutory standards, and that the court
addressing an application for release must apply the statutory provisions applicable
to the particular form of commitment at issue. State v. Carter, 551 S.W.3d 573, 576-
77 (Mo. App. W.D. 2018). We remanded Carter’s case to the circuit court, so that it
could apply the standards for conditional release from an NGRI commitment found
in § 552.040.10. Id. at 577-78. If Carter’s current argument were meritorious, we
would not have remanded for further proceedings in the prior appeal, but would
instead have directed the circuit court to enter a judgment unconditionally releasing
Carter from his NGRI commitment. The fact that we did not order the entry of
judgment for Carter in the prior appeal is necessarily inconsistent with the
argument he makes now.
Notably, Carter’s current arguments are the opposite of the argument he
made in his prior appeal. In this appeal, Carter argues “that the trial court
misapplied the law in disregarding the SVP commitment, specifically, that the SVP commitment effectively removed any concern for public safety from the decision.”
But this is exactly the opposite of the argument Carter made in the prior appeal. In
that case, Carter argued:
[T]here is nothing in any of the language of section 552.040 RSMo which makes its operation and the relief it affords applicable only to a NGRI committee who is not also committed as an SVP; indeed, neither the term “sexually violent predator” nor any reference to the SVP act appear anywhere in the whole of section 552.040 RSMo. ....
10 . . . Nowhere in section 552.040.12 RSMo is the committing court directed to give its attention to whether the NGRI committed person is also committed as an SVP. .... . . . Carter suggests that SVP proceedings in the probate court authorized by Chapter 632 can have no bearing whatsoever on NGRI proceedings in the committing court separately authorized by Chapter 552, including conditional release applications under section 552.040 RSMo; the release proceedings in the respective statutes make no reference to each other, and neither statute is dependent on or subservient to the other. They are separate and distinct statutes and must be treated as such. Appellant’s Br. at 17, 19, State v. Carter, No. WD80992 (filed Jan. 8, 2018)
(emphasis added). Carter previously argued that the fact that he was also
committed as a sexually violent predator “can have no bearing whatsoever” on his
application for release from NGRI commitment. Yet he now argues that the circuit
court committed reversible error by evaluating his application for release from his
NGRI commitment separately from his sexually violent predator commitment –
exactly what he previously argued was required.
In the current appeal, Carter essentially agrees with the conclusion the
circuit court had reached before the first appeal – that Carter’s NGRI commitment
is essentially a meaningless formality without legal effect, because of his concurrent
commitment as a sexually violent predator. Whereas the circuit court previously
held that the mootness of the NGRI commitment justified the dismissal of Carter’s
application for conditional release, Carter now argues that the mootness of his
NGRI commitment justifies the court in summarily vacating that commitment
order. Carter now essentially agrees that the NGRI commitment is moot; he simply
advocates a different remedy to address that purported mootness.
We reject Carter’s flip-flopping, and adhere to our decision in his prior
appeal: his application for release from NGRI commitment is governed by the provisions of chapter 552 establishing the standards, and procedures, for release
11 from such a commitment. These standards and procedures are unaffected by the
fact that Carter has also been committed to Department of Mental Health custody
as a sexually violent predator. We reject Carter’s first Point, which argues that the
statutory provisions governing release from NGRI commitment were wholly
displaced in Carter’s case by the statutes governing commitment of sexually violent
predators.
II. In his second Point, Carter argues that the circuit court’s denial of his
application for unconditional release was not supported by substantial evidence.
Section 552.040 governs conditional and unconditional releases from an
NGRI commitment. Section 552.040.5 permits “[t]he committed person . . . [to] file
an application . . . seeking an order releasing the committed person
unconditionally.” Section 552.040.7 sets forth the factors the circuit court must
consider in deciding an application for unconditional release, “in addition to any
other relevant evidence”:
(1) Whether or not the committed person presently has a mental disease or defect; (2) The nature of the offense for which the committed person was committed; (3) The committed person’s behavior while confined in a mental health facility; (4) The elapsed time between the hearing and the last reported unlawful or dangerous act; (5) Whether the person has had conditional releases without incident; and (6) Whether the determination that the committed person is not dangerous to himself or others is dependent on the person’s taking drugs, medicine or narcotics. Additionally, § 552.040.9 requires that, before ordering an unconditional release, the court find that the committed person “does not have, and in the
12 reasonable future is not likely to have, a mental disease or defect rending the
person dangerous to the safety of himself or others.” Finally, § 552.040.20 specifies
that an individual committed in connection with the commission of a dangerous
felony (like Carter)
[s]hall not be eligible for conditional or unconditional release . . . unless, in addition to the requirements of this section, the court finds that the following criteria are met: (1) Such person is not now and is not likely in the reasonable future to commit another violent crime against another person because of such person’s mental illness; and (2) Such person is aware of the nature of the violent crime committed against another person and presently possesses the capacity to appreciate the criminality of the violent crime against another person and the capacity to conform such person’s conduct to the requirements of law in the future. § 552.040.20.
The statute provides that “[t]he burden of persuasion . . . shall be on the
party seeking unconditional release to prove by clear and convincing evidence that
the person for whom unconditional release is sought does not have, and in the
reasonable future is not likely to have, a mental disease or defect rendering the
person dangerous to the safety of himself or others.” § 552.040.7.
Carter’s second Point assumes that the circuit court’s adverse judgment had
to be supported by substantial evidence, in a case in which he bore the burden of
proof. That is not the law.
When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party's uncontradicted or uncontroverted evidence. If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party. Generally, the party not having the burden of proof on an issue need not offer any evidence concerning it. [¶] Consequently, substantial evidence supporting a judgment against the party with the burden of proof is not required or necessary.
13 Adoption of K.M.W., 516 S.W.3d 375, 382 (Mo. App. S.D. 2017) (citations and
internal quotation marks omitted); see also, e.g., Koeller v. Malibu Shores Condo.
Ass’n, 602 S.W.3d 283, 287 (Mo. App. S.D. 2020); Maly Com. Realty, Inc. v. Maher,
582 S.W.3d 905, 911 (Mo. App. W.D. 2019). Because Carter bore the burden of proof
to establish, by clear and convincing evidence, that he met the standards for
unconditional release, the circuit court was not required to have substantial
evidence to support its judgment against him – it could simply find his evidence not
to be persuasive.
In any event, as described in our fact statement above, the circuit court’s
judgment made detailed findings concerning: Carter’s current mental health; his
need for (and resistance to taking) anti-psychotic medication; his refusal to
participate in therapy offered to him; his repeated and troubling conduct violations
while committed; and his dangerousness, and likelihood of reoffense, if released.
Carter does not challenge the evidentiary basis for any of these findings – even
though they led the circuit court to conclude that Carter did not satisfy any of the
criteria for an unconditional release.
Instead of challenging the evidentiary basis for the circuit court’s findings,
Carter’s second Point essentially repeats the argument from his first Point – that he necessarily satisfied the criteria for an unconditional release from his NGRI
commitment because, if he won such a release, he would remain in the Department
of Mental Health’s custody pursuant to his separate commitment as a sexually
violent predator. We have rejected that argument as a legal proposition in § I,
above. We reject it as a factual proposition also.
It bears emphasis that, although Carter is currently confined in a secure
facility as a result of his commitment as a sexually violent predator, that
confinement is not necessarily permanent or immutable. Carter is entitled to seek conditional release from his commitment as a sexually violent predator pursuant to
14 § 632.505. (Presumably, Carter intends to seek such a conditional release if and
when he obtains a conditional or unconditional release from his NGRI
commitment.) Carter’s claim that there is a “[c]ertainty of [his] continuing
confinement in the secure environment of the SORTS program,” even if he is
unconditionally released from his NGRI commitment, is inaccurate. Because
Carter’s confinement based on his commitment as a sexually violent predator is
subject to change, the circuit court was fully justified in refusing to rely on Carter’s
continuing confinement as a basis to fully and permanently release him from his
NGRI commitment.2
Point II is denied.
Conclusion We affirm the judgment of the circuit court, which denied Carter’s application
for unconditional release from his NGRI commitment.
Alok Ahuja, Judge All concur.
2 It may be that, in determining whether Carter would present a danger of reoffense if released from NGRI commitment, the circuit court was required to consider the extensive and restrictive conditions to which Carter would be subject if he were later to be conditionally released from commitment under the sexually violent predator statutes. See § 632.505; King v. State, 571 S.W.3d 169 (Mo. App. W.D. 2019). Carter does not make that argument here, and we do not address it.