COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Raphael UNPUBLISHED
Argued at Lexington, Virginia
STEPHEN MILLARD MEMORANDUM OPINION* BY v. Record No. 0820-23-3 JUDGE MARY GRACE O’BRIEN MAY 21, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY C. Randall Lowe, Judge
Matthew B. Crum for appellant.
(Jason S. Miyares, Attorney General; M. Nicole Wittman, Deputy Attorney General; Susan Barr, Senior Assistant Attorney General; Jessica P. Preston, Assistant Attorney General, on brief), for appellee.
Stephen Millard appeals the trial court’s judgment that he remains a sexually violent
predator under Code § 37.2-910. He argues that the finding was not supported by “clear and
convincing evidence based on the totality of the record.” Because there is evidence in the record to
support the trial court’s ruling that Millard remains a sexually violent predator and the trial court’s
judgment was not plainly wrong, we affirm.
BACKGROUND
“In accordance with established principles of appellate review, we view the facts in the light
most favorable to the Commonwealth, the prevailing party below,” and “accord the Commonwealth
the benefit of all inferences fairly deducible from the evidence.” Shivaee v. Commonwealth, 270
Va. 112, 127 (2005).
* This opinion is not designated for publication. See Code § 17.1-413(A). Millard was convicted of raping his cousin’s 12-year-old daughter in 1994. Before his
release from prison, the Commonwealth petitioned to civilly commit Millard under the Sexually
Violent Predators Act, Code §§ 37.2-900 to -921. The trial court adjudicated Millard a sexually
violent predator on February 17, 2011, but released him subject to his compliance with the terms of
a conditional release plan on May 20, 2011.
Approximately eight months later, in January 2012, Millard violated the terms of his
conditional release by ignoring GPS monitoring requirements and using illicit substances. The trial
court revoked Millard’s conditional release and committed him to the custody of the Department of
Behavioral Health and Developmental Services for inpatient treatment.
After an annual review hearing in 2014, the trial court found that Millard remained a
sexually violent predator but met the criteria for conditional release. The trial court again released
Millard in 2015 subject to his compliance with the terms of a new conditional release plan. Six
months later, Millard violated the conditions of his release by using synthetic drugs, possessing cell
phones with pornographic material, and failing to report to probation. The trial court returned him
to the Department’s custody for inpatient treatment.
During an April 2021 annual review hearing, Dr. Ray Ramirez, a licensed clinical
psychologist, testified that he had reviewed Millard’s treatment records and evaluations and opined
that Millard remained a sexually violent predator. Dr. Ramirez diagnosed Millard with “lifetime”
antisocial personality disorder, which is characterized by “a pervasive pattern of disregard for, and
violation of, the rights [of] others.” After considering Millard’s admission that he committed rape
because he was “horny” and “didn’t care who it was [who] triggered his desire to offend,”
Dr. Ramirez concluded that the disorder had contributed to Millard’s underlying offenses.
Moreover, Dr. Ramirez testified that the disorder rendered it difficult for Millard to “control[] his
predatory behavior,” and made him “likely to commit sexually violent acts.”
-2- Dr. Ramirez acknowledged that Millard had been engaging in treatment and advanced to the
third phase, despite initially resisting treatment. Although Millard did not pose a risk of reoffending
in an “inpatient treatment setting,” Dr. Ramirez stated that there was a risk that Millard would
struggle to manage his disorder in the community because he continued to minimize problems,
resist authority figures, and display narcissistic traits. Millard’s success in the community would
depend significantly on whether he took his prescribed medications and abstained from using illicit
substances. If he did not, his likelihood of reoffending increased. Finally, Dr. Ramirez stated that
Millard’s “recent” behavior changes did not allow him “to conclude with confidence that [Millard’s]
mental condition has changed so dramatically and so permanently that” he was no longer a sexually
violent predator.
Dr. Craig King, a licensed clinical psychologist, provided a second opinion at Millard’s
request. Dr. King confirmed Millard’s antisocial personality disorder diagnosis but disagreed with
Dr. Ramirez’s conclusion that Millard remained a sexually violent predator. Dr. King opined that
Millard was no longer a sexually violent predator because he had not displayed a “pattern of sexual
violence” and had been effectively managing his disorder. Although Dr. King acknowledged that
Millard’s 2015 conditional release violation involved possessing pornography, he noted that
Millard’s disorder had “lessened in significance” and “manifested in a much lower form over the
years.”
The trial court found that Millard remained a sexually violent predator but met the criteria
for conditional release. Accordingly, it ordered Millard’s conditional release under the terms of a
new conditional release plan developed by the Department. The trial court subsequently vacated the
release order because the residence listed in the plan was “no longer available” to Millard, but noted
that the matter remained “an active cause before the [c]ourt.”
-3- In anticipation of a hearing on the status of Millard’s conditional release and another annual
review, the Department submitted an annual review report from licensed clinical psychologist
Dr. Daniel Montaldi. Dr. Montaldi confirmed Millard’s antisocial personality disorder diagnosis
but opined that he was no longer a sexually violent predator. Dr. King also filed an updated report,
which reiterated his position that Millard was no longer a sexually violent predator.
Both Drs. Montaldi and King further reported, however, that Millard had stopped
participating in treatment after the trial court vacated the previous conditional release order and that
the Department had demoted Millard to the initial treatment phase after “fermented juice” was
found in his room. In addition, Millard reported late for his prescribed medication, Tramadol, and
had been accused of exchanging Tramadol for “sexual favors from his roommate,” who later tested
positive for Tramadol despite not having a prescription for the medication.
Based on Drs. Montaldi and King’s conclusions that he was no longer a sexually violent
predator, Millard asked the trial court to amend its earlier finding. He reiterated that he had not
reoffended sexually despite two conditional releases and asserted that with the updated reports, the
Commonwealth could not carry its burden. After a January 24, 2023 hearing, the trial court found
that Millard remained a sexually violent predator who qualified for conditional release.
Accordingly, it ordered his release subject to a new conditional release plan.
On appeal, Millard contends that the trial court’s finding that he remains a sexually violent
predator was plainly wrong because the trial court “fail[ed] to give credence to” Drs. Montaldi and
King’s expert opinions.
ANALYSIS
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COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Raphael UNPUBLISHED
Argued at Lexington, Virginia
STEPHEN MILLARD MEMORANDUM OPINION* BY v. Record No. 0820-23-3 JUDGE MARY GRACE O’BRIEN MAY 21, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY C. Randall Lowe, Judge
Matthew B. Crum for appellant.
(Jason S. Miyares, Attorney General; M. Nicole Wittman, Deputy Attorney General; Susan Barr, Senior Assistant Attorney General; Jessica P. Preston, Assistant Attorney General, on brief), for appellee.
Stephen Millard appeals the trial court’s judgment that he remains a sexually violent
predator under Code § 37.2-910. He argues that the finding was not supported by “clear and
convincing evidence based on the totality of the record.” Because there is evidence in the record to
support the trial court’s ruling that Millard remains a sexually violent predator and the trial court’s
judgment was not plainly wrong, we affirm.
BACKGROUND
“In accordance with established principles of appellate review, we view the facts in the light
most favorable to the Commonwealth, the prevailing party below,” and “accord the Commonwealth
the benefit of all inferences fairly deducible from the evidence.” Shivaee v. Commonwealth, 270
Va. 112, 127 (2005).
* This opinion is not designated for publication. See Code § 17.1-413(A). Millard was convicted of raping his cousin’s 12-year-old daughter in 1994. Before his
release from prison, the Commonwealth petitioned to civilly commit Millard under the Sexually
Violent Predators Act, Code §§ 37.2-900 to -921. The trial court adjudicated Millard a sexually
violent predator on February 17, 2011, but released him subject to his compliance with the terms of
a conditional release plan on May 20, 2011.
Approximately eight months later, in January 2012, Millard violated the terms of his
conditional release by ignoring GPS monitoring requirements and using illicit substances. The trial
court revoked Millard’s conditional release and committed him to the custody of the Department of
Behavioral Health and Developmental Services for inpatient treatment.
After an annual review hearing in 2014, the trial court found that Millard remained a
sexually violent predator but met the criteria for conditional release. The trial court again released
Millard in 2015 subject to his compliance with the terms of a new conditional release plan. Six
months later, Millard violated the conditions of his release by using synthetic drugs, possessing cell
phones with pornographic material, and failing to report to probation. The trial court returned him
to the Department’s custody for inpatient treatment.
During an April 2021 annual review hearing, Dr. Ray Ramirez, a licensed clinical
psychologist, testified that he had reviewed Millard’s treatment records and evaluations and opined
that Millard remained a sexually violent predator. Dr. Ramirez diagnosed Millard with “lifetime”
antisocial personality disorder, which is characterized by “a pervasive pattern of disregard for, and
violation of, the rights [of] others.” After considering Millard’s admission that he committed rape
because he was “horny” and “didn’t care who it was [who] triggered his desire to offend,”
Dr. Ramirez concluded that the disorder had contributed to Millard’s underlying offenses.
Moreover, Dr. Ramirez testified that the disorder rendered it difficult for Millard to “control[] his
predatory behavior,” and made him “likely to commit sexually violent acts.”
-2- Dr. Ramirez acknowledged that Millard had been engaging in treatment and advanced to the
third phase, despite initially resisting treatment. Although Millard did not pose a risk of reoffending
in an “inpatient treatment setting,” Dr. Ramirez stated that there was a risk that Millard would
struggle to manage his disorder in the community because he continued to minimize problems,
resist authority figures, and display narcissistic traits. Millard’s success in the community would
depend significantly on whether he took his prescribed medications and abstained from using illicit
substances. If he did not, his likelihood of reoffending increased. Finally, Dr. Ramirez stated that
Millard’s “recent” behavior changes did not allow him “to conclude with confidence that [Millard’s]
mental condition has changed so dramatically and so permanently that” he was no longer a sexually
violent predator.
Dr. Craig King, a licensed clinical psychologist, provided a second opinion at Millard’s
request. Dr. King confirmed Millard’s antisocial personality disorder diagnosis but disagreed with
Dr. Ramirez’s conclusion that Millard remained a sexually violent predator. Dr. King opined that
Millard was no longer a sexually violent predator because he had not displayed a “pattern of sexual
violence” and had been effectively managing his disorder. Although Dr. King acknowledged that
Millard’s 2015 conditional release violation involved possessing pornography, he noted that
Millard’s disorder had “lessened in significance” and “manifested in a much lower form over the
years.”
The trial court found that Millard remained a sexually violent predator but met the criteria
for conditional release. Accordingly, it ordered Millard’s conditional release under the terms of a
new conditional release plan developed by the Department. The trial court subsequently vacated the
release order because the residence listed in the plan was “no longer available” to Millard, but noted
that the matter remained “an active cause before the [c]ourt.”
-3- In anticipation of a hearing on the status of Millard’s conditional release and another annual
review, the Department submitted an annual review report from licensed clinical psychologist
Dr. Daniel Montaldi. Dr. Montaldi confirmed Millard’s antisocial personality disorder diagnosis
but opined that he was no longer a sexually violent predator. Dr. King also filed an updated report,
which reiterated his position that Millard was no longer a sexually violent predator.
Both Drs. Montaldi and King further reported, however, that Millard had stopped
participating in treatment after the trial court vacated the previous conditional release order and that
the Department had demoted Millard to the initial treatment phase after “fermented juice” was
found in his room. In addition, Millard reported late for his prescribed medication, Tramadol, and
had been accused of exchanging Tramadol for “sexual favors from his roommate,” who later tested
positive for Tramadol despite not having a prescription for the medication.
Based on Drs. Montaldi and King’s conclusions that he was no longer a sexually violent
predator, Millard asked the trial court to amend its earlier finding. He reiterated that he had not
reoffended sexually despite two conditional releases and asserted that with the updated reports, the
Commonwealth could not carry its burden. After a January 24, 2023 hearing, the trial court found
that Millard remained a sexually violent predator who qualified for conditional release.
Accordingly, it ordered his release subject to a new conditional release plan.
On appeal, Millard contends that the trial court’s finding that he remains a sexually violent
predator was plainly wrong because the trial court “fail[ed] to give credence to” Drs. Montaldi and
King’s expert opinions.
ANALYSIS
A “[s]exually violent predator” is “any person who (i) has been convicted of a sexually
violent offense . . . ; and (ii) because of a mental abnormality or personality disorder, finds it
difficult to control his predatory behavior, which makes him likely to engage in sexually violent
-4- acts.” Code § 37.2-900. At an annual review hearing, the Commonwealth must prove “by clear and
convincing evidence that the respondent remains a sexually violent predator.” Code § 37.2-910(C).
A trial court’s ultimate decision regarding whether a respondent remains a sexually
violent predator must “be based on the totality of the record, including but not limited to expert
testimony.” DeMille v. Commonwealth, 283 Va. 316, 318 (2012). On appeal, we defer to the trial
court’s balancing of expert testimony and will not reverse a trial court’s finding that a respondent is
a sexually violent predator “unless it is plainly wrong or without evidence to support it.”
Commonwealth v. Squire, 278 Va. 746, 749-51 (2009).
The trial court’s conclusion that Millard remained a sexually violent predator was not
plainly wrong or without evidentiary support. Drs. Ramirez, King, and Montaldi all diagnosed
Millard with antisocial personality disorder, which is characterized by “a pervasive pattern of
disregard for, and violation of, the rights [of] others.” Dr. Ramirez concluded that Millard remained
a sexually violent predator and explained that Millard’s disorder increased his risk of reoffending.
Dr. Ramirez’s expert opinion that Millard’s “mental condition [had not] changed so dramatically
and so permanently that” he was no longer a sexually violent predator supports the trial court’s
ruling. See Parham v. Commonwealth, 64 Va. App. 560, 565 (2015) (“The law is . . . clear that
determining the credibility of the witnesses and the weight afforded the testimony of those
witnesses are matters left to the trier of fact.”).
Dr. Ramirez further concluded that Millard’s success in the community would depend on
whether he abstained from illicit substances and took his prescribed medications. Although Millard
relies on Drs. Montaldi and King’s opinions that he was no longer a sexually violent predator, the
record reflects that, despite their ultimate conclusions, both psychologists reported signs that Millard
was exhibiting the risk factors Dr. Ramirez had identified as increasing Millard’s likelihood of
reoffending. Both reports reflect that Millard had not been taking his prescribed medication
-5- consistently.1 Millard also possessed “fermented juice,” refused to participate in treatment, and was
demoted back to phase one of his treatment from phase three.
In essence, Millard asks us to reweigh the competing expert conclusions and overturn the
trial court’s factual findings. It is well-established, however, that we will not second guess the
weight a trial court assigns to expert testimony. Squire, 278 Va. at 749-51. “If there is a conflict” in
expert testimony, “and the trial court’s finding is supported by credible evidence, it will not be
disturbed on appeal.” Welsh v. Commonwealth, 78 Va. App. 287, 302 (2023) (quoting Spencer v.
Commonwealth, 240 Va. 78, 97 (1990)). Here, the trial court’s finding that Millard remained a
sexually violent predator is supported by the totality of the record and Dr. Ramirez’s expert
opinion.
CONCLUSION
The trial court’s finding that Millard remains a sexually violent predator is not plainly wrong
or without evidentiary support. Accordingly, we affirm the trial court’s judgment.
Affirmed.
1 Although Dr. King’s report indicates that Millard had been accused of exchanging his Tramadol for “sexual favors from his roommate,” Dr. Montaldi’s report notes that “nothing was established about how [the roommate] came to have [Tramadol]” despite not having a prescription for it. -6-