Berg v. State
342 S.W.3d 374
| Mo. Ct. App. | 2011Background
- Petition filed Feb 16, 2005 to civilly commit Berg as a sexually violent predator (SVP) under Missouri statute § 632.480 et seq.
- Trial held Nov 19, 2009 before the Greene County Probate Court; jury verdict and commitment followed.
- Evidence shows Berg’s history of childhood abuse, multiple male victims, grooming, and drug/alcohol involvement.
- Experts opined Berg suffers from mental abnormalities (paraphilia not otherwise specified; antisocial personality disorder) linked to past offenses and propensity to reoffend.
- Dr. Leavitt concluded Berg would likely commit future acts of sexual violence if not confined; other experts offered differing risk assessments.
- Probate court entered SVP commitment; Berg appeals asserting multiple evidentiary and procedural errors; standard of review is clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence proves Berg has mental abnormality and future risk | Berg failed to prove serious difficulty controlling behavior | State showed mental abnormality linked to past acts and risk | Yes; sufficient clear and convincing evidence est. |
| Admission of R.M.'s deposition testimony and related allegations | Testimony of numerous unverified victims unreliable under §490.065 | State used deposition for expert reliance; cross-examination available | No reversible error; invited error doctrine applied; Point II denied. |
| Allowing Berg to testify despite Fifth Amendment invocation | Testimony violated privilege and prejudiced jury | Court permitted testimony; deposition testimony available; no prejudice shown | No abuse of discretion; Point III denied. |
| Denied strike for cause of venireperson Webb due to potential bias | Webb biased by past offenses; should have been removed | Court evaluated voir dire; can weigh credibility; no abuse | No abuse; Point IV denied. |
| Verdict form requirements and potential chilling effect | Public signing of twelve lines could chill jurors | No MAI-form exists; court’s discretion allowed; form acceptable | Verbatim structure within discretion; Point V denied. |
Key Cases Cited
- Bemboom v. State, 326 S.W.3d 857 (Mo. App. 2010) (mental abnormality must cause serious difficulty controlling behavior)
- Murrell v. State, 215 S.W.3d 96 (Mo. banc 2007) (connection between mental abnormality and past violent behavior)
- In re A.B., 334 S.W.3d 746 (Mo. App. 2011) (set standard for sufficiency in SVP trials; clear and convincing evidence)
- Thomas v. State, 74 S.W.3d 789 (Mo. banc 2002) (definition of mental abnormality includes degree and seriousness)
- In re Ginnery, 295 S.W.3d 871 (Mo. App. 2009) (no MAI verdict form for SVP cases; court’s discretion)
- State ex rel. Long v. Askren, 874 S.W.2d 466 (Mo. App. 1994) ( Fifth Amendment civil admission rules; right to testify)
- Joy v. Morrison, 254 S.W.3d 885 (Mo. banc 2008) (venire qualification evaluated by complete voir dire; broad discretion)
- State v. Sidebottom, 753 S.W.2d 915 (Mo. banc 1988) (permissibility of calling a witness who may invoke Fifth Amendment)
- Pickel v. Gaskin, 202 S.W.3d 630 (Mo. App. 2006) (MAI verdict forms; need for fair form in SVP cases)