720 S.E.2d 69
Va.2012Background
- DeMille was convicted of rape in 1989 and later became subject to civil commitment under the SVPA after evaluation.
- A two-day bench trial in 2005-2006 heard lay witness testimony and three expert opinions (Boss for Commonwealth; Boggio for DeMille).
- Both experts diagnosed a mental abnormality but could not state that DeMille’s future offenses would be sexually violent offenses as defined by the SVPA.
- The circuit court held that SVPA proceedings do not require express expert testimony on likelihood of sexually violent re-offense and that the record as a whole supports the finding.
- The Virginia Court of Appeals eventually affirmed; the issue on appeal was whether express expert assertion is required, with reliance on the record as a whole under Miller/Squire standards.
- The decision ultimately holds that the determination is fact-based and may rely on the total record rather than expert testimony alone.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SVPA requires express expert assertion of future sexually violent offense | DeMille: expert must state likelihood of sexually violent acts | Commonwealth: record as a whole can prove likelihood | Not required; record as a whole suffices |
Key Cases Cited
- Commonwealth v. Squire, 278 Va. 746 (2009) (expert opinion not dispositive; record as whole governs)
- Miller v. Commonwealth, 273 Va. 540 (2007) (review of entire record; determine if clearly wrong or unsupported)
- Shivaee v. Commonwealth, 270 Va. 112 (2005) (standard for appellate review of SVPA determinations)