STEVEN DEMILLE v. COMMONWEALTH OF VIRGINIA
Record No. 110100
Supreme Court of Virginia
January 13, 2012
Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan, and Powell, JJ., and Koontz, S.J. FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Dennis J. Smith, Judge
In this appeal, we consider whether in a proceeding under the Civil Commitment of Sexually Violent Predators Act (“SVPA“),
BACKGROUND
The pertinent facts are not in dispute and, pursuant to familiar principles, will be viewed in the light most favorable to the Commonwealth. Shivaee v. Commonwealth, 270 Va. 112, 127, 613 S.E.2d 570, 578 (2005). On March 13, 1989, pursuant to a guilty plea Steven DeMille was convicted in the Circuit Court of Fairfax County of rape. On June 9, 1989, DeMille was sentenced to serve twenty-five years imprisonment, with ten years suspended. DeMille was concurrently serving lesser sentences for other offenses. While in prison, DeMille was convicted of a weapons violation and sentenced to five years, with four years suspended. DeMille was released on mandatory parole on August 12, 1999, having served just over eleven years of his concurrent sentences, including credit for time served while awaiting trial.
Following a determination by the Virginia Parole Board that he was unsuitable for parole, DeMille was returned to the custody of the Department of Corrections on June 26, 2001 to serve the remainder of his active time. DeMille was scheduled for release on September 15, 2004. As a consequence of his scheduled release and his performance on a standardized risk assessment test, DeMille was referred for evaluаtion by the Department of Corrections to the Commitment Review Committee.
On September 14, 2004, the Attorney General filed a petition in the сircuit court seeking the civil commitment of DeMille as a sexually violent predator.
Beginning October 4, 2005, the circuit court held a two-day bench trial to determine whether DeMille met the statutory criteria for being a sexually violent predator. As relevant to the issue addressed in this appeal, the evidence at trial consisted of the testimony of three police detectives and a
The testimony of the lay witnesses dealt with DeMille‘s criminal history and his difficulty in readjusting to society during his probation. Hunt recounted that DeMille had disclosed to her his past offenses of “peeping,”
With regard to a diagnosis, both Dr. Boss and Dr. Boggio concluded that DeMille suffered from a mental defect or disorder as defined by the SVPA. Specifically, both experts diagnosed DeMille as suffering from exhibitionism, voyeurism, and a general personality disorder featuring antisocial and narcissistic behavior. Dr. Boss concluded based on her evaluation and diagnoses that “DeMille‘s risk for sexual recidivism can be categorized as high.” Dr. Boggio concluded that “DeMille presents a high risk for sexual re-offending” based on an actuarial risk assessment, and further that “[t]aking all . . . factors into consideration, it would appear that his risk for future sexual re-offending may be somewhat higher than that predictеd by actuarial variables alone.”
During her testimony, Dr. Boss conceded that while she was able to state within “a reasonable degree of psychological certainty [DeMille‘s] potential of sexually re-offending[,] I can‘t give that designation to the potential for sexually violent re-offense.” According to Dr. Boss, this was so because, “[i]n terms of sexually violent re-offense, that‘s a very narrow definition and it‘s beyond the scope of social science.” Likewise, Dr. Boggio testified that he could not express an opinion regarding DeMille‘s risk for committing another sexually violent act, as opposed to his general risk for committing any sexual offense “because the research does not allow us to make that distinction.”
In his closing argument, DeMille‘s counsel asserted that in order for the circuit court to find that DeMille was “likely to engage in sexually violent acts,”
On March 27, 2006, the circuit court issued an opinion letter in which it set out its findings concerning whether DеMille met the criteria for being a sexually violent predator. The court noted that there was no dispute that DeMille had been convicted of a sexually violent offense and that the evidence from both Dr. Boss and Dr. Boggio was sufficient to establish that DeMille suffered from a mental abnormality or personality disorder and found it difficult to control his prеdatory behavior.
The circuit court devoted most of its analysis to the issue, reasserted by DeMille in this appeal, that in order to find that his risk of re-offending was specifically for sexually violent offenses, the Commonwealth was required to present express expert testimony to that effect. The court concluded that the SVPA did not require that the nature of a respondent‘s likelihood to re-offend be based on expert testimony alone. The court noted that the legislature had provided in other parts of the Code for instances where expert testimony was the exclusive manner for proving a fact. See, e.g.,
Based on these principles of law, the circuit court ruled that “DeMille‘s assertion that findings of causation and likelihood of commission of further sexually violent acts can only be established if based on expert opinions directly on these issues” was not a correct statement of the law with regard to SVPA proceedings. Reviewing “the evidence as a whole,” the court then concluded “that because of his personality disorder and his difficulty controlling himself, Mr. DeMille is likely to engage in sexually violent acts in the future and constitutes a menace to the health and safety of others.”
On April 26, 2006, the circuit court entered an order declaring DeMille to be a sexually violent predator. The matter was continued for additional proceedings to determine whether there was any suitable less restrictive alternative to involuntary secure inpatient treatment.
DISCUSSION
On appeal, DeMille contends thаt “[i]f the Commonwealth‘s expert [Dr. Boss] could not determine the potential for sexually violent offending, the circuit court, considering the same evidence, equally could not.” DeMille asserts that if Dr. Boss was not able to offer an expert opinion as to the likelihood that DeMille would re-offend by committing a violent sexual offense, the court could not base its finding on that issue on the record as a whole because the record “can be no better than its constituent elements – and none of those elements provided a basis for determining, by clear and convincing evidence, that DeMille was ‘likely to engage in sexually violent acts.’ ”
The Commonwealth responds that the circuit court correctly relied upon the record as a whole to determine the ultimate issue in the case, which was whether DeMille met the statutory criteria for being a sexually violent predator. In making that determination, the Commonwealth notes that this Court has stated that “the opinion of experts is not dispositive.” Commonwealth v. Squire, 278 Va. 746, 751, 685 S.E.2d 631, 633 (2009). We agree.
On appeal, the Commonwealth contеnded that the evidence, including the “uncontradicted testimony of two experts[,] left the trial court with ‘the only reasonable conclusion . . . that Squire is a sexually violent predator.’ ” Id. In affirming the judgment of the trial court, we cited
The record in Squire showed that the trial court had ” ‘listened carefully to the reports’ of the experts but that it also considered ‘the chronology of the defendant‘s life.’ ” Id. When considering the record as a whole, the trial cоurt had concluded that the Commonwealth had not established by clear and convincing evidence that Squire was likely to engage in future sexually violent acts. In reviewing that determination and affirming the judgment of the trial court, we applied the standard applicable to appellate review of determinations of fact by a trial court or jury, that is, whether the finding is “plainly wrong or without evidence to support [it].” Id.
The rationale of Squire applies to the present case. Thus, the issue is not whether an expert must express an opinion that an SVPA commitment respondent is likely to commit future sexually violent acts in order for the trier of fact to find that the respondent is a sexually violent predator. Rather, the issue is whether thе record as a whole supports such a determination by the trier of fact by clear and convincing evidence. In this respect, our decision in Commonwealth v. Miller, 273 Va. 540, 643 S.E.2d 208 (2007), is instructive.
In Miller, the Commonwealth appealed the dismissal of an SVPA commitment petition contending that the trial court had erred in concluding that it had not proven Miller was a sexually violent predator by clear and convincing evidence. We reviewed the entire record and recited the particular elements of Miller‘s mental disorders that made him likely to engage in sexually violent acts. Id. at 551-53, 643 S.E.2d at 214-15. We concluded that the evidence of Miller being a sexually violent predator was so overwhelming that the trial court‘s failure to make that determination was plainly wrong and without support in the record and remanded the case for further proceedings. Id. at 553, 643 S.E.2d at 215-16.
Likewise, in the present case, we consider the record as a whole. While it is clear that neither Dr. Boss nor Dr. Boggio was able to opine that the sexual offenses DeMille was likely to commit in the future would be sexually violent acts as defined in
CONCLUSION
For these reasons, we hold that in proceedings under the SVPA, it is not necessary for an expert to state with specificity that the respondent will likely engage in sexually violent acts in the future. Rather, the determination of whether the respondent is likely to engage in sexually violent acts as defined in
Affirmed.