Andre Cokes appeals from the judgment of the Probate Division of the Circuit Court of Jackson County committing him to the custody of the Missouri Department of Mental Health (DMH), pursuant to the Sexually Violent Predator Act (SVP Act), §§ 6S2.480-.513, 1 after a jury had found, beyond a reasonable doubt, that he was a “sexually violent predator” (SVP), as defined in § 632.480(5) of the SVP Act.
The appellant raises three points on appeal. In Point I, he claims that the trial court erred in overruling his motion for a directed verdict because the State did not make a submissible case as to his being a SVP subject to commitment under the SVP Act in that there was no evidence from which the jury could find as required, beyond a reasonable doubt, that he suffered from a mental abnormality, as defined in § 632.480(2), that made it more likely than not that he would engage in predatory acts of sexual violence if not confined. In Point II, he claims that the trial court erred in overruling his motion for a directed verdict because the State did not make a submissible case as to his being a SVP subject to commitment under the SVP Act in that there was no evidence from which the jury could find as required, beyond a reasonable doubt, that he had serious difficulty in controlling his sexually violent behavior. In Point III, he claims that the trial court erred in giving Instruction No. 6, the verdict-directing instruction, because it failed to require the State, as a matter of due process, to prove all of the elements of its case for commitment under the SVP Act in that the instruction did not require a finding that the appellant has serious difficulty in controlling his sexually violent behavior.
We reverse and remand.
Facts
On July 28, 1999, pursuant to § 632.486, the State filed in the Probate Division of the Circuit Court of Jackson County, a petition, seeking to commit the appellant to the custody of the DMH, alleging that he was a SVP, as defined in § 632.480(5). On July 29, 1999, the appellant filed a motion to dismiss for failure to state a cause of action on which the requested relief could be granted, alleging that the petition did not plead facts establishing that he was suffering from a mental abnor
On September 3, 1999, pursuant to § 632.489.2, the trial court held a probable cause hearing on the issue of the appellant’s alleged status as a SVP. On September 20, 1999, the trial court entered its findings and order determining that there was probable cause to believe that the appellant was a SVP within the meaning of § 632.480(5), and ordering, pursuant to § 632.489.4, that the DMH have the appellant examined by a psychiatrist or psychologist to determine whether he suffered from a mental abnormality, and if he did, whether it made him more likely than not to engage in predatory acts of sexual violence. Thereafter, the appellant was evaluated by Dr. Steven A. Mandracchia, a forensic psychologist and Director of Forensic Services at Western Missouri Mental Health Center. On November 23, 1999, the State filed with the trial court Dr. Mandracchia’s written evaluation of the appellant, which concluded that:
1. In the opinion of the examiner, [the appellant] suffers from mental abnormality in the form of Antisocial Personality Disorder; Poly-Substance Abuse/Dependence, Sustained Full Remission In a Controlled Environment; and Paraphilia, Not Otherwise Specified.
2. In the opinion of the examiner, [the appellant’s] mental abnormality makes him more likely than not to engage in predatory acts of sexual violence.
Dr. Mandracchia’s written evaluation was never admitted at trial.
On December 4, 2000, pursuant to § 632.492, the State’s SVP petition proceeded to a jury trial. Dr. Mandracchia was called as a witness for the State and testified about his examination and diagnosis of the appellant. Dr. Mandracchia explained that, in evaluating the appellant, he reviewed psychiatric, police, and prison records; interviewed the appellant; and relied upon two actuarial instruments, the Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR) and the Minnesota Sex Offender Screening Tool (MnSOST-R). He further noted that the RRASOR and the MnSOST-R are used by a majority of forensic experts in the state for this type of evaluation. Dr. Mandracc-hia concluded that the appellant was suffering fi*om three mental abnormalities: paraphilia, substance abuse and dependency, and antisocial personality disorder, and that he was likely to “sexually reoffend.”
The appellant made an oral motion for a directed verdict of acquittal at the close of the State’s evidence, which was overruled. At the close of all the evidence, the appellant made another motion for a directed verdict of acquittal, which was also overruled. After deliberating, the jury returned with its verdict declaring, beyond a reasonable doubt, that the appellant was a SVP, as defined in § 632.480(5), requiring confinement in the DMH.
Standard of Review
In reviewing the trial court’s denial of the appellant’s motion for a directed verdict, we review to determine if the State made a submissible case.
Parra v. Bldg. Erection Servs.,
I.
In Point I, the appellant claims that the trial court erred in overruling his motion for a directed verdict because the State did not make a submissible case as to his being a SVP subject to commitment under the SVP Act. Specifically, he claims that there was no evidence from which the jury could find as required, beyond a reasonable doubt, that he suffered from a mental abnormality, as defined in § 632.480(2), that made it more likely than not that he would engage in predatory acts of sexual violence if not confined.
Pursuant to § 682.492, the attorney general requested a jury trial to determine whether the appellant was a SVP, as defined in § 632.480(5), subject to commitment. That section defines a SVP as:
[A]ny person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:
(a) Has pled guilty or been found guilty, or been found not guilty by reason of mental diseases or defect pursuant to section 552.030, RSMo, of a sexually violent offense; or
(b) Has been committed as a criminal sexual psychopath pursuant to section 632.475, RSMo, and statutes in effect before August 13,1980.
§ 632.480(5). The version of § 632.480(3) which was in effect at the time of the appellant’s trial defined “predatory” acts as “acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization.” 2 The State concedes, as the appellant claims, that in order to make a submissible case for commitment under the SVP Act, § 632.495 required it to prove beyond a reasonable doubt that the appellant was a SVP, as defined in § 632.480(5).
As to the appellant being a SVP, as defined in § 632.480(5), and subject to commitment under the SVP Act, the State alleged in its petition that the appellant was suffering from a mental abnormality, paraphilia NOS, which made him more likely than not to engage in predatory acts of sexual violence if released. Based on
As noted in the facts, Dr. Mandracchia testified that, in evaluating the appellant, he reviewed psychiatric, police, and prison records; interviewed the appellant; and administered two actuarial instruments, the RRASOR and the MnSOST-R, which he described as being used by a majority of forensic experts in the state for this type of evaluation. As to the appellant’s scores on the RRASOR and MnSOST-R, Dr. Mandracchia testified that the appellant’s score on the RRASOR corresponded to recidivism rates of 32% to 48% over five and ten years, respectively, and that his score on the MnSOST-R placed him in a category of people who reoffended at a rate of 92%. Dr. Mandracchia also described a number of other factors which he considered in his evaluation of the appellant. In that regard, he noted that the appellant’s history indicated that he had difficulty dealing with authority; that he had failed to complete numerous sexual offender treatment programs; and that he lacked insight into his past and present circumstances in that he did not accept responsibility for his past offenses and was unable to identify “what was going on with him either in general or at the time that may lead to these things.” Dr. Mandracc-hia also found that the appellant had limited remorse for his past offenses, and that there were indications of anger control problems.
As to his expert opinion on whether the appellant suffered from a mental abnormality, for purposes of the SVP Act, the record reflects that Dr. Mandracchia testified on direct examination by the State as follows:
Q. And I guess I should say, does Mr. Cokes suffer from a mental abnormality?
A. Yes, I believe he does.
Q. Can you tell the jury what it is you think he suffers from that equals a mental abnormality?
A. I believe that there are three quote/unquote disorders that constitute and/or a mental abnormality. One is a paraphilia, one is substance abuse and dependency, and the other is antisocial personality disorder.
Q. Did you find in the three items you’ve listed that Mr. Cokes suffers from each of those three?
A. Yes, I believe he suffers from each of those three.
Q. Did you try to make a determination as a result of this mental abnormality and looking at your actuarial measures, did you try to determine whether or not it was more likely than not Mr. Cokes would sexually reoffend?
A. Yes, I did.
Q. What is your determination?
A. I determined that in terms of probability it is more likely than not that he will reoffend.
As noted,
supra,
the appellant contends that the State’s proof was deficient in that
To make a submissible case for a SVP commitment under § 632.495, the State was required to present substantial evidence to establish each and every element of its petition.
See Spring v. Kansas City Area Transp. Auth.,
Here, the State, in contending that Dr. Mandracchia’s testimony was sufficient to make a submissible case for civil commitment of the appellant under the SVP Act, is necessarily arguing that the jury could reasonably infer from his testimony concerning the RRASOR and MnSOST-R raw scores that he was not only more likely than not to sexually reoffend, but to so offend in a predatory and violent manner, as required by the definition of a SVP in § 632.480(5). The State’s argument, however, defies our standard governing when expert testimony is required at trial in order to allow a jury to determine disputed issues vital to rendering its verdict. That standard contemplates that there will be issues at trial which must be decided by the jury, but cannot be without expert testimony because they are beyond the understanding of laypersons. § 490.065;
Guzman v. Hanson,
It goes without saying that a jury of laypersons would lack sufficient knowledge and understanding to draw any reasonable conclusions solely from the raw scores of testing instruments employed by forensic experts, in this case the RRASOR and MnSOST-R raw scores. In that regard, the record reflects that Dr. Man-dracchia’s testimony lacked any detail that would have imparted to the jury the necessary knowledge to allow it to reasonably infer from the RRASOR and MnSOST-R raw scores that the appellant would not only sexually reoffend, but would do so in
The fact that the State failed to make a submissible case on the ground that it failed to establish that the appellant was more likely than not to engage in predatory acts of sexual violence does not entitle the appellant to the relief he seeks in this point, an outright reversal. That is so in that a SVP commitment under §§ 632.480 — .513 is deemed a civil proceeding,
Kansas v. Hendricks,
In Standridge, the Division of Family Services (DFS) brought suit to recover from the defendant Aid to Families with Dependent Children (AFDC) funds, having acquired by assignment from the defendant’s wife her common law right to recover from the father of her minor children the cost of necessaries she furnished to their children. Id. at 514-15. The defendant claimed on appeal that the trial court erred in entering judgment for the DFS on its suit to recover the AFDC funds because the DFS had failed to make a sub-missible case in that it faded to prove, as required, that the payments in question were attributable to any fault or misconduct of the defendant. Id. at 515. While the Court agreed that the DFS had failed to make a submissible case, it concluded that the defendant was not entitled to an outright reversal in that the necessary proof was readily available, but was not forthcoming solely due to counsel’s failure to ask the appropriate questions at trial such that the furtherance of justice required reversal and remand for a new trial. In so holding, the Court stated:
The furtherance of justice requires a case shall not be reversed without remanding unless the appellate court is convinced the facts are such that a recovery cannot be had. It is a settled practice of appellate procedure that a case should not be reversed for failure of proof without remanding, unless the record indicates that the available essential evidence has been fully presented, and that no recovery can be had in any event. This rule is pertinent where the record indicates that other and additional evidence might be adduced in support of plaintiffs action and enable him to make a submissible case.
Because the evidence does not establish that plaintiff could not make a sub-missible case against defendant if the evidence were fully developed, we decline to reverse and direct the entry of a verdict for defendant. It is appropriate to remand the case for a new trial in which the possibility for a recovery by the plaintiff will remain if sufficient evidence is produced.
Id.
at 517 (citations omitted).
See also Affiliated Acceptance Corp. v. Boggs,
As noted,
supra,
Dr. Mandrace-hia’s written evaluation, which was not offered at trial, indicated that the appellant’s “mental abnormality makes him more likely than not to engage in predatory acts of sexual violence.” Thus, the record indicates that the State could have presented sufficient evidence to allow the jury to reasonably infer that the appellant was more likely than not to engage in predatory acts of sexual violence had the State’s counsel simply asked Dr. Mandracchia whether, in his expert opinion, the appellant’s likelihood of sexually reoffending would occur in a violent and predatory manner. As such, the appellant would not be entitled to an outright reversal on the error found in this point, but remand of his case for a new trial.
Standridge,
II.
In Point II, the appellant claims that the trial court erred in overruling his motion for a directed verdict because the State did not make a submissible case as to his being a SVP subject to commitment under the SVP Act in that there was no evidence from which the jury could find as required, beyond a reasonable doubt, that he had serious difficulty in controlling his sexually violent behavior. As to that alleged error, the appellant requests that we reverse outright or, in the alternative, reverse and remand for a new trial. The State concedes that it did not prove that the appellant had serious difficulty in controlling his sexually violent behavior. However, it contends that the appellant is not entitled to an outright reversal as a result, in that, at the time of trial, the controlling law did not require it to prove that fact.
See Shaffer v. Sears, Roebuck & Co.,
In contending that Hendricks required the State to prove serious difficulty in controlling sexually violent behavior, the appellant quotes that portion of the opinion, which reads:
A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a “mental illness” or “mental abnormality.” These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond theircontrol. The Kansas Act is plainly of a kind with these other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a “mental abnormality” or “personality disorder” that makes it difficult, if not impossible, for the person to control his dangerous behavior. Kan. Stat. Ann. § 59-29a02(b) (1994). The precommitment requirement of a “mental abnormality” or “personality disorder” is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.
As far as Missouri is concerned, it was not until
Thomas
was decided in 2002 that the Missouri Supreme Court made it clear what the law was in this state with respect to the proof of serious difficulty in controlling sexually violent behavior. There, relying primarily on
Crane,
the Court held that civil commitment pursuant to Missouri’s SVP Act requires a finding that the defendant have serious difficulty in controlling his sexually violent behavior.
Thomas,
III.
In Point III, the appellant claims that the trial court erred in giving Instruction No. 6, the verdict-directing instruction, because it failed to require the State, as a matter of due process, to prove all of the elements of its case for commitment under the SVP Act in that the instruction did not require a finding that the appellant has serious difficulty in controlling his sexually violent behavior. As the State points out, Points II and III basically argue the same issue with respect to the appellant’s being entitled to a new trial, which is the relief he seeks in this point. As it did with respect to the claim of error in Point II, the State concedes that the appellant is entitled to a new trial, as he requests in this point.
The judgment of the circuit court, finding the appellant to be a SVP and committing him to the custody of the DMH in accordance with the SVP Act, is reversed and the cause is remanded for a new trial in accordance with this opinion.
SMART and HARDWICK, JJ., concur.
Notes
. All statutory references are to RSMo 2000, unless otherwise indicated.
. The appellant’s trial occurred in December of 2000. In 2001, the statutory definition of “predatory” in § 632.480(3) was changed to "acts directed towards individuals, including family members, for the primary purposes of victimization.”
. This decision was vacated by the U.S. Supreme Court in
Glick v. Arizona,