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    In the Matter of the CARE AND TREATMENT OF John W. MORGAN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63300.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.

      Emmett D. Queener, Appellate Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn R. McCall, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before SMITH, C.J., and LOWENSTEIN and ULRICH, JJ.
   EDWIN H. SMITH, Chief Judge.

John W. Morgan 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), §§ 632.480-.513, after a jury had found, beyond a reasonable doubt, that he was a “sexually violent predator” (SVP), as defined in § 632.480(5).

The appellant raises four points on appeal. In Point I, he claims that the probate court erred in overruling his motion for a directed verdict, at the close of the State’s and all the evidence, for the State’s failure to make a submissible case for his commitment as a SVP, pursuant to § 632.495, because the State failed to show, as required by § 632.480(5), defining a SVP, that he was “more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.” (Emphasis added.) Because it is disposi-tive of the appeal, we address it alone.

Reversed and remanded.

Facts

On April 19,1999, 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 May 18, 1999, the appellant filed a motion to dismiss, claiming that the petition failed to properly allege that he was a SVP, in that it failed to allege that he had engaged in sexual acts with strangers or individuals with whom relationships had been established or promoted for the primary purpose of victimization. On the same date, he also filed a motion to strike from the petition allegations as to certain statements he made to the police concerning past sexual offenses, which he claimed were taken in violation of his constitutional right, against self-incrimination. On June 4, 1999, the probate court overruled the appellant’s motion to dismiss, but sustained his motion to strike. The court granted the State leave to file an amended petition, which conformed with the requirements of § 632.486. The State filed its amended petition on June 24, 1999.

On July 23, 1999, pursuant to § 632.489.2, the probate court held a probable cause hearing on the issue of the appellant’s alleged status as a SVP. On the same date, the probate court issued its findings and entered its 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 future predatory acts of sexual violence.

On November 3, 1999, the DMH filed with the probate court a written evaluation of the appellant prepared by Dr. Stephen A. Jackson, a forensic psychologist at the Western Missouri Mental Health Center. The evaluation concluded:

1. In the opinion of this examiner, the respondent suffers from a mental abnormality, specifically Pedophilia, within the meaning of section 632.480.
2. In the opinion of this examiner, with a reasonable degree of psychological certainty, as a result of his mental abnormality the respondent is more likely than not to engage in predatory acts of sexual violence if hot confined in a secure facility.

At some point, the probate court placed a moratorium on all SVP jury trials, including the appellant’s, awaiting the U.S. Supreme Court’s decision in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), concerning the constitutional test for a “mental abnormality,” as to an individual’s ability to control his sexually violent behavior, to be found to be a SVP. In Thomas v. State, 74 S.W.3d 789, 792 (Mo. banc 2002), the Missouri Supreme Court applied the Court’s decision in Crane, defining a “mental abnormality” as “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior.” In light of that decision, the appellant, on January 17, 2003, filed a motion for a supplemental evaluation from the DMH. The motion sought an order directing Dr. Jackson to submit a new evaluation determining whether the appellant suffered from a mental abnormality as defined in Thomas, and if so, whether that mental abnormality made him more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. On January 17, 2002, the probate court entered an order directing the DMH to file a supplemental evaluation to determine whether the appellant suffered from a “mental abnormality,” as defined in Thomas.

On March 19, 2003, Dr. Jackson filed his supplemental evaluation, based on the information considered in the original evaluation, plus records from the Missouri Sexual Offenders Program, a Department of Corrections program designed to treat inmates convicted of sex offenses. Phase one of the program educates inmates on why they sexually offend, while phase two is the actual treatment. The appellant twice refused to enroll in phase one of the program, but eventually completed it on November 15, 1995. He started phase two, but quit after only three weeks. In his supplemental evaluation, Dr. Jackson reached a different conclusion from his initial evaluation, concluding:

The information reviewed for this case indicates that [the appellant] suffers from Pedophilia, Sexually Attracted to Females, Nonexclusive Type and Borderline Intellectual Functioning. It is this examiner’s opinion that [the appellant’s] diagnoses constitute a mental abnormality which would result in [the appellant] having serious difficulty controlling his behavior. In the opinion of the examiner [the appellant] is not more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.

On June 30, 2003, pursuant to § 632.492, the State’s SVP petition proceeded to a jury trial. The State called as an expert medical witness, Dr. Kurt Bumby, whom the State had hired to perform the supplemental evaluation of the appellant. Dr. Bumby testified that he had determined that the appellant suffered from the mental abnormality of pedophilia, which caused him difficulty in controlling his behavior. Dr. Bumby concluded that, to a reasonable degree of psychological certainty, the appellant was more likely than not to engage in future predatory acts of sexual violence if not confined in a secure facility.

As part of its case-in-chief, the State read, over the appellant’s objection, questions from the appellant’s deposition of July 5, 2000, which he refused to answer, responding in each instance: “I refuse to answer because any answer I give will be used against me.” The questions concerned the appellant’s prior acts of sexual assault, and his refusal to participate in treatment programs offered by the Department of Corrections.

The appellant called Dr. Jackson as an expert medical witness. Dr. Jackson testified that in both of his evaluations of the appellant he concluded that he was suffering from a mental abnormality, pedophilia, which caused him serious difficulty in controlling his behavior. He further testified, however, that unlike his first evaluation, in his second evaluation, he concluded that the appellant was not more likely than not to engage in future predatory acts of sexual violence if not confined to a secure facility. On cross-examination by the State, Dr. Jackson was asked about this change in his opinion:

Q. Well, what have you seen about Mr. Morgan since the first time you did the evaluation to this time?
A. The more recent material I read seems to indicate he’s adjusting better, is maybe not quite as angry as he was when he was first there. Maybe is perhaps more cooperative and may be, although it’s hard to unless you have a table and a pen and pencil, attending more activities than.he was.

At the close of the State’s evidence and all the evidence, the appellant made an oral motion for a directed verdict, which was overruled.

At the instruction conference, the parties agreed to use the definition of “predatory acts” found in § 632.480(3), RSMo 2000, rather than the revised definition found in § 632.480(3), RSMo Supp.2003, which was the version in effect at the time of trial. The jury, after deliberating, found beyond a reasonable doubt that the appellant was a SVP, as defined in § 632.480(5), requiring confinement in the DMH.

The appellant filed a written motion for a new trial on July 25, 2003, contending, inter alia, that the probate court erred in denying his motions for a directed verdict, alleging that the State failed to make a submissible case. The motion was overruled.

This appeal followed.

I.

In Point I, the appellant claims that the probate court erred in overruling his motion for a directed verdict, at the close of the State’s and all the evidence, for the State’s failure to make a submissible case for his commitment as a SVP, pursuant to § 632.495, because the State failed to show, as required by § 632.480(5), defining a SVP, that he was “more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.” (Emphasis added.) Specifically, he claims that the State failed to make a submissible case for SVP confinement in that there was no evidence from which the jury could reasonably infer that he was more likely than not to engage in “acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization,” the definition of “predatory acts” found in § 632.480(3).

Our review of the probate court’s denial of the appellant’s motion for a directed verdict is to determine whether the State made a submissible case for SVP commitment, pursuant to § 632.495. In re Care & Treatment of Cokes, 107 S.W.3d 317, 321 (Mo.App.2003). “In determining whether the State made a submissible case, we are required to view the evidence and all reasonable inferences therefrom in the light most favorable to the State’s case and disregard all evidence to the contrary.” Id. In doing so, however, we will not “supply missing evidence or give the [State] the benefit of unreasonable, speculative, or forced inferences.” Id. To make a submissible case for SVP commitment, the evidence and the reasonable inferences therefrom, viewed in a light most favorable to the State’s case, must establish each of the requisite elements of an SVP commitment. Id. The elements must be established by substantial evidence, which is “competent evidence from which the trier of fact can reasonably decide the case.” Id. at 323.

Pursuant to § 632.492, the Attorney General requested a jury trial to determine whether the appellant was a SVP, as defined in § 632.480(5), subject to commitment, in accordance with § 632.495. Section 632.495 provides, in pertinent part:

If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the director of the department of mental health for control, care and treatment until such time as the person’s mental abnormality has so changed that the person is safe to be at large.

(Emphasis added.) A “sexually violent predator” is defined, for purposes of the Act, in § 682.480(5) as:

... any 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 disease 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.

(Emphasis added.) “Predatory acts” were previously defined in § 632.480(3), as: “acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization.” That subsection was amended in 2001 such that “predatory acts” are now defined as: “acts directed towards individuals, including family members, for the primary purpose of victimization.” § 632.480(3), RSMo Supp.2001.

Although the State’s SVP petition was taken up and heard on June 30, 2003, after the new version of the definition of “predatory acts” had gone into effect, by agreement of the parties and with the approval of the probate court, the jury was instructed in Instruction No. 6, the State’s verdict director, to apply the prior version of the definition of “predatory acts” in determining its verdict. It is in the context of this definition that the appellant claims the State failed to make a submissible case on the issue of whether he was “more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.” § 632.480(5). (Emphasis added.)

There is nothing in the record to indicate the basis on which the probate court and the parties agreed that the applicable version of the definition of “predatory acts” was the prior version. Perhaps it was because the SVP commitment petition was filed April 19, 1999, when the prior version was still in effect. However, regardless of the basis applied, instructing on the prior version runs afoul of the Missouri Supreme Court’s decision in In re Care & Treatment of Spencer, 123 S.W.3d 166,169 (Mo. banc 2003). There the Court held that because the “jury’s determination [of whether the person is a SVP] rests on whether the person having the mental abnormality is more likely to commit future acts of predatory sexual violence,” the revised version of the definition of “predatory acts” was the correct version to utilize. Id. (Emphasis added.) Hence, the version of the definition of “predatory acts” that should have been used in this case was the revised version, not the prior version that was used. The question then becomes how that error affects this appeal in light of the fact that the appellant does not raise it as an issue, but, rather, relies on the use of the prior version of the definition as the basis for his claiming that the evidence was insufficient to demonstrate, as required, that he was more likely than not to engage in future predatory acts of sexual violence.

At first blush, it would appear that the probate court’s use of the prior version of the definition of “predatory acts” in this case in instructing the jury is of no consequence in that the Court in Spencer determined that “the original definition of the word ‘predatory’ subsumes the second” and that “[t]here is no substantive difference between the two definitions.” Id. n. 9. In other words, the prior and i’evised versions of the definition are substantively the same. As such, regardless of which version was utilized in instructing the jury, the jury’s verdict would be the same. However, upon closer inspection, it would appear that the Court did not mean that there is no substantive difference between the two versions in all respects. Rather, what the Court meant was that there is no substantive difference between the two versions with respect to the individuals who can be considered targets of the predatory acts of sexual violence.

In the prior version of the definition of “predatory acts,” the qualifying acts of victimization were limited to acts “directed towards strangers or individuals,” while in the revised version, the qualifying acts of victimization were limited to acts “directed towards individuals, including family members.” It was this lone aspect of the definition that the Court appears to have been focusing upon in stating in Spencer that there was no substantive difference between the two versions of the definition. We glean this from the fact that the Court, in opining that there was no substantive difference between the two versions of the definition, reasoned that the language of the prior version of the definition “necessarily include[d] family members regardless of [the] legislature’s perceived need to amend the specific language of this provision.” Id. In other words, the amendment to the definition was, practically speaking, without effect as to the targets of victimization.

If we were to find that the Spencer Court was holding that there was no substantive difference between the two versions of the definition of “predatory acts” in all respects, and not just as to the targets of victimization, we would have to conclude that the Court was rebutting, without discussion, the presumption long recognized by the Court that the “legislature is presumed not to enact meaningless provisions.” Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). “When the legislature amends a statute, it is presumed to have intended the amendment to have some effect.” Id. Hence, logically, it appears to us that the Court in Spencer was not suggesting that the amendment of § 632.480(3) was not without any substantive change, but rather it was without any real change only as to the targets of victimization.

Having determined that the Spencer Court did not hold that the two versions of § 632.480(3) are substantively the same, in all respects, the task of determining the distinctions between the two remains in determining the issue presented.

In interpreting statutes, we are to ascertain the intent of the legislature by giving the language used its plain and ordinary meaning. Pavlica v. Director of Revenue, 71 S.W.3d 186, 189 (Mo.App.2002). Where the legislative intent is clear from the language employed in the statute, we are without authority to read into- the statute an intent, which is contrary thereto. Id. ‘When the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutory construction be applied.” Id. (citations omitted).

The prior version of § 632.480(3), defining “predatory acts,” included the phrase: “with whom relationships have been established or promoted for the primary purpose of victimization[,]” which followed “strangers and individuals.” Thus, giving the language of the prior version of § 632.480(3) its plain and ordinary meaning, to constitute a “predatory act,” the act had to be directed toward a stranger or individual with whom a relationship had been established or promoted for the primary purpose of victimization. In other words, under the prior version of the definition, it was not enough that the act was for the primary purpose of victimization. There had to be evidence that a relationship had been established or promoted with the victim for the primary purpose of victimization.

In the amended or revised definition of “predatory act,” the qualifying victims were changed from “strangers or individuals” to “individuals, including family members.” As we discuss, supra, it was this change that the Spencer Court was referencing when it said: “the original definition of the word ‘predatory’ subsumes the second” and that “[t]here is no substantive difference between the two definitions.” 123 S.W.3d at 169 n. 9. In addition to this change, the phrase in the prior version of the definition, “with whom relationships have been established or promoted,” was deleted in the revised definition. Hence, under the revised definition, to establish a “predatory act,” there does not have to be a showing that the alleged act of sexual violence was against a victim with whom the perpetrator had established or promoted a relationship for the primary purpose of victimization. There only has to be a showing that the act is for the primary purpose of victimization. This, of course, constitutes a substantive difference between the two versions of the definition, significantly changing the State’s burden of proving the likelihood of the appellant’s engaging in future predatory acts. Of course, this, in turn, would impact on our review of the appellant’s claim in this point as to the sufficiency of the evidence for the State to make a submissible case on the issue of whether the appellant was more likely than not to engage in future “predatory acts” of sexual violence in that using the prior version of the definition, as agreed to by the State at trial, would favor the appellant in that it would require a greater showing by the State.

The State, accepting in its brief, in reliance on Spencer, that the two versions of the definition of “predatory act” are substantively the same, argues that the evidence was sufficient, under either version of the definition, for the jury to find that the appellant had previously engaged in past predatory acts of sexual violence from which it could then infer that he was more likely than not to engage in future predatory acts of sexual violence, requiring his commitment. In arguing that the appellant’s past acts of sexual violence were predatory in nature, the State fully embraces the fact that it had to show that the appellant had established or promoted relationships with the victims of those past acts of sexual violence for the primary purpose of victimization, as expressly required by the prior version of the definition. However, as we discuss, infra, the State’s evidence was lacking in that respect such that employing the prior version of the definition, as the jury was instructed, the State failed to make a sub-missible case. If the revised version had been instructed upon, the State’s evidence would have been sufficient to demonstrate that the appellant’s prior acts of sexual violence were predatory in nature such that the State would have made a submis-sible case on the issue of whether he was more likely than not to engage in future acts of sexual violence. Hence, whether the State made a submissible case ultimately turned on which version of the definition of “predatory act” was used.

Despite the fact that, in accordance with Spencer, the revised version of the definition of “predatory acts” was the correct version on which the jury should have been instructed, the fact remains that the State stipulated and agreed to the use of the prior version. By stipulating to the version of the definition of “predatory act” to be used in the verdict director, the State waived any objection to that instruction as to the definition of “predatory act.” See Rule 28.03; State v. Leisure, 796 S.W.2d 875, 877 (Mo. banc 1990). Thus, unless there is some recognized legal basis for our saving the State, sua sponte, from its stipulating and agreeing at trial to the jury’s being instructed on the wrong definition of “predatory act,” which it does not ask us to do, our review of the appellant’s claim of error as to the sufficiency of the evidence to establish that he was more likely than not to engage in future predatory acts of sexual violence must be in the context of the prior definition of a “predatory act.”

We find no authority for relieving, sua sponte, the State of the additional burden of proof it accepted by agreeing to the jury’s being instructed on the wrong version of the definition of “predatory act.” If the State were the appellant, plain error review might lie to examine this issue as an allegation of error that was not briefed on appeal, under Rule 84.13(c). But, the State, as the respondent, is not required to allege error on appeal so as to invoke the possible application of the plain error rule. State v. Ramires, 152 S.W.3d 385, 397 (Mo.App.2004). Rather, it is the appellant who is required to allege error. Id. As such, plain error review would not lie to save the State from its mistake as to the applicable law on which the jury should have been instructed.

As discussed, supra, to prove that the appellant was a SVP, as required by § 632.495 for commitment, the State was required to prove, inter alia, that he was “more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility,” as required by § 632.480(5). (Emphasis added.) And, to prove that he was more likely than not to engage in “predatory acts,” in accordance with the prior definition of “predatory acts” found in § 632.480(3), the State was required to prove, beyond a reasonable doubt, that he was more likely than not to engage in “acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization.”

In attempting to prove that the appellant was more likely than not to engage in future predatory acts of sexual violence, the State relied on evidence concerning the appellant’s past acts of sexual violence and the testimony of their medical expert, Dr. Bumby. Past predatory acts of sexual violence are admissible to show that the alleged SVP is more likely than not to engage in future predatory acts of sexual violence. In re Care & Treatment of Kapprelian, 168 S.W.3d 708, 713 (Mo.App.2005). However, the appellant contends that evidence of his past acts of sexual violence, which he admits occurred, did not qualify as evidence of predatory acts of sexual violence because such evidence did not demonstrate that he established or promoted relationships with the victims for the primary purpose of victimization, as required by § 632.480(3) to qualify as “predatory acts.” As to the opinion testimony of Dr. Bumby, that the appellant was more likely than not to engage in future predatory acts of sexual violence if not confined, the appellant contends that it was not supported, as required, by competent evidence in the record in that it was based on his past acts of sexual violence, which, as he contends, did not support an inference of future predatory acts of sexual violence. We agree.

To carry its burden of showing that the appellant was more likely than not to engage in future predatory acts of sexual violence, the State introduced evidence that the appellant was convicted of sexual assault in the second degree in 1989 for forcing the thirteen-year-old victim to fondle his penis. The appellant and his wife had been staying with the victim’s mother, an acquaintance, for approximately two months when the incident occurred. As to other prior acts of sexual violence, the State introduced evidence that the appellant, on January 23, 1993, pled guilty to two counts of sodomy and three counts of sexual abuse. The State’s evidence was that in pleading guilty, the appellant admitted that on March 24, 1992, he inserted his finger into the vagina of a four-year-old girl. At the time, the appellant was playing cards with the victim’s mother, an acquaintance, at her apartment. The appellant also admitted to sexually assaulting an eleven-year-old girl in November of 1991 by putting his hand down inside the victim’s pants and rubbing her vagina for approximately five to ten minutes. At the time, the victim and her mother were living with the appellant’s mother-in-law, along with the appellant and his wife, and others. In addition, the appellant admitted to sexually assaulting his wife’s cousins, ten- and nine-year-old sisters, in October of 1991. At the time, the victims were spending the night at the appellant’s mother-in-law’s apartment, where the appellant and his wife were residing. He admitted that he rubbed their breasts and vaginas through their clothing.

The appellant does not contend that the State’s evidence as to his past acts of sexual violence was not sufficient for the jury to infer that he was likely to re-offend as to future acts of sexual violence. Rather, he contends that the jury could not reasonably infer from the State’s evidence of acts of past sexual violence that he was more likely than not to engage in future predatory acts of sexual violence because, by definition, his past acts of sexual violence were not predatory acts in that the jury could not reasonably infer, as required under the prior definition of “predatory acts,” that in those instances, he established or promoted a relationship with the victims for the primary purpose of victimization. We agree. The only reasonable inference from the State’s evidence as to the appellant’s past acts of sexual violence is that he became acquainted with the victims as a result of familial ties and/or living arrangements, unassociated with any intent to victimize them. In addition, the record reflects that the State did not produce any evidence from which it could be reasonably inferred by the jury that, after the initial relationships were established with the victims, the appellant targeted them for victimization by intentionally cultivating close, trusting relationships with them.

The State contends that its evidence concerning the appellant’s past acts of sexual violence, except the evidence concerning the March 24, 1992, sexual assault on the four-year-old girl, demonstrated that he “typically waited a few months after he started living with his victims to sexually assault them,” and that the jury could infer from this “repeated behavior” that he was “predatory.” We would first note that there is no evidence in the record supporting the fact that the appellant was living with the victims of the October 1991 sexual assaults on the appellant’s wife’s cousins. Hence, out of the five past sexual assaults mentioned in the State’s evidence, only two of the victims were living at the same residence as the appellant. In any event, in making this argument as to the two assaults involving resident victims, the State fails to appreciate the requirement of the prior definition of “predatory acts,” to which it stipulated as applying in the appellant’s case — that the appellant established or promoted relationships with the victims for the primary purpose of victimization. While the appellant’s “repeated behavior” of sexual violence would show a likelihood that he would re-offend in a sexually violent manner, it does not show that he established or promoted relationships with the victims for the primary purpose of victimization, which is necessary to show that he was more likely than not to re-offend in a predatory manner.

The State also contends that the jury could infer from the evidence of the appellant’s past acts of sexual violence, as to the two victims with whom he actually resided, that in waiting several months before sexually assaulting them, he was waiting “until [they] felt comfortable with his presence before preying on them sexually,” from which the jury could infer that he was a predator. In the absence of any evidence that the appellant moved in with the victims for the primary purpose of victimizing them or that after he moved in with them, he made a conscious effort to cultivate a close, trusting relationship with them for the primary purpose of victimizing them, we fail to see how it could be inferred reasonably from the mere passage of time, after moving in with the victims, that the appellant’s past acts of sexual violence were predatory in nature, under the prior definition of “predatory acts,” on which the jury was instructed.

As to the sexual assault on the four-year-old girl on March 24, 1992, which occurred while the appellant was visiting the victim’s mother to play cards, the State contends that the jury could infer from the appellant’s “collective acts” that the assault was “predatory.” The “collective acts” cited consist of the appellant’s “[going] upstairs into the girl’s room, covering] her mouth to prevent her from screaming for help, and forcefully inserting] his finger into her vagina. Then, realizing that her brother might have seen him, he told the boy to go to bed or get a whipping from his mother.” We fail to see how this evidence sheds any light on the issue of whether the appellant established or promoted a relationship with the four-year-old victim for the primary purpose of victimizing her, the critical issue with respect to whether the State made a submis-sible case for a SVP commitment of the appellant.

Inasmuch as the State’s evidence was insufficient for the jury to find that the appellant’s past acts of sexual violence were predatory in nature, the jury could not infer solely from the appellant’s past acts of sexual violence that he was more likely than not to engage in future predatory acts of sexual violence. A reasonable inference is:

a logical a priori conclusion drawn by reason from proven or admitted facts. It is more than, and cannot be predicated on, mere surmise or conjecture. It is not a possibility that a thing could have happened or an idea founded on the probability that a thing may have occurred.

Bond v. Cal. Comp. & Fire Co., 963 S.W.2d 692, 698 (Mo.App.1998). Logically, past acts of sexual violence, while relevant on the issue of whether the appellant would re-offend in a sexually violent manner, would not in and of themselves establish a likelihood of future predatory acts of sexual violence. Hence, in order to make a submissible case on the issue of whether the appellant was more likely than not to engage in future predatory acts of sexual violence, the State had the burden of adducing additional evidence of the likelihood of his committing future predatory acts of sexual violence. In that regard, the State relies on the testimony of Dr. Bumby.

Dr. Bumby, in opining that the appellant was more likely than not to engage in future predatory acts of sexual violence, relied on the evidence of the appellant’s past acts of sexual violence, and, of course, that evidence alone was not sufficient for him to conclude as he did. In addition to the evidence of the appellant’s past acts of sexual violence, the record also discloses that in reaching his opinion, Dr. Bumby relied on the results from several “risk assessments” he conducted. Dr. Bumby testified that these are designed to determine the likelihood of the appellant re-offending in a sexually violent manner. The critical issue, here, however, is not whether the appellant was likely to re-offend in a sexually violent manner, he conceded that issue, but whether he was likely to re-offend in a “predatory” sexually violent manner. Hence, Dr. Bumby’s opinion, that the appellant was more likely than not to engage in future predatory acts of sexual violence, was not supported by the evidence in the record.

Generally speaking, for an expert’s opinion to be admissible, it must be supported by the record. McGuire v. Seltsam, 138 S.W.3d 718, 722 (Mo. banc 2004). An expert, in rendering an opinion, can rely on facts and data not admitted at trial; however, the proponent must show that such facts and data are “of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.” § 490.065.3. There is nothing in the record showing that Dr. Bumby, in rendering his opinion, that the appellant was more likely than not to engage in future predatory acts of sexual violence, was relying on anything other than the appellant’s prior acts of sexual violence and the assessment results. And, there is nothing in the record to suggest that he was relying on facts and data “of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.” Hence, because Dr. Bumby’s opinion was not supported by the record, it was not sufficient, in conjunction with the evidence of the appellant’s past acts of sexual violence, to create a submis-sible case on the issue of whether the appellant was more likely than not to engage in future “predatory acts ” of sexual violence, as the State contends.

As we stated, supra, while it is reasonable to infer from the State’s evidence that he is likely to re-offend in the future in a sexually violent manner, that is not the legal standard by which the legislature has bound us in determining whether a person is subject to civil commitment as a SVP. For such a commitment, we must, by law, find that the anticipated future acts of sexual violence would be predatory in nature, based on the binding statutory definition of “predatory acts.” Here, there is nothing in the record from which the jury could reasonably have inferred, as required to make a submissible case for SVP commitment, that the appellant was more likely than not to engage in future “predatory acts” of sexual violence. To reach that conclusion, the jury would have had to engage in guesswork, conjecture, or speculation, which it could not do. In re Care & Treatment of Cokes, 107 S.W.3d at 323.

Because the State failed to adduce any evidence from which the jury could infer reasonably that the appellant was more likely than not to engage in future “predatory acts,” as defined in the prior version of § 632.480(3), of sexual violence, the trial court erred in failing to sustain the appellant’s motion for directed verdict, requiring us to reverse. However, inasmuch as it appears from the record that there was evidence available on which the State could have made a submissible case on the correct version of the definition of “predatory acts,” if fully developed, we reverse and remand for a new trial. See In re Care & Treatment of Cokes, 107 S.W.3d at 324 (holding that in a SVP commitment case, which is a civil proceeding, we will reverse and remand for a new trial if the record indicates that there was evidence available to the State on which it could have shown that the defendant was more likely than not to engage in future predatory acts of sexual violence).

In reversing and remanding for a new trial, the appellant’s other points are rendered moot. As a general rule, “[w]hen an event occurs making a court’s decision on an issue unnecessary, or makes the granting of effectual relief impossible, the issue is moot and should not be addressed.” Inman v. Mo. Dept. of Corr., 139 S.W.3d 180, 185 (Mo.App.2004). As an exception to this general rule, a court may review a moot claim it presents “a recurring unsettled legal issue of public interest and importance that will escape review unless the court exercises its discretionary jurisdiction.” State ex rel. County of Jackson v. Mo. Pub. Serv. Comm’n, 985 S.W.2d 400, 403 (Mo.App.1999) (citations omitted). However, if the mooted issue “is likely to be present in a future live controversy practically capable of review,” this exception to the mootness doctrine does not apply. Id. (citations omitted). Such is the case here.

Conclusion

The judgment of the circuit court, committing the appellant to the custody of the Missouri Department of Mental Health, pursuant to the Sexually Violent Predator Act, §§ 632.480-.513, is reversed and remanded for further proceedings in accordance with this opinion.

LOWENSTEIN and ULRICH, JJ., concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      . If plain error review were available to the State so as to make a submissible case using the revised version of the definition of “predatory act,” it could then argue for an affirmance based on the fact that the error in the instruction was harmless in that it required the State to accept a greater burden than required. See State v. Poe, 857 S.W.2d 419, 424 (Mo.App.1993).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Howard D. FRAZIER, Appellant.
    No. WD 63502.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.
    Ruth Sanders, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before SMITH, C.J., ULRICH and HARDWICK, JJ.
   ORDER

PER CURIAM.

Howard Frazier was convicted by jury of first-degree murder and armed criminal action. On appeal, he contends the trial court abused its discretion in allowing the State to present a police officer’s testimony that improperly bolstered the testimony of another witness for the prosecution.

Upon review of the briefs and the record, we find that Frazier suffered no prejudice from the error asserted. Accordingly, the convictions are affirmed. The parties have been provided with a Memorandum further explaining the reasons for our decision, because a published opinion would serve no jurisprudential purpose.

AFFIRMED. Rule 30.25(b).


text:
    Vicky Ilene PRITCHETT, Appellant, v. Scott Wayne PRITCHETT, Respondent.
    Nos. WD 64825, WD 65147.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.
    Dennis J. Campbell, Kansas City, for Appellant.
    Joseph D. Baker, Osceola, for Respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge, and JOSEPH M. ELLIS, Judge.
   ORDER

Vicky Pritchett appeals from a custody modification order transferring primary physical custody of the child to the child’s Father, Scott Pritchett. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Judgment affirmed pursuant to Rule 84.16(b).


text:
    Lezlee Ann JOHNSON, Respondent, v. Ross Evan JOHNSON, Jr., Appellant.
    No. WD 64820.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.
    Renna C. Stallings, Bethany, MO, for appellant.
    Thomas R. Summers, St. Joseph, MO, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Ross Johnson (“Husband”) appeals from a judgment entered in the Circuit Court of Nodaway County dissolving his marriage to Lezlee Johnson (“Wife”). Specifically, Husband contends that the trial court erroneously failed to award him a sufficient amount of parenting time with the couple’s children, improperly denied his request for maintenance, and divided the marital property in an inequitable and unjust manner. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: EDWIN H. SMITH, Chief Judge.

text:
    James Wesley EDDY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64330.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.

      Margaret M. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: EDWIN H. SMITH, C.J., and ULRICH and SMART, JJ.
   EDWIN H. SMITH, Chief Judge.

James W. Eddy appeals from the order of the circuit court overruling his Rule 24.035 motion for post-conviction relief, without an evidentiary hearing. The appellant pled guilty in the Circuit Court of Sullivan County, Missouri, to possession of drug paraphernalia, in violation of § 195.233, and was sentenced to five years imprisonment in the Missouri Department of Corrections.

The appellant raises one point on appeal. He claims that the motion court clearly erred in overruling his Rule 24.035 motion, without granting an evidentiary hearing, because he alleged facts, not conclusions, in his motion, which were not refuted by the record, and which, if true, would establish that he received ineffective assistance of counsel as a result of his trial counsel’s failing to file a motion to suppress the items of drug paraphernalia that were seized (pseudoephedrine pills, blender, and muriatic acid), rendering his plea of guilty-involuntary.

We affirm.

Facts

On October 3, 2001, the appellant was charged in the Circuit Court of Sullivan County, by Information, in Count I, with the class D felony of possession of drug paraphernalia with intent to use, in violation of § 195.233, and alternatively, in Count II, with the class D felony of possession of pseudoephedrine with intent to manufacture methamphetamine, in violation of § 195.246. The State alleged in Count I that “on or about June 2, 2001, in the County of Sullivan, State of Missouri, the Defendant possessed pseudoephedrine, muriatic acid and a blender, which were drug paraphernalia, knowing of them presence and illegal nature, with intent to use them to manufacture methamphetamine.” In Count II, the State alleged that “on or about June 2, 2001, in the County of Sullivan, State of Missouri, the Defendant, with intent to manufacture methamphetamine knowingly possessed pseudoephedrine.”

On October 29, 2001, the appellant pled guilty to Count I, pursuant to a plea agreement. Count II was dismissed. The appellant’s plea was accepted, and he was sentenced, on October 29, 2001, to five years imprisonment in the Missouri Department of Corrections. In accepting the appellant’s plea, the plea court, in accordance with Rule 24.02(c), determined that his plea of guilty was “voluntary and not the result of force or threats or of promises apart from a plea agreement.” In that regard, the plea court inquired, specifically, whether he understood that by pleading guilty he was waiving his right to appeal and his right to challenge the legality of his arrest, and the legality of the search that led to the discovery of the drug paraphernalia and its seizure. He said that he understood.

The appellant waived a presentence investigation and was sentenced, on the day of his plea, to five years in the Missouri Department of Corrections. After being sentenced, the plea court, in accordance with Rule 29.07(b)(4), advised him of his right to proceed under Rule 24.035 and examined him as to the assistance of counsel he received. The appellant stated, under oath, that he was satisfied with his trial counsel’s performance. The plea court determined that probable cause did not exist to believe that the appellant had received ineffective assistance of counsel.

On January 29, 2002, the appellant filed a timely pro se motion to vacate, set aside, or correct the judgment or sentence, pursuant to Rule 24.035. The appellant filed an amended pro se motion on February 4, 2002, alleging, inter alia, that he received ineffective assistance of trial counsel in that his attorney failed to investigate and file a motion to suppress the search that led to the discovery of the drug paraphernalia and its seizure.

Motion counsel was appointed for the appellant on February 6, 2002. On August 22, 2002, counsel waived the filing of an amended motion, as authorized by Rule 24.035(e), and filed a motion to withdraw as counsel, which motion was overruled on December 16, 2002. On reconsideration, on November 26, 2003, the motion court granted counsel’s motion to withdraw. On January 25, 2004, the motion court entered its findings of fact and conclusions of law, and order overruling the appellant’s Rule 24.035 motion, without an evidentiary hearing. On March 6, 2004, the motion court entered a “corrected” order.

This appeal follows.

Standard of Review

Our review of the denial of a Rule 24.035 motion is limited to a determination of whether the motion court’s findings of fact and conclusions of law were clearly erroneous. Rule 24.035(k); Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). Findings and conclusions are clearly erroneous only if, after review of the entire record, we are left with a definite and firm impression that a mistake has been made. Id.

I.

In his sole point on appeal, the appellant claims that the motion court clearly erred in overruling his Rule 24.035 motion, without granting an evidentiary hearing, because he alleged facts, not conclusions, in his motion, which were not refuted by the record, and which, if true, would establish that he received ineffective assistance of counsel as a result of his trial counsel’s failing to file a motion to suppress a bag of pseudoephedrine pills, a blender, and a gallon of muriatic acid, rendering his plea of guilty involuntary. Specifically, he claims, in his brief, that his trial counsel should have filed a motion to suppress the drug paraphernalia in that the police lacked probable cause to search his person and his motor vehicle, from which the items were seized.

In order to prevail on a claim of ineffective assistance of counsel, a movant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), requiring proof by a preponderance of the evidence that: (1) movant’s counsel failed to exercise the customary skill, care, and diligence that a reasonably competent attorney would perform under similar circumstances; and (2) the movant was prejudiced thereby. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and the movant’s claim of ineffective assistance of counsel must fail. State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998) (cert. denied, 526 U.S. 1100, 119 S.Ct. 1580, 143 L.Ed.2d 674 (1999)).

To satisfy the performance prong of the Strickland test, the movant must overcome the presumptions that “the challenged action [of counsel] was sound trial strategy,” and that counsel “rendered adequate assistance” and “made all significant decisions in the exercise of reasonable professional judgment.” Id. As to the prejudice prong, where a movant has pled guilty, the prejudice prong “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997). To satisfy the prejudice prong in the context of a guilty plea, a movant “must show a reasonable probability that, but for counsel’s unprofessional errors, [he] would not have pled guilty and would instead have insisted upon going to trial.” Nunley, 980 S.W.2d at 292. Thus, “once a plea of guilty has been entered, the effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea.” Redeemer v. State, 979 S.W.2d 565, 569 (Mo.App.1998) (quoting Roland v. State, 824 S.W.2d 526, 529 (Mo.App.1992)). Absent an abuse of discretion, we will defer to the trial court’s determination that the appellant’s guilty plea was voluntary. Wolf v. State, 790 S.W.2d 261, 262 (Mo.App.1990).

The motion court is not required to hold an evidentiary hearing on a motion for post-conviction relief in all circumstances. If the motion court determines that “the motion and the files and records of the case conclusively show that the mov-ant is entitled to no relief, a hearing shall not be held.” Rule 24.035(h). Thus, to be entitled to an evidentiary hearing on a Rule 24.035 motion: (1) the movant must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not conclusively refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant. Rule 24.035(h); Peiffer v. State, 88 S.W.3d 439, 445 (Mo. banc 2002); State v. Driver, 912 S.W.2d 52, 55 (Mo. banc 1995). Given this standard for entitlement to an evidentiary hearing and the Strickland test for determining ineffective assistance of counsel, to be entitled to an evidentiary hearing on his claim of ineffective assistance of counsel, the appellant was required to allege, in his motion, facts, not conclusions, which were not refuted by the files and records in the case, demonstrating that in failing to file a motion to suppress the pills, the blender, and the acid, his trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and that there was a reasonable probability that, absent this failure, he would not have pled guilty, but would have proceeded to trial.

Counsel will not be found to be ineffective for failing to investigate and file a meritless motion to suppress. State v. Hunter, 840 S.W.2d 850, 870 (Mo. banc 1992). Hence, in order for the appellant to be entitled to an evidentiary hearing on whether his counsel was ineffective on the basis alleged, he had to allege facts, not conclusions, specifying the grounds on which the motion to suppress would have been successful. See Edgar v. State, 145 S.W.3d 458, 461-62 (Mo.App.2004) (holding that, in the context of an ineffective assistance claim for counsel’s failure to challenge a venireperson for cause, the appellant had to show that had his counsel challenged that venireperson for cause, there was a reasonable probability that person would have been stricken). Thus, the appellant had to allege facts in his motion that demonstrated the illegality of his arrest and the subsequent seizure, which he did not do.

In his initial pro se motion and amended motion, the appellant did not allege facts demonstrating how a motion to suppress would have been successful. In fact, the appellant did not allege any facts with respect to a motion to suppress, aside from the allegation that his counsel did not subpoena anyone to testify at a motion to suppress hearing. In that regard, the appellant alleged in his initial pro se motion that:

I have a letter where my lawyer tells me “he finds no case in point to support our position,” “the country jury wouldn’t need much convincing to convict me,” “he urged me to take the plea,” he threatened me that “I would be convicted of a Class B Felony wich [sic] carries 5 to 15 where I’d serve the majority of [the sentence],” and he didn’t sobpeona [sic] witnesses to my motion to supress [sic] hearing or object to prosecutor questions like he should have.

In his amended motion, he simply reiterated his claim that his counsel did not subpoena any witnesses for a motion to suppress hearing, that his counsel told him that he did not think there would be any merit in making a motion to suppress, and that his counsel urged him to plead guilty because he was facing a “country” jury, which would likely convict, so that he would be facing a sentence of five to fifteen years.

Point denied.

Conclusion

The order of the motion court overruling the appellant’s Rule 24.035 motion for post-conviction relief, without an evidentia-ry hearing, is affirmed.

ULRICH and SMART, JJ., concur.

      . All rule references are to the Missouri Rules of Criminal Procedure, 2004, unless otherwise indicated.

      . All statutory references are to RSMo, 2000, unless otherwise indicated.

      . We assume the appellant’s second motion is an amended motion, but it is not labeled as such.


text:
    Keith KELLY, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, Respondent.
    No. WD 64834.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.
    Keith Kelly, Pro Se, Pacific, for appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Shaun Mackelprang, Office of Attorney General, Jefferson City, for respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Keith Kelly appeals the circuit court’s judgment granting the Department of Correction’s motion for summary judgment. We affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Earl STANLEY, Appellant.
    No. WD 64218.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.
    Rebecca L. Kurz, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before SMITH, C.J., LOWENSTEIN and HOWARD, JJ.
   ORDER

PER CURIAM.

Appellant was convicted of the first-degree offenses of child molestation under Section 566.067, RSMo. (2000), and statutory sodomy under Section 566.062, RSMo. (2000). Appellant claims that (1) his convictions are not supported by sufficient evidence, (2) the trial court admitted improper victim impact evidence in the sentencing phase of Appellant’s trial, and (3) the trial court erred by overruling his gender Batson objection. Affirmed. Rule 30.25(b).


author: PRICE, J.,

text:
    Jeffery Arnold THRIFT, Appellant, v. The STATE of Texas.
    No. PD-860-04.
    Court of Criminal Appeals of Texas.
    Nov. 2, 2005.
    Walter M. Reaves, Jr., West, for appellant.
    Christy Barber, Asst. D.A., Waco, Matthew Paul, State’s Attorney, Austin, for state.
   OPINION

PRICE, J.,

delivered the opinion for a unanimous Court.

The appellant was charged with sexual assault of a child and indecency with a child. At trial, evidence was admitted, over defense objection, to prove an element of the indecency count. The jury was instructed to consider that evidence for the indecency count only. On appeal, the court of appeals concluded that the trial court erred in admitting the evidence and that the appellant was harmed. The court reversed the indecency conviction. We granted review of the appellant’s claim that the harm from the evidence was not limited to the indecency count, but that it also had a spillover effect on the sexual assault count. We hold that the jury instruction properly limited the jury’s consideration of the evidence, and that the appellant failed to demonstrate that any spillover occurred that tainted the conviction for sexual assault of a child.

I. Facts and Procedural History

The appellant, an eighteen-year-old male, was charged with sexual assault of a child and indecency with a child. Both allegations involved the same victim, a fourteen-year-old boy, and stemmed from the same episode. At trial, the State introduced several pictures of nude males that were recovered from the appellant’s house. These pictures were either printed from internet sources or photocopied from magazines — the pictures were not photographs of the complainant and were not taken by the appellant.

The appellant objected to the pictures as inadmissible under Rule 403, Texas Rules of Evidence, claiming that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or its tendency to mislead the jury. The trial court admitted the pictures on the grounds that they were relevant to prove that the act supporting the indecency count was done with the intent to arouse the appellant, this intent being an element of that crime. In the jury charge, the trial court included the following instruction to the jury:

You are instructed that certain testimony has been admitted before you regarding certain pictures, State’s exhibits 15, 16, 17 and 18. You cannot consider said pictures and testimony concerning same unless you believe beyond a reasonable doubt that the defendant possessed said pictures, if he did. And even then you may only consider same, if you consider same at all, in determining the intent of the defendant to arouse or gratify his sexual desire as alleged in Count Two of the indictment, and for no other purpose.

The jury found the appellant guilty of both indecency with a child and sexual assault of a child and sentenced him to fifteen years’ imprisonment on each of the two counts.

On appeal, the Tenth Court of Appeals held that admitting the pictures was an abuse of discretion by the trial court, despite a dissenting opinion that asserted that the pictures were necessary and relevant to prove the appellant’s intent. The court of appeals found harmful error and accordingly reversed the conviction for indecency with a child. The court of appeals did not reverse the appellant’s conviction for sexual assault of a child. The appellant filed a motion for rehearing, claiming that the pictures had a spillover effect and that both convictions, not just the indecency conviction, were tainted, despite the limiting instruction by the trial court. Against a concurrence claiming that the appellant waived his spillover issue by not asserting it in the original appeal, the court of appeals considered the issue and held that, although it accepted the proposition that a spillover effect could occur, there was no spillover in the appellant’s case that required reversal.

We granted the appellant’s petition for discretionary review. We affirm the court of appeals and hold that the conviction for sexual assault of a child was not tainted because the trial court properly limited consideration of the pictures as evidence of intent on the indecency count.

II. Parties’ Arguments

The appellant asserts that in determining the photographs to be inadmissible, the court of appeals concluded that the pictures were highly inflammatory and, because the evidence against the appellant was not overwhelming, the error was not harmless. According to the appellant, the harm from the pictures not only influenced the jury in its finding of indecency with a child, but also in its guilty verdict on the count of sexual assault of a child. In essence, the appellant argues that the spillover effect of the improperly admitted pictures influenced not only the indecency with a child finding, but also the jury’s finding of guilt on the sexual assault charge, even though the trial court instructed that the pictures were only to be considered as evidence of intent on the indecency count.

The State did not file a cross-petition challenging the decision below for reversing the appellant’s conviction for indecency with a child. However, the State argues that the conviction for sexual assault of a child should be upheld because the photographs were limited in scope and because the jury was properly instructed to only consider the pictures for the intent element on the charge of indecency with a child only. The State also agrees with the concurring opinion to the denial of rehearing and contends that the appellant did not bring the spillover issue in its original appeal and should be denied review for this reason alone.

III. Law and Analysis

The appellant’s brief on original submission was ambiguous as to whether he was claiming error only in the conviction for indecency with a child or in both convictions. This ambiguity caused one justice on the court of appeals and the State to argue that the appellant waived his right to further review. Out of an abundance of caution and because the appellant’s brief on original submission arguably encompassed the issue, the court of appeals considered the merit of the appellant’s claim of a spillover effect from the evidence that may have influenced the jury’s deliberation on the count of sexual assault of a child. Just as the court of appeals addressed this issue despite the ambiguity of the appellant’s claim, we also will consider the merits of this case in order to clarify the ruling of the court of appeals.

In determining whether there was a spillover effect in the present case, the court of appeals considered United States v. Pelullo, a case from the Court of Appeals for the Third Circuit, which noted that, although the invalidation of the conviction on one count will not generally lead to reversal on other counts, there is a possibility of a spillover effect from the tainted count that could be sufficiently prejudicial to require reversal of all counts. Pelullo listed many factors to consider when deciding whether there was spillover, including, but not limited to, whether the charges are intertwined with each other and whether the evidence for each count was sufficiently distinct to support the verdict on other separate counts. In determining that there was not a spillover effect in the present case, the court of appeals applied this analysis to the facts of the appellant’s case and noted that the trial court had limited the jury’s consideration of the pictures to the intent element of the indecency count.

We also recognize the possibility that inadmissible evidence admitted for one purpose could spill over and taint another conviction. Unlike the court of appeals, however, we decline to adopt the Third Circuit’s approach to determine whether there was spillover in this case. An analysis of the factors set forth in Pelullo is unnecessary to the outcome of this case because the jury was instructed that it was to consider the pictures of the nude males only as evidence of intent on the indecency count, “and for no other purpose.” The critical determination we must make is whether the trial court’s instruction was effective to prevent spillover.

The court of appeals held that the instruction was ineffective to limit the jury’s consideration to only intent for the indecency count. Nonetheless, the court of appeals cited the effectiveness of the jury charge as a factor in deciding that there was not spillover from the evidence that could have tainted the conviction for sexual assault of a child. Because the State did not seek review of the reversal on the indecency conviction, whether the court of appeals was correct in its determination of the effectiveness of the instruction limiting the pictures to evidence of intent is not an issue before this court. However, the effectiveness of the jury instruction at limiting the consideration of the pictures to the indecency charge is an issue before this court that is directly relevant in deciding whether spillover occurred.

The instruction in this case is clear, determinative, and it unambiguously limited the consideration of the pictures to the indecency charge. It even refers to “count two” of the indictment, which was the charge for indecency with a child, and makes clear that the pictures were to be used “for no other purpose” than “count two.” On appeal, we generally presume the jury follows the trial court’s instructions in the manner presented. The presumption is refutable, but the appellant must rebut the presumption by pointing to evidence that the jury failed to follow the trial court’s instructions. In this case, the appellant has failed to rebut the presumption that the jury followed the trial court’s instruction. In light of the trial court’s proper instruction regarding the use of the evidence and the appellant’s failure to-rebut the presumption that the jury followed that instruction, we presume that the jury did not consider the nude pictures in their determination of guilt on the charge of sexual assault of a child. Therefore, the appellant failed to demonstrate that there was any spillover effect resulting from the admission of the pictures.

IV. Conclusion

The court of appeals did not err in affirming the appellant’s conviction for sexual assault of a child. We affirm the judgment of the court of appeals.

      . Thrift v. State, 134 S.W.3d 475, 477 (Tex.App.-Waco 2004).

      . Id. at 479-81.

      . Id. at 483 (op. on reh’g).

      . 14 F.3d 881, 897-98 (3rd Cir.1994).

      . Id. at 898-99.

        . Thrift, 134 S.W.3d at 483 (op. on reh’g).

      . Ibid.

        . Id. at 479-483.

      . Id. at 477.

      . Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998) (july presumed to disregard parole during deliberation when so instructed); Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App.1996) (jury presumed to follow court’s instructions as given); Waldo v. State, 746 S.W.2d 750 (Tex.Crim.App.1988) (jury presumed to follow instruction to disregard evidence); Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.1987).

        . See Colbum, 966 S.W.2d at 520.


author: COCHRAN, J.,

text:
    Ex Parte Steven Michael WOODS.
    No. AP-75287.
    Court of Criminal Appeals of Texas.
    Nov. 2, 2005.

      Alexander Calhoun, Austin, for Appellant.
    Kathleen Walsh, Asst. Crim. Dist. Atty., Denton, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, PRICE, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined.

This is an application for writ of habeas corpus filed pursuant to Article 11.071 of the Texas Code of Criminal Procedure.

On August 21, 2002, applicant was convicted of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant’s conviction and sentence on direct appeal. Woods v. State, 152 S.W.3d 105 (Tex.Crim.App.2004).

Applicant presents fifteen allegations in his application in which he challenges the validity of his conviction and resulting sentence. The trial court did not hold an evidentiary hearing. The trial court entered findings of fact and conclusions of law and recommended that the relief sought be denied. We adopt the trial court’s comprehensive findings of facts and conclusions of law and, based upon those findings and our own independent review, we deny relief.

We need address only why applicant’s first claim — that of ineffective assistance of counsel during the punishment phase of his trial — is without merit when gauged by the standards set out in Strickland v. Washington, and refined by Wiggins v. Smith.

In his application for writ of habeas corpus, applicant repeatedly cites to Wiggins v. Smith, arguing that, much like the attorneys in Wiggins, applicant’s trial counsel failed to properly investigate his background and failed to present available mitigating evidence. While there are some similarities between applicant’s claim and that found in Wiggins, their differences predominate.

Kevin Wiggins was convicted of first degree murder, robbery, and theft by a Maryland judge, and he then elected to be sentenced by a jury. During opening arguments of his sentencing hearing, Wiggins’s attorneys promised to present evidence of their client’s “difficult life.” However, during that hearing, they presented no evidence concerning his alcoholic mother, sexually abusive foster parents, or any other mitigating circumstances. Instead, they focused wholly on “ ‘retrying the factual case’ and disputing Wiggins’s direct responsibility for the murder.” The Supreme Court found their performance to be deficient, not because they failed to present the mitigating evidence that they had promised, but because they failed to investigate mitigating factors.

While Strickland does not require defense counsel to investigate each and every potential lead, or present any mitigating evidence at all, it does require attorneys to put forth enough investigative efforts to base their decision not to present a mitigating case on a thorough understanding of the available evidence. Because the attorneys in Wiggins did not conduct an adequate investigation, they could not have made “a fully informed decision with respect to sentencing strategy.” Thus, they failed to provide objectively reasonable assistance of counsel under the first prong of the Strickland standard.

However, in the present case, applicant’s attorneys did investigate their client’s background, and did present mitigating evidence, albeit only á minimal amount. During their investigation, they spoke with applicant’s family members, tracked down-medical, psychological and school records, used expert witnesses, and extensively interviewed applicant himself regarding potential mitigating evidence.

Applicant’s counsel hired three separate mitigation specialists to interview applicant and testify on his behalf. One of the three experts performed so poorly that the attorneys dismissed her early in their trial preparation. The second expert, Dr. Kelly Goodness, interviewed applicant extensively, and fully reviewed his social and medical history. Based on her findings, Dr. Goodness was unwilling to state under oath that applicant would not pose a threat of future dangerousness, and she believed that no other objective expert would be able to reach a different conclusion based upon personal interaction with applicant.

Armed with this expert’s opinion and her extensive information about their client’s background and personality, applicant’s attorneys took Dr. Goodness’s advice to hire a third expert, Dr. Robin Neeley, to review applicant’s records without conducting any face-to-face interviews. They hoped Dr. Neeley could give a “more objective, clinical-type opinion for mitigation,” without being subject to cross-examination on her personal knowledge of applicant’s previous “inappropriate” social behavior. Dr. Neeley testified during the sentencing hearing about applicant’s drug addiction, self-injurious and suicidal behavior, abusive and alcoholic father, neglectful mother, and institutionalization for mental and drug-related problems. In fact, much of the mitigating evidence applicant now claims his attorneys should have presented through his friends and family was presented by Dr. Neeley. While applicant argues that this evidence would have been more favorable and personal if it had come directly from those who knew him best, his attorneys had good reasons for not calling these witnesses to testify at trial. They did not want the jury to “know” applicant.

Applicant’s mother was willing to testify, but she was unwilling to admit that her son’s failings had anything to do with his upbringing because she felt that she was a good mother who did the best she could with an out-of-eontrol child. Before trial, applicant’s father repeatedly refused to testify on his son’s behalf under any circumstances. While other witnesses may have been willing to testify on applicant’s behalf, they would have been subject to cross-examination regarding their knowledge of applicant’s involvement in Satanism, his proclivity for making and using pipe bombs, and his abusive behavior towards other people as well as animals. It was not a deficient strategy for applicant’s attorneys to decline to call witnesses who would testify to some mitigating facts, but then be subject to cross-examination concerning a vast array of aggravating facts.

Further, the State informed applicant’s attorneys that it had substantial rebuttal evidence ready if applicant sponsored such witnesses. This included evidence that applicant:

• sexually abused both his younger brother and a former girlfriend;
• made bombs in his home;
• physically abused his siblings;
• physically abused his dogs;
• attempted to burn down his school;
• physically threatened his teachers;
• actively participated in Nazi and skinhead groups;
• dealt drugs; and
• regularly carried a gun.

Applicant’s stepfather, fiancée, and his fi-ancée’s family were all willing to testify for the State regarding applicant’s anti-social, sadistic behavior and bad character.

Applicant himself refused to give his own attorneys details of his “troubled” past. He consistently minimized the impact of — or denied the existence of — most of the mitigating evidence his attorneys were able to find. While applicant certainly would have been able to testify regarding his deeply “troubled” past, he was unwilling to admit that his childhood was anything other than that of the average person. Based on applicant’s unwillingness to openly discuss mitigating evidence, and the other extraordinarily damaging information his attorneys learned of during their investigation, they determined that the best sentencing strategy would be to present only the clinical, objective opinion of an expert witness.

Applicant’s trial attorneys did not interview each and every potential witness now suggested by applicant in his habeas application, and therefore they did not conduct the most thorough investigation possible. Other attorneys might have interviewed more potential witnesses or used a different strategy at sentencing. However, unlike the attorneys in Wiggins, ample evidence shows that their decision not to pursue such avenues was based on “reasonable professional judgments [supporting] the limitations on investigation.” When an attorney opens Pandora’s box, he is not constitutionally required to examine each and every disease, sorrow, vice, and crime contained therein before quietly and firmly closing the cover.

It is entirely reasonable to conclude that a Texas jury would be singularly unimpressed by the sordid details of applicant’s background and bad character traits. Reasonable judgment in determining a sentencing strategy is sufficient under the standard set forth by the Supreme Court in Strickland and refined in Wiggins. Because applicant has failed to prove that his attorneys did not meet this standard, we conclude that applicant’s ineffective assistance of counsel claim is without merit under federal constitutional standards.

WOMACK, J., concurs in the denial of relief.

      . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also Rompilla v. Beard, - U.S. -, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).

      . Id. at 515, 125 S.Ct. 2456.

      . Id.

      . Id. at 515-17, 125 S.Ct. 2456.

      . Id. at 517, 125 S.Ct. 2456.

      . Id. at 522-34, 125 S.Ct. 2456. The Supreme Court found the failure to investigate was unreasonable because the attorneys had access to information in the Department of Social Services report and the presentence investigation which would have led a reasonable attorney to further investigate Wiggins’s family and social history.

      . Id. at 533, 125 S.Ct. 2456. Strickland sets out a two prong test for determining whether trial counsel was constitutionally ineffective. A defendant must first prove that his trial counsel’s performance fell below an objective standard of reasonableness. If this prong is met, the defendant must then show that but for the ineffective assistance, a reasonable probability exists that the outcome of the trial would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

      . Wiggins, 539 U.S. at 528, 123 S.Ct. 2527.

      . Id. at 533, 123 S.Ct. 2527. The Supreme Court noted that Wiggins "has the kind -of troubled history we have declared relevant to assessing a defendant's moral culpability.” The Court went oh to find "that had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.” Id. at 535-36, 123 S.Ct. 2527.

      . Id. at 533, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).


text:
    Arthur Himel ROZELL, Appellant, v. The STATE of Texas.
    Nos. PD-566-04, PD-567-04.
    Court of Criminal Appeals of Texas.
    Nov. 2, 2005.

      R. Scott Shearer, Houston, for appellant.
    Alan Curry, Asst. D.A., Houston, Matthew Paul, State’s Attorney, Austin, for state.
   OPINION

PRICE, J.,

delivered the opinion for a unanimous Court.

The appellant was convicted of two separate counts of aggravated sexual assault of a child, and the jury assessed punishment at 15 years’ confinement on each count. He filed a motion for new trial, but did not specifically request a hearing on the motion. The motion was overruled by operation of law. On direct appeal the appellant complained that the trial court did not, but should have, held a hearing on his motion. The court of appeals affirmed, holding that the appellant was not entitled to a hearing in the absence of a request for one. We granted review to determine whether the court of appeals erred. We affirm the judgment of the court of appeals because the appellant’s motion for new trial did not put the trial court on notice that he was requesting a hearing.

I. Facts and Procedural History

After being convicted and sentenced for two counts of aggravated sexual assault of a child, the appellant filed a motion for a new trial in which he claimed that (1) he had newly discovered evidence, (2) trial counsel provided ineffective assistance, and (3) the evidence at trial was both legally and factually insufficient to support the jury’s verdict. The motion was timely filed and supported by sworn affidavits.

The motion contains no request for a hearing. Two orders were attached to the motion. The first, labeled “Order-Time to Present,” gave the trial court the option to set a hearing within ten days of filing, set a hearing within 75 days of filing, grant the motion without a hearing, or deny the motion without a hearing. A second order, labeled “Order-Determination,” gave the trial court the option to deny or grant the motion for new trial.

The trial court made a notation on the first order, “Presented, 11-7-02.” The trial court did not hold a hearing on the motion for new trial, and the motion was overruled by operation of law.

On direct appeal, the appellant argued that, because the motion was presented, the trial court erred by not holding a hearing on the motion. The court of appeals affirmed the conviction and sentence, holding that the trial court could not abuse its discretion in denying him a hearing on his motion for new trial because the appellant never requested a hearing.

II. Parties’ Arguments

In his petition and brief on discretionary review, the appellant argues that his motion was timely filed and presented to the trial court, was supported by affidavits, and raised matters that were not determinable from the record. He claims that all of the procedural requirements were met and that a hearing on the motion was mandatory. He believes that the court of appeals erred by creating a new requirement to obtain a hearing on a motion for new trial.

The State argues that the appellant did not request a hearing, and therefore, he cannot complain now that the trial court did not hold one. The State also claims that the affidavits attached to the appellant’s motion did not show reasonable grounds that he was entitled to relief.

III. Law and Analysis

The right to a hearing on a motion for new trial is not absolute. Generally, a trial court should hold a hearing if the motion and attached affidavit raise matters that are not determinable from the record that could entitle the accused to relief. In addition to timely filing the motion with supporting affidavits that demonstrate reasonable grounds for believing that some error has occurred, the defendant must present the motion to the trial court.

We have held that to present a motion in the context of a motion for new trial, the defendant must give the trial court actual notice that he timely filed a motion for new trial and requests a hearing on the motion for new trial. In Carranza v. State, we specifically addressed what it means to present a motion for new trial to the trial court. We quoted with approval language from Judge Overstreet’s concurring opinion in the case that presentment includes actual notice of the desire to have a hearing.

The rationale for this requirement is the same as that which supports preservation of error generally: A trial court should not be reversed on a matter that was not brought to the trial court’s attention. Presenting the motion, along with a request for a hearing, is required to let the court know that the defendant wants the trial court to act on the motion and whether the defendant would like a hearing on the motion.

Presenting the motion for new trial and the request for a hearing is akin to objecting to the erroneous admission of evidence. Absent a proper objection that alerts the trial court to the erroneous admission, the error has not been preserved for appellate review. Thus, a reviewing court does not reach the question of whether a trial court abused its discretion in failing to hold a hearing if no request for a hearing was presented to it.

On the record before us in this case, we cannot conclude that the appellant’s desire for a hearing was brought to the attention of the trial court. Nowhere in the motion did the appellant request a hearing. The order attached to the motion, labeled “Order — Time to Present,” included the options of having a hearing or ruling on the motion without a hearing, which, without a more specific request, left to the trial court’s discretion whether a hearing should be held. We hold that, in this ease, the appellant did not adequately advise the trial court of his desire to have a hearing.

IV. Conclusion

The record does not support the conclusion that the appellant presented a motion with a request for a hearing. Therefore, we hold that the error in failing to hold a hearing, if any, was not preserved for review. We affirm the judgment of the court of appeals.

      . See Tex.R.App. P. 21.8 (c)

      . Rozell v. State, 137 S.W.3d 106, 108 (Tex.App.-Houston [1st Dist.] 2004).

      . Because we conclude that the appellant did not request a hearing, we need not address the State's contention that the affidavits did not specifically show the truth of the grounds for new trial.

      . Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App.1993).

      . Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App.2003).

      . Reyes, 849 S.W.2d at 816.

      . Carranza v. State, 960 S.W.2d 76, 79 (Tex.Crim.App.1998).

      . Ibid. (quoting with approval language from Judge Overstreet’s concurring opinion in the case); Id. at 81 (Overstreet, J., concurring).

      . Id. at 78.

      . Tex.R.App. P. 33.1.