IN RE: THE CARE AND TREATMENT OF JASON OSBORN (2026)

After a bench trial, Jason David Osborn (“Osborn”) was committed to the custody of the Department of Mental Health (“DMH”) under the Sexually Violent Predator Act (“SVPA”), §§ 632.480 through 632.513.¹ Osborn appeals, alleging the trial court erred in finding the State presented sufficient evidence to make a submissible case. Specifically, Osborn alleges that the State did not present evidence that he was found guilty of a predicate “sexually violent offense,” an essential element under the SVPA. We affirm.

Factual and Procedural Background

We view the record in the light most favorable to the verdict. See Kirk v. State, 520 S.W.3d 443, 449 (Mo. banc 2017). In 1986, in the state of Oregon, Osborn passed a note to a 13-year-old boy offering him oral sex. After a verbal confrontation, Osborn patted the boy on the buttocks. The boy was able to flee, and the police were called. A few weeks later, Osborn asked a 14-year-old boy at the local city hall for oral sex, pushed him against a wall, and tried to cover his mouth. That boy was also able to flee, and the police were contacted. Osborn ultimately pled guilty to misdemeanor harassment. In 1987, while still on probation for the harassment conviction, Osborn was found guilty in Oregon of second-degree sexual abuse against a 15-year-old boy.

In 1988, a 10-year-old boy was at Osborn's house in Oregon and Osborn touched the boy's penis while the boy was urinating. Osborn was charged with first-degree sodomy (ORS 163.405) and first-degree sexual abuse. (ORS 163.425). Osborn was found “guilty except for insanity”² of the charged offenses and was ordered committed to the Oregon State Hospital in 1989. While committed, Osborn was accused of inappropriate and predatory behavior. In 2001, Osborn successfully petitioned for his release from commitment.

In 2003, Osborn was involved in a motor vehicle accident with four juveniles in Missouri. Osborn allowed a juvenile to drive his vehicle which ultimately crashed into a tree, killing two of the passengers. The two surviving boys alleged Osborn engaged in grooming behavior such as supplying alcohol and drugs, allowing them to drive cars, giving them cash, making sexualized comments, taking shirtless photos, and trying to kiss the boys. Osborn held himself out as a pastor who was interested in spending time with the youth. Osborn was convicted of three counts of endangering the welfare of a child and two counts of felony murder in the second degree.³ Osborn was incarcerated in the Missouri Department of Corrections until December of 2021, when he was conditionally released. While on probation, Osborn continued to engage in predatory behavior resulting in the revocation of his probation and a return to Department of Corrections.

On July 25, 2023, the State filed a petition under the SVPA alleging that Osborn was a sexually violent predator (“SVP”) as defined by § 632.480. The petition alleged,⁴ in part, that Osborn:

was found guilty in the Circuit Court of Lane County, Oregon, of a sexually violent offense as defined by § 632.480(4), RSMo, to wit: Sodomy in the first degree, which is a class A felony offense in violation of Oregon statute 163.405 (1987) that contains elements substantially similar to the offense of Sodomy First Degree [ ], § 566.060 RSMo[.]

A probable cause hearing was held on September 14, 2023, and the trial court determined there was probable cause to proceed to trial.

Prior to trial, Osborn filed a motion to dismiss alleging that he had not been found guilty of a “sexually violent offense.” Osborn argued a finding of “guilty except for insanity” in Oregon did not equate as a “finding of guilt” of a “sexually violent offense” in Missouri. On the morning of trial, the trial court overruled Osborn's motion to dismiss and found that the first-degree sodomy conviction constituted a finding of guilt of a sexually violent offense under the SVPA. During trial, Osborn renewed his objection in his motions for directed verdict which stated: “[t]he petition does not state specific facts sufficient to charge [Osborn] as a sexually violent predator under sections 632.480 et seq.”

The State called one witness at trial, a licensed psychologist and certified forensic examiner with DMH (“Psychologist”). Psychologist reviewed over 13,000 pages of records pertaining to Osborn. She testified that it was her opinion, to a reasonable degree of psychological certainty, that Osborn had a mental abnormality, and based on that mental abnormality, he was more likely than not to commit predatory acts of sexual violence if not committed to a secure facility. Psychologist diagnosed Osborn with “pedophilic disorder, nonexclusive type, predominately attracted to males[,]” “other specified paraphilia to connote hebephilia,” and “antisocial personality disorder.” Psychologist testified that Osborn scored eight out of a possible twelve on the Static-99R test which placed him in the well-above-average risk category and that: “[i]ndividuals who are in that category have a higher rate of recidivism than any of the other groups that the person could be put into, based upon his Static score.” Osborn was placed at the 99.1 percentile rank compared to other sex offenders.

The trial court found Osborn to be an SVP and Osborn was committed to the custody of the DMH on January 30, 2025. Osborn filed a timely notice of appeal on February 4, 2025.

Standard of Review

When an SVP appellant alleges that the evidence was insufficient to support his commitment, appellate review is to determine if the State made a submissible case. Derby v. State, 557 S.W.3d 355, 371 (Mo. App. W.D. 2018). The evidence and reasonable inferences therefrom are viewed in the light most favorable to the State's case, while disregarding all contradictory evidence. Id. A submissible case requires clear and convincing evidence of each of the requisite elements for an SVP commitment. Id. An appellate court reviews issues of law de novo. In re Gormon, 371 S.W.3d 100, 104 (Mo. App. E.D. 2012) (citing Murrell v. State, 215 S.W.3d 96, 102 (Mo. banc 2007)).

Analysis

Osborn's sole point on appeal alleges as follows

The trial court erred in denying [Osborn]’s motion for a directed verdict at the close of the evidence, finding him to be an SVP, and ordering his commitment to DMH, in violation of [Osborn]’s rights to due process and a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution, Article I, § 10 of the Missouri Constitution, and §§ 632.480-632.513, RSMo, because the State failed to present sufficient evidence to make a submissible case, in that there was no evidence that [Osborn] was found guilty of a sexually violent offense.

Under § 632.480(5), to commit someone to the custody of the Department of Mental Health as a sexually violent predator:

the state must prove by clear and convincing evidence that the respondent: (1) has committed a sexually violent offense; (2) suffers from a mental abnormality; and (3) this mental abnormality makes the person more likely than not to engage in predatory acts of violence if not confined in a secure facility.

Kirk, 520 S.W.3d at 448-49 (internal quotation marks omitted). Osborn's point and argument allege the State has shown no evidence of the first element, that Osborn “committed a sexually violent offense” or what is typically referred to as a “predicate offense.” See Gormon, 371 S.W.3d at 103. Specifically, Osborn contends that the finding of “guilty except for insanity” in Oregon, disqualifies that offense from being used as the predicate offense required for a verdict under the SVPA. We disagree.

Section 632.480 states that, in order for a defendant to be committed as an SVP, the State must prove he “[h]as pled guilty or been found guilty in this state or any other jurisdiction, or been found not guilty by reason of mental disease or defect pursuant to section 552.030, of a sexually violent offense[.]”⁵ § 632.480(5) (emphasis added). The element of whether Osborn committed a sexually violent offense actually consists of two elements, one factual and one legal. Kirk, 520 S.W.3d at 456. First, the State is required to prove to the finder of fact by clear and convincing evidence that the defendant was convicted of an offense. Id. Second, the conviction must qualify as a matter of law as a “sexually violent offense” for purposes of § 632 .480(5). Kirk, 520 S.W.3d at 456. In the instant case, it is undisputed that Osborn was found “guilty except for insanity” of the crimes of first-degree sodomy and first-degree sexual abuse in Oregon. In that case, the Lane County Circuit Court made the following findings:

[Osborn] is fit to proceed pursuant to ORS 161.365. Further, it is the finding of the [c]ourt based on the stipulation of counsel [Osborn] is guilty except for insanity of the crimes of Sodomy in the First Degree and Sexual Abuse in the First Degree.

․.

FURTHER, IT IS THE FINDING OF THE COURT that [Osborn] is guilty of felonies which caused physical injury to another and that [Osborn] is effected [sic] by mental disease or defect and represents a substantial danger to others, requiring commitment to a state hospital designated by the Mental Health Division.

The issue in this case is whether the finding of “guilty except for insanity” under Oregon law equates to Osborn being “found guilty” under § 632.450(5). In order to address this issue, we must review Oregon law as it relates to the finding of “guilty except for insanity.”

In Oregon, there are two distinct criminal statutes that deal with the effect of mental disease or defect on criminal liability. ORS 161.295 provides:

(1) A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.

(2) As used in chapter 743, Oregon Laws 1971, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor does the term include any abnormality constituting solely a personality disorder.

ORS 161.300 provides:

Evidence that the actor suffered from a mental disease or defect is admissible whenever it is relevant to the issue of whether the actor did or did not have the intent which is an element of the crime.[6]

Several Oregon cases are instructive. First, in State v. Olmstead, 800 P.2d 277 (Or. 1990) the defendant attempted to use ORS 161.295 as an affirmative defense to DUI. Olmstead, 800 P.2d at 278. In addressing whether an affirmative defense of guilty except for insanity was available to the defendant, the Oregon Supreme Court discussed the interplay of these statutes:

ORS 161.300 allows a defendant to introduce evidence of mental disease or defect to negate “the intent which is an element of the crime.” One who succeeds in persuading the trier of fact with evidence admitted under this section is not guilty of the crime charged, because a necessary element of the crime is not established.

Olmstead, 800 P.2d at 281. On the other hand, “ORS 161.295 presupposes that the state has proved all elements of the crime, whatever they may be[.]” Olmstead, 800 P.2d at 281. Thus, the Oregon Supreme Court held that:

a person who is found “guilty except for insanity” under ORS 161.295, unlike a person who defends successfully under ORS 161.300, is not acquitted. Instead, the statutes provide for dispositional alternatives other than imprisonment, including the possibility of confinement and supervision by the Psychiatric Security Review Board (PSRB).

Olmstead, 800 P.2d at 282 (emphasis added). The court further noted that “a defendant who is found guilty except for insanity has committed all elements of the crime, although the defendant is to be treated differently at the dispositional stage of the proceedings.” Id.

In 1998, the Oregon Court of Appeals decided State v. Reese, 967 P.2d 514 (Or. Ct. App. 1998) which addressed whether a finding of guilty except for insanity required a unanimous jury. That Court held as follows:

The affirmative defense of guilty except for insanity, ORS 161.295, should be distinguished from ORS 161.300. The latter provides that evidence of mental illness or defect is admissible on the issue of whether a defendant did or did not have the requisite intent, when intent is an element of the crime. It is not an affirmative defense but, rather, a way to show that the defendant was simply “not guilty” of the charged offense because he did not have the required intent. On the other hand, ORS 161.295 “presupposes that the state has proved all elements of the crime, whatever they may be: the effect of proving a mental disease or defect is that the defendant is ‘guilty except for insanity.’ ” State v. Olmstead, 310 Or. 455, 463, 800 P.2d 277 (1990) (emphasis in original). A guilty except for insanity finding is not an acquittal-it is a guilty verdict. The only difference between a “guilty” verdict and a “guilty except for insanity” verdict is the dispositional alternatives, including possible confinement and supervision by the Psychiatric Security Review Board. Id. Thus, when insanity is raised as an affirmative defense in a murder trial, former ORS 136.450 requires that a jury verdict of guilty except for insanity be by a unanimous vote.

Reese, 967 P.2d at 516 (bold emphasis added); see also State v. Gile, 985 P.2d 199, 202 (Or. Ct. App. 1999) (“[T]he Oregon Supreme Court has held that a finding of guilt except for insanity is a determination of guilt and, therefore, is a conviction in that sense.”).

In summary, a defendant who successfully presents evidence of a mental disease or defect to negate the intent element of a crime, is acquitted. However, a person who is found “guilty except for insanity” is not acquitted but has different disposition alternatives under Oregon law.

In the case at bar, the issue is whether Osborn was “found guilty” of a “sexually violent offense.” Oregon law, as discussed in Olmstead, Reese, and Gile, provides that a finding of “guilty except for insanity” is indeed a “guilty verdict.” See Reese, 967 P.2d at 516. “While we are not bound to follow the decisions of a sister state, they are persuasive, if based on sound principles and good reason.” Neil v. St. Louis County, 688 S.W.3d 268, 274 (Mo. App. E.D. 2024) (internal citation omitted). Olmstead, Reese, and Gile are all persuasive, especially in that they interpreted the statutes of Oregon. Here, the State satisfied the predicate offense requirements of § 632.480(5).⁷ The point is denied.

Conclusion

The judgment of the trial court is affirmed.

FOOTNOTES

1.   All statutory references are to RSMo Cum. Supp. (2023).

2.   See Osborn v. Psychiatric Sec. Review Bd., 15 P.3d 80 (Or. Ct. App. 2000) Osborn v. Psychiatric Sec. Review. Bd., 934 P.2d 391 (Or. 1997).

3.   An enticement of a child conviction was overturned on appeal. See State v. Osborn, 318 S.W.3d 703, 714 (Mo. App. S.D. 2010).

4.   Osborn's other convictions in Oregon and Missouri do not meet the definition of “sexually violent offense” under § 632.480(4) and, therefore, those convictions were not pled as the predicate offense by the State.

5.   The predicate offense must meet the definition of “sexually violent offense” as set out in § 632.480(4). Osborn does not dispute that the Oregon offense of sodomy in the first degree, ORS 163.405, meets the definition of “sexually violent offense.”

6.   References to ORS 161.295 and 161.300 are cited here as in effect in 1987 when Osborn was convicted in Oregon. Those statutes were amended in 2017 so that the terms. “mental disease or defect” were amended to read “a qualifying mental disorder[.]”

7.   Osborn's brief also discusses whether Missouri's insanity defense (§ 552.030) referenced in § 632.480(5)(a) limits application of the SVPA to only insanity defenses under Missouri statute. Given that Oregon law holds that a finding of guilty except for insanity is a “determination of guilt,” we need not reach that issue. See Gile, 985 P.2d. at 202.

BRYAN E. NICKELL, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS JACK A. L. GOODMAN, J. – CONCURS