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IN RE: the Care and Treatment of: Wade TURPIN, Appellant, v. STATE of Missouri, Respondent.
Wade Turpin was involuntarily committed to the custody of the Missouri Department of Mental Health (DMH) as a sexually violent predator in 2004. In 2016, he petitioned for conditional release under § 632.498.3.1 Following an evidentiary hearing, the trial court denied Turpin's petition because he failed to prove by a preponderance of the evidence that he “no longer suffer[ed] from a mental abnormality that makes [him] likely to engage in acts of sexual violence if released.” In his sole point on appeal, Turpin argues that the trial court erred in denying his petition because the court did not consider the conditions of release set out in § 632.505, as required by our decision in In re Care and Treatment of King, 571 S.W.3d 169 (Mo. App. W.D. 2019). Finding no error, we affirm.
In 1985, Turpin pled guilty to two counts of sodomy and two counts of abuse of a child; he was sentenced to 20 years’ imprisonment. Before Turpin was scheduled to be released, the State petitioned to have him involuntarily committed as a sexually violent predator. On February 26, 2004, Turpin was tried by jury and found to meet the requirements for civil commitment as a sexually violent predator under §§ 632.480-632.525. We affirmed Turpin's involuntary commitment in In re Care and Treatment of Turpin, 173 S.W.3d 659 (Mo. App. W.D. 2005).
On September 26, 2016, Turpin filed a petition for conditional release without authorization of the DMH Director. Turpin's petition alleged that he no longer suffers from a mental abnormality that makes him likely to commit an act of sexual violence if conditionally released.
On October 23, 2019, an evidentiary hearing was held to determine whether Turpin was entitled to a trial on the merits of his petition. Three witnesses testified: Dr. Luis Rosell, a forensic psychologist, on behalf of Turpin; Dr. Sharon Robbins, Director of Psychology at Fulton State Hospital, on behalf of the State; and Turpin. Dr. Rosell testified that he considered the conditions for release listed in § 632.505 in forming his opinion that Turpin qualifies for conditional release. With regard to the statutory conditions, Dr. Robbins testified,
Q. [State's counsel]: And, again, with regards to the specific conditions of release that are outlined in the statute, you testified you didn't consider them for the report, but you have since considered them, correct?
A. [Dr. Robbins]: Correct.
Q. [State's counsel]: Are there any conditions you believe specifically would mitigate risk for Mr. Turpin?
A. [Dr. Robbins]: No.
Following closing arguments, the trial court stated,
I'm going to request that each side submit to me a proposed written judgment. Make sure that the judgment sets forth the specific issue before the Court about the existence—continued existence of an abnormality, so on and so forth. [I w]ant the judgments to reflect that the Court is aware [that] the burden of proof is a preponderance of evidence, and that the standard in this case is in reference and takes into consideration the conditional release with all the 21 statutorily required constraints or restrictions pursuant to that release. In other words, let's don't get contrary [to In Re Care and Treatment of] King[.]
On January 21, 2020, the trial court issued an eight-page judgment denying Turpin's petition for conditional release, finding that Turpin “failed to prove that he ‘no longer suffers from a mental abnormality that makes [him] likely to engage in acts of sexual violence if released.’ ” After summarizing the testimony of the witnesses, the court concluded, “It is evident that Turpin has not recognized he suffers from a mental abnormality, has not meaningfully participated in treatment, continues to blame victims, and does not have a plan to address sexual or pedophilic thoughts if he has them.” The court further stated,
This Court is obligated to gauge the credibility of witnesses and weigh evidence and assess the conditions of release when assessing Turpin's risk to reoffend if released. See [In re Care and Treatment of King], 571 S.W.3d 169 (Mo. App. W.D. 2019). The Court has carefully reviewed the evidence presented. The Court finds Dr. Rosell and Wade Turpin to be without credibility, and the weight of their testimony insufficient for this Court to find Turpin has met his burden by a preponderance of the evidence that he no longer suffers from a mental abnormality that make[s] him likely to engage in acts of sexual violence if released. This Court further finds Dr. Robbins to be a credible witness and her testimony is sufficient for this Court to find Turpin failed to meet his burden.
Standard of Review
“Our review of the denial of a petition for conditional release from the custody of [DMH] is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).” In re Care and Treatment of Smith, 592 S.W.3d 829, 832 (Mo. App. W.D. 2020) (quoting State v. Carter, 551 S.W.3d 573, 575 (Mo. App. W.D. 2018)). “We will reverse the trial court's decision only if there is no substantial evidence to support it, ․ it erroneously declares or applies the law, or ․ it is against the weight of evidence.” Id. (quoting Carter, 551 S.W.3d at 575).
In his sole point on appeal, Turpin asserts that the trial court clearly erred in denying his petition because the court “did not sufficiently abide by” King and Turpin's continued detention violates due process. Although we find Turpin's point relied on to be vague,3 there are only two potential ways the judgment “does not sufficiently abide” by King; either (1) the trial court failed to make findings ostensibly required by King or (2) the court failed to consider the conditional release factors in rendering its judgment (i.e., the court misapplied the law). Either way, Turpin's argument fails.
To the extent Turpin argues that the trial court erred because it failed to make findings ostensibly required by King—findings concerning the conditions of release set out in § 632.505—Turpin failed to preserve that issue for appellate review. To preserve allegations of error relating to “the form or language of the judgment, including the failure to make statutorily required findings,” such allegations must first be raised in a motion to amend the judgment, which Turpin did not file. Rule 78.07(c).4 Thus, to the extent King requires specific findings and Turpin's complaint is about their absence in the judgment, he waived that claim by failing to file a motion to amend under Rule 78.07(c).
To the extent Turpin argues that the trial court erred because it failed to consider the § 632.505 conditions in rendering its judgment, that argument also fails. The record shows that the trial court did consider the § 632.505 conditions in denying Turpin's petition for conditional release.
Under Missouri's sexually violent predator (SVP) laws, the State may
indefinitely, and involuntarily, commit a person who has “pled guilty or been found guilty ․ of a sexually violent offense,” if the State proves that the person “suffers from a mental abnormality which makes [him] more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.”
King, 571 S.W.3d at 173 (quoting § 632.480(5)). To satisfy due process concerns, “the ‘mental abnormality’ and ‘dangerousness’ must be inextricably intertwined, such that ‘involuntary civil confinement is limited to those who suffer from a volitional impairment rendering them dangerous beyond their control.’ ” Id. (quoting In re Care and Treatment of Murrell, 215 S.W.3d 96, 104 (Mo. banc 2007)). “Due process requires that a person be both mentally ill and dangerous in order to be civilly committed; the absence of either characteristic renders involuntary civil confinement unconstitutional.” Id. (quoting Murrell, 215 S.W.3d at 104).
“The constitutional requirement that an offender both suffer from a mental illness, and present a substantial risk of reoffending, continues beyond the offender's initial commitment.” Id. “The individual must not only be dangerous at the time of, but also during, commitment, for ‘if his involuntary confinement was initially permissible, it could not constitutionally continue after a basis no longer existed.’ ” Id. (quoting Murrell, 215 S.W.3d at 104). The Missouri Supreme Court has emphasized that “commitment pursuant to the SVP statute is not necessarily indefinite, nor a life sentence. ‘[T]he confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.’ ” Id. (quoting Murrell, 215 S.W.3d at 105).
“Section 632.498 ensures that an offender's continued involuntary commitment remains constitutionally justifiable.” Id. “Section 632.498.1 requires the Director of [DMH], on an annual basis, to conduct an examination of the mental health of every involuntarily committed sexually violent predator who has not been conditionally released.” Id. “If the Director determines in that annual review ‘that the person's mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the director shall authorize the person to petition the court for release.’ ” Id. (quoting § 632.501). “If, on the other hand, the Director determines that release of the offender is not warranted, the offender may nevertheless petition the court for release,” which is what Turpin did. Id. at 173-74 (quoting § 632.498.3).
The proceedings on a petition for conditional release involve a two-step process. The first step is a hearing before the court, during which the petitioner must prove by a “preponderance of the evidence that [he] no longer suffers from a mental abnormality that makes [him] likely to engage in acts of sexual violence if released.” Smith, 592 S.W.3d at 833 (quoting King, 571 S.W.3d at 174). “If the court determines that the offender has satisfied this initial burden, then the second [step is a] merits trial․” Id. (quoting King, 571 S.W.3d at 174). “Section 632.498.5(3) specifies that ‘the burden of proof at the merits trial shall be upon the state to prove by clear and convincing evidence that the committed person's mental abnormality remains such that [he] is not safe to be at large and if released is likely to engage in acts of sexual violence.’ ” Id. (quoting King, 571 S.W.3d at 174).
If the petitioner satisfies his burden at the evidentiary hearing and a merits trial is held, § 632.498.5(4) explains the possible outcomes of the trial.
If the court or jury finds that the person's mental abnormality remains such that [he] is not safe to be at large and if released is likely to engage in acts of sexual violence, [he] shall remain in the custody of [DMH] in a secure facility designated by the director of [DMH]. If the court or jury finds that the person's mental abnormality has so changed that [he] is not likely to commit acts of sexual violence if released, [he] shall be conditionally released as provided in section 632.505.
Id. (quoting § 632.498.5(4)).
Section 632.505, which addresses conditional release, states in relevant part,
Upon determination by a court or jury that the person's mental abnormality has so changed that [he] is not likely to commit acts of sexual violence if released, the court shall place the person on conditional release pursuant to the terms of this section. The primary purpose of conditional release is to provide outpatient treatment and monitoring to prevent the person's condition from deteriorating to the degree that [he] would need to be returned to a secure facility designated by the director of [DMH].
§ 632.505.1. Section 632.505.3 lists twenty-one conditions the court must impose on a petitioner who is entitled to conditional release. The conditions are “designed to monitor and control an offender's whereabouts, conduct, medication compliance, and treatment compliance.” Smith, 592 S.W.3d at 833.
“We clarified in King that ․ the offender's burden in the first hearing is not to prove that [he] is not likely to commit acts of sexual violence if released unconditionally or unsupervised.” Id. at 833-34 (citing King, 571 S.W.3d at 176). “Rather, because ‘the terms “release” and “conditional release” are used interchangeably’ in the statutes, the ‘statutory provisions can only be read to refer to an offender's release under the conditions specified in section 632.505, since that is the only form of “release” which currently exists under the statutes.’ ” Id. (quoting King, 571 S.W.3d at 176). “As such, an offender's burden in the first hearing ․ is to prove ‘by a preponderance of the evidence that [he] no longer suffers from a mental abnormality that makes [him] likely to engage in acts of sexual violence if released’ under the conditions specified in section 632.505.” Id. (quoting § 632.498.4).
Under the second potential interpretation of Turpin's point on appeal, the crux of his argument is that the trial court's judgment recounts his offense history in detail but devotes “less than a paragraph on the conditions of release, discussing them only in passing.” But nothing in Missouri's SVP statutes or in King requires the trial court to make specific findings as to the conditions set out in § 632.505. Rather, King requires the trial court only to consider the conditions of release, which the court did here.
At the conclusion of the evidentiary hearing, the court asked the parties to submit proposed judgments that, among other things, took “into consideration the conditional release with all the 21 statutorily required constraints or restrictions pursuant to that release.” Evidence of Turpin's eligibility for conditional release came from two primary sources—the testimony of Drs. Rosell and Robbins—both of whom testified that they considered the conditions of release in formulating their respective opinions. Significantly, Dr. Robbins testified that she had considered the conditions for release before she testified and that she did not believe there were any specific conditions that would mitigate Turpin's potential to reoffend if released. On cross-examination, Dr. Robbins was questioned about several of the specific conditions listed in § 632.505, and she confirmed her belief that none of the conditions would lower Turpin's risk of reoffending. And the court stated, “Dr. Robbins testified that in considering the 21 conditions of release outlined in § 632.505, RSMo., none would lower [Turpin's] risk of re-offense to the point that he is no longer likely to engage in acts of sexual violence if released.”
Thus, the trial court expressly acknowledged King and the necessity of considering the § 632.505 conditions when determining whether Turpin met his burden to show, by a preponderance of the evidence, that he no longer suffered from a mental abnormality that makes him likely to comment acts of sexual violence if conditionally released. The court also cited Dr. Robbins's testimony that none of the statutory conditions would lower Turpin's risk of reoffending. While the court did not list the statutory conditions in its judgment—something the court was not required to do—the court found credible and relied on Dr. Robbins's testimony that she had considered those factors in formulating her opinion that none of them would lower Turpin's risk.
The record here stands in stark contrast to that in King, where the trial court expressly concluded that the petitioner's witness used the wrong legal standard when he considered the statutory conditions of release in formulating his opinion regarding the petitioner's qualification for conditional release. King, 571 S.W.3d at 172. Based on the record in King, we concluded, “The circuit court erred by applying standards applicable to unconditional release in a case in which King was ․ eligible for, and ․ seeking, [only] conditional release.” Id. at 176-77. Here, the trial court clearly considered the conditions listed in § 632.505 in denying Turpin's petition and, thus, the court did not misapply the law.
Point I is denied.
Finding that the trial court considered the § 632.505 conditions of release in denying Turpin's petition for conditional release, the court's judgment is affirmed.
1. All statutory references are to the Revised Statutes of Missouri (2016).
3. In its entirety, Turpin's point states,The motion court clearly erred when it denied Mr. Turpin[ ]’s motion for a trial on this petition for conditional release from the [DMH] as a Sexually Violent predator under ․ § 632.498 and § 632.501 after an evidentiary hearing because the circuit court did not sufficiently abide by the Court's dictates in In re the Matter of the [C]are and Treatment of King, 571 S.W.3d 169 (Mo. App. W.D. 2019) in deciding to deny Mr. Turpin's petition for conditional release without further proceedings. Mr. Turpin's continued detention offends the due process clauses of the Missouri and United States’ Constitutions, Art. 1 § 10 and Amend XIV, respectively, and constitutes unconstitutional warehousing of a sex offender, rather than care and treatment.
4. Generally, civil rules apply in sexually violent predator civil commitment proceedings. See In re Care and Treatment of Jones, 565 S.W.3d 704, 709-10 & n.5 (Mo. App. S.D. 2018) and cases cited therein.
Karen King Mitchell, Judge
Mark D. Pfeiffer, Presiding Judge, and Alok Ahuja, Judge, concur.
Response sent, thank you
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Docket No: WD 83707
Decided: April 27, 2021
Court: Missouri Court of Appeals, Western District.
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