DARRELL EUGENE BOYCE v. COMMONWEALTH OF VIRGINIA.

Record No. 090881.Supreme Court of Virginia.
April 15, 2010.

Present: Hassell, C.J., Keenan, [1] Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ.

[1] Justice Keenan participated in the hearing and decision of this case prior to her retirement from the Court on March 12, 2010.

In a jury trial upon a petition to have a convicted felon civilly committed under the Sexually Violent Predators Act, Code § 37.2-900 et seq., the Commonwealth presented expert testimony from a clinical psychologist who was accepted as a psychological expert in the diagnosis, risk assessment, and treatment of sex offenders. He testified that in performing an evaluation in this case, he reviewed records, inter-viewed the individual, and performed various risk assessments. Based upon this information, the expert opined that the appellant suffered from both a mental abnormality, pedophilia, and personality disorder, not otherwise specified, with antisocial traits. The witness concluded that appellant’s pedophilia and personality disorder

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made it difficult for him to control his predatory behavior and that he had a high risk to re-offend. It was the expert’s opinion that he met the criteria for commitment as a sexually violent predator under the Act. During his testimony, the witness stated that in formulating his opinion he considered a 1979 charge for taking indecent liberties with children that had been dismissed upon the Commonwealth’s motion for nolle prosequi. The witness stated that it was accepted practice within his field to consider both convictions and charges for sex offenses. The witness stated that from an actuarial standpoint, individuals who are charged with more sexual assaults have a higher risk of being reconvicted of a new offense, whether or not it is found that they were guilty of the charge. The expert testified that his opinion was not based on any single incident but rather upon the totality of all the information. Appellant’s motion to strike based on the expert’s reliance upon the dismissed indecent liberties with children charge was denied by the trial court. The jury found that appellant met the definition of a sexually violent predator, and the circuit court committed him to the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services. This appeal followed.

1. On appeal, evidentiary rulings are generally reviewed under an abuse of discretion standard. However, a trial court has no discretion to admit clearly inadmissible evidence because admissibility of evidence depends not upon the discretion of the court but upon sound legal principles.

2. The evidentiary ruling in question does not relate to proof of the dismissed 1979 charge, a matter on which error was not assigned. The issue is whether the circuit court abused its discretion in failing to strike the expert’s entire testimony because he considered a dismissed charge as a factor in forming his opinion that appellant met the criteria for being a sexually violent predator.

3. Prior case law has held that, in the absence of additional evidence, the dismissal by nolle prosequi of three charges, standing alone, was a legally insufficient basis for the expert to infer that the individual had actually committed the charged offenses in rendering her opinion. Expert testimony was properly excluded because the only factual basis upon which the expert could have reached her diagnosis was reliance on the unsupported belief that the individual had committed the offenses charged, because the criminal record in that case did not include any other charges of sexual abuse of a child, and the only adult offense of a sexual nature was a rape conviction with an adult victim.

4. In the present case the expert’s opinion that appellant suffered from pedophilia was not based solely upon the 1979 offense of taking indecent liberties with children that was dismissed by nolle prosequi. Rather, the opinion that he suffered from a deviant sexual interest in children was based upon a number of factors, including two convictions for taking indecent liberties with seven-year-old children, and a conviction for sodomy and indecent exposure with a nine-year-old child.

5. In this case the witness did not assume that the individual was guilty of the dismissed indecent liberties charge as the basis for his opinion that he suffered from a personality disorder, not otherwise specified, with antisocial traits. The opinion was based upon the totality of all the information and upon the expert’s

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conclusion that appellant had not benefited from multiple arrests, punishments, probation, or revocations of probation as opportunities to change his behavior.

6. Mental health professionals often rely upon judicial records of charged conduct that may not have resulted in a final determination of guilt, yet nevertheless may be indicative of antisocial behavior.

7. The expert opinion in this case was based on the totality of all the information, and the witness stated that that the mere fact that appellant was charged with the dismissed 1979 sexual offense was a factor in his analysis of whether he was a sexually violent predator because, from an actuarial standpoint, it did not matter whether he had committed the charged offense since individuals who have been charged with more sexual assaults have a higher risk of being reconvicted of a new sex offense, and this was an appropriate factor to be considered in determining whether appellant suffered from a personality disorder that, in conjunction with his pedophilia, made it difficult for him to control his predatory behavior, which made him more likely to engage in sexually violent acts.

8. In this case the expert witness’ consideration of the totality of the evidence in rendering an opinion including a review of the individual’s criminal history, convictions as well as dismissed charges for sexual offenses, an interview with him, and various risk assessments, amply supported his opinion that he met the criteria for a sexually violent predator.

9. Prior case law has also held that expert testimony did not have an adequate factual foundation to the extent it was dependent upon assuming the truth of hearsay allegations concerning the individual’s past sexual misconduct.

10. In the present case the Commonwealth’s expert did not base his opinion on the inference that appellant committed the offense dismissed by nolle prosequi. His opinions that appellant suffered from pedophilia and from a personality disorder, as well as his opinion that he was a sexually violent predator, were amply supported by prior convictions for sexual offenses against children and by evidence presented at trial. Therefore, the expert’s opinions in this case were not speculative and unreliable as a matter of law, and were properly admitted into evidence.

Appeal from a judgment of the Circuit Court of Gloucester County. Hon. J. Warren Stephens, judge designate presiding.

Affirmed.

Michael T. Soberick (Dusewicz Soberick, on brief), for appellant.

Angela Boice Axselle, Assistant Attorney General (William C. Mims, Attorney General; James W. Hopper, Deputy Attorney General; Pamela A. Sargent, Senior Assistant Attorney General, on brief), for appellee.

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JUSTICE MILLETTE delivered the opinion of the Court.

In this appeal, we consider whether the circuit court erred by refusing to strike the testimony of a mental health expert who relied upon a criminal charge for taking indecent liberties with children that was dismissed by nolle prosequi as a factor in forming the opinion that the appellant met the criteria for a sexually violent predator.

BACKGROUND
The Commonwealth filed a petition under the Sexually Violent Predators Act (SVPA), Code § 37.2-900 et seq., seeking to have Darrell Eugene Boyce, who had previously been convicted of a sexually violent offense, committed as a sexually violent predator. A sexually violent predator is defined, in pertinent part, as any person who (1) has been convicted of a sexually violent offense, and (2) because of a mental abnormality or personality disorder, finds it difficult to control his or her predatory behavior, which makes him or her likely to engage in sexually violent acts. Code § 37.2-900.

During a jury trial, the Commonwealth presented expert testimony from Dr. Glenn R. Miller, Jr., a clinical psychologist, who was accepted as a psychological expert in the diagnosis, risk assessment, and treatment of sex offenders. Dr. Miller testified that during his career, he had performed around 1,000 evaluations of sex offenders, including 275 evaluations under the SVPA. In evaluating Boyce, Dr. Miller reviewed records, interviewed Boyce, and performed various risk assessments. Based upon this information, Dr. Miller opined that Boyce suffered from both a mental abnormality, pedophilia, and personality disorder, not otherwise specified, with antisocial traits.

According to Dr. Miller, pedophilia is a deviant sexual interest in children. Dr. Miller opined that Boyce’s personality disorder causes him to violate society’s rules and customs, and to continue such behavior even after being caught and punished for it. Dr. Miller concluded that Boyce’s pedophilia and personality disorder made it difficult for him to control his predatory behavior and that Boyce had a high risk to re-offend. It was Dr. Miller’s opinion that Boyce met the criteria for a sexually violent predator under the SVPA.

During his testimony, Dr. Miller stated that in formulating his opinion he considered a 1979 charge against Boyce for taking indecent liberties with children that had been dismissed upon the Commonwealth’s motion for nolle prosequi. The dismissed charge was one of two indecent liberties charges brought against Boyce, with

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different victims, heard in the same circuit court on June 13, 1979. One of these charges resulted in a finding of guilt pursuant to a plea agreement while the other charge was dismissed upon the Commonwealth’s motion for nolle prosequi.

Dr. Miller stated that it was accepted practice within his field to consider both convictions and charges for sex offenses. Although Dr. Miller considered the dismissed 1979 charge as a factor in his opinion, he testified that his opinion “is not based on any single incident [but rather] on the totality of all the information.”

Regarding the dismissed charge, Dr. Miller stated that

[f]rom an actuarial standpoint, it doesn’t matter whether [Boyce] did it. The reality is that individuals [who] are charged with more sexual assaults have a higher risk of being reconvicted [sic] of a new sex offense. It doesn’t matter whether he did it. The reality is that research indicates that those charged have a higher risk of re-convicting [sic] in the future.

At the close of the Commonwealth’s evidence, Boyce made a motion to strike, arguing that Dr. Miller’s testimony was improper because he relied on the 1979 charge for taking indecent liberties with children that was dismissed by nolle prosequi in rendering his opinion. Boyce contended that this Court’s decision in Commonwealth v. Garrett, 276 Va. 590, 667 S.E.2d 739 (2008), requires that Dr. Miller’s testimony be stricken. The circuit court denied Boyce’s motion to strike. Boyce renewed his motion to strike at the conclusion of all of the evidence, and the circuit court denied the motion.

The jury found that Boyce met the definition of a sexually violent predator. The circuit court committed Boyce to the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services. Boyce appeals.

DISCUSSION
Boyce argues that the circuit court erred in refusing to strike Dr. Miller’s testimony. Boyce asserts that the circuit court should have granted his motion to strike Dr. Miller’s testimony because Dr. Miller, in forming his expert opinion, relied, in part, on a 1979 charge against Boyce for taking indecent liberties with children that had been dismissed upon the Commonwealth’s motion for nolle prosequi.

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In response, the Commonwealth argues that Garrett does not support Boyce’s argument that Dr. Miller’s testimony should have been excluded. In support of this argument, the Commonwealth notes that Dr. Miller considered the dismissed 1979 charge as one factor among many in reaching his conclusion, and that Dr. Miller did not assume that Boyce had committed the offense charged. The Commonwealth also contends that experts may consider unadjudicated charges in forming their opinions in sexually violent predator cases.

[1] On appeal, we generally review evidentiary rulings under an abuse of discretion standard. Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). “However, `[a] trial court has no discretion to admit clearly inadmissible evidence because admissibility of evidence depends not upon the discretion of the court but upon sound legal principles.'”Commonwealth v. Wynn, 277 Va. 92, 97, 671 S.E.2d 137, 139 (2009) (quoting Norfolk Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463 S.E.2d 442, 444 (1995)) (internal quotation marks omitted).

[2] At the outset, we must clarify that the evidentiary ruling in question is not the admission of the dismissed 1979 charge. Although Boyce objected to the introduction of the dismissed indictment at trial, he failed to assign error to the circuit court’s overruling of his objection. The issue, then, is whether the circuit court abused its discretion in failing to strike Dr. Miller’s entire testimony because he considered a dismissed charge as a factor in forming his opinion that Boyce met the criteria for being a sexually violent predator.

[3] In Garrett, the expert, as the foundation of her diagnosis of Marvin D. Garrett’s mental condition as “Paraphilia, Not Otherwise Specified . . . Sexual Abuse of Child,” relied upon three juvenile petitions charging Garrett with having carnal knowledge of a minor that had been dismissed by nolle prosequi to draw the inference that Garrett had, in fact, committed those offenses. 276 Va. at 594-95, 667 S.E.2d at 741-42. We held that in the absence of additional evidence, the dismissal by nolle prosequi of the three charges, standing alone, was legally insufficient for the expert to infer that Garrett had actually committed the charged offenses in rendering her opinion. Id. at 607, 667 S.E.2d at 749. Thus, we held that the expert’s testimony was properly excluded because the only factual basis upon which the expert could have reached her diagnosis of “Paraphilia, Not Otherwise Specified . . . Sexual Abuse of Child” was from her reliance on the unsupported belief that Garrett committed the offenses charged, because Garrett’s criminal record did not include any other charges

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of sexual abuse of a child, and the only adult offense of a sexual nature was a rape conviction with an adult victim Id.

[4] This case can be distinguished from the ruling i Garrett. First, Dr. Miller’s opinion that Boyce suffered from pedophilia was not based solely upon the 1979 offense of taking indecent liberties with children that was dismissed by nolle prosequi. Rather, Dr. Miller’s opinion that Boyce suffered from a deviant sexual interest in children was based upon a number of factors, including: (1) Boyce’s 1979 conviction of indecent liberties with a seven-year-old child; (2) Boyce’s 1980 conviction for indecent liberties with a seven-year-old child; and (3) Boyce’s 1994 convictions for sodomy and indecent exposure with a nine-year-old child. In fact, Boyce related details of the 1980 and 1994 convictions to Dr. Miller that fully supported the diagnosis of pedophilia.

[5] Second, Dr. Miller did not assume that Boyce was guilty of the dismissed indecent liberties charge as the basis for his opinion that Boyce suffered from a personality disorder, not otherwise specified, with antisocial traits. According to Dr. Miller, the essence of a personality disorder is that a person does not benefit from being caught, punished, and offered opportunities at rehabilitation. Dr. Miller based his opinion of Boyce’s personality disorder upon the “totality of all the information” and upon his conclusion that Boyce had not benefited from multiple arrests, punishments, probation, or revocations of probation as opportunities to change his behavior. According to Dr. Miller, Boyce had violated rules of society over a significant period of time, despite the fact that he knew he should not do so.

[6] In Garrett, we acknowledged that mental health professionals often rely upon judicial records of charged conduct that may not have resulted in a final determination of guilt, yet nevertheless may be indicative of antisocial behavior. Id. at 607, 667 S.E.2d at 749. We take this opportunity to reaffirm that position.

[7-8] Dr. Miller testified that his opinion was based on the “totality of all the information,” and that the mere fact that Boyce was charged with the dismissed 1979 sexual offense was a factor in his analysis of whether Boyce was a sexually violent predator. According to Dr. Miller, from an actuarial standpoint, it did not matter whether Boyce committed the charged offense. Dr. Miller’s opinion that individuals who have been charged with more sexual assaults have a higher risk, actuarially, of being reconvicted of a new sex offense was an appropriate factor to be considered in determining

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whether Boyce suffered from a personality disorder that, in conjunction with his pedophilia, made it difficult for him to control his predatory behavior, which made him more likely to engage in sexually violent acts. Dr. Miller’s consideration of the totality of the evidence in rendering his expert opinion included a review of Boyce’s criminal history, convictions as well as dismissed charges for sexual offenses, an interview with Boyce, and various risk assessments and amply supported his opinion that Boyce met the criteria for a sexually violent predator.

[9-10] This case is also distinguishable from our recent decision in Lawrence v. Commonwealth, 279 Va. 490, 689 S.E.2d 748 (2010). In Lawrence, the expert testified that her diagnosis that Lawrence had an antisocial personality disorder was partially based upon unadjudicated allegations of his sexual misconduct that were contained in police reports Id. at 490, 689 S.E.2d at 749. We relied o Garrett in holding that the “expert testimony did not have an adequate factual foundation to the extent it was dependent upon assuming the truth of the hearsay allegations concerning Lawrence’s past sexual misconduct.” Id.
at 499, 689 S.E.2d at 753.

This case is distinguishable from Lawrence because, as we stated above, Dr. Miller did not base his opinion on the inference that Boyce committed the offense dismissed by nolle prosequi. Dr. Miller’s opinions that Boyce suffered from pedophilia and from a personality disorder, as well as his opinion that Boyce was a sexually violent predator, were amply supported by prior convictions for sexual offenses against children and by evidence presented at trial. Therefore, unlike the expert opinion at issue in Lawrence, Dr. Miller’s opinions were not “speculative and unreliable as a matter of law,” and were properly admitted into evidence. Id.

CONCLUSION
Because Dr. Miller’s opinions were based upon a sufficient foundation and upon the totality of all of the information in the case, we hold that the circuit court did not abuse its discretion in refusing to strike Dr. Miller’s testimony.

For the foregoing reasons, we will affirm the judgment of the circuit court.

Affirmed.

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