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Criminal – Civil Commitment – Sexually Violent Predator – Prior Dismissed Charge

In determining whether defendant is a sexually violent predator under Va. Code § 37.2-900, a trial court did not err, the Virginia Supreme Court says, in refusing to strike the testimony of a mental health expert who relied on a criminal charge for taking indecent liberties with children, that was dismissed by nolle prosequi.

The clinical psychologist who testified as an expert for the commonwealth said that it was accepted practice within his field to consider both convictions and charges for sex offenses. Although the expert, Dr. Miller, considered the dismissed 1979 charge as a factor in his opinion, he testified that his opinion was not based on any single incident but rather on the totality of all the information.

We must clarify that the evidentiary ruling in question is not the admission of the dismissed 1979 charge, as appellant failed to assign error to the circuit court’s overruling of his objection. The issue 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 appellant met the criteria for being a sexually violent predator.

This case can be distinguished from Commonwealth v. Garrett, 276 Va. 590 (2008). Dr. Miller’s opinion that appellant suffered from pedophilia was not based solely on the 1979 offense of taking indecent liberties with children that was dismissed by nolle prosequi. Rather, his opinion was based on a number of factors, including appellant’s 1979 conviction of indecent liberties with a seven-year old child; appellant’s 1980 conviction for indecent liberties with a seven-year-old child; and appellant’s 1994 convictions for sodomy and indecent exposure with a nine-year-old child. Dr. Miller based his opinion of appellant’s personality disorder on the totality of all the information and upon his conclusion that appellant had not benefited from multiple arrests, punishments, probation or revocations of probation as opportunities to change his behavior.

We hold the circuit court did not abuse its discretion in refusing to strike Dr. Miller’s testimony.

Judgment for the commonwealth affirmed.

Boyce v. Commonwealth (Millette, J.) No. 090881, April 15, 2010; Gloucester County Cir.Ct. (Stephens) Michael T. Soberick for appellant; Angela B. Axselle, AAG; William C. Mims, AG; James W. Hopper, Dep. AG; Pamela A. Sargent, Sr. AAG, for appellee. VLW 010-6-048, 10 pp.

VLW 010-6-048

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