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Home / Opinion Digests / Criminal Law / 4th Cir.: “Sexually dangerous person” finding affirmed

4th Cir.: “Sexually dangerous person” finding affirmed

Although the defendant claimed that he could control his pedophilic impulses and that his past behavior was limited to mere exhibition, not “hands-on offenses,” the district court properly found him to be a “sexually dangerous person.”

Background

Appellant Kaylan Bell appeals the district court’s order finding him to be a sexually dangerous person subject to civil commitment under the Adam Walsh Child Protection and Safety Act of 2006.

Bell is 33 years old. When he was 14, he sexually molested his six-year-old half-brother. At 16, he again molested his half-brother and also his six-year-old male cousin. Bell bribed his victims to remain silent. At 18, he exposed himself and masturbated in front of three 12-year-old boys at a pool locker room.

In May 2004, soon after the locker room incident, Bell masturbated near a group of small children at an elementary school. Bell admitted that he hoped the children would engage in sexual acts with him. He also admitted to a responding police officer that he had done the same thing one week prior and that he fantasized about sexual encounters with children. Bell was convicted in state court of two counts of lewdness involving a child and put on probation.

In September 2004, Bell again went to an area near a school, intending to engage in sexual conduct. He began masturbating in front of two boys, ages 7 and 9, and enticing them to touch him. Upon arrest, Bell admitted that he often fantasizes about anal and oral sex with boys. He was convicted of third-degree attempted sodomy on a child. While incarcerated in state prison, Bell told therapists that his urges were very strong and that he has violent fantasies of harming children during sex.

In December 2009, less than three months after release from prison, Bell began following a 13-year-old boy he saw in a grocery store, trying unsuccessfully to convince him to engage in a sexual act.

In June 2010, Bell was incarcerated for failing to register as a sex offender. Upon his 2013 release, he did not comply with the terms of his supervision: He drank alcohol, used drugs, failed to take prescribed medications, and failed to regularly appear for treatment sessions. His supervised release was ultimately revoked for failing to comply, and he returned to federal prison.

In February 2015, less than two weeks after his most recent release from prison, Bell skipped a scheduled meeting with his probation officer, drank some alcohol, and went to a nearby park where he’d previously seen elementary-school-aged children playing. He began following two boys, ages 11 and 13, and eventually exposed himself and started to masturbate in front of them. He showed the boys some money and asked them to come over. The boys threw rocks at Bell and tried to make him stop. Bell continued toward them, picked up a stick, and threatened to sodomize the boys with it. Bell left when an adult intervened, and he was apprehended nearby. He pled guilty in state court to indecent exposure and was incarcerated again.

On August 17, 2016, while Bell was still incarcerated, the government initiated commitment proceedings by filing a certification that Bell was a sexually dangerous person within the meaning of the Act. During the commitment hearing, Bell admitted to most of his prior conduct, though he denied being attracted to prepubescent children. The court did not credit Bell’s testimony, based on his prior statements that he did fantasize about prepubescent children and had acted on those fantasies. Bell’s mother also testified about letters Bell had written her about extremely disturbing fantasies involving sex and violence. Bell’s probation officer testified that Bell was the most impulsive person she had ever supervised during a 20-year career in corrections.

Three mental health experts also testified at the commitment hearing. Drs. Barnette and Hastings testified that Bell suffered from pedophilia and several other disorders. Although Barnette had previously evaluated Bell and concluded that he would be able to control his impulses, she testified that his more recent behavior demonstrated that he was sexually dangerous to others. Hastings agreed. Bell’s expert, Dr. Plaud, testified that Bell was not a pedophile and would not have serious difficulty refraining from molesting a child if released.

The district court credited the opinions of Drs. Barnette and Hastings over Dr. Plaud, ultimately concluding that Bell would have serious difficulty refraining from sexually violent conduct or child molestation if released from custody. Accordingly, the district court found that Bell was a sexually dangerous person.

Sexually dangerous person

The district court did not err in finding that, as a result of Bell’s mental illnesses, he would have serious difficulty in refraining from child molestation if released.

The Act plainly does not require the government to prove that a person has committed hands-on child molestation or a sexually violent offense. Nor, obviously, must the person have been successful in his attempts to commit such an offense in order to be found sexually dangerous to others. There is no question that the government has presented clear and convincing evidence of Bell’s “ongoing volitional impairment.” Time and time again, Bell has demonstrated an inability to refrain from acting upon his deviant sexual interests.

The district court properly evaluated the totality of Bell’s diagnoses, prior offenses, and the other notable and numerous indicators of his lack of volitional control and reached the reasonable conclusion that Bell was sexually dangerous to children and should not be released from custody.

The district court specifically addressed Bell’s contention that his adult offenses were merely “exhibitionism,” finding that Bell (1) demonstrated a marked pattern of approaching and targeting children, and (2) exhibited a pattern of escalating conduct, increasingly threatening actions, and several attempts at hands-on contact. Noting Bell’s history of incarceration, targeted therapy, and close probation monitoring, the district court stated: “Bell’s most recent offense involved enticement and threats of violence to children that he had approached and exposed himself to, all while in public and at a high risk of once again facing criminal consequences.” These findings were not in error.

This court also finds no merit in Bell’s claim that the district court failed to account for an 18-year gap since his last hands-on offense, as well as the 10-year gap between sexual offenses he committed in May 2004 and February 2015. Bell argues that these gaps prove he can control his impulses.

The district court was unpersuaded, and this court agrees. Bell’s lack of volitional control was demonstrated by his significant history of sexual reoffending, beginning when he was 14 years old and continuing to the age of 32, such that, over the past 10 years, he’d spent less than one year in the community. Each offense largely followed the same pattern: Bell was released from prison, failed to follow the conditions of supervision, and within a few months or even weeks, would commit a sexual offense in the presence of young children.

Finally, the district court did not err in crediting Barnette’s opinion, even though she had twice declined in prior evaluations to reach the conclusion that Bell was sexually dangerous. Barnette had declined to find that Bell was sexually dangerous after her first and second evaluations of him because there was no evidence that he had recently approached or molested a child.

Circumstances were different at the time of Barnette’s third evaluation of Bell. She testified that her opinion changed based on Bell’s behavior after he was most recently released from prison. Despite nearly daily contact with his probation officer, the threat posed by his two prior referrals for evaluation under the Act, and two “opportunities in the community,” Bell had re-offended sexually within two weeks of his release. Moreover, his offense was an escalation from previous exposures in that he followed children, enticed them with money, and ultimately threatened them, not leaving them alone until an adult intervened. This explanation from Barnette adequately explained why Bell’s more recent conduct led her to a different conclusion than she was willing to draw previously. The district court did not err in relying on it.

Affirmed.

United States v. Bell, Case No. 17-6627, Mar. 12, 2018. 4th Cir. (Traxler), from EDNC at Raleigh (Boyle). Jaclyn Lee DiLauro for Appellant; Christopher Michael Anderson for Appellee. VLW No. 018-2-051, 17 pp.

VLW 018-2-051