No release after annual sex offender review

Where appellant was declared a sexually violent predator, the trial court correctly concluded that he remained so and needed continuing inpatient treatment based on appellant’s annual review.

Criteria

“Code § 37.2-900 provides three criteria which must be satisfied to conclude that an offender is a sexually violent predator. First, he must have ‘been convicted of a sexually violent offense.’ … Second, he must possess ‘a mental abnormality or personality disorder.’ …Third, because of this ‘mental abnormality or personality disorder,’ the offender ‘finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts.’ …

“Yo was convicted of rape, a sexually violent offense. He does not dispute that the first criterion is satisfied. Yo does dispute the diagnoses of his mental abnormalities or personality disorders, as well as the conclusion that they cause him difficulty controlling his predatory behavior, making him likely to engage in sexually violent acts.”

Personality disorder

“The evidence in the record overwhelmingly supports the trial court’s conclusion that Yo suffers one or more diagnosable mental abnormalities or personality disorders. Remarkably, both Dr. Dennis [who initially evaluated Yo] and Dr. von Kleiss [who provided a second opinion at Yo’s request] diagnosed Yo with antisocial personality disorder based on the criteria listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

“Dr. Dennis concluded that Yo satisfied six of the seven criteria for antisocial personality disorder, and Dr. von Kleiss opined that Yo satisfied all seven of the criteria.

“Both doctors supported the diagnoses with specific evidence of Yo’s behavior. They agreed Yo satisfied the following criteria:

“(1) ‘Failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest,’ which was evidenced by Yo’s lengthy and serious criminal record;

“(2) ‘Impulsivity or failure to plan ahead,’ which was supported by the nature of Yo’s crimes; (3) ‘Irritability and aggressiveness, as indicated by repeated physical fights or assaults,’ which was evidenced by Yo’s multiple convictions for assaultive behavior;

“(4) ‘Reckless disregard for safety of self or others,’ which was evidenced by Yo’s multiple prior violent and sexual charges;

“(5) ‘Consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations,’ which was evidenced by Yo’s ‘unstable employment history’ and ‘failure to pay court costs;’

“(6) Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another, which was evidenced by Yo’s lack of remorse for the victims of his crimes, as well as his blaming others for his crimes.

“Additionally, Dr. von Kleiss found that Yo met the additional criterion of ‘Deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure,’ which was evidenced by his ‘lying about the crimes he has committed’ and ‘lying in prison regarding rule violations.’

“It is clear that the diagnosis of antisocial personality disorder, and the trial court’s acceptance of that diagnosis, is supported by the record.

Substance abuse

“The record likewise supports Yo’s diagnosis of the various substance abuse disorders. Yo was under the influence of intoxicants during the commission of the underlying rape, as well as during other pivotal moments in his history, including a sexual assault he committed as a juvenile.

“Alcohol use was also the basis for the probation violation that caused Yo’s suspended sentence to be revoked. Based on Yo’s drug-seeking behavior at VCBR [Virginia Center for Behavioral Rehabilitation] and his comments to Dr. von Kleiss about intended alcohol consumption upon his release, the record supports the conclusion that these disorders remain in effect.”

Lack of control

“Finally, the record supports the trial court’s finding that, ‘because of [these] mental abnormalit[ies] or personality disorder[s], [Yo] finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts.’ …

“In considering Yo’s antisocial personality disorder, Dr. Dennis opined that it impacts Yo’s ‘emotional and/or volitional capacity, and by causing him difficulty controlling his predatory behavior, predisposes him to engage in sexually violent acts.’

“Further, both doctors opined that Yo’s substance use disorders negatively interact with his personality disorders ‘in such a way as to increase the likelihood of a sexually violent offense or other antisocial behavior.’

“As such, Yo’s apparent lack of understanding about the seriousness of his substance use disorders, the risk substances pose upon his release, and the role substance use has played in his past behavior are both concerning and supportive of the trial court’s conclusion that Yo’s ‘mental abnormalit[ies] or personality disorder[s]’ make it ‘difficult [for Yo] to control his predatory behavior, which makes him likely to engage in sexually violent acts.’”

Additional concerns

“Although Yo’s behavior has certainly improved during his stay at VCBR, the record amply demonstrates that there are additional concerns that remain unaddressed, including the role of anger in his offensive behavior; his ‘thinking errors,’ including victim blaming, which stand in the way of his acceptance of full responsibility for his actions; and the role of drugs and alcohol in his life.

“Phase III of the VCBR treatment program is designed to help offenders address some of these issues, and the record supports the conclusion that progress through the remainder of the VCBR program may mitigate the risk Yo poses to the general public upon his eventual release.

“As Dr. von Kleiss opined, ‘Yo’s ongoing patterns of behavior bear striking similarities with his known sexually violent offense behaviors and indicate that there is no substantial change in foundation components of his offense patterns.’”

Conclusion

“The record supports the trial court’s findings that Yo is a person who (1) ‘has been convicted of a sexually violent offense’; (2) has been diagnosed with a ‘mental abnormality or personality disorder’; and (3) ‘because of [that] mental abnormality or personality disorder, finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts.’

“Therefore, the trial court did not err in concluding that Yo remains a sexually violent predator.”

Affirmed.

Yo v. Commonwealth, Record No. 0035-22-1, Aug. 9, 2022. CAV (Fulton) From the Circuit Court of the City of Newport News (Flythe) Charles E. Haden for appellant. Amanda L. Lavin, Jason S. Miyares, Maria N. Wittmann, Susan Barr for appellee. VLW 022-7-320, 9 pp. Unpublished opinion.