Sexually violent predator determination reversed

Where the circuit court determined that appellant was a sexually violent predator based on testimony from an expert the commonwealth appointed, this was error because the relevant statute requires that experts be appointed by either the Commitment Review Committee or by the Commissioner of Behavioral Health and Developmental Services.

Overview

In 2016, after appellant Baughman served a prison term and was placed on probation for a sex crime committed in 2003, a report alleged that he had contact with a person less than 18 years old. The contacts with the 16-year-old individual were nonsexual text messages. His probation was revoked and he received a one-year jail term.

In 2017, Dr. Gravers, a licensed clinical psychologist designated by the Commissioner of Behavioral Health and Developmental Services, evaluated Baughman to determine whether he was a sexually violent predator. Baughman refused an interview with Gravers, who then evaluated his records. The records included “Baughman’s former charges, the evidence presented against him at his criminal trial and the text messages which led to his probation revocation[.] …

“Dr. Gravers diagnosed Baughman with Narcissistic Personality Disorder but opined that this diagnosis “does not create a likelihood of having him commit sexually violent acts.” Dr. Gravers further determined Baughman did not have a paraphilia diagnosis or other sexual disorder.

The commonwealth retained its own expert, Dr. Sjolinder, who was not designated by the commissioner. Sjolinder did not seek an interview with Baughman. “After conducting her review, Dr. Sjolinder opined that Baughman suffered from both Narcissistic Personality Disorder and Other Specified Paraphilic Disorder; adolescent males.

“According to Dr. Sjolinder, Baughman’s specific paraphilia could likely lead him to reoffend. Her report noted that, although there was no evidence Baughman had reoffended or engaged in explicitly sexual conversations with minors, there was a strong likelihood that he would reoffend in the future based on certain ‘grooming’ behaviors that he had exhibited.”

In a civil proceeding, the commonwealth sought to have Baughman committed as a sexually violent predator. Sjolinder testified at a probable cause hearing and her report was placed into evidence.

She admitted she had not been appointed either by the committee or the commissioner.

“Baughman moved to dismiss the case or, in the alternative, for a continuation of the hearing to present the testimony of Dr. Gravers. The trial court denied both motions.

“It found that there was probable cause to believe that Baughman was a sexually violent predator. In reaching this conclusion, the trial court specifically referenced Baughman’s previous convictions, Dr. Sjolinder’s testimony and her report.

At trial, the jury heard Sjolinder’s testimony and learned of Baughman’s 2003 conviction. Bauman moved to strike.

“The trial court denied the motion, explaining that the [Sexually Violent Predators Act] does not require that the Commonwealth use an expert designated by the Commissioner throughout the trial proceedings and that Baughman’s interpretation of the SVPA would divest the court of its role as the gatekeeper for all expert qualifications, which ‘cannot be’ the intent of the General Assembly. The jury found that Baughman was a sexually violent predator.” He appealed.

Discussion

“Baughman contends that, under the SVPA, only the psychologist designated by the Commissioner can testify as an expert for the Commonwealth. As Dr. Sjolinder was not designated by the Commissioner, Baughman insists that she was not permitted to testify at either the probable cause hearing or the subsequent trial.”

The SPVA’s “plain language … indicates that the only experts who may testify at a probable cause hearing under the SVPA are those who meet the express qualifications stated in Code § 37.2-904(B). …

“Although the Commonwealth is clearly permitted to consult with Dr. Sjolinder, nothing in Code § 37.2-906 permits the Commonwealth to call her as an expert witness at the probable cause hearing.

“Similarly, any discretion that the trial court had to allow her expert testimony during the probable cause hearing was limited by the plain language of Code § 37.2-906(E), which explicitly conditioned such testimony on whether Dr. Sjolinder met the qualifications set forth in Code § 37.2-904(B).”

The commonwealth argues that the statutory language “designated by the Commissioner” is not a qualification of an expert but instead describes “how a licensed psychiatrist or licensed psychologist is selected to conduct the CRC assessment.

“In other words, the Commonwealth asserts that ‘designated by the Commissioner’ is only relevant for determining who can conduct a mental health examination under Code § 37.2-904(B), not for who may be permitted to testify as an expert under Code § 37.2-906(E).”

Parsing the statute

“The Commonwealth’s argument is undermined by the manner in which the General Assembly wrote Code § 37.2-904(B). The phrase ‘who is,’ as used in Code § 37.2-904(B), indicates that the subsequent adjective phrases, including ‘designated by the Commissioner’ are all part of the same relative clause. Notably, nothing in the language of either Code § 37.2-904(B) or Code § 37.2-906(E) indicates that the General Assembly intended for some of these adjective phrases to be interpreted in a different manner from the others.

“Thus, the entirety of the relative clause must be interpreted in the same manner. In other words, all of the adjective phrases are either descriptors or qualifications. As there can be no doubt that the adjective phrases ‘skilled in the diagnosis and risk assessment of sex offenders’ and ‘knowledgeable about the treatment of sex offenders’ are meant to be qualifications, the entire relative clause witness may must be interpreted in a similar manner.

“Therefore, contrary to the Commonwealth’s argument, the adjective phrase ‘designated by the Commissioner’ is a qualification, not a descriptor.”

Insufficient evidence

“[T]he record establishes that Dr. Sjolinder’s report was entered into evidence through her testimony. Thus, without her testimony, the trial court had no basis for considering her report.

“Therefore, the only evidence that was properly before the trial court were the documents establishing Baughman’s prior convictions and probation violations. As the trial court had no evidence regarding Baughman’s mental state, it could not have found that there was probable cause to believe that he was a sexually violent predator.

“Accordingly, the trial court should have dismissed the Commonwealth’s petition pursuant to Code § 37.2-906(F).”

Baughman v. Commonwealth, Record No. 210348; (unpublished order) (Kelsey, dissenting, joined by McCullough and Chafin) Sept. 15, 2022. Upon an appeal from a judgment rendered by the Circuit Court of Arlington County. VLW 022-6-043, 22 pp.