Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan,
and Powell, JJ., and Koontz, S.J.
STEVEN DEMILLE
OPINION BY
v. Record No. 110100 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
January 13, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
In this appeal, we consider whether in a proceeding under
the Civil Commitment of Sexually Violent Predators Act
("SVPA"), Code §§ 37.2-900 et seq., the determination that the
respondent is likely to engage in sexually violent acts must
be based solely on expert testimony that states an opinion to
that effect in express terms. For the reasons that follow, we
conclude that the factual determination of whether a
respondent is a sexually violent predator likely to engage in
sexually violent acts is to be based on the totality of the
record, including but not limited to expert testimony.
BACKGROUND
The pertinent facts are not in dispute and, pursuant to
familiar principles, will be viewed in the light most
favorable to the Commonwealth. Shivaee v. Commonwealth, 270
Va. 112, 127, 613 S.E.2d 570, 578 (2005). On March 13, 1989,
pursuant to a guilty plea Steven DeMille was convicted in the
Circuit Court of Fairfax County of rape. On June 9, 1989,
DeMille was sentenced to serve twenty-five years imprisonment,
with ten years suspended. DeMille was concurrently serving
lesser sentences for other offenses. While in prison, DeMille
was convicted of a weapons violation and sentenced to five
years, with four years suspended. DeMille was released on
mandatory parole on August 12, 1999, having served just over
eleven years of his concurrent sentences, including credit for
time served while awaiting trial.
Following a determination by the Virginia Parole Board
that he was unsuitable for parole, DeMille was returned to the
custody of the Department of Corrections on June 26, 2001 to
serve the remainder of his active time. DeMille was scheduled
for release on September 15, 2004. As a consequence of his
scheduled release and his performance on a standardized risk
assessment test, DeMille was referred for evaluation by the
Department of Corrections to the Commitment Review Committee.
Code § 37.2-903. 1 Based upon DeMille's criminal history and
his performance on a recidivism risk assessment test, on July
27, 2004 the Committee advised the Office of the Attorney
1
At the time the commitment petition was filed in this
case, the provisions of the SVPA were codified at Code
§§ 37.1-70.1 through 37.1-70.19. Unless noted otherwise, in
all material respects the current version of the SVPA is
substantially the same as the former version and, accordingly,
we will cite to the current version of the SVPA in this
opinion.
2
General of its opinion that DeMille was subject to civil
commitment under the SVPA. Code § 37.2-904.
On September 14, 2004, the Attorney General filed a
petition in the circuit court seeking the civil commitment of
DeMille as a sexually violent predator. Code § 37.2-305.
Counsel was appointed for DeMille, and a probable cause
hearing was held on November 9, 2004 pursuant to Code § 37.2-
906. At the conclusion of the hearing, the circuit court
entered an order finding that there was probable cause to
believe that DeMille was a sexually violent predator.
Beginning October 4, 2005, the circuit court held a two-
day bench trial to determine whether DeMille met the statutory
criteria for being a sexually violent predator. As relevant
to the issue addressed in this appeal, the evidence at trial
consisted of the testimony of three police detectives and a
probation officer as lay witnesses. Additionally, three
expert witnesses testified at trial: Lisa Hunt, a licensed
professional counselor who had provided sex offender therapy
to DeMille while on probation, and two psychologists, Dr.
Anita L. Boss, an expert for the Commonwealth, and Dr. Ronald
M. Boggio, an expert for DeMille. Both Dr. Boss and Dr.
Boggio also submitted written evaluations of DeMille that were
received into the evidence by the court.
3
The testimony of the lay witnesses dealt with DeMille's
criminal history and his difficulty in readjusting to society
during his probation. Hunt recounted that DeMille had
disclosed to her his past offenses of "peeping," Code § 18.2-
130, and indecent exposure, Code § 18.2-387, along with
substance abuse. However, she did not express an opinion
regarding the likelihood of DeMille re-offending.
With regard to a diagnosis, both Dr. Boss and Dr. Boggio
concluded that DeMille suffered from a mental defect or
disorder as defined by the SVPA. Specifically, both experts
diagnosed DeMille as suffering from exhibitionism, voyeurism,
and a general personality disorder featuring antisocial and
narcissistic behavior. Dr. Boss concluded based on her
evaluation and diagnoses that "DeMille's risk for sexual
recidivism can be categorized as high." Dr. Boggio concluded
that "DeMille presents a high risk for sexual re-offending"
based on an actuarial risk assessment, and further that
"[t]aking all . . . factors into consideration, it would
appear that his risk for future sexual re-offending may be
somewhat higher than that predicted by actuarial variables
alone."
During her testimony, Dr. Boss conceded that while she
was able to state within "a reasonable degree of psychological
certainty [DeMille's] potential of sexually re-offending[,] I
4
can't give that designation to the potential for sexually
violent re-offense." According to Dr. Boss, this was so
because, "[i]n terms of sexually violent re-offense, that's a
very narrow definition and it's beyond the scope of social
science." Likewise, Dr. Boggio testified that he could not
express an opinion regarding DeMille's risk for committing
another sexually violent act, as opposed to his general risk
for committing any sexual offense "because the research does
not allow us to make that distinction."
In his closing argument, DeMille's counsel asserted that
in order for the circuit court to find that DeMille was
"likely to engage in sexually violent acts," Code § 37.2-900,
by clear and convincing evidence, "the Commonwealth is asking
you . . . to fill in that evidence, to go where the experts
will not go." DeMille's counsel maintained that the issue was
not merely a limitation of the scope of social science
research, but, rather, that the evidence showed that DeMille
was more likely to commit non-violent acts of voyeurism and
exhibitionism. Because DeMille "only . . . has one violent
[sexual] act in his lifetime," and the experts were not able
to state to a reasonable degree of psychological certainty
that his likelihood to re-offend was specifically for sexually
violent offenses, counsel maintained that the Commonwealth had
5
not established a necessary element of proof that DeMille was
a sexually violent predator.
On March 27, 2006, the circuit court issued an opinion
letter in which it set out its findings concerning whether
DeMille met the criteria for being a sexually violent
predator. The court noted that there was no dispute that
DeMille had been convicted of a sexually violent offense and
that the evidence from both Dr. Boss and Dr. Boggio was
sufficient to establish that DeMille suffered from a mental
abnormality or personality disorder and found it difficult to
control his predatory behavior.
The circuit court devoted most of its analysis to the
issue, reasserted by DeMille in this appeal, that in order to
find that his risk of re-offending was specifically for
sexually violent offenses, the Commonwealth was required to
present express expert testimony to that effect. The court
concluded that the SVPA did not require that the nature of a
respondent's likelihood to re-offend be based on expert
testimony alone. The court noted that the legislature had
provided in other parts of the Code for instances where expert
testimony was the exclusive manner for proving a fact. See,
e.g., Code § 8.01-581.20 (expert testimony required to
establish standard of care for medical negligence); Code
§ 18.2-67.9 (expert testimony required to establish that a
6
child witness should testify by closed circuit television to
avoid severe emotional trauma). The court concluded that
these instances were exceptions to the general rule that a
trier of fact is not required to give special weight or
credibility to an expert, and may disregard an expert opinion
if the evidence as a whole supports a different conclusion.
Moreover, the court noted that as with any other determination
of fact, the trier of fact could rely on both direct and
circumstantial evidence and any reasonable inferences that
might be drawn therefrom.
Based on these principles of law, the circuit court ruled
that "DeMille's assertion that findings of causation and
likelihood of commission of further sexually violent acts can
only be established if based on expert opinions directly on
these issues" was not a correct statement of the law with
regard to SVPA proceedings. Reviewing "the evidence as a
whole," the court then concluded "that because of his
personality disorder and his difficulty controlling himself,
Mr. DeMille is likely to engage in sexually violent acts in
the future and constitutes a menace to the health and safety
of others."
On April 26, 2006, the circuit court entered an order
declaring DeMille to be a sexually violent predator. The
matter was continued for additional proceedings to determine
7
whether there was any suitable less restrictive alternative to
involuntary secure inpatient treatment. Code § 37.2-908(D).
At the conclusion of these proceedings, the court determined
that DeMille required secure inpatient treatment and ordered
him to be committed to the custody of the Department of
Behavioral Health and Development Services for appropriate
treatment and confinement in a secure facility. By an order
dated June 6, 2011, we awarded DeMille an appeal to determine
whether the circuit court erred in ruling that the
determination that a respondent in an SVPA proceeding is
likely to engage in future sexually violent acts requires an
express assertion to that effect by an expert witness. 2
2
We also granted DeMille an appeal on the question of
whether the circuit court erred in overruling a motion, filed
after the determination had already been made that DeMille was
a sexually violent predator, to dismiss the commitment
petition on the ground that it failed to allege that DeMille
was completing a sentence for a sexually violent offense at
the time the petition was filed, as was then required by
former Code § 37.1-70.4. In ruling on this issue, the court
determined that DeMille was completing his sentence for the
1989 rape conviction at the time the petition was filed and as
that offense was alleged to be the predicate offense for the
commitment proceedings, the petition adequately stated the
necessary allegations required by the SVPA to initiate a
commitment proceeding. DeMille principally attacks the
court's determination that he was actually serving his
sentence for the rape conviction at the time the petition was
filed, but only cursorily addresses the issue on appeal, as
stated in his assignment of error, that the commitment
petition failed to adequately allege this fact. Disregarding
DeMille's argument addressed to the factual finding of the
court, rather than the court's legal conclusion as to the
adequacy of the pleading, we find that DeMille has not
8
DISCUSSION
On appeal, DeMille contends that "[i]f the Commonwealth's
expert [Dr. Boss] could not determine the potential for
sexually violent offending, the circuit court, considering the
same evidence, equally could not." DeMille asserts that if
Dr. Boss was not able to offer an expert opinion as to the
likelihood that DeMille would re-offend by committing a
violent sexual offense, the court could not base its finding
on that issue on the record as a whole because the record "can
be no better than its constituent elements – and none of those
elements provided a basis for determining, by clear and
convincing evidence, that DeMille was 'likely to engage in
sexually violent acts.' "
The Commonwealth responds that the circuit court
correctly relied upon the record as a whole to determine the
ultimate issue in the case, which was whether DeMille met the
statutory criteria for being a sexually violent predator. In
making that determination, the Commonwealth notes that this
Court has stated that "the opinion of experts is not
dispositive." Commonwealth v. Squire, 278 Va. 746, 751, 685
S.E.2d 631, 633 (2009). We agree.
sufficiently briefed the issue set out in his assignment of
error, and the issue has thus been waived. Rule 5:17(c)(6);
Rule 5:27.
9
The circumstances in the present case are the reverse of
the circumstances in Squire. In that case, the expert
witnesses for the Commonwealth "agreed that Squire had a
mental abnormality or personality disorder and . . . because
of this disorder, Squire was likely to commit sexually violent
offenses in the future." Id. at 750, 685 S.E.2d at 632.
However, based on various risk assessment data, the experts
"could not say that Squire would be one of the individuals who
would re-offend." Id. Moreover, "[t]he record also show[ed]
that Squire had not been charged with or convicted of any
offenses of a sexual nature since 1999. Squire was not
incarcerated for a number of years during that time - from
1999 to 2003 and from 2004 to 2006. In 2001 his probation
officer removed Squire from supervised probation because of
his compliance with the probation requirements." Id. at 750-
51, 685 S.E.2d at 633. Based upon this record as a whole, the
trial court concluded that the Commonwealth had not proven by
clear and convincing evidence that Squire was likely to re-
offend by engaging in sexually violent acts in the future and
dismissed the commitment petition. Id. at 749, 685 S.E.2d at
632.
On appeal, the Commonwealth contended that the evidence,
including the "uncontradicted testimony of two experts[,] left
the trial court with 'the only reasonable conclusion . . .
10
that Squire is a sexually violent predator.' " Id. In
affirming the judgment of the trial court, we cited Code
§ 37.2-908(C), which provides that "[t]he court or jury shall
determine whether, by clear and convincing evidence, the
respondent is a sexually violent predator." Thus, we
concluded that "[w]hile the experts testified that, in their
opinion, Squire was . . . likely to commit violent sexual
acts, the opinion of experts [on that issue] is not
dispositive." Id. at 751, 685 S.E.2d at 633.
The record in Squire showed that the trial court had
" 'listened carefully to the reports' of the experts but that
it also considered 'the chronology of the defendant's life.' "
Id. When considering the record as a whole, the trial court
had concluded that the Commonwealth had not established by
clear and convincing evidence that Squire was likely to engage
in future sexually violent acts. In reviewing that
determination and affirming the judgment of the trial court,
we applied the standard applicable to appellate review of
determinations of fact by a trial court or jury, that is,
whether the finding is "plainly wrong or without evidence to
support [it]." Id.
The rationale of Squire applies to the present case.
Thus, the issue is not whether an expert must express an
opinion that an SVPA commitment respondent is likely to commit
11
future sexually violent acts in order for the trier of fact to
find that the respondent is a sexually violent predator.
Rather, the issue is whether the record as a whole supports
such a determination by the trier of fact by clear and
convincing evidence. In this respect, our decision in
Commonwealth v. Miller, 273 Va. 540, 643 S.E.2d 208 (2007), is
instructive.
In Miller, the Commonwealth appealed the dismissal of an
SVPA commitment petition contending that the trial court had
erred in concluding that it had not proven Miller was a
sexually violent predator by clear and convincing evidence.
We reviewed the entire record and recited the particular
elements of Miller's mental disorders that made him likely to
engage in sexually violent acts. Id. at 551-53, 643 S.E.2d at
214-15. We concluded that the evidence of Miller being a
sexually violent predator was so overwhelming that the trial
court's failure to make that determination was plainly wrong
and without support in the record and remanded the case for
further proceedings. Id. at 553, 643 S.E.2d at 215-16.
Likewise, in the present case, we consider the record as
a whole. While it is clear that neither Dr. Boss nor Dr.
Boggio was able to opine that the sexual offenses DeMille was
likely to commit in the future would be sexually violent acts
as defined in Code § 37.2-900, neither could they exclude that
12
likelihood. Indeed, both experts were equally clear that the
random, brutal nature of the rape committed by DeMille and
other elements of his history were significant factors in
their determination that the likelihood that he would
re-offend was higher than the actuarial data suggested.
Additional evidence in the record established that DeMille had
proven unsuitable for supervised parole, continued to have
difficulty with impulse control, and sought to minimize or
excuse his acts of misconduct including the rape. Thus, in
considering the record as a whole, we cannot say that the
circuit court's determination that DeMille was a sexually
violent predator, and specifically the factual determination
that he was likely to engage in future sexually violent acts,
was plainly wrong or without support in the evidence.
CONCLUSION
For these reasons, we hold that in proceedings under the
SVPA, it is not necessary for an expert to state with
specificity that the respondent will likely engage in sexually
violent acts in the future. Rather, the determination of
whether the respondent is likely to engage in sexually violent
acts as defined in Code § 37.2-900 by clear and convincing
evidence is an issue of fact to be determined by the court or
jury upon consideration of the whole record. Our review of
the whole record supports that determination by the circuit
13
court in this case. Accordingly, the judgment of the circuit
court that DeMille is a sexually violent predator in need of
treatment in a secure facility will be affirmed.
Affirmed.
14