Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Carrico, S.J.
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 102314 SENIOR JUSTICE HARRY L. CARRICO
September 16, 2011
DEREK BELL
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Humes J. Franklin, Jr., Judge
This appeal in a sexually violent predator proceeding
involves the first annual review in the case of Derek Bell. In
April of 2009, he was declared by a jury in the Circuit Court of
the City of Waynesboro to be a sexually violent predator and was
civilly committed by the circuit court to the custody of the
Department of Mental Health, Mental Retardation and Substance
Abuse Services for appropriate treatment. At the conclusion of
the review hearing on May 5, 2010, the circuit court found that
Bell "remains a 'sexually violent predator' as defined under
Virginia Code § 37.2-900" but that he "satisfies the criteria for
conditional release set forth under Virginia Code § 37.2-912.”
On May 24, 2010, the court ordered that Bell be granted a
conditional release but that he be held in custody pending the
preparation of a conditional release plan. A plan was submitted,
and the circuit court approved it in a hearing held on September
9, 2010, ordering that Bell be released from the custody of the
Department. 1
Bell does not question the circuit court's finding that he
remains a sexually violent predator. However, the Commonwealth
does question the circuit court's decision that Bell satisfied
the criteria for conditional release, and this Court granted the
Commonwealth this appeal to consider that question.
In reviewing the Commonwealth's challenge to the circuit
court's judgment, we will view the evidence and all reasonable
inferences deducible therefrom in the light most favorable to
Bell, the prevailing party below. Commonwealth v. Squire, 278
Va. 746, 749, 685 S.E.2d 631, 632 (2009). When a case is decided
by a court and a party objects to the decision on the ground that
it is contrary to the evidence, as the Commonwealth objects here,
“the judgment of the trial court shall not be set aside unless it
appears from the evidence that such judgment is plainly wrong or
without evidence to support it.” Code § 8.01-680; see also
Commonwealth v. Allen, 269 Va. 262, 276, 609 S.E.2d 4, 13
(2005).
BACKGROUND
In Code § 37.2-900, a sexually violent predator is defined
as “any person who (i) has been convicted of a sexually violent
1
On July 1, 2009, the title of this organization became the
"Department of Behavioral Health and Developmental Services"
(DBHDS). 2009 Acts chs. 813, 840.
2
offense . . . and (ii) because of a mental abnormality or
personality disorder, finds it difficult to control his predatory
behavior, which makes him likely to engage in sexually violent
acts.”
Prior to an annual review in a sexually violent predator
case, Code § 37.2-910(B) requires the filing with the court of "a
report reevaluating the respondent's condition and recommending
treatment." The "report shall be prepared by a licensed
psychiatrist or a licensed clinical psychologist skilled in the
diagnosis, treatment and risk assessment of sex offenders." Id.
In Bell's review hearing, the parties stipulated the
admission into evidence of an annual review report prepared by
Dr. Michele D. Ebright, Psy.D., and a second opinion in an annual
report prepared by Dr. Dennis R. Carpenter, Psy.D. Dr. Ebright
is the Director of Psychology at the Virginia Center for
Behavioral Rehabilitation (VCBR), and she testified for the
Commonwealth at both the review hearing in May 2010 and the
conditional release plan hearing in September 2010. On the
motion of Bell's attorney, Dr. Carpenter was appointed as a
mental health expert by the circuit court to provide a second
opinion "in order to assist the court in determining if Mr. Bell
remains a sexually violent predator as defined under Section
37.2-900 of the Code of Virginia and continues to require secure
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inpatient treatment.” Dr. Carpenter did not testify at either
the review hearing or the conditional release plan hearing.
In her report, Dr. Ebright stated that Bell suffered from
“Hebephilia,” although not conclusively because it was not
possible to “verify that the necessary duration requirement of 6
months is met in Mr. Bell’s case.” Dr. Ebright also diagnosed
Bell as suffering from “Antisocial Personality Disorder.” Dr.
Ebright concluded that Bell "needs continued intensive inpatient
treatment such as is available at VCBR and that conditional
release is not recommended."
In his report, Dr. Carpenter also diagnosed Bell as
suffering from Hebephilia, although he did not believe "there is
sufficient information for this diagnosis at this time." 2 Dr.
Carpenter further diagnosed Bell as suffering from Cannabis
Abuse, Alcohol Abuse, and Antisocial Personality Disorder. While
Dr. Carpenter stated that the results of a test given Bell placed
him “in the ‘high risk’ category range for sexual recidivating,”
2
Bell attacks the finding made by Doctors Ebright and
Carpenter that he "might be diagnosed with 'hebephilia' or the
sexual attraction to teenagers," which apparently would be
classified as a "mental abnormality" under Code § 37.2-900. But
that Code section defines a sexually violent predator as a person
who suffers from "a mental abnormality or personality disorder,"
so proof of only one, not both, of the conditions is sufficient
to support a finding that a person is a sexually violent
predator. (Emphasis added.) Both doctors positively diagnosed
Bell as suffering from "Antisocial Personality Disorder." Bell
does not question that finding, so his attack on the inconclusive
hebephilia diagnosis gains him nothing.
4
the doctor also stated that he believed Bell’s “risk to sexually
reoffend has been reduced as a result of the 11 months of
intensive residential sex offender treatment services he has
received at the VCBR.” 3 However, Dr. Carpenter concluded with
this statement: “While I opine that Mr. Bell is making progress
in treatment, I do not consider him to be a viable candidate for
conditional release at this time. I believe that an additional
year of treatment would give him the opportunity to enter the
second phase of treatment . . . and to further solidify his
treatment gains.”
ANALYSIS
At an annual review hearing, the Commonwealth has the burden
of proving by clear and convincing evidence that the respondent
remains a sexually violent predator. Code § 37.2-910(C). If the
court finds that the respondent remains a sexually violent
predator, it must determine whether the respondent should remain
in secure inpatient treatment or be conditionally released. Code
§ 37.2-910(D); Lotz v. Commonwealth, 277 Va. 345, 349, 672 S.E.2d
833, 836 (2009). Bell conceded at trial that it was his burden
"to establish the criteria" for conditional release, and he makes
3
At trial, Dr. Ebright was asked on cross-examination
whether she agreed with Dr. Carpenter’s opinion that Bell’s risk
to sexually re-offend had been reduced as a result of the eleven
months of intensive residential sexual offender treatment
services he had received at VCBR Dr. Ebright replied, “I do
not.”
5
a similar concession on brief, i.e., by a preponderance of the
evidence. We agree with Bell's allocation of the burden of
proof, and recognize it as the appropriate allocation on
conditional release in sexually violent predator cases.
Under Code § 37.2-910(D), “[t]o determine if the respondent
shall be conditionally released, the court shall determine if the
respondent meets the criteria for conditional release set forth
in § 37.2-912.” Code § 37.2-912(A) provides as follows:
At any time the court considers the respondent’s need for
secure inpatient treatment pursuant to this chapter, it
shall place the respondent on conditional release if it
finds that (i) he does not need secure inpatient treatment
but needs outpatient treatment or monitoring to prevent his
condition from deteriorating to a degree that he would need
secure inpatient treatment; (ii) appropriate outpatient
supervision and treatment are reasonably available; (iii)
there is significant reason to believe that the respondent,
if conditionally released, would comply with the conditions
specified; and (iv) conditional release will not present an
undue risk to public safety.
As noted previously, Bell does not question the circuit
court’s finding that he remains a sexually violent predator.
Hence, the only question left for decision is whether Bell
satisfied the criteria set forth in Code § 37.2-912 for
conditional release. Bell argues that he did satisfy the
requirements. He says the trial court found “an abundance of
evidence which established that Mr. Bell satisfied all criteria
for conditional release listed under § 37.2-912.”
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We disagree with Bell. The difficulty with his argument is
that, even when the evidence is viewed in the light most
favorable to him, he cannot clear the first hurdle in his pathway
to conditional release, i.e., the first criterion set forth in
Code § 37.2-912(A). If that is the case, we need not consider
the three remaining criteria because they would become moot.
"[C]onditional release is permitted only after a judicial
determination that [the respondent] satisfies all four criteria
stated in Code § 37.2-912(A)." Lotz, 277 Va. at 350, 672 S.E.2d
at 836 (emphasis added).
The first criterion required Bell to show that he “does not
need secure inpatient treatment but needs outpatient treatment or
monitoring to prevent his condition from deteriorating to a
degree that he would need secure inpatient treatment.” Code
§ 37.2-912(A). Two experts in the sexual offender field, Dr.
Ebright and Bell's own expert, Dr. Carpenter, clearly opined
without objection that Bell does need secure inpatient treatment.
But, Bell contends, under Code § 37.2-908(C), the opinion of
an expert witness in a sexually violent predator case may “not be
dispositive of whether the respondent is a sexually violent
predator.” However, the Code section permits an expert witness
to “testify at the trial as to his diagnosis, his opinion as to
whether the respondent meets the definition of a sexually violent
predator, his recommendation as to treatment, and the basis for
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his opinions,” and we are not precluded from considering and
giving effect to the opinions expressed by Dr. Ebright and Dr.
Carpenter on their "diagnos[e]s, . . . recommendation[s] as to
treatment, and the bas[e]s for [their] opinions." Code § 37.2-
908(C).
We will first identify the evidence that may be considered
favorable to Bell in carrying his burden of proving that he
satisfied the first criterion of Code § 37.2-912(A). There is, of
course, the opinion of Dr. Carpenter that Bell's "risk to
sexually reoffend has been reduced as a result of the 11 months
of intensive residential sex offender treatment services he has
received at the VCBR." Dr. Carpenter also stated that Bell has
"reported that he is a Christian,” that “he and his family attend
church on a regular basis,” that “he has continued to attend
church services on a regular basis while at the VCBR,” that he
“has continued to sing in the Choir,” and that “he reads his
Bible on a regular basis.”
In addition, Dr. Ebright noted Bell's "pro-social behavior"
in cleaning "the water fountain on his unit after another
resident urinated in it," being "responsible for the return of a
library book, even though [there was] no record of him having the
item," and being "pleasant and positive toward his new therapist
when she introduced herself to him."
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Dr. Ebright also stated that he had "the aptitude to
participate in and benefit from sex offender treatment," that he
could be "a pleasant and cooperative individual," that he
possessed "the ability to communicate effectively when he desires
to garner his resources to that end," and that if he chose "to
focus his time and energy on working through the treatment
program, he may make considerable treatment gains." However, in
the end, Dr. Ebright stated that Bell has just “not made this
choice as of yet."
So far as the first criterion set forth in Code § 37.2-
912(A) is concerned, the bulk of the rest of Bell's record may be
considered as anything but favorable. He is still in the first
phase of the three-phase treatment program at VCBR, and he must
reach Phase III before he can be considered for conditional
release. See Smith v. Commonwealth, 280 Va. 178, 185, 694 S.E.2d
578, 581 (2010).
Also, residents are expected to attend all group therapy
meetings. According to Dr. Ebright, "group attendance is the
most elemental aspect of treatment." But Bell’s attendance rate
in the first quarter of the twelve-month treatment period was
79%, 5% below the 84% overall average of residents, 55% in the
second quarter, 48% in the third quarter, and only 15% in the
final quarter. As Dr. Ebright put it, Bell “sort of opted out of
treatment.”
9
Further, in the twelve-month period preceding his first
annual review hearing, a total of twenty-four incidents were
documented against him in “Resident Behavior Report[s],”
including knocking on a window of a room where a staff member was
working and sticking “his tongue out at her”; “1 incident of
physical aggression”; engaging "in a ‘play fight’ with another
resident [and] laughing when staff responded to what they
believed to be an aggressive incident”; repeatedly entering or
loitering in places where his presence was prohibited; “cursing
loudly, physically posturing in an aggressive stance”; making
“threats of violence”; calling a staff member a “dumb bitch”;
“shouting obscenities”; telling a staff member he did not “give
a **** about any write-ups because they would not affect him in
court”; and threatening another resident that he “would **** him
up and break his mother******* neck.”
Finally, one would think that if Bell were ever to
change his pattern of behavior, it would be after the
circuit court announced at the May 5, 2010 review hearing
that it would grant Bell conditional release and he would
want to make a good impression at the conditional release
plan hearing on September 9, 2010. Surprisingly, that is
not the way Bell would have it. At the hearing on the
conditional release plan, Dr. Ebright was asked whether Bell
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“ha[d] adjusted to treatment at the VCBR” since the review
hearing. She responded as follows:
I would say it’s basically been unchanged from
what was summarized and discussed at the time of his
annual review. He continues to attend programming at a
very low rate and to have numerous behavioral reports
documenting deviant behavior, verbally abusive
behavior, in one instance some physical aggression. So
it’s just the same pattern has continued.
When asked how Bell responded to the staff’s intervention
concerning these later behavioral shortcomings, Dr. Ebright
stated that he was “uncooperative and argumentative and
potentially verbally abusive.”
CONCLUSION
On this record, only one conclusion is permissible:
Bell has not satisfied the first criterion set forth in Code
§ 37.2-912(A) and he does need secure inpatient treatment.
Therefore, the judgment of the circuit court is without
evidence to support it, and it will be reversed and final
judgment will be entered here in favor of the Commonwealth.
Reversed and final judgment.
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