Present: Hassell, C.J., Koontz, Kinser, Goodwyn, and Millette,
JJ., and Carrico and Lacy, S.JJ.
DWIGHT KEITH SMITH
OPINION BY
v. Record No. 091535 SENIOR JUSTICE HARRY L. CARRICO
June 10, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
John E. Wetsel, Jr., Judge
In this appeal in a sexually violent predator case, we
decide whether the circuit court erred in holding that Dwight
Keith Smith “remains a sexually violent predator and remains in
need of secure inpatient hospitalization.” This holding was
made in Smith’s fifth annual review hearing as required by Code
§ 37.2-910, he having been declared a sexually violent predator
in 2004. The hearing resulted in an order that Smith “be
committed to the custody of the Commissioner of the Department
of Mental Health, Mental Retardation and Substance Abuse
Services” for treatment and confinement in a secure facility.
This Court awarded Smith an appeal on two assignments of
error, (1) that the circuit court erred in considering evidence
containing inadmissible and hearsay opinions; and (2) that the
evidence was insufficient to support the circuit court’s
determination that continued civil commitment was necessary.
BACKGROUND
Prior to an annual review hearing, Code § 37.2-910(B)
requires a 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.”
Prior to the review hearing in Smith’s case, the
Commonwealth filed the written report of Dr. Mario Dennis, a
licensed clinical psychologist and the Clinical Director of the
Virginia Center for Behavioral Rehabilitation in Burkeville,
Virginia, a facility that houses and treats sexually violent
predators. The complete file of Smith’s treatment for the past
year at the Center was filed along with the report. Smith
objected to the introduction of the report and the treatment
records on the ground they contained inadmissible hearsay and
impermissible opinions. The circuit court refused the
introduction of the report and excluded opinions contained in
the treatment records. 1
ANALYSIS
In oral argument before this Court, Smith stated that a
sexually violent predator case is “kind of like what can happen
to you in a criminal law case,” i.e., “if you lose, you go into
a lockup facility very much like a jail.” Accordingly, Smith
1
The Commonwealth has not assigned cross-error to the
circuit court’s refusal to allow the introduction of the report
into evidence. Accordingly, the question whether the refusal
2
concluded, “all of the rules of evidence of criminal law should
apply.”
However, in Shivaee v. Commonwealth, 270 Va. 112, 613
S.E.2d 570 (2005), this Court considered the constitutionality
of the Sexually Violent Predator Act (SVPA), formerly Code
§§ 37.1-70.1 through 37.1-70.19, the forerunner of present
Chapter 9 of Title 37.2, entitled “Civil Commitment of Sexually
Violent Predators,” Code §§ 37.2-900 through 37.2-920. The two
enactments contain similar provisions.
Several observations this Court made in Shivaee are
pertinent here:
The SVPA was codified by the General Assembly as a civil
statute, as indicated by its placement in Title 37.
Nothing in the SVPA suggests that the legislature sought
to create anything other than a civil commitment scheme
designed to protect the public from harm.
. . . .
That the General Assembly chose to afford the procedural
protections provided in the SVPA does not transform a
civil commitment proceeding into a criminal prosecution.
Thus, the SVPA is a non-punitive, civil commitment
statute.
Id. at 125-26, 613 S.E.2d at 577-78 (citations and internal
quotation marks omitted). And, as this Court said in Jenkins
v. Director, Va. Ctr. for Behav. Rehab., 271 Va. 4, 624 S.E.2d
453 (2006): “Even though involuntary civil commitment is a
was erroneous is not before the Court at this time. Rule
5:18(b).
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significant deprivation of liberty to which federal and state
procedural due process protections apply, persons subject to
these commitment proceedings do not enjoy the same rights
attendant to a criminal proceeding.” Id. at 15, 624 S.E.2d at
460. These principles will guide our consideration of Smith’s
assignments of error.
Inadmissible Hearsay and Opinions
After the circuit court sustained Smith’s objection and
refused the introduction of the report required by Code § 37.2-
910, the Commonwealth argued that the treatment records Dr.
Dennis submitted along with the report “should come in as
official business records.” Smith objected, stating that the
treatment records “are all hearsay [and] don’t come in under
the [business records] exception [to the hearsay rule].”
The circuit court overruled Smith’s objection, citing
Commonwealth v. Wynn, 277 Va. 92, 671 S.E.2d 137 (2009), where
this Court stated as follows:
Code § 37.2-908(C) provides that an expert witness
testifying at an SVPA trial may state the basis for his
opinions. Similarly, pursuant to Code § 8.01-401.1, an
expert witness may rely upon facts, circumstances, or data
made known to . . . such witness in formulating an
opinion; those facts, circumstances or data . . ., if of a
type normally relied upon by others in the particular
field of expertise in forming opinions and drawing
inferences, need not be admissible in evidence.
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Id. at 100, 671 S.E.2d at 141 (citation and internal quotation
marks omitted). 2
Furthermore, in McDowell v. Commonwealth, 273 Va. 431, 641
S.E.2d 507 (2007), this Court stated as follows:
As a recognized exception to the hearsay rule, [this Court
has] adopted the modern Shopbook Rule, allowing in given
cases the admission into evidence of verified regular
entries without requiring proof from the original
observers or record keepers.
In many cases, . . . practical necessity requires the
admission of written factual evidence based on
considerations other than the personal knowledge of the
recorder, provided there is a circumstantial guarantee of
trustworthiness. The trustworthiness or reliability of
the records is guaranteed by the regularity of their
preparation and the fact that the records are relied upon
in the transaction of business by the person or entities
for which they are kept and they are kept in the ordinary
course of business made contemporaneously with the event
by persons having the duty to keep a true record. The
final test is whether the documents sought to be
introduced are the type of records which are relied upon
by those who prepare them or for whom they are prepared.
Id. at 434-35, 641 S.E.2d at 509 (citations and internal
quotation marks omitted).
The treatment records at issue in this case easily pass
these tests. Dr. Dennis, the Commonwealth’s expert witness,
testified that “department policy” required the creation of a
“master treatment plan for everyone in our treatment program,”
2
The circuit court correctly noted that while an expert
witness may rely upon the opinions of others in forming his or
her opinion, he or she may not state the content of the other
opinions on direct examination. See Commonwealth v. Wynn, 277
Va. at 98-99, 671 S.E.2d at 140.
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which is “updated at least annually.” Such plans “list the
specific areas of risk and treatment needs for the individual
and outline[] the goals of that particular element and
treatment” and “[w]hat the program will provide to meet those
goals.” A record is made “of progress that the individual has
made since the last master treatment plan and the objective for
the treatment plan in that area.” Dr. Dennis stated that
documents are also maintained entitled “Critical Information
Report[s]” that are marked by the therapist and contain
noteworthy information. In addition, treatment notes are kept
that must be completed by the therapist within twenty-four
hours outlining the nature of the treatment provided.
Dr. Dennis testified further that all these records are
maintained in the “regular and ordinary course of business for
all residents.” And he stated that similar records were
maintained for Smith in this case.
Neither in the circuit court nor in this Court has Smith
identified the particular matters he considers as inadmissible
hearsay, apparently content with a broadside assertion that
“[i]t is almost entirely hearsay.” That is obviously not true,
but Smith may find some comfort in the fact that this was a
bench trial, and “[a] judge, unlike a juror, is uniquely suited
by training, experience and judicial discipline to disregard
potentially prejudicial comments and to separate, during the
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mental process of adjudication, the admissible from the
inadmissible, even though he has heard both.” Eckhart v.
Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981).
Insufficiency of the Evidence
“The burden of proof at the [annual review] hearing shall
be upon the Commonwealth to prove to the court by clear and
convincing evidence that the respondent remains a sexually
violent predator.” Code § 37.2-910(C). In Commonwealth v.
Allen, 269 Va. 262, 609 S.E.2d 4 (2005), this Court stated as
follows:
Clear and convincing evidence has been defined as
that measure or degree of proof which will produce in the
mind of the trier of facts a firm belief or conviction as
to the allegations sought to be established. It is
intermediate, being more than a mere preponderance, but
not to the extent of such certainty as is required beyond
a reasonable doubt as in criminal cases. It does not mean
clear and unequivocal.
Id. at 275, 609 S.E.2d at 13 (citations and internal quotation
marks omitted).
“In accordance with established principles of appellate
review, we view the facts in the light most favorable to the
Commonwealth, the prevailing party below.” Shivaee v.
Commonwealth, 270 Va. at 127, 613 S.E.2d at 578. When the
facts of this case are so viewed, the conclusion is inescapable
that the Commonwealth has carried its burden of proving by
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clear and convincing evidence that Smith remains a sexually
violent predator.
Indeed, Smith has made little or no progress since his
last annual review. He is still in Phase I in his treatment,
and he must reach Phase III before he can be considered for
conditional release. At one point along the way, he moved up
to Phase II but then regressed and has stayed in Phase I ever
since.
Smith is currently diagnosed, as he has been diagnosed
previously, to be suffering from several conditions, including
“[p]araph[i]lia NOS, or not otherwise specified, hepoph[i]lia.”
This is described as “a deviant sexual interest or sexual
arousal to adolescents, individuals who are sexually developed,
but who are under age and therefore sexual contact with them
would be illegal.” Smith acknowledges on brief that his
predicate offense was for “an aggravated sexual battery
involving a 14 year old boy.”
Smith has a history of “[a]lcohol dependence.” This means
that he is “psychologically and physiologically dependent upon
. . . alcohol, and withdrawal or abstinence results with some
withdrawal symptoms, [or] other physical consequences.” Smith
denied that he was an alcoholic, and he resisted some
“cognitive restructuring” that treatment personnel wanted to
provide to help him cope with his alcohol dependence.
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Smith also has “[n]arcissistic, anti-social, obsessive-
compulsive traits.” A narcissistic trait reflects “self-
[ag]grandisement,” an anti-social trait reflects “behavior that
does not comport to the social expectations,” and an obsessive-
compulsive trait reflects “an excessive focus on details.”
Smith got “self-[ag]grandisement” in his sexual battery of the
14-year-old boy, his behavior did not comport to sexual
expectations, and he is described in the record as being “very
focused on details.”
Smith has “expressed pessimistic views on treat[ment]
helping him to be conditionally released.” Yet he has failed
to take full advantage of the treatment he was offered. He has
persistently refused to respond to questions from treatment
personnel without the advice of his attorney, which “get[s] in
the way of making the kind of progress [treatment personnel]
like to see.” He has refused to write in a journal, the
purpose of which is to “enhance self expression,” to help “the
individual to become more open” about problems. He has had
“fundamental disagreement [with a] therapist about some
treatment related issues.” His primary therapist described him
as “defensive,” as “having built a protective wall around
him[self]” and becoming “skilled [in] projecting blame onto
others.”
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Dr. Dennis expressed the opinion that Smith’s “risk to re-
offend” is “high” unless he avails “himself of all the tools”
on hand to help him “manage [his] risk,” that Smith “does
remain a sexually violent predator,” and that “he does require
continued inpatient treatment.”
Nothing in the current record disputes the accuracy of Dr.
Dennis’s opinions or even suggests that there has been any
meaningful change in Smith’s status since his last review.
Accordingly, this Court affirms the judgment of the circuit
court committing Smith to the custody of the Commissioner of
the Department of Mental Health, Mental Retardation and
Substance Abuse Services for appropriate treatment and
confinement in a secure facility.
CONCLUSION
Finding no error in the actions of the circuit court, we
will affirm its judgment.
Affirmed.
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