PRESENT: Hassell, C.J., Keenan, ∗ Koontz, Kinser, Lemons,
Goodwyn, and Millette, JJ.
DARRELL EUGENE BOYCE
OPINION BY
v. Record No. 090881 JUSTICE LEROY F. MILLETTE, JR.
April 15, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
J. Warren Stephens, Judge Designate
In this appeal, we consider whether the circuit court
erred by refusing to strike the testimony of a mental health
expert who relied upon a criminal charge for taking indecent
liberties with children that was dismissed by nolle prosequi
as a factor in forming the opinion that the appellant met the
criteria for a sexually violent predator.
BACKGROUND
The Commonwealth filed a petition under the Sexually
Violent Predators Act (SVPA), Code § 37.2-900 et seq., seeking
to have Darrell Eugene Boyce, who had previously been
convicted of a sexually violent offense, committed as a
sexually violent predator. A sexually violent predator is
defined, in pertinent part, as any person who (1) has been
convicted of a sexually violent offense, and (2) because of a
mental abnormality or personality disorder, finds it difficult
∗
Justice Keenan participated in the hearing and decision
of this case prior to her retirement from the Court on March
12, 2010.
to control his or her predatory behavior, which makes him or
her likely to engage in sexually violent acts. Code § 37.2-
900.
During a jury trial, the Commonwealth presented expert
testimony from Dr. Glenn R. Miller, Jr., a clinical
psychologist, who was accepted as a psychological expert in
the diagnosis, risk assessment, and treatment of sex
offenders. Dr. Miller testified that during his career, he
had performed around 1,000 evaluations of sex offenders,
including 275 evaluations under the SVPA. In evaluating
Boyce, Dr. Miller reviewed records, interviewed Boyce, and
performed various risk assessments. Based upon this
information, Dr. Miller opined that Boyce suffered from both a
mental abnormality, pedophilia, and personality disorder, not
otherwise specified, with antisocial traits.
According to Dr. Miller, pedophilia is a deviant sexual
interest in children. Dr. Miller opined that Boyce’s
personality disorder causes him to violate society’s rules and
customs, and to continue such behavior even after being caught
and punished for it. Dr. Miller concluded that Boyce’s
pedophilia and personality disorder made it difficult for him
to control his predatory behavior and that Boyce had a high
risk to re-offend. It was Dr. Miller’s opinion that Boyce met
the criteria for a sexually violent predator under the SVPA.
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During his testimony, Dr. Miller stated that in
formulating his opinion he considered a 1979 charge against
Boyce for taking indecent liberties with children that had
been dismissed upon the Commonwealth’s motion for nolle
prosequi. The dismissed charge was one of two indecent
liberties charges brought against Boyce, with different
victims, heard in the same circuit court on June 13, 1979.
One of these charges resulted in a finding of guilt pursuant
to a plea agreement while the other charge was dismissed upon
the Commonwealth’s motion for nolle prosequi.
Dr. Miller stated that it was accepted practice within
his field to consider both convictions and charges for sex
offenses. Although Dr. Miller considered the dismissed 1979
charge as a factor in his opinion, he testified that his
opinion “is not based on any single incident [but rather] on
the totality of all the information.”
Regarding the dismissed charge, Dr. Miller stated that
[f]rom an actuarial standpoint, it doesn’t
matter whether [Boyce] did it. The reality is that
individuals [who] are charged with more sexual
assaults have a higher risk of being re-convicted
[sic] of a new sex offense. It doesn’t matter
whether he did it. The reality is that research
indicates that those charged have a higher risk of
re-convicting [sic] in the future.
At the close of the Commonwealth’s evidence, Boyce made a
motion to strike, arguing that Dr. Miller’s testimony was
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improper because he relied on the 1979 charge for taking
indecent liberties with children that was dismissed by nolle
prosequi in rendering his opinion. Boyce contended that this
Court’s decision in Commonwealth v. Garrett, 276 Va. 590, 667
S.E.2d 739 (2008), requires that Dr. Miller’s testimony be
stricken. The circuit court denied Boyce’s motion to strike.
Boyce renewed his motion to strike at the conclusion of all of
the evidence, and the circuit court denied the motion.
The jury found that Boyce met the definition of a
sexually violent predator. The circuit court committed Boyce
to the custody of the Department of Mental Health, Mental
Retardation and Substance Abuse Services. Boyce appeals.
DISCUSSION
Boyce argues that the circuit court erred in refusing to
strike Dr. Miller’s testimony. Boyce asserts that the circuit
court should have granted his motion to strike Dr. Miller’s
testimony because Dr. Miller, in forming his expert opinion,
relied, in part, on a 1979 charge against Boyce for taking
indecent liberties with children that had been dismissed upon
the Commonwealth’s motion for nolle prosequi.
In response, the Commonwealth argues that Garrett does
not support Boyce’s argument that Dr. Miller’s testimony
should have been excluded. In support of this argument, the
Commonwealth notes that Dr. Miller considered the dismissed
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1979 charge as one factor among many in reaching his
conclusion, and that Dr. Miller did not assume that Boyce had
committed the offense charged. The Commonwealth also contends
that experts may consider unadjudicated charges in forming
their opinions in sexually violent predator cases.
On appeal, we generally review evidentiary rulings under
an abuse of discretion standard. Coe v. Commonwealth, 231 Va.
83, 87, 340 S.E.2d 820, 823 (1986). “However, ‘[a] trial
court has no discretion to admit clearly inadmissible evidence
because admissibility of evidence depends not upon the
discretion of the court but upon sound legal principles.’ ”
Commonwealth v. Wynn, 277 Va. 92, 97, 671 S.E.2d 137, 139
(2009) (quoting Norfolk & Western Ry. Co. v. Puryear, 250 Va.
559, 563, 463 S.E.2d 442, 444 (1995)) (internal quotation
marks omitted).
At the outset, we must clarify that the evidentiary
ruling in question is not the admission of the dismissed 1979
charge. Although Boyce objected to the introduction of the
dismissed indictment at trial, he failed to assign error to
the circuit court’s overruling of his objection. The issue,
then, is whether the circuit court abused its discretion in
failing to strike Dr. Miller’s entire testimony because he
considered a dismissed charge as a factor in forming his
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opinion that Boyce met the criteria for being a sexually
violent predator.
In Garrett, the expert, as the foundation of her
diagnosis of Marvin D. Garrett’s mental condition as
“Paraphilia, Not Otherwise Specified . . . Sexual Abuse of
Child,” relied upon three juvenile petitions charging Garrett
with having carnal knowledge of a minor that had been
dismissed by nolle prosequi to draw the inference that Garrett
had, in fact, committed those offenses. 276 Va. at 594-95,
667 S.E.2d at 741-42. We held that in the absence of
additional evidence, the dismissal by nolle prosequi of the
three charges, standing alone, was legally insufficient for
the expert to infer that Garrett had actually committed the
charged offenses in rendering her opinion. Id. at 607, 667
S.E.2d at 749. Thus, we held that the expert’s testimony was
properly excluded because the only factual basis upon which
the expert could have reached her diagnosis of “Paraphilia,
Not Otherwise Specified . . . Sexual Abuse of Child” was from
her reliance on the unsupported belief that Garrett committed
the offenses charged, because Garrett’s criminal record did
not include any other charges of sexual abuse of a child, and
the only adult offense of a sexual nature was a rape
conviction with an adult victim. Id.
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This case can be distinguished from the ruling in
Garrett. First, Dr. Miller’s opinion that Boyce suffered from
pedophilia was not based solely upon the 1979 offense of
taking indecent liberties with children that was dismissed by
nolle prosequi. Rather, Dr. Miller’s opinion that Boyce
suffered from a deviant sexual interest in children was based
upon a number of factors, including: (1) Boyce’s 1979
conviction of indecent liberties with a seven-year-old child;
(2) Boyce’s 1980 conviction for indecent liberties with a
seven-year-old child; and (3) Boyce’s 1994 convictions for
sodomy and indecent exposure with a nine-year-old child. In
fact, Boyce related details of the 1980 and 1994 convictions
to Dr. Miller that fully supported the diagnosis of
pedophilia.
Second, Dr. Miller did not assume that Boyce was guilty
of the dismissed indecent liberties charge as the basis for
his opinion that Boyce suffered from a personality disorder,
not otherwise specified, with antisocial traits. According to
Dr. Miller, the essence of a personality disorder is that a
person does not benefit from being caught, punished, and
offered opportunities at rehabilitation. Dr. Miller based his
opinion of Boyce’s personality disorder upon the “totality of
all the information” and upon his conclusion that Boyce had
not benefited from multiple arrests, punishments, probation,
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or revocations of probation as opportunities to change his
behavior. According to Dr. Miller, Boyce had violated rules
of society over a significant period of time, despite the fact
that he knew he should not do so.
In Garrett, we acknowledged that mental health
professionals often rely upon judicial records of charged
conduct that may not have resulted in a final determination of
guilt, yet nevertheless may be indicative of antisocial
behavior. Id. at 607, 667 S.E.2d at 749. We take this
opportunity to reaffirm that position.
Dr. Miller testified that his opinion was based on the
“totality of all the information,” and that the mere fact that
Boyce was charged with the dismissed 1979 sexual offense was a
factor in his analysis of whether Boyce was a sexually violent
predator. According to Dr. Miller, from an actuarial
standpoint, it did not matter whether Boyce committed the
charged offense. Dr. Miller’s opinion that individuals who
have been charged with more sexual assaults have a higher
risk, actuarially, of being reconvicted of a new sex offense
was an appropriate factor to be considered in determining
whether Boyce suffered from a personality disorder that, in
conjunction with his pedophilia, made it difficult for him to
control his predatory behavior, which made him more likely to
engage in sexually violent acts. Dr. Miller’s consideration
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of the totality of the evidence in rendering his expert
opinion included a review of Boyce’s criminal history,
convictions as well as dismissed charges for sexual offenses,
an interview with Boyce, and various risk assessments and
amply supported his opinion that Boyce met the criteria for a
sexually violent predator.
This case is also distinguishable from our recent
decision in Lawrence v. Commonwealth, 279 Va. 490, 689 S.E.2d
748 (2010). In Lawrence, the expert testified that her
diagnosis that Lawrence had an antisocial personality disorder
was partially based upon unadjudicated allegations of his
sexual misconduct that were contained in police reports. Id.
at 490, 689 S.E.2d at 749. We relied on Garrett in holding
that the “expert testimony did not have an adequate factual
foundation to the extent it was dependent upon assuming the
truth of the hearsay allegations concerning Lawrence’s past
sexual misconduct.” Id. at 499, 689 S.E.2d at 753.
This case is distinguishable from Lawrence because, as we
stated above, Dr. Miller did not base his opinion on the
inference that Boyce committed the offense dismissed by nolle
prosequi. Dr. Miller’s opinions that Boyce suffered from
pedophilia and from a personality disorder, as well as his
opinion that Boyce was a sexually violent predator, were amply
supported by prior convictions for sexual offenses against
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children and by evidence presented at trial. Therefore,
unlike the expert opinion at issue in Lawrence, Dr. Miller’s
opinions were not “speculative and unreliable as a matter of
law,” and were properly admitted into evidence. Id.
CONCLUSION
Because Dr. Miller’s opinions were based upon a
sufficient foundation and upon the totality of all of the
information in the case, we hold that the circuit court did
not abuse its discretion in refusing to strike Dr. Miller’s
testimony.
For the foregoing reasons, we will affirm the judgment of
the circuit court.
Affirmed.
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