Present: Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette,
JJ., and Lacy, S.J.
COMMONWEALTH OF VIRGINIA
v. Record No. 082440 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
FRANKIE LEE SQUIRE NOVEMBER 5, 2009
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
W. Allan Sharrett, Judge
The Commonwealth appeals from the trial court’s order
dismissing the Commonwealth’s petition for the civil commitment
of Frankie Lee Squire as a sexually violent predator pursuant to
the Civil Commitment of Sexually Violent Predators Act (the
Act), Code §§ 37.2-900 through -920. Because we conclude that
the trial court’s judgment was not plainly wrong or without
evidence to support it, we will affirm the judgment of the trial
court.
Squire was convicted of rape in 1994 and sentenced to 15
years imprisonment with 8 years suspended. He was released on
parole in 1999, but in 2003 his probation was revoked and a
portion of his suspended sentence was imposed because of two
convictions for assault and battery. He was again released from
prison in 2004, but Squire was returned to prison in 2006 after
he was arrested for attempted breaking and entering and violated
the conditions of his release. In October 2007, the
Commonwealth filed a petition to civilly commit Squire as a
sexually violent predator (SVP). The trial court found probable
cause to believe that Squire was a SVP on December 19, 2007.
Following a bench trial held September 15, 2008, the trial court
dismissed the petition for civil commitment, stating that
There’s no question that the defendant has been
convicted of a sexually violent offense. There is no
question in the Court’s mind that he has a mental
abnormality or a personality disorder. And there’s
no question in the Court’s mind that that makes it
difficult for him to control his predatory behavior.
The nub of this case in the Court’s opinion is
whether all of that makes him likely to engage in
sexually violent acts. The standard of proof is
clear and convincing evidence . . . .
[S]o for almost six years [the defendant] has been at
large in the community. . . . [H]e has not sexually
reoffended either by charge, conviction or
institutional infraction. And when the Court looks
at that conduct of the defendant, . . . it simply
cannot say that it is convinced that he will probably
offend sexually.
The Commonwealth filed a timely appeal to this Court.
DISCUSSION
To establish that Squire is a sexually violent predator,
the Commonwealth was required to show by clear and convincing
evidence that he had been convicted of a sexually violent
offense and that, because of a mental abnormality or personality
disorder, he finds it difficult to control his predatory
behavior which makes him likely to engage in sexually violent
acts. Code §§ 37.2-900 and -908. The trial court concluded
that the Commonwealth did not provide clear and convincing
evidence that Squire was likely to engage in sexually violent
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acts and dismissed the Commonwealth’s petition. In this appeal,
the Commonwealth challenges this finding, arguing that the
exhibits and uncontradicted testimony of two experts left the
trial court with “the only reasonable conclusion . . . that
Squire is a sexually violent predator.”
In reviewing the Commonwealth’s challenge to the trial
court’s judgment, we review the evidence and all reasonable
inferences from the evidence in the light most favorable to
Squire, the prevailing party below, and will not reverse the
judgment of the trial court unless it is plainly wrong or
without evidence to support it. Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
In this case the only testimony presented was that of the
Commonwealth’s expert witnesses, Dr. Doris E. Nevin and Dr. Evan
S. Nelson. The experts agreed that Squire had a mental
abnormality or personality disorder and, as relevant here,
because of this disorder, Squire was likely to commit sexually
violent offenses in the future.
In considering Squire’s personal history, Dr. Nelson noted
that Squire’s risk of re-offending was higher because his first
sex offenses appeared while he was young, he had violated the
terms of his parole and probation, and when he is under the
influence of alcohol, his risk of re-offending increases
dramatically. Dr. Nevin referred to Squire’s failure to
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complete a thorough sex offender treatment program, sexual
deviance, substance abuse, non-compliance with supervision, and
distorted attitudes justifying sex offending as contributing to
Squire’s risk of re-offending.
The experts also administered actuarial risk assessment
instruments. The Sex Offense Risk Assessment Guide (SORAG)
instrument used by Dr. Nelson is based on the arrests for
violent offenses and is not limited to arrests for sexually
related offenses. Squire scored sixth in nine risk categories
in the test, which categorized him at more risk for offending
than the average sex offender. On the Violence Risk Appraisal
Guide (VRAG) instrument used by Dr. Nevin, Squire scored a +16,
which is in the moderate high range and indicates a 55%
probability of a violent offense within seven years and a 64%
probability within ten years.
Both Dr. Nevin and Dr. Nelson used the Static-99 test.
Squire scored a six on Dr. Nevin’s test which put him in the
highest category of risk for re-offending. A score of six means
a statistical likelihood of re-offending of 39% within five
years, 45% within seven years and 52% within 10 years. When
applied by Dr. Nelson, Squire scored either a five or seven. A
score of five sets the statistical risk of re-offending at 33%
within five years. In response to questions by the court, the
experts agreed that Squire’s score on the Static-99 in 2007
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would have been the same at the time of his release from
incarceration in 1999. The experts agreed that while the tests
put Squire in a specific category of risk of re-offending, they
could not say that Squire would be one of the individuals who
would re-offend.
The record also shows 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.
Based on this record we cannot say that the trial court’s
judgment that the Commonwealth did not provide clear and
convincing evidence that Squire is likely to commit sexually
violent acts was plainly wrong or without evidence to support
it. While the experts testified that, in their opinion, Squire
was a sexually violent predator and was likely to commit violent
sexual acts, the opinion of experts is not dispositive. Code
§ 37.2-908(C). The trial court specifically stated that it
“listened carefully to the reports” of the experts but that it
also considered “the chronology of the defendant’s life.” As
shown by the record, Squire had no incidents of a sexual nature
for almost 10 years, since 1999, whether he was in the community
or incarcerated. This evidence suggests that Squire’s actions
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were, as a matter of fact, not consistent with the statistical
predictors of re-offending and stood in contrast to the experts’
opinions on the likelihood of Squire committing future violent
sexual acts. Thus, the trial court’s findings were not plainly
wrong or without evidence to support them.
In support of its position, the Commonwealth also argues
that the trial court erred as a matter of law because in stating
that Squire had a mental abnormality or personality disorder,
“the trial court had necessarily found” that Squire was “likely
to engage in sexually violent offenses” because the Act defines
“mental abnormality” or “personality disorder,” as “a congenital
or acquired condition that affects a person's emotional or
volitional capacity and renders the person so likely to commit
sexually violent offenses that he constitutes a menace to the
health and safety of others.” Code § 37.2-900. We disagree
with the Commonwealth for two reasons.
Considering the trial court’s statements as a whole, it is
clear that in stating Squire had a mental abnormality or
personality disorder, the court was not using those terms as
dispositive of whether that disorder made him likely to engage
in sexually violent acts. The trial court treated these two
findings as distinct considerations. This is consistent with
the analysis we have applied in other cases. For example, in
Commonwealth v. Allen, 269 Va. 262, 271, 609 S.E.2d 4, 10
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(2005), even though both parties’ experts testified that the
respondent had a personality disorder, that finding did not end
the inquiry. The contested issue on appeal was whether because
of the personality disorder, Allen was likely to engage in
sexually violent acts. Id. at 275-76, 609 S.E.2d at 12-13.
In Commonwealth v. Miller, 273 Va. 540, 552-53, 643 S.E.2d
208, 215 (2007), the Court again stated that the Commonwealth
had the burden of proving both that the respondent had a mental
abnormality or personality disorder and that because of such
condition the respondent “was likely to commit sexually violent
offenses.” In making this determination, the Court reviewed the
entire record and recited the particular elements of the
respondent’s mental disorders that made the respondent likely to
engage in sexually violent acts. Id. at 551-53, 643 S.E.2d at
214-15. These cases demonstrate that the mere use of the phrase
mental abnormality or personality disorder does not
automatically invoke a conclusion that a respondent is likely to
engage in sexually violent acts.
Furthermore, the analysis adopted by the Court in those
cases is also consistent with the actions of the General
Assembly in defining mental abnormality and personality disorder
and then defining a sexually violent predator as one who has
such a mental condition and such condition renders the
individual likely to commit sexually violent acts. If the
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finding of a mental abnormality or personality disorder
satisfied subsection (ii) of the definition of SVP in Code
§ 37.2-900, as the Commonwealth suggests, then the language in
that part of the definition relating to loss of control and
likelihood of committing a sexually violent act would be
superfluous. We do not consider actions of the General Assembly
to be superfluous; instead, we seek to provide meaning to all
the words of a statute. Northampton County Bd. of Zoning
Appeals v. Eastern Shore Dev. Corp., 277 Va. 198, 202, 671
S.E.2d 160, 162 (2009). Guided by this principle, we conclude
that the General Assembly in defining a SVP considered the
existence of a mental abnormality or personality disorder as an
element separate from the likelihood of engaging in sexually
violent acts.
Finally, we reject the Commonwealth’s reliance on language
in Shivaee v. Commonwealth, 270 Va. 112, 613 S.E.2d 570 (2005),
as support for its position. The language cited by the
Commonwealth is found in a discussion of defendant Butler’s
assertion that the Act was constitutionally infirm because the
definition of SVP was too vague. Id. at 124-25, 613 S.E.2d at
577. In the course of that discussion we said that the language
in the SVP definition regarding the likelihood of engaging in
sexually violent acts “may be redundant” because of the
definition of “mental abnormality” or “personality disorder.”
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Id. That statement falls far below an affirmative conclusion
that the finding of a mental abnormality as a matter of law is a
finding that the respondent is a SVP. More importantly, the
language relied upon by the Commonwealth was only dicta.
Butler’s void for vagueness challenge to the Act failed because
Butler did not assert that his conduct fell outside the purview
of the statute and therefore he could not assert the vagueness
of the statute on behalf of others. Id. at 125, 613 S.E.2d at
577.
In summary, for the reasons stated above, we hold that
there is no error in the judgment of the trial court, and
accordingly, we will affirm that judgment.
Affirmed.
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