Com. v. Miller

PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

COMMONWEALTH OF VIRGINIA

v. Record No. 061015 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 20, 2007
RONALD MILLER

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge

In this appeal, we consider whether the circuit court erred

in qualifying a witness to testify as an expert under the

Sexually Violent Predators Act (the Act), Code §§ 37.2-900

through -920. We also consider whether the circuit court erred

in concluding that the Commonwealth failed to prove by clear and

convincing evidence that the defendant is a sexually violent

predator as defined by the Act.

In 1994, Ronald Miller was convicted in the Circuit Court

of Chesterfield County (circuit court) of forcible sodomy for

conduct that occurred several years earlier. Miller received a

sentence of 55 years’ imprisonment, with 45 years suspended.

While incarcerated for his 1994 conviction, Miller was

convicted in the circuit court of two charges of forcible sodomy

for conduct that occurred in October 1992. The circuit court

sentenced Miller for these convictions to a term of 30 years’

imprisonment, with 20 years suspended.
 Before Miller’s scheduled release from incarceration in

January 2005, the Director of the Department of Corrections

notified the Department’s Commitment Review Committee (CRC) that

Miller qualified for review under the Act because he had been

convicted of a sexually violent offense and had received a score

of four on the Rapid Risk Assessment for Sexual Offender

Recidivism (RRASOR).1 See former Code § 37.1-70.4(C) (Cum. Supp.

2005). The CRC completed an assessment of Miller and referred

his case to the Office of the Attorney General.

The Attorney General reviewed the CRC’s assessment, the

results of Miller’s mental health examination, institutional

history, treatment record, and criminal record. Based on this

information, the Attorney General determined that Miller

qualified as a sexually violent predator under the Act. The

Attorney General (the Commonwealth) filed a petition in the

1
The Act was codified in §§ 37.1-70.4 through –70.19 until
October 1, 2005, when it was repealed and recodified in §§ 37.2-
900 through –919. Further amendments were made to these
provisions in 2006. However, neither party contends that the
reformatting of these provisions has changed the operative terms
and concepts that are dispositive in this appeal. Prior to
Miller’s release from prison, the predecessor version of Code
§ 37.2-903 provided that prisoners incarcerated for a sexually
violent offense were to be assessed and evaluated based on a
testing instrument known as the RRASOR, which is used in
predicting sex offender recidivism. Under the then-applicable
provision, prisoners who received a score of four or more on the
RRASOR were to be referred to the CRC for further assessment.
See former Code § 37.1-70.4 and former § 37.2-903(C) (Interim
Supp. 2005). For convenience of reference, the current Code
references are used in the remainder of this opinion.

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circuit court requesting that Miller be civilly committed

pursuant to the Act.

The circuit court conducted a bench trial in which the

expert witnesses presented by both parties diagnosed Miller with

pedophilia. The parties’ witnesses disagreed, however,

regarding Miller’s risk of recidivism and whether Miller met the

definition of a sexually violent predator under the Act.

The Commonwealth presented the testimony of Anita L. Boss,

a licensed clinical psychologist who qualified as an expert in

forensic psychology, including sex offender evaluation, risk

assessment, and treatment. Dr. Boss completed a forensic

evaluation of Miller, in which she conducted a clinical

interview, gathered information from family members, and

administered certain psychological tests.

Dr. Boss testified that Miller had a pattern of sexual

interaction with boys who were between four and five years old.

She stated that Miller originally reported having sexually

abused five victims but that during one evaluation interview,

Miller estimated that he might have sexually abused various

children a total of 100 times. Dr. Boss also stated that Miller

had a practice of “grooming” his child victims, using games and

other methods to engage the victims’ interests.

Dr. Boss testified that when Miller was 14 or 15 years of

age, he sexually abused two of his siblings, twins, one male and

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one female, who were then four or five years old. According to

Dr. Boss, Miller reported that he encouraged the twins to play a

“lollipop” game with his penis and had them perform oral sodomy

on him.

Dr. Boss stated that Miller reported he engaged another

five year old boy in similar conduct, during a period when his

mother was providing childcare services for the boy. Miller

also related to Dr. Boss an incident that occurred when Miller

was 18 or 19 years old, involving another young boy for whom

Miller’s mother was providing childcare services. Dr. Boss

stated that Miller described putting his hand on the young boy’s

groin area while the boy was sleeping. Miller also told Dr.

Boss that he masturbated in private after abusing his child

victims, which suggested to Dr. Boss that Miller fantasized

about the victims.

During her evaluation, Dr. Boss learned that Miller had

worked as a public school bus driver and had transported

children with special needs. In addition to that job, Miller

had worked at an amusement park for a few months one summer.

Dr. Boss concluded that Miller’s employment history was

significant because he chose employment that placed him in

direct proximity to children.

Miller was 28 years old when he committed the offense that

resulted in his first conviction. During this incident, Miller

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escorted a young boy at his mother’s day care center to use the

bathroom. While in the bathroom, Miller had the child perform

oral sodomy on Miller.

Dr. Boss testified that Miller’s later conviction for an

offense that occurred in 1992 involved another five year old boy

whom Miller was babysitting. According to Dr. Boss, Miller

reported that he was sitting on a couch with the child watching

a movie when he felt a strong impulse to touch the child’s

thigh, and that his hand had a “mind of its own.” Miller

eventually had the child perform oral sodomy on him. Dr. Boss

found Miller’s explanation significant because it showed denial

on Miller’s part, blaming his hand rather than himself for his

actions.

Miller told Dr. Boss that he considered asking for help,

but that he was concerned people would think he was “crazy.” He

described himself as a homosexual who was afraid to disclose his

sexuality to his family and was afraid to seek the company of

adult men. However, Miller would not acknowledge to Dr. Boss

that he was sexually interested in children.

Addressing Miller’s behavior while incarcerated, Dr. Boss

testified that Miller and another male inmate were found in a

bathroom engaging in oral sodomy. At the time of this incident,

Miller said that the sexual conduct was consensual, but he later

told Dr. Boss that he had been sexually assaulted.

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 Dr. Boss further testified that Miller had completed a

“sexual offender awareness program” during his incarceration.

At the time Dr. Boss interviewed Miller, Miller was enrolled in

a sex offender recidivism treatment program (SORT program) and

had participated in that program at a “moderate” level.

Dr. Boss diagnosed Miller with pedophilia, non-exclusive

type, based on Miller’s attraction to male children and male

adults. She testified that according to the psychiatric

definition of pedophilia, a person who has pedophilia 1) has

“[r]ecurrent, intense sexually arousing fantasies, sexual urges,

or behaviors involving sexual activities with prepubescent . . .

children,” 2) has acted on these urges, causing distress or

interpersonal difficulties, and 3) is at least 16 years old or

five years older than the victim. Dr. Boss concluded that

Miller’s diagnosis of pedophilia satisfied the Act’s statutory

definition of “mental abnormality,” and the separate definition

of that term generally used by clinical psychologists and

psychiatrists. See Code § 37.2-900.

Dr. Boss also diagnosed Miller with a personality disorder,

not otherwise specified, and stated that Miller demonstrated

avoidant, dependent, and depressive behavior. According to Dr.

Boss, the personality disorder traits exhibited by Miller show a

“moderate correlation” with a risk of committing future

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offenses. Dr. Boss added that Miller’s personality disorder

might prevent him from seeking treatment.

Dr. Boss administered to Miller a testing instrument known

as the Static-99, which is used to predict sex offender

recidivism.2 Miller received a score of four on that test. In

determining his score, Dr. Boss concluded that Miller did not

have any victims who were “strangers” to him.

Dr. Boss explained that Miller’s score placed him at a

“medium-high” risk assessment level, with a 26 percent chance of

recidivist behavior within five years, and a 31 percent chance

of such behavior within ten years. Dr. Boss acknowledged,

however, that the Static-99 provides another table of risk

percentages that takes into consideration a person’s age, in

addition to his test score. According to Dr. Boss, when

Miller’s age of 42 was considered, the corresponding risk of

recidivism was 13.8 percent, with a margin of error of eight

percent.

In addition, Dr. Boss conducted an assessment known as the

Clinical Judgment to Sexual Violence Risk Assessment 20 (SVR-

20), which considers both risk factors and treatment factors.

Dr. Boss’ assessment of Miller under the SVR-20 indicated that

Miller’s deviant sexual interest in children correlated “very

2
Use of the Static-99 test is now specifically mandated by
the Act. See Code § 37.2-903(C).

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highly” with a risk of committing future sex offenses. She

further observed that Miller had additional risk factors for

recidivism, including an escalating pattern of deviant sexual

behavior, a lack of social support, and potential employment

problems.

Dr. Boss also testified that when a sex offender fails to

comply with the conditions and requirements of a treatment

program, the risk of committing future sexual offenses

increases. Dr. Boss concluded that Miller met the Act’s

definition of a sexually violent predator.

The Commonwealth also presented the testimony of Maria S.

Stransky, a certified sex offender treatment provider and the

assistant director of the SORT program at the Brunswick

Correctional Center. Stransky testified that Miller began the

SORT program in July 2001 but was terminated from the program in

February 2005 because he did not progress in his treatment plan.

Stransky stated that she has completed hundreds of

actuarial risk assessments during the course of her career. She

evaluated Miller on the Abel Assessment, a test given to all

SORT participants to determine their sexual interests and any

changes in their sexual interests during treatment. Based on

Miller’s responses on the Abel Assessment, Stransky diagnosed

Miller with pedophilia.

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 Stransky administered to Miller the RRASOR, on which he

received a score of four. Stransky also administered the

Static-99 test, assigning Miller one point for assaulting a

victim who was a “stranger” to him. She could not remember,

however, which of Miller’s victims could be classified as a

“stranger.”

Stransky testified that if Miller had no victims who were

“strangers” to him, he would have received a score of three on

the Static-99, which placed Miller in the “medium low” risk of

recidivism. She also stated that a score of three on the

Static-99 correlated with a 12 percent risk of recidivist

behavior within five years. After Stransky’s testimony, the

Commonwealth rested its case.

Miller presented Dr. Eileen P. Ryan, a licensed clinical

psychiatrist, to testify as an expert in the field of forensic

psychiatry. Dr. Ryan is the medical director of the Institute

of Law, Psychiatry, and Public Policy at the University of

Virginia. She has received specialized training in the

evaluation and treatment of sex offenders and has been certified

in Virginia since 1999 to treat sex offenders although she does

not treat them as part of her employment.

The Commonwealth objected to the qualification of Dr. Ryan

as an expert contending, among other things, that Dr. Ryan was

not “skilled in treatment” of sex offenders as required by Code

9
§ 37.2-904, because she did not treat them as a part of her

practice but was merely certified to do so. The circuit court

sustained the Commonwealth’s objection with regard to the issue

of treatment but, over the Commonwealth’s objection, admitted

Dr. Ryan as an expert on the diagnosis and risk assessment of

sex offenders.

Dr. Ryan testified that she evaluated Miller using

actuarial instruments and clinical techniques. Dr. Ryan

concluded that Miller is a pedophile, which she indicated is a

condition that meets the psychiatric definition of a “mental

abnormality.” Dr. Ryan also diagnosed Miller with avoidant

personality disorder with dependent traits and stated that this

diagnosis satisfied the psychiatric definition of a personality

disorder. Dr. Ryan concluded, however, that Miller does not

suffer from a “mental abnormality” or “personality disorder”

within the meaning of the Act, which provides different

definitions of these terms from the psychiatric definitions.

See Code § 37.2-900.

Dr. Ryan stated that several factors lower Miller’s risk

for recidivism, including the fact that he is not antisocial, is

not psychopathic, and does not abuse drugs or alcohol. Dr. Ryan

testified that Miller’s two primary risk factors for recidivism

were his diagnosis as a pedophile and his previous access to

children.

10
 In a letter opinion, the circuit court held that the

Commonwealth did not meet its burden of proving that Miller has

a mental abnormality or personality disorder as defined by the

Act, or that he is likely in the future to engage in sexually

violent acts. In its analysis, the circuit court discussed

several factors. The circuit court observed that Miller’s

participation in the SORT program was rated as “moderate,” and

stated that there was insufficient evidence to show that his

failure to complete the program affected his likelihood of

recidivism. The circuit court also noted that Dr. Boss appeared

confused regarding Miller’s conviction dates and that her

apparent uncertainty about these dates could have impacted Dr.

Boss’ scoring of the Static-99 test.

Addressing Miller’s potential for recidivist behavior, the

circuit court stated, “Miller never sought out his victims.

Rather, all of his victims were children who he was familiar

with and who were placed in his care, thus giving him an easy

opportunity to offend.” The circuit court concluded that

because Miller is now a convicted sex offender, his

opportunities to care for young boys “should decrease or become

non-existent.” The circuit court also found that there was no

evidence demonstrating that Miller was likely to “begin seeking

out victims.”

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 The circuit court additionally held that even if it had not

considered Dr. Ryan’s testimony, the Commonwealth’s evidence was

insufficient to establish that Miller is a sexually violent

predator as defined by the Act. The circuit court based its

rationale in part on Dr. Boss’ confusion about the chronology of

Miller’s offense history and on the fact that Stransky

acknowledged an error in her scoring of the Static-99 test. The

circuit court entered final judgment holding that Miller is not

a sexually violent predator as defined by the Act.

On appeal, the Commonwealth first argues that the circuit

court erred in qualifying Dr. Ryan as an expert witness. The

Commonwealth asserts that Code § 37.2-904(B) establishes a two-

part standard under which a potential expert witness must

demonstrate skill in both the diagnosis and the treatment of

certain specified mental conditions. The Commonwealth contends

that the circuit court improperly disregarded the “treatment”

component of this two-part standard by admitting Dr. Ryan to

testify concerning the diagnosis of mental abnormalities and

disorders, without requiring her also to show that she was

skilled in the treatment of those conditions.

In response, Miller argues that the circuit court did not

err in qualifying Dr. Ryan as an expert witness under the

statute. According to Miller, the plain language of Code

§ 37.2-904(B) did not require that Dr. Ryan be skilled in the

12
treatment of the specified mental conditions before she could

render a diagnosis and an assessment of his risk of committing

future offenses. We disagree with Miller’s arguments.

A court’s admission of expert testimony is a matter

committed to the sound discretion of the trial judge, and we

generally will disturb a decision of this nature only when the

court has abused its discretion. Atkins v. Commonwealth, 272

Va. 144, 153, 631 S.E.2d 93, 97 (2006); Tarmac Mid-Atlantic,

Inc. v. Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465

(1995). However, when a statute designates express requirements

for the qualification of an expert witness, the witness must

satisfy those statutory requirements before testifying as an

expert. Atkins, 272 Va. at 153, 631 S.E.2d at 97; Commonwealth

v. Allen, 269 Va. 262, 273, 609 S.E.2d 4, 11 (2005); see Hinkley

v. Koehler, 269 Va. 82, 87, 606 S.E.2d 803, 806 (2005); Perdieu

v. Blackstone Family Practice Ctr., Inc., 264 Va. 408, 419, 568

S.E.2d 703, 709 (2002); Sami v. Varn, 260 Va. 280, 283-86, 535

S.E.2d 172, 174-75 (2000).

An expert may assist a defendant in civil commitment

proceedings under the Act on subjects relating to the

defendant’s mental health. Code § 37.2-907(A). Such an expert

“shall be a licensed psychiatrist or a licensed clinical

psychologist who is skilled in the diagnosis and treatment of

13
mental abnormalities and disorders associated with sex offenders

and who is not a member of the CRC.” Id.

We determine the meaning of this language from the express

words contained in the statute. Washington v. Commonwealth, 272

Va. 449, 455, 634 S.E.2d 310, 313 (2006); Alger v. Commonwealth,

267 Va. 255, 259, 590 S.E.2d 563, 565 (2004); Tucker v.

Commonwealth, 268 Va. 490, 493, 604 S.E.2d 66, 68 (2004);

Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470

(2003); Commonwealth v. Diaz, 266 Va. 260, 264, 585 S.E.2d 552,

554 (2003). When statutory language is unambiguous, we are

bound by the plain meaning of that language and may not give the

words a construction that amounts to holding the General

Assembly did not mean what it actually stated. Gunn v.

Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327 (2006);

Alger, 267 Va. at 259, 590 S.E.2d at 565; Tucker, 268 Va. at

493, 604 S.E.2d at 68; Williams, 265 Va. at 271, 576 S.E.2d at

470; Caprio v. Commonwealth, 254 Va. 507, 511-12, 493 S.E.2d

371, 374 (1997).

We conclude that the requirement in Code § 37.2-907(A),

that an expert be “skilled in the diagnosis and treatment” of

the specified mental conditions, is plain and unambiguous.

Because this statutory requirement is stated in the conjunctive,

any witness seeking to qualify as an expert under the statute

must demonstrate skill in both the diagnosis and the treatment

14
of the stated mental conditions. By mandating that an expert

demonstrate skill in both these areas, the General Assembly

effectively has made skill in both capacities a threshold

requirement for a witness to render an expert opinion whether a

defendant is a sexually violent predator as defined by the Act.

See Code §§ 37.2-904(B) and –907(A).

In the present case, it is undisputed that Dr. Ryan did not

meet the skill in “treatment” requirement of Code § 37.2-907(A),

but had only demonstrated skill under the “diagnosis” component

of the two-part statutory standard. Thus, we conclude that the

circuit court erred in qualifying Dr. Ryan to testify as an

expert under the mandatory two-part standard of Code § 37.2-

907(A).

The circuit court’s error in admitting Dr. Ryan’s testimony

requires us to disregard her testimony, including the results of

the tests she conducted, in our analysis of the sufficiency of

the evidence. Therefore, we restrict our analysis to the

remaining evidence in the case, which was presented by the

Commonwealth. We turn to consider the circuit court’s holding

that the Commonwealth’s evidence, standing alone, was

insufficient to meet the Commonwealth’s burden of proof.

The Commonwealth challenges the circuit court’s holding,

contending that the testimony of Dr. Boss and Stransky satisfied

the Commonwealth’s proof burden as a matter of law. The

15
Commonwealth also challenges the circuit court’s stated

rationale, particularly the court’s finding that Miller was

unlikely to commit future offenses of this nature because, as a

convicted sex offender, his access to “young boys” should

decrease. The Commonwealth asserts that the evidence does not

support this finding, because Miller’s status as a convicted sex

offender is not a factor that lowers his risk of recidivism.

In response, Miller argues that the circuit court did not

err in determining that the Commonwealth’s evidence, standing

alone, was insufficient to establish by clear and convincing

evidence that Miller is a sexually violent predator. In support

of his argument, Miller relies on the circuit court’s conclusion

that Dr. Boss appeared confused on the subject of Miller’s

previous offenses, and that Stransky incorrectly computed the

score of one of the actuarial tests she administered to Miller.

Miller also observes that the circuit court considered his level

of participation in the SORT program and his opportunity and

likelihood for recidivist behavior.

In reviewing the sufficiency of the evidence on appeal, we

apply an established standard of review. We will approve the

circuit court’s holding unless it is plainly wrong or without

evidentiary support. See Code § 8.01-680.

At trial, the Commonwealth was required to prove by clear

and convincing evidence that Miller is a sexually violent

16
predator. See Code § 37.2-908(C); Ellison v. Commonwealth, 273

Va. 254, 260, 639 S.E.2d 209, 213 (2007); Shivaee v.

Commonwealth, 270 Va. 112, 122, 613 S.E.2d 570, 576, cert.

denied, ___ U.S. ___, 126 S.Ct. 626 (2005); Allen, 269 Va. at

275, 609 S.E.2d at 12; McCloud v. Commonwealth, 269 Va. 242,

256, 609 S.E.2d 16, 23 (2005). Clear and convincing evidence is

the degree of proof that affords the fact finder a firm belief

or conviction concerning the allegations that a party seeks to

establish. This evidentiary standard describes an intermediate

level of proof that exceeds the “preponderance” standard, but

does not reach the level of certainty required in criminal cases

of “beyond a reasonable doubt.” Grubb v. Grubb, 272 Va. 45, 54,

630 S.E.2d 746, 751-52 (2006); Allen, 269 Va. at 275, 609 S.E.2d

at 13.

The term “sexually violent predator” is defined in Code

§ 37.2-900. To satisfy that definition, the Commonwealth was

required to prove that 1) Miller was convicted of a sexually

violent offense; and 2) due to a mental abnormality or

personality disorder, Miller finds it difficult to control his

predatory behavior, making him likely to engage in sexually

violent acts in the future. See Code § 37.2-900; Shivaee, 270

Va. at 123, 613 S.E.2d at 576; McCloud, 269 Va. at 257, 609

S.E.2d at 24.

17
 The evidence was undisputed that Miller’s convictions of

forcible sodomy qualify as sexually violent offenses within the

meaning of the Act. See Code § 37.2-900. The evidence also was

undisputed that Miller is a pedophile.

Dr. Boss’ testimony provided evidence that Miller’s

diagnosis of pedophilia satisfied the Act’s statutory definition

of “mental abnormality.” Her testimony further showed that

although Miller initially reported having sexually abused five

young boys, Miller later estimated he may have sexually abused

young boys as many as 100 times. Paradoxically, however, Miller

refused to acknowledge that he was sexually attracted to

children.

Dr. Boss’ testimony further showed that Miller’s

personality disorder might prevent him from seeking treatment

for his problems, and that his personality disorder traits

showed a “moderate correlation” with the risk of committing

future offenses. Her testimony also established that Miller’s

termination from the SORT treatment program increased his risk

of committing future offenses. Based on all these

considerations, Dr. Boss concluded that Miller met the Act’s

definition of a sexually violent predator.

Although Dr. Boss and Stransky acknowledged that there were

variables that could have affected the results of certain

actuarial risk assessments they administered to Miller, the

18
results reported by Dr. Boss and Stransky on these and other

risk assessments nevertheless indicated that Miller posed a

significant risk of committing future offenses. In particular,

the results of the SVR-20, performed by Dr. Boss, showed that

Miller’s deviant sexual interest in children correlated “very

highly” with a risk of committing future offenses.

We hold that the above evidence, as a matter of law,

provided clear and convincing proof that Miller is a sexually

violent predator as defined by the Act. Our conclusion is not

altered by the circuit court’s finding that “[n]ow that Mr.

Miller is a convicted sex offender his opportunities to care for

young boys should decrease or become non-existent.” That

conclusion appears largely to have been based on Dr. Ryan’s

testimony, which is no longer part of the record that we

consider. To the extent that this finding was not based on Dr.

Ryan’s testimony, the finding was speculative in nature.

Our view of the evidence also is not altered by the circuit

court’s additional finding that “[n]o evidence was offered to

indicate that Mr. Miller will have easy access to more potential

victims after his release or to indicate that he is likely to

begin seeking out victims.” The Commonwealth was not required

to prove that Miller would have “easy” access to future victims,

or that Miller would “seek out” victims who were “strangers.”

Instead, the Commonwealth had the burden of proving that because

19
of a mental abnormality or personality disorder, Miller was

likely to commit sexually violent offenses.

Because the Commonwealth proved, as a matter of law, that

Miller is a sexually violent predator as defined by the Act, the

Commonwealth is entitled have final judgment entered to that

effect. The case must be remanded to the circuit court,

however, for further determination under the Act whether Miller

should be fully committed or placed on conditional release. See

Code § 37.2-908(D).

For these reasons, we will reverse the circuit court’s

judgment, enter judgment for the Commonwealth that Miller is a

sexually violent predator as defined by the Act, and remand the

case to the circuit court for further proceedings as directed in

Code § 37.2-908.

Reversed, judgment in part, and remanded.

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