Shivaee v. Com.

Present: All the Justices

RAHMATOLLAH SHIVAEE

v. Record No. 041954

COMMONWEALTH OF VIRGINIA∗

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge

OPINION BY JUSTICE DONALD W. LEMONS
JUNE 9, 2005

ORLANDO LAWARREN BUTLER

v. Record No. 041945

COMMONWEALTH OF VIRGINIA**

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Norman Olitsky, Judge

In these two appeals we consider the constitutionality of

Virginia's Sexually Violent Predators Act ("SVPA"), Code

§§ 37.1-70.1 through -70.19, and whether the evidence

introduced by the Commonwealth was sufficient, by a clear and

convincing standard, to support a finding that Rahmatollah

Shivaee ("Shivaee") is a sexually violent predator. For the

∗
In the trial court this case was styled "Jerry W.
Kilgore, Attorney General of Virginia, ex rel. Commonwealth of
Virginia v. Rahmatollah Shivaee." We have amended the style of
the case to reflect that the Commonwealth is the direct party
in interest, not a relator.
**
In the trial court this case was styled "Jerry W.
Kilgore, Attorney General of Virginia, ex rel. Commonwealth of
Virginia v. Orlando Lawarren Butler." We have amended the
style of the case to reflect that the Commonwealth is the
direct party in interest, not a relator.
reasons discussed below, we will affirm the judgment of the

trial court in both cases.

I. Facts and Proceedings Below

A. Shivaee v. Commonwealth

In 1996, Shivaee was convicted of four counts of

aggravated sexual battery, in violation of Code § 18.2-67.3,

and one count of indecent liberties, in violation of Code

§ 18.2-370.1. His victims were three girls, each less than 13

years old. He was sentenced to serve seven years of

incarceration on each of the four aggravated sexual battery

charges, with five years on each charge suspended, and two

years on the indecent liberties charge, with one year

suspended. In 1997, Shivaee was convicted of one count of

forcible sodomy, in violation of Code § 18.2-67.1, based on an

incident that occurred prior to his 1996 conviction. His

victim was a boy less than 13 years old. He was sentenced to

ten years of incarceration, with eight years suspended.

Pursuant to the SVPA, the Attorney General ("Commonwealth")

filed a petition seeking Shivaee's civil commitment in lieu of

his release on September 17, 2003.

Pursuant to Code § 37.1-70.7, the trial court found

probable cause existed that Shivaee is a sexually violent

predator as defined in the SVPA and set the matter for trial.

Prior to trial, Shivaee filed a motion to dismiss the petition

2
for civil commitment on the grounds that the SVPA violates

both the Fourteenth Amendment to the Constitution of the

United States and Article I, section 11 of the Constitution of

Virginia. The trial court denied his motion. Pursuant to

Code § 37.1-70.9(B), Shivaee was tried without a jury.

At trial, Sherry Lawrence testified that Shivaee was the

father of her sister's child, who was conceived when Shivaee

was 57 years old and Lawrence's sister was 14 years old.

Robert H. Steele, III, Shivaee's social worker in the Sex

Offender Residential Treatment ("SORT") Program while Shivaee

was incarcerated, testified that Shivaee did not complete the

SORT Program, only "admitted to some inappropriate touching,"

and remained in denial as to most of his illegal interactions

with children.

Evan S. Nelson, Ph.D. ("Dr. Nelson"), testified as an

expert witness on behalf of the Commonwealth. Dr. Nelson

stated that Shivaee has a pattern of deviant interest in

children, based on four female victims – including the teenage

girl he statutorily raped and impregnated – and one male

victim, and diagnosed Shivaee with the mental abnormality of

pedophilia. Dr. Nelson testified that the mental abnormality

of pedophilia creates a risk to re-offend, and opined that

inpatient treatment was more suitable for Shivaee than

outpatient treatment, especially in light of Shivaee's lack of

3
progress in the SORT program. Dr. Nelson testified that

inpatient treatment was "the right venue to help Mr. Shivaee

as well as to protect the public."

Shivaee called one witness on his behalf, John A. Hunter,

Jr., Ph.D. ("Dr. Hunter"). Dr. Hunter agreed that Shivaee

suffered from pedophilia and that there is a risk of

recidivism with all pedophiles. However, Dr. Hunter testified

that Shivaee would be able to control his behavior with

outpatient treatment.

Upon consideration of the evidence, the trial court found

by clear and convincing evidence that Shivaee was a sexually

violent predator and ordered his civil commitment. Shivaee

filed a timely petition for appeal, which we granted. He

assigns three errors to the judgment of the trial court: (1)

that the SVPA violates both the Fourteenth Amendment to the

Constitution of the United States and Article I, Sections 8,

9, and 11 of the Constitution of Virginia; (2) that the trial

court erred in ordering his civil commitment absent proof that

he "had serious difficulty controlling his behavior"; and (3)

that the evidence failed to satisfy the "clear and convincing"

evidentiary standard.

B. Butler v. Commonwealth

Orlando Lawarren Butler ("Butler") was convicted of

aggravated sexual battery on April 12, 2001 and was sentenced

4
by the Circuit Court of the City of Chesapeake to serve ten

years of incarceration with seven years suspended. Pursuant

to the SVPA, the Attorney General filed a petition seeking

Butler's civil commitment in lieu of his release on August 22,

2003.

Pursuant to Code § 37.1-70.7, the trial court found

probable cause existed that Butler is a sexually violent

predator under the SVPA and set the matter for trial before a

jury. Prior to trial, Butler filed a motion to dismiss the

case on the grounds that the SVPA violates both the Fourteenth

Amendment to the Constitution of the United States and Article

I, Section 11 of the Constitution of Virginia. The trial

court denied Butler's motion to dismiss and Butler properly

noted his objection.

On March 11, 2004, a jury unanimously found by clear and

convincing evidence that Butler was a sexually violent

predator. On April 6, the trial court held a hearing to

determine whether Butler should be civilly committed or

conditionally released, and, on May 21, entered its final

order that Butler be civilly committed.

Butler filed a timely petition for appeal, which we

granted. Butler's only assignment of error is that the SVPA

is unconstitutional. Butler advances four arguments in

support of this contention: (1) the SVPA "fails to require an

5
independent finding of a serious difficulty in controlling

behavior and thus violates substantive due process"; (2) the

SVPA "fails to meet the threshold standard required for the

minimum degree of difficulty required by substantive due

process with respect to lack of control as [a] symptom of the

mental abnormality or personality disorder for which the

subject individual is diagnosed"; (3) the SVPA "is not

definite and precise in its meaning and can be interpreted and

applied in different ways and therefore it is void for

vagueness"; and (4) the SVPA "fails to comport with the

notions of due process as it does not meet the requirements of

[Kansas v. Crane, 534 U.S. 407 (2002)], it is not a civil

confinement statute and therefore is void as unconstitutional

under the doctrines of ex post facto and double jeopardy."

II. Analysis

A. Standard of Review

On appeal, the constitutional arguments are questions of

law that we review de novo. Wilby v. Gostel, 265 Va. 437,

440, 578 S.E.2d 796, 798 (2003); Eure v. Norfolk Shipbuilding

& Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002).

Because the due process protections afforded under the

Constitution of Virginia are co-extensive with those of the

federal constitution, the same analysis will apply to both.

Morrisette v. Commonwealth, 264 Va. 386, 394, 569 S.E.2d 47,

6
53 (2002); Willis v. Mullett, 263 Va. 653, 657, 561 S.E.2d

705, 708 (2002). We review Shivaee's evidentiary challenge to

determine if the judgment of the trial court was plainly wrong

or without evidence to support it. Code § 8.01-680.

B. Constitutionality of the SVPA

In Addington v. Texas, 441 U.S. 418, 426 (1979), the

Supreme Court held: "The state has a legitimate interest under

its parens patriae powers in providing care to its citizens

who are unable because of emotional disorders to care for

themselves; the state also has authority under its police

power to protect the community from the dangerous tendencies

of some who are mentally ill." The Supreme Court has reviewed

civil commitment statutes very similar to the SVPA on three

occasions. See Kansas v. Crane, 534 U.S. 407 (2002); Seling

v. Young, 531 U.S. 250 (2001); Kansas v. Hendricks, 521 U.S.

346 (1997). In each of these three cases, the Supreme Court

upheld the constitutionality of the statutes in question.

In Hendricks, the Supreme Court held that the definition

of "mental abnormality" in the Kansas Sexually Violent

Predator Act satisfied substantive due process requirements.

521 U.S. at 356. The Court recognized that freedom from

restraint is not absolute, and that a State may "in certain

narrow circumstances provide[] for the forcible civil

detainment of people who are unable to control their behavior

7
and who thereby pose a danger to the public health and

safety," so long as the confinement "takes place pursuant to

proper procedures and evidentiary safeguards." Id. at 357.

The Court considered the level of dangerousness necessary to

justify indefinite involuntary civil commitment, compared the

Kansas Act to other civil commitment statutes previously

reviewed by the Court, and concluded:

The Kansas Act is plainly of a kind with these
other civil commitment statutes: It requires a
finding of future dangerousness, and then links
that finding to the existence of a "mental
abnormality" or "personality disorder" that
makes it difficult, if not impossible, for the
person to control his dangerous behavior.

Id. at 358.

The Supreme Court also reviewed Hendricks's claim that

the Kansas Act violated the Constitution's double jeopardy

prohibition and its ban on ex post facto laws. Because the

Kansas Act was a civil statute and was "nonpunitive," the

Court held that the Kansas Act did not violate double jeopardy

prohibitions and was not an ex post facto enactment. Id. at

360-71.

In Seling, Andre Brigham Young ("Young") was civilly

committed pursuant to the Washington Community Protection Act

of 1990, Wash. Rev. Code § 71.09.010 et seq. (1992). Seling,

531 U.S. at 253. After unsuccessful challenges to his civil

commitment in state court, Young brought a habeas action under

8
28 U.S.C. § 2254 contending that the Washington Act was

unconstitutional and that his confinement was illegal. 531

U.S. at 258. The district court granted the writ, "concluding

that the Act violated substantive due process, that the Act

was criminal rather than civil, and that it violated the

double jeopardy and ex post facto guarantees of the

Constitution." Id. While the case was on appeal, the Supreme

Court decided Hendricks and the United States Court of Appeals

for the Ninth Circuit remanded the case for reconsideration in

light of Hendricks. 531 U.S. at 258.

On remand, the district court denied Young's petition.

The Court of Appeals affirmed in part, reversed in part, and

remanded in part. Id. at 258-59. In reversing the district

court, the Court of Appeals held that the Washington Act was

punitive "as applied" and therefore violated the double

jeopardy and ex post facto guarantees. Id. at 258-60. The

Supreme Court then reversed the Court of Appeals, and held

that an act, "found to be civil, cannot be deemed punitive 'as

applied' to a single individual in violation of the Double

Jeopardy and Ex Post Facto Clauses and provide cause for

release." Id. at 267.

In Crane, Michael Crane was determined to be a sexually

violent predator and was civilly committed by a Kansas state

court. 534 U.S. at 411. The Supreme Court of Kansas reversed

9
and held that Hendricks required a state to demonstrate a

person has a complete lack of control in order to be civilly

committed. Id. The Supreme Court reversed the Supreme Court

of Kansas and clarified its language from Hendricks regarding

the proof of lack of control required to determine that a

person is a sexually violent predator. The Court began by re-

affirming the constitutionality of civil commitment statutes

where: (1) "the confinement takes place pursuant to proper

procedures and evidentiary standards;" (2) there is a finding

of "dangerousness either to one's self or to others;" and (3)

proof of dangerousness is "coupled . . . with the proof of

some additional factor, such as a 'mental illness' or 'mental

abnormality.'" Crane, 534 U.S. at 409-10 (citing Hendricks,

521 U.S. at 357-58). Further, the Court emphasized the

requirement stated in Hendricks that "links" a finding of

dangerousness "to the existence of a 'mental abnormality' or

'personality disorder' that makes it difficult, if not

impossible, for the person to control his dangerous behavior."

Crane, 534 U.S. at 410 (quoting Hendricks, 521 U.S. at 358).

In clarifying the lack of control element required, the

Court stated:

[W]e recognize that in cases where lack of
control is at issue, "inability to control
behavior" will not be demonstrable with
mathematical precision. It is enough to say
that there must be proof of serious difficulty

10
 in controlling behavior. And this, when viewed
in light of such features of the case as the
nature of the psychiatric diagnosis, and the
severity of the mental abnormality itself, must
be sufficient to distinguish the dangerous
sexual offender whose serious mental illness,
abnormality, or disorder subjects him to civil
commitment from the dangerous but typical
recidivist convicted in an ordinary criminal
case.

Crane, 534 U.S. at 413. First, Crane restated the

requirements from Hendricks that civil commitment must be

attended by procedural safeguards, there must be a finding of

dangerousness to one's self or others, and there must be a

link from the finding of dangerousness to a mental abnormality

or illness that makes it difficult for the person to control

his dangerous behavior. Second, Crane clarified the

evidentiary burden that must be satisfied in order to show the

requisite nexus between a person's condition and his lack of

control and consequent dangerousness. Crane, 534 U.S. at 413.

We recently reviewed in detail the procedural aspects and

evidentiary requirements of the SVPA, see Townes v.

Commonwealth, 269 Va. 234, 609 S.E.2d 1 (2005); McCloud v.

Commonwealth, 269 Va. 242, 609 S.E.2d 16 (2005); and

Commonwealth v. Allen, 269 Va. 262, 609 S.E.2d 4 (2005), and

will not do so again for purposes of this opinion. A brief

summary in light of the requirements of Crane will suffice.

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 Pursuant to Code § 37.1-70.9, "[t]he [trial] court or

jury shall determine whether, by clear and convincing

evidence, the person who is the subject of the petition is a

sexually violent predator." A "sexually violent predator" is

[A]ny person who (i) has been convicted of a
sexually violent offense or has been charged
with a sexually violent offense and is
unrestorably incompetent to stand trial
pursuant to § 19.2-169.3 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.

Code § 37.1-70.1. A "mental abnormality" or "personality

disorder" is defined 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." Id.

The SVPA survives constitutional scrutiny because it

satisfies the criteria most recently stated by the Supreme

Court in Crane. First, there are proper procedures and

evidentiary safeguards. See, e.g., Code §§ 37.1-70.2, -70.5,

-70.6, -70.7, -70.8, and -70.9; see also McCloud, 269 Va. at

252-56, 609 S.E.2d at 21-23 (reviewing the procedures which

must be followed by the Commonwealth in order to have a person

who has been convicted of a sexually violent offense declared

to be a sexually violent predator and to have that person

12
involuntarily committed to a secure mental health facility

upon his release from prison).

Second, the SVPA satisfies the requirement that there be

a finding of dangerousness either to one's self or to others.

Under the SVPA, a finding that a person is a sexually violent

predator includes the finding that the person has a mental

abnormality or personality disorder, which is further defined

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 § 37.1-

70.1 (emphasis added).

Finally, proof of dangerousness and lack of control is

linked to the condition of the person. For a person to be

found to be a "sexually violent predator," the Commonwealth

must show that "because of a mental abnormality or personality

disorder, [the person] finds it difficult to control his

predatory behavior which makes him likely to engage in

sexually violent acts." Code § 37.1-70.1.

Both Shivaee and Butler contend the SVPA is

constitutionally infirm because the statute only requires

proof that a person "finds it difficult" to control his

behavior and fails to require "serious difficulty," a term

used in Crane. They are correct that the Supreme Court used

13
the phrase "serious difficulty in controlling behavior." See

Crane, 534 U.S. at 413. But the Supreme Court also used the

phrases "special and serious lack of ability to control

behavior," id., and "particularly difficult to control their

behavior." Id. at 414. The use of various phrases

underscores the Supreme Court's clear direction that "the

States retain considerable leeway in defining the mental

abnormalities and personality disorders that make an

individual eligible for commitment." Crane, 534 U.S. at 413

(citing Hendricks, 521 U.S. at 359). The Court expressly

stated, "we recognize that in cases where lack of control is

at issue, 'inability to control behavior' will not be

demonstrable with mathematical precision." Crane, 534 U.S. at

413. The object of the definitions and proof requirements is

"to distinguish the dangerous sexual offender whose serious

mental illness, abnormality, or disorder subjects him to civil

commitment from the dangerous but typical recidivist convicted

in an ordinary criminal case." Id. We are convinced that the

SVPA in its definitions and proof requirements accomplishes

this objective.

In addition to the arguments discussed above, Butler

advances the argument that the SVPA is "void for vagueness."

He maintains that the language is indefinite and that people

of "ordinary intelligence" must guess at its meaning. His

14
argument is predicated upon a strained attempt to find

multiple meanings in the portion of the definition of a

sexually violent predator that recites "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." Apparently Butler finds

multiple interpretations of this language, primarily because

he focuses only on the text of that portion of the definition

and fails to consider the language in context of other

definitions.

The definition of sexually violent predator in Code

§ 37.1-70.1 makes specific reference to "mental abnormality"

or "personality disorder," a term also defined in that

section. When the language is considered in context, its

meaning is quite clear. A "mental abnormality" or

"personality disorder" is defined 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." Such a definition includes a causal

link between the condition and the potential consequences of

the condition, namely, lack of control and dangerousness.

Importantly, the definition is personalized because it focuses

upon "the person" whose commitment is at issue. Because a

15
finding that the person is a sexually violent predator

includes the predicate finding of a "mental abnormality" or

"personality disorder," a fortiori, the determination

requires, first, the finding of a condition affecting

emotional or volitional capacity and, second, the finding that

the particular person subject to commitment is rendered by

that condition "so likely to commit sexually violent offenses"

that he is dangerous. While the additional language in the

definition of sexually violent predator ("finds it difficult

to control his predatory behavior which makes him likely to

engage in sexually violent acts") may be redundant, its

meaning in context of other definitions in the SVPA is not

unclear.

Significantly, even under the multiple and strained

interpretations Butler tries to give the statute, he does not

argue that his conduct fails to be reached. As such, Butler

argues hypothetically. In Commonwealth v. Hicks, 267 Va. 573,

596 S.E.2d 74 (2004), we observed:

A plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct
of others. A court should therefore examine
the complainant’s conduct before analyzing
other hypothetical applications of the law.

Id. at 580-81, 596 S.E.2d at 78 (quoting Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982)).

16
 C. Double Jeopardy and Ex Post Facto

For many of the same reasons enumerated by the Supreme

Court in Hendricks, we hold that the SVPA does not violate the

double jeopardy prohibition or the ban on ex post facto laws.

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." Hendricks, 521 U.S. at 361.

The SVPA, like the statutory scheme examined in

Hendricks, "does not implicate either of the two primary

objectives of criminal punishment: retribution or

deterrence." 521 U.S. at 361-62. Pursuant to Code § 37.1-

70.10(A), if a person is found to be a sexually violent

predator, he is civilly committed "for control, care and

treatment until such time as the person's mental abnormality

or personality disorder has so changed that the person will

not present an undue risk to public safety." The General

Assembly, through the SVPA, "may take measures to restrict the

freedom of the dangerously mentally ill." Hendricks, 521 U.S.

at 363. That the General Assembly chose to afford the

procedural protections provided in the SVPA, see, e.g., Code

§§ 37.1-70.2, -70.5, -70.6, -70.7, -70.8, -70.9, "does not

transform a civil commitment proceeding into a criminal

17
prosecution." Hendricks, 521 U.S. at 364-65. Thus, the SVPA

is a non-punitive, civil commitment statute and as such does

not violate the guarantees against double jeopardy or ex post

facto lawmaking.

D. Clear and Convincing Evidentiary Standard

The Supreme Court of the United States clearly stated

that the "clear and convincing" evidentiary standard is the

minimum standard that may be used in a civil commitment

proceeding. Addington, 441 U.S. at 432-33. An "individual's

interest in the outcome of a civil commitment proceeding is of

such weight and gravity that due process requires the state to

justify confinement by proof more substantial than a mere

preponderance of the evidence." Id. at 427. The "beyond a

reasonable doubt" standard "is inappropriate in civil

commitment proceedings because, given the uncertainties of

psychiatric diagnosis, it may impose a burden the state cannot

meet and thereby erect an unreasonable barrier to needed

medical treatment." Id. at 432. Thus, the "clear and

convincing" standard "strikes a fair balance between the

rights of the individual and the legitimate concerns of the

state." Id. at 431.

Whether to adopt a standard greater than clear and

convincing "is a matter of state law," id. at 433, for "[t]he

essence of federalism is that states must be free to develop a

18
variety of solutions to problems and not be forced into a

common, uniform mold." Id. at 431. We recognize that some

other jurisdictions have adopted the "beyond a reasonable

doubt" standard for their sexually violent civil commitment

statutes. See, e.g., Ariz. Rev. Stat. 36-3707(A) (2004); Cal.

Welf. & Inst. Code § 6604 (2005); 725 Ill. Comp. Stat.

205/3.01 (2005). However, for the Commonwealth of Virginia,

the General Assembly adopted the clear and convincing

evidentiary standard. Code § 37.1-70.9(C). It is settled

that this standard meets the demands of due process and that

the decision to adopt this standard has been left to the

states. See Addington, 441 U.S. at 432-33. We hold that the

use of the clear and convincing evidentiary standard for

purposes of the SVPA satisfies constitutional requirements of

due process.

E. Sufficiency of Evidence in Shivaee Case

Shivaee was found to be a sexually violent predator at

the conclusion of a bench trial. In accordance with

established principles of appellate review, we view the facts

in the light most favorable to the Commonwealth, the

prevailing party below. We also accord the Commonwealth the

benefit of all inferences fairly deducible from the evidence.

Stanley v. Webber, 260 Va. 90, 95, 531 S.E.2d 311, 314 (2000);

19
Evaluation Research Corp. v. Alequin, 247 Va. 143, 147, 439

S.E.2d 387, 390 (1994).

On appeal, Shivaee concedes that he has been convicted of

and is incarcerated for a sexually violent offense. Shivaee

argues there was not sufficient evidence that he suffered from

a mental abnormality as defined by the SVPA and that there was

no evidence he was likely to engage in sexually violent acts.

A review of the evidence adduced at trial refutes his

contentions.

Shivaee was convicted of four sexually violent offenses

against four separate victims, three girls and one boy, in

less than a five-year period. Shivaee also statutorily raped

and impregnated another girl and attempted to hide this

information from the SORT Program, Dr. Nelson, and Dr. Hunter.

Shivaee continued to deny or minimize his offenses despite

treatment in the SORT Program, and he never completed the SORT

Program. Shivaee offended against both sexes, was not related

to any of his victims, and planned the enticement and

seduction of each of his victims.

In light of this evidence, both experts agreed that

Shivaee is a pedophile and is a risk to re-offend. Dr. Nelson

stated, "The diagnosis of which I can express professional

certainty is that he meets criteria for pedophilia." He

stated that Shivaee's behavior "is indicative of a more

20
predatory pattern of sex offender," and that Shivaee "has a

likelihood of having another sex offense, specifically a

sexually violent offense as defined here." In summarizing his

testimony regarding Shivaee's diagnosis of pedophilia and

related predatory behavior, the following exchange occurred

between the attorney for the Commonwealth and Dr. Nelson:

Q. And, again, to a reasonable degree of
psychological certainty do you hold
an opinion as to whether [Shivaee]
has difficulty controlling that
[predatory] behavior?

A. Yes.

Q. And what is your opinion?

A. He absolutely has difficulty in my
opinion.

Dr. Hunter also diagnosed Shivaee as a pedophile, but opined

that Shivaee "is not likely to commit a new sexual offense."

The experts disagreed as to the course of treatment. Dr.

Nelson said Shivaee "is not going to make, in my opinion,

adequate progress on an outpatient basis. Look how little

progress he has made in two years of being in an inpatient

program thus far." Because of his diagnosis as a pedophile,

and his lack of progress in the SORT Program, Dr. Nelson

recommended inpatient treatment based on his belief that

Shivaee is a threat to the public. Dr. Hunter stated that

Shivaee "is amenable to community-based [outpatient]

21
treatment." He based this conclusion on his belief that

Shivaee could control his behavior.

In light of this evidence, we cannot say that the

judgment of the trial court was plainly wrong or without

evidence to support it. Shivaee did not dispute that he was

incarcerated upon a conviction for a sexually violent offense.

Shivaee was clearly diagnosed with the mental abnormality of

pedophilia by both experts and there was clear and convincing

evidence that because of this mental abnormality Shivaee

"finds it difficult to control his predatory behavior, which

makes it likely that he will engage in sexually violent acts."

III. Conclusion

We hold that the SVPA comports with all constitutional

requirements of due process and is not unconstitutional. The

judgment of the trial court concerning the sufficiency of the

evidence with respect to Shivaee was not plainly wrong or

without evidence to support it. The judgment of the trial

court will be affirmed in both Shivaee v. Commonwealth and

Butler v. Commonwealth.

Record No. 041954 – Affirmed.
Record No. 041945 – Affirmed.

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