Present: All the Justices
DEREK LAMONT MCCLOUD
OPINION BY
v. Record No. 041200 JUSTICE LAWRENCE L. KOONTZ, JR.
March 3, 2005
COMMONWEALTH OF VIRGINIA ∗
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Rossie D. Alston, Jr., Judge
Pursuant to Code § 37.1-70.6(A), the Commonwealth
petitioned the Circuit Court of Prince William County (trial
court) to civilly commit Derek Lamont McCloud, a prison inmate,
as a sexually violent predator. Subsequently, a jury rendered a
unanimous verdict determining McCloud to be a sexually violent
predator as defined in Code § 37.1-70.1. Following a
determination of McCloud’s treatment needs and that alternatives
to involuntary confinement and treatment were unsuitable, the
trial court ordered that McCloud be committed to the custody of
the Department of Mental Health, Mental Retardation and
Substance Abuse Services for appropriate treatment and
confinement pursuant to Code § 37.1-70.9(C).
∗
In the trial court this case was styled “Jerry W. Kilgore,
Attorney General of Virginia, ex rel. Commonwealth of Virginia
v. Derek Lamont McCloud.” We have amended the style of the case
to reflect that the Commonwealth is the direct party in
interest, not a relator. See Townes v. Commonwealth, 269 Va.
___, ___ n.*, ___ S.E.2d ___, ___ n.* (2005) (today decided).
McCloud has appealed that judgment, asserting that the
trial court erred in permitting the jury to consider evidence of
his convictions for crimes other than sexually violent offenses
defined in Code § 37.1-70.1, that the trial court erred in
finding that there was no suitable less restrictive alternative
to involuntary institutional confinement, and that the trial
court erred in considering McCloud’s failure to present an
alternative treatment plan to justify his involuntary
commitment. McCloud seeks a new trial as a result of these
asserted errors. The Commonwealth, by assignments of cross-
error, asserts that the trial court erred in refusing to admit
evidence of all McCloud’s institutional infractions and in
qualifying and permitting McCloud’s expert witness to testify.
BACKGROUND
Between late 1988 and early 1989, McCloud was convicted in
the trial court of two counts of rape, one count of abduction,
and one count of indecent liberties. For these felony offenses,
McCloud received sentences totaling eighty-seven years’
imprisonment with fifty-five years suspended. Because certain
of McCloud’s sentences were ordered to run concurrently, his
total active time to serve following these convictions was
seventeen years and six months.
On March 13, 2003, as required by Code § 37.1-70.4(C), the
Director of the Virginia Department of Corrections notified the
2
Commitment Review Committee (CRC) that McCloud was scheduled to
be released from prison on November 16, 2003, and had been
identified through testing as being likely to commit sexually
violent offenses in the future. Dr. Daniel Sheneman, a forensic
clinical psychiatrist and sexual offender treatment provider,
conducted an examination of McCloud as required by Code § 37.1-
70.5(B). The CRC completed its assessment of McCloud for
possible commitment and, on June 12, 2003, forwarded to the
Attorney General a recommendation that McCloud be committed as a
sexually violent predator.
The Attorney General, on behalf of the Commonwealth, filed
a petition in the trial court for the civil commitment of
McCloud as a sexually violent predator on September 9, 2003.
Following the appointment of counsel, pursuant to Code § 37.1-
70.2, McCloud filed a motion requesting that Dr. Jerome J.
Miller be appointed as a mental health expert, pursuant to Code
§ 37.1-70.8, to assist McCloud on the matters relating to his
mental health. Dr. Miller is a licensed clinical social worker
who holds a doctorate in social work “with a psychiatric
emphasis.”
On November 7, 2003, the trial court conducted a hearing as
required by Code § 37.1-70.7 and determined that there was
probable cause to believe that McCloud is a sexually violent
predator. During that hearing, the trial court also heard
3
argument on McCloud’s motion for appointment of Dr. Miller as
McCloud’s mental health expert. The Commonwealth opposed this
motion because Dr. Miller is not a licensed psychiatrist or a
licensed clinical psychologist. The Commonwealth contended
that, because Code § 37.1-70.5(B) requires a licensed
psychiatrist or psychologist to conduct the CRC’s evaluation of
McCloud, any expert appointed to assist McCloud was subject to
the same requirement. The trial court granted McCloud’s motion
for appointment of Dr. Miller, noting that the Commonwealth
could challenge Dr. Miller’s qualifications at trial. Pursuant
to Code § 37.1-70.9(B), McCloud requested a trial by jury on the
Commonwealth’s petition for his civil commitment.
Prior to trial, McCloud filed a motion in limine seeking to
prohibit the Commonwealth from introducing evidence of his
criminal convictions for abduction and indecent liberties.
McCloud contended that the Commonwealth should be limited to
proving only convictions of predicate violent sexual offenses as
defined by Code § 37.1-70.1. McCloud also sought to prohibit
the Commonwealth from introducing evidence of institutional
infractions committed while he was incarcerated.
On February 2, 2004, the trial court commenced a jury trial
on the Commonwealth’s petition. 1 Prior to seating the jury, the
1
As discussed infra, pursuant to Code § 37.1-70.9(C), the
jury’s role was to determine whether McCloud met the definition
4
trial court heard argument on McCloud’s motion in limine. The
trial court ruled that the Commonwealth would be allowed to
present evidence of the convictions for abduction and indecent
liberties as well as evidence of those institutional infractions
involving prohibited “sexual advances.” The trial court
prohibited the presentation of evidence of an infraction
involving only an attempted sexual act or any nonsexual act.
The trial court reasoned that the convictions for abduction and
indecent liberties and the infractions involving prohibited
sexual behavior were relevant because they tended to show
McCloud’s predatory nature.
In the status determination phase of the trial, the
Commonwealth introduced certified copies of the orders
reflecting McCloud’s convictions and the sentences imposed for
the rapes, abduction, and indecent liberties offenses. Dr.
Sheneman testified, based upon a review of records maintained by
the Department of Corrections regarding McCloud’s personal and
criminal background, a clinical interview with McCloud, and
various diagnostic tests, that McCloud suffers from “antisocial
of a sexually violent predator under Code § 37.1-70.1. The
nature of treatment McCloud would receive if the jury so found
would be determined by the trial court. The parties accordingly
agreed to bifurcate the presentation of the evidence. We will
refer to the jury stage of the trial as the “status
determination phase” and the subsequent proceedings before the
trial court alone as the “treatment determination phase.”
5
personality disorder.” Dr. Sheneman also testified concerning
McCloud’s institutional infractions that involved prohibited
sexual behavior. In addition, Cindy Collins, a criminal records
manager with the Department of Corrections, testified, in accord
with the trial court’s prior ruling, that McCloud had incurred
three disciplinary actions for prohibited sexual behavior while
incarcerated, two for making “sexual advances towards others”
and one for “indecent exposure.” 2 McCloud did not introduce any
evidence at this stage of the trial.
After hearing argument of counsel and being instructed by
the trial court, the jurors were provided with an interrogatory
verdict form directing them to determine whether McCloud was a
sexually violent predator. During deliberations, the jury sent
out four questions to the trial court, including one question
concerning the “time frames/dates of the sexual institutional
infractions committed by Mr. McCloud.” The trial court answered
this question by advising the jurors that they should rely on
their collective memories as to what facts were presented
2
Because the issues raised in this appeal relevant to this
phase of the trial are limited to the effect of the trial
court’s ruling on McCloud’s motion in limine and the limitation
placed upon the Commonwealth’s presentation of all of McCloud’s
institutional infractions, we need not relate in detail the
entire testimony of Dr. Sheneman that supports the jury’s
determination that McCloud is a sexually violent predator.
McCloud does not directly challenge the jury’s determination
and, accordingly, we do not address that issue in this appeal.
6
concerning the infractions. The jury returned its verdict
finding that McCloud meets the definition of a sexually violent
predator.
During the treatment determination phase, the Commonwealth
recalled Dr. Sheneman who then testified that in his opinion
“in-patient treatment would be more appropriate for” McCloud.
Dr. Sheneman testified that he was “not familiar with what [form
of out-patient treatment] is available” in Prince William
County, but opined that regardless of the form of out-patient
treatment, McCloud would be at “risk for non-compliance and
inability to follow the program [and] that would not be an issue
if he were an in-patient.” Although no plan for treating
McCloud by medication had yet been developed, Dr. Sheneman
opined that “if that route were to be taken, [it should be] done
on an in-patient basis so that they could accurately see what
treatments were effective more consistently through
observation.” Dr. Sheneman further testified that he believed
“McCloud presents a risk to public safety if he were to be
released” immediately, but that if held for in-patient
treatment, he might be ready for release to an out-patient
program “[p]robably [within] a few months” if he “participated
to the utmost” in the in-patient treatment.
On cross-examination, Dr. Sheneman conceded it was possible
that with “enough structure in Mr. McCloud’s life . . . out-
7
patient treatment [could be] successful.” However, he
reiterated that McCloud “would not be able to participate in as
much treatment as he would have available to him on an in-
patient basis.”
Dr. Miller was called to testify for McCloud. Dr. Miller
testified that after obtaining his doctorate in social work he
worked in various professional, governmental, and academic
settings. In 1979, Dr. Miller founded the National Center on
Institutions and Alternatives, which is devoted to developing
alternatives to in-patient treatment for institutionalized
persons. In 1984, Dr. Miller founded the Augustus Institute,
which provides clinical services for sex offenders. Dr. Miller
testified that he serves on the board of the Institute for the
Study, Prevention, and Treatment of Sexual Trauma at Johns
Hopkins University. Dr. Miller is a licensed clinical social
worker and is certified by Virginia as a sex offender treatment
provider.
The Commonwealth renewed its objection to having Dr. Miller
testify on the ground that he was not a licensed psychiatrist or
licensed clinical psychologist. The trial court agreed that Dr.
Miller could not testify concerning “any evaluations as to
different psychosis . . . but I think he can testify with
regards to socialization issues.” Accordingly, the trial court
8
overruled the Commonwealth’s objection and permitted Dr. Miller
to testify.
Dr. Miller testified that he had interviewed McCloud and
reviewed his mental health records. Dr. Miller opined that
McCloud’s violent tendencies were the result of his use of PCP
and other psychedelic drugs. Dr. Miller further opined that
McCloud’s antisocial tendencies would decrease with age. Dr.
Miller also testified that he believed that “sex offenders . . .
do not recidivate at the rates commonly understood.”
Dr. Miller maintained that McCloud “would do well in [out-
patient] therapy” and “would be very treatable with a good
community program.” Dr. Miller further maintained that he would
be willing to provide services for McCloud through the Augustus
Institute or to refer him for treatment elsewhere.
McCloud’s father, Fred W. McCloud, Jr., testified that he
and his wife would be willing to provide McCloud with a place to
live and transportation if he were permitted to receive
treatment as an out-patient. McCloud’s father stated that he
was financially able to provide for such treatment for his son.
He further testified that if McCloud failed in his treatment
obligations, “[my] wife and I would get all over him about it
and then if we saw that he continued to do something wrong it
would be reported” to McCloud’s probation officer or the trial
court.
9
At the conclusion of the treatment determination phase, the
trial court found that the Commonwealth had “investigated less
restrictive alternatives to involuntary institutional
confinement and treatment [and] that in the context of this
case, these less[] restrictive alternatives to involuntary
institutionalization are unsuitable at this time.” Accordingly,
the trial court ruled that “the government met its burden of
proof” and ordered that McCloud be placed in the custody of the
Department of Mental Health, Mental Retardation and Substance
Abuse Services for in-patient treatment as required by Code
§ 37.1-70.10. On February 21, 2004, the trial court entered an
order committing McCloud as a sexually violent predator. This
appeal followed.
DISCUSSION
This case, along with Townes v. Commonwealth, 269 Va. ___,
___ S.E.2d ___ (2005) (today decided) and Commonwealth v. Allen,
269 Va. ___, ___ S.E.2d ___ (2005) (today decided), presents the
first opportunity for this Court to review the procedures
required to be followed in order for the Commonwealth 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 involuntarily committed to a secure mental health
facility upon his release from prison. The statutory scheme
embodying those procedures is set out in Chapter 2, Article 1.1
10
of Title 37.1, commonly referred to as the Sexually Violent
Predators Act (SVPA). Code § 37.1-70.1 through Code § 37.1-
70.19. Of the three SVPA cases we decide today, we have
selected this case to review in more detail the procedures of
the SVPA as well as the standards to be applied in the trial
court in considering whether to commit a person determined to be
a sexually violent predator.
Code § 37.1-70.1 defines a “sexually violent predator” as
“any 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.” 3 The
statute further defines a “sexually violent offense” as “a
felony conviction under . . . §§ 18.2-61 [rape], 18.2-67.1
[forcible sodomy], or § 18.2-67.2 [object sexual penetration] or
subdivision A 1 of § 18.2-67.3 [aggravated sexual battery]” or a
conviction under the law of the Commonwealth for certain types
of forcible sexual offenses committed prior to July 1, 1981. A
“mental abnormality” or “personality disorder” is defined for
3
This case and those referenced above involve convicted
persons (prisoners) rather than persons incompetent to stand
trial (defendants). See Code § 37.1-70.2. For clarity, we will
use the designation of “prisoner” hereafter in this opinion.
11
purposes of the SVPA 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.”
The SVPA involves the potential involuntary loss of a
prisoner’s liberty. Although a proceeding under the SVPA is a
civil one, a prisoner subject to the SVPA is afforded certain
rights generally applicable to criminal proceedings. These
include the right to receive adequate notice of the proceeding;
to be represented by counsel; to remain silent or to testify; to
be present during the hearing or trial; to present evidence and
to cross-examine witnesses; and, to view and copy all petitions
and reports in the court file. Code § 37.1-70.2. The prisoner,
however, is not permitted to challenge the validity of his prior
criminal sentences or institutional convictions. Id. In
addition, the prisoner has “the right to employ experts at his
own expense to perform examinations and testify on his behalf”
or to request that the trial court appoint such experts for him
as are “deem[ed] necessary” by the trial court. 4 Code § 37.1-
70.8(A).
4
In 2004, Code § 37.1-70.8(A) was amended to require that
any expert appointed to assist a respondent “shall have the
qualifications required by subsection B of § 37.1-70.5.” Acts
2004, ch. 764. Code § 37.1-70.5(B) sets the qualifications for
the professional designated by the CRC to perform the mental
health examination of a prisoner identified as being subject to
12
The prisoner may request a trial by jury, as may the
Commonwealth. Code § 37.1-70.9(B). As in this case, when a
jury trial is conducted, the jury’s role is to determine whether
the prisoner is a sexually violent predator as statutorily
defined. The ultimate determination whether a prisoner
determined to be a sexually violent predator will be subject to
involuntary confinement or some less restrictive form of
treatment remains vested in the trial court. Code § 37.1-
70.9(C).
The process for determining whether a prisoner will be
committed under the SVPA begins when the Director of the
Department of Corrections identifies a prisoner, who is serving
a sentence for a sexually violent offense and is scheduled for
release within ten months, as being likely to commit future acts
of sexual violence based upon initial screening conducted by the
Department. 5 Any such prisoner must be referred to the CRC for
further screening and assessment. Code § 37.1-70.4(C).
the SVPA and provides that the examination must be conducted by
“a licensed psychiatrist or a licensed clinical psychologist,
designated by the Commissioner of the Department of Mental
Health, Mental Retardation and Substance Abuse Services.” A
further provision of the amended version of Code § 37.1-70.8(A)
provides that a privately employed expert need only be “a
licensed psychiatrist or a licensed clinical psychologist.”
5
If a defendant charged with a sexually violent offense is
adjudged to be unrestorably incompetent by the Director of the
Department of Mental Health, Mental Retardation and Substance
Abuse Services and is unable to stand trial for that reason, a
13
The CRC’s assessment of a prisoner referred to it by the
Director “shall include a mental health examination, including a
personal interview, of the prisoner by a licensed psychiatrist
or a licensed clinical psychologist, designated by the
Commissioner of the Department of Mental Health, Mental
Retardation and Substance Abuse Services, who is skilled in the
diagnosis and treatment of mental abnormalities and disorders
associated with violent sex offenders, and who is not a member
of the CRC.” Code § 37.1-70.5(B). In addition to the report
prepared by the professional performing the mental health
examination of the prisoner, the CRC will include in its
assessment the prisoner’s score on the screening test used by
the Department of Corrections or a similar test and review “(i)
the prisoner’s institutional history and treatment record, if
any; (ii) the prisoner’s criminal background; and (iii) any
recommendation is to be made to the trial court having
jurisdiction over the defendant as to whether he should be
committed pursuant to the SVPA. Code § 19.2-169.3(A). If the
trial court determines that the defendant will not stand trial
because he is unrestorably incompetent, the recommendation that
he be committed as a sexually violent predator is referred
directly to the Attorney General. Code § 19.2-169.3(D). If the
Attorney General declines to seek commitment of the defendant as
a sexually violent predator, the case will be remanded to the
trial court for further proceedings consistent with the
treatment of unrestorably incompetent criminal defendants. Id.
The procedures for commitment as a sexually violent predator of
an unrestorably incompetent defendant are comparable to those
applicable to a prisoner incarcerated for a sexually violent
offense.
14
other factor which is relevant to the determination of whether
such prisoner is a sexually violent predator.” Id.
Upon completion of the assessment, the CRC is required to
forward the report of the professional performing the mental
health examination of the prisoner and all relevant records
relating to the assessment to the Attorney General. The CRC
must also make a recommendation that the “prisoner (i) be
committed as a sexually violent predator pursuant to this
article; (ii) not be committed, but be placed in a conditional
release program as a less restrictive alternative; or (iii) not
be committed because he does not meet the definition of a
sexually violent predator.” Code § 37.1-70.5(C). In order to
recommend that a prisoner be placed in a conditional release
program, the CRC must “find[] that (i) such prisoner does not
need inpatient hospitalization, but needs outpatient treatment
and monitoring to prevent his condition from deteriorating to a
degree that he would need inpatient hospitalization; (ii)
appropriate outpatient supervision and treatment are reasonably
available; (iii) there is significant reason to believe that the
prisoner, if conditionally released, would comply with the
conditions specified; and (iv) conditional release will not
present an undue risk to public safety.” Code § 37.1-70.5(D).
Upon receipt of the recommendation and supporting
documentation from the CRC, the Attorney General must determine
15
within 90 days whether to file a petition seeking the civil
commitment of the prisoner as a sexually violent predator upon
his release from prison. Code § 37.1-70.6(A). The petition is
to be “filed in the circuit court wherein the prisoner was last
convicted of a sexually violent offense.” Id. A copy of the
petition is to be served on “the warden or superintendent of the
correctional facility wherein the person is then confined” and
delivered to the prisoner. Code § 37.1-70.7(A). Additionally,
the prisoner is to be given “a written explanation of the
sexually violent predator involuntary commitment process and the
statutory protections associated with the process.” Id.
Upon the filing of the petition by the Attorney General,
the circuit court must enter an order directing that the
prisoner will “remain in the secure custody of the Department of
Corrections” until a final order is entered on the petition,
even if such time extends beyond the prisoner’s scheduled date
of release from prison. Code § 37.1-70.7(A). The circuit court
then must conduct a probable cause hearing within 60 days to
determine whether there is a sufficient basis “to believe that
the person named in the petition is a sexually violent
predator.” Id. Prior to that hearing, the circuit court must
assure that the prisoner has the opportunity to retain counsel
or, if he has not had such opportunity or cannot afford to
retain counsel, the court will appoint counsel for him. Code
16
§ 37.1-70.7(B). If the circuit court finds that there is
probable cause to believe that the prisoner is a sexually
violent predator, it must conduct a trial on the Commonwealth’s
petition within 90 days of that determination. Code § 37.1-
70.9(A).
At trial, the Commonwealth is required by Code § 37.1-
70.9(C) to prove by “clear and convincing evidence” that the
prisoner is a sexually violent predator as defined by Code
§ 37.1-70.1. Upon such a finding by the circuit court, or by
the jury if a jury trial was conducted, “the court shall then
determine the nature of treatment the person is to receive.”
Id. Before ordering that the prisoner be committed to a secure
mental health facility, the circuit court must find “that
alternatives to involuntary confinement and treatment have been
investigated and deemed unsuitable and there is no less
restrictive alternative to institutional confinement and
treatment.” Id. If the circuit court finds that involuntary
confinement is not required, the case is continued in order for
the Commissioner of the Department of Mental Health, Mental
Retardation and Substance Abuse Services to provide a report
“suggesting possible alternatives to full commitment.” 6 Id.
6
The SVPA contains further provisions for the placement of
prisoners found to be sexually violent predators in a secure
mental health facility, the procedures for review of the
continuation of their confinement and for prisoners so confined
17
Applying this statutory scheme, we turn to our
consideration of the issues raised by McCloud and the
Commonwealth in this appeal. We will consider assignments of
error and cross-error in the order in which the issues to which
they relate arose in the trial court, beginning with the pre-
trial rulings on the admissibility of evidence in the status
determination phase to prove that McCloud is a sexually violent
predator. Specifically, McCloud has assigned error to the trial
court’s ruling permitting the Commonwealth to adduce evidence of
his convictions for abduction and indecent liberties because
those offenses are not defined by Code § 37.1-70.1 as sexually
violent offenses. The Commonwealth has assigned cross-error to
the trial court’s ruling to limit its introduction of certain
evidence concerning McCloud’s institutional infractions.
To support his first assertion of error, McCloud relies on
the principle applicable to criminal trials that generally bars
the Commonwealth from introducing evidence of other crimes or
bad acts by a defendant to prove his guilt of the crime charged.
See, e.g., Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d
114, 127 (1996); Kirkpatrick v. Commonwealth, 211 Va. 269, 272,
to petition for release, and penalties for escape from a secure
mental health facility or violation of conditional release
status. Because these provisions of the statutory scheme are
not at issue in any of the cases presently under consideration
by this Court, we need not describe those provisions in further
detail.
18
176 S.E.2d 802, 805 (1970). McCloud further relies on the
principle that “ ‘a judgment of conviction or acquittal in a
criminal prosecution does not establish in a subsequent civil
action the truth of the facts on which it was rendered . . . and
such judgment of conviction or acquittal is not admissible in
evidence.’ ” Godbolt v. Brawley, 250 Va. 467, 470, 463 S.E.2d
657, 659 (1995) (quoting Smith v. New Dixie Lines, Inc., 201 Va.
466, 472, 111 S.E.2d 434, 438 (1959)). McCloud’s reliance on
both of these principles is misplaced.
“Evidence is relevant if it tends to prove or disprove, or
is pertinent to, matters in issue.” Clay v. Commonwealth, 262
Va. 253, 257, 546 S.E.2d 728, 730 (2001); see also Barkley v.
Wallace, 267 Va. 369, 373, 595 S.E.2d 271, 273 (2004); Velocity
Express Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 205, 585
S.E.2d 557, 566-67 (2003). In determining whether relevant
evidence should be admitted, the trial court must apply a
balancing test to assess the probative value of the evidence and
any undue prejudicial effect of that evidence. Dandridge v.
Marshall, 267 Va. 591, 596, 594 S.E.2d 578, 581 (2004); Brugh v.
Jones, 265 Va. 136, 140, 574 S.E.2d 282, 284-85 (2003). The
Commonwealth’s burden in a proceeding under the SVPA is to prove
by clear and convincing evidence both that the prisoner has been
convicted of a sexually violent offense and because of a mental
abnormality or personality disorder, the prisoner finds it
19
difficult to control his predatory behavior which makes the
prisoner likely to engage in sexually violent acts in the
future. Thus, evidence that tends to prove or is otherwise
pertinent to either of those elements is relevant. Beyond
question, evidence that McCloud had been convicted of an
abduction related to a rape and evidence that he had been
convicted for indecent liberties were pertinent to the question
whether McCloud was likely to commit sexually violent acts in
the future and, thus, were relevant.
The determination to admit such relevant evidence rested
within the trial court’s sound discretion and will only be
disturbed on appeal upon a showing of an abuse of that
discretion. Dandridge, 267 Va. at 596, 594 S.E.2d at 581;
Lombard v. Rohrbaugh, 262 Va. 484, 492, 551 S.E.2d 349, 353
(2001). McCloud’s conviction for abduction was inextricably
connected with his conviction for the rape; both offenses
occurred during the same series of events. Thus, the abduction
is highly probative of predatory behavior. McCloud’s conviction
for indecent liberties occurred in relative proximity to his
other convictions for sexual offenses, and is highly probative
of his inability to control his impulsive sexual behavior. Any
prejudicial effect this evidence might have had on the minds of
the jurors was far outweighed by its probative value on the
issue to be determined by the jury. Accordingly, we hold that
20
the trial court did not err in permitting admission of this
evidence. 7
In its assignment of cross-error, the Commonwealth contends
that the trial court erred in limiting the introduction of
evidence concerning McCloud’s misbehavior while in prison to
instances of infractions for prohibited sexual behavior. The
Commonwealth contends that because a prisoner subject to the
SVPA will have been incarcerated for many years prior to the
time of the trial on the petition seeking his commitment,
evidence of his behavior while incarcerated is the best evidence
available to the Commonwealth to establish whether he has the
ability to control his predatory impulses or is likely to re-
offend. This is particularly true, the Commonwealth contends,
because a person unable to control his behavior within the rigid
structure of a prison, where presumably misbehavior is
immediately discovered and punished, will be even less likely to
be able to control his behavior once he is returned to free
7
There is simply no merit to McCloud’s reliance upon
Godbolt. Its discussion and holding with respect to
admissibility of prior criminal proceedings related to the
collateral estoppel use in a later civil suit of facts allegedly
determined in a prior criminal proceeding. See 250 Va. at 470,
463 S.E.2d at 659 (discussing the mutuality requirement and same
object/same results tests). That decision also turned upon the
rules relating to the use of a criminal conviction where a
convicted defendant seeks to recover as a plaintiff in a civil
suit for the very wrong he perpetrated. Id. at 471, 463 S.E.2d
at 660.
21
society. Thus, the Commonwealth asserts that in addition to
evidence of McCloud’s sexual misbehavior, the trial court should
also have permitted introduction of all McCloud’s infractions,
or at least permitted it to present evidence of the number of
infractions he committed.
The record in this case reflects that McCloud incurred
eighty-two institutional infractions over a period of years.
Those infractions, other than those the trial court admitted
into evidence, ranged in degree of apparent severity from
“disregarding a direct order” to “assault” and “possession of a
weapon.” The record contains no details regarding the
circumstances involved in these infractions. The trial court in
limiting the Commonwealth’s evidence to infractions for
prohibited sexual behavior reasoned that the other infractions
would not be probative of McCloud’s predatory behavior and that
simply permitting the Commonwealth’s witness to recite the
number of infractions without giving the specifics of the
circumstances involved “might mislead the jury.” We are of
opinion that the trial court did not abuse its discretion in
limiting the Commonwealth’s evidence in this manner. It simply
cannot be reasonably concluded that a prisoner who violates an
institutional rule while incarcerated such as disregarding a
direct order or “being in an unauthorized area” is likely to
commit a sexually violent offense or other criminal offense upon
22
his release from prison. Science has yet to reach that degree
of accuracy in prediction and in its absence such evidence, if
not confusing to a jury, would only be prejudicial in its
presentation to the jury.
We now consider the Commonwealth’s assignment of cross-
error concerning the qualification of Dr. Miller as an expert
witness for McCloud during the treatment determination phase of
the trial. Initially, we note that the Commonwealth’s concerns
underlying this assignment of error have been addressed by the
recent amendment to Code § 37.1-70.5(A) which, as we have noted
above, now provides that any expert appointed to assist a
prisoner subject to a SVPA petition “shall have the
qualifications required by subsection B of § 37.1-70.5.”
Because the Commonwealth prevailed in the trial court and in
light of our ultimate resolution of McCloud’s appeal, the issue
of Dr. Miller’s qualification as an expert by the trial court in
this case is moot. Accordingly, we will not address this issue
further in this opinion.
We turn now to consider McCloud’s remaining two assignments
of error. These relate to the trial court’s finding that less
restrictive alternatives to involuntary confinement were
investigated and deemed unsuitable and whether the trial court
improperly shifted the burden of showing that such alternatives
were available to McCloud when, according to McCloud, it
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implicitly based its decision to have him involuntary confined
in part on his failure to present a specific plan for
alternative treatment.
With respect to the first issue, McCloud essentially
contends that the evidence introduced at the treatment
determination phase of his trial does not support the trial
court’s finding that alternatives to involuntary confinement
have been investigated and deemed unsuitable as required by Code
§ 37.1-70.9(C). To the extent that McCloud suggests that the
language of this statute imposes in every case a requirement
upon the Commonwealth to propose specific alternatives to
commitment and then to show that they are unsuitable, we
disagree. We have no reservation in concluding that the General
Assembly did not intend to impose such a futile requirement upon
the Commonwealth in cases where out-patient treatment of a
sexually violent predator is not indicated by expert opinion.
Nevertheless, McCloud contends that Dr. Sheneman’s
testimony does not establish that out-patient treatment would be
unsuitable, particularly when considered in conjunction with the
testimony of Dr. Miller and McCloud’s father. Again, we
disagree. While the trial court was required to consider all
the evidence in determining the nature of the treatment McCloud
is to receive, under familiar principles the trial court was
entitled to resolve any conflicts in that evidence and to accord
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the testimony of each witness the weight it determined to be
appropriate. Dr. Sheneman testified that out-patient treatment
was not appropriate for McCloud. He indicated specific concerns
with McCloud’s ability to comply with rules and opined that
McCloud’s lack of insight into his personality disorder would
interfere with his receiving treatment unless he was in a
setting in which his behavior was controlled and monitored.
This evidence was sufficient for the trial court to conclude
that alternatives to involuntary confinement had been
investigated by the Commonwealth and were found to be
unsuitable.
With regard to the second issue, McCloud contends that when
the trial court ruled in its summation that “no medication
regimen, no specific diagnosis, no positive regimen for Mr.
McCloud’s acknowledged substance abuse issues, no behavioral
adaptation or precise plan for Mr. McCloud’s reintegration into
the community can be presented at this time,” it implicitly
imposed upon McCloud the burden of providing such a plan to the
trial court for consideration. McCloud contends that the trial
court “us[ed] McCloud’s failure to present a conditional release
plan at the dispositional phase of the trial as a reason for
imposing institutional confinement.”
McCloud is correct that the burden of proving that there is
no suitable less restrictive alternative to involuntary
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confinement rests with the Commonwealth, and that burden cannot
be shifted to the prisoner. However, when, as here, the
Commonwealth has adduced evidence sufficient to satisfy the
trial court that involuntary confinement is necessary and, thus,
less restrictive alternatives are unsuitable, the prisoner then
has the burden of going forward with his case if he is to rebut
the Commonwealth’s evidence. See Shope v. Commonwealth, 228 Va.
203, 205, 321 S.E.2d 282, 284 (1984).
We find nothing in the trial court’s statement referenced
by McCloud, or at any other point in the record, to support the
contention that the trial court either required McCloud to
produce a specific conditional release plan or that the trial
court’s decision to order McCloud to be involuntarily confined
was based on the failure of McCloud to present such a plan. To
the contrary, the statement cited by McCloud clearly indicates
the trial court’s finding that it agreed with the Commonwealth
that no such plan for conditional release could be developed at
that time because involuntary confinement was the only suitable
form of treatment for McCloud. Accordingly, we hold that the
trial court did not improperly shift to McCloud the burden of
proving that there was a suitable alternative to involuntary
confinement.
CONCLUSION
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For the reasons stated with regard to each of McCloud’s
assignments of error and the Commonwealth’s assignments of
cross-error, we hold that there is no error in the judgment of
the trial court that McCloud is a sexually violent predator
requiring treatment through involuntary confinement in a secure
mental health facility. Accordingly, the judgment of the trial
court will be affirmed.
Affirmed.
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