Present: All the Justices
COMMONWEALTH OF VIRGINIA *
OPINION BY
v. Record No. 041454 JUSTICE LAWRENCE L. KOONTZ, JR.
March 3, 2005
RICHARD BRYAN ALLEN
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge Designate
Pursuant to Code § 37.1-70.6(A), the Commonwealth
petitioned the Circuit Court of the City of Alexandria to
civilly commit Richard Bryan Allen as a sexually violent
predator. Following a hearing, the trial court sitting without
a jury determined that the Commonwealth had not met its burden
of proving by clear and convincing evidence that Allen is a
sexually violent predator. Accordingly, the trial court
dismissed the Commonwealth’s petition. The Commonwealth appeals
from this judgment, contending that the trial court erred in
admitting the testimony of Allen’s expert witness, a
psychologist who is not licensed to practice in Virginia. The
Commonwealth further contends that the trial court erred in
finding that the Commonwealth had not met its burden of proof.
*
In the trial court this case was styled “Jerry W. Kilgore,
Attorney General of Virginia, ex rel. Commonwealth of Virginia
v. Richard Bryan Allen.” We have amended the style of the case
to reflect that the Commonwealth is the real party in interest,
not a relator. See Townes v. Commonwealth, 269 Va. ___, ___
n.*, ___ S.E.2d ___, ___ n.* (2005) (today decided).
BACKGROUND
On January 19, 1983, Allen was convicted of the aggravated
sexual battery of an eight-year-old girl and a nine-year-old
girl. Allen was sentenced to ten years’ imprisonment for each
offense, with the sentences to run consecutively.
Allen was released on parole on September 13, 2001. Within
days of his release, however, Allen violated the conditions of
his parole and was returned to prison to serve the remainder of
his sentence. On July 9, 2003, as required by Code § 37.1-
70.4(C), the Director of the Virginia Department of Corrections
notified the Commitment Review Committee (CRC) that Allen, who
was scheduled to be released from prison on September 14, 2003,
was subject to review for commitment because he was incarcerated
for a sexually violent offense and had been identified through a
preliminary screening test as being likely to re-offend. As
required by Code § 37.1-70.5(B), the CRC referred Allen to Dr.
Ronald M. Boggio, Ph.D., a licensed clinical psychologist, for
evaluation. Following receipt of Dr. Boggio’s evaluation
report, the CRC completed its assessment of Allen and, on August
7, 2003, forwarded to the Attorney General a recommendation that
2
the Commonwealth seek to have Allen committed to a secure mental
health facility as a sexually violent predator.
On August 14, 2003, the Commonwealth filed in the trial
court a petition for the civil commitment of Allen as a sexually
violent predator. The trial court appointed counsel to
represent Allen, Code § 37.1-70.2, and, upon Allen’s motion,
ordered that funds be provided for a mental health expert to aid
in Allen’s defense, Code § 37.1-70.8. Thereafter, the trial
court conducted a hearing as required by Code § 37.1-70.7. The
trial court determined that there was probable cause to believe
that Allen is a sexually violent predator and ordered that Allen
be held in custody until a full hearing on the Commonwealth’s
petition could be conducted. Although permitted by Code § 37.1-
70.9(B), neither Allen nor the Commonwealth requested a jury
trial on the commitment petition.
On December 12, 2003, the trial court conducted a trial on
the Commonwealth’s petition. 1 The Commonwealth presented
evidence from Carmen Baylor, the custodian of records for the
Greensville Correctional Center where Allen had been
1
Code § 37.1-70.9 requires that the trial be conducted
within 90 days of the determination of probable cause under Code
§ 37.1-70.7. In a continuance order entered October 30, 2003,
Allen waived his objection to the ninety-day requirement.
3
incarcerated. Baylor testified that while incarcerated Allen
had committed 246 institutional infractions, including 15 for
assault, four for indecent exposure, most recently in January
2003, and one instance of having consensual sex with another
inmate. 2
Barbara Ward, a senior probation/parole officer with the
Alexandria Adult Probation/Parole Office testified for the
Commonwealth that she was assigned to supervise Allen’s parole
following his initial release from prison on September 13, 2001.
Ward testified that she explained the rules of his parole to
Allen, and that he acknowledged his agreement to abide by them.
Nonetheless, Allen was late for his next meeting with Ward on
September 17, 2001 and failed to appear for the next subsequent
meeting.
Ward testified she learned that Allen had been seen with a
young woman with Down’s Syndrome who was referring to Allen as
2
Allen has not assigned cross-error to the admission of
evidence concerning non-sexual institutional infractions or the
total number of infractions. Accordingly, we express no opinion
on the admissibility of that evidence and will consider its
weight in reviewing the trial court’s final judgment. But see
McCloud v. Commonwealth, 269 Va. ___, ___, ___ S.E.2d ___, ___
(2005) (holding that trial court did not abuse its discretion in
limiting introduction of such evidence in a jury trial on the
Commonwealth’s petition to commit a prisoner as a sexually
violent predator).
4
her “boyfriend.” After Allen was arrested for violating the
terms of his parole by failing to meet with Ward, Ward went to
Allen’s room at the halfway house where he had been staying and
discovered that he had come into possession of a pornographic
magazine.
Dr. Boggio, the psychologist who had performed the pre-
release evaluation of Allen for the CRC, testified as the
Commonwealth’s mental health expert. Dr. Boggio principally
based his testimony upon the personal interview and tests he had
conducted during his evaluation of Allen. Dr. Boggio testified
that Allen recounted a lengthy history of behavioral problems
from an early age, including setting fires, police
confrontations, and hitting other children and teachers. Allen
was suspended from the New York City public schools as a result
of his violence, and lived as a runaway for a period of time.
Dr. Boggio further testified that Allen bragged about the
extent of his violent behavior and expressed no remorse. Allen
told Dr. Boggio that ever since Allen was a child he had been
known for having a “temper problem” and for being easily
angered. When Allen was a teenager, he pulled a knife on a
female co-worker who referred to him with a racial slur.
5
According to Dr. Boggio, Allen had a long history of
psychiatric care that began as a juvenile, including both in-
patient and out-patient treatment. Allen was expelled for
fighting from the Commonwealth Center for Children &
Adolescents, then known as the DeJarnette Center, an acute care
mental health facility operated by the Virginia Department of
Mental Health, Mental Retardation and Substance Abuse Services.
Dr. Boggio also reviewed the pre-sentence investigation from
Allen’s convictions for aggravated sexual battery, which
revealed that his behavioral problems began at age four-and-a-
half, including disruptive and aggressive behavior, and later
included sexually inappropriate behavior. Allen also reported
13 suicide attempts, beginning at age 13. Dr. Boggio also
testified that the official records indicated Allen had
diagnoses of the depressive disorder spectrum as well as
antisocial personality disorder (APD) and polysubstance
dependence. At least two of Allen’s institutional charges were
for possession or use of alcohol or illegal substances.
Allen reported to Dr. Boggio that his first sexual
experience was intercourse with two girls when he was 16; one
girl was between 11 and 13 years of age and the other was 13 or
14. Allen also told Dr. Boggio that he had an on-going sexual
6
relationship with an eleven-year-old girl when he was seventeen.
Allen also claimed to have had a sexual relationship with the
mother of his two victims, and admitted that he had engaged in
homosexual activity while in prison. Allen claimed never to
have been “in love” with anyone despite having had many
different relationships.
Dr. Boggio testified that Allen claimed he thought his
nine-year-old victim was twelve, because she was “very
developed.” He also claimed that the nine-year-old victim
initiated the sexual encounter. He denied having assaulted the
eight-year-old victim. Dr. Boggio found it important to note
that Allen had no immediate post-abuse feelings about himself,
the victims, or his behavior other than to deny involvement, and
that Allen expressed no remorse for the victims. Similarly,
Allen denied responsibility for the infractions he committed
while incarcerated.
Dr. Boggio diagnosed Allen with APD, dysthymic disorder,
and polysubstance dependence. Dr. Boggio testified, reading
from the American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, (4th ed. Revised text
2000), regarding APD:
In order to meet this diagnosis, one has to have three
of the following: Failure to conform to social norms
7
with respect to lawful behaviors, as indicated by
repeatedly performing acts that are grounds for arrest
. . . deceitfulness, as indicated by repeated lying,
use of aliases, or conning others for personal profit
or pleasure . . . impulsivity or failure to plan ahead
. . . irritability and aggressiveness, as indicated by
repeated physical fights or assaults . . . reckless
disregard for the safety of self or others . . .
consistent irresponsibility, as indicated by repeated
failure to sustain consistent work behavior or honor
financial obligations . . . lack of remorse, as
indicated by being indifferent to or rationalizing
having hurt, mistreated, or stolen from another.
Additionally, the individual has to be at least 18
years of age and has evidence of conduct disorder with
onset before age 15.
Dr. Boggio testified that Allen met all of these criteria, with
the possible exception of failing to maintain a consistent work
history.
Based on tests he administered to Allen, Dr. Boggio
testified that Allen has a composite IQ score of 103, plus or
minus 6 points, indicating that Allen is of average
intelligence. Dr. Boggio also had Allen complete the Millon
Clinical Multiaxial Inventory-III (MCMI-III). Dr. Boggio
testified that Allen’s responses to the MCMI-III showed that he
has longstanding personality defects with no coping mechanisms,
meaning that Allen would repeat problem behaviors over and over
again, despite the consequences.
Dr. Boggio also had Allen complete the Hare Psychopathy
Checklist Revised (Hare), an instrument designed to measure
8
psychopathic behaviors. Allen’s score on this test placed him
in approximately the 90th percentile of incarcerated
individuals, suggesting a strong indication of a psychopathy to
take advantage of and manipulate people without regard to their
feelings or thoughts, and a tendency not to show remorse for
this behavior. Dr. Boggio found the results of the Hare test
correlated with all the things that Allen had said during their
interview.
Dr. Boggio also administered the Static-99, a test used to
predict sex offender recidivism, to Allen. According to Dr.
Boggio, Allen’s scores on this test predicted that Allen would
have a 33% likelihood of committing another sexual offense after
5 years following his release from prison, a 38% likelihood
after 10 years, and a 40% likelihood after 15 years. Using a
formula to extrapolate beyond 15 years, Dr. Boggio concluded
that Allen would have a 62.7% likelihood of recidivism after 25
years. On the Rapid Risk Assessment for Sex Offender Recidivism
test, Dr. Boggio scored Allen with a 36.9% chance of
reconviction in 10 years, and a 60.8% likelihood of reconviction
in 25 years. 3 Dr. Boggio also testified that these tests rely
3
Dr. Boggio explained that there is a difference between
recidivism, that is the committing of a crime without regard to
9
upon actuarial predictions and do not purport to satisfy
completely the issue the tester “is being asked to predict.”
Dr. Boggio testified that in his opinion Allen is likely to
re-offend in the future because of an inability to control those
impulses that arise because of his personality disorder. Dr.
Boggio noted that Allen’s lack of concern for others and his
tendency to act compulsively and without remorse make Allen much
more likely to be a repeat offender because he fails to see the
importance of respecting the rights of others.
Dr. Boggio did not diagnose Allen as a pedophile, but
opined that Allen has a tendency to act to satisfy his own needs
and a “belief that people can be manipulated and that people can
be taken advantage of.” Dr. Boggio testified that this
“predatory behavior” puts children as well as individuals with
impaired cognitive functioning at risk because they are easily
manipulated.
In conclusion, Dr. Boggio testified that in his opinion
Allen needed in-patient treatment in a secure mental health
facility. He opined that out-patient treatment would not be
appropriate because Allen has had no sex offender treatment
whether the subject is arrested and convicted, and reconviction,
that is actually being convicted for an offense.
10
while in prison, has no awareness that he needs help, was unable
to follow rules while on parole, and has a long history of not
being able to follow rules.
Dr. Timothy P. Foley, Ph.D., testified as an expert witness
for Allen. Dr. Foley is a psychologist licensed in Pennsylvania
and New Jersey. Although not licensed to practice in Virginia,
Dr. Foley contacted the Virginia Board of Psychology and
obtained permission to perform an evaluation of Allen in
Virginia.
To establish Dr. Foley’s qualifications as an expert, Allen
elicited testimony from Dr. Foley concerning his background and
experience in the field of treating sexually violent persons.
Dr. Foley testified that he had previously evaluated
approximately 250 sexually violent predators for the courts and
as a defense expert and had testified in over 200 such cases.
Dr. Foley further testified that currently he is employed by
federal district courts in both Pennsylvania and New Jersey to
assess and treat sexual offenders. He previously was the
supervisor of the sexual offender program at a state prison in
Pennsylvania for two years. Dr. Foley’s curriculum vitae, which
was admitted into evidence, showed that he is a member of the
Association for the Treatment of Sexual Abusers and has
11
published numerous articles concerning treatment of sexual
offenders. Dr. Foley testified that he is familiar with the
statutory standards that apply to proceedings for the commitment
of sexually violent predators in Virginia.
The Commonwealth objected to Dr. Foley being qualified as
an expert witness, asserting that “he’s not licensed in this
state or familiar with the state standards.” The trial court
overruled the Commonwealth’s objection.
Dr. Foley testified that he had reviewed Allen’s
institutional file from the Department of Corrections and other
reports. Dr. Foley also administered various tests to Allen
including the Minnesota Multiphasic Personality Inventory-2 and
the Abel Screen. Dr. Foley testified that the Abel Screen is a
valid, reliable test to determine sexual preferences and
abnormal interests. Dr. Foley concurred in Dr. Boggio’s
conclusion that Allen was not a pedophile, but opined that he
has a “socially deviant” interest in sexually mature underage
females. Dr. Foley characterized this as “a common finding
among heterosexual males.”
Dr. Foley administered a longer version of the Hare
Psychopathy Checklist to Allen. Dr. Foley testified that Allen
received a prorated score of 26.7, which is not indicative of a
12
psychopathic classification. Dr. Foley testified that the most
robust predictors of sexual offense recidivism are measured
sexual deviance and evidence of psychopathy, and that Allen
scored below the range of the psychopathy cutoff.
Dr. Foley testified that he also administered the Static-99
to Allen and that the results were comparable to those achieved
when Dr. Boggio administered that test. While Dr. Foley agreed
with Dr. Boggio’s general assessment of the results of the
Static-99 with regard to the likelihood that Allen would re-
offend, he characterized that result as meaning “there is less
than half a chance that Allen would be a recidivist [after] 15
years.” Dr. Foley further qualified his assessment of the
Static-99 results by stating that the base population for the
test were adults who “had committed offenses as adults and had
been on the street for a period of time,” whereas Allen had been
a juvenile at the time of his original offenses and “has never
been on the street as an adult.”
Dr. Foley agreed with Dr. Boggio’s assessment that Allen
suffers from APD. Dr. Foley testified that while Allen’s
antisocial personality traits “[p]robably . . . will remain for
the rest of [his] life,” his “propensity to act them out will
decrease with age.” Moreover, it was Dr. Foley’s opinion that
13
Allen “did not . . . suffer[] from an inability to control his
sexual impulses.” Dr. Foley testified that in his opinion
Allen’s personality disorder does not predispose him to commit
sexually violent offenses.
On rebuttal, Dr. Boggio testified that he disagreed with
Dr. Foley’s opinion regarding Allen’s propensity to re-offend.
While Dr. Boggio agreed that Allen’s propensity to act on his
sexual impulses would decrease, he opined that Allen would
remain at risk for re-offending throughout his life.
Dr. Boggio disagreed with Dr. Foley’s use of the Abel
Screen as a predictor of sexual preferences and abnormal
interests. He testified that published reliability data suggest
that the Abel Screen is not accurate. Dr. Boggio further
testified that several state and federal courts have held that
the Abel Screen is not scientifically reliable.
Dr. Boggio also disagreed with Dr. Foley’s assumption that
psychopathy is the most robust predictor of recidivism. Dr.
Boggio opined that sexual deviance and antisocial lifestyle are
more predictive of a person’s future actions, and that
psychopathy is just one part of the equation.
Dr. Boggio reiterated his opinion that, in light of Allen’s
APD, his demonstrated history of antisocial offending, and his
14
convictions for predatory sexual offenses, Allen is likely to
re-offend in the future. Dr. Boggio opined that this likelihood
is more than 50% based on all the actuarial data.
In its summation, the trial court noted that “each of the
experts [were] both well-qualified, both well-prepared, and
convincing.” Thus, although it expressed “a very, very
generalized fear of releasing Mr. Allen on the public,” the
trial court ruled that the Commonwealth had not proven by clear
and convincing evidence that Allen is likely to engage in
sexually violent acts in the future. Accordingly, the trial
court dismissed the Commonwealth’s petition to have Allen
civilly committed as a sexually violent predator.
On February 18, 2004, the Commonwealth filed a motion to
reconsider. The Commonwealth renewed its objection to the trial
court’s ruling permitting Dr. Foley to testify as an expert
witness because he is not licensed to practice in Virginia. The
Commonwealth further contended that Dr. Foley’s evaluation of
Allen was based on “an incorrect standard” that would require
proof that a prisoner is incapable of controlling his sexually
violent impulses, rather than proof that a prisoner is likely to
re-offend.
15
On March 24, 2004, the trial court entered an order denying
the Commonwealth’s motion to reconsider. In that same order,
the trial court reiterated its prior ruling that the
Commonwealth had not proven by clear and convincing evidence
that Allen “is a sexually violent predator within the meaning of
Virginia Code Section 37.1-70.1, et seq.” Accordingly, the
trial court dismissed the Commonwealth’s petition and ordered
that Allen be unconditionally released. This appeal followed.
DISCUSSION
This case, along with Townes v. Commonwealth, 269 Va. ___,
___ S.E.2d ___ (2005) (today decided) and McCloud v.
Commonwealth, 269 Va. ___, ___ S.E.2d ___ (2005) (today
decided), involves the procedures required to be followed in
order for the Commonwealth to have a prisoner who has been
convicted of a sexually violent offense declared to be a
sexually violent predator and to have that prisoner
involuntarily committed to a secure mental health facility upon
his release from prison. Those procedures are set out in
Chapter 2, Article 1.1 of Title 37.1, commonly referred to as
the Sexually Violent Predators Act (SVPA). Code §§ 37.1-70.1
through 37.1-70.19. We have reviewed those procedures in some
16
detail in McCloud and need not do so again here. This case
presents issues not addressed in Townes or McCloud.
We first address the Commonwealth’s contention that the
trial court erred in permitting Dr. Foley to qualify as an
expert witness at trial because he is not licensed to practice
in Virginia. At the time the trial court granted Allen’s motion
for funds to employ Dr. Foley as an expert, Code § 37.1-70.8(A)
(Supp. 2003) provided: 4
Any person who is the subject of a petition under
this article shall have, prior to trial, the right to
employ experts at his own expense to perform
examinations and testify on his behalf. However, if a
person has not employed an expert and requests expert
assistance, the judge shall appoint such experts as he
deems necessary to perform examinations and
participate in the trial on the person’s behalf.
4
In 2004, Code § 37.1-70.8(A) was amended and now requires
that any expert appointed to assist a defendant “shall have the
qualifications required by subsection B of § 37.1-70.5.” See
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
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.”
Because this amendment did not come into force until after
Allen’s trial, we express no opinion on its effect or validity.
17
Where a statute designates express qualifications for an
expert witness, the witness must satisfy the statutory criteria
in order to testify as an expert. See Hinkley v. Koehler, 269
Va. 82, 87, 606 S.E.2d ___, ___ (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, 535 S.E.2d 172, 174
(2000). Nothing in Code § 37.1-70.8(A), as applicable at the
time of Allen’s trial, or elsewhere in the SVPA expressly
requires or by implication suggests that a mental health expert
employed or appointed to assist a prisoner must be licensed to
practice in Virginia. In the absence of express statutory
requirements for the qualification of an expert witness in this
particular type of proceeding, we will apply the general rules
applicable to expert testimony in other civil cases. See Code
§ 8.01-401.3.
The sole purpose of permitting expert testimony is to
assist the trier of fact to understand the evidence presented or
to determine a fact in issue. Id.; Santen v. Tuthill, 265 Va.
492, 498, 578 S.E.2d 788, 792 (2003); John v. Im, 263 Va. 315,
319, 559 S.E.2d 694, 696 (2002). Generally, a witness is
qualified to testify as an expert when the witness possesses
sufficient knowledge, skill, or experience to make the witness
18
competent to testify as an expert on the subject matter at
issue. See Sami, 260 Va. at 284, 535 S.E.2d at 174; Noll v.
Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979). “In
essence, all that is necessary for a witness to qualify as an
expert is that the witness have sufficient knowledge of the
subject to give value to the witness’s opinion.” Velazquez v.
Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002).
Without question, Dr. Foley’s education, employment experience,
and professional knowledge and skill with respect to the
identification and treatment of sexually violent offenders
qualified him to render an opinion that would assist the trial
court.
The Commonwealth contends, however, that the trial court
further erred in not rejecting Dr. Foley’s testimony and
granting the Commonwealth’s motion to reconsider because his
testimony was based on an improper standard, thus demonstrating
that he lacked a sufficient appreciation of the requirements for
finding that Allen is a sexually violent predator under the
SVPA. We disagree.
“The admission of expert testimony is committed to the
sound discretion of the trial judge, and we will [reject] a
trial court’s decision only where that court has abused its
19
discretion.” Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176,
178 (1992); see also Hinkley, 269 Va. at 91, 606 S.E.2d at ___.
Similarly, when the admission of expert witness testimony is
challenged in a post-trial proceeding, the determination whether
that testimony was properly received is a matter committed to
the trial court’s discretion. When the admissibility of the
expert’s testimony is subsequently challenged on appeal, that
testimony must be viewed as a whole. See Hussen v.
Commonwealth, 257 Va. 93, 99, 511 S.E.2d 106, 109 (1999).
While the Commonwealth can point to isolated statements in
Dr. Foley’s testimony and in his written evaluation of Allen
that do not track the precise language of the definition of a
sexually violent predator in the SVPA, it also is clear that Dr.
Foley was aware of that standard. Indeed, in his written
evaluation Dr. Foley quotes language from Code § 37.1-70.1
defining the standard almost verbatim. Moreover, even if we
were to agree with the Commonwealth that Dr. Foley’s opinion
that Allen does not meet the SVPA’s definition of a sexually
violent predator was based on a standard higher than that
required by the SVPA, the trial court could nonetheless consider
the other evidence presented by Dr. Foley regarding Allen’s
performance on the various tests administered by Dr. Foley to
20
make its own determination of the ultimate issue of fact. 5
Accordingly, we hold that the trial court did not abuse its
discretion in receiving Dr. Foley’s testimony and did not err in
denying the Commonwealth’s motion to reconsider.
Next, the Commonwealth contends that the trial court erred
in determining that there was not clear and convincing evidence
that Allen is a sexually violent predator who is likely to
commit sexually violent acts in the future. The Commonwealth
concedes that the clear and convincing standard of proof places
a heavy burden upon it. Indeed, the Commonwealth’s burden of
proving the necessity of involuntary civil confinement by clear
and convincing evidence arises from due process concerns and,
thus, is of constitutional dimension and not merely a statutory
elective. See Addington v. Texas, 441 U.S. 418, 432-33 (1979).
“Clear and convincing evidence has been defined as ‘that
measure or degree of proof which will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations
5
On brief, the Commonwealth further argues that Dr. Foley’s
testimony should be rejected because he “placed great reliance
on the Abel Screen, which . . . has not been peer reviewed and
which has been rejected by the majority of courts as
unreliable.” The record in this particular case does not
support that contention, and because the issue was not resolved,
we express no opinion on whether results of an Abel Screen will
be admissible in future cases.
21
sought to be established. It is intermediate, being more than a
mere preponderance, but not to the extent of such certainty as
is required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.’ ” Fred C. Walker Agency,
Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975)
(quoting Cross v. Ledford, 120 N.E.2d 118, 123 (Ohio 1954))
(emphasis omitted); see also Judicial Inquiry & Review
Commission v. Lewis, 264 Va. 401, 405, 568 S.E.2d 687, 689
(2002). The Commonwealth asserts that the trial court erred in
adopting the view, which the Commonwealth contends was espoused
by Dr. Foley, that it was required to prove that Allen would be
unable to control his impulses toward sexually violent behavior,
rather than the appropriate standard, which requires it to prove
only that Allen would likely re-offend. While we agree with the
Commonwealth’s contention regarding the appropriate standard of
proof, we do not agree that the trial court failed to apply that
standard in assessing the evidence in this case.
Nothing in the trial court’s conduct of the trial suggests
that it was requiring the Commonwealth to prove that Allen would
be unable to control his sexual impulses. To the contrary, in
its summation the trial court expressly stated that “[t]he
standard here is whether or not Mr. Allen would be likely to
22
commit a sexually violent offense.” (Emphasis added). This is
in accord with the standard prescribed by Code §§ 37.1-70.1 and
37.1-70.9. See McCloud v. Commonwealth, 269 Va. ___, ___, ___
S.E.2d ___, ___ (2005) (decided today).
In urging this Court to reject the trial court’s
determination that there was not clear and convincing evidence
that Allen is likely to commit future sexually violent acts, the
Commonwealth promotes the testimony of its expert, Dr. Boggio,
while discounting that of Allen’s expert, Dr. Foley. In
essence, the Commonwealth desires this Court to reweigh the
testimony of the two experts and to substitute our judgment for
that of the trial court. However, as in all civil cases, the
judgment of a trial court, sitting without a jury, is entitled
to the same weight as a jury verdict and will not be set aside
unless it appears that the judgment is plainly wrong or without
evidence to support it. Code § 8.01-680. When, as here, the
evidence “presented a ‘battle of experts,’ . . . we will defer
to the trial court’s judgment of the weight and credibility to
be given their testimony.” Board of Supervisors v. HCA Health
Services of Virginia, Inc., 260 Va. 317, 332, 535 S.E.2d 163,
171 (2000). Thus, while we may share the obvious concern
expressed by the trial court with respect to a “generalized fear
23
of releasing Mr. Allen on the public,” we cannot say that the
trial court’s conclusion that the evidence did not rise to a
level of clear and convincing evidence that Allen would be
likely to commit future acts of sexual violence is plainly wrong
or without evidence to support it. Accordingly, we hold that
the trial court did not err in determining that the Commonwealth
had not met its burden of proof to establish that Allen is a
sexually violent predator as defined by Code § 37.1-70.1.
CONCLUSION
For these reasons, we will affirm the judgment of the trial
court dismissing the Commonwealth’s petition to civilly commit
Allen as a sexually violent predator.
Affirmed.
JUSTICE KINSER, with whom JUSTICE LEMONS joins, concurring in
part and dissenting in part.
I respectfully disagree with the majority’s holding “that
the trial court did not err in determining that the Commonwealth
had not met its burden of proof to establish that [Richard
Bryan] Allen is a sexually violent predator as defined by Code
§ 37.1-70.1.” On appeal, the question is whether the trial
court’s judgment is plainly wrong or without evidence to support
it. Code § 8.01-680. I conclude that it is without evidence to
support it.
24
Contrary to the majority’s description of the evidence,
this case was not simply a “battle of experts.” And, the trial
court did not view it as such. The trial court found both
experts to be “well-qualified,” “well-prepared,” and
“convincing.” The court did not indicate that it placed greater
weight on the testimony of one expert over that of the other or
found one to be more credible. Instead, the court stated:
I suspect what it gets down to is that this law has asked
more of the mental health care professionals than they can
deliver. Dr. Foley said he didn’t have a crystal ball. Dr.
Boggio didn’t say it, but he certainly implied he didn’t have a
crystal ball. And I can assure you that I don’t have a crystal
ball.
The trial court therefore concluded that the Commonwealth
had not carried its burden of proving by clear and convincing
evidence that Allen would likely engage in sexually violent
acts.
Proof by clear and convincing evidence, however, does not
mean having a “crystal ball.” Instead, the term “clear and
convincing evidence” has been defined as
that measure or degree of proof which will
produce in the mind of the trier of facts a firm
belief or conviction as to the allegations sought to
be established. It is intermediate, being more than a
25
mere preponderance, but not to the extent of such
certainty as is required beyond a reasonable doubt as
in criminal cases. It does not mean clear and
unequivocal.
Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41,
211 S.E.2d 88, 92 (1975) (quoting Cross v. Ledford, 120 N.E.2d
118, 123 (1954)); accord Judicial Inquiry & Review Comm’n v.
Lewis, 264 Va. 401, 405, 568 S.E.2d 687, 689 (2002).
In order to prove Allen is a sexually violent predator
under the provisions of Code § 37.1-70.1, the Commonwealth had
to establish by clear and convincing evidence that Allen “[had]
been convicted of a sexually violent offense,” as defined in
that statutory provision, and that “because of a mental
abnormality or personality disorder, [Allen] finds it difficult
to control his predatory behavior which makes him likely to
engage in sexually violent acts.” The parties agree that Allen
had the predicate conviction; indeed, he had two convictions of
aggravated sexual battery of young girls. Dr. Timothy P. Foley,
Ph.D., testifying for Allen, and Dr. Ronald M. Boggio, Ph.D.,
the licensed clinical psychologist who testified on behalf of
the Commonwealth, both agreed that Allen has a personality
disorder, specifically Antisocial Personality Disorder (APD).
26
Thus, the contested issue was whether, because of his APD, Allen
is “likely to engage in sexually violent acts.”
While the two experts disagreed on the answer to this
question, there was little or no difference in their opinions in
many respects. As already stated, both agreed that Allen has
APD. One of the tests given by Dr. Boggio, the Millon Clinical
Multiaxial Inventory-III revealed that Allen has pervasive,
longstanding personality problems that leave him with no coping
mechanisms, make it difficult for him to follow socially
acceptable norms of behavior, and cause him repeatedly to engage
in “self-defeating patterns of behavior” despite the
consequences. Dr. Foley reached similar conclusions based on
Allen’s test results on the Minnesota Multiphasic Personality
Inventory-2. Dr. Foley testified that the test results were
“indicative of somebody with a lot of authority struggles,
somebody who has a hard time following the rules, somebody who
is restless, somebody who is suspicious, hypersensitive,
blameful, may exhibit poor judgment at times, [and]
demonstrate[s] a lack of insight.”
Similarly, on the Static-99, an actuarial risk assessment
test designed to predict sex offender recidivism, Dr. Foley
acknowledged that he and Dr. Boggio were in “substantial
27
agreement.” ∗ Dr. Foley testified that Allen has a 33 percent
chance of recidivating in 5 years, a 38 percent chance after 10
years, and a 40 percent chance after 15 years. However, that
test, as well as the Rapid Risk Assessment for Sexual Offense
Recidivism (RRASOR) that Dr. Boggio also administered, assesses
the likelihood of reconviction, not the likelihood that a sex
offender will offend again. Dr. Boggio explained that the data
needed to develop an instrument that actually measures
recidivism is not available for obvious reasons: offenders are
not caught; charges are reduced to lesser crimes; or convictions
are not obtained. Thus, the reconviction rate reflected in
tests such as the Static-99 or the RRASOR is lower than the
actual re-offending rate.
Also, the data in the Static-99 reaches out for only 15
years. Since the question under Code § 37.1-70.1 is not limited
to whether Allen would commit a violent sexual act within 15
years after release from incarceration, Dr. Boggio used a
formula “based on actual base rates of sexual recidivism that
∗
The Static-99 does not entail a clinical judgment
about whether a particular person is predisposed to be a repeat
sex offender. As Dr. Foley explained, “the Static-99 does not
predict individuals, but it looks at certain characteristics,
28
have been collected in a variety of studies” to extrapolate
beyond 15 years. In doing so, he concluded that, on the Static-
99, Allen has a 62.7 percent likelihood for reconviction after
25 years and, on the RRASOR, a 60.8 percent likelihood for
reconviction after 25 years.
Dr. Foley did not extrapolate any rate of reconviction for
a sexually violent offense beyond the period of 15 years.
Instead, he referred to a study and graph prepared by others
based on a sample of only 468 people and opined that, while
Allen’s personality traits will remain throughout the rest of
his life, Allen’s propensity to act out his attitudes will
decrease after 25 years. Dr. Foley also based this opinion in
part on the fact that Allen’s institutional infractions had
decreased in recent years. But, Allen had admitted to a
counselor that he was trying to modify his behavior because he
was hoping to be released soon. Nevertheless, in his written
report, in response to the question “[i]f . . . Allen were
released to the community, would he pose a threat to the health
and safety of others through sexually violent behavior,” Dr.
Foley stated, “Based on an actuarial assessment, . . . Allen is
[and] includes that person into a group who is know[n] to have
recidivated at a particular level.”
29
less than likely to perpetrate sexually violent or predatory
acts.” The referenced actuarial assessment was the Static-99,
the assessment that measures only re-conviction rates and the
only one used by Dr. Foley to reach the stated conclusion.
Finally, although Dr. Boggio and Dr. Foley had differing
opinions about whether Allen is psychopathic based on the
results of the Hare Psychopathy Checklist, Allen scored in
approximately the 93rd percentile on Factor 1 in that test,
meaning that he has a high measure for callousness, lack of
remorse, and inability to put himself in the place of a victim
and think about that person before acting. On Factor 2, which
measures antisocial lifestyle, Allen was in approximately the
74th percentile.
This evidence demonstrates that the statutory requirements
for the civil commitment of sexually violent predators, Code
§§ 37.1-70.1 through –70.19, do not ask more of mental health
professionals than they can provide. So, where does that leave
us in this case? We have two experts who agreed about many
aspects of Allen’s personality disorder and its effect on him.
But, they disagreed about whether Allen is likely to commit
sexually violent offenses upon release from incarceration. Dr.
Foley’s opinion that Allen was not likely to do so, however,
30
focused on the 15-year risk of Allen’s being re-convicted for
engaging in sexually violent acts. In other words, Dr. Foley’s
testimony and report did not encompass all the factors,
primarily the lifetime risk of re-offending, that must be
addressed to determine whether Allen is a sexual predator under
Code § 37.1-70.1.
The only expert evidence that was complete in all respects
came from Dr. Boggio. His testimony and report provide clear
and convincing evidence that Allen is likely to engage in
sexually violent acts. Dr. Boggio’s opinion to that effect is
borne out by the fact that Allen, within a few days of being
released on parole, not only was in possession of a pornographic
magazine but also was in the company of a young woman with
Down’s Syndrome who called Allen her “boyfriend.”
For these reasons, I conclude that the trial court’s
judgment is without evidence to support it. See Code § 8.01-
680. I therefore respectfully concur in part and dissent in
part and would reverse the judgment of the trial court.
31