Commonwealth v. Proffitt

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 151514 JUSTICE WILLIAM C. MIMS
October 27, 2016
BRADY ARNOLD PROFFITT, JR.

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
David B. Carson, Judge

In this appeal, we consider whether the circuit court abused its discretion by excluding

the testimony of two witnesses in a trial under the Civil Commitment of Sexually Violent

Predators Act (“SVPA”), Code §§ 37.2-900 et seq.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

On August 12, 2014, the Commonwealth initiated proceedings under the SVPA to

involuntarily commit Brady Arnold Proffitt, Jr. as a sexually violent predator. The matter

proceeded to a jury trial, where the Commonwealth introduced into evidence an order convicting

Proffitt of rape in December 2012. The Commonwealth’s first witness was Dr. Doris Nevin, a

clinical psychologist, whom the circuit court qualified as an expert “in clinical psychology and in

the diagnosis, risk assessment and treatment of sex offenders.” Dr. Nevin testified that she

“complete[d] a sexually violent predator evaluation” of Proffitt. In the course of this evaluation,

she met with Proffitt and reviewed “a wide variety of documents,” including his “criminal

record, the institutional record at the facility where he was housed, [and] his medical records.”

Significantly, Dr. Nevin reviewed a police report given by M.J., the victim of the 2012 rape.

Dr. Nevin also reviewed another police report given by A.G. in November 2007 that

resulted in a rape indictment against Proffitt. That charge was nolle prossed. Therefore, Dr.

Nevin did not rely on the details of the police report when formulating her opinion.

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 Dr. Nevin diagnosed Proffitt with sexual sadism disorder, antisocial personality disorder,

and alcohol use disorder. She explained that a diagnosis of sexual sadism disorder requires two

diagnostic criteria:

A. Over a period of at least 6 months, [the individual has]
recurrent and intense sexual arousal from the physical or
psychological suffering of another person, as manifested by
fantasies, urges, or behaviors[; and]

B. The individual has acted on these sexual urges with a
nonconsenting person, or the sexual urges or fantasies cause
clinically significant distress or impairment in social,
occupational, or other important areas of functioning.

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 695

(5th ed. 2013) (emphasis added) (“DSM-V”). Dr. Nevin testified that “in [Proffitt’s] case,” there

had been “at least one convicted behavior, in which [he had] . . . gone out and has gotten

pleasure . . . in sexually hurting” a nonconsenting person. Additionally, Dr. Nevin administered

the Multiphasic Sex Inventory II (“MSI-II”) to Proffitt in May 2014, and his responses indicated

that he was having sadistic fantasies at that time. Dr. Nevin opined that Proffitt was “a sexually

violent predator” and “at risk to commit new contact sex offenses if he were released . . . in the

absence of treatment.”

After Dr. Nevin’s testimony, the Commonwealth attempted to call A.G. and M.J. as

witnesses. Proffitt objected that A.G.’s testimony was not relevant because Dr. Nevin did not

rely on the 2007 incident in preparing her opinion. Proffitt argued that her testimony would

serve no purpose “other than to incense and charge the jury emotionally.” Similarly regarding

M.J., Proffitt argued that his conviction was already in evidence, and her testimony would only

“throw[] fuel on that fire.” The Commonwealth responded that testimony by A.G. and M.J. was

“relevant, because [it] showed [Proffitt’s] . . . M.O., or his scheme.” The Commonwealth also

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asserted that “the details” of the incidents would allow Dr. Nevin to “strengthen” her diagnoses

and opinion.

The circuit court granted Proffitt’s motion to exclude the witnesses:

With [Proffitt] conceding the first prong of the test, the only two
prongs that are at issue are the diagnosis of either the mental
abnormality or the personality disorder, which [Dr. Nevin has]
testified to, and the likelihood to re-offend, which she’s testified to.
Their testimony, I cannot see how that would do anything, it would
inflame the jury, perhaps, but I don’t think it could add to the . . .
to the relevant issue or anything relevant to the two issues that
remain.

The Commonwealth then made a detailed proffer of the testimony expected to be given by A.G.

and M.J. A.G. would testify that in November 2007, Proffitt convinced her to get into his

vehicle and drove to “pretty isolated” “back roads.” He told A.G. that she “needed to have sex

with him or spend the night at his home, or else, he was just going to . . . drop her off there.”

A.G. refused, but Proffitt “pulled her out of the truck” and had “sexual intercourse with her

against her will and by force.” A.G. contacted the police, and Proffitt was indicted for rape, but

this charge was nolle prossed.

The Commonwealth then proffered that M.J. would testify “to a very similar pattern of

behavior” in December 2012. Proffitt convinced M.J. to get into his car and took her “on the

back roads.” He told her that “she needed to do him a favor” and to “take her pants off.” After

she complied, Proffitt “raped her against her will by force, and [M.J.] tried to fight him off.” The

Commonwealth noted that these two incidents occurred five years apart.

Finally, the Commonwealth proffered that after “Dr. Nevin heard the testimony, or if it

was presented to her in a hypothetical,” she could then “take the 2007 event as true” to

“strengthen her diagnoses for the sexual sadism disorder and . . . antisocial personality disorder.”

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 After deliberation, the jury found that the evidence had failed to prove that Proffitt was a

sexually violent predator, and the Commonwealth moved to set aside the verdict. The circuit

court denied the motion and entered a final order in accordance with the jury’s verdict. We

awarded the Commonwealth this appeal.

II. ANALYSIS

In its sole assignment of error, the Commonwealth contends that the circuit court abused

its discretion by excluding the testimony of A.G. and M.J. as irrelevant, unfairly prejudicial, and

cumulative. Proffitt responds that the excluded evidence would not provide any new information

that Dr. Nevin had not previously reviewed and incorporated into her opinion. Rather, it would

cause unfair prejudice by inflaming the jury’s emotions. Accordingly, Proffitt argues that the

circuit court did not abuse its discretion.

A. Standard of Review

“[W]e review a trial court’s decision to admit or exclude testimony using an abuse of

discretion standard.” Harman v. Honeywell Int’l, Inc., 288 Va. 84, 97, 758 S.E.2d 515, 523

(2014) (citation omitted).

An abuse of discretion can occur in three principal ways: when a
relevant factor that should have been given significant weight is
not considered; when an irrelevant or improper factor is considered
and given significant weight; and when all proper factors, and no
improper ones, are considered, but the court, in weighing those
factors, commits a clear error of judgment.

Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137

(2011) (internal quotation marks and alteration omitted).

B. Relevance and Materiality

Under Virginia Rule of Evidence 2:401, “‘[r]elevant evidence’ means evidence having

any tendency to make the existence of any fact in issue more probable or less probable than it

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would be without the evidence.” The scope of relevant evidence in Virginia is quite broad, as

“[e]very fact, however remote or insignificant, that tends to establish the probability or

improbability of a fact in issue is relevant.” Virginia Elec. & Power Co. v. Dungee, 258 Va. 235,

260, 520 S.E.2d 164, 179 (1999); see also Charles E. Friend & Kent Sinclair, The Law of

Evidence in Virginia § 6-1, at 342 (7th ed. 2012) (“If [evidence] has any probative value,

however slight – i.e., if it has any tendency whatsoever to prove or disprove the point upon

which it is introduced – it is relevant.”).

“While evidence may be relevant in that it tends to establish the proposition for which it

was offered, in order to be admissible, it must also be material . . . .” Brugh v. Jones, 265 Va.

136, 139, 574 S.E.2d 282, 284 (2003). To be material, “the evidence [must] tend[] to prove a

matter that is properly at issue in the case.” Id. Indeed, this materiality requirement is built into

Rule 2:401’s language, which states that the evidence must be probative of a “fact in issue.”

“Strictly speaking, therefore, evidence must be both relevant and material to be admissible, and it

is inadmissible if it fails to satisfy either of these criteria.” Friend & Sinclair, supra, § 6-1, at

342 (citations omitted).

Code § 37.2-900 defines “[s]exually 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.

The Commonwealth bears the burden of proving by clear and convincing evidence both of the

above elements. Code § 37.2-908(C); McCloud v. Commonwealth, 269 Va. 242, 257, 609

S.E.2d 16, 24 (2005). By definition, therefore, these are the material issues in the present case,

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and “evidence that tends to prove or is otherwise pertinent to either of those [issues] is relevant.”

McCloud, 269 Va. at 257, 609 S.E.2d at 24.

C. Probative Value Versus Unfair Prejudice

While generally “[a]ll relevant evidence is admissible,” Va. R. Evid. 2:402, “[r]elevant

evidence may be excluded if . . . the probative value of the evidence is substantially outweighed

by . . . the danger of unfair prejudice.” Va. R. Evid. 2:403(a)(i) (emphasis added). It is well-

settled that “‘[t]he responsibility for balancing the competing considerations of probative value

and prejudice rests in the sound discretion of the trial court.’” Ortiz v. Commonwealth, 276 Va.

705, 715, 667 S.E.2d 751, 757-58 (2008) (quoting Spencer v. Commonwealth, 240 Va. 78, 90,

393 S.E.2d 609, 617 (1990)). When balancing these considerations, it is of course true that “all

probative direct evidence generally has a prejudicial effect to the opposing party.” Lee v.

Spoden, 290 Va. 235, 251, 776 S.E.2d 798, 806 (2015) (citing Powell v. Commonwealth, 267 Va.

107, 141, 590 S.E.2d 537, 558 (2004)). Thus, the relevant question is “whether the probative

value of the evidence is substantially outweighed by its unfair or unduly prejudicial effects.” Id.

at 252, 776 S.E.2d at 807 (citing Gamache v. Allen, 268 Va. 222, 227, 601 S.E.2d 598, 601

(2004)).

“‘[U]nfair prejudice’ refers to the tendency of some proof to inflame the passions of the

trier of fact, or to invite decision based upon a factor unrelated to the elements of the claims and

defenses in the pending case.” Id. at 251, 776 S.E.2d at 807. The term

speaks to the capacity of some concededly relevant evidence to
lure the factfinder into declaring guilt [or liability] on a ground
different from proof specific to the [case elements]. “Unfair
prejudice” within its context means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily,
an emotional one.

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Id. at 251-52, 776 S.E.2d at 807 (quoting Old Chief v. United States, 519 U.S. 172, 180 (1997)

(construing the federal analogue to Va. R. Evid. 2:403)).

D. The Circuit Court Abused Its Discretion

It is not contested that Proffitt was convicted of a sexually violent offense, satisfying the

first statutory prong. The remaining issue was whether, “because of a mental abnormality or

personality disorder, [Proffitt] finds it difficult to control his predatory behavior, which makes

him likely to engage in sexually violent acts.” Code § 37.2-900. The circuit court abused its

discretion by holding that the excluded testimony was not relevant to this material issue.

Likewise, it was not unfairly prejudicial when balanced against its probative value. 1

First, under Code § 37.2-900, the Commonwealth was required to prove that Proffitt had

a mental abnormality or personality disorder. It relied, in part, on Dr. Nevin’s opinion that

Proffitt suffered from sexual sadism disorder. As Dr. Nevin explained, to be diagnosed with this

disorder under the DSM-V, an individual must, “[o]ver a period of at least 6 months,” have

“recurrent and intense sexual arousal from the physical or psychological suffering of another

person, as manifested by fantasies, urges, or behaviors.” DSM-V, supra, at 695 (emphasis

added).

Dr. Nevin opined that the six month requirement was satisfied after considering Proffitt’s

behavior from the rape of M.J. in 2012 along with his sadistic fantasies that were demonstrated

through the MSI-II in May 2014. Notably, Dr. Nevin did not rely on the 2007 incident when she

diagnosed Proffitt. If A.G.’s testimony had been admitted, however, Dr. Nevin could have

included it in her diagnosis and opinion. Not only could this evidence have strengthened her
1
Narrowly read, the circuit court’s ruling was limited to relevance. However, the record
reflects that the court was concerned about unfair prejudice. Both parties briefed and argued this
issue and neither objected to its consideration. Since it is likely to arise on remand, we analyze it
herein. See, e.g., Cain v. Lee, 290 Va. 129, 136, 772 S.E.2d 894, 897 (2015) (citing Harman,
288 Va. at 95-96, 758 S.E.2d at 522).

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diagnosis, but it could have demonstrated that Proffitt’s sexual sadism disorder was more

extensive than the evidence otherwise established, with a specific example of sexually sadistic

behavior dating back to 2007.

Additionally, the excluded testimony was probative of whether Proffitt finds it difficult to

control his predatory behavior and is likely to commit sexually violent offenses in the future.

The United States Supreme Court has recognized, in the context of a sexually violent predator

civil commitment case, that “‘previous instances of violent behavior are an important indicator of

future violent tendencies.’” Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (quoting Heller v.

Doe, 509 U.S. 312, 323 (1993)); see also McCloud, 269 Va. at 257-58, 609 S.E.2d at 24

(“Beyond question, evidence that [the defendant] 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 excluded testimony demonstrates two instances where Proffitt engaged in

predatory and sexually violent behavior. And as “previous instances of violent behavior are an

important indicator of future violent tendencies,” Hendricks, 521 U.S. at 358, the testimony of

each witness, standing alone, was inherently probative of whether Proffitt is likely to engage in

sexually violent acts in the future. See Schall v. Martin, 467 U.S. 253, 278 (1984) (“[A]

prediction of future criminal conduct is ‘an experienced prediction based on a host of variables.’”

(quoting Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 16 (1979))).

When the similar nature and corresponding details of the two incidents are considered

together, they are highly probative of Proffitt’s difficulty in controlling his predatory behavior

and likelihood of re-offending. The mirror-image nature of each incident gives insight into

Proffitt’s mental state and even demonstrates a strategy he repeatedly implemented to satisfy his

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predatory impulses. The details of the incidents show a pattern of predatory behavior. Not only

does this pattern indicate that Proffitt has been unable control his predatory urges, but it also

gives reason to conclude that he may be unable to do so in the future.

E. The Testimony Also Has Corroborative Value

Furthermore, the testimony of A.G. and M.J. is corroborative of Dr. Nevin’s opinion.

Corroborative evidence is such evidence as tends in some degree,
of its own strength and independently, to support some essential
allegation or issue . . . testified to by the witness whose evidence is
sought to be corroborated . . .; and such corroborating evidence
must, of itself, without the aid of any other evidence, exhibit its
corroborative character by pointing with reasonable certainty to the
allegation or issue which it supports, and such evidence will not be
material unless the evidence sought to be corroborated itself
supports the allegation or the point in issue.

Davies v. Silvey, 148 Va. 132, 138, 138 S.E. 513, 515 (1927) (internal quotation marks omitted).

Dr. Nevin concluded that Proffitt was a sexually violent predator as defined by Code § 37.2-900.

She testified that he was at risk to commit sexually violent offenses if released without treatment.

As discussed above, the excluded testimony independently supports these conclusions. It is,

therefore, relevant corroborative evidence.

F. Balancing Probative Value and Prejudice

Thus, the excluded testimony was relevant, and the circuit court erred by determining that

it was not. Our review of the circuit court’s holding, however, does not end there. As noted

above, when “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.” McCloud, 269 Va. at 257, 609 S.E.2d at 24 (citing Dandridge v.

Marshall, 267 Va. 591, 596, 594 S.E.2d 578, 581 (2004)). Under this balancing test, relevant

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evidence will only be excluded when its probative value is “substantially outweighed” by its

unfair prejudice. Va. R. Evid. 2:403(a)(i).

In conducting this balancing test, the circuit court concluded that the testimony might

“inflame” the jury. On the other side of the scale, the circuit court concluded that the testimony

would not “add to the . . . relevant issue or anything relevant to the two issues that remain.” As

demonstrated above, however, the circuit court did not properly evaluate the probative value.

Indeed, the excluded testimony was highly probative direct evidence tending to establish the

material issues remaining before the jury. As the circuit court did not properly evaluate this

probative value, its balancing analysis was flawed.

“[A]ny probative direct evidence generally has a prejudicial effect to the opposing party.”

Lee, 290 Va. at 251, 776 S.E.2d at 806. In a proceeding under the SVPA, the Commonwealth is

necessarily attempting to demonstrate that the respondent has a “mental abnormality or

personality disorder” that makes it difficult for him to control his “predatory behavior,” thereby

making him “likely to engage in sexually violent acts.” Code § 37.2-900. The excluded

testimony, however, was not unfairly prejudicial. Unfairly prejudicial evidence “‘lure[s] the

factfinder into declaring guilt [or liability] on a ground different from proof specific to the [case

elements].’” Lee, 290 Va. at 252, 776 S.E.2d at 807 (quoting Old Chief, 519 U.S. at 180). The

excluded testimony, on the other hand, would directly establish the specific elements of the case.

See Powell v. Commonwealth, 267 Va. 107, 141, 590 S.E.2d 537, 558 (2004) (“[D]irect evidence

. . . is rarely subject to exclusion on the ground that it would be unduly prejudicial.”).

It is true that under Virginia Rule of Evidence 2:404(b), “evidence of other crimes,

wrongs, or acts is generally not admissible to prove the character trait of a person in order to

show that the person acted in conformity therewith.” (Emphasis added). In the present case,

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however, the material issue is not whether Proffitt committed a specific act at a particular time.

Rather it is whether, because of a mental abnormality or personality disorder, he finds it difficult

to control his predatory behavior, which makes him likely to engage in sexually violent acts in

the future. This is a broader question that requires proof of a character trait as a required

element. It is therefore proper to prove this character trait by evidence of specific instances of

conduct. Va. R. Evid. 2:405(b).

Thus, the unfair prejudice, if any, did not substantially outweigh the probative value. In

fact, the converse is true. “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.”

McCloud, 269 Va. at 258, 609 S.E.2d at 24.

G. The Testimony was not Cumulative

Proffitt argues that the evidence was appropriately excluded because it was needlessly

cumulative of Dr. Nevin’s testimony. 2 “Relevant evidence may be excluded if . . . the evidence

is needlessly cumulative.” Va. R. Evid. 2:403(b). We do “not . . . look at the effect to be

produced” by evidence when considering whether it is cumulative, but rather to the “kind and

character of the facts.” St. John v. Alderson, 73 Va. (32 Gratt.) 140, 143 (1879). Indeed, “[t]he

facts may tend to prove the same proposition, and yet be so dissimilar in kind as to afford no

2
As a threshold matter, Proffitt argues that, under the doctrine that a party may not
“approbate and reprobate,” the Commonwealth cannot argue, on appeal, that the testimony was
not cumulative. See Hurley v. Bennett, 163 Va. 241, 252, 176 S.E. 171, 175 (1934) (“A party
cannot in the course of the same litigation occupy inconsistent positions.”). The record here,
however, does not support the inference that the prosecution took inconsistent positions. During
a break in Dr. Nevin’s testimony, the Commonwealth told the circuit court judge that she didn’t
“anticipate” her “two other witnesses” taking that long. She specified that the remaining
witnesses would be “just more of the same.” Proffitt argues that this statement conceded that the
testimony of A.G. and M.J. is cumulative of Dr. Nevin’s testimony. This argument fails,
however, because the Commonwealth’s statement cannot be fairly construed as electing a
position – it was not made in the context of any argument, nor was it a request for the circuit
court to take some specified action.

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preten[s]e for saying they are cumulative.” Id.; see also Egan v. Butler, 290 Va. 62, 73, 772

S.E.2d 765, 771 (2015) (evidence that was “sufficiently different in kind and degree with such

admitted evidence” was not “needlessly cumulative”). “Cumulative testimony is repetitive

testimony that restates what has been said already and adds nothing to it. It is testimony of the

same kind and character as that already given.” Massey v. Commonwealth, 230 Va. 436, 442,

337 S.E.2d 754, 758 (1985) (citing St. John, 73 Va. (32 Gratt.) at 143). A party may offer

multiple forms or sources of evidence to establish a matter, and the fact that offered evidence is

“cumulative to some extent” will not preclude its consideration by the trier of fact. Id. (citing

Lacks v. Commonwealth, 182 Va. 318, 324, 28 S.E.2d 713, 715 (1944)).

The only overlap between Dr. Nevin’s testimony and that of A.G. and M.J. was in the

effect to be produced – proving the elements of Code § 37.2-900. The kind and character of the

testimony was substantially different. While Dr. Nevin examined the details of the incidents as

revealed in the police reports, she did not testify about these details when giving her opinion. In

fact, she did not even rely upon the incident involving A.G. in forming her opinion. The

excluded testimony, on the other hand, would have revealed the similar nature of both incidents,

which was independently probative of Proffitt’s predatory behavior and likelihood of re-

offending. Thus, the witnesses would provide direct testimony that also corroborates Dr.

Nevin’s testimony, not repetitive iterations of what was already in evidence. See Massey, 230

Va. at 442, 337 S.E.2d at 758 (“[C]orroborative testimony and cumulative testimony are not the

same thing.”).

B. Harmless Error

“Every man is entitled to a fair trial and to nothing more, and so . . . out of the imperative

demands of common sense, has grown the doctrine of harmless error.” Oliver v. Commonwealth,

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151 Va. 533, 541, 145 S.E. 307, 309 (1928); see also Blevins v. Commonwealth, 267 Va. 291,

297, 590 S.E.2d 365, 368 (2004) (“a litigant is entitled to a fair, but not perfect, trial, as there are

no perfect trials” (citation omitted)). Code § 8.01-678, Virginia’s harmless error statute,

provides that

[w]hen it plainly appears from the record and the evidence given at
the trial that the parties have had a fair trial on the merits and
substantial justice has been reached, no judgment shall be arrested
or reversed . . . (2) For any other defect, imperfection, or omission
in the record, or for any error committed on the trial.

Code § 8.01-678 has been applied in both criminal and civil cases. See, e.g., Greenway v.

Commonwealth, 254 Va. 147, 154, 487 S.E.2d 224, 228 (1997). “In a civil case, the erroneous

exclusion of evidence is reversible error when the record fails to show plainly that the excluded

evidence could not have affected the verdict.” Barkley v. Wallace, 267 Va. 369, 374, 595 S.E.2d

271, 274 (2004). “Thus, we consider the potential effect of the excluded evidence in light of all

the evidence that was presented to the jury.” Id.

After examining the excluded evidence in light of the entire record, we hold that the

circuit court’s error was not harmless. The Commonwealth’s entire case was presented by one

witness – Dr. Nevin. Not only would the excluded testimony have corroborated Dr. Nevin’s

opinion, but A.G.’s testimony specifically would have provided additional facts that Dr. Nevin

could have relied upon to strengthen her diagnosis regarding the extent and length of Proffitt’s

sexual sadism disorder.

Notably, the record reveals that Proffitt’s trial counsel effectively attacked Dr. Nevin’s

diagnosis of sexual sadism disorder during cross-examination. He challenged how Proffitt’s

responses on the MSI-II specifically revealed any fantasies, urges, or behaviors that Dr. Nevin

could have relied upon to support her diagnosis. Then, during closing arguments to the jury, he

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challenged whether the MSI-II provided specific enough information for Dr. Nevin to rely upon

to support her diagnosis, stating:

[Dr. Nevin] had very little detail and very little explanation
regarding the specific questions asked that give rise to the certain
findings. I wanted to know, what answer did [Proffitt] give you
[on the MSI-II] that made you think he was a sexual sadist? I
don’t know. That’s her answer. That’s her report, and when you
balance that answer with that diagnosis to a clear and convincing
standard, they’re not there. They’re not anywhere near there.

The addition of A.G’s testimony in particular could have negated this argument significantly.

Dr. Nevin would not have needed to rely solely on Proffitt’s responses on the MSI-II to sustain

her diagnosis, although she still could have. Rather, she could also have pointed to two concrete

incidents where Proffitt demonstrated sexually sadistic behavior over a five year period.

Additionally, during closing argument, Proffitt’s counsel argued that “I don’t think any of

their evidence came close to proving that [Proffitt] . . . is so likely to commit a sexually violent

offense that he should be labeled a predator.” The excluded testimony, however, was highly

probative of Proffitt’s predatory behavior and likelihood of committing sexually violent offenses

upon release.

Thus, we conclude that the error was not harmless because “the record fails to show

plainly that the excluded evidence could not have affected the verdict.” Id.

III. CONCLUSION

For the foregoing reasons, we reverse the judgment of the circuit court and remand for

further proceedings consistent with this opinion.

Reversed and remanded.

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