Assignment 2: Critical Assessment of Court Case
\nIt is important to understand the impact an expert testimony may have in the ultimate decision made by a court. In addition, it is helpful for practitioners of forensic psychology to be able to read and understand legal cases.
\nTasks:
\nClick here to review the case Commonwealth of Virginia v. Allen (2005).
\nThe case describes an appellate legal opinion or court decision involving expert witness testimony. When a case is appealed, it goes to an appellate or to a higher court. The appellate court then reviews the findings of the lower court, which in this case was the trial court. The appellate court offered the following two opinions:<\/p>\n
The first opinion (Commonwealth of Virginia v. Allen, 2005, pp. 1\u201324) is the majority opinion and is the one that counts.
\nThe second opinion (Commonwealth of Virginia v. Allen, 2005, pp. 24\u201331) is an opinion filed by a minority of judges who concurred (agreed) in part and dissented (disagreed) in part with the majority of the judges who ruled.<\/p>\n
After reading the appellate legal opinion, write a 2- to 3-page paper addressing the following:<\/p>\n
Discuss whether either of the expert witnesses in this case acted unethically. Support your opinion with the relevant APA or specialty ethical guidelines.
\nIndicate whether you agree with the majority decision or the minority concurring or dissenting opinion. Explain why.<\/p>\n
The paper should be in APA style.
\n\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Reading \u00a0material
\n\u00a0\u00a0\u00a0\u00a0
\nPresent: All the Justices COMMONWEALTH OF VIRGINIA*\u00a0
\nv. \u00a0Record No. 041454
\nRICHARD BRYAN ALLEN<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0OPINION BY
\nJUSTICE LAWRENCE L. KOONTZ, JR.
\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0March 3, 2005<\/p>\n
\u00a0
\n\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Alfred D. Swersky, Judge Designate<\/p>\n
\u00a0\u00a0\u00a0\u00a0Pursuant to Code \u00a7 37.1-70.6(A), the Commonwealth
\npetitioned the Circuit Court of the City of Alexandria to
\ncivilly commit Richard Bryan Allen as a sexually violent
\npredator. \u00a0Following a hearing, the trial court sitting without
\na jury determined that the Commonwealth had not met its burden
\nof proving by clear and convincing evidence that Allen is a
\nsexually violent predator. \u00a0Accordingly, the trial court
\ndismissed the Commonwealth\u2019s petition. \u00a0The Commonwealth appeals
\nfrom this judgment, contending that the trial court erred in
\nadmitting the testimony of Allen\u2019s expert witness, a
\npsychologist who is not licensed to practice in Virginia. \u00a0The
\nCommonwealth further contends that the trial court erred in
\nfinding that the Commonwealth had not met its burden of proof.<\/p>\n
* In the trial court this case was styled \u201cJerry W. Kilgore, Attorney General of Virginia, ex rel. Commonwealth of Virginia v. Richard Bryan Allen.\u201d 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).\u00a0
\n\u00a0\u00a0
\n\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0BACKGROUND
\n \u00a0\u00a0\u00a0\u00a0On January 19, 1983, Allen was convicted of the aggravated<\/p>\n
sexual battery of an eight-year-old girl and a nine-year-old
\ngirl. \u00a0Allen was sentenced to ten years\u2019 imprisonment for each
\noffense, with the sentences to run consecutively.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Allen was released on parole on September 13, 2001. \u00a0Within
\ndays of his release, however, Allen violated the conditions of
\nhis parole and was returned to prison to serve the remainder of
\nhis sentence. \u00a0On July 9, 2003, as required by Code \u00a7 37.1-
\n70.4(C), the Director of the Virginia Department of Corrections
\nnotified the Commitment Review Committee (CRC) that Allen, who
\nwas scheduled to be released from prison on September 14, 2003,
\nwas subject to review for commitment because he was incarcerated
\nfor a sexually violent offense and had been identified through a
\npreliminary screening test as being likely to re-offend. \u00a0As
\nrequired by Code \u00a7 37.1-70.5(B), the CRC referred Allen to Dr.
\nRonald M. Boggio, Ph.D., a licensed clinical psychologist, for
\nAssessment. \u00a0Following receipt of Dr. Boggio\u2019s Assessment
\nreport, the CRC completed its assessment of Allen and, on August
\n7, 2003, forwarded to the Attorney General a recommendation that<\/p>\n
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\n\u00a0\u00a0
\nthe Commonwealth seek to have Allen committed to a secure mental
\nhealth facility as a sexually violent predator.<\/p>\n
\u00a0\u00a0\u00a0\u00a0On August 14, 2003, the Commonwealth filed in the trial
\ncourt a petition for the civil commitment of Allen as a sexually
\nviolent predator. \u00a0The trial court appointed counsel to
\nrepresent Allen, Code \u00a7 37.1-70.2, and, upon Allen\u2019s motion,
\nordered that funds be provided for a mental health expert to aid
\nin Allen\u2019s defense, Code \u00a7 37.1-70.8. \u00a0Thereafter, the trial
\ncourt conducted a hearing as required by Code \u00a7 37.1-70.7. \u00a0The
\ntrial court determined that there was probable cause to believe
\nthat Allen is a sexually violent predator and ordered that Allen
\nbe held in custody until a full hearing on the Commonwealth\u2019s
\npetition could be conducted. \u00a0Although permitted by Code \u00a7 37.1-
\n70.9(B), neither Allen nor the Commonwealth requested a jury
\ntrial on the commitment petition.<\/p>\n
On December 12, 2003, the trial court conducted a trial on the Commonwealth\u2019s petition.1 The Commonwealth presented evidence from Carmen Baylor, the custodian of records for the Greensville Correctional Center where Allen had been\u00a0
\n1 Code \u00a7 37.1-70.9 requires that the trial be conducted within 90 days of the determination of probable cause under Code \u00a7 37.1-70.7. In a continuance order entered October 30, 2003, Allen waived his objection to the ninety-day requirement.\u00a0
\n3\u00a0
\n\u00a0\u00a0
\nincarcerated. 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\u00a0
\n\u00a0\u00a0\u00a0\u00a0Barbara Ward, a senior probation\/parole officer with the
\nAlexandria Adult Probation\/Parole Office testified for the
\nCommonwealth that she was assigned to supervise Allen\u2019s parole
\nfollowing his initial release from prison on September 13, 2001.
\nWard testified that she explained the rules of his parole to
\nAllen, and that he acknowledged his agreement to abide by them.
\nNonetheless, Allen was late for his next meeting with Ward on
\nSeptember 17, 2001 and failed to appear for the next subsequent
\nmeeting.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Ward testified she learned that Allen had been seen with a
\nyoung woman with Down\u2019s Syndrome who was referring to Allen as<\/p>\n
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\u2019s 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\u2019s petition to commit a prisoner as a sexually violent predator).\u00a0
\n4\u00a0
\n\u00a0\u00a0
\nher \u201cboyfriend.\u201d \u00a0After Allen was arrested for violating the
\nterms of his parole by failing to meet with Ward, Ward went to
\nAllen\u2019s room at the halfway house where he had been staying and
\ndiscovered that he had come into possession of a pornographic
\nmagazine.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Boggio, the psychologist who had performed the pre-
\nrelease Assessment of Allen for the CRC, testified as the
\nCommonwealth\u2019s mental health expert. \u00a0Dr. Boggio principally
\nbased his testimony upon the personal interview and tests he had
\nconducted during his Assessment of Allen. \u00a0Dr. Boggio testified
\nthat Allen recounted a lengthy history of behavioral problems
\nfrom an early age, including setting fires, police
\nconfrontations, and hitting other children and teachers. \u00a0Allen
\nwas suspended from the New York City public schools as a result
\nof his violence, and lived as a runaway for a period of time.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Boggio further testified that Allen bragged about the
\nextent of his violent behavior and expressed no remorse. \u00a0\u00a0Allen
\ntold Dr. Boggio that ever since Allen was a child he had been
\nknown for having a \u201ctemper problem\u201d and for being easily
\nangered. \u00a0When Allen was a teenager, he pulled a knife on a
\nfemale co-worker who referred to him with a racial slur.<\/p>\n
5\u00a0
\n\u00a0\u00a0
\n\u00a0\u00a0\u00a0\u00a0According to Dr. Boggio, Allen had a long history of
\npsychiatric care that began as a juvenile, including both in-
\npatient and out-patient treatment. \u00a0Allen was expelled for
\nfighting from the Commonwealth Center for Children &
\nAdolescents, then known as the DeJarnette Center, an acute care
\nmental health facility operated by the Virginia Department of
\nMental Health, Mental Retardation and Substance Abuse Services.
\nDr. Boggio also reviewed the pre-sentence investigation from
\nAllen\u2019s convictions for aggravated sexual battery, which
\nrevealed that his behavioral problems began at age four-and-a-
\nhalf, including disruptive and aggressive behavior, and later
\nincluded sexually inappropriate behavior. \u00a0Allen also reported
\n13 suicide attempts, beginning at age 13. \u00a0Dr. Boggio also
\ntestified that the official records indicated Allen had
\ndiagnoses of the depressive disorder spectrum as well as
\nantisocial personality disorder (APD) and polysubstance
\ndependence. \u00a0At least two of Allen\u2019s institutional charges were
\nfor possession or use of alcohol or illegal substances.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Allen reported to Dr. Boggio that his first sexual
\nexperience was intercourse with two girls when he was 16; one
\ngirl was between 11 and 13 years of age and the other was 13 or
\n14. \u00a0Allen also told Dr. Boggio that he had an on-going sexual<\/p>\n
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\n\u00a0\u00a0
\nrelationship with an eleven-year-old girl when he was seventeen.
\nAllen also claimed to have had a sexual relationship with the
\nmother of his two victims, and admitted that he had engaged in
\nhomosexual activity while in prison. \u00a0Allen claimed never to
\nhave been \u201cin love\u201d with anyone despite having had many
\ndifferent relationships.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Boggio testified that Allen claimed he thought his
\nnine-year-old victim was twelve, because she was \u201cvery
\ndeveloped.\u201d \u00a0He also claimed that the nine-year-old victim
\ninitiated the sexual encounter. \u00a0He denied having assaulted the
\neight-year-old victim. \u00a0Dr. Boggio found it important to note
\nthat Allen had no immediate post-abuse feelings about himself,
\nthe victims, or his behavior other than to deny involvement, and
\nthat Allen expressed no remorse for the victims. \u00a0Similarly,
\nAllen denied responsibility for the infractions he committed
\nwhile incarcerated.<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0Dr. Boggio diagnosed Allen with APD, dysthymic disorder,
\nand polysubstance dependence. \u00a0Dr. Boggio testified, reading
\nfrom the American Psychiatric Association, Diagnostic and
\nStatistical Manual of Mental Disorders, (4th ed. Revised text
\n2000), regarding APD:<\/p>\n
\u00a0\u00a0\u00a0\u00a0In order to meet this diagnosis, one has to have three
\n \u00a0\u00a0\u00a0\u00a0of the following: \u00a0Failure to conform to social norms<\/p>\n
7\u00a0
\n\u00a0\u00a0
\n\u00a0\u00a0\u00a0\u00a0with respect to lawful behaviors, as indicated by
\n \u00a0\u00a0\u00a0\u00a0repeatedly performing acts that are grounds for arrest
\n \u00a0\u00a0\u00a0\u00a0. . . deceitfulness, as indicated by repeated lying,
\n \u00a0\u00a0\u00a0\u00a0use of aliases, or conning others for personal profit
\n \u00a0\u00a0\u00a0\u00a0or pleasure . . . impulsivity or failure to plan ahead
\n \u00a0\u00a0\u00a0\u00a0. . . irritability and aggressiveness, as indicated by
\n \u00a0\u00a0\u00a0\u00a0repeated physical fights or assaults . . . reckless
\n \u00a0\u00a0\u00a0\u00a0disregard for the safety of self or others . . .
\n \u00a0\u00a0\u00a0\u00a0consistent irresponsibility, as indicated by repeated
\n \u00a0\u00a0\u00a0\u00a0failure to sustain consistent work behavior or honor
\n \u00a0\u00a0\u00a0\u00a0financial obligations . . . lack of remorse, as
\n \u00a0\u00a0\u00a0\u00a0indicated by being indifferent to or rationalizing
\n \u00a0\u00a0\u00a0\u00a0having hurt, mistreated, or stolen from another.
\n \u00a0\u00a0\u00a0\u00a0Additionally, the individual has to be at least 18
\n \u00a0\u00a0\u00a0\u00a0years of age and has evidence of conduct disorder with
\n \u00a0\u00a0\u00a0\u00a0onset before age 15.<\/p>\n
Dr. Boggio testified that Allen met all of these criteria, with
\nthe possible exception of failing to maintain a consistent work
\nhistory.<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0Based on tests he administered to Allen, Dr. Boggio
\ntestified that Allen has a composite IQ score of 103, plus or
\nminus 6 points, indicating that Allen is of average
\nintelligence. \u00a0Dr. Boggio also had Allen complete the Millon
\nClinical Multiaxial Inventory-III (MCMI-III). \u00a0Dr. Boggio
\ntestified that Allen\u2019s responses to the MCMI-III showed that he
\nhas longstanding personality defects with no coping mechanisms,
\nmeaning that Allen would repeat problem behaviors over and over
\nagain, despite the consequences.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Boggio also had Allen complete the Hare Psychopathy<\/p>\n
Checklist Revised (Hare), an instrument designed to measure
\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a08<\/p>\n
\u00a0\u00a0
\npsychopathic behaviors. \u00a0Allen\u2019s score on this test placed him
\nin approximately the 90th percentile of incarcerated
\nindividuals, suggesting a strong indication of a psychopathy to
\ntake advantage of and manipulate people without regard to their
\nfeelings or thoughts, and a tendency not to show remorse for
\nthis behavior. \u00a0Dr. Boggio found the results of the Hare test
\ncorrelated with all the things that Allen had said during their
\ninterview.<\/p>\n
Dr. Boggio also administered the Static-99, a test used to predict sex offender recidivism, to Allen. According to Dr. Boggio, Allen\u2019s 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\u00a0
\n3 Dr. Boggio explained that there is a difference between recidivism, that is the committing of a crime without regard to\u00a0
\n9\u00a0
\n\u00a0\u00a0
\nupon actuarial predictions and do not purport to satisfy
\ncompletely the issue the tester \u201cis being asked to predict.\u201d<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Boggio testified that in his opinion Allen is likely to
\nre-offend in the future because of an inability to control those
\nimpulses that arise because of his personality disorder. \u00a0Dr.
\nBoggio noted that Allen\u2019s lack of concern for others and his
\ntendency to act compulsively and without remorse make Allen much
\nmore likely to be a repeat offender because he fails to see the
\nimportance of respecting the rights of others.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Boggio did not diagnose Allen as a pedophile, but
\nopined that Allen has a tendency to act to satisfy his own needs
\nand a \u201cbelief that people can be manipulated and that people can
\nbe taken advantage of.\u201d \u00a0Dr. Boggio testified that this
\n\u201cpredatory behavior\u201d puts children as well as individuals with
\nimpaired cognitive functioning at risk because they are easily
\nmanipulated.<\/p>\n
\u00a0\u00a0\u00a0\u00a0In conclusion, Dr. Boggio testified that in his opinion
\nAllen needed in-patient treatment in a secure mental health
\nfacility. \u00a0He opined that out-patient treatment would not be
\nappropriate because Allen has had no sex offender treatment<\/p>\n
whether the subject is arrested and convicted, and reconviction,
\nthat is actually being convicted for an offense.<\/p>\n
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\n\u00a0\u00a0
\nwhile in prison, has no awareness that he needs help, was unable
\nto follow rules while on parole, and has a long history of not
\nbeing able to follow rules.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Timothy P. Foley, Ph.D., testified as an expert witness
\nfor Allen. \u00a0Dr. Foley is a psychologist licensed in Pennsylvania
\nand New Jersey. \u00a0Although not licensed to practice in Virginia,
\nDr. Foley contacted the Virginia Board of Psychology and
\nobtained permission to perform an Assessment of Allen in
\nVirginia.<\/p>\n
\u00a0\u00a0\u00a0\u00a0To establish Dr. Foley\u2019s qualifications as an expert, Allen
\nelicited testimony from Dr. Foley concerning his background and
\nexperience in the field of treating sexually violent persons.
\nDr. Foley testified that he had previously evaluated
\napproximately 250 sexually violent predators for the courts and
\nas a defense expert and had testified in over 200 such cases.
\nDr. Foley further testified that currently he is employed by
\nfederal district courts in both Pennsylvania and New Jersey to
\nassess and treat sexual offenders. \u00a0He previously was the
\nsupervisor of the sexual offender program at a state prison in
\nPennsylvania for two years. \u00a0Dr. Foley\u2019s curriculum vitae, which
\nwas admitted into evidence, showed that he is a member of the
\nAssociation for the Treatment of Sexual Abusers and has<\/p>\n
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\n\u00a0\u00a0
\npublished numerous articles concerning treatment of sexual
\noffenders. \u00a0Dr. Foley testified that he is familiar with the
\nstatutory standards that apply to proceedings for the commitment
\nof sexually violent predators in Virginia.<\/p>\n
\u00a0\u00a0\u00a0\u00a0The Commonwealth objected to Dr. Foley being qualified as
\nan expert witness, asserting that \u201che\u2019s not licensed in this
\nstate or familiar with the state standards.\u201d \u00a0The trial court
\noverruled the Commonwealth\u2019s objection.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Foley testified that he had reviewed Allen\u2019s
\ninstitutional file from the Department of Corrections and other
\nreports. \u00a0Dr. Foley also administered various tests to Allen
\nincluding the Minnesota Multiphasic Personality Inventory-2 and
\nthe Abel Screen. \u00a0Dr. Foley testified that the Abel Screen is a
\nvalid, reliable test to determine sexual preferences and
\nabnormal interests. \u00a0Dr. Foley concurred in Dr. Boggio\u2019s
\nconclusion that Allen was not a pedophile, but opined that he
\nhas a \u201csocially deviant\u201d interest in sexually mature underage
\nfemales. \u00a0Dr. Foley characterized this as \u201ca common finding
\namong heterosexual males.\u201d<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Foley administered a longer version of the Hare
\nPsychopathy Checklist to Allen. \u00a0Dr. Foley testified that Allen
\nreceived a prorated score of 26.7, which is not indicative of a<\/p>\n
12\u00a0
\n\u00a0\u00a0
\npsychopathic classification. \u00a0Dr. Foley testified that the most
\nrobust predictors of sexual offense recidivism are measured
\nsexual deviance and evidence of psychopathy, and that Allen
\nscored below the range of the psychopathy cutoff.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Foley testified that he also administered the Static-99
\nto Allen and that the results were comparable to those achieved
\nwhen Dr. Boggio administered that test. \u00a0While Dr. Foley agreed
\nwith Dr. Boggio\u2019s general assessment of the results of the
\nStatic-99 with regard to the likelihood that Allen would re-
\noffend, he characterized that result as meaning \u201cthere is less
\nthan half a chance that Allen would be a recidivist [after] 15
\nyears.\u201d \u00a0Dr. Foley further qualified his assessment of the
\nStatic-99 results by stating that the base population for the
\ntest were adults who \u201chad committed offenses as adults and had
\nbeen on the street for a period of time,\u201d whereas Allen had been
\na juvenile at the time of his original offenses and \u201chas never
\nbeen on the street as an adult.\u201d<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Foley agreed with Dr. Boggio\u2019s assessment that Allen
\nsuffers from APD. \u00a0Dr. Foley testified that while Allen\u2019s
\nantisocial personality traits \u201c[p]robably . . . will remain for
\nthe rest of [his] life,\u201d his \u201cpropensity to act them out will
\ndecrease with age.\u201d \u00a0Moreover, it was Dr. Foley\u2019s opinion that<\/p>\n
13\u00a0
\n\u00a0\u00a0
\nAllen \u201cdid not . . . suffer[] from an inability to control his
\nsexual impulses.\u201d \u00a0Dr. Foley testified that in his opinion
\nAllen\u2019s personality disorder does not predispose him to commit
\nsexually violent offenses.<\/p>\n
\u00a0\u00a0\u00a0\u00a0On rebuttal, Dr. Boggio testified that he disagreed with
\nDr. Foley\u2019s opinion regarding Allen\u2019s propensity to re-offend.
\nWhile Dr. Boggio agreed that Allen\u2019s propensity to act on his
\nsexual impulses would decrease, he opined that Allen would
\nremain at risk for re-offending throughout his life.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Boggio disagreed with Dr. Foley\u2019s use of the Abel
\nScreen as a predictor of sexual preferences and abnormal
\ninterests. \u00a0He testified that published reliability data suggest
\nthat the Abel Screen is not accurate. \u00a0Dr. Boggio further
\ntestified that several state and federal courts have held that
\nthe Abel Screen is not scientifically reliable.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Boggio also disagreed with Dr. Foley\u2019s assumption that
\npsychopathy is the most robust predictor of recidivism. \u00a0Dr.
\nBoggio opined that sexual deviance and antisocial lifestyle are
\nmore predictive of a person\u2019s future actions, and that
\npsychopathy is just one part of the equation.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Boggio reiterated his opinion that, in light of Allen\u2019s
\nAPD, his demonstrated history of antisocial offending, and his<\/p>\n
14\u00a0
\n\u00a0\u00a0
\nconvictions for predatory sexual offenses, Allen is likely to
\nre-offend in the future. \u00a0Dr. Boggio opined that this likelihood
\nis more than 50% based on all the actuarial data.<\/p>\n
\u00a0\u00a0\u00a0\u00a0In its summation, the trial court noted that \u201ceach of the
\nexperts [were] both well-qualified, both well-prepared, and
\nconvincing.\u201d \u00a0Thus, although it expressed \u201ca very, very
\ngeneralized fear of releasing Mr. Allen on the public,\u201d the
\ntrial court ruled that the Commonwealth had not proven by clear
\nand convincing evidence that Allen is likely to engage in
\nsexually violent acts in the future. \u00a0Accordingly, the trial
\ncourt dismissed the Commonwealth\u2019s petition to have Allen
\ncivilly committed as a sexually violent predator.<\/p>\n
\u00a0\u00a0\u00a0\u00a0On February 18, 2004, the Commonwealth filed a motion to
\nreconsider. \u00a0The Commonwealth renewed its objection to the trial
\ncourt\u2019s ruling permitting Dr. Foley to testify as an expert
\nwitness because he is not licensed to practice in Virginia. \u00a0The
\nCommonwealth further contended that Dr. Foley\u2019s Assessment of
\nAllen was based on \u201can incorrect standard\u201d that would require
\nproof that a prisoner is incapable of controlling his sexually
\nviolent impulses, rather than proof that a prisoner is likely to
\nre-offend.<\/p>\n
15\u00a0
\n\u00a0\u00a0
\n\u00a0\u00a0\u00a0\u00a0On March 24, 2004, the trial court entered an order denying
\nthe Commonwealth\u2019s motion to reconsider. \u00a0In that same order,
\nthe trial court reiterated its prior ruling that the
\nCommonwealth had not proven by clear and convincing evidence
\nthat Allen \u201cis a sexually violent predator within the meaning of
\nVirginia Code Section 37.1-70.1, et seq.\u201d \u00a0Accordingly, the
\ntrial court dismissed the Commonwealth\u2019s petition and ordered
\nthat Allen be unconditionally released. \u00a0This appeal followed.<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0DISCUSSION
\n \u00a0\u00a0\u00a0\u00a0This case, along with Townes v. Commonwealth, 269 Va. ___,<\/p>\n
___ S.E.2d ___ (2005) (today decided) and McCloud v.
\nCommonwealth, 269 Va. ___, ___ S.E.2d ___ (2005) (today
\ndecided), involves the procedures required to be followed in
\norder for the Commonwealth to have a prisoner who has been
\nconvicted of a sexually violent offense declared to be a
\nsexually violent predator and to have that prisoner
\ninvoluntarily committed to a secure mental health facility upon
\nhis release from prison. \u00a0Those procedures are set out in
\nChapter 2, Article 1.1 of Title 37.1, commonly referred to as
\nthe Sexually Violent Predators Act (SVPA). \u00a0Code \u00a7\u00a7 37.1-70.1
\nthrough 37.1-70.19. \u00a0We have reviewed those procedures in some<\/p>\n
16\u00a0
\n\u00a0\u00a0
\ndetail in McCloud and need not do so again here. \u00a0This case
\npresents issues not addressed in Townes or McCloud.<\/p>\n
We first address the Commonwealth\u2019s 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\u2019s motion for funds to employ Dr. Foley as an expert, Code \u00a7 37.1-70.8(A) (Supp. 2003) provided:4\u00a0
\n\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Any person who is the subject of a petition under
\n \u00a0\u00a0\u00a0\u00a0this article shall have, prior to trial, the right to
\n \u00a0\u00a0\u00a0\u00a0employ experts at his own expense to perform
\n \u00a0\u00a0\u00a0\u00a0examinations and testify on his behalf. \u00a0However, if a
\n \u00a0\u00a0\u00a0\u00a0person has not employed an expert and requests expert
\n \u00a0\u00a0\u00a0\u00a0Helpance, the judge shall appoint such experts as he
\n \u00a0\u00a0\u00a0\u00a0deems necessary to perform examinations and
\n \u00a0\u00a0\u00a0\u00a0participate in the trial on the person\u2019s behalf.<\/p>\n
4 In 2004, Code \u00a7 37.1-70.8(A) was amended and now requires that any expert appointed to Help a defendant \u201cshall have the qualifications required by subsection B of \u00a7 37.1-70.5.\u201d See Acts 2004, ch. 764. Code \u00a7 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 \u201ca licensed psychiatrist or a licensed clinical psychologist, designated by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.\u201d A further provision of the amended version of Code \u00a7 37.1-70.8(A) provides that a privately employed expert need only be \u201ca licensed psychiatrist or a licensed clinical psychologist.\u201d Because this amendment did not come into force until after Allen\u2019s trial, we express no opinion on its effect or validity.\u00a0
\n17\u00a0
\n\u00a0\u00a0
\n\u00a0\u00a0\u00a0\u00a0Where a statute designates express qualifications for an
\nexpert witness, the witness must satisfy the statutory criteria
\nin order to testify as an expert. \u00a0See Hinkley v. Koehler, 269
\nVa. 82, 87, 606 S.E.2d ___, ___ (2005); Perdieu v. Blackstone
\nFamily Practice Ctr., Inc., 264 Va. 408, 419, 568 S.E.2d 703,
\n709 (2002); Sami v. Varn, 260 Va. 280, 283, 535 S.E.2d 172, 174
\n(2000). \u00a0Nothing in Code \u00a7 37.1-70.8(A), as applicable at the
\ntime of Allen\u2019s trial, or elsewhere in the SVPA expressly
\nrequires or by implication suggests that a mental health expert
\nemployed or appointed to Help a prisoner must be licensed to
\npractice in Virginia. \u00a0In the absence of express statutory
\nrequirements for the qualification of an expert witness in this
\nparticular type of proceeding, we will apply the general rules
\napplicable to expert testimony in other civil cases. \u00a0See Code
\n\u00a7 8.01-401.3.<\/p>\n
\u00a0\u00a0\u00a0\u00a0The sole purpose of permitting expert testimony is to
\nHelp the trier of fact to understand the evidence presented or
\nto determine a fact in issue. \u00a0Id.; Santen v. Tuthill, 265 Va.
\n492, 498, 578 S.E.2d 788, 792 (2003); John v. Im, 263 Va. 315,
\n319, 559 S.E.2d 694, 696 (2002). \u00a0Generally, a witness is
\nqualified to testify as an expert when the witness possesses
\nsufficient knowledge, skill, or experience to make the witness<\/p>\n
18\u00a0
\n\u00a0\u00a0
\ncompetent to testify as an expert on the subject matter at
\nissue. \u00a0See Sami, 260 Va. at 284, 535 S.E.2d at 174; Noll v.
\nRahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979). \u00a0\u201cIn
\nessence, all that is necessary for a witness to qualify as an
\nexpert is that the witness have sufficient knowledge of the
\nsubject to give value to the witness\u2019s opinion.\u201d \u00a0Velazquez v.
\nCommonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002).
\nWithout question, Dr. Foley\u2019s education, employment experience,
\nand professional knowledge and skill with respect to the
\nidentification and treatment of sexually violent offenders
\nqualified him to render an opinion that would Help the trial
\ncourt.<\/p>\n
\u00a0\u00a0\u00a0\u00a0The Commonwealth contends, however, that the trial court
\nfurther erred in not rejecting Dr. Foley\u2019s testimony and
\ngranting the Commonwealth\u2019s motion to reconsider because his
\ntestimony was based on an improper standard, thus demonstrating
\nthat he lacked a sufficient appreciation of the requirements for
\nfinding that Allen is a sexually violent predator under the
\nSVPA. \u00a0We disagree.<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u201cThe admission of expert testimony is committed to the
\nsound discretion of the trial judge, and we will [reject] a
\ntrial court\u2019s decision only where that court has abused its<\/p>\n
19\u00a0
\n\u00a0\u00a0
\ndiscretion.\u201d \u00a0Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176,
\n178 (1992); see also Hinkley, 269 Va. at 91, 606 S.E.2d at ___.
\nSimilarly, when the admission of expert witness testimony is
\nchallenged in a post-trial proceeding, the determination whether
\nthat testimony was properly received is a matter committed to
\nthe trial court\u2019s discretion. \u00a0When the admissibility of the
\nexpert\u2019s testimony is subsequently challenged on appeal, that
\ntestimony must be viewed as a whole. \u00a0See Hussen v.
\nCommonwealth, 257 Va. 93, 99, 511 S.E.2d 106, 109 (1999).<\/p>\n
\u00a0\u00a0\u00a0\u00a0While the Commonwealth can point to isolated statements in
\nDr. Foley\u2019s testimony and in his written Assessment of Allen
\nthat do not track the precise language of the definition of a
\nsexually violent predator in the SVPA, it also is clear that Dr.
\nFoley was aware of that standard. \u00a0Indeed, in his written
\nAssessment Dr. Foley quotes language from Code \u00a7 37.1-70.1
\ndefining the standard almost verbatim. \u00a0Moreover, even if we
\nwere to agree with the Commonwealth that Dr. Foley\u2019s opinion
\nthat Allen does not meet the SVPA\u2019s definition of a sexually
\nviolent predator was based on a standard higher than that
\nrequired by the SVPA, the trial court could nonetheless consider
\nthe other evidence presented by Dr. Foley regarding Allen\u2019s
\nperformance on the various tests administered by Dr. Foley to<\/p>\n
20\u00a0
\n\u00a0\u00a0
\nmake 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\u2019s testimony and did not err in denying the Commonwealth\u2019s motion to reconsider.\u00a0
\n\u00a0\u00a0\u00a0\u00a0Next, the Commonwealth contends that the trial court erred
\nin determining that there was not clear and convincing evidence
\nthat Allen is a sexually violent predator who is likely to
\ncommit sexually violent acts in the future. \u00a0The Commonwealth
\nconcedes that the clear and convincing standard of proof places
\na heavy burden upon it. \u00a0Indeed, the Commonwealth\u2019s burden of
\nproving the necessity of involuntary civil confinement by clear
\nand convincing evidence arises from due process concerns and,
\nthus, is of constitutional dimension and not merely a statutory
\nelective. \u00a0See Addington v. Texas, 441 U.S. 418, 432-33 (1979).<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u201cClear and convincing evidence has been defined as \u2018that
\nmeasure or degree of proof which will produce in the mind of the
\ntrier of facts a firm belief or conviction as to the allegations<\/p>\n
5 On brief, the Commonwealth further argues that Dr. Foley\u2019s testimony should be rejected because he \u201cplaced great reliance on the Abel Screen, which . . . has not been peer reviewed and which has been rejected by the majority of courts as unreliable.\u201d 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.\u00a0
\n21\u00a0
\n\u00a0\u00a0
\nsought to be established. \u00a0It is intermediate, being more than a
\nmere preponderance, but not to the extent of such certainty as
\nis required beyond a reasonable doubt as in criminal cases. \u00a0It
\ndoes not mean clear and unequivocal.\u2019 \u201d \u00a0Fred C. Walker Agency,
\nInc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975)
\n(quoting Cross v. Ledford, 120 N.E.2d 118, 123 (Ohio 1954))
\n(emphasis omitted); see also Judicial Inquiry & Review
\nCommission v. Lewis, 264 Va. 401, 405, 568 S.E.2d 687, 689
\n(2002). \u00a0The Commonwealth asserts that the trial court erred in
\nadopting the view, which the Commonwealth contends was espoused
\nby Dr. Foley, that it was required to prove that Allen would be
\nunable to control his impulses toward sexually violent behavior,
\nrather than the appropriate standard, which requires it to prove
\nonly that Allen would likely re-offend. \u00a0While we agree with the
\nCommonwealth\u2019s contention regarding the appropriate standard of
\nproof, we do not agree that the trial court failed to apply that
\nstandard in assessing the evidence in this case.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Nothing in the trial court\u2019s conduct of the trial suggests
\nthat it was requiring the Commonwealth to prove that Allen would
\nbe unable to control his sexual impulses. \u00a0To the contrary, in
\nits summation the trial court expressly stated that \u201c[t]he
\nstandard here is whether or not Mr. Allen would be likely to<\/p>\n
22\u00a0
\n\u00a0\u00a0
\ncommit a sexually violent offense.\u201d \u00a0(Emphasis added). \u00a0This is
\nin accord with the standard prescribed by Code \u00a7\u00a7 37.1-70.1 and
\n37.1-70.9. \u00a0See McCloud v. Commonwealth, 269 Va. ___, ___, ___
\nS.E.2d ___, ___ (2005) (decided today).<\/p>\n
\u00a0\u00a0\u00a0\u00a0In urging this Court to reject the trial court\u2019s
\ndetermination that there was not clear and convincing evidence
\nthat Allen is likely to commit future sexually violent acts, the
\nCommonwealth promotes the testimony of its expert, Dr. Boggio,
\nwhile discounting that of Allen\u2019s expert, Dr. Foley. \u00a0In
\nessence, the Commonwealth desires this Court to reweigh the
\ntestimony of the two experts and to substitute our judgment for
\nthat of the trial court. \u00a0However, as in all civil cases, the
\njudgment of a trial court, sitting without a jury, is entitled
\nto the same weight as a jury verdict and will not be set aside
\nunless it appears that the judgment is plainly wrong or without
\nevidence to support it. \u00a0Code \u00a7 8.01-680. \u00a0When, as here, the
\nevidence \u201cpresented a \u2018battle of experts,\u2019 . . . we will defer
\nto the trial court\u2019s judgment of the weight and credibility to
\nbe given their testimony.\u201d \u00a0Board of Supervisors v. HCA Health
\nServices of Virginia, Inc., 260 Va. 317, 332, 535 S.E.2d 163,
\n171 (2000). \u00a0Thus, while we may share the obvious concern
\nexpressed by the trial court with respect to a \u201cgeneralized fear<\/p>\n
23\u00a0
\n\u00a0\u00a0
\nof releasing Mr. Allen on the public,\u201d we cannot say that the
\ntrial court\u2019s conclusion that the evidence did not rise to a
\nlevel of clear and convincing evidence that Allen would be
\nlikely to commit future acts of sexual violence is plainly wrong
\nor without evidence to support it. \u00a0Accordingly, we hold that
\nthe trial court did not err in determining that the Commonwealth
\nhad not met its burden of proof to establish that Allen is a
\nsexually violent predator as defined by Code \u00a7 37.1-70.1.<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CONCLUSION
\n \u00a0\u00a0\u00a0\u00a0For these reasons, we will affirm the judgment of the trial<\/p>\n
court dismissing the Commonwealth\u2019s petition to civilly commit
\nAllen as a sexually violent predator.<\/p>\n
Affirmed.\u00a0
\nJUSTICE KINSER, with whom JUSTICE LEMONS joins, concurring in
\npart and dissenting in part.<\/p>\n
\u00a0\u00a0\u00a0\u00a0I respectfully disagree with the majority\u2019s holding \u201cthat
\nthe trial court did not err in determining that the Commonwealth
\nhad not met its burden of proof to establish that [Richard
\nBryan] Allen is a sexually violent predator as defined by Code
\n\u00a7 37.1-70.1.\u201d \u00a0On appeal, the question is whether the trial
\ncourt\u2019s judgment is plainly wrong or without evidence to support
\nit. \u00a0Code \u00a7 8.01-680. \u00a0I conclude that it is without evidence to
\nsupport it.<\/p>\n
24\u00a0
\n\u00a0\u00a0
\n\u00a0\u00a0\u00a0\u00a0Contrary to the majority\u2019s description of the evidence,
\nthis case was not simply a \u201cbattle of experts.\u201d \u00a0And, the trial
\ncourt did not view it as such. \u00a0The trial court found both
\nexperts to be \u201cwell-qualified,\u201d \u201cwell-prepared,\u201d and
\n\u201cconvincing.\u201d \u00a0The court did not indicate that it placed greater
\nweight on the testimony of one expert over that of the other or
\nfound one to be more credible. \u00a0Instead, the court stated:<\/p>\n
\u00a0\u00a0\u00a0\u00a0I suspect what it gets down to is that this law has asked
\nmore of the mental health care professionals than they can
\ndeliver. \u00a0Dr. Foley said he didn\u2019t have a crystal ball. \u00a0Dr.
\nBoggio didn\u2019t say it, but he certainly implied he didn\u2019t have a
\ncrystal ball. \u00a0And I can assure you that I don\u2019t have a crystal
\nball.<\/p>\n
\u00a0\u00a0\u00a0\u00a0The trial court therefore concluded that the Commonwealth
\nhad not carried its burden of proving by clear and convincing
\nevidence that Allen would likely engage in sexually violent
\nacts.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Proof by clear and convincing evidence, however, does not
\nmean having a \u201ccrystal ball.\u201d \u00a0Instead, the term \u201cclear and
\nconvincing evidence\u201d has been defined as<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0that measure or degree of proof which will
\n \u00a0\u00a0\u00a0\u00a0produce in the mind of the trier of facts a firm
\n \u00a0\u00a0\u00a0\u00a0belief or conviction as to the allegations sought to
\n \u00a0\u00a0\u00a0\u00a0be established. It is intermediate, being more than a<\/p>\n
25\u00a0
\n\u00a0\u00a0
\nmere 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.\u00a0
\nFred 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\u2019n v. Lewis, 264 Va. 401, 405, 568 S.E.2d 687, 689 (2002).\u00a0
\n\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In order to prove Allen is a sexually violent predator
\nunder the provisions of Code \u00a7 37.1-70.1, the Commonwealth had
\nto establish by clear and convincing evidence that Allen \u201c[had]
\nbeen convicted of a sexually violent offense,\u201d as defined in
\nthat statutory provision, and that \u201cbecause of a mental
\nabnormality or personality disorder, [Allen] finds it difficult
\nto control his predatory behavior which makes him likely to
\nengage in sexually violent acts.\u201d \u00a0The parties agree that Allen
\nhad the predicate conviction; indeed, he had two convictions of
\naggravated sexual battery of young girls. \u00a0Dr. Timothy P. Foley,
\nPh.D., testifying for Allen, and Dr. Ronald M. Boggio, Ph.D.,
\nthe licensed clinical psychologist who testified on behalf of
\nthe Commonwealth, both agreed that Allen has a personality
\ndisorder, specifically Antisocial Personality Disorder (APD).<\/p>\n
26\u00a0
\n\u00a0\u00a0
\nThus, the contested issue was whether, because of his APD, Allen
\nis \u201clikely to engage in sexually violent acts.\u201d<\/p>\n
\u00a0\u00a0\u00a0\u00a0While the two experts disagreed on the answer to this
\nquestion, there was little or no difference in their opinions in
\nmany respects. \u00a0As already stated, both agreed that Allen has
\nAPD. \u00a0One of the tests given by Dr. Boggio, the Millon Clinical
\nMultiaxial Inventory-III revealed that Allen has pervasive,
\nlongstanding personality problems that leave him with no coping
\nmechanisms, make it difficult for him to follow socially
\nacceptable norms of behavior, and cause him repeatedly to engage
\nin \u201cself-defeating patterns of behavior\u201d despite the
\nconsequences. \u00a0Dr. Foley reached similar conclusions based on
\nAllen\u2019s test results on the Minnesota Multiphasic Personality
\nInventory-2. \u00a0Dr. Foley testified that the test results were
\n\u201cindicative of somebody with a lot of authority struggles,
\nsomebody who has a hard time following the rules, somebody who
\nis restless, somebody who is suspicious, hypersensitive,
\nblameful, may exhibit poor judgment at times, [and]
\ndemonstrate[s] a lack of insight.\u201d<\/p>\n
\u00a0\u00a0\u00a0\u00a0Similarly, on the Static-99, an actuarial risk assessment
\ntest designed to predict sex offender recidivism, Dr. Foley
\nacknowledged that he and Dr. Boggio were in \u201csubstantial<\/p>\n
27\u00a0
\n\u00a0\u00a0
\nagreement.\u201d\u2217 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.\u00a0
\n\u00a0\u00a0\u00a0\u00a0Also, the data in the Static-99 reaches out for only 15
\nyears. \u00a0Since the question under Code \u00a7 37.1-70.1 is not limited
\nto whether Allen would commit a violent sexual act within 15
\nyears after release from incarceration, Dr. Boggio used a
\nformula \u201cbased on actual base rates of sexual recidivism that<\/p>\n
\u2217\u00a0
\n\u00a0
\n\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Static-99 does not entail a clinical judgment
\nabout whether a particular person is predisposed to be a repeat
\nsex offender. \u00a0As Dr. Foley explained, \u201cthe Static-99 does not
\npredict individuals, but it looks at certain characteristics,<\/p>\n
28\u00a0
\n\u00a0\u00a0
\nhave been collected in a variety of studies\u201d to extrapolate
\nbeyond 15 years. \u00a0In doing so, he concluded that, on the Static-
\n99, Allen has a 62.7 percent likelihood for reconviction after
\n25 years and, on the RRASOR, a 60.8 percent likelihood for
\nreconviction after 25 years.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Dr. Foley did not extrapolate any rate of reconviction for
\na sexually violent offense beyond the period of 15 years.
\nInstead, he referred to a study and graph prepared by others
\nbased on a sample of only 468 people and opined that, while
\nAllen\u2019s personality traits will remain throughout the rest of
\nhis life, Allen\u2019s propensity to act out his attitudes will
\ndecrease after 25 years. \u00a0Dr. Foley also based this opinion in
\npart on the fact that Allen\u2019s institutional infractions had
\ndecreased in recent years. \u00a0But, Allen had admitted to a
\ncounselor that he was trying to modify his behavior because he
\nwas hoping to be released soon. \u00a0Nevertheless, in his written
\nreport, in response to the question \u201c[i]f . . . Allen were
\nreleased to the community, would he pose a threat to the health
\nand safety of others through sexually violent behavior,\u201d Dr.
\nFoley stated, \u201cBased on an actuarial assessment, . . . Allen is<\/p>\n
[and] includes that person into a group who is know[n] to have
\nrecidivated at a particular level.\u201d<\/p>\n
29\u00a0
\n\u00a0\u00a0
\nless than likely to perpetrate sexually violent or predatory
\nacts.\u201d \u00a0The referenced actuarial assessment was the Static-99,
\nthe assessment that measures only re-conviction rates and the
\nonly one used by Dr. Foley to reach the stated conclusion.<\/p>\n
\u00a0\u00a0\u00a0\u00a0Finally, although Dr. Boggio and Dr. Foley had differing
\nopinions about whether Allen is psychopathic based on the
\nresults of the Hare Psychopathy Checklist, Allen scored in
\napproximately the 93rd percentile on Factor 1 in that test,
\nmeaning that he has a high measure for callousness, lack of
\nremorse, and inability to put himself in the place of a victim
\nand think about that person before acting. \u00a0On Factor 2, which
\nmeasures antisocial lifestyle, Allen was in approximately the
\n74th percentile.<\/p>\n
\u00a0\u00a0\u00a0\u00a0This evidence demonstrates that the statutory requirements
\nfor the civil commitment of sexually violent predators, Code
\n\u00a7\u00a7 37.1-70.1 through \u201370.19, do not ask more of mental health
\nprofessionals than they can provide. \u00a0So, where does that leave
\nus in this case? \u00a0We have two experts who agreed about many
\naspects of Allen\u2019s personality disorder and its effect on him.
\nBut, they disagreed about whether Allen is likely to commit
\nsexually violent offenses upon release from incarceration. \u00a0Dr.
\nFoley\u2019s opinion that Allen was not likely to do so, however,<\/p>\n
30\u00a0
\n\u00a0\u00a0
\nfocused on the 15-year risk of Allen\u2019s being re-convicted for
\nengaging in sexually violent acts. \u00a0In other words, Dr. Foley\u2019s
\ntestimony and report did not encompass all the factors,
\nprimarily the lifetime risk of re-offending, that must be
\naddressed to determine whether Allen is a sexual predator under
\nCode \u00a7 37.1-70.1.<\/p>\n
\u00a0\u00a0\u00a0\u00a0The only expert evidence that was complete in all respects
\ncame from Dr. Boggio. \u00a0His testimony and report provide clear
\nand convincing evidence that Allen is likely to engage in
\nsexually violent acts. \u00a0Dr. Boggio\u2019s opinion to that effect is
\nborne out by the fact that Allen, within a few days of being
\nreleased on parole, not only was in possession of a pornographic
\nmagazine but also was in the company of a young woman with
\nDown\u2019s Syndrome who called Allen her \u201cboyfriend.\u201d<\/p>\n
\u00a0\u00a0\u00a0\u00a0For these reasons, I conclude that the trial court\u2019s
\njudgment is without evidence to support it. \u00a0See Code \u00a7 8.01-
\n680. \u00a0I therefore respectfully concur in part and dissent in
\npart and would reverse the judgment of the trial court.<\/p>\n
31\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"
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