In the Matter of the Care and Treatment of Milton George a/k/a Milton D. George, a/k/a Milton Dewayne George v. State of Missouri ( 2017 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
IN THE MATTER OF THE CARE AND )
TREATMENT OF MILTON GEORGE )
a/k/a MILTON D. GEORGE, a/k/a )
MILTON DEWAYNE GEORGE, )
)
WD78928
Appellant, )
)
OPINION FILED:
v. )
January 24, 2017
)
)
STATE OF MISSOURI, )
)
Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Kathleen A. Forsyth, Judge
Before Division Two: Lisa White Hardwick, Presiding Judge, and
Karen King Mitchell and Anthony Rex Gabbert, Judges
Following a jury trial, Milton George was found to be a sexually violent predator (SVP)
under § 632.480,1 and he was committed to the custody of the Department of Mental Health.
George appeals. He argues that the evidence was insufficient to prove clearly and convincingly
that his diagnosis of schizophrenia made him more likely than not to commit future predatory acts
1
Unless otherwise stated, statutory references are to the Revised Statutes of Missouri 2000, as updated
through the 2014 Cumulative Supplement.
of sexual violence if not confined to a secure facility and that the State’s use at trial of the term
“sexually violent predator” unconstitutionally prejudiced the jury against him. We affirm.
Background2
In 2009, George was convicted of rape and forcible sodomy and sentenced to eight years
in the Department of Corrections. Prior to George’s release, the Department provided written
notice to the multidisciplinary team under § 632.483.4 that George may meet the criteria of a
sexually violent predator. The multidisciplinary team determined that George appeared to meet
the definition of a sexually violent predator, and it notified the Attorney General of its assessment.
The prosecutors’ review committee reviewed the assessment under § 632.483.5 and determined
that George met the definition of a sexually violent predator. Prior to George’s release, the State
filed a petition seeking George’s commitment to the Department of Mental Health as a sexually
violent predator under the Sexually Violent Predator Act (“SVP Act”), § 632.480, et seq.
At trial, the State called Dr. Steven Mandracchia, a psychologist, in support of its petition.
He was the only witness to testify. Dr. Mandracchia evaluated George to determine if he was an
SVP. The doctor testified that he has done approximately forty similar evaluations and that he had
reviewed George’s records, including criminal records, social history records, treatment records,
and records from the Department of Corrections. Based on George’s treatment history, including
forty to forty-five hospital admissions for schizophrenia over the past 25 years, as well as his
behaviors, Dr. Mandracchia opined that George had the mental abnormality of schizophrenia.
Dr. Mandracchia testified that George had difficulty controlling his behavior, as
demonstrated by his aggression toward others and attempt to harm himself, as well as his bizarre
2
We “review[] the facts in the light most favorable to the verdict.” In re Murrell, 215 S.W.3d 96, 100 n.3
(Mo. banc 2007).
2
sexual behaviors. The doctor said that, on several occasions, George was brought to psychiatric
facilities because of his hypersexual behavior, which included exposing himself in public.
While in prison, George had multiple conduct violations for breaking rules, including a
physical altercation with a fellow inmate and another with a guard. George had at least three
violations that were of a sexual nature. Dr. Mandracchia testified that George urinated in an area
of the cell where he should not have been urinating, in full view of an officer. George also
masturbated in front of officers on two occasions; on one of the occasions, George rolled up his
mattress and masturbated into it. Dr. Mandracchia said that, when instructed to stop, George
refused. While in jail awaiting this trial, George fondled himself in front of other inmates on two
occasions.
During his incarceration, George was so psychiatrically impaired that he was unable to
participate in the sex offender treatment program, although he did complete a clinical review form.
On the form, George indicated that he masturbated six times a day; had fantasies including
voyeurism, exposing himself, and fetishes with objects; looked at pornographic materials; and had
sexual activity with animals.
Dr. Mandracchia also relied on an actuarial evaluation, which determined that George was
“in the moderate to moderately high range” to reoffend if not in a secure facility. Dr. Mandracchia
testified that the actuarial test underestimated George’s likelihood to commit sexually violent
crimes if not in a secure facility, because it measured the likelihood only of a person being
rearrested or reconvicted.
Based on this information, Dr. Mandracchia found that George was an SVP.
Dr. Mandracchia opined that George’s schizophrenia caused him to have serious difficulty
3
controlling his behavior and made him more likely than not to commit another predatory act of
sexual violence if not placed in a controlled facility.
The jury found that George was an SVP. On May 12, 2015, the probate court issued its
Judgment and Commitment Order finding that George was an SVP and committing him to the
custody of the Department of Mental Health for control, care, and treatment until such time as
George’s mental abnormality had so changed that he was safe to be at large.
Standard of Review
“Appellate review in an SVP case is limited to a determination of whether there was
sufficient evidence admitted from which a reasonable jury could have found each necessary
element by clear and convincing evidence.” In re A.B., 334 S.W.3d 746, 752 (Mo. App. E.D.
2011). “The appellate court does not reweigh the evidence but determines only whether the
judgment was supported by sufficient evidence.” Id. “Matters of credibility and weight of
testimony are for the jury to determine.” Id. “For that reason, the evidence is viewed in the light
most favorable to the judgment, accepting as true all evidence and reasonable inferences favorable
to the judgment and disregarding all contrary evidence and inferences.” Id. “A judgment will be
reversed on insufficiency of the evidence only if there is a complete absence of probative facts
supporting the judgment.” Id.
Questions of law are reviewed de novo. In re Murphy, 477 S.W.3d 77, 81 (Mo. App. E.D.
2015).
Analysis
“Missouri’s SVP statute requires a finding that, to be committed, the individual 1) has a
history of past sexually violent behavior; 2) a mental abnormality; and 3) the abnormality creates
a danger to others if the person is not incapacitated.” In re Murrell, 215 S.W.3d 96, 105 (Mo. banc
4
2007). Under § 632.480(5)(a), an offender has a history of sexually violent behavior if he “[h]as
pled guilty or been found guilty . . . of a sexually violent offense.” George does not dispute that
rape and forcible sodomy are sexually violent offenses. Once a history of sexual violence has been
established, before an offender may be committed as an SVP, “the State must satisfy a two-prong
test: (1) the offender must suffer from a mental abnormality; (2) that makes him more likely than
not to engage in predatory acts of sexual violence if not confined in a secure facility.” A.B., 334
S.W.3d at 752.
George offers five points on appeal. In his first three points, George argues that there was
insufficient evidence to find him to be an SVP because the evidence was insufficient to
demonstrate that it was more likely than not that he would engage in predatory acts of sexual
violence in that: (1) there was no evidence that George’s mental abnormality, schizophrenia,
predisposes him to commit predatory acts of sexual violence; (2) the State’s expert testimony was
without foundation because Dr. Mandracchia failed to specify that the threat of future sexual
violence must be predatory and failed to define the term; and (3) there was no evidence that any
future sexual violence George might commit would be for the primary purpose of victimization, a
requirement for the behavior to be predatory. In George’s fourth and fifth points, he argues that
he was deprived of a fair trial because the State was allowed to use the “inherently pejorative”
phrase “sexually violent predator” at trial, and the phrase appeared in the instructions.
I. Predisposition to acts of predatory violence.
In his first point, George claims that the State failed to prove that his mental abnormality,
schizophrenia, predisposes him to commit sexual violence. In support, George argues that, while
Dr. Mandracchia did testify that George suffers from schizophrenia, Dr. Mandracchia never
explicitly testified that schizophrenia predisposed George to commit predatory acts of sexual
5
violence. In fact, according to George, “Dr. Mandracchia’s testimony established the opposite”
because he “testified to his own opinion that ‘it does not predispose people to commit sex crimes,
when you say just the diagnosis of schizophrenia.’”
But George simply misunderstands that the SVP statute does not require proof of “a mental
abnormality that, in and of itself, predisposes a person to commit sexually violent offenses.”
Murrell, 215 S.W.3d at 106. Rather, “Missouri’s SVP statute . . . only require[s] ‘evidence of past
sexually violent behavior and a present mental condition that creates a likelihood of such conduct
in the future if the person is not incapacitated.’” Id. (quoting Kansas v. Hendricks, 521 U.S. 346,
357-58 (1997)). “Under [§] 632.480 . . . , ‘mental abnormality’ is (1) a congenital or acquired
condition; (2) affecting the emotional or volitional capacity; (3) that predisposes the person to
commit sexually violent offenses; (4) in a degree that causes the individual serious difficulty
controlling his behavior.” Id. George claims that Dr. Mandracchia’s testimony did not establish
the third element.
Dr. Mandracchia testified that George suffers from the “mental abnormality of
schizophrenia,” which affects George’s volitional capacity, resulting in “repeated instances of
inappropriate poorly controlled or apparently uncontrolled sexual behaviors,” and which “[w]ould
render him having serious difficulty controlling his behavior and being more likely than not to
reoffend if not in a controlled environment.” Dr. Mandracchia went on to testify that, by
“reoffend,” he meant “committing a predatory act of sexual violence.” Thus, while
Dr. Mandracchia’s testimony was clear that schizophrenia does not necessarily predispose all
individuals to commit predatory acts of sexual violence, it did affect George in that manner in that
it rendered him unable to control his sexual behavior. Dr. Mandracchia’s opinion was based on a
review of documents in the record, which were of the type normally relied on by psychologists
6
when making a determination of whether someone is in fact an SVP. This evidence was sufficient
for the jury to determine that George has a mental abnormality that predisposes him to commit
sexually violent offenses.
George’s first point is denied.
II. Failure to define “predatory.”
In his second point, George argues that the State failed to provide the jury with “the correct
legal standard” to prove that he had a mental abnormality. George again claims that
Dr. Mandracchia never specifically testified that George was likely to commit “predatory acts” of
sexual violence, as required by § 632.480(5). George further argues that Dr. Mandracchia failed
to define “predatory” in his testimony. George argues that, because of these alleged shortcomings,
Dr. Mandracchia’s testimony “lacked foundation.”3 We disagree.
As noted infra, Dr. Mandracchia testified that George suffers from a mental abnormality,
which “[w]ould render him having serious difficulty controlling his behavior and being more likely
than not to reoffend if not in a controlled environment.” Dr. Mandracchia then clarified that
“reoffend” meant “committing a predatory act of sexual violence.” Dr. Mandracchia plainly did
testify that George was likely to commit predatory acts of sexual violence, and thus, George’s first
argument is without merit.
George next notes that the SVP Act defines “[p]redatory” as “acts directed towards
individuals, including family members, for the primary purpose of victimization.” § 632.480(3).
George claims that Dr. Mandracchia never set forth this precise definition in his testimony, leaving
3
“If a question exists as to whether proffered expert testimony is supported by a sufficient factual or scientific
foundation, the question is one of admissibility, which must be raised by a timely objection or motion to strike.” In re
Bradshaw, 375 S.W.3d 237, 243 (Mo. App. S.D. 2012) (quoting In re Muston, 350 S.W.3d 493, 497 (Mo. App. S.D.
2011)). “Once an expert opinion has been admitted, as any other evidence, it may be relied upon for purposes of
determining the submissibility of the case.” Id. (quoting Muston, 350 S.W.3d at 497). “An appellant cannot
‘back-door’ an issue relating to the admissibility of expert testimony under the guise of a sufficiency of the evidence
argument.” Id. (quoting Muston, 350 S.W.3d at 497).
7
the jury to speculate as to whether Dr. Mandracchia’s definition was consistent with the statutory
definition with which the jury was instructed. This argument is meritless because the record shows
that the jury was not misled or left to speculate as to the meaning of the term in Dr. Mandracchia’s
testimony.
In support of his claim that Dr. Mandracchia was required to specifically define
“predatory,” George points to Lee v. Hartwig, 848 S.W.2d 496, 498-99 (Mo. App. W.D. 1992),
and McLaughlin v. Griffith, 220 S.W.3d 319, 321 (Mo. App. S.D. 2007), negligence cases in which
experts failed to define the proper legal standard—“negligence” and “standard of care”
respectively—and their testimony was therefore found to be insufficient.
Of course “[l]egal or technical words occurring in the instructions should be defined.” In re
Van Orden, 271 S.W.3d 579, 586 (Mo. banc 2008). For example, “under MAI, . . . many
definitions are required.” Huff v. Union Elec. Co., 598 S.W.2d 503, 509, 509 n.5 (Mo. App. E.D.
1980) (citing to MAI definitions relating to negligence (MAI 11.00), uninsured motor vehicles
(MAI 12.00), agency (MAI 13.00), right-of-way (MAI 14.00) and will contests (MAI 15.00)). “An
expert who testifies,” for example, “solely in terms of ‘standards of care,’ without reference to
MAI 11.06 or comparable language, does not satisfactorily articulate the appropriate legal
standard.” McLaughlin, 220 S.W.3d at 321; Lee, 848 S.W.2d at 499 (“It was not an abuse of
discretion to sustain the objection [to the expert’s testimony as to negligence], in view of the failure
of either party to define the term ‘negligence.’”).
But “predatory” is not a term defined in the MAI. And George offers no authority in
support of his contention that, solely because a term is defined in a statute, that word constitutes a
“legal or technical term,” requiring testimony as to its definition. The State argues that “[t]he word
‘predatory’ does not need to be defined as it is commonly used and readily understandable.”
8
“[T]he meaning of ordinary words used in their usual or conventional sense need not be defined.”
Van Orden, 271 S.W.3d at 586.
George correctly points out that the legislative definition of words controls, but he makes
no attempt to explain how the statutory definition of “predatory” differs from the common
meaning. In common usage, “the terms ‘predator’ or ‘predatory’ refer to either ‘one that preys,
destroys, or devours’ or one ‘disposed or showing disposition to injure or exploit others for one’s
own gain.’” State v. Perry, 275 S.W.3d 237, 247 n.6 (Mo. banc 2009) (quoting Webster’s Third
New Int’l Dictionary, 1785 (3d ed. 1993)). “When read with the grammatical modifier ‘sexual,’
the term refers to a person that either sexually preys on or is disposed or shows a disposition to
sexually exploit others.” Id. Section 632.480(3) defines “[p]redatory,” as “acts directed towards
individuals, including family members, for the primary purpose of victimization.” We fail to see
a meaningful distinction between the common definition of “predator” and its statutory definition
in this context.
Even when a term does require definition, it “need not be recited in ritualistic fashion.”
McLaughlin, 220 S.W.3d at 321. Rather, “the expert’s testimony in context should prove that the
proper legal standard was used.” Id. “[J]urors must know an expert’s opinion is based on [the
law] and not something else.” Id.
Dr. Mandracchia testified that “the definitions [that] we work with . . . are all from statutes.”
Dr. Mandracchia further testified that:
The statute itself basically just says that anybody who has—the words are “a
congenital or acquired condition”—what that means is you are born with it or you
get it later, . . . that predisposes a person to commit acts of sexual violence such that
it causes them to have difficulty controlling their behavior. So that’s leg one,
having a mental abnormality that predisposes you to this. And leg two, that mental
abnormality would have to make it more likely than not to reoffend if you’re not
confined.
9
And Dr. Mandraccchia clarified that “reoffend” meant “committing a predatory act of sexual
violence.”
In context, Dr. Mandracchia’s testimony makes it clear that his opinions are based on the
definitions contained in § 632.480. Certainly, George was allowed to cross-examine
Dr. Mandracchia as to his application of the statutory definitions. But for purposes of determining
the foundation of Dr. Mandracchia’s testimony as it relates to the submissibility of the State’s case,
Dr. Mandracchia’s testimony showed that “the proper legal standard was used,” and was “based
on [the law] and not something else.” McLaughlin, 220 S.W.3d at 321.
George’s second point is denied.
III. Evidence supported finding that George’s likely future sexual violence would
be predatory.
In his third point, George argues that the State offered insufficient evidence to prove that
he is more likely than not to engage in predatory acts of sexual violence. Stated another way,
George argues that there was no evidence that any sexually violent acts he might commit in the
future will be predatory in nature. We disagree.
George correctly notes that the State must prove that George “suffers from a mental
abnormality which makes [him] more likely than not to engage in predatory acts of sexual violence
if not confined in a secure facility.” § 632.480(5). And the State was required to prove “that
[George] was not only more likely than not to sexually reoffend, but to so offend in a predatory
and violent manner, as required by the definition of an SVP in § 632.480(5).” In re Cokes, 107
S.W.3d 317, 323-24 (Mo. App. W.D. 2003). Relying heavily on Cokes, and In re Morgan, 176
S.W.3d 200, 202 (Mo. App. W.D. 2005), George argues that the State’s evidence was insufficient
to prove that any future sexual conduct would be predatory in nature. We reject George’s argument
because his analysis of both cases is misleading.
10
George first relies on Cokes, a case very similar to this one, in which “Dr. Mandracchia
testified that, in evaluating the appellant, he reviewed psychiatric, police, and prison records;
interviewed the appellant; and administered two actuarial instruments.” Cokes, 107 S.W.3d at
322. In addressing whether Cokes was an SVP, Dr. Mandracchia’s testimony was as follows:
Q. Did you try to make a determination as a result of this mental abnormality and
looking at your actuarial measures, did you try to determine whether or not it was
more likely than not Mr. Cokes would sexually reoffend?
A. Yes, I did.
Q. What is your determination?
A. I determined that in terms of probability it is more likely than not that he will
reoffend.
Id. The appellant argued that this testimony was insufficient to support a determination that he
was likely to “reoffend in a predatory and violent way.” Id. at 323. This court agreed, noting that
Dr. Mandracchia “never render[ed] an opinion to that effect.” Id. Accordingly, the court found
that “the record reflects that Dr. Mandracchia’s testimony lacked any detail that would have
imparted to the jury the necessary knowledge to allow it to reasonably infer . . . that the appellant
would not only sexually reoffend, but would do so in a violent and predatory manner.” Id. at
323-24.
According to George, the State’s case is similarly deficient here. But Cokes also
determined that, despite the State’s failure to prove its case, remand, as opposed to a reversal, was
warranted, because the record showed that the State could make a submissible case. Id. at 325.
This court held that, on remand, the State “could . . . present[] sufficient evidence to allow the jury
to reasonably infer that the appellant was more likely than not to engage in predatory acts of sexual
violence [by] simply ask[ing] Dr. Mandracchia whether, in his expert opinion, the appellant’s
likelihood of sexually reoffending would occur in a violent and predatory manner.” Id.
11
Here, Dr. Mandracchia, relying on George’s records and actuarial tools, testified that
George had a mental abnormality that “[w]ould render him having serious difficulty controlling
his behavior and being more likely than not to reoffend if not in a controlled environment.” And
“by reoffend,” Dr. Mandracchia testified that he “mean[t] committing a predatory act of sexual
violence.” This is precisely the testimony and evidence that, in Cokes, this court said would be
sufficient to make a submissible case that an offender is an SVP.
George implies that this aspect of the holding in Cokes was overruled “two years later in
Morgan,” where the State’s expert did testify that the appellant was “more likely than not to
commit future predatory acts of sexual violence,” but the testimony was still held to be insufficient.
Morgan, 176 S.W.3d at 210-11. But George again misstates the holding.
In Morgan, the State’s expert relied “on the evidence of the appellant’s past acts of sexual
violence, and . . . the results from several ‘risk assessments’ [the expert] conducted.” Id. at 211.
Based on these factors, the expert opined that “the appellant was more likely than not to engage in
future predatory acts of sexual violence if not confined in a secure facility.” Id. at 203. The court
determined that, under the present statutory definition, “the State’s evidence would have been
sufficient to demonstrate that the appellant’s prior acts of sexual violence were predatory in nature
such that the State would have made a submissible case on the issue of whether he was more likely
than not to engage in future acts of sexual violence.” Id. at 207. However, the State had “stipulated
and agreed to the use of the prior . . . definition of ‘predatory act’ to be used in the verdict director.”
Id. And under “the prior definition of ‘predatory acts’ found in § 632.480(3) [RSMo 1999], the
State was required to prove . . . that he was more likely than not to engage in ‘acts directed towards
strangers or individuals with whom relationships have been established or promoted for the
primary purpose of victimization.’” Id. at 208. Accordingly, “it was not enough that the act was
12
for the primary purpose of victimization.” Id. at 206. “There had to be evidence that a relationship
had been established or promoted with the victim for the primary purpose of victimization.” Id. at
207. In Morgan, “the State did not produce any evidence from which it could be reasonably
inferred by the jury that, after the initial relationships were established with the victims, the
appellant targeted them for victimization by intentionally cultivating close, trusting relationships
with them,” and therefore failed to meet its burden to prove that the appellant was more likely than
not to engage in predatory acts of sexual violence under the applicable definition. Id.
Again, under the current statute, the State is required to prove that George is “more likely
than not to engage in predatory acts of sexual violence,” § 632.480(5), which is defined as “acts
directed towards individuals, including family members, for the primary purpose of victimization.”
§ 632.480(3). The higher standard that the State stipulated to in Morgan is inapplicable. In
Morgan, “[t]he critical issue . . . [was] not whether the appellant was likely to re-offend in a
sexually violent manner.” Morgan, 176 S.W.3d at 211. Rather, “whether the State made a
submissible case ultimately turned on which version of the definition of ‘predatory act’ was used.”
Id. at 207. There was no question that the State’s expert’s reliance on “the appellant’s prior acts
of sexual violence and the assessment results,” id. at 211—much less than Dr. Mandracchia relied
on here—was “sufficient to demonstrate that the appellant’s prior acts of sexual violence were
predatory in nature.” Id. at 207.
George’s third point is denied.
IV. Use of the phrase “sexually violent predator” is not prejudicial.
Finally, in George’s fourth and fifth points, he challenges the use of the phrase “sexually
violent predator” by the State during trial and in the jury instructions. In his fourth point, George
13
complains of the State’s use of the phrase throughout trial, and in his fifth point, he argues that it
should not have been used to instruct the jury.
George relies heavily on Perry, a trial for first-degree child molestation, in which the
defendant challenged two comments made by the prosecution, arguing that they were inherently
prejudicial. Perry, 275 S.W.3d at 245-46. The first challenged statement was, “This was a touch
done by a child molester.” Id. at 246. Certainly, “child molester” is an exceedingly pejorative
term. But the Supreme Court brushed aside the argument that the defendant was prejudiced by the
language because the defendant “was charged with child molestation, and the whole premise of
the prosecution was that [the] touch was done by a child molester and for the purpose of sexual
gratification.” Id. “There was no error . . . in making this argument[, because t]he prosecutor is
allowed to make arguments based on facts in evidence.” Id.
The second comment that the defendant in Perry challenged as inherently prejudicial was
“the prosecutor’s use of the term ‘sexual predator’” to describe the defendant. Id. This comment
the Court found to be “troublesome,” in part because the term is “inherently pejorative.” Id. at
246, 247. But the Court clarified that it was not the pejorative nature of the term, itself, that made
the statement objectionable. Rather, the statement was objectionable because the defendant “had
not been found to be a sexual predator nor would the offense for which he was on trial qualify him
automatically as one were he convicted.” Id. at 246-47. The statement therefore “called for the
jury to speculate as to what [the defendant] might become in the future in deciding his guilt, rather
than deciding his guilt of the crime for which he was charged.” Id. at 247.
Here, there were two instances during closing argument in which the State arguably called
George an SVP. First, the State stated that “we are asking you today to make the finding that
Mr. George is indeed a sexually[]violent predator under Missouri law . . . because he is a
14
sexually[]violent predator . . . [under] the definition you have learned about today.” Second, the
State argued that, “[u]nder the law, [George] meets the definition of a sexually[]violent predator.”
And of course Dr. Mandracchia testified generally that George meets the definition of a sexually
violent predator.
These uses of the phrase are plainly allowable under Perry. Each use of the phrase
“sexually violent predator” by the State was in “arguments based on facts in evidence,” which the
State is allowed to make. Id. at 246. Moreover, there is no concern that the jury would have to
“speculate as to what [George] might become in the future in deciding his guilt, rather than
deciding his guilt of the crime for which he was charged.” Id. at 247. The specific issue in this
trial was whether George, based on his past conduct and current mental abnormality, was “more
likely than not to engage in [future] predatory acts of sexual violence if not confined in a secure
facility.” A.B., 334 S.W.3d at 752.
George’s reliance on State v. Whitfield, 837 S.W.2d 503 (Mo. banc 1992), is similarly
misplaced. In Whitfield, “the prosecutor referred to defendant as a ‘mass murderer’ four times and
as a ‘serial killer’ three times” during closing argument. Id. at 513. The Court noted that “[t]he
terms ‘mass murderer’ and ‘serial killer’ are pejorative names associated with a small ghoulish
class of homicidal sociopaths who repeatedly and cruelly murder for no apparent motive than to
satisfy a perverse desire to kill or cause pain.” Id. The Court then determined that “[n]o evidence
suggests that the defendant’s prior homicides were of this character,” and concluded that “[t]he
use of these words is name calling designed to inflame passions of jurors.” Id. “Comments
designed solely to inflame jurors against the defendant by associating him with heinous crimes not
in the record is always error, although not always reversible error.” Id.
15
Here, the State did associate George with heinous crimes—rape and forcible sodomy. But
George does not deny that he committed those crimes, and presenting evidence of those crimes
was necessary to the State carrying its burden. And the State’s use of the phrase “sexually violent
predator” was in the context of arguing to the jury that the evidence proved that George is an SVP.
George does not dispute the sufficiency of this evidence, other than the points that we have already
rejected. Accordingly, the State’s reference to George being an SVP were not “designed solely to
inflame jurors against the defendant by associating him with heinous crimes not in the record.” Id.
Rather, they were assertions wholly based on the evidence, which the State was required to prove
under § 632.480. George has provided no authority holding that this type of argument based on
the evidence is objectionable, even if the term used would normally be considered pejorative, and
we are aware of none.
George’s argument that the phrase “sexually violent predator” is so inherently prejudicial
as to automatically deprive one of a fair trial has also been unanimously rejected by courts that
have considered the issue. Our Supreme Court has held, at least under plain error review, that the
phrase “sexual predator” does not necessarily “decisively affect[] the jury’s determination
sufficiently to deny . . . a fair trial.” Perry, 275 S.W.3d at 248. Other states have held that, in
cases brought to determine whether an offender should be confined as an SVP, “[t]he term
‘sexually violent predator’ needed to be defined to the jury and the prosecution had to prove . . .
that [the offender] fit that definition.” People v. Field, 204 Cal. Rptr. 3d 548, 559 (Cal. Ct. App.
2016). Accordingly, “[t]here was nothing improper about the use of the term ‘sexual violent
predator’ during the trial.” Id. See also Malone v. State, 405 S.W.3d 917, 926-27 (Tex. Ct. App.
16
2013) (holding that use of the phrase “sexually violent predator” in an SVP case does not violate
the right to a fair trial).4
In George’s fifth point, he argues that “the emotionally charged phrase (‘sexually violent
predator’),” which was used in Instructions 5, 6, 7, and the verdict form, “inflamed the jury, was
argumentative, and favored the State’s position.” Having determined that the use of the phrase
“sexually violent predator” is not prejudicial when used in a trial to determine whether an
individual is an SVP, there is little reason to believe that the phrase would be prejudicial when
instructing the jury. But the State argues that we need not review this argument at all because
Instruction 5, which includes the phrase “sexually violent predator,” was submitted by George
himself, and provided to the jury over the State’s objection. We agree.
It is axiomatic that “[a]ppellate courts will not reverse a trial court on the basis of an invited
error.” Floyd v. Dep’t of Mental Health, 452 S.W.3d 154, 156 n.2 (Mo. App. W.D. 2014) (quoting
Roberts v. Roberts, 432 S.W.3d 789, 796 (Mo. App. W.D. 2014)). And a party invites error when
it offers an instruction and then complains about the language contained in that instruction. State
v. Oudin, 403 S.W.3d 693, 697-98 (Mo. App. W.D. 2013); see also In re Scates, 134 S.W.3d 738,
742 (Mo. App. S.D. 2004) (rejecting as “disingenuous” appellant’s argument related to language
of an instruction when appellant’s instruction contained identical language).
George responds that he offered Instruction 5 only “after the trial court denied his motion
and objections to use of the term in the instructions.” While George offers no additional argument
4
George argues for the first time in his reply brief that “[a] recent study confirmed the prejudice and bias
inherent in the term’s use in legal proceedings.” Even if George had not waived the claim by raising it for the first
time in a reply brief, Caranchini v. Missouri Bd. of Law Examiners, 447 S.W.3d 768, 772 (Mo. App. W.D. 2014), we
are unable to review the purported study because George failed to provide it to the court in any accessible format. But
even if we accept George’s recitation of the findings of the study—that jurors are more likely to believe that a
convicted felon should be placed on parole if they are told that the offender is a “felon” than if they are told the
offender is an SVP—the study does not support George’s position. The jurors here were not told that George has ever
been found to be an SVP. Rather, they were provided evidence about his felonies and mental abnormality, and asked
to determine whether he is an SVP.
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or authority, we presume that he is referring to cases “distinguish[ing] between the party who
invites error and the party who yields to it on demand of the court.” Myers v. Buchanan, 333
S.W.2d 18, 24 (Mo. banc 1960). But as George himself notes, “[t]he clear purpose in offering
Instruction 5 was to include the definition of ‘clear and convincing evidence,’” and “it is not
necessary to denominate a label in . . . Instruction 5 . . . while simply, briefly and impartially
instructing the jury without argument.” We agree. George could easily have crafted an instruction
defining the concept of clear and convincing evidence without the use of the term “sexually violent
predator.” But having used the phrase in his own proposed instruction, he cannot now claim that
it was error for the phrase to be included in the jury instructions. Oudin, 403 S.W.3d at 698 n.10
(“where a defendant submits a faulty instruction, the defendant waives appellate review as to the
specific defect presented in the proffered instruction, regardless of whether the court ultimately
uses the proffered instruction or the State’s version containing the same defect”).
George’s fourth and fifth points are denied.
Conclusion
Having found no error, the judgment of the probate court is affirmed.
Karen King Mitchell, Judge
Lisa White Hardwick, Presiding Judge,
and Anthony Rex Gabbert, Judge, concur.
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