In the Matter of the Care and Treatment of Michael Sohn , 2015 Mo. App. LEXIS 1107 ( 2015 )

Sin the flitaauuri Qteurt of Qppealfi
(Eastern fiiatrtrt
DIVISION FOUR
IN THE MATTER OF THE CARE AND
TREATMENT OF MICHAEL SOHN,
No. ED102172
)
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) Appeal from the Circuit Court
Appellant. ) of Jefferson County
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)
)
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Hon. Mark T. Stoll
FILED: October 27, 2015
Introduction
Appellant Michael Sohn (“Sohn”) appeals from the judgment of the probate court,
following a jury trial, committing Sohn to the Missouri Department of Mental Health as a
sexually violent predator (“SVP”). Sohn, who is deaf, unsuccessfully sought to exclude from
evidence at trial expert witness testimony from Dr. Griffith about her interview with Sohn and
Sohn’s Missouri Sex Offender Program (“MOSOP”) records. On appeal, Sohn challenges the
probate court’s rulings on the grounds that the statements at issue in the interview and the
MOSOP records were not sufficiently reliable to allow Dr. Griffith to offer expert opinion
testimony as to whether Sohn was an SVP. Dr. Griffith’s testimony at trial sufficiently
established that her interview with Sohn and Solm’s MOSOP records represent the type of
evidence reasonably relied on by experts in Dr. Griffith’s field and are “otherwise reasonably
reliable.” Accordingly, the probate court did not abuse its discretion in denying Sohn’s motions
to exclude such evidence. We affirm the judgment of the probate court.
Factual and Procedural History
In July 2013, the State filed a petition seeking Sohn’s commitment to the Department of
Mental Health as an SVP. The State alleged Sohn suffered from a mental abnormality making
him more likely than not to engage in predatory acts of sexual violence if released from
confinement. Sohn was previously convicted of forcible sodomy and child molestation in the
first degree in a case involving an eight-year—old boy. Both of those crimes are sexually violent
offenses. Sohn did not successfully complete MOSOP treatment. Sohn was medicain
discharged from MOSOP, in part because he had difficulty comprehending sexual offender
treatment.
Dr. Griffith, a licensed psychologist, evaluated Sohn to determine whether he was an
SVP. Dr. Griffith based her evaluation of Sohn on her review of Sohn’s MOSOP file, her
interview of Sohn (in which Dr. Griffith was aided by two interpreters), an actuarial assessment,
and consideration of any other risk factors related to Sohn’s likelihood of re-offending.
Sohn filed several motions in liniine to exclude evidence with the probate court. Two of
these motions are the focus of this appeal. in his third motion in limine, Sohn sought to exclude
Dr. Griffith from testifying at trial and further sought to exclude Dr. Griffith’s report and its
I contents from being used at trial. In support of his motion, Sohn argued that Dr. Griffith’s
evaluation of him was not conducted in a reasonably reliable manner as required by Section
490.0653.1 Specifically, Sohn maintained that the interpreters assisting in the interview had
difficulty communicating with Sohn, rendering the interview unreliable. In his sixth motion in
limine, Sohn sought to exclude his MOSOP records from evidence because the MOSOP records
1 All statutory references are to RSMo. 2000.
211$ Amonette v. State, 98 S.W.3d 593 (Mo. App. ED. 2003) (in which this Court held there was
sufficient evidence to support a finding that Amonette was an SVP, based in part on the
testimony of an expert witness who reviewed Amonette’s file and records, including his MOSOP
records, and testified that such evidence was reasonably relied upon by experts in the field).
Dr. Griffith’s testimony as to the contents of the MOSOP records aiso supports a
conciusion that the MOSOP records were “otherwise reasonably reliable” and that her reliance
on them was reasonable. Dr. Griffith testified that the MOSOP records she relied upon in
forming her opinion included written documents authored by Sohn, including a victim disclosure
report in which Sohn “[made] an account of all of [his] victims.” The MOSOP records Dr.
Griffith relied upon also included a “relapse prevention plan Where the offender comes up with
strategies to avoid offending and any insights they have into their dynamics of re-offending.”
Dr. Griffith testified that such records and documents are completed by all offenders
participating in MOSOP.
Dr. Griffith’s expert opinion was founded on substantial information gleaned from a
reasonably reliable source: MOSOP records and documents written by Sohn. The MOSOP
records were not a source “so slight as to be fundamentally unsupported” and were therefore
properly admitted into evidence by the probate court. & In re Shafer, 171 S.W.3d at 773.
Again, any arguments that Sohn may not have had the assistance of an interpreter when writing
the victim disclosure report, or at Sohn had issues comprehending his treatment under MOSOP,
address the strength of the factual underpinnings of Dr. Griffith’s opinion rather than the
reliability of the MOSOP records as a source supporting Dr. Griffith’s testimony. As expiained,
“{a]ny weakness in the factual underpinnings of the expert’s Opinion or in the expert’s
ll
knowledge goes to the weight that testimony should be given and nor its admissibility.” I_d.
(emphasis added). These issues were properly left to thejury.4 Bemboom, 326 S.W.3d at 859.
Again, while Sohn’s disability presented challenges to his participation in MOSOP, any
such challenges properly go to the weight of the evidence and not its admissibility. Dr. Griffith’s
testimony at trial unequivocally established that MOSOP records are the type of evidence
reasonably relied on by experts in the field, and that these records, including the statements
written by Sohn, are “otherwise reasonably reliable.” Accordingly, the probate coutt did not
abuse its discretion in denying Sohn’s sixth motion in limine and allowing Dr. Griffith to testify
about the MOSOP records at trial. Point Two is denied.
Conclusion
The judgment of the probate court is affirmed.
RT S. ODENWALD, Judge
Sherri B. Sullivan, P.J., concurs.
Patricia L. Cohen, J ., concurs.
4 We note that while there was no evidence that there was an interpreter present when Sohn wrote the victim
disclosure report, there was no evidence that an interpreter was not present to assist Solm. Nor was there any
evidence that Sohn required an interpreter in order to prepare a written statement. Regardless, as explained above,
these considerations address the weight of the evidence and were properly left for thejuly’s determination.
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at issue were not reasonably reliable as required by Section 490.065 and therefore could not be
relied upon by expert witnesses. Specifically, Sohn stated that he had substantial communication
and comprehension problems while participating in MOSOP, rendering the MOSOP records
unreliable. The probate court denied both motions in limine.
A jury trial was held in which Dr. Griffith testified as an expert witness as to her
findings.2 Dr. Griffith testified that she had performed between 400 and 500 SVP evaluations,
and that she had received approximately 40 hours of intensive training in working with the deaf.
Dr. Griffith stated that in conducting her evaluation and rendering her expert opinion, she relied
upon her interview with Sohn and her review of Sohn’s records, including notes and information
from Sohn’s participation in MOSOP.
Dr. Griffith interviewed Sohn for approximately four hours. Two American Sign
Language interpreters were present during the interview. Dr. Griffith testified that, in order to
make sure that Sohn understood the purpose of the interview and SVP evaluation, she and the
interpreters spent approximately one hour explaining the process to Sohn. Both sign language
interpreters were familiar with Sohn and had assisted him during his treatment. Dr. Griffith
noted that Sohn tended to mix his pronouns, which sometimes made it difficult for the
interpreters to convey his statements. Additionally, there were a few times when the interpreters
disagreed about the meaning of Sohn’s signs, and Sohn at one point provided a “confusing”
narrative about one of his offenses. Dr. Griffith testified that the interpretation issues usually
were related to a specific word and that Sohn’s responses to her questions were relevant and
corroborated the victims’ accounts of the offenses. Dr. Griffith further testified that her
communication with Sohn was adequate and that all of his responses were clarified.
2 Three other expert witnesses also testified regarding their evaluations of Sohn.
3
Dr. Griffith also testified that she relied on notes and information from Sohn’s
participation in MOSOP in performing her evaluation and rendering an expert opinion. These
notes included written statements made by Sohn and his victim disclosure form. Dr. Griffith
noted that although the victim disclosure form was apparently written by Sohn, she was
uncertain if Sohn wrote the statements with the assistance of an interpreter. Dr. Griffith testified
that the information contained in the documents she reviewed and the contents of the interview
were the types of evidence reasonably relied upon by experts in her field of expertise.
Dr. Griffith diagnosed Sohn with a mental abnormality, concluding that Sohn had
pedophilia and was sexually attracted to both males and females, “nonexclusive” type. Dr.
Griffith noted that Sohn had sexual fantasies about children, admitted to seeking out children in
public restrooms in an attempt to see “beautiqu boy penis,” and admitted to “peeping” into the
windows of a neighbor’s home to watch children. Dr. Griffith testified that Sohn’s pedophilia
predisposed him to committing sexually violent offenses. Dr. Griffith stated that Sohn had
serious difficulty controlling his behavior and was unable to prevent himself from acting out in a
sexually violent manner, noting additionally that Sohn reported driving around looking for
victims.
Dr. Griffith also assigned Sohn scores based on two actuarial assessments, the Static—
99R, which considers historic risk factors, and the Stable—2007, which measures dynamic risk
factors. Dr. Griffith testified that Sohn’s composite score on the two assessments indicated that
he had a moderate-high risk level to re-offend. Dr. Griffith noted that her assessment was also
based on a consideration of additional risk factors, including Sohn’s deviant sexual interest,
offense supportive attitude, emotional congruence with children, poor probiem solving, and lack
of emotionally intimate relationships with adults. Ultimately, Dr. Griffith found that Sohn was
more likely than not to re—offend if not confined to a secure facility, and concluded that he was
an SVP.
The jury found Sohn to be an SVP and the probate court then issued its Judgment and
Commitment Order finding Sohn to be an SVP and committing him to the custody of the
Department of Mental Health. This appeal follows.
Points on Appeal
Sohn presents two points on appeal. First, Sohn contends the probate court abused its
discretion when it denied his motion in limine to exclude Dr. Griffith’s report and testimony and
allowed Dr. Griffith to testify about Sohn’s statements made during an interview. Sohn claims
the interview statements cannot be reasonably relied upon by Dr. Griffith because the interview
was conducted through interpreters who repeatedly had issues understanding Sohn and who
expressed concern as to whether Sohn understood the questions being presented to him. Second,
Sohn claims the probate court abused its discretion in denying his motion in limine to exciude
MOSOP records and allowing Dr. Griffith to testify about Sohn’s statements made during
MOSOP. Sohn posits that the MOSOP records also could not reasonably be relied upon by Dr.
Griffith in rendering an expert opinion because it is unclear whether the statements attributed to
Sohn in the records were made with the assistance of interpreters or whether Sohn actualiy wrote
one of the statements.
Standard of Revier
A probate court’s decision to allow evidence at trial is reviewed for abuse of discretion,
as the determination of whether to admit evidence is within the sound discretion of the court.
Elliott v. State 215 S.W.3d 88, 92 (Mo. banc 2007). The probate court abuses its discretion only
where its ruling is clearly against the logic of the circumstances and so arbitrary or unreasonable
as to shock the sense of justice and indicate a lack of careful consideration. 131, On appeal, this
Court reviews for prejudice, not mere error. State v. Strong, 142 S.W.3d 702, 710 (Mo. banc
2004). The probate court’s decision will be reversed only if the error was so prejudicial that it
deprived Sohn of a fair trial. k1,, Accordingly, even if an abuse of discretion is found, “we wiil
not reverse unless the error had a material effect upon the merits of the action.” In the Matter of
the Care & Treatment of Wadleigh, 145 S.W.3d 434, 438 (Mo. App. W.D. 2004).
Discussion
Missouri’s SVP statute is civil in nature. Murrell v. State 215 S.W.3d 96, 1 10 (Mo. banc
2007). Admission of expert testimony in civil cases is governed by Section 490.065. Section
490.065 states, in relevant part:
The facts or data in a particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to him at or before the
hearing and must be of a type reasonably relied upon by experts in the field in
forming opinions or inferences upon the subject and must be otherwise reasonably
reliable. Section 490.065.3
Section 490.065 requires the trial court to consider whether experts in the field
reasonably rely on the type of facts and data used by the expert or if the methodology is
otherwise reasonably reliable. McGuire v. Seltsam, 138 S.W.3d 718, 721 (Mo. banc 2004). If
not, the testimony is inadmissible. 1d, Whether expert opinion testimony satisfies the
requirements of Section 490.065 is a matter of trial court discretion. I_d.
Section 490.065.3 requires two analytical steps by the trial coult. First, the trial court
must determine whether the facts and data upon which the expert’s opinion is based are
reasonably relied upon by experts in the particular field. Goddard v. State, 144 S.W.3d 848, 854
(Mo. App. SD. 2004). The trial court generally is expected to defer to the expert’s assessment
of what facts or data are reasonably relied upon in their field. 151,;3 Doe v. MoFariane, 207
S.W.3d 52, 62 (Mo. App. ED. 2006). Second, the trial court must look beyond the expert’s
assessment of reliability to independently determine whether the facts and data on which the
expert’s opinion is based are “otherwise reasonably reliable.” McFarlane, 207 S.W.3d at 62. An
expert’s opinion must be founded on substantial information, not mere conjecture or speculation,
and there must be a rational basis for the opinion. Q However, it is oniy in cases where the
sources relied on by the expert are “so slight as to be fundamentally unsupported” that the
expert’s opinion should be excluded. fl; Goddard, 144 S.W.3d at 854; seem In re Slrafer, 171
S.W.3d 768, 773 (Mo. App. SD. 2005) (“the trial court is only mandated to exclude testimony in
those cases where the source upon which the expert relies is so slight as to be fundamentally
unsupported”). Further, and importantly, “questions as to the sources and bases of the expert’s
opinion affect the weight, rather than the admissibility, of the opinion, and are properly left to the
jury.” MbFarlane, 207 S.W.3d at 62.
I. Dr. Griffith’s Interview of Sohn
Sohn maintains that his statements made during his interview with Dr. Griffith were not
reasonably reliable as required by Section 490.0653, and thus, could not be properly relied upon
by Dr. Griffith to support her expert testimony. Sohn posits that the statements could not be
reasonably relied upon because the sign language interpreters present during the interview had
difficulty communicating with him. Sohn also claims that Dr. Griffith failed to show a rational
basis for relying on Sohn’s statements as factually reliable given the interpreters’ difficulty
communicating with Sohn. We are not persuaded.
3 “The practice of allowing an expert to testify as to facts and data of a type reasonably relied upon by experts in the
field as a juridical principie, is justified by the premise that a witness with specialized knowledge is as competent to
evaluate the reliability of the statements presented by other investigators or technicians as a fact-finder is to pass
upon the credibility of an ordinary witness on the stand.” Id,
7
Under Section 490.065, the trial court’s “determination of whether the facts and data
relied upon are relevant is made relative to the testimony of the expert.” M, 215 S.W.3d at
112. If the facts or data relied upon are both reasonably reliable and reasonably relied on by
experts in the field when forming an opinion on the matter at issue, they will necessarily be
relevant to the case, and testimony as to the facts and data will be admissible. & at 110. “Any
weakness in the factual underpinnings of the expert’s opinion or in the expert’s knowledge goes
to the weight that testimony should be given and not its admissibility.” In re Shafer, 171 S.W.3d
at 773.
Here, Dr. Griffith testified that her interview of Sohn was the type of information
reasonably relied on by experts in the field. Tire probate court did not abuse its discretion in
deferring to Dr. Griffith’s assessment of what facts or data are reasonably reliable in her field.
Sane. McFarlane, 207 S.W.3d at 62; w Bradshaw V. State, 375 S.W.3d 237 (Mo. App. SD.
2012) and Walker v. State, 465 S.W.3d 491 (Mo. App. W.D. 2015) (in which the Court noted:
with approval the fact that expert witnesses interviewed Bradshaw and Walker as part of the SVP
evaluation process).
Dr. Griffith’s testimony also supported a conclusion that the interview was “otherwise
reasonably reliable” and that her reliance on it was reasonable. Dr. Griffith testified that she had
performed between 400 and 500 SVP evaluations, and that she had received approximately 40
hours of intensive training in working with the deaf. Dr. Griffith’s interview with Sohn lasted
four hours and involved two American Sign Language interpreters who were familiar with Sohn
and had worked with him in the past. To ensure that Sohn understood the purpose of the
interview, Dr. Griffith and the interpreters took the time and effort to explain the process to Sohn
at length. Further, although Dr. Griffith noted Sohn and the sign language interpreters
experienced some communication issues, Dr. Griffith clarified that the misunderstandings were
minor, related primarily to specific individual words, and that she was satisfied that her
communication with Sohn was adequate.
The record shows that Dr. Griffith’s expert opinion was founded on substantial
information gleaned from a reasonably reliable source: a direct, in-depth interview with Sohn
conducted with the assistance of two sign language interpreters. Dr. Griffith’s interview with
Sohn was not a source of information “so slight as to be fundamentally unsupported” and was
therefore properly admitted into evidence by the probate court. gee In re Shafer, 171 S.W.3d at
773. Sohn’s chailenges relating to the communication issues experienced during the interview
address the strength of the factual underpinnings of Dr. Griffith’s opinion rather than the
reliability of the interview as a source supporting Dr. Griffith’s testimony. We are mindful that
“[a]ny weakness in the factual underpinnings of the expert’s opinion or in the expert’s
knowledge goes to the weight that testimony should be given and not its admissibility.” Q
(emphasis added). Such issues were properly left to the jury, as “[m]atters of credibility and
weight of testimony are for the fact finder to determine.” Bemboom v. State, 326 S.W.3d 857,
859 (Mo. App. w.D. 2010).
While we recognize that Sohn’s disability presented certain unique challenges during his
interview with Dr. Griffith, these challenges impact the weight of the evidence and not the
admissibility. Dr. Griffith’s testimony at trial sufficiently established that her interview with
Sohn is the type of evidence reasonably relied on by experts in the field, and that the interview
was “otherwise reasonably reiiable.” Accordingly, the probate court did not abuse its discretion
in denying Sohn’s third motion in limine and allowing Dr. Griffith to testify at trial about the
statements made by Sohn during the interview. Point One is denied.
II. MOSOP Records
In his second point on appeal, Sohn challenges the reliability of the Sohn’s MOSOP
records under the requirements of Section 490.0653, and argues that it was improper for Dr.
Griffith to rely upon these records in support of her expert testimony. Sohn avers that certain
statements and information contained within his MOSOP records were not reasonably reliable
because Sohn may not have been assisted by an interpreter at the time he wrote some of the
statements, including the victim disclosure report. As a corollary to this argument, Sohn reasons
that Dr. Griffith could not have had a rational basis for relying on the MOSOP records as
factually reliable because of the significant questions about Sohn’s comprehension of his
treatment while he participated in MOSOP. Again, we are not persuaded.
As noted above, the trial court’s “determination of whether the facts and data relied upon
are relevant is made relative to the testimony of the expert.” M, 215 S.W.3d at i 12. If the
facts or data relied upon are both reasonably reliable and reasonably relied on by experts in the
field when forming an opinion on the matter at issue, they will necessarily be relevant to the
case, and testimony as to the facts and data will be admissible. 1d; at 110. “Any weakness in the
factual underpinnings of the expert’s opinion or in the expert’s knowledge goes to the weight
that testimony should be given and not its admissibility.” In re Shafer, 17l S.W.3d at 773.
Here, Dr. Griffith testified that the MOSOP records were the type of evidence reasonably
relied on by experts in the field. Moreover, we note that Dr. Griffith was not alone in her
assessment of the MOSOP records as each of the additional three expert witnesses testified that
MOSOP records were reasonably relied on by experts in their field. We are unwilling to
conclude that the probate court abused its discretion in deferring to Dr. Griffith’s assessment of
what facts or data are reasonably reliable in her field. SE McFarlane, 207 S.W.3d at 62. E
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