                                                     In the
                               Missouri Court of Appeals
                                           Western District

                                                           
    IN THE MATTER OF THE CARE AND                          
    TREATMENT OF RONALD WHITE,                                 WD80827
    A/K/A RONALD L. WHITE,                                     OPINION FILED:
                      Appellant,                           
                                                               May 28, 2019
    v.                                                     
                                                           
    STATE OF MISSOURI,                                     
                                                           
                    Respondent.                            
                                                           


                    Appeal from the Circuit Court of Atchison County, Missouri
                            The Honorable Corey Keith Herron, Judge

                                  Before Division Two:
    Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, and Cynthia L. Martin, Judges


         Following a jury trial in the Probate Division of the Circuit Court of Atchison County,

Missouri, Ronald White (White) was involuntarily committed to the Missouri Department of

Mental Health as a Sexually Violent Predator (SVP)1 under the Sexually Violent Predator Act,

Sections 632.480 through 632.525 (the “Act”)2. In Point I White claims that the trial court erred



1
 To be committed as a sexually violent predator § 632.480(5) requires the state to prove that White had been
convicted of a sexually violent offense (referred to as the “index offense”) and had a mental abnormality that made it
more likely than not that he would commit a future act of sexual predatory violence unless he was confined to a
secure facility.
2
 Unless otherwise stated, statutory references are to the Revised Statutes of Missouri 2000 as supplemented through
2017.
in not granting his request for a limiting instruction regarding hearsay relied upon by the State’s

experts. In Point IV, White argues that the trial court erred in denying his motion for a directed

verdict because the State failed to produce sufficient evidence to establish that he was more

likely than not to commit a future act of sexual predatory violence. In his three other points on

appeal White contends that his commitment is improper because he was denied effective

assistance of counsel: (in Point II) that Counsel failed to call White’s own expert witness, a

psychologist that would have purported to testify that White was not more likely than not to

commit a future predatory act; and (in Points III and V) that, during cross-examination of the

State’s experts, White’s counsel elicited hearsay evidence of a past act of sexual violence against

a child and the results of psychological tests (which indicated he had an elevated risk to

recidivate). We affirm.

                           FACTS AND PROCEDURAL HISTORY

       White had sexually abused ten children by the time he was age 19, but was not

prosecuted for those acts of abuse. In 1992, White was convicted of Aggravated Sexual Assault

of an eight-year-old boy in the State of Texas; and a 10-year sentence was imposed. Five months

after being paroled on that Texas offense, White committed the offenses which resulted in his

conviction on May 7, 1996, in Atchison County, Missouri. White was convicted on two counts

of statutory sodomy in the first degree, and was sentenced to twenty years in the Missouri

Department of Corrections (DOC).

       While serving in the DOC White was enrolled in the Missouri Sexual Offender Program

(MOSOP), which is designed to help educate and rehabilitate those convicted of a sexual

offense. While in the MOSOP program White struggled to control his behavior and indicated


                                                 2
difficulty in understanding the program materials; and ultimately voluntarily withdrew from the

program. White never re-enrolled or completed the MOSOP program.

       Prior to White completing his sentences in the DOC for the convictions in Atchison

County, the State filed the instant action in the Probate Division of the Circuit Court of Atchison

County, seeking civil confinement of White as a sexually violent predator upon his release from

the DOC. In the course of a three-day jury trial, the State presented testimony from licensed

psychologists Heather McMahon (McMahon) and Amy Griffith (Griffith), both of whom had

performed their own independent evaluations of White. It was the opinion of both McMahon

and Griffith that White had a mental abnormality that made it more likely than not that he would

reoffend. Their opinions were based on their interviews of White, review of his records, and the

results of tests that were administered to White.

       With respect to the 1996 offenses (the index offenses) McMahon testified that White

admitted to her that he had (then age 27) coaxed a young boy into an alley and compelled him to

perform a sex act on White, and that White did the same. White admitted that he had sexually

assaulted ten other pre-pubescent children, both male and female, by the time he was nineteen,

that he had been previously imprisoned in Texas for sexually assaulting an eight year old boy,

and that he had been on parole for five months when he committed the index offenses in

Atchison County in 1996. McMahon noted that White continued to act out sexually in prison,

despite negative consequences for that behavior. McMahon determined, based on her interview

with appellant and the review of his records and his history, that White met the criteria for

pedophilic disorder, that his ability to make decisions was impaired, and that he still had the urge

to act out with children. McMahon also conducted the Static-99R, the Static-2002R, and the


                                                    3
STABLE 20073 actuarial assessments with White. McMahon testified that she was able to give

an opinion, with a reasonable degree of psychological certainty, whether White had a mental

abnormality that made him more likely than not to engage in predatory acts of sexual violence if

not confined; and indicated that he did suffer such an abnormality that made him more likely

than not to reoffend.

            During McMahon’s testimony, counsel for White (Trial Counsel) requested that the trial

court instruct the jury that, while McMahon was allowed to use hearsay evidence of White’s

prior offenses in arriving at her expert opinion, the statements could not be considered

“independent substantive evidence” that he had had actually committed those acts.4 The trial

court indicated that if any such instruction were given it would be at the conclusion of the case

and not during testimony. Ultimately, the trial court determined that, because the hearsay

evidence was properly relied upon by the expert in forming her opinion, a limiting instruction

would confuse the jury. Consequently, the trial court did not submit the limiting instruction

proposed by White (nor any other such limiting instruction).


3
  These actuarial instruments are tests which utilize an individual’s responses to questions in addition to their
criminal history, age and other factors to generate a number score that is intended to predict whether or not they are
likely to commit a sexual offense. This score is determined by White’s correlation to a pool of individuals with a
known recidivism rate.
4
    At trial Trial Counsel raised the following objection:

            I need to make a record. Anything she's going to say about the details of the offense is hearsay.
            She's an expert, she can rely on it, but with the limiting instruction she cannot testify as to
            substantive evidence. It can only be used to make a credibility determination as to the weight to
            be given to her testimony. If the court is going to overrule my hearsay objection I ask the court to
            give a limiting instruction instructing the jury they are only to receive this evidence to go to the
            weight of her testimony and not to receive the substantive evidence.

         Trial Counsel submitted a proposed jury instruction which stated that "An expert can rely on hearsay
information provided those sources are not offered as independent, substantive evidence, but rather serve only as a
background for his or her opinion."


                                                             4
       Griffith, the Clinical Director for the Missouri Sex Offender Program in the Missouri

Department of Corrections, also testified as to her evaluation of White. In a telephone interview

White admitted to Griffith that he had engaged in sexual violence against prepubescent children.

He also related that, prior to engaging in his first offense, he had sexually fantasized about his

victim. Griffith noted that White’s committing the index offense while on parole and in

treatment, within five months of release from prison in Texas, was consistent with her finding

that he suffered from an inability to control his urges. White indicated, at the time of the

interview, that he had recently been purposely masturbating to sexual thoughts of children.

Griffith testified that White’s persistent sexual urges directed at children, despite being confined

and in treatment, showed difficulty controlling those urges.

       White’s Trial Counsel elicited testimony from two expert witnesses that challenged the

opinions of McMahon and Griffith. Dr. Kamel Rekab (Rekab), a professor of statistics at the

University of Missouri-Kansas City, testified that actuarial instruments such as the Static-99R

and the Static-2002 were inaccurate predictors of behavior. Rekab also pointed out that

according to the Static 99R model, White’s score of 4, did not statistically predict him to

recidivate.

       Q. So even if we accept the Static-99R and use it on it's [sic] own terms, the
       model itself says that with a score of 4 that person is predicted not to recidivate?

       A. It's not that -- I can say more. Any score of 5 and up he will recidivate. Any
       score of 5 and up; 5, 6, 7 and up to 12 will recidivate. Any score from 4 and
       below will not recidivate because of the threshold. Threshold is 18 percent.

       White’s second expert, Eric Janus (Janus), was a law professor who specialized in the

study of how the law addresses sexually violent offenders and had published on the subject of



                                                  5
volitional control. Janus testified that, after he had reviewed the reports completed by the State’s

experts, it was his opinion that the reports failed to incorporate the standard and principles

accepted in the field of law and psychology to distinguish a sexually violent predator from a

typical recidivist. However, the trial court limited Janus’ testimony, sustaining objections that

Janus could not testify regarding the sufficiency of the work of the state’s experts, as follows:

“The question is whether he's qualified to offer an opinion about whether the forensic

psychologists did their jobs properly which he's not qualified to do, so the objection is

sustained.”

         At the conclusion of the evidence the jury returned a verdict finding that White was a

sexually violent predator, and the trial court then entered its judgment committing him to the

Department of Mental Health as a sexually violent predator. This appeal follows.

                                                   ANALYSIS

           No error in refusing to submit the limiting instruction proposed by White.

         In order to have White committed as a sexually violent predator, the State was required to

prove that he had been convicted of an “index” sexually violent offense5 and that he had a mental

abnormality making him more likely than not to commit a future act of sexually predatory

violence unless confined to the custody of the Department of Mental Health. § 632.480(5).

There is no dispute that the 1996 convictions in Atchison County (of statutory sodomy in the first

degree) met the first requirement that White had been convicted of an “index” sexually violent




5
 An “index” offense is the underlying sexually violent offense that provides the basis required for initiating an SVP
proceeding. See § 632.480(4) (defining the offenses that qualify as sexually violent).



                                                          6
offense. Id. The dispute at trial was whether White had a mental abnormality that made him

more likely than not to commit a future act of predatory sexual violence if not confined. Id.

       In his first point on appeal, White contends that the trial court erred in failing to give a

limiting instruction regarding hearsay evidence that the experts related to the jury as part of the

basis for their opinions. White concedes that such “evidence which is inadmissible for one

purpose may be admissible for another.” Danbury v. Jackson Cty., 990 S.W.2d 160, 165 (Mo.

App. W.D. 1999). At the instruction conference, White submitted the following proposed jury

instruction: “An expert can rely on hearsay information provided that those sources are not

offered as independent substantive evidence, but rather serve only as a background for his or her

opinion.” The trial court found this instruction improper, and Trial Counsel did not provide an

alternative limiting instruction.

       “Whether to give a cautionary instruction is generally within the trial court's discretion.

When exercising its discretion, the court should be guided by the degree to which the jury may

be misled by the evidence.” Martin v. Durham, 933 S.W.2d 921, 924 (Mo. App. W.D. 1996)

(internal citations omitted). In this case, White asserts that, under Missouri law, he is entitled to

the limiting instruction as a matter of right. Eltiste v. Ford Motor Co., 167 S.W.3d 742, 756 (Mo.

App. E.D. 2005) (“‘When a trial court receives evidence admissible for one purpose but not for

another, a party upon request is entitled to an instruction limiting the extent and purpose for

which the jury may consider the evidence.’”) (quoting Clayton Center Associates v. W.R. Grace

& Company, 861 S.W.2d 686, 691 (Mo. App. E.D. 1993)). Our inquiry is not only into whether

White was entitled to a limiting instruction, but also whether the failure to provide the instruction

materially affected the result of the trial, resulting in prejudice to White. Id. (“While failure to


                                                  7
give an instruction to which a party is entitled to [sic] is error, reversal is warranted only if the

error is prejudicial, that is when the merits of the action are materially affected.”).

        White argues that he was prejudiced because the jury could have considered the hearsay

statements relied upon by the experts in forming their opinions as substantive evidence of the

truth of the matters asserted in those statements. In particular, White contends that there was a

danger that the jury would commit him because of the incidents of sexual abuse that he related to

McMahon. White maintains that the State encouraged this in its closing argument. “[W]e know

that he has at least 11 victims in his history that we never charged, that he was never punished

for. Mr. White is the reason why we have this [SVP] legislation, why we have this proceeding.” 6

White’s claim that the trial court was required to provide the instruction, and the prejudice he

contends sprang from it, fails to acknowledge the nature of the proceeding.

        In Missouri, SVP commitments are civil proceedings. While some criminal due
        process protections are afforded to those facing commitment, there is no
        requirement that the trial court give a ‘statement to doctors' instruction in civil
        cases generally or under the SVP statute. The instruction is required only in
        criminal cases to protect the accused from self-incrimination, a constitutional
        right which the U.S. Supreme Court has held is not applicable in civil
        commitment proceedings. Because treatment, rather than punishment, was the
        purpose of the proceeding, Mr. Wadleigh's statements to the mental health experts
        were not shielded by the Fifth Amendment privilege.

Care & Treatment of Wadleigh v. State, 145 S.W.3d 434, 439-40 (Mo. App. W.D. 2004) (internal

citations omitted).

        In Missouri, the statements made by White to McMahon, even though hearsay, would be

admissible as an admission against interest. Gamble v. Browning, 277 S.W.3d 723, 728 (Mo.



6
 McMahon indicates that White admitted to assaulting 10 other children before being charged with the offenses in
Texas and Missouri.


                                                        8
App. W.D. 2008). Consequently, the jury would have been free to view White’s admissions to

McMahon and Griffith as substantive evidence of the truth of the matter they asserted.

        White’s proposed limiting instruction asked that the jury be informed that all hearsay

evidence utilized by the experts not be viewed “as independent substantive evidence.” In the

context of evidence which is admissible for one purpose but not another “the giving of a limiting

instruction depends on the making of ‘a proper request’… ‘[i]n the absence of a proper request

therefor, the objector cannot successfully complain of the failure of the court to give a limiting

instruction.’” Sapp v. Morrison Bros. Co., 295 S.W.3d 470, 484 (Mo. App. W.D. 2009) (quoting

Dyer v. Globe–Democrat Publ'g Co., 378 S.W.2d 570, 581 (Mo. 1964)). When a party’s request

for a limiting instruction does not “recognize[] the full range of the issues to which

the…evidence was relevant, they cannot obtain reversal here based on the trial court's refusal to

give the limiting instruction they actually tendered.” Id. at 486. Since White’s proposed limiting

instruction failed to delineate which hearsay statements relied upon by the State’s experts were

not admissible as substantive evidence of the truth asserted, we do not find that the trial court

erred in failing to give it.

        Furthermore, White’s own admissions (that he had sexually abused 11 other children

before the 1996 offenses in Atchison County) were the primary sources of hearsay discussed by

the State’s experts in explaining their opinions at trial. White’s counsel made no specific

contemporaneous objection to hearsay of others relied upon by the State’s experts, and, in fact, it

appears there is little discussion in the direct examination of the State’s experts regarding such




                                                  9
other hearsay.7 In light of White’s own damning admissions, even if defense counsel had made a

timely or proper request for a limiting instruction regarding the other hearsay relied upon by the

State’s experts, the failure to give a limiting instruction did not materially affect the result of the

trial. See Eltiste, 167 S.W.3d at 756.

        Point I is denied.

                    No error in denying White’s motion for a directed verdict. 8

        In his fourth point on appeal, White maintains that the trial court erred in denying his

motion for a directed verdict, because the State failed to introduce evidence that he was more

likely than not to reoffend by committing predatory acts of sexual violence. White argues that

the State therefore failed to make a submissible case under the Act.

        When reviewing the denial of a motion for a directed verdict, this Court is required to

determine whether the State made a submissible case. In re Care & Treatment of Cokes, 107

S.W.3d 317, 321 (Mo. App. W.D. 2003). In making that determination, we view the evidence

and all reasonable inferences from that evidence in the light most favorable to the State. Id. We

disregard all evidence contrary to the State’s case. Id. We do not supply missing evidence nor

do we “give the plaintiff the benefit of unreasonable, speculative, or forced inferences.” Id.

Ultimately, we require that the evidence, and reasonable inferences drawn from it, establish all

elements and not leave any substantive issue to speculation. Id.




7
 The only other hearsay that is specifically discussed were police reports related to the 1996 index offenses, which
were brought up by White’s counsel in cross-examination and redirect of McMahon, and discussed below regarding
White’s third point on appeal.
8
 We address White’s fourth point on appeal out of order because his other points on appeal all spring from the
assertion that his counsel was ineffective; thus, we will address them together.


                                                         10
       In the instant case, White contends that the State failed to put forward “evidence from

which the jury could reasonably infer that Mr. White’s past or future acts would be ‘directed

towards individuals, including family members, for the primary purpose of victimization.’” App.

Br. 42, (quoting § 632.480(3)). White relies on Cokes for this assertion. In Cokes, the expert

witness for the State was asked whether the defendant was likely to “sexually reoffend.” 107

S.W.3d at 322. The expert answered that in his opinion “in terms of probability it is more likely

than not that he will reoffend.” Id. This Court found that the state’s expert never expressed an

opinion as to whether he would reoffend in a predatory and sexually violent way as required by

the Act; and reversed and remanded the case for a new trial. Id. at 323-25. White asserts that the

same issue is present in McMahon’s testimony in this case:

       Q. Doctor, you already told us you believe within a reasonable degree of
       scientific certainty that Mr. White suffers from a mental abnormality. Do you
       have an opinion within a reasonable degree of scientific certainty whether or not
       that mental abnormality makes Mr. White more likely than not to engage in
       predatory acts of sexual violence if he is not confined within a facility?

       A. Yes, I do.

       Q. What is your opinion?

       A. If Mr. White is not confined to a secure facility his mental abnormality of
       pedophilic disorder is going to make it so that he is more likely than not to re-
       offend.

       In Cokes, this Court noted that the expert’s written report stated that the defendant’s

“mental abnormality makes him more likely than not to engage in predatory acts of sexual

violence.” Id. at 325. The report was not offered into evidence at trial, but had it been, this

Court found that it would have been sufficient evidence:




                                                 11
         [T]he record indicates that the State could have presented 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 had the State’s counsel simply asked
         Dr. Mandracchia whether, in his expert opinion, the appellant’s likelihood of
         sexually reoffending would occur in a violent and predatory manner.

Id.

         In this matter, the State asked its expert, McMahon, exactly what was suggested in Cokes

-- whether she had an opinion as to whether White was more likely than not to engage in such

predatory acts of sexual violence if not confined. McMahon replied that she had such an

opinion, and her opinion was that, if not confined, he was more likely than not to reoffend.

White argues that McMahon’s answer was not an affirmative response to the State’s question, but

instead a clarification. This argument elevates form over substance. In the context of the

testimony it is reasonable to infer that McMahon was answering affirmatively to the State’s

inquiry – that it was her opinion that he was more likely than not to reoffend by committing a

predatory act of sexual violence if not confined.9

9
  We also note that a similar question was posed to Griffith after she detailed that White reported being sexually
attracted to children, that he “lately” had been masturbating to sexual thoughts of children and he had been unable to
restrain himself from engaging in sexually inappropriate behavior even in a highly controlled correctional
environment.

         Q. Now as a result of everything that you've told us about here this afternoon do you have an
         opinion about whether or not this mental abnormality you described to the jury is a congential
         [sic] or acquired condition affecting the emotional or volitional capacity that predisposes Mr.
         White to create sexually violent offenses because he has difficulty controlling his behavior?

         A. Yes.

         Q. You hold that opinion to a reasonable degree of scientific certainty?

         A. Yes.
Griffith also indicated that White was “engaging in what we call offense parallel behaviors which are behaviors
similar in dynamic to the [index] offense.” In this context, it could be inferred that it was her opinion that White’s
inability to control his behavior represented a danger for him to commit sexual offenses of the type which caused
him to be incarcerated.



                                                           12
       Point IV is denied.

           No prejudice resulted from purported ineffective assistance of counsel.

       In his second, third, and fifth points on appeal, White claims that the trial court erred in

permitting him to be committed as a sexually violent predator because he did not receive

effective assistance of counsel. Because an SVP proceeding impairs a protected liberty interest,

the Missouri Supreme Court has held that individuals subject to a commitment proceeding have a

due process right to counsel that attaches when the action is brought. Bernat v. State, 194 S.W.3d

863, 868 (Mo. banc 2006). In Grado v. State, 559 S.W.3d 888 (Mo. banc 2018), the Missouri

State Supreme Court recently made clear that the right to counsel includes the right to effective

counsel.

       [A]n SVP proceeding is the original trial at which the initial determination is
       made whether the respondent can be involuntarily committed as an SVP. These
       original actions are brought by the State and result in a proceeding in which the
       courts determine in the first instance whether the person’s liberty will be taken
       away. Counsel in these proceedings help to protect the individual from having a
       fundamental right of liberty taken away. The SVP proceeding is in this way more
       comparable to the trial of a criminal defendant than to the criminal defendant’s
       postconviction proceeding. In the criminal context, this Court has recognized the
       right to counsel means the right to effective counsel.

Id. at 895-96.

       Noting that there is currently no statutory mechanism that provides a method for the

subject of an involuntary commitment as a sexually violent predator to assert that their right to

effective counsel was infringed, the Grado Court held that, where the record was adequate,

claims of ineffective assistance of counsel could be raised on direct appeal. Id. at 897.

       However, the Grado Court declined to elect a standard of review for evaluation of the

effectiveness of counsel, finding that Grado’s counsel was effective under either the “meaningful


                                                 13
hearing” standard proposed by the State or the Strickland test proposed by Grado. Id. at 898.10

For the purpose of reviewing whether White’s claims of ineffective assistance of counsel are

cognizable on this direct appeal we will review the effectiveness of White’s counsel under the

more exacting Strickland standard. Under the test outlined in Strickland v. Washington, 466 U.S.

668, 687 (1984), White was required to prove two elements to establish he was entitled to relief

for the inadequate performance of counsel: “(1) that counsel's performance did not conform to

the degree of skill, care and diligence of a reasonably competent attorney; and (2) that [White]

was thereby prejudiced.” Haskett v. State, 152 S.W.3d 906, 909 (Mo. App. W.D. 2005). If White

fails to demonstrate either of the two elements it is not necessary for us to conduct an analysis of

both the ineffective assistance and prejudice prongs. Johnson v. State, 451 S.W.3d 276, 279 (Mo.

App. W.D. 2014).




10
     In full, the Grado Court held:

                     Under the “meaningful hearing” standard, this Court would determine – based on the
           record on appeal – whether counsel provided Mr. Grado with a meaningful SVP hearing. Strickland
           would require Mr. Grado to show by a preponderance of the evidence: “(1) his or her counsel failed
           to exercise the level of skill and diligence that a reasonably competent counsel would in a similar
           situation, and (2) he or she was prejudiced by that failure.” Mallow v. State, 439 S.W.3d 764, 768-
           69 (Mo. 2014). In order to overcome the “strong presumption that counsel’s conduct was
           reasonable and effective,” Smith v. State, 370 S.W.3d 883, 886 (Mo. banc 2012), Mr. Grado would
           have to identify “specific acts or omissions of counsel that, in light of all the circumstances, fell
           outside the wide range of professional competent assistance,” Zink v. State, 278 S.W.3d 170, 176
           (Mo. banc 2009). “Trial strategy decisions may only serve as a basis for ineffective counsel if they
           are unreasonable.” Id. In order to prove the prejudice prong of Strickland, the question is whether
           “there is a reasonably probability that, but for counsel’s unprofessional errors, the result of the
           proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.


Id. at 898.




                                                           14
         In his second point, White contends that Trial Counsel’s failure to call Dr. Luis Rosell

(Rosell) as an expert witness constituted ineffective assistance of counsel, because Rosell would

have testified that White was not a sexually violent predator. To establish that his trial counsel

did not exercise the customary skill and diligence of a reasonably competent attorney, White has

to show that the decision not to call Rosell as a witness “fell outside the wide range of

professional competent assistance.” Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009)

(quoting Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006)). Failure to call a witness can

support a claim for ineffective assistance of counsel if “(1) trial counsel knew or should have

known of the existence of the witness; (2) the witness could be located through reasonable

investigation; (3) the witness would testify; and (4) the witness's testimony would have produced

a viable defense.” Radmer v. State, 362 S.W.3d 52, 55 (Mo. App. W.D. 2012) (internal quotation

marks omitted) (quoting Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004)). Our

Supreme Court determined that “[t]rial counsel’s selection of which expert witnesses to call at

trial generally is a question of trial strategy and is virtually unchallengeable. To show ineffective

assistance of counsel based on failure to present an expert witness, a movant is required to show

what the evidence would have been if the witness had been called.” Anderson v. State, 564

S.W.3d 592, 602 (Mo. banc 2018) (internal citation omitted).

         The record on appeal is devoid of any discussion of why Trial Counsel did not call Rosell

as a witness.11 The record does not establish whether Rosell was available to testify or whether




11
  White asserts that Rosell was endorsed as a defense witness, but we could find nothing in the legal file to support
this assertion.



                                                         15
that testimony would have been helpful to White.12 The record does not indicate whether the

decision to not call Rosell as a witness was intended trial strategy; or whether it was an oversight

or a failure to be prepared. The record is therefore inadequate to determine whether not calling

Rosell as a witness was reasonable trial strategy; or whether, in failing to call Rosell, trial

counsel's performance did not conform to the degree of skill, care and diligence of a reasonably

competent attorney.13 The record does not therefore establish (one way or the other) whether not

calling Rosell as a witness (as alleged in Point II) satisfies the first (performance) prong of the

Strickland test.

         In his third and fifth points on appeal, White contends that his counsel was ineffective in

cross-examining the State’s expert McMahon. In particular, in his third point White asserts that

trial counsel’s performance was ineffective, when, in cross-examining McMahon, he elicited

testimony regarding a police report of the 1996 Missouri index offense, which indicated that

White had anally sodomized the child victim. In cross-examining McMahon, White’s counsel

attempted to discredit McMahon’s finding, which relied on this report, by introducing an earlier

police report which indicated that White had not anally sodomized the victim. McMahon related

that the police reports came up in her interview with White, because White felt it important to

clarify that he had not committed that particular act (anally sodomizing the victim). McMahon

conceded that this earlier report was consistent with White’s denial of anal penetration in his


12
   White included the report created by Rosell in the Appendix, but (as White acknowledges) that document was not
part of the legal file and hence not part of the record on appeal. “The mere inclusion of documents in an appendix to
a brief does not make it part of the record on appeal.” State ex rel. Miss. Lime v. Missouri Air, 159 S.W.3d 376, 380
n. 2 (Mo. App. W.D. 2004).
13
  Though the record is inadequate on its face to permit us to determine whether Trial Counsel's performance
conformed to the degree of skill, care and diligence of a reasonably competent attorney, (the Strickland performance
prong), it is not inadequate to permit us to address the prejudice prong, which we discuss, infra.


                                                         16
interview with her. McMahon maintained that it was possible for the victim to have been

assaulted in that manner and only share that fact later. We find the record sufficient to establish

that this effort to discredit the foundation of the McMahon testimony was (as presumed)

reasonable trial strategy, and that counsel's performance did not fail to conform to the degree of

skill, care, and diligence of a reasonably competent attorney. Anderson, 564 S.W. 3d at 600.

           In his fifth point on appeal, White maintains that his trial counsel was ineffective, when,

in the course of his cross-examining McMahon regarding her calculation of his Static99-R score,

counsel elicited testimony that was damaging to White’s position.14 In particular, White


14
     A portion of the Mueller cross-examination of McMahon follows:

           Q. So in your opinion as a forensic evaluator is it important to have an understanding of what the
           specific details are on that offense or is it good enough for you to say sodomy, that's good, I don't
           need to know more?

           A. When we're making a determination I think it's important to see what the facts of the case are,
           what the police are saying occurred, what the defender says occurred. You can look for
           discrepancies. If you have access to, you know, the facts of the case as indicated by police files,
           it's important to look at those.

           Q. Did you in fact have access to the original police reports?

           A. Yes.

           Q. And have you reviewed those?

           A. Yes, I have.

           Q. Now isn't it true that Ron denied any kind of anal penetration on the victim in the index
           offense?

           A. During my evaluation with him he did deny that.

           Q. Isn't it true the original police reports also don't make any mention of anal penetration?

           A. I would have to go back and look at original police report.

***
           Q. Okay. And you didn't bring any records with you that contradict this original police report?



                                                            17
contends that this cross-examination of McMahon provided the only evidence which would

indicate that White would be likely to reoffend. As previously discussed, this contention is

inaccurate, as there was ample evidence that White had repeatedly committed sexual offenses,

and committed the index offenses shortly after his release from prison on a separate offense and

while on parole. Trial Counsel’s cross-examination of McMahon revealed that White’s score on

the Static99R was 20.1%. By bringing this into evidence, White was able to argue that a 20%

chance of reoffending did not mean that White was more likely than not to reoffend. Again, we

find the record adequately demonstrates that this was a reasonable trial strategy, and that in

conducting this portion of the cross-examination of McMahon, White’s counsel conformed to the

degree of skill, care, and diligence of a reasonably competent attorney.

       To prevail on his claim of ineffective assistance of counsel, White must also show that he

was prejudiced by his counsel's alleged failure to perform in a competent fashion (the second

prong of the Strickland standard). Id. If we assume, arguendo, that White’s Trial Counsel was

ineffective in failing to call Rosell as a witness (which we cannot determine by the record), and

that counsel was ineffective in his cross-examination of McMahon (which is actually refuted by

the record), we find that the record is adequate to determine the second prong of the Strickland

test: whether “there is a reasonable probability that, but for counsel's [alleged] unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a




       A. Unfortunately, most my records I get are on disk and I don't have access to a laptop while
       testifying. So it's not useful to bring the records I have.

       Q. So you don't have any records in court today?

       A. I don't.


                                                       18
probability sufficient to undermine confidence in the outcome.” Deck v. State, 68 S.W.3d 418,

426 (Mo. banc 2002) (quoting Strickland, 466 U.S. at 694). “This standard is not met by

showing that the errors ‘had some conceivable effect on the outcome of the proceeding’ or that

the errors ‘impaired the presentation of the defense,’ as those standards are either unworkable or

subject to being satisfied by every error.” Id. (quoting Strickland, 466 U.S. at 693).

       In the instant case, the evidence was that White had engaged in a pattern of repeated

sexual assault on ten underage victims by the time he was nineteen; and that this pattern was

only interrupted when he was imprisoned for sexual assault of a minor in Texas. This pattern

resumed within five months after he was released from Texas when he committed the index

offenses in Missouri, which occurred while he was on supervised parole. The evidence further

established that White had failed to complete the Missouri Sex Offender Program while in prison

and that he continued to act out sexually while in prison, despite the highly controlled

correctional environment, and even though he incurred negative consequences for these actions.

White also reported to Griffith that he “lately” had been masturbating to sexual thoughts of

children. Based on that and other evidence, Griffith and McMahon both concluded that White

suffered from a mental abnormality that caused him to have sexual desires for children and that

he had not demonstrated an ability to control those urges.

       White asserts in his second point on appeal that Rosell would have indicated that White

was not a sexually violent predator; and the State appears to acknowledge that Rosell’s opinion

would have been that “the facts that [the State’s] experts looked at do not lead me to the




                                                19
conclusion that he has serious difficulty controlling his behavior."15 In light of the overwhelming

evidence that White was unable to control his urges, the testimony of an expert (Rosell) who

examined the same evidence, but purportedly came to a different conclusion than the State’s two

experts, without something more, does not demonstrate a reasonable probability that the jury

would have come to a different conclusion. Even if Rosell would have testified as alleged in

White’s Brief and as acknowledged by the State, and if we assume, arguendo, that counsel was

ineffective in its cross-examination of McMahon, these purported errors do not undermine

confidence in the outcome, and do not establish that “there is a reasonable probability that” the

results of the proceeding would have been different. Liggins v. State, 512 S.W.3d 847, 850 (Mo.

App. E.D. 2017).

         Points II, III, and V are denied.

                                                 CONCLUSION

         The judgment of the trial court is affirmed.



                                                            /s/ Thomas N. Chapman
                                                            Thomas N. Chapman, Presiding Judge


All concur.




15
  At trial, in the context of objecting to the testimony of defense expert Janus, counsel for the State characterized
the Rosell opinion as follows: “An expert was hired. Dr. Rosell was hired and Dr. Rosell issued a report
saying, ‘In my opinion, the facts that these experts looked at do not lead me to the conclusion that he has serious
difficulty controlling his behavior.’ That is an appropriate expert witness.”



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