            IN TH MIS
                HE  SSOURI COUR OF A
                         I    RT   APPEAL
                                        LS
                   WESTER DIST
                   W     RN   TRICT

IN THE MATTER OF THE CARE AND                   )
TREATM  MENT OF LESTER BRADLEY
                       B                        )
a/k/a LE
       ESTER B. BRADLEY, a/k/a
                B                               )
LESTER BERNAR BRADLE
       R        RD      EY,                     )
                                                )
                                                    W
                                                    WD76441
                                  Appellan
                                         nt,    )
                                                )
                                                    OPPINION FIL
                                                               LED:
v.                                              )
                                                    Ju 17, 2014
                                                     une      4
                                                )
                                                )
STATE OF MISSO
             OURI,                              )
                                                )
                                Responden
                                        nt.     )


                App from th Circuit Court of Jac kson Count Missouri
                  peal      he       C                      ty,    i
                       The Ho
                            onorable Ka
                                      athleen A. F
                                                 Forsyth, Jud
                                                            dge

                 Be
                  efore Divisio One: Jos
                              on         seph M. Ellis Presiding Judge, and
                                                     s,
                   Karen King Mitchell an Anthony R Gabbert Judges
                                        nd          Rex         t,

       Lester Bradle appeals th probate co
       L           ey         he         ourt’s judgm
                                                    ment, following a jury tria finding h to
                                                                              al,       him

be a sexu
        ually violent predator an committi him to th custody o the Depar
                    t           nd       ing       he        of        rtment of M
                                                                                 Mental

Health fo control, care, and trea
        or         c            atment. Bra
                                          adley raises three claims on appeal: first, he ar
                                                                             :            rgues

that the evidence wa insufficien to clearly and convin
         e         as          nt         y          ncingly estab
                                                                 blish that he was more l
                                                                             e          likely

than not to reoffend sexually if not confined; second, h claims th the proba court err in
                                                       he        hat       ate       red

denying his motion to dismiss fo failure to hold a prob
                   t           or                     bable cause h
                                                                  hearing with the statut
                                                                             hin        torily
required 72-hour period following his detention on the State’s petition; and third, he claims that

the probate court abused its discretion in excluding evidence regarding the multidisciplinary

team’s assessment. Because the court erred in determining that the assessment was inadmissible

pursuant to section 632.483.5,1 we reverse the probate court’s judgment and remand for further

proceedings.

                                        Factual Background

        Beginning in October of 1996, Bradley began molesting his twelve-year-old

step-daughter by fondling her vagina, forcing her to fondle his penis, forcing her to lie on top of

him and rub herself against his penis, and performing oral sex on her. Bradley advised the

victim that she was participating in classes on rape, and at the conclusion, she would receive

“feely certificates.” These “classes” lasted approximately two months, until Bradley advised the

victim of the final lesson, which would involve insertion of his penis into her vagina, after which

she would receive a “rape certificate.” Bradley advised the victim that after her final lesson,

Bradley would then begin lessons with the victim’s eight-year-old sister. After Bradley advised

the victim of his future plans, the victim reported Bradley’s abuse to her mother sometime

around Christmas of 1996. Bradley was subsequently charged with and convicted of one count

of first-degree statutory sodomy and two counts of second-degree child molestation.

        While in prison, Bradley completed the Missouri Sex Offender Program (MOSOP) in

December 2007, and he was released on parole in March 2008. Conditions of Bradley’s parole

included: registration as a sex offender, participation in sex offender treatment, no unsupervised

contact with children, and no viewing or possessing pornographic material. Within months of

being paroled, Bradley began watching pornography and started a relationship with a woman


        1
          All statutory references are to the Missouri Revised Statutes 2000, as updated through the 2013
Cumulative Supplement, unless otherwise indicated.


                                                   2
who had a ten-year-old daughter. Bradley would spend two or three nights per week at the

woman’s home, babysit the daughter without supervision for up to ten hours at a time while the

mother worked, and drive the daughter to and from school approximately two days per week, all

in violation of his parole conditions. Although he was in sex offender treatment at the time,

which required him to self-identify and report risky behaviors, Bradley did not reveal his

relationship or his contact with the ten-year-old girl. He did, however, report that, just before he

was paroled, he began having sexual fantasies about his prior victim and masturbating to those

fantasies. After his violations were discovered, Bradley’s parole was revoked in October 2008

and he returned to the Department of Corrections to finish serving his sentence. When asked

about his unauthorized contact with the ten-year-old girl, Bradley indicated: “I’m not attracted

to her because she’s fat.”

         Before Bradley’s scheduled release date on June 9, 2011, Dr. Kimberly Weitl, a licensed

psychologist with the Department of Corrections, filed an end-of-confinement report, indicating

her belief that Bradley met the definition of a sexually violent predator (SVP) and referring the

matter to the multidisciplinary team (MDT)2 for further evaluation.                         The MDT reviewed

Bradley’s records and unanimously concluded that Bradley did not appear to meet the definition

of a sexually violent predator. Thereafter, the prosecutors’ review committee3 met and, contrary

to the MDT, unanimously concluded that Bradley did meet the definition of a sexually violent

predator. The Attorney General, acting on behalf of the State, then filed a petition to civilly

commit Bradley as a sexually violent predator.

         2
           The MDT is established by the directors of the departments of both mental health and corrections, and it
consists of no more than seven members, including at least one from each department. § 632.483.4. The MDT is to
assess whether the person meets the definition of a sexually violent predator. Id. It appears from the record that the
current MDT actually consists of four members: a psychiatrist from the department of corrections, a psychologist
with a Ph.D. from the department of mental health, a medical doctor from the department of mental health, and a
psychologist with a Ph.D. from the department of corrections.
         3
           This committee consists of five prosecutors who are to review the person’s records and determine whether
he or she meets the definition of a sexually violent predator. § 632.483.5.


                                                          3
         Within the petition, the State requested that the probate court find probable cause to

believe that Bradley was a sexually violent predator and set a hearing within 72 hours of his

detention on the petition in order to allow Bradley the opportunity to appear and contest the

probable cause determination. On May 24, 2011, the probate court entered an order finding

probable cause to believe that Bradley met the definition of a sexually violent predator under

section 632.480(5) and ordering that Bradley be brought to Jackson County for a probable cause

hearing on June 10, 2011 (the day after his scheduled release from the Department of

Corrections).

         On May 26, 2011, the State filed a motion to move the probable cause hearing due to

unavailability of its expert witness on the scheduled hearing date. The State proposed three

alternative dates: June 8, June 9, or June 13, 2011.4 Also on May 26, 2011, Assistant Public

Defender Randall Schlegel entered his appearance on Bradley’s behalf and consented to either

June 8 or June 9, but indicated his own conflict with June 13.

         On June 3, 2011, the court held what appears to have been a status or scheduling

conference, wherein both the State and Mr. Schlegel appeared, to discuss the State’s motion. It

appears that, at this hearing, the court indicated that it was not available on any of the proposed

dates.5 The State indicated that it was ready to present evidence in support of the petition.

Mr. Schlegel, acting on Bradley’s behalf, indicated that Bradley freely and voluntarily waived

his right to have the probable cause hearing held within the 72-hour time period prescribed by

section 632.489.2, but “request[ed] a continuance of this opportunity.” The court found that

Bradley freely and voluntarily waived the 72-hour time limitation for the probable cause hearing

         4
            Bradley conceded that all three of the proposed dates in the State’s motion fell within section 632.489.2’s
requirement that a probable cause hearing be held within 72 hours of the person being taken into custody on the
petition.
          5
            There is no transcript of this hearing in the record on appeal, but both Bradley’s motion to dismiss and the
State’s response indicate that the court revealed its unavailability on the suggested dates during the hearing.


                                                           4
and that Bradley would not be prejudiced by a continuance of the hearing. The court then

ordered that the probable cause hearing be continued until July 6, 2011, and that Bradley was to

remain in the custody of the Jackson County Sheriff’s Department until the proceedings were

concluded. The court held the probable cause hearing on July 6, 2011, without objection, and

found probable cause to believe that Bradley was a sexually violent predator.

       Thereafter, pursuant to court order, Bradley was evaluated by Department of Mental

Health psychologist, Dr. Stephen Jackson. Although Dr. Jackson believed that Bradley suffered

from a mental abnormality (pedophilia) that caused him serious difficulty controlling his

behavior, Dr. Jackson did not believe that Bradley was more likely than not to reoffend sexually

if not confined; thus, he opined that Bradley was not a sexually violent predator.

       The State retained Dr. Angeline Stanislaus, a psychiatrist, to review Bradley’s records

and determine whether he met the definition of a sexually violent predator. Dr. Stanislaus

diagnosed Bradley with both pedophilia and anti-social personality disorder, both of which she

deemed to constitute mental abnormalities that caused Bradley serious difficulty controlling his

behavior. Dr. Stanislaus also opined, based upon her use of actuarial tools, that Bradley was

more likely than not to reoffend sexually if not confined; thus, Dr. Stanislaus was of the opinion

that Bradley met the definition of a sexually violent predator.

       Bradley retained Dr. Jarrod Steffan, a psychologist, to conduct an evaluation. Dr. Steffan

diagnosed Bradley with anti-social personality disorder, a mental abnormality that caused

Bradley serious difficulty controlling his behavior.       Unlike Drs. Jackson and Stanislaus,

however, Dr. Steffan rejected the diagnosis of pedophilia based upon his perception of the

victim’s stage of puberty at the time of the crimes. Like Dr. Jackson, Dr. Steffan also rejected

the notion that Bradley was more likely than not to reoffend sexually if not confined. Dr. Steffan




                                                 5
specifically took issue with the manner in which Dr. Stanislaus scored the actuarial instruments

when assessing Bradley’s future risk; he believed that Dr. Stanislaus improperly relied upon

Bradley’s parole violation, rather than his sexual convictions, to establish Bradley’s index

offense6 for scoring purposes.

         On January 4, 2013, twenty-four days before trial and eighteen months after the probable

cause hearing, Bradley filed a motion to dismiss due to the court’s failure to hold the probable

cause hearing within 72 hours of Bradley being taken into custody on the petition. Bradley

argued that he did not consent to the untimely hearing and that he was prejudiced in that, without

its expert, the State would not have been able to establish probable cause, and Bradley would

have been released. Bradley argued that the 72-hour time period was jurisdictional and that the

court’s failure to timely hold the probable cause hearing deprived the court of jurisdiction to

proceed on the State’s petition. The State filed a response, conceding that the hearing was held

outside of the 72-hour window but arguing that Bradley waived his right to challenge the timing,

given his consent to the court’s setting of the hearing outside of the 72-hour window.

         During Bradley’s opening statement, he mentioned the MDT assessment, and the State

objected on the ground that the MDT assessment was inadmissible under section 632.483.5. The

court sustained the objection. During Dr. Jackson’s testimony, Bradley sought to elicit testimony

regarding the MDT assessment, and again the State objected, claiming that the assessment was

inadmissible under the statute. Bradley argued that the statute excluded evidence pertaining to

only the prosecutors’ review committee and not the MDT assessment. The court reviewed the

statute, agreed with the State, sustained the objection, and struck Dr. Jackson’s testimony


         6
           Bradley’s experts suggested that the “index offense” for purposes of the actuarial instrument is the
subject’s “most recent sex offense,” which is usually a conviction, but is not required to be; if the index offense is
not a conviction, then it must be “something that[,] if the person was not in the prison setting or under supervision, it
would be behavior they could be criminally charged with.”


                                                           6
regarding the MDT assessment. At the close of evidence, Bradley argued that the court’s ruling

regarding the MDT assessment denied him his rights to due process and a fair trial under both

the United States and Missouri Constitutions.

       The jury found Bradley to be a sexually violent predator, and on January 20, 2013, the

court ordered that he be committed to the Department of Mental Health for control, care, and

treatment. Bradley appeals.

                                            Analysis

       Bradley raises three claims on appeal. First, he claims that the evidence was insufficient

to sustain the State’s burden of clearly and convincingly proving that Bradley was a sexually

violent predator in that the evidence did not support a finding that Bradley was more likely than

not to reoffend sexually if not confined. Second, Bradley claims that the probate court erred in

overruling his motion to dismiss for failure to hold his probable cause hearing within the 72-hour

time period prescribed by statute. And finally, Bradley claims that the probate court erred in

excluding evidence regarding the MDT assessment. For ease of discussion, we take Bradley’s

points out of order.

   A. The probate court did not err in overruling Bradley’s motion to dismiss.

       In his second point, Bradley argues that the probate court should have dismissed the

proceedings due to the court’s failure to hold a probable cause hearing within 72 hours of

Bradley’s custodial detention on the State’s petition. Bradley argues that the court’s failure

deprived the court of jurisdiction and denied him due process of law.

       Once the State files a petition to civilly commit an individual as an SVP, the probate

court judge makes an initial determination as to “whether probable cause exists to believe that

the person named in the petition is a sexually violent predator.” § 632.489.1. “If such probable




                                                7
cause determination is made, the judge shall direct that person be taken into custody and direct

that the person be transferred to an appropriate secure facility, including, but not limited to, a

county jail.” Id. Then,

        [w]ithin seventy-two hours after a person is taken into custody pursuant to
        subsection 1 of this section, excluding Saturdays, Sundays and legal holidays,
        such person shall be provided with notice of, and an opportunity to appear in
        person at, a hearing to contest probable cause as to whether the detained person is
        a sexually violent predator.

§ 632.489.2. (Emphasis added.)

        Thus, there are two probable cause determinations to be made in any given SVP

commitment proceeding. First, upon the filing of the petition, the judge must make a probable

cause determination in order for the State to take the individual into custody. Then, within 72

hours of when that custodial detention begins, the individual must be afforded a hearing in order

to contest the initial determination of probable cause. Following the hearing, the judge again

makes a determination as to whether probable cause exists to believe the person is a sexually

violent predator.

        Here, the judge made the initial probable cause determination on May 24, 2011, and

ordered that Bradley be taken into custody. Included in that order was a date for Bradley’s

probable cause hearing, which was June 10, 2011. Bradley was released from the Department of

Corrections on June 9, 2011, and taken into the custody of the Jackson County Sheriff on the

same day for purposes of the SVP proceedings. Thus, under section 632.489.2, Bradley was

entitled to a hearing to contest the initial probable cause finding no later than June 14, 2011.7

His hearing, however, was not held until July 6, 2011. He argues that the court’s failure to hold

the hearing within the 72-hour window deprived the court of jurisdiction.

        7
           The record reflects that June 9, 2011, was a Thursday. Because Saturday and Sunday do not count in the
calculation of the 72-hour period, June 14, 2011, was the last day on which the hearing could have been held within
the statutory time limit.


                                                        8
       Normally, “[w]e review a trial court’s refusal to dismiss on jurisdictional grounds for an

abuse of discretion.” In re Care and Treatment of Perkins, 175 S.W.3d 179, 179 (Mo. App. E.D.

2005). And we will “find an abuse of discretion when a trial court’s ruling clearly violates the

logic of the circumstances or is arbitrary or unreasonable.” Id. Here, however, the State argues

that Bradley waived this claim below by consenting to a date outside of the 72-hour window.

But because Bradley claims that the trial court lost subject-matter jurisdiction after 72 hours, and

because subject-matter jurisdiction cannot be waived, we must first discern whether the 72-hour

time limit is jurisdictional. “‘[A] question as to the subject-matter jurisdiction of a court is

purely a question of law, which is reviewed de novo.’” State ex rel. State v. Parkinson, 280

S.W.3d 70, 75 (Mo. banc 2009) (quoting Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102

S.W.3d 10, 22 (Mo. banc 2003)). Only after this determination can we determine whether

Bradley waived this claim or whether the probate court abused its discretion in overruling his

motion to dismiss.

       There is a distinction between a jurisdictional defect and mere error. Id. If a petition to

have a person declared to be an SVP is filed in the probate division of the circuit court in which

he was convicted or previously committed, “[t]hat court has personal jurisdiction over him and

subject[-]matter jurisdiction to determine SVP proceedings.” Id. (citing §§ 632.486, 632.489,

and 472.020). Any errors in fulfilling pre-trial requirements are just that: errors. See id. at 75-

77. And they are subject to the general determinations of “whether that error caused a failure of

proof, whether it was waived, [or] whether it was prejudicial and similar issues.” Id. at 75.

       There is no question that “[t]hose charged with duties under the [SVP law] should

attempt to fulfill all such duties.” Id. at 76. And “[i]f they intentionally fail to do so, or if they

fail to correct their error when it timely is brought to their attention, it would be appropriate to




                                                  9
direct them to do so [by writ].” Id. “But that does not make every error in fulfilling pretrial . . .

requirements a condition precedent to action on a petition, any more than errors in holding a

preliminary hearing deprive a court of authority to conduct the trial[8] . . . .” Id. at 76-77. “It

simply means that the error may be waived, and if not waived the issue of prejudice becomes a

factual one.” Id. at 77.

        The question in Parkinson did not involve the timing of the probable cause hearing;

rather, it discussed a pre-filing requirement that the psychologist conducting the end-of-

confinement report be licensed in Missouri. Id. at 74-75. The Court determined that this

requirement was not jurisdictional. Id. at 75. Although there are Missouri cases discussing the

timing of the trial itself, we have located none discussing the effect of an untimely probable

cause hearing. We have, however, found cases from other jurisdictions addressing the issue. For

example, the Washington Supreme Court has held that “absent a possible change in the outcome,

prior deprivation of a 72-hour probable cause hearing did not warrant reversal.” In re Detention

of Campbell, 986 P.2d 771, 777 (Wash. banc 1999). Thus, the Washington court found that the

failure to comply with the 72-hour time limit was mere error and not a jurisdictional defect.

Likewise, the Minnesota Supreme Court determined that mandatory timing provisions of its SVP

law were not jurisdictional, even though they provided for dismissal and discharge for

noncompliance. In re Civil Commitment of Giem, 742 N.W.2d 422, 426-31 (Minn. 2007).

        Furthermore, the Missouri Supreme Court has rejected a claim that noncompliance with

other timing requirements in an SVP proceeding resulted in a loss of jurisdiction. In re Care and

Treatment of Donaldson, 214 S.W.3d 331, 333 (Mo. banc 2007). In Donaldson, the initial SVP

        8
          See State v. Caffey, 438 S.W.2d 167, 172 (Mo. 1969) (“The preliminary examination, and all matters
leading up to it, including unnecessary delay and adjournments for more than ten days at one time, are procedural
matters which amount to irregularities but do not go to the jurisdiction of the court. Even the absence of a
preliminary examination ‘does not ipso facto deprive the circuit court of jurisdiction.’” (quoting Lambus v. Kaiser,
176 S.W.2d 494, 497 (Mo. banc 1943))).


                                                        10
proceeding resulted in a mistrial due to an insufficient number of qualified jurors. Id. at 332.

Contrary to statute, the retrial did not occur within 90 days of the mistrial declaration. Id. The

appellant sought dismissal, arguing that the SVP statutes were akin to the Uniform Mandatory

Disposition of Detainers Law (UMDDL), which required the dismissal of a matter if the

individual was not tried within the statutory time periods because the failure to comply with the

time periods resulted in a loss of jurisdiction. Id. at 333. The Court disagreed, stating:

        These [UMDDL] sections amply demonstrate the legislature’s ability to specify
        that dismissal is required if a time limit is not met. The absence of similar
        language in sections 632.492 and 632.495 negates finding any similar legislative
        intent to require dismissal if the 90-day time limit in these statutes is not met.

Id.

        As with the 90-day limit for retrial following mistrial, there is no language in section

632.489 providing for dismissal if the 72-hour time period for the probable cause hearing is not

met. Thus, according to the rationale of Donaldson, noncompliance does not divest a court of

jurisdiction.

        Bradley points to the New Hampshire Supreme Court’s decision in State v. Fournier, 969

A.2d 434 (N.H. 2009), for support. In Fournier, the court determined that its SVP law’s time

limits (including those applicable to an initial probable cause determination) were jurisdictional

and that noncompliance required dismissal for lack of jurisdiction. 969 A.2d at 439.

        We are unpersuaded that the Fournier court’s reasoning applies to Bradley’s situation for

two reasons: (1) New Hampshire’s SVP law is procedurally distinct from Missouri’s; and (2)

New Hampshire does not determine jurisdiction the same way Missouri does. First, New

Hampshire’s statutory scheme for SVP civil commitment indicates that all commitment

proceedings are to take place before the individual is released from incarceration on his criminal

offenses. Id. at 438-39. Thus, the timing of the hearings carries a greater significance.



                                                 11
        Second, New Hampshire determines whether a timing provision is jurisdictional based

upon its intended purpose:

        When interpreting the goals of a statute, we have distinguished between two types
        of time limits: those involving a liberty interest and those involving “a general
        interest in hastening adjudicative dispositions.” Appeal of Martino, 138 N.H. 612,
        615-16, 644 A.2d 546 (1994). “Where the legislature, out of liberty interest
        concerns, has mandated time limits for holding hearings, we have held that
        personal jurisdiction over a defendant is lost, absent waiver, if the case is not
        heard within the statutory period.” Id. at 615, 644 A.2d 546. “Where the
        legislature has prescribed time limits out of a general interest in hastening
        adjudicative dispositions for the benefit of all parties involved, however, we have
        been unwilling to treat the time limit as jurisdictional.” Id. at 616, 644 A.2d 546.

Id. at 438.9

        Jurisdiction in Missouri, however, is constitutionally determined.                      “Missouri courts

recognize two kinds of jurisdiction: subject[-]matter jurisdiction and personal jurisdiction.”

J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 252 (Mo. banc 2009). “These two kinds of

jurisdiction—and there are only two for the circuit courts—are based upon constitutional

principles.” Id. “Personal jurisdiction is, for the most part, a matter of federal constitutional

law.” Id. “Subject[-]matter jurisdiction is governed by article V of the Missouri Constitution.”

Id.

        In light of the Missouri Supreme Court’s holdings in Parkinson, Donaldson, and Webb,

we discern no basis for determining that the 72-hour time limit for holding the probable cause

hearing is a jurisdictional prerequisite to proceeding on the State’s petition. Rather, it appears to

be mere error, subject to waiver and requiring a showing of prejudice to warrant reversal. Thus,

we turn to the State’s argument that Bradley waived this claim of error.
        9
           Notably, while Fournier treats the time limits under New Hampshire’s SVP statute as “jurisdictional,” it
characterizes those time limits as a matter of personal jurisdiction, not as a matter of subject-matter jurisdiction.
969 A.2d 434, 438 (N.H. 2009). As recognized in the quoted passage, defects in personal jurisdiction are generally
waivable by the defendant. See also, e.g., Hope’s Windows, Inc. v. McClain, 394 S.W.3d 478, 483 (Mo. App. W.D.
2013); Campbell v. Francis, 258 S.W.3d 94, 98 n.1 (Mo. App. W.D. 2008). Therefore, even if we followed
Fournier and treated the 72-hour requirement as “jurisdictional,” Bradley’s waiver of the 72-hour requirement,
discussed below, would nonetheless be effective.


                                                        12
       Following the court’s initial probable cause determination, the State filed a motion to

move the probable cause hearing to a different date (still within the 72-hour window) due to the

unavailability of its expert witness on the scheduled date. Bradley’s counsel consented to two of

the three dates proposed by the State. The court’s schedule, however, did not accommodate any

of the agreed-upon dates within the 72-hour window.            Consequently, Bradley’s counsel

consented to a setting outside of the 72-hour period, and the court’s order reflects that Bradley,

through counsel, “freely and voluntarily waive[d] his right to appear and contest probable cause

as to whether he is a sexually violent predator within 72 hours.”

       The transcript of the probable cause hearing is not part of our record on appeal. Because

it is Bradley’s burden to provide us with this record and he has failed to do so, we assume that it

is supportive of the probate court’s decision below. See Bruns v. Bruns, 186 S.W.3d 449, 454

(Mo. App. W.D. 2006) (“‘All evidentiary omissions in the record on appeal are presumed to

support the trial court’s decision.’” (quoting Runny Meade Estates, Inc. v. Datapage Techs. Int’l,

Inc., 926 S.W.2d 167, 168 n.2 (Mo. App. E.D. 1996))). Bradley has not argued that he raised

any objection at the probable cause hearing regarding its timing.        And, absent any record

demonstrating that an objection was raised, we assume there was none.

       The first objection or challenge that Bradley raised regarding the timing was

approximately eighteen months after the probable cause hearing was held.            Given that he

proceeded with the untimely hearing without objection, we find this claim to be waived.

       In his reply brief, Bradley argues that he did not consent to the continuance of the date

and therefore did not need to show any resulting prejudice. Because the record supports that

Bradley’s counsel consented to the July 6, 2011 hearing date, we presume Bradley’s argument is




                                                13
that counsel could not waive the timing requirement on Bradley’s behalf; rather, it was a right

personal to Bradley that only he could waive.10

         “What suffices for waiver depends on the nature of the right at issue.” New York v. Hill,

528 U.S. 110, 114 (2000).11 “‘[W]hether the defendant must participate personally in the waiver;

whether certain procedures are required for waiver; and whether the defendant’s choice must be

particularly informed or voluntary, all depend on the right at stake.’” Id. (quoting U.S. v. Olano,

507 U.S. 725, 733 (1993)). “For certain fundamental rights, the defendant must personally make

an informed waiver.” Id. “For other rights, however, waiver may be effected by action of

counsel.” Id.

         “To hold that every instance of waiver requires the personal consent of the client himself

or herself would be impractical.” Gonzalez v. U.S., 553 U.S. 242, 250 (2008). “In most

instances the attorney will have a better understanding of the procedural choices than the client;

or at least the law should so assume.” Id. at 249-50. “‘Although there are basic rights that the


         10
             In his motion to dismiss, Bradley also argued that attorney Schlegel entered his appearance on Bradley’s
behalf without first contacting Bradley or determining if Bradley qualified for the Public Defender’s services. Thus,
it appears that Bradley is also arguing that Mr. Schlegel could not waive the timing on Bradley’s behalf because
Mr. Schlegel was not, in fact, representing Bradley at the time of the waiver. According to the motion to dismiss,
Mr. Schlegel did not represent Bradley before their first meeting on June 7, 2011. Bradley offered no evidence,
however, to support this argument. Mr. Schlegel’s entry of appearance on Bradley’s behalf on May 26, 2011, is
evidence that Mr. Schlegel represented Bradley at that time. There is simply no evidence to the contrary. Thus, we
will not address the merits of this alternative argument.
          11
             Hill and the other cases relied upon in this waiver discussion are criminal cases, addressing what rights
counsel can waive on a criminal defendant’s behalf. Generally, in civil cases (unlike criminal cases), clients are
bound by the decisions of their attorneys and do not have the rights to personal waiver afforded to criminal
defendants. See Price v. State, 422 S.W.3d 292, 302 (Mo. banc 2014) (noting that, in civil cases, “‘[t]he attorney is
the agent of the party employing him, and in the court stands in his stead, and any act of the attorney must from
necessity be considered as the act of his client, and obligatory on the client.’” (quoting Kerby v. Chadwell, 10 Mo.
392, 393-94 (1847))). SVP proceedings, though civil, do afford individuals “many of the same rights of a criminal
defendant, including a formal probable cause hearing, the right to a jury trial, the right to an attorney, and the right to
appeal,” In re Care and Treatment of Van Orden, 271 S.W.3d 579, 585 (Mo. banc 2008), and therefore may be
entitled to greater protections when evaluating waiver. But see People v. Wagoner, 2001 WL 1528529, *7 (Cal. Ct.
App. 2001) (“[T]he fact a particular proceeding may result in the involuntary confinement of an individual does not
transform the proceeding into a criminal prosecution in which only a personal jury waiver is valid.”); Tyson v. State,
249 S.W.3d 849, 853 (Mo. banc 2008) (finding the appellant’s arguments equating probable cause hearings under
the SVP Act with those in criminal matters “unpersuasive”). Regardless, Bradley cannot demonstrate a right to
personal waiver even under the more stringent criminal law standards.


                                                           14
attorney cannot waive without the fully informed and publicly acknowledged consent of the

client, the lawyer has—and must have—full authority to manage the conduct of the trial.’” Hill,

528 U.S. at 114-15 (quoting Taylor v. Ill., 484 U.S. 400, 417-18 (1988)). “Scheduling matters

are plainly among those for which agreement by counsel generally controls.”                        Id. at 115.

“Requiring express assent from the defendant himself for such routine and often repetitive

scheduling determinations would consume time to no apparent purpose.” Id.

        We see no reason to believe that counsel, in this situation, could not consent to a

continuance on Bradley’s behalf. Counsel did not waive Bradley’s right to a probable cause

hearing; he merely waived the timing requirement of that hearing.12

        Because the 72-hour time limit is not jurisdictional, noncompliance can constitute only

mere error, which is subject to waiver. Here, Bradley waived his claim of error by failing to

raise a timely objection to the court’s noncompliance with the statutory time period.

        Point II is denied.

    B. Section 632.483.5 does not preclude use of the MDT assessment in evidence.

        In his third point on appeal, Bradley claims that the probate court erred in excluding

evidence regarding the MDT assessment because, contrary to the court’s ruling, such evidence is

not inadmissible under section 632.483.5. We agree.

        At the outset, we must address the State’s argument that this claim is not preserved for

review due to Bradley’s failure to make an offer of proof as to the excluded evidence at trial.

        “Generally, appellate courts will not review excluded evidence without a specific and

definite offer of proof.” Frank v. Envtl. Sanitation Mgmt., Inc., 687 S.W.2d 876, 883 (Mo. banc

1985). “The purpose of an offer of proof is twofold: [1] to educate the trial judge on the


        12
            We express no opinion on whether the waiver of a probable cause hearing altogether can be effected by
counsel, alone.


                                                       15
admissibility of the evidence with the hope that he or she will reconsider; and [2] to preserve the

issue for appellate review.” LaFevers v. Clothiaux, 403 S.W.3d 653, 657 (Mo. App. S.D. 2012).

A proper offer of proof demonstrates: “1) what the evidence will be; 2) the purpose and object

of the evidence; and 3) each fact essential to establishing the admissibility of the evidence.”

State v. Tisius, 92 S.W.3d 751, 767 (Mo. banc 2002).

          “It follows[, however,] that the reason for a formal offer of proof does not exist if the trial

court and counsel by other mean[s] are sufficiently advised as to what the testimony of the

witness will probably be if he is allowed to testify.” State ex rel. State Highway Comm’n v. Ne.

Bldg. Co., 421 S.W.2d 297, 300 (Mo. 1967). There are three requirements for applying this

exception: “[f]irst, it requires a complete understanding, based on the record, of the excluded

testimony[;] [s]econd, the objection must be to a category of evidence rather than to specific

testimony[; and t]hird, the record must reveal the evidence would have helped its proponent.”

Frank, 687 S.W.2d at 883-84.

          Here, we see no reason why Bradley needed to make an offer of proof. It is indisputable

that the probate court knew the substance of the evidence, as the MDT assessment was an exhibit

attached to the State’s petition. The State’s objection encompassed any and all aspects of the

MDT’s involvement and assessment; thus, it encompassed a category of evidence rather than

specific testimony. And the MDT’s unanimous assessment that Bradley did not appear to meet

the definition of a sexually violent predator plainly would have aided Bradley’s defense. Thus,

the exception applies, and no offer of proof was required for Bradley to preserve this claim for

appeal.

          “Generally, a trial court has considerable discretion in admitting or excluding evidence.”

St. Louis Cnty. v. River Bend Estates Homeowners’ Ass’n, 408 S.W.3d 116, 123 (Mo. banc




                                                    16
2013). And a reviewing court “gives deference to the trial court’s evidentiary rulings and will

reverse the trial court’s decision about the admission or exclusion of evidence only if the trial

court clearly abused its discretion.” Id. Here, however, the court’s decision to exclude evidence

was based upon its construction of section 632.483.5. And “[w]e review matters of statutory

construction de novo.” State v. Michael R. Thomas Bail Bond Co., 408 S.W.3d 794, 796 (Mo.

App. W.D. 2013).

       Section 632.483.5 states that “[t]he determination of the prosecutors’ review committee

or any member pursuant to this section or section 632.484 shall not be admissible evidence in

any proceeding to prove whether or not the person is a sexually violent predator.”

       Bradley argues that this language precludes use of only the prosecutors’ review

committee determination in evidence and that it does not foreclose the possibility of using the

MDT assessment. The State argued below, however, that the reference to “any member pursuant

to this section” includes the MDT assessment in the statute’s preclusion of evidence. The

probate court agreed with the State’s construction and did not allow Bradley to refer to or use the

MDT assessment in his defense.

       A brief overview of the statutory events leading to the filing of an SVP petition is

necessary to our analysis. “When it appears that a person may meet the criteria of a sexually

violent predator, the agency with jurisdiction shall give written notice of such to the attorney

general and the [MDT] . . . .” § 632.483.1.

       The notice sent by the agency with jurisdiction includes a variety of institutional,

correctional, and treatment records, along with “[a] determination by either a psychiatrist or a

psychologist . . . as to whether the person meets the definition of a sexually violent predator.”13

§ 632.483.2. Within 30 days of receiving notice, the MDT “shall assess whether or not the
       13
            This determination is often referred to as the end-of-confinement report.


                                                          17
person meets the definition of a sexually violent predator,” and then “notify the attorney general

of its assessment.” § 632.483.4. The assessment is then provided to the prosecutors’ review

committee.       § 632.483.5.      This committee consists of “a cross section of [five] county

prosecutors from urban and rural counties,” one of whom “shall be the prosecuting attorney of

the county in which the person was convicted or committed.” Id. The prosecutors’ review

committee “review[s] the records of each person referred to the attorney general,” and then

“make[s] a determination of whether or not the person meets the definition of a sexually violent

predator.” Id.

        If “it appears that the person presently confined may be a sexually violent predator and

the prosecutor[s’] review committee . . . has determined by a majority vote[] that the person

meets the definition of a sexually violent predator, the attorney general may file a petition” to

have the person civilly committed as a sexually violent predator. § 632.486. “A copy of the

assessment of the [MDT] must be filed with the petition.” Id. Unlike the determination from the

prosecutors’ review committee, it does not appear that any particular finding—whether by

majority vote or otherwise—is required from the MDT assessment before the State may file its

commitment petition.14

        The parties are in agreement, as are we, that section 632.483.5 clearly precludes the use

of the prosecutors’ review committee determination in evidence. The question that remains,

however, is what the legislature meant by the phrase, “or any member pursuant to this section or

section 632.484.”



        14
            Frankly, it is unclear to us what the actual purpose of the MDT assessment is, given that it does not
appear to be a prerequisite to the State’s decision to seek civil commitment. Cf. Harden v. State, 932 So. 2d 1152,
1156 (Fla. Dist. Ct. App. 2006) (finding that, under Florida’s statutory language, the state was precluded from
seeking civil commitment “in the absence of a recommendation from the MDT that the individual is a sexually
violent predator”).


                                                        18
        At trial, the State argued that this phrase included the MDT assessment because the MDT

constituted a “member pursuant to . . . section [632.483].” We disagree.

        Although section 632.483 uses the term “members” to refer to the individuals comprising

both the prosecutors’ review committee and the MDT, section 632.483.5 precludes the use of

only “determinations.”           According to section 632.483.4, the MDT does not make a

determination—it makes an “assessment.”15                  There are several individuals and entities in

sections 632.483 and .484 that make “determinations” (e.g., the individual issuing the end-of-

confinement report, the prosecutors’ review committee, the probate court, and the department of

mental health). But the MDT is not among these individuals and entities. Additionally, there is

no mention whatsoever of the MDT in section 632.484; the only “members” referred to in

section 632.484 are those forming the prosecutors’ review committee. Thus, if we read the

language, “any member pursuant to . . . section 632.484,” to refer to the MDT, the statute would

be nonsensical, as the MDT is not even part of section 632.484, and it does not make

determinations of any kind.            Consequently, section 632.483.5 does not preclude evidence

regarding the MDT assessment.

        A more reasonable reading of the reference to “the determination of . . . any member

pursuant to this section or section 632.484” is that the vote of any particular member of the

prosecutors’ review committee when making its determination is not admissible to prove that an

individual either is or is not a sexually violent predator.                     Given that the committee’s

determination need not be unanimous,16 the plain intent of section 632.483.5 is to preclude

evidence of not only the final determination but also the particular vote of each individual

        15
            Section 632.483.4 directs the MDT to “assess whether or not the person meets the definition of a
sexually violent predator” and then “notify the attorney general of its assessment,” whereas subsection 5 directs the
prosecutors’ review committee to “make a determination of whether or not the person meets the definition of a
sexually violent predator.” (Emphasis added.)
         16
            See § 632.486 (indicating that the determination need be made by only majority vote).


                                                        19
member in rendering the determination. Nothing in the statute precludes evidence of the MDT

assessment. While this does not mean that the MDT report was necessarily admissible, it could

not be excluded for the reason upon which the probate court relied.

        Perhaps recognizing the fallacy of its argument below, the State has not advanced its

statutory construction argument on appeal. Instead, the State argues that the assessment was

otherwise inadmissible because it constituted hearsay. In other words, the State asks us to affirm

based on the principle that the lower court reached the right result, even though it may have been

for the wrong reason. See, e.g., Sparks v. Sparks, 417 S.W.3d 269, 280 (Mo. App. W.D. 2013).

Though an attractive option, it is unworkable under these circumstances. Where, as here, the

lower court excludes evidence based upon its belief that the evidence is precluded by statute

without exception, the reality is that the opponent of the evidence will not offer further bases for

exclusion and the proponent of the evidence simply has no reason to offer any bases for

admissibility, given the court’s representation that none exist.

        Here, had the court overruled the State’s objection, the State might then have argued—as

it does on appeal—that the assessment was inadmissible as hearsay, and Bradley may then have

responded with an applicable exception.17 The problem with affirming the court’s ruling based

upon the State’s hearsay argument on appeal is that the court’s interpretation of section

632.483.5 simply left no room for argument from Bradley because, unlike a hearsay objection,

the statute as applied allows for no exceptions. And had the hearsay question been addressed



        17
            Attached to the State’s petition, along with the MDT assessment, is an affidavit from a records custodian
for the MDT, indicating that the assessment was a record kept in the regular course of business and made at or near
the time of the event. Section 490.692.1 provides:
         Any records or copies of records reproduced in the ordinary course of business . . . shall be
         admissible as a business record, subject to other substantive or procedural objections, in any court
         in this state upon the affidavit of the person who would otherwise provide the prerequisites of
         sections 490.660 to 490.690, that the records attached to the affidavit were kept as required by
         section 490.680.


                                                        20
below, the result may have been different.18 In short, absent preclusion of the evidence by the

statute, it is unclear whether the MDT assessment would have been admissible below.19

        The State further argues that even if the court erred in excluding the evidence, Bradley

suffered no prejudice because the MDT assessment was cumulative to Bradley’s other evidence.

We disagree. One of Bradley’s witnesses was a paid expert; in that sense, his opinion differed

from those of the MDT members, who were not paid to represent any particular position.

Bradley’s other witness was the department of mental health evaluator, appointed by the court

after finding probable cause. While he was not a paid expert, subject to the same kind of

impeachment as Bradley’s paid expert, it is not clear from the record that his evaluation was

identical to those of the members of the MDT. And to the extent that the State was able to

impeach his opinion, the MDT assessment may have served to rehabilitate him. Thus, it is not

clearly cumulative.

        In sum, the trial court erred in finding that the MDT evidence was inadmissible under

section 632.483.5.        Based upon the court’s erroneous conclusion, no further record was

developed regarding the admissibility of the MDT assessment evidence. Thus, we are unable to

discern whether, absent the erroneous statutory interpretation, the court would have erred in

excluding the evidence. Consequently, we reverse and remand for further proceedings consistent

with this opinion.
        18
            We do not mean to express any opinion as to the report’s admissibility, other than to hold that it is not
inadmissible by virtue of section 632.483.5. It may be inadmissible for other reasons, but because no other reasons
were explored below, we lack a sufficient record to make this determination, and to do so would place us in the
position of advocate for the State.
         As a court, we are obliged to remain impartial. We are not permitted to become a witting or
         unwitting adversary of [a party], fashion a theory we are not certain [the other party] pleaded,
         search the record on our own for evidence to support that theory and impose liability upon [the
         first party] without affording it any opportunity to challenge our strange conduct.
Werdehausen v. Union Elec. Co., 801 S.W.2d 358, 368 (Mo. App. E.D. 1990).
         19
            For example, in Kansas and Iowa, under similar statutory schemes, error was found in the admission of
argument concerning, and evidence of, the MDT assessment that the respondents met the definition of sexually
violent predators on the ground that this evidence invaded the province of the jury. In re Care and Treatment of
Foster, 127 P.3d 277 (Kan. 2006); In re Detention of Stenzel, 827 N.W.2d 690 (Iowa 2013).


                                                        21
         Point III is gr
                       ranted. In light of this disposition, we need no reach Bra
                                  l                                   ot        adley’s first point

regarding the sufficie
        g            ency of the evidence.
                                 e

                                             Conclusion

         The probate court did not lose jurisdi
         T           c           t            iction by ho
                                                         olding the pr
                                                                     robable cause hearing ou
                                                                                            utside

the 72-ho window provided by section 632.489.2. T untimel nature of the hearing was
        our    w          b                     The     ly        f           g

simply error, waived by Bradley consent to a hearing outside of the statutor required time
                   d          y’s                  g                       rily     d

frame.

         The court erred, howev
         T                    ver, in inte
                                         erpreting se
                                                    ection 632.4
                                                               483.5 to pr
                                                                         reclude evid
                                                                                    dence

regarding the MDT assessment Due to the nature o the court error, we cannot di
        g                  t.       t          of        t’s                 iscern

whether the actual exclusion of the evidence was erron
                                                     neous. Thus we reverse and reman for
                                                               s,         e         nd

further pr
         roceedings consistent with this opin
                    c          w            nion. On rem
                                                       mand, if evid
                                                                   dence pertai
                                                                              ining to the M
                                                                                           MDT

assessme is again offered, the court must determine its admissibilit
       ent        o            c          d                        ty.



                                              Karen King Mitchell, Ju
                                                       g            udge

Joseph M. Ellis, Pres
       M            siding Judge, and
Anthony Rex Gabber Judge, concur.
                    rt,




                                                22
