                                                                              MODIFIED
                                                                              July 28, 2015



                                                   In the
                              Missouri Court of Appeals
                                         Western District
IN THE MATTER OF THE CARE                                )
AND TREATMENT OF LARRY                                   )
WALKER,                                                  )   WD76976
                                                         )
                    Appellant,                           )   OPINION FILED: June 9, 2015
                                                         )
v.                                                       )
                                                         )
STATE OF MISSOURI,                                       )
                                                         )
                  Respondent.                            )

                Appeal from the Circuit Court of Jackson County, Missouri
                         The Honorable Kathleen A. Forsyth, Judge

 Before Division Three: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and
                                 Gary D. Witt, Judge

      Larry Walker ("Walker") appeals from the judgment of the Circuit Court of

Jackson County, following a unanimous jury verdict finding him to be a Sexually Violent

Predator ("SVP") pursuant to section 632.480(5).1 In his sole point on appeal, Walker

argues that the trial court erred when it excluded a report signed by the multidisciplinary




      1
          All statutory references are to RSMo 2000 cumulative as currently supplemented, unless otherwise noted.
team ("MDT") in which the members of the team voted that Walker did not appear to

meet the statutory definition of an SVP. We affirm.

                                 Factual and Procedural Background

         In 2004, Walker committed sexual assault against an eighty-one-year-old female

Alzheimer's patient who was in a diminished state and confined to her room. At the time,

the victim lived in the same nursing home as then fifty-four-year-old Walker.                                      On

November 2, 2005, Walker pled guilty to sexual assault and sexual misconduct regarding

that event and was incarcerated. After being granted parole, Walker absconded to Texas

where he stayed for four months until he was arrested and sent back to prison to finish

serving his sentence.

         Before his scheduled release date of July 12, 2011, the Department of Corrections,

pursuant to section 632.483.1, gave notice2 to the attorney general that Walker appeared

to meet the criteria of an SVP.3 After notice was given, Walker's records were evaluated

by the MDT and Prosecutors Review Committee ("PRC"). After the attorney general

received their respective reports, he filed a petition seeking Walker's commitment to the

Department of Mental Health as an SVP. Commitment to the Department of Mental

Health is accomplished through an evaluation and review process as outlined in the

Sexually Violent Predator Act, codified in sections 632.480 et seq., and culminates in a

trial.



         2
         Notice is typically given through the required "end of confinement" report.
         3
         An SVP is defined by statute as "any person who suffers from a mental abnormality which makes the
person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility" and
who "has pled guilty or been found guilty . . . of a sexually violent offense ." § 632.480(5)(a).

                                                           2
       Walker's history of sexual assaults began in 1964, and included a nineteen-year-

old pregnant waitress whom he raped at gunpoint at a diner then forced her to serve him

coffee and call him a cab, as well as five teenaged girls whom he self-reported to

therapists as raping between 1964 and 1971 when he was in his 20's. He was also

arrested at least seventeen other times for crimes including assault and battery,

aggravated assault, making a terrorist threat, as well as non-violent crimes including

forgery, resisting arrest, robbery, larceny, burglary, drug possession, receiving stolen

property and solicitation of prostitution.

       At trial, only one of the three expert witnesses called by either party was able to

personally evaluate Walker because he refused to be interviewed by the other two experts

or cooperate with them in an evaluation. The State presented one expert, Dr. Amy Swan,

a forensic psychologist. She reviewed over three thousand pages of documents relating

to Walker including court records, Department of Correction records, police reports,

treatment records and probation and parole records.          She diagnosed Walker with

paraphilia not otherwise specified, non-consent as well as alcohol dependence and

personality disorder not otherwise specified with antisocial features. Walker's diagnosis

means that he is sexually stimulated and desirous of having sexual relations with persons

who do not consent to sex. Dr. Swan noted that Walker's repeated arrests and parole

violations were an indicator of a greater risk to reoffend. She diagnosed Walker with a

mental abnormality and opined that within a reasonable degree of medical certainty he

would engage in predatory acts of sexual violence if not placed in a secure facility.



                                             3
       Walker called two expert witnesses. His first witness was Dr. Jeanette Simmons, a

clinical psychologist, who diagnosed Walker with paraphilia not otherwise specified,

which she based on Walker's self-reporting of sexual assaults and on his convictions,

which spanned forty years, of "committing sexual offenses with individuals who were not

consenting persons in one form or another." Dr. Simmons testified that Walker had a

mental abnormality, but that, in her opinion, he was not more likely than not to engage in

predatory acts of sexual violence if released. Dr. Simmons also diagnosed Walker with

adult antisocial behavior based, in part, on his seventeen past arrests.

       Walker's second expert was Dr. Jarrod Steffan, a psychologist who reviewed

Walker's records and conducted a two-hour interview of him. Dr. Steffan testified that

the "most pertinent" requirement under Missouri law for commitment as an SVP is

whether the offender is suffering from a mental abnormality that makes him more likely

than not to engage in predatory acts of sexual violence if not confined to a secure facility.

Dr. Steffan diagnosed Walker with alcohol dependence and personality disorder not

otherwise specified. Although he opined that Walker was not more likely than not to

engage in predatory acts, he acknowledged that Walker's diagnosis of personality

disorder qualified Walker as having a mental abnormality.

       The jury returned a unanimous verdict, finding by clear and convincing evidence

that Walker was an SVP.4 The court accepted the verdict and ordered Walker committed

to the Missouri Department of Mental Health for control, care and treatment. Walker

timely appeals.

       4
           Section 632.495 states that the verdict must be unanimous and based on clear and convincing evidence.

                                                         4
                                         Analysis

       In his sole point, Walker argues that the trial court abused its discretion when it

sustained the State's objection and excluded the MDT report because "an expert's opinion

is not objectionable merely because it embraces an ultimate issue to be decided." He also

contends that the exclusion of the report prejudiced him.

                                   Standard of Review

       "The burden of proof in civil commitment proceedings is clear and convincing

evidence." In re Muston, 350 S.W.3d 493, 496 (Mo. App. S.D. 2011). Our review of a

sexually violent predator finding is limited to a determination of whether there was

sufficient evidence from which a reasonable fact finder could find each necessary

element under section 632.486. Bemboom v. State, 326 S.W.3d 857, 859 (Mo. App.

W.D. 2010). "Matters of credibility and weight of testimony are for the fact finder to

determine." Id. (quoting In re Care and Treatment of Barlow v. State, 250 S.W.3d 725,

733 (Mo. App. W.D. 2008)).        As such, "the evidence is viewed 'in the light most

favorable to the judgment, accepting as true all evidence and reasonable inferences

favorable to the judgment and disregarding all contrary evidence and inferences.'" Id.

       At trial, the proponent of evidence bears the burden of establishing its

admissibility. Nolte v. Ford Motor Co., No., 458 S.W.3d 368, 381 (Mo. App. W.D.

2014) (citation omitted). The trial court's ruling on the admissibility of evidence is

reviewed for a clear abuse of discretion. Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451

(Mo. banc 2014) (citation omitted). A trial court abuses this discretion when its "ruling is

clearly against the logic of the circumstances then before the court and is so unreasonable

                                             5
and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate

consideration." Id. (citation omitted).

         The admission and exclusion of expert testimony in civil cases in Missouri is

governed by section 490.065. Kivland v. Columbia Orthopaedic Group, 331 S.W.3d

299, 310 (Mo. banc 2011) (citation omitted). The statute provides that the circuit court is

responsible for determining whether (1) the expert is qualified; (2) the expert's testimony

will assist the trier of fact; (3) the expert's testimony is based upon facts or data that are

reasonably relied on by experts in the field; and (4) the facts or data on which the expert

relies are otherwise reasonably reliable. Id. at 310-11; § 490.065.

                                          Discussion

         In his point relied on, Walker argues that the court "abused its discretion when it

determined that the MDT report was not admissible because the MDT did not render

expert testimony but only offered an opinion on the ultimate issue in the case and this

was not permitted under the general rules of evidence." He then contends that the report

provided expert testimony because "the members of the MDT are experts under Section

490.065.1 because they are psychologists and psychiatrists employed by the Department

of Corrections and Department of Mental Health." There is no further argument as to

how or why the members of the MDT are qualified as experts such that their individual

votes on whether Walker appears to meet the legal definition of an SVP constitutes the

rendering of expert testimony. Further, there is no citation to any point in the record

where the individual members of the MDT were qualified as experts before the trial

court.

                                              6
       The MDT report at issue is a standard administrative report that is completed by

the MDT in response to the end-of-confinement report generated by the Department. It is

a one-page report titled "MDT Assessment Form" that contains each member's vote and

signature as to whether he or she believes the offender meets the criteria for an SVP.

§ 632.484.4. The report states that the "vote" reflected on the bottom half of the form

should be taken after each member has reviewed records relating to the sex offender's (1)

qualifying offense(s); (2) history of other sexual assault(s); (3) history of other criminal

convictions; (4) documentation of any mental disorder(s), and (5) institutional

adjustment. It also expressly states that the findings of the team "are strictly based on the

legal criteria set forth in Section 632.480 et seq., the Sexually Violent Predator Act, and

should not be construed as clinical assessment." The records were reviewed by the MDT

and the four members of the MDT each voted that Walker did not appear to meet the

definition of an SVP. The report contains only the members votes; it does not contain

any analysis as to how the members of the MDT arrived at their individual conclusions.

       At the pretrial hearing, the State argued that the MDT report was inadmissible

based on section 632.483(5), which provides 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 [SVP]." It

also argued that the MDT did not conduct a clinical examination of Walker and thus its

members conclusions were inadmissible as they constituted a conclusion on the ultimate

issue and invaded the province of the jury.



                                              7
       The trial court ruled consistent with our recent decision in Bradley v. State, 440

S.W.3d 546, 556 (Mo. App. W.D. 2014) that section 632.483.5 does not apply to the

MDT report because the statute only expressly excludes the PRC report from evidence.

Id. The trial court did, however, find that because the report offered an "opinion on the

ultimate issue," it was otherwise inadmissible. The court further stated that the MDT

members were not offering expert testimony but that Walker was welcome to call the

members as experts "if [he thinks] they have looked at enough information to form an

expert opinion,[] I don't know whether they have or not." It concluded by noting that

none of the members of the team had performed an evaluation of Walker.

       Even though invited to do so by the trial court, Walker did not list any member of

the MDT as an expert during discovery, he did not depose any member of the team, nor

did he call any member to testify regarding the MDT report. In other words, Walker did

not attempt to lay the foundation for the MDT report nor qualify any of the MDT

members as an expert. Instead, he opted to have another witness, Dr. Simmons, testify

about the report in an offer of proof.

       Dr. Simmons testified that she had heard of two of the four MDT members who

had signed the form, or "vote," as she described it. She stated that Dr. Gowdy was a

psychologist and Dr. Parker was a psychiatrist. Simmons did not state that she relied on

the MDT's vote or on the report in formulating her expert opinion, nor did she state that

the MDT report is the type of report normally relied upon by experts in her field. When

asked whether the report, which was one of several thousand pages of documents she

reviewed, was something she "gave credence to," Dr. Simmons replied: "I think I give

                                            8
credence to every document that's provided to me at the time I do my evaluation, so you

know, to say that I weigh one thing more than another, I don't believe that would be fair,

but I did look at all of that information." After the offer of proof concluded, Walker

moved to admit the MDT report. Consistent with its earlier ruling, the court accepted the

offer of proof but excluded the report as evidence before the jury.

         The trial court found that the MDT members were "not really rendering expert

testimony, they're just offering opinion on the ultimate issue and I won't let them do that."

We agree. Walker elicited no testimony from Dr. Simmons regarding the "knowledge,

skill, experience, [or] training" of any member of the MDT. While all four doctors may,

in fact, be qualified, the only evidence presented in Walker's offer of proof was that they

were employed as doctors by state agencies. Employment, however, is not listed as one

of the ways by which an expert can be qualified. § 490.065.1.5

         Based on the facts of this case, we find no error in the court's exclusion of the

MDT report because none of the members of the team were offered or qualified by

Walker to testify as experts, none were called to testify regarding the report or how it was

prepared, there was no evidence as to why each member voted "no," no expert testified

that she or he relied upon the report in formulating an opinion and no expert testified that

reports of this type are relied upon by experts in this medical field.6



         5
             Section 490.065.1 states that a witness may be qualified as an expert "by knowledge, skill, experience,
training or education. . . . "
           6
             "The facts or data on which an expert relies do not need to be independently admissible" if the evidence
satisfies the requirements of section 460.065.3." 8000 Maryland,LLC v. Huntleigh Fin. Servs. Inc., 292 S.W.3d 439,
446 (Mo. App. E.D. 2009) (citation omitted). Thus, each of these propositions, if met, could have made a report of
this nature admissible under the correct circumstances.

                                                         9
       Although misstated by Walker, the trial court did not find that the MDT report

contained expert opinions going to the ultimate issue—it found only that the report

contained opinions on the ultimate issue. The report was properly excluded because it

consisted of non-testifying persons' opinions that had not been properly qualified as

expert opinion that went to the ultimate issue without any support for how those

individuals reached their opinions. Because the trial court’s ruling was correct, we find

no error.

       This point is denied.

                                      Conclusion

       Based on the foregoing, the judgment is affirmed.



                                         __________________________________
                                         Gary D. Witt, Judge

All concur




                                           10
