Ray v. State, WD 81095

564 S.W.3d 771

In the Matter of the Care and Treatment of Richard RAY a/k/a Richard A. Ray, a/k/a Richard Alan Ray, Appellant,

v.STATE of Missouri, Respondent.

WD 81095

Missouri Court of Appeals, Western District.

OPINION FILED: December 4, 2018

Chelseá R. Mitchell, Assistant Public Defender, Columbia, MO, Attorney for Appellant.

Joshua D. Hawley, Attorney General, and Mary H. Moore, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division Four: Karen King Mitchell, Chief Judge, and Victor C. Howard and Lisa White Hardwick, Judges

Karen King Mitchell, Chief Judge

Richard Ray appeals from the judgment and order, following a bench trial, committing him to the custody of the Department of Mental Health (DMH) as a sexually violent predator (SVP). Ray argues that the probate court erred in finding that he was an SVP because he did not commit a "sexually violent offense" as defined by Missouri’s Sexually Violent Predator Act (SVPA) §§ 632.480-632.513.¹ Specifically, Ray argues that the elements of the Illinois offenses on which the probate court predicated its finding that Ray had committed a "sexually violent offense" are not substantially similar to an enumerated offense under the SVPA. Because the record contained sufficient evidence that Ray committed a "sexually violent offense" as defined in the SVPA, we affirm.

Background²

In 2014, Ray was convicted of theft and resisting arrest upon charges originating in Jackson County, Missouri, and he was confined to the Southeast Correctional Center in Charleston, Missouri. Before Ray’s release, the State initiated a civil commitment proceeding under the SVPA, alleging that Ray was found guilty by the Circuit Court of Lake County, Illinois, of two "sexually violent offenses" as defined in § 632.480(4) of the SVPA. The State alleged that Ray "committed aggravated criminal sexual assault, a felony under Illinois Revised Statutes, Chapter 38, [¶] 12-14(b)(1), 1985, in that he knowingly committed an act of sexual penetration by penetrating the vagina of a child under 13 years of age with his finger[,]" and the elements of that offense are " ‘substantially similar’ to statutory sodomy first degree, § 566.062 ..., which is committed when a person knowingly penetrates the vagina of a child who is less than 14 years of age, with a finger, for gratifying sexual desire." Alternatively, the State alleged that Ray "committed criminal sexual assault, a felony under Illinois Revised Statutes, Chapter 38, [¶] 12-13, 1985, in that he knowingly committed an act of sexual penetration by penetrating the anus of a child under 13 years of age with his penis[,]" and the elements of that offense are " ‘substantially similar’ to statutory sodomy first degree, § 566.062 ..., which is committed when a person knowingly penetrates the anus of a child under 14 years of age with his penis, for gratifying sexual desire." The State also alleged that Ray suffers from "a mental abnormality which makes him more likely than not to engage in predatory acts of sexual violence if released."

At trial, the State offered evidence that, in Illinois in 1987, Ray pleaded guilty to one count of "aggravated criminal sexual assault" for penetrating the vagina of his stepdaughter with his finger; the victim was under the age of thirteen at the time of the offense. The State also offered evidence that Ray was convicted in Illinois in 1991 of "criminal sexual assault" for inserting his penis into the anus of his stepson, who was also under the age of thirteen at the time. Ray does not dispute these convictions or the evidence submitted by the State to prove them.

Two witnesses testified for the State regarding Ray’s prior sexual offenses: DMH psychologist Christopher Robertson and Amy Griffith, a licensed psychologist and clinical director of the Missouri Sex Offender Program within the Missouri Department of Corrections.

In 1979, at the age of 21 or 22,³ Ray was convicted in Illinois of indecent liberties with a child for masturbating in front of his nine-year-old stepsister; he was placed on probation for two years. Several years later, Ray was charged in Illinois with two counts of aggravated criminal sexual assault for inserting his finger into his stepdaughter’s vagina and two counts of aggravated criminal sexual abuse for placing his penis between his stepdaughter’s thighs for sexual gratification. At trial in the present case, Griffith provided the following testimony about those charges, based on her November 2015 interview of Ray:

[Griffith]: [Ray] stated that his wife was pregnant and that she would not have sex with him or was not able to have sex with him. And he stated that he has high sex needs, a high sex drive, and so—and also that the victim [stepdaughter] walked around the house with no panties on.

[State]: And that was important to him—it was doing something to him. Was he able to explain what?

[Griffith]: He recalled, yes, and he recalled his stepdaughter stating: I'm horny, Daddy. And then she began—she sat on the couch, spread her legs, and began to touch herself. And then he indicated to her that if she did not stop doing that, that something was going to happen.

....

[State]: What does he do after he says the victim, the nine-year-old, is doing this stuff, what does he say happened next?

[Griffith]: He then stated: Long story short, I ended up fucking her in the ass.

....

[Griffith]: ... And that he continued to anally penetrate his stepdaughter with his fingers and his penis every day for close to a year. That was his report.

[State]: And this did contrast, in some ways, between the penis between the legs and thighs that he was charged with?

[Griffith]: Yes. The official record indicated that he penetrated the victim’s vagina with his fingers and penetrated the victim’s thighs with his penis.

In 1987, Ray pleaded guilty to one count of aggravated criminal sexual assault for penetrating his stepdaughter’s vagina with his finger, and he was sentenced to thirteen years' imprisonment. The other charges were dropped.

While incarcerated, details of another offense emerged, and Ray was charged with four counts of aggravated criminal sexual assault and one count of criminal sexual assault for inserting his penis into the anus of his nine-or-ten-year-old stepson on multiple occasions. Ultimately, in 1991, Ray pleaded guilty to one count of criminal sexual assault relating to conduct with his stepson. Griffith testified that, throughout Ray’s descriptions of his Illinois offenses and elsewhere during her interview of him, "it was very clear that he, he believed that the victims not only initiated the sexual activity with him but enjoyed it."

During his incarceration in Missouri for theft and resisting arrest, Ray had two conduct violations for sexual misconduct. During the first, he pressed his call button and was openly masturbating when staff responded. Then, during a subsequent wellness check, the officer observed Ray lying on the bottom bunk and moving his hand in an up-and-down motion over his exposed, erect penis. Ray told Griffith that he masturbated three-to-five times per day, which indicated to Griffith "some pretty high sexual preoccupation."

Robertson diagnosed Ray with antisocial personality disorder and "pedophilic disorder non-exclusive type. Sexually attracted to both [genders]." According to Robertson, the combination of these disorders affects Ray’s volitional capacity and predisposes him to acts of sexual violence. Griffith diagnosed Ray with both "a pedophilic disorder, sexually attracted to both boys and girls[, a]nd non-exclusive type" and "other specified paraphilic disorder to include hypersexuality^{[4 ]} and urophilic disorder." Both psychologists described pedophilia as a lifelong, chronic disorder. And both concluded that Ray had serious difficulty controlling his behavior and was more likely than not to commit predatory acts of sexual violence if not confined in a secure facility. Ray attended the trial but did not testify or call any witnesses.

On July 18, 2017, the probate court issued its Judgment and Commitment Order finding Ray to be an SVP. The court concluded that Ray had pleaded guilty to both aggravated criminal sexual assault and criminal sexual assault and that the elements of those offenses are substantially similar to statutory sodomy first degree under § 566.062. The court found that Ray suffers from a "mental abnormality [that] makes him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility." The court committed Ray to the custody of DMH "for control, care and treatment until such time as [his] mental abnormality has so changed that he is safe to be at large." This appeal follows.

Standard of Review

"In an SVP case, our review is limited to a determination of whether there was sufficient evidence admitted from which a reasonable fact finder could have found each necessary element by clear and convincing evidence." In re Care and Treatment of Parr , 482 S.W.3d 508, 511 (Mo. App. W.D. 2016) (quoting In re Care and Treatment of Gormon , 371 S.W.3d 100, 103 (Mo. App. E.D. 2012) ). "The appellate court does not reweigh the evidence but determines only whether the judgment was supported by sufficient evidence." In re Care and Treatment of George , 515 S.W.3d 791, 795 (Mo. App. W.D. 2017) (quoting In re Care and Treatment of A.B. , 334 S.W.3d 746, 752 (Mo. App. E.D. 2011) ). "A judgment will be reversed on insufficiency of the evidence only if there is a complete absence of probative facts supporting the judgment." Id. (quoting A.B. , 334 S.W.3d at 752 ).

Where, as here, the question on appeal is one of statutory interpretation, our review is de novo. In re Care and Treatment of Holtcamp , 259 S.W.3d 537, 539 (Mo. banc 2008).

Analysis

Ray raises two points on appeal. He argues that the probate court erred in committing him to the custody of DMH because the evidence was insufficient to clearly and...