Com. v. Squire

Present: Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette,

JJ., and Lacy, S.J.

COMMONWEALTH OF VIRGINIA

v. Record No. 082440 OPINION BY SENIOR JUSTICE

ELIZABETH B. LACY

FRANKIE LEE SQUIRE NOVEMBER 5, 2009

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY

W. Allan Sharrett, Judge

The Commonwealth appeals from the trial court’s order

dismissing the Commonwealth’s petition for the civil commitment

of Frankie Lee Squire as a sexually violent predator pursuant to

the Civil Commitment of Sexually Violent Predators Act (the

Act), Code §§ 37.2-900 through -920. Because we conclude that

the trial court’s judgment was not plainly wrong or without

evidence to support it, we will affirm the judgment of the trial

court.

Squire was convicted of rape in 1994 and sentenced to 15

years imprisonment with 8 years suspended. He was released on

parole in 1999, but in 2003 his probation was revoked and a

portion of his suspended sentence was imposed because of two

convictions for assault and battery. He was again released from

prison in 2004, but Squire was returned to prison in 2006 after

he was arrested for attempted breaking and entering and violated

the conditions of his release. In October 2007, the

Commonwealth filed a petition to civilly commit Squire as a

sexually violent predator (SVP). The trial court found probable

cause to believe that Squire was a SVP on December 19, 2007.

Following a bench trial held September 15, 2008, the trial court

dismissed the petition for civil commitment, stating that

There’s no question that the defendant has been

convicted of a sexually violent offense. There is no

question in the Court’s mind that he has a mental

abnormality or a personality disorder. And there’s

no question in the Court’s mind that that makes it

difficult for him to control his predatory behavior.

The nub of this case in the Court’s opinion is

whether all of that makes him likely to engage in

sexually violent acts. The standard of proof is

clear and convincing evidence . . . .

[S]o for almost six years [the defendant] has been at

large in the community. . . . [H]e has not sexually

reoffended either by charge, conviction or

institutional infraction. And when the Court looks

at that conduct of the defendant, . . . it simply

cannot say that it is convinced that he will probably

offend sexually.

The Commonwealth filed a timely appeal to this Court.

DISCUSSION

To establish that Squire is a sexually violent predator,

the Commonwealth was required to show by clear and convincing

evidence that he had been convicted of a sexually violent

offense and that, because of a mental abnormality or personality

disorder, he finds it difficult to control his predatory

behavior which makes him likely to engage in sexually violent

acts. Code §§ 37.2-900 and -908. The trial court concluded

that the Commonwealth did not provide clear and convincing

evidence that Squire was likely to engage in sexually violent

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acts and dismissed the Commonwealth’s petition. In this appeal,

the Commonwealth challenges this finding, arguing that the

exhibits and uncontradicted testimony of two experts left the

trial court with “the only reasonable conclusion . . . that

Squire is a sexually violent predator.”

In reviewing the Commonwealth’s challenge to the trial

court’s judgment, we review the evidence and all reasonable

inferences from the evidence in the light most favorable to

Squire, the prevailing party below, and will not reverse the

judgment of the trial court unless it is plainly wrong or

without evidence to support it. Higginbotham v. Commonwealth,

216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

In this case the only testimony presented was that of the

Commonwealth’s expert witnesses, Dr. Doris E. Nevin and Dr. Evan

S. Nelson. The experts agreed that Squire had a mental

abnormality or personality disorder and, as relevant here,

because of this disorder, Squire was likely to commit sexually

violent offenses in the future.

In considering Squire’s personal history, Dr. Nelson noted

that Squire’s risk of re-offending was higher because his first

sex offenses appeared while he was young, he had violated the

terms of his parole and probation, and when he is under the

influence of alcohol, his risk of re-offending increases

dramatically. Dr. Nevin referred to Squire’s failure to

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complete a thorough sex offender treatment program, sexual

deviance, substance abuse, non-compliance with supervision, and

distorted attitudes justifying sex offending as contributing to

Squire’s risk of re-offending.

The experts also administered actuarial risk assessment

instruments. The Sex Offense Risk Assessment Guide (SORAG)

instrument used by Dr. Nelson is based on the arrests for

violent offenses and is not limited to arrests for sexually

related offenses. Squire scored sixth in nine risk categories

in the test, which categorized him at more risk for offending

than the average sex offender. On the Violence Risk Appraisal

Guide (VRAG) instrument used by Dr. Nevin, Squire scored a +16,

which is in the moderate high range and indicates a 55%

probability of a violent offense within seven years and a 64%

probability within ten years.

Both Dr. Nevin and Dr. Nelson used the Static-99 test.

Squire scored a six on Dr. Nevin’s test which put him in the

highest category of risk for re-offending. A score of six means

a statistical likelihood of re-offending of 39% within five

years, 45% within seven years and 52% within 10 years. When

applied by Dr. Nelson, Squire scored either a five or seven. A

score of five sets the statistical risk of re-offending at 33%

within five years. In response to questions by the court, the

experts agreed that Squire’s score on the Static-99 in 2007

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would have been the same at the time of his release from

incarceration in 1999. The experts agreed that while the tests

put Squire in a specific category of risk of re-offending, they

could not say that Squire would be one of the individuals who

would re-offend.

The record also shows that Squire had not been charged with

or convicted of any offenses of a sexual nature since 1999.

Squire was not incarcerated for a number of years during that

time – from 1999 to 2003 and from 2004 to 2006. In 2001 his

probation officer removed Squire from supervised probation

because of his compliance with the probation requirements.

Based on this record we cannot say that the trial court’s

judgment that the Commonwealth did not provide clear and

convincing evidence that Squire is likely to commit sexually

violent acts was plainly wrong or without evidence to support

it. While the experts testified that, in their opinion, Squire

was a sexually violent predator and was likely to commit violent

sexual acts, the opinion of experts is not dispositive. Code

§ 37.2-908(C). The trial court specifically stated that it

“listened carefully to the reports” of the experts but that it

also considered “the chronology of the defendant’s life.” As

shown by the record, Squire had no incidents of a sexual nature

for almost 10 years, since 1999, whether he was in the community

or incarcerated. This evidence suggests that Squire’s actions

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were, as a matter of fact, not consistent with the statistical

predictors of re-offending and stood in contrast to the experts’

opinions on the likelihood of Squire committing future violent

sexual acts. Thus, the trial court’s findings were not plainly

wrong or without evidence to support them.

In support of its position, the Commonwealth also argues

that the trial court erred as a matter of law because in stating

that Squire had a mental abnormality or personality disorder,

“the trial court had necessarily found” that Squire was “likely

to engage in sexually violent offenses” because the Act defines

“mental abnormality” or “personality disorder,” as “a congenital

or acquired condition that affects a person's emotional or

volitional capacity and renders the person so likely to commit

sexually violent offenses that he constitutes a menace to the

health and safety of others.” Code § 37.2-900. We disagree

with the Commonwealth for two reasons.

Considering the trial court’s statements as a whole, it is

clear that in stating Squire had a mental abnormality or

personality disorder, the court was not using those terms as

dispositive of whether that disorder made him likely to engage

in sexually violent acts. The trial court treated these two

findings as distinct considerations. This is consistent with

the analysis we have applied in other cases. For example, in

Commonwealth v. Allen, 269 Va. 262, 271, 609 S.E.2d 4, 10

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(2005), even though both parties’ experts testified that the

respondent had a personality disorder, that finding did not end

the inquiry. The contested issue on appeal was whether because

of the personality disorder, Allen was likely to engage in

sexually violent acts. Id. at 275-76, 609 S.E.2d at 12-13.

In Commonwealth v. Miller, 273 Va. 540, 552-53, 643 S.E.2d

208, 215 (2007), the Court again stated that the Commonwealth

had the burden of proving both that the respondent had a mental

abnormality or personality disorder and that because of such

condition the respondent “was likely to commit sexually violent

offenses.” In making this determination, the Court reviewed the

entire record and recited the particular elements of the

respondent’s mental disorders that made the respondent likely to

engage in sexually violent acts. Id. at 551-53, 643 S.E.2d at

214-15. These cases demonstrate that the mere use of the phrase

mental abnormality or personality disorder does not

automatically invoke a conclusion that a respondent is likely to

engage in sexually violent acts.

Furthermore, the analysis adopted by the Court in those

cases is also consistent with the actions of the General

Assembly in defining mental abnormality and personality disorder

and then defining a sexually violent predator as one who has

such a mental condition and such condition renders the

individual likely to commit sexually violent acts. If the

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finding of a mental abnormality or personality disorder

satisfied subsection (ii) of the definition of SVP in Code

§ 37.2-900, as the Commonwealth suggests, then the language in

that part of the definition relating to loss of control and

likelihood of committing a sexually violent act would be

superfluous. We do not consider actions of the General Assembly

to be superfluous; instead, we seek to provide meaning to all

the words of a statute. Northampton County Bd. of Zoning

Appeals v. Eastern Shore Dev. Corp., 277 Va. 198, 202, 671

S.E.2d 160, 162 (2009). Guided by this principle, we conclude

that the General Assembly in defining a SVP considered the

existence of a mental abnormality or personality disorder as an

element separate from the likelihood of engaging in sexually

violent acts.

Finally, we reject the Commonwealth’s reliance on language

in Shivaee v. Commonwealth, 270 Va. 112, 613 S.E.2d 570 (2005),

as support for its position. The language cited by the

Commonwealth is found in a discussion of defendant Butler’s

assertion that the Act was constitutionally infirm because the

definition of SVP was too vague. Id. at 124-25, 613 S.E.2d at

577. In the course of that discussion we said that the language

in the SVP definition regarding the likelihood of engaging in

sexually violent acts “may be redundant” because of the

definition of “mental abnormality” or “personality disorder.”

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Id. That statement falls far below an affirmative conclusion

that the finding of a mental abnormality as a matter of law is a

finding that the respondent is a SVP. More importantly, the

language relied upon by the Commonwealth was only dicta.

Butler’s void for vagueness challenge to the Act failed because

Butler did not assert that his conduct fell outside the purview

of the statute and therefore he could not assert the vagueness

of the statute on behalf of others. Id. at 125, 613 S.E.2d at

577.

In summary, for the reasons stated above, we hold that

there is no error in the judgment of the trial court, and

accordingly, we will affirm that judgment.

Affirmed.

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