Section 632.498.5(4) specifies the different outcomes which can result from the merits trial:
If the court or jury finds that the persons mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence, the person shall remain in the custody of the department of mental health in a secure facility designated by the director of the department of mental health. If the court or jury finds that the persons mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the person shall be conditionally released as provided in section 632.505.
Prior to 2006, an offender released from commitment was fully discharged and could not be returned to custody without new findings that the offender was a [sexually violent predator]. State ex rel. Schottel v. Harman , 208 S.W.3d 889, 891 (Mo. banc 2006). The statute was substantially amended in 2006, however. The 2006 amendments removed all reference to the discharge of an offender from the sexually violent predator commitment statutes. Instead, the statutes now refer only to the offenders release or conditional release.
In addition, a new § 632.505 was enacted in 2006. It provides that,
Upon determination by a court or jury that the persons mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the court shall place the person on conditional release pursuant to the terms of this section. The primary purpose of conditional release is to provide outpatient treatment and monitoring to prevent the persons condition from deteriorating to the degree that the person would need to be returned to a secure facility designated by the director of the department of mental health.
§ 632.505.1. The statute specifies a substantial number of conditions which the court must place upon an offender entitled to conditional release. Thus, § 632.505.3 provides in relevant part:
The court shall order that the person shall be subject to the following conditions and other conditions as deemed necessary:
(1) Maintain a residence approved by the department of mental health and not change residence unless approved by the department of mental health;
(2) Maintain employment unless engaged in other structured activity approved by the department of mental health;
(3) Obey all federal and state laws;
(4) Not possess a firearm or dangerous weapon;
(5) Not be employed or voluntarily participate in an activity that involves contact with children without approval of the department of mental health;
(6) Not consume alcohol or use a controlled substance except as prescribed by a treating physician and to submit, upon request, to any procedure designed to test for alcohol or controlled substance use;
(7) Not associate with any person who has been convicted of a felony unless approved by the department of mental health;
(8) Not leave the state without permission of the department of mental health;
(9) Not have contact with specific persons, including but not limited to, the victim or victims family, as directed by the department of mental health;
(10) Not have any contact with any child without specific approval by the department of mental health;
(11) Not possess material that is pornographic, sexually oriented, or sexually stimulating;
(12) Not enter a business providing sexually stimulating or sexually oriented entertainment;
(13) Submit to a polygraph, plethysmograph, or other electronic or behavioral monitoring or assessment;
(14) Submit to electronic monitoring which may be based on a global positioning system or other technology which identifies and records a persons location at all times;
(15) Attend and fully participate in assessment and treatment as directed by the department of mental health;
(16) Take all psychiatric medications as prescribed by a treating physician;
(17) Authorize the department of mental health to access and obtain copies of confidential records pertaining to evaluation, counseling, treatment, and other such records and provide the consent necessary for the release of any such records;
(19) Report to or appear in person as directed by the department of mental health and the department of corrections, and to follow all directives of such departments;
(21) Comply with any other conditions that the court determines to be in the best interest of the person and society.
In evaluating the evidence presented at the bench trial, the circuit court was required to determine whether King had proven by a preponderance of the evidence that [he] no longer suffers from a mental abnormality that makes the person likely to engage in acts of sexual violence if released. § 632.498.4 (emphasis added). The circuit court interpreted the phrase if released to refer to a scenario in which King was granted an unconditional, unsupervised release. Based on this interpretation of if released, the court agreed with the State that Kings expert, Dr. Luis Rosell, had used the wrong legal standard in evaluating Mr. King, because in formulating his opinions he considered the conditions that the court would be required by § 632.505.3 to impose on King if it released him.
In determining whether if released in § 632.498.4 refers to conditional release or outright discharge, we rely on ordinary tools of statutory interpretation. The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning. Dickemann v. Costco Wholesale Corp. , 550 S.W.3d 65, 68 (Mo. banc 2018) (citation and internal quotation marks omitted). The provisions of a legislative act must be construed and considered together and, if possible, all provisions must be harmonized and every clause given some meaning. Id. (citation and internal quotation marks omitted). An amended statute should be construed on the theory that the legislature intended to accomplish a substantive change in the law. Cub Cadet Corp. v. Mopec, Inc. , 78 S.W.3d 205, 214 (Mo. App. W.D. 2002) (citation and internal quotation marks omitted).
The circuit court erred by interpreting the phrase if released in § 632.498.4 as a reference to unconditional, unsupervised freedom. The current sexually violent predator statutes use the terms release and conditional release interchangeably. Thus, the statutes on multiple occasions refer to a committed persons right to petition for release (§§ 632.498.2, 632.501, 632.504), to the jurisdiction into which the committed person is to be released (§§ 632.498.3, 632.501), and to postponement of release (§ 632.507.2). These statutory provisions can only be read to refer to an offenders release under the conditions specified in § 632.505 , since that is the only form of release which currently exists under the statutes. As the Supreme Court has explained, [d]espite the fact that the legislature has chosen to write these various ... statutes in slightly different ways and with slightly different language, their plain meaning, as in the statute before us, is clear when the various provisions are considered in context. Care & Treatment of Schottel v. State , 159 S.W.3d 836, 842 (Mo. banc 2005). In this context, the legislatures use of the words [if released] is ... merely ... a shorthand way of referring to the possibility that the offender will be released pursuant to the conditions specified in § 632.505. Id.
The circuit court effectively read the phrase if released in § 632.498.4 to refer to the type of unconditional discharge which existed under the pre-2006 version of the sexual violent predator statutes. That form of unconditional discharge no longer exists, however. As the Supreme Court has explained, following the 2006 amendments to the relevant statutes [a]n offender released under the amended version of section 632.498 remains committed to custody, and is only entitled to be conditionally released as provided in section 632.505. State ex rel. Schottel , 208 S.W.3d at 891 (quoting § 632.498.5(4)). The circuit court erred in evaluating the evidence under a release scenario which will not, and cannot, ever exist under the current version of the sexually violent predator statutes.
As we explained in a case involving the commitment of persons found not guilty of a crime by reason of mental disease or defect,
Conditional and unconditional releases are not the same. They serve different purposes.... The legislature created the different forms of release, conditional release and unconditional release, recognizing the value of tailoring the release program to the individual case. The factors to be considered in an unconditional release case differ from those to be considered in conditional release cases.... [¶] The different standards for release are designed to balance the committed persons right to freedom from confinement against the communitys interest in safety.
State v. Weekly , 107 S.W.3d 340, 349 (Mo. App. W.D. 2003). The circuit court in this case erred by applying standards applicable to unconditional release in a case in which King was only eligible for, and was only seeking, conditional release.
As King points out, the circuit courts interpretation of if released also creates potential constitutional problems. According to the circuit courts interpretation, to be entitled to conditional release, King was required to prove that he no longer suffers from a mental abnormality that makes him likely to engage in acts of sexual violence if he was released without condition , and without supervision. Having proved that he did not present a danger if given his unrestricted freedom, however, King would then be subject to release under the highly intrusive and restrictive conditions listed in § 632.505.3, and other conditions imposed by the court. As the Missouri Supreme Court has explained, however, even if an individuals involuntary commitment was originally justified, it could not constitutionally continue after a basis no longer existed. Murrell , 215 S.W.3d at 104 (quoting OConnor , 422 U.S. at 575, 95 S.Ct. 2486 ). An offenders involuntary commitment is only justified until his mental abnormality no longer causes him to be a threat to others. Id. at 105 (quoting Hendricks , 521 U.S. at 363, 117 S.Ct. 2072 ); see also Coffman , 225 S.W.3d at 446. If King were able to satisfy the circuit courts standard, and prove that he presents no threat of reoffending if released without restriction , we question whether there would then be a constitutionally sufficient basis to subject him to the restrictions found in § 632.505.3.
The phrase if released in § 632.498.4 must be read to refer to the type of release King was seeking, and the only type of release that was available to him: namely, release subject to the conditions specified in § 632.505.3. The testimony of Kings expert witness, Dr. Rosell, did not apply an incorrect legal standard by referencing the release conditions mandated by § 632.505.3, and his testimony should not have been disregarded by the circuit court on that basis.
King argues that, if this Court concludes that the circuit court applied an incorrect legal standard, this Court should determine on its own that King is entitled to a trial on the merits of his petition for conditional release. We decline to assess the evidence in the first instance on appeal. Section 632.498.4 provides that an offender is entitled to a merits trial only [i]f the court at the hearing determines by a preponderance of the evidence that the person no longer suffers from a mental abnormality that makes the person likely to engage in acts of sexual violence if released. The Supreme Court has explained that [t]he preponderance of the evidence standard is a weighing standard, where the fact-finder must consider whether the greater weight of the evidence supports release. Coffman , 225 S.W.3d at 444. The Court distinguished the preponderance of the evidence standard from the probable cause standard in an earlier version of § 632.498, which d[id] not require the fact-finder to weigh conflicting evidence. Id.
Because the standard in § 632.498.4 requires the circuit court to weigh conflicting evidence to determine whether the offender has proven his lack of dangerousness by the greater weight of the evidence, this determination is appropriately made by the circuit court under the correct legal standards, not by this Court on appeal. We therefore remand this case to the circuit court to determine whether King satisfied the standard of § 632.498.4 (interpreted consistently with this opinion), and whether he is therefore entitled to a merits trial on his petition for conditional release.
Conclusion
The judgment of the circuit court is reversed, and the case is remanded for further proceedings consistent with this opinion.
All concur.