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In the Matter of the Care and Treatment of Charles OHARA. Charles OHara, Appellant, v. State of Missouri, Respondent

Missouri Court of Appeals2011-01-25No. No. SD 30135
331 S.W.3d 319

Summary

Holding. The court affirmed the SVP commitment. The admission of expert testimony without objection, combined with the expert's opinions that O'Hara met the statutory criteria for likelihood of reoffense, provided a sufficient evidentiary basis for the jury's verdict, and a defendant may not challenge the admissibility of evidence through a sufficiency-of-evidence argument.

Charles O'Hara appealed his commitment under Missouri's sexually violent predator law, challenging whether sufficient evidence supported the finding that he was likely to reoffend if not confined. The trial presented expert testimony from Dr. Kent Franks, who concluded that O'Hara met the statutory criteria and was more likely than not to commit future predatory sexual acts without confinement and treatment. O'Hara argued this expert testimony was speculative and inadequate to support the jury's verdict.

The court rejected O'Hara's sufficiency-of-evidence challenge, holding that the admissibility of expert testimony and the sufficiency of evidence to support a verdict are distinct questions. Once expert testimony is admitted into evidence without objection, a jury may rely on it when determining whether a case should proceed to a verdict. O'Hara could not use a sufficiency argument to circumvent the admissibility standards that should have been raised through a timely objection or motion to strike.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Sufficiency of evidence to support SVP commitment based on likelihood of reoffense
  • Distinction between admissibility of expert testimony and sufficiency of evidence
  • Waiver of admissibility challenges by failing to object at trial

Procedural posture

O'Hara appealed from a trial court judgment committing him as a sexually violent predator under Missouri law, raising a sole sufficiency-of-evidence challenge regarding the likelihood-of-reoffense prong.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

DANIEL E. SCOTT, Chief Judge.

Charles O’Hara challenges the sufficiency of the evidence to support his commitment under the sexually violent predator (“SVP”) law. We affirm.

The State’s two-pronged burden at trial was to show that O’Hara (1) has a congenital or acquired condition affecting his emotional or volitional capacity that predisposes him to commit sexually violent offenses to a degree that causes him serious difficulty controlling his behavior; and (2) is more likely than not to engage in predatory acts of sexual violence if not confined. Martineau v. State, 242 S.W.3d 456, 458 (Mo.App.2007).

O’Hara’s sufficiency challenge involves only prong 2’s likelihood of re-offense. Thus, our review is limited to determining whether the evidence was sufficient to convince twelve reasonable jurors that O’Hara was likely to re-offend unless confined. Id. We will reverse only if there is a complete absence of probative fact in support of the jury’s conclusion. Id. We view the evidence most favorably to the jury verdict and disregard all contrary evidence and inferences. Id.

Dr. Kent Franks testified at trial, without objection, that O’Hara fits the SVP criteria, is more likely than not to commit a predatory act of sexual violence if not confined to a secure facility, and is more likely than not to commit sexual offenses in the future without treatment and supervision. Dr. Franks also explained the test results and other bases supporting his expert conclusions. This alone precludes us from finding a complete absence of probative fact to support the verdict, or that twelve reasonable jurors could not find from the evidence that O’Hara was likely to re-offend. Id. at 459.

O’Hara’s argument that Dr. Frank’s prong 2 testimony “was pure speculation and insufficient to support the jurors’ verdict,” misses the distinction between admissibility of expert testimony and submissibility of a case based thereon. If a question exists as to whether proffered expert testimony is supported by a sufficient factual or scientific foundation, the question is one of admissibility, which must be raised by a timely objection or motion to strike. Once an expert opinion has been admitted, as any other evidence, it may be relied upon for purposes of determining the submissibility of the case. Washington by Washington v. Barnes Hospital, 897 S.W.2d 611, 616 (Mo. banc 1995); Lee v. Hiler, 141 S.W.3d 517, 524 (Mo.App.2004).

O’Hara cannot “back-door” an issue relating to the admissibility of expert testimony under the guise of a sufficiency of the evidence argument. Lacy v. Federal Mogul, 278 S.W.3d 691, 700 (Mo.App.2009). Dr. Frank’s opinions were admitted without objection, so it was for the jury to determine their weight. We deny O’Hara’s sole point and affirm the judgment.

RAHMEYER, P.J., and FRANCIS, J., concur.

. See RSMo §§ 632.480-.513 as amended through 2008.

. Thus, we decline to relate other evidence of O’Hara’s sexual deviance.

. We do not imply, by this reference, that there was any valid basis for objection.