Present: All the Justices 

DEREK LAMONT MCCLOUD 

 OPINION BY 

v. Record No. 041200 JUSTICE LAWRENCE L. KOONTZ, JR. 

March 3, 2005 

COMMONWEALTH OF VIRGINIA∗

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Rossie D. Alston, Jr., Judge 

Pursuant to Code § 37.1-70.6(A), the Commonwealth 

petitioned the Circuit Court of Prince William County (trial 

court) to civilly commit Derek Lamont McCloud, a prison inmate, 

as a sexually violent predator. Subsequently, a jury rendered a 

unanimous verdict determining McCloud to be a sexually violent 

predator as defined in Code § 37.1-70.1. Following a 

determination of McCloud’s treatment needs and that alternatives 

to involuntary confinement and treatment were unsuitable, the 

trial court ordered that McCloud be committed to the custody of 

the Department of Mental Health, Mental Retardation and 

Substance Abuse Services for appropriate treatment and 

confinement pursuant to Code § 37.1-70.9(C). 

 ∗

 In the trial court this case was styled “Jerry W. Kilgore, 

Attorney General of Virginia, ex rel. Commonwealth of Virginia 

v. Derek Lamont McCloud.” We have amended the style of the case 

to reflect that the Commonwealth is the direct party in 

interest, not a relator. See Townes v. Commonwealth, 269 Va. 

___, ___ n.*, ___ S.E.2d ___, ___ n.* (2005) (today decided). 
McCloud has appealed that judgment, asserting that the 

trial court erred in permitting the jury to consider evidence of 

his convictions for crimes other than sexually violent offenses 

defined in Code § 37.1-70.1, that the trial court erred in 

finding that there was no suitable less restrictive alternative 

to involuntary institutional confinement, and that the trial 

court erred in considering McCloud’s failure to present an 

alternative treatment plan to justify his involuntary 

commitment. McCloud seeks a new trial as a result of these 

asserted errors. The Commonwealth, by assignments of crosserror, asserts that the trial court erred in refusing to admit 

evidence of all McCloud’s institutional infractions and in 

qualifying and permitting McCloud’s expert witness to testify. 

BACKGROUND 

Between late 1988 and early 1989, McCloud was convicted in 

the trial court of two counts of rape, one count of abduction, 

and one count of indecent liberties. For these felony offenses, 

McCloud received sentences totaling eighty-seven years’ 

imprisonment with fifty-five years suspended. Because certain 

of McCloud’s sentences were ordered to run concurrently, his 

total active time to serve following these convictions was 

seventeen years and six months. 

On March 13, 2003, as required by Code § 37.1-70.4(C), the 

Director of the Virginia Department of Corrections notified the 

2 
Commitment Review Committee (CRC) that McCloud was scheduled to 

be released from prison on November 16, 2003, and had been 

identified through testing as being likely to commit sexually 

violent offenses in the future. Dr. Daniel Sheneman, a forensic 

clinical psychiatrist and sexual offender treatment provider, 

conducted an examination of McCloud as required by Code § 37.1-

70.5(B). The CRC completed its assessment of McCloud for 

possible commitment and, on June 12, 2003, forwarded to the 

Attorney General a recommendation that McCloud be committed as a 

sexually violent predator. 

The Attorney General, on behalf of the Commonwealth, filed 

a petition in the trial court for the civil commitment of 

McCloud as a sexually violent predator on September 9, 2003. 

Following the appointment of counsel, pursuant to Code § 37.1-

70.2, McCloud filed a motion requesting that Dr. Jerome J. 

Miller be appointed as a mental health expert, pursuant to Code 

§ 37.1-70.8, to assist McCloud on the matters relating to his 

mental health. Dr. Miller is a licensed clinical social worker 

who holds a doctorate in social work “with a psychiatric 

emphasis.” 

On November 7, 2003, the trial court conducted a hearing as 

required by Code § 37.1-70.7 and determined that there was 

probable cause to believe that McCloud is a sexually violent 

predator. During that hearing, the trial court also heard 

3 
argument on McCloud’s motion for appointment of Dr. Miller as 

McCloud’s mental health expert. The Commonwealth opposed this 

motion because Dr. Miller is not a licensed psychiatrist or a 

licensed clinical psychologist. The Commonwealth contended 

that, because Code § 37.1-70.5(B) requires a licensed 

psychiatrist or psychologist to conduct the CRC’s evaluation of 

McCloud, any expert appointed to assist McCloud was subject to 

the same requirement. The trial court granted McCloud’s motion 

for appointment of Dr. Miller, noting that the Commonwealth 

could challenge Dr. Miller’s qualifications at trial. Pursuant 

to Code § 37.1-70.9(B), McCloud requested a trial by jury on the 

Commonwealth’s petition for his civil commitment. 

Prior to trial, McCloud filed a motion in limine seeking to 

prohibit the Commonwealth from introducing evidence of his 

criminal convictions for abduction and indecent liberties. 

McCloud contended that the Commonwealth should be limited to 

proving only convictions of predicate violent sexual offenses as 

defined by Code § 37.1-70.1. McCloud also sought to prohibit 

the Commonwealth from introducing evidence of institutional 

infractions committed while he was incarcerated. 

On February 2, 2004, the trial court commenced a jury trial 

on the Commonwealth’s petition.1 Prior to seating the jury, the 

 1

 As discussed infra, pursuant to Code § 37.1-70.9(C), the 

jury’s role was to determine whether McCloud met the definition 

4 
trial court heard argument on McCloud’s motion in limine. The 

trial court ruled that the Commonwealth would be allowed to 

present evidence of the convictions for abduction and indecent 

liberties as well as evidence of those institutional infractions 

involving prohibited “sexual advances.” The trial court 

prohibited the presentation of evidence of an infraction 

involving only an attempted sexual act or any nonsexual act. 

The trial court reasoned that the convictions for abduction and 

indecent liberties and the infractions involving prohibited 

sexual behavior were relevant because they tended to show 

McCloud’s predatory nature. 

In the status determination phase of the trial, the 

Commonwealth introduced certified copies of the orders 

reflecting McCloud’s convictions and the sentences imposed for 

the rapes, abduction, and indecent liberties offenses. Dr. 

Sheneman testified, based upon a review of records maintained by 

the Department of Corrections regarding McCloud’s personal and 

criminal background, a clinical interview with McCloud, and 

various diagnostic tests, that McCloud suffers from “antisocial 

 

of a sexually violent predator under Code § 37.1-70.1. The 

nature of treatment McCloud would receive if the jury so found 

would be determined by the trial court. The parties accordingly 

agreed to bifurcate the presentation of the evidence. We will 

refer to the jury stage of the trial as the “status 

determination phase” and the subsequent proceedings before the 

trial court alone as the “treatment determination phase.” 

5 
personality disorder.” Dr. Sheneman also testified concerning 

McCloud’s institutional infractions that involved prohibited 

sexual behavior. In addition, Cindy Collins, a criminal records 

manager with the Department of Corrections, testified, in accord 

with the trial court’s prior ruling, that McCloud had incurred 

three disciplinary actions for prohibited sexual behavior while 

incarcerated, two for making “sexual advances towards others” 

and one for “indecent exposure.”2 McCloud did not introduce any 

evidence at this stage of the trial. 

After hearing argument of counsel and being instructed by 

the trial court, the jurors were provided with an interrogatory 

verdict form directing them to determine whether McCloud was a 

sexually violent predator. During deliberations, the jury sent 

out four questions to the trial court, including one question 

concerning the “time frames/dates of the sexual institutional 

infractions committed by Mr. McCloud.” The trial court answered 

this question by advising the jurors that they should rely on 

their collective memories as to what facts were presented 

 2

 Because the issues raised in this appeal relevant to this 

phase of the trial are limited to the effect of the trial 

court’s ruling on McCloud’s motion in limine and the limitation 

placed upon the Commonwealth’s presentation of all of McCloud’s 

institutional infractions, we need not relate in detail the 

entire testimony of Dr. Sheneman that supports the jury’s 

determination that McCloud is a sexually violent predator. 

McCloud does not directly challenge the jury’s determination 

and, accordingly, we do not address that issue in this appeal. 

6 
concerning the infractions. The jury returned its verdict 

finding that McCloud meets the definition of a sexually violent 

predator. 

During the treatment determination phase, the Commonwealth 

recalled Dr. Sheneman who then testified that in his opinion 

“in-patient treatment would be more appropriate for” McCloud. 

Dr. Sheneman testified that he was “not familiar with what [form 

of out-patient treatment] is available” in Prince William 

County, but opined that regardless of the form of out-patient 

treatment, McCloud would be at “risk for non-compliance and 

inability to follow the program [and] that would not be an issue 

if he were an in-patient.” Although no plan for treating 

McCloud by medication had yet been developed, Dr. Sheneman 

opined that “if that route were to be taken, [it should be] done 

on an in-patient basis so that they could accurately see what 

treatments were effective more consistently through 

observation.” Dr. Sheneman further testified that he believed 

“McCloud presents a risk to public safety if he were to be 

released” immediately, but that if held for in-patient 

treatment, he might be ready for release to an out-patient 

program “[p]robably [within] a few months” if he “participated 

to the utmost” in the in-patient treatment. 

On cross-examination, Dr. Sheneman conceded it was possible 

that with “enough structure in Mr. McCloud’s life . . . out7 
patient treatment [could be] successful.” However, he 

reiterated that McCloud “would not be able to participate in as 

much treatment as he would have available to him on an inpatient basis.” 

Dr. Miller was called to testify for McCloud. Dr. Miller 

testified that after obtaining his doctorate in social work he 

worked in various professional, governmental, and academic 

settings. In 1979, Dr. Miller founded the National Center on 

Institutions and Alternatives, which is devoted to developing 

alternatives to in-patient treatment for institutionalized 

persons. In 1984, Dr. Miller founded the Augustus Institute, 

which provides clinical services for sex offenders. Dr. Miller 

testified that he serves on the board of the Institute for the 

Study, Prevention, and Treatment of Sexual Trauma at Johns 

Hopkins University. Dr. Miller is a licensed clinical social 

worker and is certified by Virginia as a sex offender treatment 

provider. 

The Commonwealth renewed its objection to having Dr. Miller 

testify on the ground that he was not a licensed psychiatrist or 

licensed clinical psychologist. The trial court agreed that Dr. 

Miller could not testify concerning “any evaluations as to 

different psychosis . . . but I think he can testify with 

regards to socialization issues.” Accordingly, the trial court 

8 
overruled the Commonwealth’s objection and permitted Dr. Miller 

to testify. 

Dr. Miller testified that he had interviewed McCloud and 

reviewed his mental health records. Dr. Miller opined that 

McCloud’s violent tendencies were the result of his use of PCP 

and other psychedelic drugs. Dr. Miller further opined that 

McCloud’s antisocial tendencies would decrease with age. Dr. 

Miller also testified that he believed that “sex offenders . . . 

do not recidivate at the rates commonly understood.” 

Dr. Miller maintained that McCloud “would do well in [outpatient] therapy” and “would be very treatable with a good 

community program.” Dr. Miller further maintained that he would 

be willing to provide services for McCloud through the Augustus 

Institute or to refer him for treatment elsewhere. 

McCloud’s father, Fred W. McCloud, Jr., testified that he 

and his wife would be willing to provide McCloud with a place to 

live and transportation if he were permitted to receive 

treatment as an out-patient. McCloud’s father stated that he 

was financially able to provide for such treatment for his son. 

He further testified that if McCloud failed in his treatment 

obligations, “[my] wife and I would get all over him about it 

and then if we saw that he continued to do something wrong it 

would be reported” to McCloud’s probation officer or the trial 

court. 

9 
At the conclusion of the treatment determination phase, the 

trial court found that the Commonwealth had “investigated less 

restrictive alternatives to involuntary institutional 

confinement and treatment [and] that in the context of this 

case, these less[] restrictive alternatives to involuntary 

institutionalization are unsuitable at this time.” Accordingly, 

the trial court ruled that “the government met its burden of 

proof” and ordered that McCloud be placed in the custody of the 

Department of Mental Health, Mental Retardation and Substance 

Abuse Services for in-patient treatment as required by Code 

§ 37.1-70.10. On February 21, 2004, the trial court entered an 

order committing McCloud as a sexually violent predator. This 

appeal followed. 

DISCUSSION 

This case, along with Townes v. Commonwealth, 269 Va. ___, 

___ S.E.2d ___ (2005) (today decided) and Commonwealth v. Allen, 

269 Va. ___, ___ S.E.2d ___ (2005) (today decided), presents the 

first opportunity for this Court to review the procedures 

required to be followed in order for the Commonwealth to have a 

person who has been convicted of a sexually violent offense 

declared to be a sexually violent predator and to have that 

person involuntarily committed to a secure mental health 

facility upon his release from prison. The statutory scheme 

embodying those procedures is set out in Chapter 2, Article 1.1 

10 
of Title 37.1, commonly referred to as the Sexually Violent 

Predators Act (SVPA). Code § 37.1-70.1 through Code § 37.1-

70.19. Of the three SVPA cases we decide today, we have 

selected this case to review in more detail the procedures of 

the SVPA as well as the standards to be applied in the trial 

court in considering whether to commit a person determined to be 

a sexually violent predator. 

Code § 37.1-70.1 defines a “sexually violent predator” as 

“any person who (i) has been convicted of a sexually violent 

offense or has been charged with a sexually violent offense and 

is unrestorably incompetent to stand trial pursuant to § 19.2-

169.3 and (ii) because of a mental abnormality or personality 

disorder, finds it difficult to control his predatory behavior 

which makes him likely to engage in sexually violent acts.”3 The 

statute further defines a “sexually violent offense” as “a 

felony conviction under . . . §§ 18.2-61 [rape], 18.2-67.1 

[forcible sodomy], or § 18.2-67.2 [object sexual penetration] or 

subdivision A 1 of § 18.2-67.3 [aggravated sexual battery]” or a 

conviction under the law of the Commonwealth for certain types 

of forcible sexual offenses committed prior to July 1, 1981. A 

“mental abnormality” or “personality disorder” is defined for 

 3

 This case and those referenced above involve convicted 

persons (prisoners) rather than persons incompetent to stand 

trial (defendants). See Code § 37.1-70.2. For clarity, we will 

use the designation of “prisoner” hereafter in this opinion. 

11 
purposes of the SVPA 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.” 

The SVPA involves the potential involuntary loss of a 

prisoner’s liberty. Although a proceeding under the SVPA is a 

civil one, a prisoner subject to the SVPA is afforded certain 

rights generally applicable to criminal proceedings. These 

include the right to receive adequate notice of the proceeding; 

to be represented by counsel; to remain silent or to testify; to 

be present during the hearing or trial; to present evidence and 

to cross-examine witnesses; and, to view and copy all petitions 

and reports in the court file. Code § 37.1-70.2. The prisoner, 

however, is not permitted to challenge the validity of his prior 

criminal sentences or institutional convictions. Id. In 

addition, the prisoner has “the right to employ experts at his 

own expense to perform examinations and testify on his behalf” 

or to request that the trial court appoint such experts for him 

as are “deem[ed] necessary” by the trial court.4 Code § 37.1-

70.8(A). 

 4

 In 2004, Code § 37.1-70.8(A) was amended to require that 

any expert appointed to assist a respondent “shall have the 

qualifications required by subsection B of § 37.1-70.5.” Acts 

2004, ch. 764. Code § 37.1-70.5(B) sets the qualifications for 

the professional designated by the CRC to perform the mental 

health examination of a prisoner identified as being subject to 

12 
The prisoner may request a trial by jury, as may the 

Commonwealth. Code § 37.1-70.9(B). As in this case, when a 

jury trial is conducted, the jury’s role is to determine whether 

the prisoner is a sexually violent predator as statutorily 

defined. The ultimate determination whether a prisoner 

determined to be a sexually violent predator will be subject to 

involuntary confinement or some less restrictive form of 

treatment remains vested in the trial court. Code § 37.1-

70.9(C). 

The process for determining whether a prisoner will be 

committed under the SVPA begins when the Director of the 

Department of Corrections identifies a prisoner, who is serving 

a sentence for a sexually violent offense and is scheduled for 

release within ten months, as being likely to commit future acts 

of sexual violence based upon initial screening conducted by the 

Department.5 Any such prisoner must be referred to the CRC for 

further screening and assessment. Code § 37.1-70.4(C). 

 

the SVPA and provides that the examination must be conducted by 

“a licensed psychiatrist or a licensed clinical psychologist, 

designated by the Commissioner of the Department of Mental 

Health, Mental Retardation and Substance Abuse Services.” A 

further provision of the amended version of Code § 37.1-70.8(A) 

provides that a privately employed expert need only be “a 

licensed psychiatrist or a licensed clinical psychologist.” 

5

 If a defendant charged with a sexually violent offense is 

adjudged to be unrestorably incompetent by the Director of the 

Department of Mental Health, Mental Retardation and Substance 

Abuse Services and is unable to stand trial for that reason, a 

13 
The CRC’s assessment of a prisoner referred to it by the 

Director “shall include a mental health examination, including a 

personal interview, of the prisoner by a licensed psychiatrist 

or a licensed clinical psychologist, designated by the 

Commissioner of the Department of Mental Health, Mental 

Retardation and Substance Abuse Services, who is skilled in the 

diagnosis and treatment of mental abnormalities and disorders 

associated with violent sex offenders, and who is not a member 

of the CRC.” Code § 37.1-70.5(B). In addition to the report 

prepared by the professional performing the mental health 

examination of the prisoner, the CRC will include in its 

assessment the prisoner’s score on the screening test used by 

the Department of Corrections or a similar test and review “(i) 

the prisoner’s institutional history and treatment record, if 

any; (ii) the prisoner’s criminal background; and (iii) any 

 

recommendation is to be made to the trial court having 

jurisdiction over the defendant as to whether he should be 

committed pursuant to the SVPA. Code § 19.2-169.3(A). If the 

trial court determines that the defendant will not stand trial 

because he is unrestorably incompetent, the recommendation that 

he be committed as a sexually violent predator is referred 

directly to the Attorney General. Code § 19.2-169.3(D). If the 

Attorney General declines to seek commitment of the defendant as 

a sexually violent predator, the case will be remanded to the 

trial court for further proceedings consistent with the 

treatment of unrestorably incompetent criminal defendants. Id. 

The procedures for commitment as a sexually violent predator of 

an unrestorably incompetent defendant are comparable to those 

applicable to a prisoner incarcerated for a sexually violent 

offense. 

14 
other factor which is relevant to the determination of whether 

such prisoner is a sexually violent predator.” Id.

Upon completion of the assessment, the CRC is required to 

forward the report of the professional performing the mental 

health examination of the prisoner and all relevant records 

relating to the assessment to the Attorney General. The CRC 

must also make a recommendation that the “prisoner (i) be 

committed as a sexually violent predator pursuant to this 

article; (ii) not be committed, but be placed in a conditional 

release program as a less restrictive alternative; or (iii) not 

be committed because he does not meet the definition of a 

sexually violent predator.” Code § 37.1-70.5(C). In order to 

recommend that a prisoner be placed in a conditional release 

program, the CRC must “find[] that (i) such prisoner does not 

need inpatient hospitalization, but needs outpatient treatment 

and monitoring to prevent his condition from deteriorating to a 

degree that he would need inpatient hospitalization; (ii) 

appropriate outpatient supervision and treatment are reasonably 

available; (iii) there is significant reason to believe that the 

prisoner, if conditionally released, would comply with the 

conditions specified; and (iv) conditional release will not 

present an undue risk to public safety.” Code § 37.1-70.5(D). 

Upon receipt of the recommendation and supporting 

documentation from the CRC, the Attorney General must determine 

15 
within 90 days whether to file a petition seeking the civil 

commitment of the prisoner as a sexually violent predator upon 

his release from prison. Code § 37.1-70.6(A). The petition is 

to be “filed in the circuit court wherein the prisoner was last 

convicted of a sexually violent offense.” Id. A copy of the 

petition is to be served on “the warden or superintendent of the 

correctional facility wherein the person is then confined” and 

delivered to the prisoner. Code § 37.1-70.7(A). Additionally, 

the prisoner is to be given “a written explanation of the 

sexually violent predator involuntary commitment process and the 

statutory protections associated with the process.” Id.

Upon the filing of the petition by the Attorney General, 

the circuit court must enter an order directing that the 

prisoner will “remain in the secure custody of the Department of 

Corrections” until a final order is entered on the petition, 

even if such time extends beyond the prisoner’s scheduled date 

of release from prison. Code § 37.1-70.7(A). The circuit court 

then must conduct a probable cause hearing within 60 days to 

determine whether there is a sufficient basis “to believe that 

the person named in the petition is a sexually violent 

predator.” Id. Prior to that hearing, the circuit court must 

assure that the prisoner has the opportunity to retain counsel 

or, if he has not had such opportunity or cannot afford to 

retain counsel, the court will appoint counsel for him. Code 

16 
§ 37.1-70.7(B). If the circuit court finds that there is 

probable cause to believe that the prisoner is a sexually 

violent predator, it must conduct a trial on the Commonwealth’s 

petition within 90 days of that determination. Code § 37.1-

70.9(A). 

At trial, the Commonwealth is required by Code § 37.1-

70.9(C) to prove by “clear and convincing evidence” that the 

prisoner is a sexually violent predator as defined by Code 

§ 37.1-70.1. Upon such a finding by the circuit court, or by 

the jury if a jury trial was conducted, “the court shall then 

determine the nature of treatment the person is to receive.” 

Id. Before ordering that the prisoner be committed to a secure 

mental health facility, the circuit court must find “that 

alternatives to involuntary confinement and treatment have been 

investigated and deemed unsuitable and there is no less 

restrictive alternative to institutional confinement and 

treatment.” Id. If the circuit court finds that involuntary 

confinement is not required, the case is continued in order for 

the Commissioner of the Department of Mental Health, Mental 

Retardation and Substance Abuse Services to provide a report 

“suggesting possible alternatives to full commitment.”6 Id.

 6

 The SVPA contains further provisions for the placement of 

prisoners found to be sexually violent predators in a secure 

mental health facility, the procedures for review of the 

continuation of their confinement and for prisoners so confined 

17 
Applying this statutory scheme, we turn to our 

consideration of the issues raised by McCloud and the 

Commonwealth in this appeal. We will consider assignments of 

error and cross-error in the order in which the issues to which 

they relate arose in the trial court, beginning with the pretrial rulings on the admissibility of evidence in the status 

determination phase to prove that McCloud is a sexually violent 

predator. Specifically, McCloud has assigned error to the trial 

court’s ruling permitting the Commonwealth to adduce evidence of 

his convictions for abduction and indecent liberties because 

those offenses are not defined by Code § 37.1-70.1 as sexually 

violent offenses. The Commonwealth has assigned cross-error to 

the trial court’s ruling to limit its introduction of certain 

evidence concerning McCloud’s institutional infractions. 

To support his first assertion of error, McCloud relies on 

the principle applicable to criminal trials that generally bars 

the Commonwealth from introducing evidence of other crimes or 

bad acts by a defendant to prove his guilt of the crime charged. 

See, e.g., Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 

114, 127 (1996); Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 

 

to petition for release, and penalties for escape from a secure 

mental health facility or violation of conditional release 

status. Because these provisions of the statutory scheme are 

not at issue in any of the cases presently under consideration 

by this Court, we need not describe those provisions in further 

detail. 

18 
176 S.E.2d 802, 805 (1970). McCloud further relies on the 

principle that “ ‘a judgment of conviction or acquittal in a 

criminal prosecution does not establish in a subsequent civil 

action the truth of the facts on which it was rendered . . . and 

such judgment of conviction or acquittal is not admissible in 

evidence.’ ” Godbolt v. Brawley, 250 Va. 467, 470, 463 S.E.2d 

657, 659 (1995) (quoting Smith v. New Dixie Lines, Inc., 201 Va. 

466, 472, 111 S.E.2d 434, 438 (1959)). McCloud’s reliance on 

both of these principles is misplaced. 

“Evidence is relevant if it tends to prove or disprove, or 

is pertinent to, matters in issue.” Clay v. Commonwealth, 262 

Va. 253, 257, 546 S.E.2d 728, 730 (2001); see also Barkley v. 

Wallace, 267 Va. 369, 373, 595 S.E.2d 271, 273 (2004); Velocity 

Express Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 205, 585 

S.E.2d 557, 566-67 (2003). In determining whether relevant 

evidence should be admitted, the trial court must apply a 

balancing test to assess the probative value of the evidence and 

any undue prejudicial effect of that evidence. Dandridge v. 

Marshall, 267 Va. 591, 596, 594 S.E.2d 578, 581 (2004); Brugh v. 

Jones, 265 Va. 136, 140, 574 S.E.2d 282, 284-85 (2003). The 

Commonwealth’s burden in a proceeding under the SVPA is to prove 

by clear and convincing evidence both that the prisoner has been 

convicted of a sexually violent offense and because of a mental 

abnormality or personality disorder, the prisoner finds it 

19 
difficult to control his predatory behavior which makes the 

prisoner likely to engage in sexually violent acts in the 

future. Thus, evidence that tends to prove or is otherwise 

pertinent to either of those elements is relevant. Beyond 

question, evidence that McCloud had been convicted of an 

abduction related to a rape and evidence that he had been 

convicted for indecent liberties were pertinent to the question 

whether McCloud was likely to commit sexually violent acts in 

the future and, thus, were relevant. 

The determination to admit such relevant evidence rested 

within the trial court’s sound discretion and will only be 

disturbed on appeal upon a showing of an abuse of that 

discretion. Dandridge, 267 Va. at 596, 594 S.E.2d at 581; 

Lombard v. Rohrbaugh, 262 Va. 484, 492, 551 S.E.2d 349, 353 

(2001). McCloud’s conviction for abduction was inextricably 

connected with his conviction for the rape; both offenses 

occurred during the same series of events. Thus, the abduction 

is highly probative of predatory behavior. McCloud’s conviction 

for indecent liberties occurred in relative proximity to his 

other convictions for sexual offenses, and is highly probative 

of his inability to control his impulsive sexual behavior. Any 

prejudicial effect this evidence might have had on the minds of 

the jurors was far outweighed by its probative value on the 

issue to be determined by the jury. Accordingly, we hold that 

20 
the trial court did not err in permitting admission of this 

evidence.7

In its assignment of cross-error, the Commonwealth contends 

that the trial court erred in limiting the introduction of 

evidence concerning McCloud’s misbehavior while in prison to 

instances of infractions for prohibited sexual behavior. The 

Commonwealth contends that because a prisoner subject to the 

SVPA will have been incarcerated for many years prior to the 

time of the trial on the petition seeking his commitment, 

evidence of his behavior while incarcerated is the best evidence 

available to the Commonwealth to establish whether he has the 

ability to control his predatory impulses or is likely to reoffend. This is particularly true, the Commonwealth contends, 

because a person unable to control his behavior within the rigid 

structure of a prison, where presumably misbehavior is 

immediately discovered and punished, will be even less likely to 

be able to control his behavior once he is returned to free 

 7

 There is simply no merit to McCloud’s reliance upon 

Godbolt. Its discussion and holding with respect to 

admissibility of prior criminal proceedings related to the 

collateral estoppel use in a later civil suit of facts allegedly 

determined in a prior criminal proceeding. See 250 Va. at 470, 

463 S.E.2d at 659 (discussing the mutuality requirement and same 

object/same results tests). That decision also turned upon the 

rules relating to the use of a criminal conviction where a 

convicted defendant seeks to recover as a plaintiff in a civil 

suit for the very wrong he perpetrated. Id. at 471, 463 S.E.2d 

at 660. 

21 
society. Thus, the Commonwealth asserts that in addition to 

evidence of McCloud’s sexual misbehavior, the trial court should 

also have permitted introduction of all McCloud’s infractions, 

or at least permitted it to present evidence of the number of 

infractions he committed. 

The record in this case reflects that McCloud incurred 

eighty-two institutional infractions over a period of years. 

Those infractions, other than those the trial court admitted 

into evidence, ranged in degree of apparent severity from 

“disregarding a direct order” to “assault” and “possession of a 

weapon.” The record contains no details regarding the 

circumstances involved in these infractions. The trial court in 

limiting the Commonwealth’s evidence to infractions for 

prohibited sexual behavior reasoned that the other infractions 

would not be probative of McCloud’s predatory behavior and that 

simply permitting the Commonwealth’s witness to recite the 

number of infractions without giving the specifics of the 

circumstances involved “might mislead the jury.” We are of 

opinion that the trial court did not abuse its discretion in 

limiting the Commonwealth’s evidence in this manner. It simply 

cannot be reasonably concluded that a prisoner who violates an 

institutional rule while incarcerated such as disregarding a 

direct order or “being in an unauthorized area” is likely to 

commit a sexually violent offense or other criminal offense upon 

22 
his release from prison. Science has yet to reach that degree 

of accuracy in prediction and in its absence such evidence, if 

not confusing to a jury, would only be prejudicial in its 

presentation to the jury. 

We now consider the Commonwealth’s assignment of crosserror concerning the qualification of Dr. Miller as an expert 

witness for McCloud during the treatment determination phase of 

the trial. Initially, we note that the Commonwealth’s concerns 

underlying this assignment of error have been addressed by the 

recent amendment to Code § 37.1-70.5(A) which, as we have noted 

above, now provides that any expert appointed to assist a 

prisoner subject to a SVPA petition “shall have the 

qualifications required by subsection B of § 37.1-70.5.” 

Because the Commonwealth prevailed in the trial court and in 

light of our ultimate resolution of McCloud’s appeal, the issue 

of Dr. Miller’s qualification as an expert by the trial court in 

this case is moot. Accordingly, we will not address this issue 

further in this opinion. 

We turn now to consider McCloud’s remaining two assignments 

of error. These relate to the trial court’s finding that less 

restrictive alternatives to involuntary confinement were 

investigated and deemed unsuitable and whether the trial court 

improperly shifted the burden of showing that such alternatives 

were available to McCloud when, according to McCloud, it 

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implicitly based its decision to have him involuntary confined 

in part on his failure to present a specific plan for 

alternative treatment. 

With respect to the first issue, McCloud essentially 

contends that the evidence introduced at the treatment 

determination phase of his trial does not support the trial 

court’s finding that alternatives to involuntary confinement 

have been investigated and deemed unsuitable as required by Code 

§ 37.1-70.9(C). To the extent that McCloud suggests that the 

language of this statute imposes in every case a requirement 

upon the Commonwealth to propose specific alternatives to 

commitment and then to show that they are unsuitable, we 

disagree. We have no reservation in concluding that the General 

Assembly did not intend to impose such a futile requirement upon 

the Commonwealth in cases where out-patient treatment of a 

sexually violent predator is not indicated by expert opinion. 

Nevertheless, McCloud contends that Dr. Sheneman’s 

testimony does not establish that out-patient treatment would be 

unsuitable, particularly when considered in conjunction with the 

testimony of Dr. Miller and McCloud’s father. Again, we 

disagree. While the trial court was required to consider all 

the evidence in determining the nature of the treatment McCloud 

is to receive, under familiar principles the trial court was 

entitled to resolve any conflicts in that evidence and to accord 

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the testimony of each witness the weight it determined to be 

appropriate. Dr. Sheneman testified that out-patient treatment 

was not appropriate for McCloud. He indicated specific concerns 

with McCloud’s ability to comply with rules and opined that 

McCloud’s lack of insight into his personality disorder would 

interfere with his receiving treatment unless he was in a 

setting in which his behavior was controlled and monitored. 

This evidence was sufficient for the trial court to conclude 

that alternatives to involuntary confinement had been 

investigated by the Commonwealth and were found to be 

unsuitable. 

With regard to the second issue, McCloud contends that when 

the trial court ruled in its summation that “no medication 

regimen, no specific diagnosis, no positive regimen for Mr. 

McCloud’s acknowledged substance abuse issues, no behavioral 

adaptation or precise plan for Mr. McCloud’s reintegration into 

the community can be presented at this time,” it implicitly 

imposed upon McCloud the burden of providing such a plan to the 

trial court for consideration. McCloud contends that the trial 

court “us[ed] McCloud’s failure to present a conditional release 

plan at the dispositional phase of the trial as a reason for 

imposing institutional confinement.” 

McCloud is correct that the burden of proving that there is 

no suitable less restrictive alternative to involuntary 

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confinement rests with the Commonwealth, and that burden cannot 

be shifted to the prisoner. However, when, as here, the 

Commonwealth has adduced evidence sufficient to satisfy the 

trial court that involuntary confinement is necessary and, thus, 

less restrictive alternatives are unsuitable, the prisoner then 

has the burden of going forward with his case if he is to rebut 

the Commonwealth’s evidence. See Shope v. Commonwealth, 228 Va. 

203, 205, 321 S.E.2d 282, 284 (1984). 

We find nothing in the trial court’s statement referenced 

by McCloud, or at any other point in the record, to support the 

contention that the trial court either required McCloud to 

produce a specific conditional release plan or that the trial 

court’s decision to order McCloud to be involuntarily confined 

was based on the failure of McCloud to present such a plan. To 

the contrary, the statement cited by McCloud clearly indicates 

the trial court’s finding that it agreed with the Commonwealth 

that no such plan for conditional release could be developed at 

that time because involuntary confinement was the only suitable 

form of treatment for McCloud. Accordingly, we hold that the 

trial court did not improperly shift to McCloud the burden of 

proving that there was a suitable alternative to involuntary 

confinement. 

CONCLUSION 

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For the reasons stated with regard to each of McCloud’s 

assignments of error and the Commonwealth’s assignments of 

cross-error, we hold that there is no error in the judgment of 

the trial court that McCloud is a sexually violent predator 

requiring treatment through involuntary confinement in a secure 

mental health facility. Accordingly, the judgment of the trial 

court will be affirmed. 

Affirmed. 

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