Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan, and Powell, JJ., and Koontz, S.J. STEVEN DEMILLE OPINION BY v. Record No. 110100 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR. January 13, 2012 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Dennis J. Smith , Judge In this appeal, we consider whether in a proceeding under the Civil Commitment of Sexually Violent Predators Act ("SVPA"), Code § § 37.2

- 900 et seq., the determination that the respondent is likely to engage in sex ually violent acts must be based solely on expert testimony that states an opinion to that effect in express terms . For the reasons that follow, we conclude that the factual determination of whether a respondent is a sexually violent predator likely to en gage in sexually violent acts is to be based on the totality of the record, including but not limited to expert testimony.
BACKGROUND The pertinent facts are not in dispute and, pursuant to familiar principles, will be viewed in the light most favorable to the Commonwealth. Shivaee v. Commonwealth , 270 Va. 112, 127, 613 S.E.2d 570, 578 (2005). On March 13, 1989, pursuant to a guilty plea Steven De M ille was convicted in the Circuit Court of Fairfax County of rape. On June 9, 1989,
De M ille was sentenced to serve twenty

- five years imprisonment,2 with ten years suspended. De M ille was concurrently serving lesser sentences for other offenses. While in prison, De M ille was convicted of a weapons violation and sentenced to five years, with four years suspended. De M ille was released on mandatory parole on August 12, 1999, having served just over eleven years of his concurrent sentences, including credit for time served while awaiting trial. Following a determination by the Virginia Parole Board that he was unsuita ble for parole, De M ille was returned to the custody of the Department of Corrections on June 26, 2001 to serve the remainder of his active time. De M ille was scheduled for release on September 15, 2004. As a consequence of his scheduled release and his pe rformance on a standardized risk assessment test, De M ille was referred for evaluation by the Department of Corrections to the Commitment Review Committee. Code § 37.2

- 903. 1 Based upon De M ille's criminal history and his performance on a recidivism risk as sessment test, on July 27, 2004 the Committee advised the Office of the Attorney

1 At the time the commitment p etition was filed in this case, the provisions of the SVPA were codified at Code §§ 37.1

- 70.1 through 37.1

- 70.19. Unless noted otherwise, in all material respects the current version of the SVPA is substantially the same as the former version and, accordi ngly, we will cite to the current version of the SVPA in this opinion.3 General of its opinion that De M ille was subject to civil commitment under the SVPA. Code § 37.2

- 904. On September 14, 2004, the Attorney General filed a petition in the circu it court see king the civil commitment of
DeM ille as a sexually violent predator. Code § 37.2

- 305. Counsel was appointed for De M ille , and a probable cause hearing was held on Nove mber 9, 2004 pursuant to Code § 37.2

- 906. At the conclusion of the hearing, the circuit court entered an order finding that there was probable cause to believe that De M ille was a sexually violent predator. Beginning October 4, 2005, the circuit court held a two

day bench trial to determine whether De M ille met the statutory criter ia for being a sexually violent predator. As relevant to the issue addressed in this appeal, the evidence at trial consisted of the testimony of three police detectives and a probation officer as lay witnesses. Additionally, three expert witnesses testif ied at trial: Lisa Hunt, a licensed professional counselor who had provided sex offender therapy
to De M ille while on probation, and two psychologists, Dr. Anita L. Boss, an expert for the Commonwealth, and Dr. Ronald M. Boggio, an expert for De M ille. Bot h Dr. Boss and Dr. Boggio also submitted written evaluations of De M ille that were received into the evidence by the court.4 The testimony of the lay witnesses dealt with De M ille's criminal history and his difficulty in readjusting to society during his prob ation. Hunt recounted that De M ille had disclosed to her his past offenses of "peeping," Code § 18.2

- 130 , and indecent exposure, Code § 18.2

- 387 , along with substance abuse. However, she did not express an opinion regarding the likelihood of DeMille re - of fending. With regard to a diagnosis, both Dr. Boss and Dr. Boggio concluded that De M ille suffered from a mental defect or disorder as defined by the SVPA. Specifically, both experts diagnosed De M ille as suffering from exhibitionism, voyeurism, and a gener al personality disorder featuring antisocial and narcissistic behavior. Dr. Boss concluded based on her evaluation and diagnoses that "De M ille's risk for sexual recidivism can be categorized as high." Dr. Boggio concluded that "De M ille presents a high ri sk for sexual re

- offending" based on an actuarial risk assessment, and further that "[t]aking all .

. . factors into consideration, it would appear that his risk for future sexual re

- offending may be somewhat higher than that predicted by actuarial variabl es alone." During her testimony, Dr. Boss conceded that while she was able to state within "a reasonable degree of psychological certainty [De M ille's] potential of sexually re

- offending[,] I5 can't give that designation to the potential for sexually violent re - offense." According to Dr. Boss, t his was so because, "[i]n terms of sexually violent re

- offense, that's a very narrow definition and it's beyond the scope of social science." Likewise, Dr. Boggio testified that he could not express an opinion regard ing De M ille's risk for committing another sexually violent act, as opposed to his general risk for committing any sexual offense "because the research does not allow us to make that distinction." In his closing argument, De M ille's counsel asserted that in order for the circuit court to find that De M ille was "likely to engage in sexually violent acts," Code § 37.2

- 900, by clear and convincing evidence, "the Commonwealth is asking
you . . . to fill in that evidence, to go where the experts will not go." De M i lle's counsel maintained that the issue was not merely a limitation of the scope of social science research, but , rather, that the evidence showed that De M ille was more likely to commit non

- violent acts of voyeurism and exhibitionism. Because De M ille "onl y . . . has one violent [sexual] act in his lifetime," and the experts were not able
to state to a reasonable degree of psychological certainty that his likelihood to re

- offend was specifically for sexually violent offenses, counsel maintained that the Commonwealth had6 not established a necessary element of proof that De M ille was a sexually violent predator. On March 27, 2006, the circuit court issued an opinion letter in which it set out its findings concerning whether
De M ille met the criteria for being a sexually violent predator. The court noted that there was no dispute that
De M ille had been convicted of a sexually violent offense and that the evidence from both Dr. Boss and Dr. Boggio was sufficient to establish that De M ille suffered from a mental abno rmality or personality disorder and found it difficult to control his predatory behavior. The circuit court devoted most of its analysis to the issue, reasserted by De M ille in this appeal, that in order to find that his risk of re

- offending was specificall y for sexually violent offenses, the Commonwealth was required to present express expert testimony to that effect. The court concluded that the SVPA did not require that the nature of a respondent's likelihood to re

- offend be based on expert testimony alo ne. The court noted that the legislature had provided in other parts of the Code for instances where expert testimony was the exclusive manner for proving a fact. See , e.g. , Code § 8.01

- 581.20 (expert testimony required to establish standard of care for medical negligence); Code § 18.2

- 67.9 (expert testimony required to establish that a7 child witness should testify by closed circuit television to avoid severe emotional trauma). The court concluded that these instances were exceptions to the general rule that a trier of fact is not required to give special weight or credibility to an expert, and may disregard an expert opinion if the evidence as a whole supports a different conclusion. Moreover, the court noted that as with any other determination of fact , the trier of fact could rely on both direct and circumstantial evidence and any reasonable inferences that might be drawn therefrom. Based on these principles of law, the circuit court ruled that "De M ille's assertion that findings of causation and likeli hood of commission of further sexually violent acts can only be established if based on expert opinions directly on these issues" was not a correct statement of the law with regard to SVPA proceedings. Reviewing "the evidence as a whole," the court then c oncluded "that because of his personality disorder and his difficulty controlling himself,
Mr. De M ille is likely to engage in sexually violent acts in the future and constitutes a menace to the health and safety of others." On April 26, 2006, the circuit c ourt entered an order declaring De M ille to be a sexually violent predator. The matter was continued for additional proceedings to determine8 whether there was any suitable less restrictive alternative to involuntary secure inpatient treatment. Code § 37.2

- 908(D). At the conclusion of these proceedings, the court determined that De M ille required secure inpatient treatment and ordered him to be committed to the custody of the Department of Behavioral Health and Development Services for appropriate
treatment and confinement in a secure facility. By an order dated June 6, 2011, we awarded De M ille an appeal to determine whether the circuit court erred in ruling that the determination that a respondent in an SVPA proceeding is likely to engage in future s exual l y violen t acts require s an express assertion to that effect by an expert witness. 2

2 We also granted DeMille an appeal on the question of whether the circuit court erred in overruling a motion, filed after the determination had already been made that DeMille was a se xually violent predator, to dismiss the commitment petition on the ground that it failed to allege that DeMille was completing a sentence for a sexually violent offense at the time the petition was filed, as was then required by former Code § 37.1

- 70.4. I n ruling on this issue, the court determined that DeMille was completing his sentence for the 1989 rape conviction at the time the petition was filed and as that offense was alleged to be the predicate offense for the commitment proceedings, the petition a dequately stated the necessary allegations required by the SVPA to initiate a commitment proceeding. DeMille principally attacks the court's determination that he was actually serving his sentence for the rape conviction at the time the petition was filed , but only cursorily addresses the issue on appeal, as stated in his assignment of error, that the commitment petition failed to adequately allege this fact. Disregarding DeMille's argument addressed to the factual finding of the court, rather than the co urt's legal conclusion as to the adequacy of the pleading, we find that DeMille has not9 DISCUSSION On appeal, De M ille contends that "[i]f the Commonwealth's expert [Dr. Boss] could not determine the potential for sexually violent offending, the circuit court, c onsidering the same evidence, equally could not." De M ille asserts that if Dr. Boss was not able to offer an expert opinion as to the likelihood that De M ille would re

- offend by committing a violent sexual offense, the court could not base its finding on th at issue on the record as a whole because the record "can be no better than its constituent elements

– and none of those elements provided a basis for determining, by clear and convincing evidence, that De M ille was 'likely to engage in sexually violent a ct s.' " The Commonwealth responds that the circuit court correctly relied upon the record as a whole to determine the ultimate issue in the case, which was whether De M ille met the statutory criteria for being a sexual ly violent predator. In making that dete rmination, the Commonwealth notes that this Court has stated that "the opinion of experts is not dispositive." Commonwealth v. Squire , 278 Va. 746, 751, 685 S.E. 2d 631, 633 (2009). We agree.

sufficiently briefed the issue set out in his assignment of error, and the issue has thus been waived. Rule 5:17(c)(6); Rule 5:27.10 The circumstances in the present case are the reverse of the ci rcumstances in Squire . In that case, the expert wit nesses for the Commonwealth "agreed that Squire had a mental abnormality or personality disorder and

. . . because of this disorder, Squire was likely to commit sexually violent offenses in the future." Id. at 750, 685 S.E.2d at 632. However, based on various risk assessment data, the experts "could not say that Squire would be one of the individuals who would re

- offend." Id. Moreover, "[t]he record also show[ed] that Squire had not been charged with o r 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." Id. at 75 0

- 5 1, 685 S.E.2d at 633. Based upon this record as a whole, the trial court concluded that the Commonwealth had not proven by clear and convincing evidence that Squire was likely to re

offend by enga ging in sexually violent acts in the future and dismissed the commitment petition. Id. at 749, 685 S.E.2d at 632. On appeal, the Commonwealth contended that the evidence, including the "uncontradicted testimony of two experts [,] left the trial court with 'the only reasonable conclusion .

. .11 that Squire is a sexually violent predator.' " Id. In affirming the judgment of the trial court, we cited Code § 37.2

- 908(C), which provides that "[t]he court or jury shall determine whether, by clear and convincing evidence, the respondent is a sexually violent predator." Thus, we concluded that "[w]hile the experts testified that, in their opinion, Squire was .

. . likely to commit violent sexual acts, the opinion of experts [on that issue] is not dispositive." Id
. at 751, 685 S.E.2d at 633. The record in Squire showed that the trial court had

" 'listened carefully to the reports' of the experts but that it also considered 'the chronology of the defendant's life.' " Id. When considering the record as a whole, the trial court had concluded that the Commonwealth had not established by clear and convincing evidence that Squire was likely to engage in future sexually violent acts. In reviewing that determination and affirming the judgment of the trial court , we appli ed the standard applicable to appellate review of determinations of fact by a trial court or jury, that is, whether the finding is "plainly wrong or without evidence to support [ it ] ." Id. The rationale of Squire applies to the present case. Thus, the iss ue is not whether an expert must express an opinion that a n SVPA commitment respondent is likely to commit12 future sexually violent acts in order for the trier of fact to find that the respondent is a sexually violent predator

. Rather , the issue is whether the record as a whole support s such a determination by the trier of fact by clear and convincing evidence. In this respect, our decision in Commonwealth v. Miller , 273 Va. 540, 643 S.E.2d 208 (2007), is instructive.
In Miller , the Commonwealth appealed t he dismissal of a n SVPA commitment petition contending that the trial court had erred in concluding that it had not proven Miller was a sexually violent predator by clear and convincing evidence. We reviewed the entire record and recited the particular el ements of Miller's mental disorders that made him likely to engage in sexually violent acts. Id. at 551

- 53, 643 S.E.2d at 214

- 15. We concluded that the evidence of Miller being a sexually violent predator was so overwhelming that the trial court's failur e to make that determination was plainly wrong and without support in the record and remanded the case for further proceedings. Id. at 553, 643 S.E.2d at 215

- 16. Likewise, in the present case, we consider the record as a whole. While it is clear that nei ther Dr. Boss nor Dr. Boggio was able to opine that the sexual offenses De M ille was likely to commit in the future would be sexually violent acts as defined in Code § 37.2

- 900 , neither could they exclude that13 likelihood . Indeed, both experts were equally clear that the random, brutal nature of the rape committed by De M ille and other elements of his history were significant factors in their determination that the likelihood that he would

re - offend was higher than the actuarial data suggested. Additional ev idence in the record established that De M ille had proven unsuitable for supervised parole, continued to have difficulty with impulse control, and sought to minimize or excuse his acts of misconduct including the rape. Thus, in considering the record as a whole, we cannot say that the circuit court's determination that De M ille was a sexually violent predator, and specifically the factual determination that he was likely to engage in future sexually violent acts , was plainly wrong or without support in the e vidence.
CONCLUSION For these reasons, we hold that in proceedings under the SVPA, it is not necessary for an expert to state with specificity that the respondent will likely engage in sexually violent acts in the future . Rather, the determination of whet her the respondent is likely to engage in sexually violent acts as defined in Code § 37.2

- 900 by clear and convincing evidence is an issue of fact to be determined by the court or jury upon consideration of the whole record. Our review of the whole record supports that determination by the circuit14 court in this case. Accordingly, the judgment of the circuit court that De M ille is a sexually violent predator in need of treatment in a secure facility will be affirmed. Affirmed

.