IN THE MATTER OF THE CARE )

AND TREATMENT OF ) CLAUDE HASTY, ) No. SD33018 a/k/a CLAUDE J. HASTY, ) a/k/a CLAUDE JOHN HASTY, ) Filed: October 29, 2014 ) Respondent-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY Honorable Brandi L. Baird, Associate Circuit Judge (Before Sheffield, P.J., Lynch, J., and Burrell, J. )

AFFIRMED PER CURIAM. Claude John Hasty ("Appellant") appea ls the trial court's judgment committing him to secure confinement in th e custody of the Department of Mental Health as a sexually violent p redator. See §§ 632.480 to 632.513. 1 Appellant argues the trial court abused its discr etion when it sustained an objection during his cross-examination of the Sta te's expert witness. Appellant has failed to show he was prejudiced by t he alleged error, so we affirm the trial court's judgment.

1 These statutes provide procedures to commit a pers on to the custody of the Department of Mental Health if they are found to be a sexually vi olent predator which, as relevant in the present case, the statute defines as "any person who suffer s from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who . . . [h]as pled guilty or been found guilty in this state . . . of a sexually violent offense[.]" § 632.480(5)(a). Unless other wise indicated, all statutory references are to RSMo Cum. Supp. (2013).2 Factual and Procedural Background In 1999, Appellant was convicted of first-degree s tatutory sodomy and sentenced to 12 years incarceration. On January 5, 2012, the State filed a petition seeking to have Appellant civilly committed as a se xually violent predator. A jury trial was held on August 27 through 29, 2013. Prior to trial, the State filed a motion in limine which sought to prohibit witnesses and attorneys from defining legal terms. The trial court granted the motion during the pretrial conference. The State's case consisted primarily of the testimo ny of forensic psychologist Amy Swan ("Dr. Swan"). The State retai ned Dr. Swan to evaluate Appellant to determine if he was a sexually violent predator. Dr. Swan diagnosed Appellant with pedophilia and a "personality disord er not otherwise specified with antisocial features." She noted Appellant had been charged with molesting six girls between the ages of four and 12. There w ere also reports regarding other victims, although those reports did not result in a rrests or the filing of charges. Dr. Swan believed Appellant's pedophilia gave him d ifficulty controlling his behaviors because Appellant continued to commit the se acts even when he knew he would go to prison for it. His unstable lifesty le contributed to his difficulty in controlling his behavior. Dr. Swan opined that App ellant was more likely than not to commit another sexually violent offense if n ot confined to a secure facility based on her clinical judgment and the Static-99R ac tuarial instrument. In discussing the basis for her opinion, Dr. Swan admi tted Appellant scored zero on the Static-99R actuarial instrument. Nevertheless, she did not believe the3

numbers told the whole story because Appellant's ot her characteristics made him

a statistical outlier. During his cross-examination of Dr. Swan, Appellan t's attorney questioned Dr. Swan regarding the meaning of Appell ant's score on the Static99R. She explained the Static-99R shows relative ris k which is defined as the risk that Appellant would re-offend compared to the risk that the average offender would re-offend. Dr. Swan stated Appellant's score of zero was less than the score of the average offender. She further explain ed the score gave him a percentile ranking of 18.7. That ranking meant 10. 3 percent of offenders "had the same risk, and 76.1 had higher risk." Based on tho se rankings, she stated Appellant's risk to be rearrested or reconvicted of a new sex offense "would be 15.8 percent at five years" and "24.3 percent at 10 years." Dr. Swan further admitted that more recent research would have chang ed those numbers to 7.2 percent and 12.5 percent respectively. After concluding the discussion of the Static-99R, Appellant's attorney asked Dr. Swan whether she believed "more likely th an not" was equal to any chance of re-offending. She disagreed. In the midd le of the next question, the State's attorney objected. The attorneys approached the bench to discuss the issue with the judge out of the hearing of the jury . The State's attorney argued the previous question violated the motion in limine because Appellant's attorney was "trying to get her to -- get her to commit to a different definition or parts of the definition when it's not defined by the Missour i statute." The trial court sustained the objection. When the proceedings retu rned to open court,4

Appellant's attorney asked Dr. Swan what "more like ly than not" meant to her. Again, the State's attorney objected, and the trial court sustained the objection. After Dr. Swan completed her testimony, Appellant made an offer of proof regarding the proposed cross-examination. During t he offer of proof, Dr. Swan stated that in reaching her opinion she used the de finition in the statute. Dr. Swan further stated that to her "more likely than n ot" is the same as "more probable than not" and the standard is not necessar ily over 51 percent because "an individual can be more likely than not and not have a 50 percent chance as far as the actuarials go." She said she could not a ssociate the phrase with a precise percentage. Appellant presented the testimony of forensic psyc hologist Jeffrey Kline ("Dr. Kline"). Dr. Kline also evaluated Appellant to determine whether Appellant was a sexually violent predator. He agreed Appella nt had pedophilia. He stated Appellant's score on the Static-99R actuarial instru ment was zero. A little more than 7 percent of individuals with characteristics similar to Appellant and who attain that same score commit new offenses within 5 years. After 10 years, that number rises to 12 or 12 and a half percent. In co ntrast to Dr. Swan, he did not believe Appellant was more likely than not to engag e in further acts of sexual

violence. The jury found Appellant to be a sexually violent predator, and the trial court ordered Appellant committed to the custody of the Department of Mental Health for control and treatment. Appellant appeal s.5 Discussion In his sole point on appeal, Appellant argues [t]he trial court abused its discretion in sustaini ng the State's objection to [Appellant's] cross-examination of Dr. Swan . . . in that [Appellant] had a right to question Dr. Swan regard ing her interpretation of the legal term "more likely than not" because the term was not defined by statute or jury instruction , so the jury should have been permitted to hear Dr. Swan's testi mony on the legal standard she used to render her opinion that [Appellant] was more likely than not to commit a future act of sexu al violence if not confined to a secure facility. This argument is without merit because it fails to explain how the exclusion of that testimony materially affected the merits of th e action.

"The decision to admit or exclude evidence is with in the sound discretion of the trial court because it is in a superior posi tion to evaluate the proffered

evidence in the context of the trial." Byers v. Cheng , 238 S.W.3d 717, 726 (Mo. App. E.D. 2007). 2 An abuse of discretion occurs when "a trial court 's ruling is clearly against the logic of the circumstances befo re the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." In re Marriage of Patrick , 201 S.W.3d 591, 599 (Mo. App. S.D. 2006). Furthermore, "[t]he appellant bears the burden of demonstrating error[,]" id. at 594 (quoting Taylor v. Taylor , 25 S.W.3d 634, 638 (Mo. App. W.D. 2000)), and Appellant "cann ot demonstrate error in the exclusion of evidence unless [he] also shows prejud ice." Byers , 238 S.W.3d at 726. That is, "an appellate court is not to revers e a judgment unless it believes the error committed by the trial court against the appellant materially affected

2 We use civil cases regarding the exclusion of evid ence to guide our decision in this case because the statutes allowing commitment of sexually violen t predators are civil in nature. See Elliott v. State , 215 S.W.3d 88, 93 (Mo. banc 2007).6

the merits of the action." Lozano v. BNSF Ry. Co. , 421 S.W.3d 448, 452 (Mo. banc 2014) (quoting Lewis v. Wahl , 842 S.W.2d 82, 84-85 (Mo. banc 1992)).

Because reversible error cannot be demonstrated wi thout a showing of prejudice, Missouri courts may hold a party has aba ndoned an issue where the party fails to address the issue of prejudice in hi s or her brief. Byers , 238 S.W.3d at 726. Appellant has done so here; although he mentions the requirement for proving prejudice in his standard o f review, he makes no argument explaining how the exclusion of the testim ony made a difference in the

outcome of this case. Appellant's sole point is denied.

Decision The trial court's judgment is affirmed.1

IN THE MATTER OF THE CARE ) AND TREATMENT OF ) CLAUDE HASTY, ) No. SD33018 a/k/a CLAUDE J. HASTY, ) a/k/a CLAUDE JOHN HASTY, ) Filed: October 29, 2014 ) Respondent-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY Honorable Brandi L. Baird, Associate Circuit Judge

CONCURRING OPINION I concur in the clearly reasoned principal opinion of the majority. I write separately, however, because I believe a few additi onal observations are appropriate. Although it is proper to deny review where an appe llant fails to make an argument regarding a portion of the analysis critic al to a claim, our sister districts often note the rule before making a complete analys is of the issue. See, e.g. , Byers v. Cheng , 238 S.W.3d 717, 726 (Mo. App. E.D. 2007); In re G.G.B. , 394 S.W.3d 457, 472 (Mo. App. E.D. 2013). In cases wher e important interests are at stake, this practice assures the parties that their claims are receiving a minimum level of review in spite of any errors their attorn eys may have made. I believe the liberty interest in a civil commitment proceeding u nder Sections 632.480 to 632.513 warrants such analysis.2

In the present case, a review of the record convin ces me Appellant was not prejudiced by the trial court's ruling. "When expe rt testimony is excluded . . . our

'focus is not on whether the evidence was admissibl e but on whether the trial court abused its discretion in excluding the eviden ce.'" In re Marriage of

Patrick , 201 S.W.3d 591, 595 (Mo. App. S.D. 2006) (quoting Jones v. Grant , 75 S.W.3d 858, 862 (Mo. App. W.D. 2002)). Thus, Mis souri courts typically do not find prejudice from exclusion of evidence when the evidence excluded would

have been cumulative. Van Meter v. Dahlsten Truck Line, Inc. , 943 S.W.2d 680, 682 (Mo. App. W.D. 1997). Here, as Appellant's offer of proof shows, his goa l in discussing Dr. Swan's definition of "more likely than not" was to demonst rate she did not use 50 percent as her standard. Dr. Swan's testimony duri ng the offer of proof was that the standard is not necessarily over 51 percent bec ause "an individual can be more likely than not and not have a 50 percent chan ce as far as the actuarials go." However, during Appellant's cross-examination of Dr . Swan before the jury, Dr. Swan admitted Appellant's score on the actuarials w as lower than average and reflected at most a 24.3 percent chance of being ar rested or convicted of another offense within 10 years. Because Appellant was per mitted to adduce evidence similar to the testimony the trial court excluded, he was not prejudiced by the trial court's ruling.

MARY W. SHEFFIELD - CONCURRING OPINION AUTHOR