Baughman v. Commonwealth of Virginia (Va. 2022)

Baughman v. Commonwealth of Virginia, No. 201348 (Va. 2022)

Nature of Case: In 2003, Appellant pled guilty to aggravated sexual battery and carnal knowledge in connection with separate acts of sexual conduct with minors in 1997, when Appellant was 14 years old, and 2003, when Appellant was 19 years old. Appellant was sentenced to 30 years’ imprisonment with 16 years suspended. In November 2009, when Appellant was scheduled for release, the Commonwealth petitioned to have him civilly committed as a sexually violent predator pursuant to the Sexually Violent Predators Act (“SVPA”).  After a jury trial, Appellant was determined to not be a sexually violent predator and he was released on supervised probation.

In 2016, a report was filed asserting that Appellant had violated his probation by having unapproved and unsupervised contact with a person under 18 years old. Specifically, Appellant had exchanged several non-sexual text messages with a 16-year-old. Appellant’s probation was subsequently revoked and he was sentenced to one year in jail.

In 2017, Appellant was visited by a licensed clinical psychologist, Dr. Ilona Gravers, designated by the Commissioner of Behavioral Health and Development Services (the “Commissioner”) to evaluate if Appellant was a “sexually violent predator” as defined by the SVPA.  Dr. Gravers diagnosed Appellant with Narcissistic Personality Disorder but opined that this diagnosis “does not create a likelihood of having him commit sexually violent acts.”

The Commonwealth subsequently retained its own psychologist, Dr. Michelle Sjolinder.  Dr. Sjolinder was not designated by the Commissioner pursuant to the SVPA. Dr. Sjolinder opined that Appellant suffered from both Narcissistic Personality Disorder and Other Specified Paraphilic Disorder; adolescent males. According to Dr. Sjolinder, although there was no evidence Appellant had reoffended or engaged in explicitly sexual conversations with minors, there was a strong likelihood that he would reoffend in the future based on certain “grooming” behaviors that he had exhibited.

The Commonwealth subsequently initiated proceedings to have Appellant civilly committed as a sexually violent predator and presented Dr. Sjolinder’s testimony at both Appellant’s SVPA probable cause hearing and at trial.  After the presentation of the evidence at trial, a jury found that Appellant was a “sexually violent predator” as defined by the SVPA.

On appeal, Appellant argues that the trial court erred in permitting Dr. Sjolinder to testify as an expert witness because she was not appointed by the Commissioner.

Holding: In an unpublished opinion, the Supreme Court of Virginia finds reversible error in the  trial court, noting that SVPA probable cause hearings, governed by Code § 37.2-906, require that an expert witness conducting a mental health examination be “designated by the Commissioner.”  In this case, Dr. Sjolinder was not designated by the Commissioner and, as the sole evidence regarding Appellant’s mental state, probable cause would not have been sufficiently established in her absence.  Citing Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988), the Court further holds that the subsequent jury verdict does not render the trial court’s error harmless because the trial court’s error prejudiced Appellant and had a “substantial influence” on the outcome of the proceeding.