Arizona Court of Appeals Division One Holds That Expert Witness Testifying in Sexually Violent Person Civil Commitment Proceeding May Rely on Hearsay Evidence of Sexual Assault for Which Defendant Was Never Prosecuted.

Upon his release in 2003 for an assault and rape conviction, the State initiated a civil commitment proceeding for Thomas R.  The jury concluded that he was not a Sexually Violent Person (“SVP”) and the court continued him on probation.  See A.R.S. § 36-3701 et. seq. (SVP commitment statutes).

In 2004, Thomas R. was charged again with sexual assault.  The State later dismissed the indictment, however, because the victim moved out of state, was afraid to return to Arizona to testify, and a subpoena could not be served to compel her to testify.  

Thomas R. then violated probation and was re-incarcerated.  Before his release, the State filed a new SVP petition and the court set the case for a jury trial.  Thomas R. filed a motion in limine seeking to preclude evidence of the 2004 assault in the absence of testimony from the victim or a witness competent to introduce DNA evidence.  The trial court denied the motion.  The matter proceeded to trial.  The jury found Thomas R. to be an SVP, and he was committed to the Arizona Community Protection and Treatment Center.  He appealed.

The Court of Appeals affirmed.  A determination in a prior SVP proceeding does not bar a subsequent proceeding based on changed circumstances.  Because the definition of an SVP under A.R.S. § 36-3701(7)(b) requires that a person currently has a mental disorder that makes the person likely to engage in acts of sexual violence, the issue in the 2008 SVP petition was not identical to the issue decided in the 2003 proceeding.  The changed circumstances permitting a subsequent SVP petition are not limited to convictions but may include any acts or wrongs tending to show the person is an SVP.

Testimony by the State’s expert witness concerning hearsay evidence of DNA results linking Thomas R. to the 2004 assault did not violate Thomas R.’s right to confront witnesses against him.  The testimony was not used to prove guilt in the 2004 assault, but rather to explain the bases for the expert’s opinion that Thomas R. was an SVP.   The reference to the DNA results was an insignificant part of the expert’s testimony and was subject to a limiting instruction that the jury should not consider the DNA-related testimony as proof of guilt in the 2004 assault.  The trial court, therefore, did not err by allowing the testimony as a basis of the expert’s opinion. 

 Judge Kessler wrote the opinion; Judges Irvine and Brown concurred.