In re Commitment of Allen

Take note, this commitment is based on "ATTEMPTED" sex crimes. This is now the third one we have found using "attempted" as the state's basis.

1-17-2013 Arizona:

In re Commitment of Allen
No. 2 CA-MH 2012-0007-SP.

Pursuant to a plea agreement, appellant Charles Allen was convicted of two counts of attempted sexual conduct with a minor and sentenced to a fourteen-year prison term. Before the prison term was completed, the state filed a petition pursuant to A.R.S. § 36-3704 and, after a two-day trial in May 2012, a jury found Allen a sexually violent person (SVP), see A.R.S. § 36-3701(7), and the trial court ordered him committed to the Arizona Department of Health Services for placement and treatment in a licensed facility under the control of the Arizona State Hospital. Allen filed a motion for new trial, which the court denied. This appeal challenges the trial court's denial of the motion.

¶2 Dr. Barry Morenz, a psychiatrist, evaluated Allen and testified at trial that he had diagnosed Allen as having pedophilia and antisocial personality disorder. He based the diagnosis on his two-hour interview and evaluation of Allen in December 2011, his review of the state's petition, "a lot of records [and] documents that related to [appellant's] past," and his employment of various testing methods1 for determining the recidivism risk for sex offenders. He concluded that under the criteria established by the Arizona legislature, which he considered and addressed, Allen "did meet the criteria for" a SVP "as defined in Arizona law," and there was a high likelihood he will reoffend because he has "serious difficulty in controlling his sexually deviant impulses."

¶3 Dr. Richard Samuels, a clinical and forensic psychologist, evaluated and was called as a witness by Allen. He explained the method of his evaluation, the records he had reviewed, and the bases for his diagnoses. He, too, diagnosed Allen as having pedophilia, as well as alcohol and substance abuse (in remission likely because of his incarceration), personality disorder (not otherwise specified), with depressive and anti-social traits.

¶4 When defense counsel asked Dr. Samuels about the section of his report regarding Allen's general medical condition and the fact that at the time Samuels had written his report he did not have any information in that regard, the state objected. Counsel for the state explained to the trial court that in Samuels's addendum, he had mentioned he had received a telephone call from Allen's counsel, who had informed him Allen had "been diagnosed with several kinds of cancer." Counsel added that he had received no disclosure on the issue and that the only information about any such diagnosis came from Allen's counsel. Allen's counsel explained Allen had been diagnosed with prostate and colon cancer and was scheduled for surgery two weeks later, but counsel had no records to document this assertion. The court questioned the relevancy of such information to the "SVP diagnosis" as well as the fact that it was based on nothing more than counsel's avowals; counsel responded, "prostate cancer in and of itself reduces sexual urges significantly," and appeared to suggest radiation therapy reduces sexual function. Nevertheless, because there had been no documentation or disclosure on the issue, the court sustained the objection.

¶5 Dr. Samuels then stated Allen had pedophilia, a mental condition that predisposes a person to engage in certain kinds of behavior, "in this case sex with prepubescent children." He discussed the various tests he had utilized to determine Allen's likelihood to reoffend, explained how the scores he gave Allen differed from the scores Dr. Morenz had given him, and discussed the test designed to measure psychopathy, for which Allen had a lower, more favorable score of fifteen, compared to a score of between twenty-five and twenty-seven for the general prison population. Stevens gave Allen a moderate to high likelihood of reoffending under one test, which he explained translates into a risk of 7.7 percent, "meaning 92.3 percent will not re-offend."

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12 Additionally, Allen has yet to present medical evidence establishing any effect the cancer and any past or future procedures or treatment are expected to have on his sexual drive or ability to engage in sexual acts. Allen's assertion that it will have such an effect is based, thus far, on nothing more than his own and his lawyer's conjecture and speculation.2 Thus, even assuming arguendo Allen had presented evidence that could be characterized as newly discovered, he has not presented any evidence that was material to the issue in this case: the likelihood Allen would reoffend. See Ariz. R. Civ. P. 59(a)(4) (evidence must be newly discovered and material).

¶13 Based on the record before us, we cannot say the trial court abused its discretion in denying Allen's motion for new trial. ..For the rest of the court decision..

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