In the Matter of the Care and Treatment of Desi Edwards, Respondent/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: In the Matter of the Care and Treatment of Desi Edwards, Respondent/Appellant. Case Number: ED78858 Handdown Date: 02/05/2002 Appeal From: Circuit Court of City of St. Louis, Hon. Dennis Schaumann Counsel for Appellant: Nancy L. Vincent Counsel for Respondent: Linda Lemke Opinion Summary: Desi Edwards appeals from a judgment of civil commitment entered following a jury verdict finding that Edwards was a sexually violent predator under section 632.480, RSMo Supp. 1998. TRANSFERRED TO THE SUPREME COURT. Division Three holds: Edwards raised a constitutional challenge to the validity of Missouri's sexually violent predator statute, section 632.480, that is real and substantial, made in good faith, and currently pending before the Supreme Court of Missouri. Therefore, this court lacks jurisdiction. Citation: Opinion Author: Clifford H. Ahrens, Judge Opinion Vote: TRANSFERRED TO THE SUPREME COURT. Teitelman and Simon, JJ., concur. Opinion: Desi Edwards ("Edwards") appeals from a judgment of civil commitment in the Circuit Court of St. Louis City entered following a jury verdict finding that Edwards was a sexually violent predator under section 632.480 RSMo (Cum. Supp. 1998).(FN1) On November 24, 1999, the state filed a petition to have Edwards found a sexually violent predator, pursuant to section 632.486. As required by section 632.483(4), a multidisciplinary team determined that Edwards met the definition

of a sexually violent predator. On November 30, 1999, after a hearing required by section 632.489, the trial court found there was probable cause to believe Edwards was a sexually violent predator. On October 5, 2000, a jury found beyond a reasonable doubt that Edwards was a sexually violent predator. The trial court entered judgment committing Edwards to the custody of the Department of Mental Health. Edwards timely filed this appeal. On appeal, Edwards claims nine points of error. We need only address the issue raised in Edwards's first point on appeal, which calls into question the jurisdiction of this court. Edwards argues that section 632.480 is constitutionally invalid because the statute does not require the state to prove or the trial court to instruct the jury to find that as a result of a mental abnormality he lacks the capacity to control his behavior. Edwards claims the statute violates his due process rights under Article I, Section 10 of the Missouri Constitution and the Fifth and Fourteenth Amendments to the United States Constitution in that the statute deprives him of his liberty solely upon proof that he suffers from a mental abnormality that predisposes him to commit sexually violent offenses, without proof that he lacks volitional capacity to control his behavior. The Missouri Supreme Court has exclusive jurisdiction to decide cases in which the validity of a state statute is challenged. Mo. Const. Art. 5, Sec. 3. The Supreme Court will not entertain an appeal unless the constitutional challenge is "real and substantial" and "made in good faith." Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 51-52 (Mo. banc 1999). Further, if the issue was properly preserved and it is real and substantial and made in good faith then the entire case must be transferred. Matter of Estate of Potashnick, 841 S.W.2d 714, 718 (Mo. App. 1992). Edwards raised his constitutional claims in the trial court and tendered a proposed jury instruction which would have required a finding that the mental abnormality impaired Edwards's volitional capacity to such a degree that he was unable to control his sexually violent behavior. The instruction was refused by the trial court. Thus, the issue was preserved. As to the "real and substantial and made in good faith" test, the Missouri Supreme Court has found that "one clear indication that a constitutional challenge is real and substantial and made in good faith is that the challenge is one of first impression with this Court." Rodriguez, 996 S.W.2d at 52. In this case, the constitutional challenge to Missouri's sexually violent predator statute and section 632.480 raised by Edwards has not been addressed by the Missouri courts. A similar issue is currently pending in the Missouri Supreme Court in In re Thomas, No. 83186, argued March 28, 2001. And in oral argument before this court, the state conceded that Edwards's claim is real and substantial. The United States Supreme Court, in its recent decision of Kansas v. Crane, clarified that its prior decision in Kansas v. Hendricks, 521 U.S. 346, 369 (1997), does not require a finding of a total or complete lack of control of behavior

to support civil commitment of a sexually violent predator. Kansas v. Crane, No. 00-957, 2002 WL 75609, at * 4 (U.S. January 22, 2002). But the Supreme Court disagreed with the State of Kansas' claim that the Constitution permits commitment of dangerous sexual offenders without any lack-of-control determination. Id. Recognizing that inability to control behavior will "not be demonstrable with mathematical precision," the Supreme Court determined "there must be proof of serious difficulty in controlling behavior." Id. We conclude that the constitutional challenge to the validity of section 632.480 raised by Edwards, and currently pending before the Missouri Supreme Court, is real and substantial and made in good faith. Because we lack jurisdiction, the case is ordered transferred to the Supreme Court of Missouri pursuant to Mo. Const. Art. 5, Sec. 11. Footnotes: FN1.Unless otherwise noted, all statutory references are to RSMo (Cum. Supp. 1998). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.