In the Matter of the Care and Treatment of Timothy D. Daily, a/k/a Timothy Dailey, Appellant, v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: In the Matter of the Care and Treatment of Timothy D. Daily, a/k/a Timothy Dailey, Appellant, v. State of Missouri, Respondent. Case Number: SC84981 Handdown Date: 04/01/2003 Appeal From: Circuit Court of Stoddard County, Hon. Stephen Mitchell Counsel for Appellant: Emmett D. Queener Counsel for Respondent: James R. Layton Opinion Summary: The jury found Timothy Dailey to be a sexually violent predator, and he appeals, claiming instructional error. REVERSED AND REMANDED. Court en banc holds: The trial court failed to instruct the jury to find that Dailey lacked volitional capacity to control his behavior, as required by this Court's decision in Thomas v. State, 74 S.W.3d 789 (Mo. banc 2002). Citation: Opinion Author: PER CURIAM Opinion Vote: REVERSED AND REMANDED. All concur. Opinion: Timothy Dailey contests the jury's finding that he is a sexually violent predator. See sections 632.480 to 632.513, RSMo 2000 . He claims the jury was not properly instructed because no instruction required the jury to find that he had serious difficulty controlling his dangerous behavior. This claim is controlled by this Court's decision in Thomas v. State , 74 S.W.3d 789 (Mo. banc 2002). The instruction defining "mental abnormality" must read as follows: As used in this instruction, "mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the

individual serious difficulty in controlling his behavior. Thomas at 792. The instruction in this case contained no such language. The equal protection claim and all other claims raised by Dailey may not arise on retrial and are not discussed. The judgment is reversed, and the case is remanded. All concur. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.