As Corrected May 12, 2014.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY. Jan L. Brodie, Judge.
Erin L. Blanch (BrigliaHundley, on briefs), for appellant.
Susan F. Barr, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Wesley G. Russell, Deputy Attorney General; Jill M. Ryan, Senior Assistant Attorney General, on brief), for appellee.
[287 Va. 314] Present: All the Justices.
CYNTHIA D. KINSER CHIEF
The Commonwealth filed a petition for the civil commitment of Donald Gibson as a sexually violent predator pursuant to the Civil Commitment of Sexually Violent Predators Act (SVPA), Code § § 37.2-900 through -921. After the fact finder determined that Gibson is a sexually violent predator, the circuit court shifted to Gibson the burden of proof to establish that he satisfies the criteria for conditional release. Because the burden of proof does not shift, we will reverse the circuit court's judgment.
RELEVANT FACTS AND PROCEEDINGS
The Commonwealth filed its petition pursuant to Code § 37.2-905 and requested the circuit court to hold that Gibson is a sexually violent predator under Code § 37.2-908 and to find that no suitable less restrictive alternative to involuntary secure inpatient treatment is available. See Code § 37.2-908(D). Following its determination that probable cause existed to believe that Gibson is a sexually violent predator, see Code § 37.2-906(A),
the circuit court conducted a two-day jury trial. Upon the conclusion of the evidence, the jury found that Gibson is a sexually violent predator as defined in Code § 37.2-900. The circuit court entered an order in accord with the jury's verdict. Pursuant to Code § § 37.2-908(D) and (E), the circuit court ordered that the trial be continued to receive additional evidence on possible alternatives to commitment and to determine whether Gibson meets the criteria for conditional release or should be committed to the custody of the Department of Behavioral Health and Developmental Services (DBHDS).
At the commencement of the reconvened trial to determine Gibson's suitability for conditional release, the circuit court stated: " [W]e go forward with the second phase of this hearing and I [287 Va. 315] believe [Mr. Gibson], the burden is on you to proceed." Gibson objected, arguing that the burden was on the Commonwealth to prove the elements of Code § 37.2-912 are not satisfied. Gibson stated: " It's the burden of the Commonwealth . . . to prove by clear and convincing evidence that there is not a conditional release plan that will meet [the] factors" outlined in Code § 37.2-912. In response, the Commonwealth, citing Commonwealth v. Bell, 282 Va. 308, 714 S.E.2d 562 (2011), argued that the burden is on Gibson to prove by a preponderance of the evidence that he meets the criteria for conditional release. The circuit court agreed with the Commonwealth. Relying on Bell and Code § 37.2-912, the circuit court shifted to Gibson the burden of proof to demonstrate that he satisfies the criteria for conditional release.
Gibson offered evidence in support of a conditional release plan, including testimony from his family members who, under the plan, would be tasked with his supervision if he were conditionally released. After reviewing the conditional release plan and hearing the evidence, which included a report from the Commissioner of DBHDS as required by Code § 37.2-908(E), the circuit court found that Gibson does not meet the criteria in Code § 37.2-912(A). The court concluded that Gibson needs inpatient treatment as a sexually violent predator and that the conditional release plan does not " provide appropriate outpatient supervision." The court also doubted that Gibson " would comply with the conditions specified" and believed that " he would present an ...