THE CIRCUIT COURT OF TAZEWELL COUNTY Jack S. Hurley, Jr.,
All the Justices
WILLIAM C. MIMS, JUSTICE.
appeal, we consider whether the circuit court abused its
discretion by excluding the testimony of two witnesses in a
trial under the Civil Commitment of Sexually Violent
Predators Act ("SVPA"), Code §§ 37.2-900
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
August 12, 2014, the Commonwealth initiated proceedings under
the SVPA to involuntarily commit Brady Arnold Proffitt, Jr.
as a sexually violent predator. The matter proceeded to a
jury trial, where the Commonwealth introduced into evidence
an order convicting Proffitt of rape in December 2012. The
Commonwealth's first witness was Dr. Doris Nevin, a
clinical psychologist, whom the circuit court qualified as an
expert "in clinical psychology and in the diagnosis,
risk assessment and treatment of sex offenders." Dr.
Nevin testified that she "complete[d] a sexually violent
predator evaluation" of Proffitt. In the course of this
evaluation, she met with Proffitt and reviewed "a wide
variety of documents, " including his "criminal
record, the institutional record at the facility where he was
housed, [and] his medical records." Significantly, Dr.
Nevin reviewed a police report given by M.J., the victim of
the 2012 rape.
Nevin also reviewed another police report given by A.G. in
November 2007 that resulted in a rape indictment against
Proffitt. That charge was nolle prossed. Therefore,
Dr. Nevin did not rely on the details of the police report
when formulating her opinion.
Nevin diagnosed Proffitt with sexual sadism disorder,
antisocial personality disorder, and alcohol use disorder.
She explained that a diagnosis of sexual sadism disorder
requires two diagnostic criteria:
A. Over a period of at least 6 months, [the
individual has] recurrent and intense sexual arousal from the
physical or psychological suffering of another person, as
manifested by fantasies, urges, or behaviors[; and]
B. The individual has acted on these sexual urges with a
nonconsenting person, or the sexual urges or fantasies cause
clinically significant distress or impairment in social,
occupational, or other important areas of functioning.
Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, 695 (5th ed. 2013) (emphasis
added) ("DSM-V"). Dr. Nevin testified that "in
[Proffitt's] case, " there had been "at least
one convicted behavior, in which [he had] . . . gone out and
has gotten pleasure . . . in sexually hurting" a
nonconsenting person. Additionally, Dr. Nevin administered
the Multiphasic Sex Inventory II ("MSI-II") to
Proffitt in May 2014, and his responses indicated that he was
having sadistic fantasies at that time. Dr. Nevin opined that
Proffitt was "a sexually violent predator" and
"at risk to commit new contact sex offenses if he were
released . . . in the absence of treatment."
Dr. Nevin's testimony, the Commonwealth attempted to call
A.G. and M.J. as witnesses. Proffitt objected that A.G.'s
testimony was not relevant because Dr. Nevin did not rely on
the 2007 incident in preparing her opinion. Proffitt argued
that her testimony would serve no purpose "other than to
incense and charge the jury emotionally." Similarly
regarding M.J., Proffitt argued that his conviction was
already in evidence, and her testimony would only
"throw fuel on that fire." The Commonwealth
responded that testimony by A.G. and M.J. was "relevant,
because [it] showed [Proffitt's] . . . M.O., or his
scheme." The Commonwealth also asserted that "the
details" of the incidents would allow Dr. Nevin to
"strengthen" her diagnoses and opinion.
circuit court granted Proffitt's motion to exclude the
With [Proffitt] conceding the first prong of the test, the
only two prongs that are at issue are the diagnosis of either
the mental abnormality or the personality disorder, which
[Dr. Nevin has] testified to, and the likelihood to
re-offend, which she's testified to. Their testimony, I
cannot see how that would do anything, it would inflame the
jury, perhaps, but I don't think it could add to the . .
. to the relevant issue or anything relevant to the two
issues that remain.
Commonwealth then made a detailed proffer of the testimony
expected to be given by A.G. and M.J. A.G. would testify that
in November 2007, Proffitt convinced her to get into his
vehicle and drove to "pretty isolated" "back
roads." He told A.G. that she "needed to have sex
with him or spend the night at his home, or else, he was just
going to . . . drop her off there." A.G. refused, but
Proffitt "pulled her out of the truck" and had
"sexual intercourse with her against her will and by
force." A.G. contacted the police, and Proffitt was
indicted for rape, but this charge was nolle
Commonwealth then proffered that M.J. would testify "to
a very similar pattern of behavior" in December 2012.
Proffitt convinced M.J. to get into his car and took her
"on the back roads." He told her that "she
needed to do him a favor" and to "take her pants
off." After she complied, Proffitt "raped her
against her will by force, and [M.J.] tried to fight him
off." The Commonwealth noted that these two incidents
occurred five years apart.
the Commonwealth proffered that after "Dr. Nevin heard
the testimony, or if it was presented to her in a
hypothetical, " she could then "take the 2007 event
as true" to "strengthen her diagnoses for the
sexual sadism disorder and . . . antisocial personality
deliberation, the jury found that the evidence had failed to
prove that Proffitt was a sexually violent predator, and the
Commonwealth moved to set aside the verdict. The circuit
court denied the motion and entered a final order in
accordance with the jury's verdict. We awarded the
Commonwealth this appeal.
sole assignment of error, the Commonwealth contends that the
circuit court abused its discretion by excluding the
testimony of A.G. and M.J. as irrelevant, unfairly
prejudicial, and cumulative. Proffitt responds that the
excluded evidence would not provide any new information that
Dr. Nevin had not previously reviewed and incorporated into
her opinion. Rather, it would cause unfair prejudice by