In Re: Ms2020-000001

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IN RE: MS2020-000001

No. 1 CA-MH 21-0083 SP
FILED 9-6-2022

Appeal from the Superior Court in Maricopa County
No. MS2020-000001
The Honorable Jay M. Polk, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Advocate’s Office, Phoenix
By Michelle DeWaelsche
Counsel for Appellant

Maricopa County Attorney’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee
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MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.

W I L L I A M S, Judge:

¶1 C.S. appeals an order of commitment following a
7-1 jury determination that he is a sexually violent person. C.S. contends
that the superior court erred in denying his motions for judgment as a
matter of law; that the nonunanimous jury verdict deprived him of his right
to due process under the Arizona and United States Constitutions; and that
counsel was ineffective. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Between 1985 and 1997, C.S. was convicted of several violent
sexual offenses against minors. Following dual convictions in 1997, C.S. was
sentenced to 24 years’ imprisonment. Before his scheduled release, the State
petitioned for an order of detention alleging that C.S. was a sexually violent
person under A.R.S. § 36-3701(7).

¶3 In November 2020, at the State’s request, the court appointed
Dr. David Thornton as the State’s expert witness. A month later, the court
held a hearing pursuant to A.R.S. § 36-3705 to determine whether probable
cause existed to believe that C.S. was a sexually violent person. The court
found probable cause existed, and the matter proceeded to trial.

¶4 Before trial, C.S.’s counsel retained Dr. Luis Rosell to provide
expert testimony and the State reiterated its intention to call Dr. Thornton.
Both experts conducted pretrial interviews of C.S.

¶5 Following the experts’ interviews, C.S.’s counsel interviewed
Dr. Thornton and subsequently filed several motions in limine to preclude
Dr. Thornton from repeating certain statements he made during the
interview and in his report. The parties then filed a joint pretrial statement
that listed Dr. Thornton as the State’s anticipated trial witness. C.S. also
stated his intent to use portions of Dr. Thornton’s recorded interview at
trial. At no point before trial did C.S. object to Dr. Thornton’s competency
to testify as an expert.

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¶6 At trial, Dr. Thornton testified he diagnosed C.S. with
pedophilic disorder, a type of paraphilia. Dr. Thornton also noted that,
following C.S.’s imprisonment in 1997, C.S. was diagnosed with
schizoaffective disorder. And, despite testifying that the schizoaffective
disorder exacerbates C.S.’s inability to control his pedophilic urges, Dr.
Thornton also testified the pedophilic disorder was the “main driver”
behind C.S.’s inability to control his behavior. Dr. Thornton further testified
that it was “highly probable” C.S. would reoffend.

¶7 Following the State’s case-in-chief, C.S. moved for judgment
as a matter of law on two bases. C.S. first argued Dr. Thornton was not
competent to testify as an expert witness; and, without his testimony, the
State had not presented a case against him. C.S. also argued the State had
not presented sufficient evidence that his pedophilic disorder, rather than
his schizoaffective disorder, would cause him to reoffend. The court denied
both motions.

¶8 Seven of the eight jurors found the State had proven, beyond
a reasonable doubt, that C.S. was a sexually violent person. The court
ordered C.S. be committed to the Arizona Community Protection and
Treatment Center (“ACPTC”).

¶9 C.S. timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution, A.R.S. §§ 12-2101(A)(10) and
36-546.01.

DISCUSSION

I. The Court Properly Denied C.S.’s Motions for Judgment as a Matter of Law

¶10 We review de novo the denial of a motion for judgment as a
matter of law. See Roe v. Austin, 246 Ariz. 21, 24, ¶ 7 (App. 2018).

¶11 “To civilly commit an individual under the [Sexually Violent
Persons Act], the state must prove, beyond a reasonable doubt, that the
individual is [a sexually violent person].” In re Leon G., 204 Ariz. 15, 22,
¶ 23 (2002); A.R.S. § 36-3707(A). A sexually violent person is defined as a
person who “[h]as ever been convicted of or found guilty but insane of a
sexually violent offense or was charged with a sexually violent offense and
was determined incompetent to stand trial.” A.R.S. § 36-3701(7)(a).
Additionally, the person must exhibit “a mental disorder that makes the
person likely to engage in acts of sexual violence.” A.R.S. § 36-3701(7)(b). A
“mental disorder” means a “paraphilia, personality disorder or conduct
disorder or any combination of paraphilia, personality disorder and

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conduct disorder that predisposes a person to commit sexual acts to such a
degree as to render the person a danger to the health and safety of others.”
A.R.S. § 36-3701(5).

A. Competency of Dr. Thornton

¶12 Under the Sexually Violent Persons Act, each party may select
a “competent professional” to evaluate the defendant and to testify at trial,
provided the court concludes the professional is “[f]amiliar with the state’s
sexually violent persons statutes and sexual offender treatment programs
available in [the] state.” A.R.S. § 36-3703 (providing guidelines for the
selection of competent professionals); A.R.S. § 36-3701(2) (defining
“competent professional”).

¶13 At trial, neither party elicited testimony from Dr. Thornton
regarding his familiarity with the state’s sexual offender treatment
programs. Nevertheless, C.S. did not object to Dr. Thornton’s testimony
until the close of the State’s case. C.S. argued Dr. Thornton was not
competent to testify under A.R.S. § 36-3701(2) because he had not testified
to his familiarity with the state’s sexual offender treatment programs.

¶14 “An objection to proffered testimony must be made either
prior to or at the time it is given, and failure to do so constitutes a waiver.”
Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286, ¶ 9 (2000).
In Reinen, no objection to the qualifications of the expert witness was raised
“until the close of the plaintiff’s evidence.” Id. The supreme court held that
“[b]y failing to complain before or during [the expert]’s testimony, the
defendants waived any legal objection to his qualifications or the
foundation for his opinions.” Id.

¶15 Just as in Reinen, C.S. did not raise a contemporaneous
objection to Dr. Thornton’s qualifications. C.S. could have also objected
when Dr. Thornton was appointed as the State’s expert witness in
November of 2020—almost a year before trial—but failed to do so. Because
C.S. failed to timely raise this objection to the superior court, C.S. waived
the right to complain of Dr. Thornton’s qualifications on appeal. See, e.g., id.

B. C.S.’s Mental Disorder

¶16 C.S. also argued he was entitled to judgment as a matter of
law because the State had not proven that it was C.S.’s pedophilic disorder
that would cause him to reoffend. C.S. argued that Dr. Thornton’s
testimony only established that C.S.’s schizoaffective disorder, which is not

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a requisite mental disorder under A.R.S. § 36-3701(5), would cause him to
reoffend.

¶17 “A court may grant [judgment as a matter of law] only when
‘a reasonable jury would not have a legally sufficient evidentiary basis to
find for [a] party’ on an issue that is necessary to the party’s claim or
defense.” Dupray v. JAI Dining Services (Phx.), Inc., 245 Ariz. 578, 582, ¶ 11
(App. 2018) (quoting Ariz. R. Civ. P. 50(a)).

¶18 Despite Dr. Thornton’s opinion that C.S.’s schizoaffective
disorder would render him “less able to restrain his pedophilic urges,” Dr.
Thornton also testified C.S.’s pedophilic disorder was the “main driver”
behind C.S.’s inability to control his behavior and that C.S.’s schizoaffective
disorder, which developed in prison, was not present when C.S. was
offending in the community. This evidence provided a legally sufficient
basis for the jury to find C.S.’s pedophilic disorder rendered him unable to
control his behavior, which precluded the court from granting the motion
for judgment as a matter of law.

II. A Unanimous Jury Verdict is not Required in a Civil Commitment Case
Brought under the Sexually Violent Persons Act

¶19 In Arizona, a jury deciding a civil commitment case brought
under the Sexually Violent Persons Act must consist of eight persons, and
the concurrence of six or more jurors is sufficient to render a verdict. A.R.S.
§ 21-102(C); State ex. rel. Romley v. Superior Court, 198 Ariz. 164, 166-67, ¶ 8
(App. 2000); see also Ariz. Const., art. 2, § 23; Ariz. R. Civ. P. 49(d)(1).
Nevertheless, C.S. suggests that federal due process requires a unanimous
verdict in a civil commitment case brought under the Sexually Violent
Persons Act.

¶20 In support of this assertion, C.S. cites the United States
Supreme Court’s decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020). In
Ramos, the Supreme Court held a unanimous verdict is required to convict
a criminal defendant of a serious offense. Id. at 1391. C.S. contends the
holding in Ramos should be extended to civil commitment proceedings
under Arizona’s Sexually Violent Persons Act.

¶21 “As the United States Supreme Court and Arizona’s appellate
courts have repeatedly held, commitment proceedings under the [Sexually
Violent Persons] Act are strictly civil in nature.” In re Commitment of Conn,
207 Ariz. 257, 259, ¶ 7 (App. 2004). The mere fact the legislature has
provided “some of the safeguards applicable in criminal trials—the rights
to counsel, to trial by jury, to confront and cross-examine witnesses, and to

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proof beyond a reasonable doubt—does not transform [Sexually Violent
Persons] proceedings into criminal prosecutions with ‘the full panoply of
rights applicable there.’” Id. (quoting Allen v. Illinois, 478 U.S. 364, 372
(1986)). Accordingly, we decline to extend the holding in Ramos, which
applied to criminal defendants, to civil commitment proceedings under the
Sexually Violent Persons Act.

III. C.S.’s Claims of Ineffective Assistance of Counsel Fail

¶22 C.S. claims his counsel was ineffective by “failing to notify the
court of [C.S.’s] objection to Dr. Thornton as a competent professional
[under A.R.S. § 36-3702(2)]” or “to request a pretrial evidentiary hearing to
determine whether Dr. Thornton qualified as a competent professional.”

¶23 “[T]he Due Process Clause of the Fourteenth Amendment
requires that a civil commitment patient receive effective assistance of
counsel.” In re MH2010-002637, 228 Ariz. 74, 82, ¶ 30 (App. 2011). A claim
of ineffective assistance of counsel requires a showing that counsel
provided deficient performance and the deficiency prejudiced the patient.
State ex. rel. Thomas v. Rayes, 214 Ariz. 411, 413, ¶ 10 (2007) (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also Matter of Carmody,
653 N.E.2d 977, 984 (Ill. App. 1995) (adopting Strickland test in civil
commitment proceedings).

¶24 C.S. argues that but-for counsel’s failure to object to Dr.
Thornton’s competency or request a pretrial hearing to determine Dr.
Thornton’s competency, the outcome of the trial would have been different.

¶25 C.S.’s argument is speculative, at best. See State v. Meeker, 143
Ariz. 256, 264 (1984) (“Proof of ineffectiveness must be a demonstrable
reality rather than a matter of speculation.”). C.S. fails to address the
probability that, had counsel raised the issue before trial, the State could
have cured the defect. See Strickland, 466 U.S. at 694 (finding that a
challenger must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different”). C.S. has failed to present a colorable claim for relief.

¶26 Lastly, C.S. argues counsel was ineffective by failing to object
to the nonunanimous verdict. For the reasons outlined, supra
¶¶ 19-21, we hold C.S. has not demonstrated that counsel was ineffective
by failing to object to the nonunanimous verdict. See State v. Amaral, 239
Ariz. 217, 220, ¶ 11 (2016) (“If the alleged facts would not have probably
changed the verdict or sentence, then the claim is subject to summary
dismissal.”).

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CONCLUSION

¶27 For the foregoing reasons, we affirm the court’s order.

AMY M. WOOD • Clerk of the Court
FILED: AA

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