William HALE, Petitioner, v. STATE of Florida, Respondent, 891 So. 2d 517

CANTERO, J. In this case, which we have considered together with State v. White, No. SC02-2277, 891 So.2d 502, 2004 WL 2973858 (Fla. Dec. 23, 2004), we decide whether the State presented sufficient evidence that the petitioner, William Hale, is a sexually violent predator under the Jimmy Ryce Act, sections 394.910-.931, Florida Statutes (1999), and whether the Act requires that the person whom the State seeks to -commit be currently incarcerated for a sexually violent offense.

As we explain below, we conclude that substantial competent evidence supports the jury’s determination that Hale is a sexually violent predator, and that the Act does not require that Hale’s current incarceration be for a sexually violent offense. The Ryce Act provides for the involuntary civil commitment of persons found to be sexually violent predators.

Before the State may impose civil commitment under the Ryce Act, a factfinder must determine by clear and convincing evidence that the respondent (1) has been convicted of an enumerated sexually violent offense; and (2) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. See § 394.912(10), Fla. Stat. (1999). Hale was civilly committed under the Ryce Act as a sexually violent predator.

On appeal, he argued that the United States Supreme Courts decision in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), imposed an additional, extra statutory but constitutionally required element necessary to commit a respondent under the Ryce Act, about which the jury must be instructed: namely, that the respondent has serious difficulty controlling behavior. See Hale v. State, 834 So.2d 254 (Fla. 2d DCA 2002). The Second District Court of Appeal disagreed and affirmed the commitment.

In a conflicting case, however, the First District Court of Appeal held that Crane did impose an additional element. See White v. State, 826 So.2d 1043, 1044 (Fla. 1st DCA 2002), quashed, No. SC02-2277, 891 So.2d 502, 2004 WL 2973858 (Fla. Dec. 23, 2004). Both Hale in this case and the State in White sought review in our Court. We accepted jurisdiction in both cases to resolve the conflict. See art. V, § 3(b)(3), Fla. Const.

In White, we now have held that Crane does not impose a fourth element of proof in a civil commitment proceeding under the Ryce Act and therefore the jury need not be instructed that the respondent must have serious difficulty controlling behavior. For the reasons stated in White, we approve the Second Districts decision in this case. We now address (

I) whether the State presented sufficient evidence that Hale is a sexually violent predator, and (II) whether the Act requires that the person to be committed be currently incarcerated for a sexually violent offense. I. Sufficiency of the Evidence Hale first claims that the evidence was insufficient to prove he is a sexually violent predator. After a thorough review of the record, we find the evidence sufficient to support the jury’s verdict.

At Hale’s civil commitment proceeding, the State presented seven witnesses, including two psychologists, three of Hale’s past victims, and two investigating law enforcement officers.

Through these witnesses, the jury heard about several prior sexually related offenses: a 1973 conviction for assault with intent to commit rape; a 1973 incident where Hale attempted to grab a sixteen-year-old girl; a 1982 loitering and prowling incident; a 1982 sexual battery conviction; a 1984 charge of attempted sexual battery and kidnapping (to which Hale later pled guilty to battery); a 1987 conviction for attempted sexual battery; and a 1991 loitering and prowling incident. The victims in some of these cases testified at Hale’s commitment hearing and offered details of those incidents.

Specifically, the victim of the 1973 assault testified that Hale approached her outside her home and forced her and her infant son into the house at knifepoint. Hale then forced the victim to perform oral sex while her son stood by screaming. Hale told the victim that he had been watching her, and that if she called anyone, he would return. Less than two weeks later, Hale entered a room at a local high school where he grabbed a sixteen-year old from behind, placing his arms around her shoulders and putting his hand over her mouth. Hale told her not to scream. The young woman fought Hale off and fled the room.

The victim in the 1987 attempted-sexual-battery charge explained that she encountered Hale when she had a flat tire on her car and he offered to help. After the two drove to a gas station to put air in the tire, however, instead of dropping off the victim at her car Hale turned onto a dirt road, where he told her he wanted to see her breasts. Hale began pulling at the woman’s shirt and grabbing at her. The victim jumped out of the vehicle when it stopped, but Hale caught her and the two struggled.

He threw the victim to the ground and choked her, saying that no one would hear her screaming and that he was going to take her into the woods and no one would find her. The victim was able to strike Hale in the face and escape. Mental health experts also testified at the hearing about incidents in Hale’s past. One described a situation where Hale gave a woman a ride in his truck. When she discovered that the door was broken, Hale reached across her and touched her breasts.

Another testified about an incident in 1982 where Hale had been walking down a highway, approached a woman walking, and put his hand on her shoulder. She screamed and he put his hand on her mouth. Hale indicated that he touched the woman’s breasts and that they struggled and fell. Finally, in 1984 Hale came upon a woman with a flat tire on her bicycle. He stopped, put the bicycle in the trunk of his car, and commented that the woman was “good looking.” Hale then reached over as if he were going to open the car door for her, and rubbed against her breasts.

The mental health experts also testified about Hale’s psychological condition. One expert diagnosed Hale with a personality disorder with antisocial features, while the other opined that Hale suffers from personality disorder NOS (not otherwise specified). Both experts testified that Hale was at “high” risk of reoffending, and even Hale’s own expert agreed he was a “moderate” risk. Thus, the State presented sufficient evidence for the jury to find that Hale is a sexually violent predator subject to civil commitment under the Ryce Act.

The dissent argues that the standard jury instructions given in this case are constitutionally infirm because they fail “to instruct the jury either that civil commitment necessitates a determination that the respondent has serious difficulty controlling his or her behavior, or ‘likely to engage'in acts of sexual violence in the future’ means more probable than not.” Dissenting op. at 523. In White, we explained why Crane does not require, an additional instruction on the respondent’s serious difficulty in controlling behavior.

As to the dissenting opinion’s argument that we are constitutionally required to define “likely” as “more likely than not,” we do not agree. The concept of a “likelihood” of reoffending by committing another sexually violent offense is not so easily quantifiable. Mental health experts cannot be expected to handicap probabilities with mathematical precision.

In White, we discussed the United States Supreme Court’s hesitancy to prescribe bright-line rules in the area of mental illness: The Supreme Court also noted that “Hendricks as so read provides a less precise constitutional standard than would those more definite rules for which the parties have argued.” Crane, 534 U.S. at 413, 122 S.Ct. 867. However, the Court felt that “the Constitution’s safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules.” Id.

First, “the States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment,” and second, “the science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law.” Id.

Therefore, the Supreme Court “sought to provide constitutional guidance in this area by proceeding deliberately and contextually, elaborating generally stated constitutional standards and objectives as specific circumstances require.” Id. at 414, 122 S.Ct. 867. White, slip op. at 506. As the Supreme Court recognized, law and psychology do not fit neatly together.

The jury instructions we approved in White tracked the statutory language: “ ‘Likely to engage in acts of sexual violence’ means a person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of other.” White, op. at 503; see § 394.912(4), (10), Fla. Stat. (1999). This language sufficiently guides the jury and, as we held in White, it satisfies the constitutional requirements explained in Crane. II. The meaning of “Custody” for Purposes of the Ryce Act Hale next argues, citing

section 394.925, Florida Statutes (1999), that the Ryce Act does not apply to him because when the civil commitment petition was filed he was not in custody for a sexually violent offense. We first clarify that this case is controlled by the original version of the Act contained in sections 916.31-49, Florida Statutes (Supp.1998), not the 1999 version. The amended version, sections 394.910-.931, Florida Statutes (1999), did not become effective until May 26, 1999. See ch. 99-222 §§ 3-24, at 1374-87, Laws of Fla. The State filed the civil commitment petition against Hale on April 5, 1999. Therefore, the original version of the Act, effective January 1 through May 25, 1999, applies.

Section 916.45, Florida Statutes (Supp. 1998), provides: “Applicability of act.— Sections 916.31-916.49 apply to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 916.32(8), as well as to all persons convicted of a sexually violent offense in the future.” Sexually violent offense is defined in

section 916.32(8) as follows: (8) “Sexually violent offense” means: (

a) Murder of a human being while engaged in sexual battery in violation of s. 782.04(l)(a)2.; (

b) Kidnapping of a child under the age of 16 and, in the course of that offense, committing: 1. Sexual battery; or 2. A lewd, lascivious, or indecent assault or act upon or in the presence of the child; (

c) Committing the offense of false imprisonment upon a child under the age of 16 and, in the course of that offense, committing: 1. Sexual battery; or 2. A lewd, lascivious, or indecent assault or act upon or in the presence of the child; (

d) Sexual battery in violation of s. 794.011; (

e) Lewd, lascivious, or indecent assault or act upon or in presence of the child in violation of s. 794.011; (

f) An attempt, criminal solicitation, or conspiracy, in violation of s. 777.04, of a sexually violent offense; (

g) Any conviction for a felony offense in effect at any time before October 1, 1998, which is comparable to a sexually violent offense under paragraphs (a)-(

f) or any federal conviction or conviction in another state for a felony offense that in this state would be a sexually violent offense; or (

h) Any criminal act that, either at the time of sentencing for the offense or subsequently during civil commitment proceedings under ss. 916.31-916.49, has been determined beyond a reasonable doubt to have been sexually motivated. Hale apparently concedes that at some point he was convicted of one of the offenses enumerated above. He argues only that at the time the petition was filed, he was in custody on a nonenumerated offense — dealing in stolen property. In considering Hale’s argument, we first look at the statutory language itself.

As we have repeatedly stated, the intent of the legislature must guide our analysis, and that intent must be determined primarily from the language of the statute. See Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 471 (Fla.1995). The Act applies “to all persons currently in custody who have been convicted of a sexually violent offense ... as well as to all persons convicted of a sexually violent offense in the future.” Thus, the person in custody must have been convicted of a sexually violent offense. The statute says nothing about whether the person must be currently incarcerated for that same offense.

The statute does not state that it applies to all persons currently in custody for a sexually violent offense and it does not otherwise link the current incarceration to the sexually violent offense. Other sections of the Act, when read together with

section 916.45, lead to the conclusion that the legislature did not intend that the Act apply only to persons currently incarcerated for sexually violent offenses. A “sexually violent offense” is defined to include a federal conviction or a conviction from another state. See § 916.32(8)(g), Fla. Stat. (Supp.1998). As the Fourth District Court of Appeal recently reasoned: A person in custody in Florida, whose only conviction for a sexually violent, offense is from another jurisdiction, would not be in custody for a sexually violent offense.

The non-Florida sentence for the sexually violent offense could be running concurrently, could have been completed, or could be consecutive to the Florida sentence. Under none of those scenarios would the current incarceration be as a result of the sexually violent offense. Tabor v. State, 864 So.2d 1171, 1174 (Fla. 4th DCA 2004). Therefore, reading sections 916.45 and 916.32(8)(

g) together, we conclude that the Act applies to all persons who are currently incarcerated and who at some point in the past have been convicted of a sexually violent offense. Such a reading of the Act “give[s] effect to all statutory provisions and construe[s] related statutory provisions in harmony with one another.” See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). We find that the Ryce Act does not require that the respondents current incarceration be for a sexually violent offense. III. CONCLUSION For the reasons stated in State v. White, No.

SC02-2277, 891 So.2d 502, 2004 WL 2973858 (Fla. Dec. 23, 2004), we approve the Second District’s decision and hold that the United States Supreme Court’s decision in Crane does not impose a fourth element of proof in a civil commitment proceeding under the Ryce Act. Therefore, the jury need not be instructed that the respondent must have serious difficulty controlling behavior. We also find that the evidence in this case was sufficient to commit Hale as a sexually violent predator.

Finally, we hold that the respondent need not be in custody for a sexually violent crime at the time the civil commitment petition is filed. It is so ordered. WELLS, LEWIS, and BELL, JJ., concur. PARIENTE, C.J., dissents with an opinion, in which ANSTEAD, J., concurs. QUINCE, J., dissents. . We decline to address Hale’s remaining claims. See Kelly v. Community Hosp. of Palm Beaches, 818 So.2d 469, 470 n. 1 (Fla.2002) (declining to address issues that were beyond the scope of this Courts conflict jurisdiction).