MOSES HIGDON

v.

SECRETARY, DEPARTMENT OF CHILDREN AND FAMILIES

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

In re Commitment of Moses Higdon. ) ________________________________ ) ) MOSES HIGDON, ) ) Appellant, ) ) v. ) Case No. 2D18-2620 )

SECRETARY, DEPARTMENT OF

) CHILDREN AND FAMILIES, ) ) Appellee. ) ) Opinion filed August 14, 2020. Appeal from the Circuit Court for Pinellas County; Paul A. Levine, Acting Circuit Judge. Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. Moses Higdon appeals an order concluding that there is no probable cause to release him from his involuntary civil commitment under the Jimmy Ryce Act,

§§ 394.910-.932, Fla. Stat. (2018) (the Act). Because we conclude that Higdon met his burden of establishing probable cause pursuant to section 394.918(3) and is therefore entitled to a trial pursuant to section 394.918(4), we reverse.¹ See generally § 394.918. At the hearing, Higdon presented two experts, Dr. Gregory DeClue and Dr. Robin Wilson. Dr. DeClue is a forensic psychologist who evaluated Higdon nine times in the eight years before the hearing, most recently a few weeks before the hearing. Dr. DeClue has considerable experience working with sex offenders and specifically in connection with risk assessment. Dr. DeClue testified that based on research regarding men with similar risk characteristics, he did not believe that Higdon was likely to engage in new acts of sexual violence if released. Although acknowledging that Higdon had engaged in sexual activity while housed at the Florida Civil Commitment Center (the Center), which was against the Center's rules, Dr. DeClue noted that the activity had been consensual and opined that it did not evidence an abnormal preoccupation with 1Because we reverse on this issue, we do not reach Higdon's other arguments.

sex or a likelihood of reoffending. Dr. DeClue also acknowledged that Higdon had previously requested a prescription for Prozac to help diminish his sex drive and that Higdon had taken Prozac for that purpose from time to time. Dr. Wilson is the former director of the Center and the architect of the Center's treatment program for sex offenders with special needs, in which Higdon was participating. Dr. Wilson has considerable experience working with sex offenders who, like Higdon, show signs of intellectual disability or cognitive limitations. Like Dr. DeClue, Dr. Wilson found it significant that all of Higdon's sexual activity during his approximately twenty years at the Center had been consensual. Both doctors opined that Higdon had made significant progress in the program and that he no longer needed to be civilly committed. The State submitted Higdon's annual treatment progress report from the Center's Review Board and a written report from psychologist Dr. Amy C. Swan. Consistent with Dr. DeClue's and Dr. Wilson's opinions, the Review Board's report indicated that Higdon had recently been moved into the honor dorm, was positively progressing on the Sex Offender Dynamic Risk Assessment (SODRA) scale, and was tutoring a resident who was in a lower phase of treatment than he. The report concluded that Higdon would benefit from continuing to address relevant treatment issues (i.e.: sexual interests, distorted attitude and behaviors, socioaffective issues, and self-management) that are associated with his offending history and current paralleloffending behaviors. Therefore, it is recommended that Mr. Higdon continue treatment while he is housed at the Florida Civil Commitment Center, until such time that the court deems him appropriate for release.

In her report, Dr. Swan indicated that she had interviewed Higdon once and had reviewed all of his records. She diagnosed Higdon with five distinct paraphilias and opined that Higdon's participation in consensual sexual activity at the Center despite knowing that it was against the rules evinced a preoccupation with sex and a likelihood that he would commit sex crimes if released. Dr. Swan emphasized that test results indicated that Higdon was strongly sexually aroused by a broad range of stimuli, including images depicting children and sexual violence, and that he refused to consistently take Prozac to control his sex drive. Dr. Swan's report opined that Higdon's "sexual gratification is the most important thing in his life" and that he is "either unwilling or unable to control his sexual preoccupation." After reviewing the expert testimony and the reports, the trial court concluded without elaboration that "there is not probable cause to believe [Higdon's] condition has so changed that it is safe for him to be at large." Accordingly, the court did not set the matter for a trial under section 394.918(4) but ordered that Higdon's commitment continue. This appeal followed. Analysis In connection with the mandatory annual review of the involuntary civil commitment of a person under the Act, section 394.918(3) provides for a "limited hearing to determine whether there is probable cause to believe that the person's condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged." In 2014, section 394.918(3) was amended to permit both the petitioner and the State to present evidence at the limited hearing, and "the court may weigh and consider" that evidence in making its probable cause determination. § 394.918(3), Fla. Stat. (2014); see Abaunza v. State, 278 So. 3d 207, 208 (Fla. 1st DCA 2019) ("As amended in 2014, the statute gives the individual the right to have counsel and to be present at the probable-cause hearing, which is a bilateral evidentiary hearing at which the trial court is expressly authorized to 'weigh and consider' competing evidence."), review denied, No. SC19-1574, 2020 WL 618685 (Fla. Feb. 10, 2020). "The burden is on the petitioner to prove probable cause." Kakuk v. State, 148 So. 3d 845, 846 (Fla. 5th DCA 2014); see also Barron v. State, 217 So. 3d 1088, 1091 (Fla. 3d DCA 2017) (holding that the trial court correctly weighed and considered the reports submitted "in assessing whether Barron met his burden of establishing probable cause"). For purposes of amended section 394.918(3), "[p]robable cause is established when sufficient evidence is presented to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the committed person's condition has changed." In re Commitment of Drake, Nos. 2D17-5083 & 2D18-3690, 2020 WL 3022754, at *2 (Fla. 2d DCA June 5, 2020) (citing State v. Robbins, 785 So. 2d 620, 621 (Fla. 5th DCA 2001)). "If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue." § 394.918(3). At such a trial, the person enjoys "the benefit of all constitutional protections afforded the person at the initial [i.e., commitment] trial, except for the right to a jury." § 394.918(4). Moreover, "the [S]tate bears the burden of proving, by clear and convincing evidence, that the person's mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence." Id.

In this case, after reviewing all of the competing evidence, the trial court concluded that Higdon had failed to establish probable cause. We cannot agree. Dr. DeClue—who personally had evaluated Higdon nine times in the eight years before the hearing and most recently a few weeks before the hearing—and Dr. Wilson—the architect of the program in which Higdon was participating—testified that in their opinion, Higdon no longer met the criteria for civil commitment. Their testimony established that Higdon was willingly participating in a treatment program geared toward sex offenders with his abilities and needs and that he was making progress in that program; that research involving sex offenders with similar risk characteristics indicated that Higdon was not likely to engage in new acts of sexual violence if released; and that although Higdon had engaged in sexual activity contrary to the rules of the Center during his twenty years of commitment, all of that activity had been consensual. This testimony was sufficient "to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that [Higdon's] condition has changed so that it is safe for him to be at large." See Drake, 2020 WL 3022754, at *2 ("[A]ll section 394.918(3) requires is for a detainee to produce sufficient evidence to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the committed person's condition has changed so that it is safe for him to be at large." (internal quotations omitted)); cf. Abaunza, 278 So. 3d at 211 (explaining that Abaunza did not establish probable cause to believe that his condition had changed because he was refusing and failing to take part in treatment and his expert opined generally that civil commitment was ineffective for all participants).

The State's evidence, in contrast, did not go to whether "a person of ordinary prudence and action" would "conscientiously entertain a reasonable belief that the committed person's condition has changed." The State's evidence, for example, did not call into question the qualifications or methodology of Higdon's experts or the factual bases for their opinions; nor did it identify material facts that those experts failed to consider.2 Rather, it established only that experts differ as to whether Higdon's condition has in fact changed or whether it "remains such that it is not safe for [him] to be at large and that, if released, [he] is likely to engage in acts of sexual violence"—the ultimate question to be resolved at a trial under section 394.918(4). § 394.918(4). The State's evidence, in short, jumped the gun. And in relying on the State's evidence on the ultimate issue to deny Higdon a trial on that very issue, the court effectively merged the limited hearing of subsection (3) with the trial of subsection (4) to conclude that Higdon had failed to establish probable cause because he failed to conclusively establish that he was entitled to release. This was error. See § 394.918(4) (assigning 2We do not suggest that these are the only ways that the State's evidence might undermine a showing of probable cause; they are simply obvious ones. The testimony of Higdon's experts with respect to Dr. Swan's opinion provides guidance. For example, Dr. DeClue testified that he knew of no research or data that supported the conclusions that Dr. Swan drew from Higdon's participation in consensual sexual activity despite its being against the Center's rules. Further, Dr. Wilson questioned the significance of Higdon's asserted preoccupation with sex, noting "it's not against the law to be sexually preoccupied" and opining, "There is no strong indication, actually not even any weak indication, that any preoccupation that Mr. Higdon may have with sexuality is actually directed towards inappropriate sexuality that would be considered illegal or something he could be charged with." Dr. Wilson also questioned Dr. Swan's diagnoses of multiple paraphilic disorders, opining that two of the diagnoses were based almost exclusively on Higdon's behaviors as a juvenile, which, although socially inappropriate, were not "diagnostically meaningful for an adult diagnosis"; that he had seen nothing in Higdon's history to support a third diagnosis; and that Dr. Swan had failed to specify the nature of a fourth diagnosed disorder.

to the State "the burden of proving, by clear and convincing evidence, that the person's mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence"); Drake, 2020 WL 3022754, at *2 ("The State's argument is further flawed in that it frames Drake's burden at the limited probable cause hearing in terms of conclusively establishing that he no longer poses a threat to the community, while all section 394.918(3) requires is for a detainee to produce sufficient evidence to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the committed person's condition has changed so that it is safe for him to be at large." (internal quotation marks omitted)). Accordingly, we reverse and remand for proceedings consistent with section 394.918(4). Reversed; remanded for further proceedings. VILLANTI and SLEET, JJ., Concur.