HomeMy WebLinkAboutCP-21-CR-0001838-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. : CHARGE: (4) INDECENT ASSAULT ON A
: CHILD
:
STEVEN R WAGGONER : CP-21-CR-1838-2008
OTN: K443300-4 :
IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., August 13, 2009
In this Megan’s Law case, Defendant pled guilty on February 17, 2009, to
1
indecent assault on a child, a felony of the third degree. The case was referred to the
Pennsylvania Sexual Offenders Assessment Board for purposes of an assessment as to
2
whether Defendant should be classified as a sexually violent predator.
3
Based upon an affirmative response from the Board, the Commonwealth filed a
4
praecipe for a hearing on the issue, which was held on August 5, 2009. At the hearing,
the Commonwealth and Defendant stipulated as to the expertise in this area of Nancy W.
Einsel, M.S., CCMHC, LPC, a member of the Pennsylvania Sexual Offenders
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Assessment Board. A copy of Ms. Einsel’s report regarding Defendant was placed in the
record pursuant to an agreement of counsel, with the further stipulation that, if called as a
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witness, Ms. Einsel would testify in accordance with its contents. No other testimony
was presented.
1
Order of Court, February 17, 2009.
2
Order of Court, February 17, 2009.
3
Commonwealth’s Ex. 1, Hearing, August 5, 2009.
4
Commonwealth’s Praecipe Pursuant to 42 Pa.C.S.A. §9795.4(e), filed May 24, 2009.
5
N.T. 2-5, Hearing, August 5, 2009.
6
N.T. 2-5, Hearing, August 5, 2009.
For the reasons stated in this opinion, Defendant will be determined to be a
sexually violent predator.
STATEMENT OF LAW and FINDINGS OF FACT
Statement of Law
“Predatory” is defined in Section 9792 of the Judicial Code as “[a]n act directed at
a stranger or at a person with whom a relationship has been initiated, established,
maintained or promoted, in whole or in part, in order to facilitate or support
victimization.” Section 9792 defines “sexually violent predator” as:
A person who has been convicted of a sexually violent offense
as
who is
set forth in section 9795.1(relating to registration) and
determined to be a sexually violent predator
under section
due to a mental abnormality or
9795.4 (relating to assessments)
personality disorder that makes the person likely to engage in
predatory sexually violent offenses
. . .(Emphasis added.)
A “mental abnormality” is defined in Section 9792 as “[a] congenital or acquired
condition of a person that affects the emotional or volitional capacity of the person in a
manner that predisposes that person to the commission of criminal sexual acts to a degree
that makes the person a menace to the health and safety of other persons.”
The burden of establishing that the defendant is a sexually violent predator is on
the Commonwealth. 42 Pa.C.S. § 9795.4(e)(3). S.V.P. status must be established by clear
and convincing evidence. Clear and convincing evidence is evidence that is “so clear,
direct, weighty, and convincing as to enable [the fact-finder] to come to a clear
conviction, without hesitancy, of the truth of the precise facts in issue.” Lessner v.
Rubinson, 527 Pa. 393, 400, 592 A.2d 678, 681 (1991). In Commonwealth v. Krouse, the
Superior Court of Pennsylvania stated:
[W]e strongly recommend that the trial courts present specific
findings of fact regarding the findings necessary for a SVP
determination as defined in Section 9792 and the factors specified
in Section 9795.4(b) which the legislature has deemed relevant.
Commonwealth v. Krouse, 799 A.2d 835, 842 (Pa. Super. 2002).
Section 9795.4(b) of Megan’s Law II specifies that an assessment shall include,
but not be limited to, the following:
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(1)Facts of the current offense, including:
i.Whether the offense involved multiple victims.
ii.Whether the individual exceeded the means necessary to achieve the
offense.
iii.The nature of the sexual contact with the victim.
iv.Relationship of the individual to the victim.
v.Age of the victim.
vi.Whether the offense included a display of unusual cruelty by the
individual during the commission of the crime.
vii.The mental capacity of the victim.
(2)Prior offense history, including:
i.The individual’s prior criminal record.
ii.Whether the individual completed any prior sentences.
iii.Whether the individual participated in available programs for sexual
offenders.
(3)Characteristics of the individual, including:
i.Age of the individual.
ii.Use of illegal drugs by the individual.
iii.Any mental illness, mental disability or mental abnormality.
iv.Behavioral characteristics that contribute to the individual’s conduct.
(4)Factors that are supported in a sexual offender assessment field as criteria
reasonably related to the risk of reoffense.
42 Pa.C.S.A. 9795.4(b).
Findings of Fact
The female victim in this case, whose date of birth was August 6, 1991, was the
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biological granddaughter of Defendant on her mother’s side. She was inappropriately
touched between 10 and 20 times by Defendant from the time she was 10 years old until
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she attained the age of 15. The first incident of such touching was described as follows:
She recalled that she was watching television with Mr. Waggoner
in the sunroom of his residence. She was sitting on the floor and
Mr. Waggoner invited her to come up and sit on his lap in the chair
where he was sitting. The victim related that Mr. Waggonner then
put his hand down the inside of her shorts and underwear and
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penetrated her vagina with his fingers.
7
Commonwealth’s Ex. 1, at 1.
8
Commonwealth’s Ex. 1, at 1.
9
Commonwealth’s Ex. 1, at 1.
3
The assaults occurred more frequently when the child was younger and decreased
as she grew older and was able to avoid situations in which she was alone with
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Defendant. Inappropriate conduct on the part of Defendant with other children was also
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reported.
With respect to the specific statutory factors enumerated in the Judicial Code as
being of particular relevance to a determination of whether a person is a sexually violent
predator, the following additional findings are made:
Whether the offense involved multiple victims. The actions of
Defendant in the commission of the instant offense did not exceed the
12
means necessary to achieve the offense.
The nature of the sexual contact with the victim. Defendant fondled
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the victim’s breasts and vaginal area over and under her clothing; digitally
14
penetrated the victim’s vagina, and kissed her on the lips on numerous
15
occasions over a 4 to 5 year period of time. The assaults occurred in his
16
residence, her bedroom and while riding a four wheeler together.
Any mental illness, mental disability or mental abnormality.
Defendant meets the criteria set forth in the DSM-IV-TR for the mental
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abnormality of paraphilia NOS.
Behavioral characteristic of Defendant that contributed to his
conduct. Defendant has been sexually acting out with young females for
most of his adult life. His actions indicate a long-term, sexually deviant
10
Commonwealth’s Ex. 1, at 1.
11
Commonwealth’s Ex. 1, at 3.
12
Commonwealth’s Ex. 1, at 4.
13
Commonwealth’s Ex. 1, at 4.
14
Commonwealth’s Ex. 1, at 4.
15
Commonwealth’s Ex. 1, at 4.
16
Commonwealth’s Ex. 1, at 4.
17
Commonwealth’s Ex. 1, at 5.
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pattern of seeking opportunity to engage in sexual activity with
prepubescent and adolescent females. His reported personality of being
outwardly “very nice, kind and caring” has likely contributed to his ability
to chronically act out. Defendant’s disclosure that he drank heavily for a
significant number of years to cope with the stress of family illness and
death indicates that he has poor coping skills, and medicates his pain rather
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than seeking healthy means of coping.
Factors that are supported in a sexual offenders assessment filed as
criteria reasonably related to the risk of reoffense. Defendant’s repetitive
history of child abuse and his mental abnormality in the form of paraphilia
NOS strongly support the uncontradicted conclusion of an expert in the
field that “Steven Waggoner’s behavior related to his diagnosis of
paraphilia NOS makes him likely to engage in predatory sexually violent
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offenses. . . .”
Finally, it was the opinion of the Commonwealth’s expert that Defendant
“meets the statut[ory] criteria for mental abnormality with the diagnosis of
Paraphilia NOS. His behavior is also consistent with the statutory definition for
predatory behavior. Therefore, [she] concluded with a reasonable degree of
professional certainty that Steven Waggoner meets the criteria set forth by statute
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to be classified as a Sexually Violent Predator.”
Based upon the foregoing, and by clear and convincing evidence, the court
concludes that Defendant (a) has been convicted of a sexually violent offense as
set forth in section 9795.1 of the Judicial Code and (b) is likely to engage in
predatory sexually violent offenses. Accordingly, the following order will be
entered:
18
Commonwealth’s Exhibit 1, at 4.
19
Commonwealth’s Exhibit 1, at 5.
20
Commonwealth’s Exhibit 1, at 6.
5
ORDER OF COURT
th
AND NOW, this 13 day of August, 2009, upon consideration of the
Commonwealth’s Praecipe Pursuant to 42 Pa.C.S.A. §9795.4(e), and following a hearing
held on August 5, 2009, and for the reasons stated in the accompanying opinion,
Defendant is hereby determined to be a sexually violent predator, and he is directed to
appear for sentence on Tuesday, August 25, 2009, at 9:30 a.m. in Courtroom No. 1,
Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Cristylee Peck, Esquire
Senior Assistant District Attorney
Patrick F. Lauer, Jr., Esquire
Attorney for Defendant
Sexual Offenders Assessment Board
Cumberland County Adult Probation
Cumberland County Prison
6
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. : CHARGE: (4) INDECENT ASSAULT ON A
: CHILD
:
STEVEN R WAGGONER : CP-21-CR-1838-2008
OTN: K443300-4 :
IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 13 day of August, 2009, upon consideration of the
Commonwealth’s Praecipe Pursuant to 42 Pa.C.S.A. §9795.4(e), and following a hearing
held on August 5, 2009, and for the reasons stated in the accompanying opinion,
Defendant is hereby determined to be a sexually violent predator, and he is directed to
appear for sentence on Tuesday, August 25, 2009, at 9:30 a.m. in Courtroom No. 1,
Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
J. Wesley Oler, Jr., J.
Cristylee Peck, Esquire
Senior Assistant District Attorney
Patrick F. Lauer, Jr., Esquire
Attorney for Defendant
Sexual Offenders Assessment Board
Cumberland County Adult Probation
Cumberland County Prison