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A three-judge state Superior Court panel rejected last week a three-prong test proposed by a convicted sex offender who was appealing his classification by the trial court as a sexually violent predator. In Commonwealth v. Dixon, Christopher Anthony Dixon argued that the trial court approved his SVP status despite the fact that the commonwealth’s expert witness did not complete an independent risk assessment for Dixon’s likelihood to re-offend. Dixon argued that the classification was based solely on his having committed a predatory act and his being determined to suffer from “paraphelia not otherwise specified,” according to the opinion. The statute outlining the definition of a SVP states that the person must suffer from “a mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses,” according to the opinion. The definition of “mental abnormality,” according to the statute, includes the predisposition to commit those acts. Dixon argued that the SVP status was a three-part test that included mental abnormality, a predatory act and an independent assessment that there is a likelihood of re-offense, according to the opinion. The court disagreed, pointing to its opinion this year in Commonwealth v. Shugars, which outlined a two-part test that included either a mental abnormality or a personality disorder that makes the person likely to engage in sexually violent offenses, Judge Seamus P. McCaffery said for the court in a footnote to the opinion. “We agree with [Dixon] that every commonwealth expert who testifies that an individual is an SVP must examine, and render an opinion on, whether the individual is likely to re-offend,” McCaffery later said. “Contrary to [Dixon's] claims, the precise manner of meeting this burden is not analyzed in terms of a strict, three-prong test.” McCaffery said that the commonwealth’s expert, psychologist and member of the sexual offender assessment board, Robert Stein, relied on several other factors rather than simply Dixon’s diagnosis of “paraphelia not otherwise specified.” In the assessment hearing, Stein had gone over, as they applied to Dixon, each of the nearly 15 statutory factors that are designed to determine the likelihood of re-offense, according to the opinion. “The expert recited each factor, described its application in [Dixon's] case, and noted whether it militated in favor of or against a finding of SVP status,” McCaffery said, later adding, “The transcript reveals that prior to offering his expert opinion, Dr. Stein was thorough and meticulous in his explanations of the factors, as well as in his description of [Dixon's] mental abnormality.” According to the opinion, Dixon pled guilty to sexually assaulting (not involving intercourse) two young daughters of his wife’s best friend. The girls were ages 10 and 13 at the time. Dixon threatened to kill them if they told, according to the opinion. Following his guilty plea, the Lancaster County trial court refused the commonwealth’s request to schedule an assessment hearing on Dixon’s SVP status, sentencing him to four to eight years in prison. The court also directed Dixon to comply with the provisions of Megan’s Law II that did not address SVP offenders, McCaffery said. The commonwealth’s appeal on the issue of SVP status went in its favor, remanding the case for an assessment hearing, according to the opinion. At the hearing, the factors that were used to determine Dixon’s likelihood to re-offend included the number of victims and their age, the type of contact, Dixon’s history of alcohol abuse and his prior history of sexual offenses, McCaffery said. The court determined that Stein’s reliance on prior sexual offenses and other factors demonstrated that he did not rely only on Dixon’s mental abnormality in determining his SVP status, according to the opinion. Those same factors were also used in determining Dixon’s status as a paraphelia not otherwise specified, McCaffery said in a footnote to the opinion. “It is logical – indeed, appropriate – that some of the statutory factors formulated by the legislature to determine the likelihood of re-offense also would be relevant in diagnosing a mental abnormality that, as Dr. Stein explained, is characterized by ‘sexual urges [or behavior] involving . . . children or other nonconsenting persons,’” McCaffery said in the footnote. Todd P. Kriner, an attorney in the Lancaster County District Attorney’s Office represented the commonwealth in the case. He said that the three-prong test was a statutory construction by the defense that took the definition of mental abnormality and combined it with the definition of a SVP. He did not want to comment further on the case. Lancaster County public defender James J. Karl represented Dixon in the case and was not available for comment at the time of publication. Judges Joseph A. Hudock and Joseph A. Del Sole joined McCaffery in the opinion. Copies of the 13-page opinion in Commonwealth v. Dixon , PICS No. 06-1117, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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