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COURT OF APPEALS DECISION DATED AND FILED November 19, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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APPEAL from an order of the circuit court for Milwaukee County: richard j. sankovitz, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Emmitt Wilson, Jr., appeals a commitment order entered pursuant to Wis. Stat. § 980.06 (2011-12).[1] The sole issue on appeal is whether sufficient
evidence supports the circuit court’s verdict that Wilson is a sexually violent
person. We conclude that the evidence is
sufficient, and we affirm.
BACKGROUND
¶2 Wilson
was completing a term of initial confinement for first-degree sexual assault of
a child when the State petitioned to commit him as a sexually violent person. In March 2011, the matter proceeded to a bench
trial.
¶3 The
State’s evidence showed that Wilson, who was sixty-one years old at the time of
trial, had criminal convictions in two states for sexually assaultive behavior
spanning several decades.[2] In 1991, a woman and four girls, ages ten,
thirteen, fifteen, and sixteen, accused Wilson of sexually assaulting them in a
swimming pool in Tennessee. He resolved
the resulting charges by pleading guilty to multiple counts of sexual battery
and one count of aggravated sexual battery. In 2000, a six-year-old girl in Tennessee
alleged that Wilson got into bed with her and penetrated her vagina with his
fingers while visiting in her home. Wilson
resolved the matter by pleading guilty to sexual battery. In 2005, a twelve-year-old girl in Wisconsin alleged
that Wilson was a family houseguest when he awakened her by fondling her vagina
in the middle of the night. Wilson pled
guilty as charged to one count of first-degree sexual assault of a child. See
Wis. Stat. § 948.02(1).
¶4 The State also presented expert testimony from
Dr. Cynthia Marsh, a psychologist employed by the Wisconsin Department of
Corrections, and Dr. William Schmitt, a psychologist employed
by the Wisconsin Department of Health Services.
Both experts had reviewed Wilson’s correctional and psychological
records, and Marsh had additionally conducted a personal interview with Wilson.
¶5 Marsh
diagnosed Wilson with antisocial personality disorder and with paraphilia not
otherwise specified, and she testified that Wilson’s conditions predispose him
to commit sexually violent acts. Marsh then
explained that she assessed Wilson’s risk of reoffending in the future by using
three actuarial instruments. She
testified that the instruments assess a subject’s likelihood of reoffending
within a specified timeframe and that the results of each assessment reflect
that Wilson’s risk of reoffending after five years is less than fifty
percent. She further testified, however,
that she applied a formula that permits the assessor to extrapolate from the
test results to determine a subject’s lifetime risk of reoffending. Using this formula, Marsh concluded that,
depending on the instrument used, Wilson’s risk of reoffending during the
remainder of his lifetime is as high as seventy-eight percent.
¶6 Marsh
also testified that Wilson received “one of the highest scores” on a
psychopathy assessment. As reflected in
her written report, “a psychopath [i]s an individual who controls other people
with charm, manipulation, intimidation and sometimes physical violence.” Marsh testified that individuals with an
elevated psychopathy score who also exhibit sexual deviance “have a higher rate
of sexual reoffending.”
¶7 Marsh
told the circuit court that advancing age can attenuate the risk of
reoffending, but, in Wilson’s case, age did not reduce the risk to reoffend
because Wilson had committed sexual offenses “to age fifty-five,” an age “when
we would expect someone to be ... slowing down.” She further testified that his history of
committing sexual offenses while serving terms of community supervision, his
lack of family support, and his failure to participate in sex offender
treatment while in prison all contributed to his risk of reoffending. Marsh concluded to a reasonable degree of
professional certainty that Wilson is more likely than not to commit a future
act of sexual violence as a result of his mental disorders.
¶8 Schmitt
diagnosed Wilson with antisocial personality disorder, and Schmitt also
determined that Wilson had an “exceptionally high” psychopathy score. Schmitt testified that his review of Wilson’s
criminal history revealed nonsexual offenses in addition to sexual offenses,
and Schmitt concluded that Wilson’s personality disorder “predisposes [Wilson]
to keep acting out in both nonsexual and sexual ways.”[3]
¶9 Schmitt
explained that he used one actuarial instrument to determine Wilson’s lifetime
risk of committing future sexual offenses.
Schmitt extrapolated from the results measuring Wilson’s risk to
reoffend over periods of five years and ten years, and, based on that
extrapolation, concluded that the risk of Wilson reoffending within fifteen
years exceeded fifty percent.
¶10 Schmitt
agreed with Marsh that Wilson’s age did not reduce Wilson’s risk of reoffending
because he had a history of sexual offenses “dating at least [to the] ages 41
to 55.... [I]t certainly doesn’t appear
that he is slowing down despite his advancing age.” As did Marsh, Schmitt testified that he
believed, to a reasonable degree of professional certainty, that Wilson is more
likely than not to commit future acts of sexual violence.
¶11 Psychologist
James Peterson testified as an expert on Wilson’s behalf. Peterson agreed with the State’s experts that
Wilson suffers from antisocial personality disorder, but, in Peterson’s
opinion, Wilson’s sexual offenses were “crimes of opportunity” that did not
reflect a predisposition to commit acts of sexual violence. Peterson told the circuit court that the risk
of Wilson reoffending after ten years was thirty-six percent and that the risk
of an individual reoffending after reaching the age of seventy “is essentially
zero, statistically.” Peterson
acknowledged, however, that “there are 70-year-olds and 80-year-olds and
90-year-olds who reoffend.”
¶12 Wilson
also testified. He told the circuit
court that he had no difficulty controlling his sexual behavior, and he denied
that he ever committed any sexually motivated crimes. He testified that the allegations in 1991
stemmed from an incident during which he was swimming with new acquaintances
who made false claims against him when his hand “slip[ped] into [a
ten-year-old-girl’s] bathing suit” and when his tussle with a sixteen-year-old
girl caused her top to “slip[] down.” He
explained that the allegation in 2000 arose when he stopped at the home of a
female acquaintance for a visit in the middle of the night and decided to check
on her sleeping daughter. According to
Wilson, his acquaintance wrongly assumed, based on his past history, that he
was the person who injured the six-year-old girl’s vaginal area. Finally, he admitted that he molested a twelve-year-old
girl in Wisconsin in 2005, but he testified that the crime was not sexually
motivated. He explained that a woman had
invited him to live with her, but he concluded that he was in “another bad
situation.... And that’s when [he] made
up [his] mind to go and touch [the woman’s] daughter knowing that [the]
daughter will tell [the woman], hopefully.”
Wilson said that he anticipated that the woman would “have [him] locked
up so [he] c[oul]d try to go get in the penitentiary so [he] can make some
money, try to get [him]self together and regroup.”
¶13 The
circuit court determined that Wilson was a sexually violent person and ordered
him committed to the custody of the Department of Health Services for control,
care, and treatment. See Wis.
Stat. § 980.06. He appeals,
contending that the State failed to establish beyond a reasonable doubt that he
is more likely than not to engage in future acts of sexual violence.
DISCUSSION
¶14 Before
the circuit court may commit an individual as a sexually violent person under Wis. Stat. ch. 980, the State must prove
beyond a reasonable doubt that the individual: (1) has been convicted of a sexually violent
offense;
(2) currently suffers from a mental disorder; and (3) is dangerous to others
because he or she is more likely than not, because of the mental disorder, to
engage in at least one future act of sexual violence. See Wis.
Stat. §§ 980.01(7), 980.05(3)(a); see also Wis JI—Criminal 2502. In this appeal, Wilson does not dispute that
he previously was convicted of a sexually violent offense. See
Wis. Stat. § 980.01(6)(a) (defining
sexually violent offense to include, inter
alia, a crime specified in Wis. Stat.
§ 948.02(1)). Wilson also
does not argue that the evidence at trial was insufficient to show that he
currently suffers from a mental disorder.
Wilson contends, however, that the State failed to prove that he is more
likely than not to engage in future acts of sexual violence as a consequence of
his mental disorder.
¶15 When
we review the sufficiency of the evidence in a case under Wis. Stat. ch. 980, we apply the
standard used in criminal cases. State
v. Kienitz, 227 Wis. 2d 423, 434, 597 N.W.2d 712 (1999). The test for sufficiency of the evidence is
the same whether a jury or the circuit court acts as the factfinder. State
v. Curiel, 227 Wis. 2d 389, 418, 597 N.W.2d 697 (1999). Therefore:
[w]e may not reverse the conviction based on insufficient evidence unless the evidence, viewed most favorably to the [S]tate and the commitment, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found the defendant to be a sexually violent person beyond a reasonable doubt.
Kienitz, 227 Wis. 2d at 434 (citation, formatting, some punctuation, and two sets of brackets omitted). Moreover, “[o]nly when the evidence is inherently or patently incredible will we substitute our judgment for that of the factfinder.” State v. Saunders, 196 Wis. 2d 45, 54, 538 N.W.2d 546 (Ct. App. 1995). The testimony of a single expert witness who is not inherently incredible or incredible as a matter of law is sufficient to sustain a verdict that an individual is a sexually violent person. See State v. Lombard, 2003 WI App 163, ¶¶20-22, 266 Wis. 2d 887, 669 N.W.2d 157.
¶16 Wilson does not suggest that the expert witnesses presented by the State were inherently or patently incredible. Rather, Wilson challenges the sufficiency of the evidence because the circuit court concluded that “the actuarial evidence is not enough by itself to sustain a verdict in favor of the State.” In Wilson’s view, “[o]nce the court found that the evidence as rendered by the experts in this matter was not sufficient to find beyond a reasonable doubt that the [S]tate had met its burden of proof, the court should have found that Mr. Wilson was not an appropriate subject for commitment.” Wilson is wrong.
¶17 No governing authority provides that a factfinder must base its
finding of future dangerousness on an expert’s testimony. See State v. Mark, 2008 WI App 44, ¶51,
308 Wis. 2d 191, 747 N.W.2d 727. In
this case, the circuit court explained
that it was not persuaded to the requisite degree of certainty by the experts’
conclusions drawn from the actuarial measurements but that other evidence persuaded
the circuit court beyond a reasonable doubt that Wilson was a sexually violent
person. The circuit court then discussed
its findings and the evidence supporting them.
¶18 The
circuit court found that Wilson committed a sexual offense when he was in his
mid-fifties, and the circuit court therefore accepted the conclusion of the
State’s expert witnesses that his sexual misconduct “was not slowing
down.” The circuit court also took into
account that Wilson had selected his minor victims without first cultivating a
relationship with them. In the circuit
court’s view, he “simply helped himself,” and his opportunistic behavior increased
the likelihood that he would reoffend in the future.
¶19 The
circuit court was most persuaded, however, by Wilson himself, specifically, his
testimony and demeanor at trial. The
circuit court described Wilson’s testimony as “unnerving” and characterized his discussion of his criminal
history as “preposterous” and “ludicrous to the point of being scary.” The circuit court determined that Wilson lied
on the stand and that his explanations for his criminal behavior were “so slippery
that they make [the circuit court] worry about what he will do in the future to
put himself in a position in order to exploit opportunities.” Stating that Wilson “reweaves the facts to
suit his purposes and manipulate others,” the circuit court determined that Wilson
had tried to “manipulate the outcome in this court,” and that his
“manipulative” and “shifty” testimony reflected the psychopathy discussed by
the State’s experts. The circuit court
further determined that Wilson had revealed himself at trial as “the kind of
stranger who can talk [his] way into someone’s home and then take advantage,”
and the circuit court concluded that the sum of the evidence showed that he was
dangerous and more likely than not to commit a sexually violent offense in the
future.
¶20 Wilson fails to demonstrate that the circuit court erred by relying on his testimony to make critical findings and reach a verdict. To the contrary, a factfinder in a proceeding under Wis. Stat. ch. 980 is explicitly empowered to “accept or reject the testimony of any expert, including accepting only parts of an expert’s testimony; and to consider all of the non-expert testimony.” Kienitz, 227 Wis. 2d at 441. The record here shows that the circuit court considered the expert testimony as well as the other evidence presented, including Wilson’s criminal record, his explanations for his behavior and criminal history, his character, and his demeanor on the stand. The totality of the evidence persuaded the circuit court that Wilson is a sexually violent person. We cannot say that the evidence presented was so insufficient that no reasonable trier of fact could have reached that conclusion. Therefore, we are required to affirm. See id. at 434.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] Wilson’s date of birth is January 27, 1950.
[3] The record reveals that Wilson’s history of criminal offenses other than sex crimes includes robbery, theft, assault causing bodily harm, and possession of narcotics.