Opinion
No. 5-200 / 03-1280
Filed April 28, 2005
Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.
Wayne Atwood appeals from his civil commitment as a sexually violent predator. AFFIRMED.
Mark Smith, First Assistant State Public Defender, and Michael Adams, Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, and Andrew B. Prosser, Assistant Attorney General, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Wayne Atwood appeals from his commitment as a sexually violent predator. We now affirm.
I. Background Facts and Proceedings.
On July 12, 2001, the State filed a petition with the Polk County District Court alleging Wayne Atwood, then housed in Anamosa State Penitentiary, was a sexually violent predator as defined in Iowa Code chapter 229A (2001). The petition alleged Atwood possessed mental abnormalities making him likely to engage in future sexually violent offenses if not confined in a secure facility. The stipulated record of the commitment proceeding held on July 7, 2003, indicates Atwood has been convicted of five separate offenses of a sexually violent nature, the earliest of these dating back to 1968. The record also indicates Atwood has been a participant in various sex offender treatment programs during his multiple incarcerations. Atwood has also participated in chemical dependency treatment programs for his alcohol dependency, and is currently being treated for depression.
Atwood was examined by Dr. Thomas Gratzer, Dr. Dan Rodgers, and Dr. Dennis Doren. Gratzer, respondent's expert witness, testified that Atwood had genuinely participated in treatment programs and has identified (1) the risk factors involved in his past offenses, and (2) the intervention techniques and community resources needed to check his behavior were he to be released. However, Dr. Gratzer also testified at the commitment hearing that Atwood suffers from hebephilia, i.e., sexual attraction to adolescents. Gratzer opined Atwood's alcohol dependency served as a disinhibitor, reducing his ability to control his behavior. Gratzer further opined that the interplay of Atwood's major depression, his alcohol dependency, and the hebephilia explained Atwood's past sex offending, and would cause Atwood difficulty in controlling his sexually dangerous behavior. Gratzer stopped short of stating Atwood's psychiatric profile "predisposes" Atwood to commit sex offenses, but he did note the profile serves as a precursor to Atwood's offenses.
It should be noted that each sexual offense committed by Atwood involved the use of alcohol.
Dr. Dan Rodgers, also Atwood's expert, did not attach to Atwood the diagnosis of hebephilia. Rodgers opined Atwood's prior sex offenses were caused by a "cycle of serious depression which he deals with, in his case, by drinking to medicate it." Rodgers noted that because both alcohol abuse and severe depression are treatable conditions, Atwood does not suffer from a mental abnormality making him more likely than not to re-offend if not confined in a secure facility.
Dr. Dennis Doren, the State's expert, opined Atwood suffers from paraphilia (hebephilia), alcohol dependency, and depression. Doren testified that the paraphilia is a mental abnormality that alone "creates a risk that is beyond more likely than not, if he is not confined, for a new sexual offense." Doren also diagnosed Atwood with alcohol dependency, noting that while alcohol generally does not cause sexual offending, it tends to accentuate sexual desires, and could serve as a problem for someone with paraphilia/hebephilia. Doren indicated whether acquired or congenital, hebephilia seriously impairs Atwood's ability to control his sexual urges.
Jury Instruction No. 10, read as follows:
The law does not require jurors to agree which mental abnormalities as defined in Instruction No. 9 were proven by the evidence. The law only requires that each juror agree that Respondent suffers from at least one mental abnormality defined in Instruction No. 9.
Atwood objected to this instruction on the ground that it would improperly permit jurors to consider alcohol dependency and/or depression as mental abnormalities justifying commitment under section 229A.2(5). Atwood proposed an alternative instruction that would require each juror to identify the mental abnormality, if any, they found present in Atwood. The district court overruled Atwood's objection to Instruction No. 10 and refused to give Atwood's proposed instruction. The jury found Atwood to be a sexually violent predator, and Atwood was committed.
On appeal, Atwood challenges Jury Instruction No. 10, and the district court's refusal to instruct the jury to identify the mental abnormality, if any, each found in Atwood.
II. Scope and Standard of Review.
We review challenges to jury instructions for correction of errors at law. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). "As long as a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court must give the requested instruction." Id. Reversal is warranted only where the district court's erroneous jury instruction ruling causes prejudice to the aggrieved party. Rudolph v. Iowa Methodist Med. Ctr., 293 N.W.2d 550, 555 (Iowa 1980).
Atwood does not challenge the sufficiency of the evidence with regard to the jury's finding that he possessed a mental abnormality predisposing him to commit sexual offenses.
III. Discussion.
Atwood contends Jury Instruction No. 10 implicitly allowed jurors to consider Atwood's alcohol dependence and serious depression as mental abnormalities which predispose him to re-offend. We take up first, then, the question of whether Atwood's diagnoses of alcohol dependence and depression fit within Iowa Code section 229A.2's definition of mental abnormality.
We are instructed on this issue by the recent Iowa Supreme Court case, In re Detention of Barnes, 689 N.W.2d 455 (Iowa 2004). There, expert testimony established that Barnes suffered from antisocial personality disorder, a disorder that is either congenital, acquired, or both. Barnes, 689 N.W.2d at 458. Expert testimony established the average person suffering from that disorder may not be predisposed to commit sexually violent acts. Id. The record did include evidence tending to prove the disorder affected Barnes' volitional or emotional capacity. Id. at 459. On the question of whether antisocial personality disorder is a "mental abnormality" under the Sexual Violent Predators statute (section 229A), the court concluded "that the types of conditions that can serve to establish a `mental abnormality' are not limited to certain recognized diagnoses." Id. at 458. The court further observed "[w]hat is important is that the statute requires the condition to be congenital or acquired and to affect the emotional or volitional capacity of the person subject to commitment." Id. at 458-59. The determination of whether antisocial personality disorder predisposes a person to commit sexually violent acts "requires an individualized inquiry: whether the mental abnormality makes the particular individual likely to commit sexually violent offenses." Id. at 460 (emphasis in original). The court noted the statute is silent with regard to a particular affliction's effect on the general class of persons suffering from it. Id. at 459.
We find substantial evidence in the record tending to prove the following facts: (1) both depression and alcohol dependence are either congenital or acquired; (2) Atwood suffers from both; (3) both depression and alcohol abuse either caused or contributed to the five sexually violent crimes committed by Atwood; and (4) based on Atwood's individual circumstances, the combined effect of the depression, alcohol dependence, and hebephilia make it more likely than not that Atwood will re-offend if not committed to a secure facility. The individualized inquiry required under Barnes allowed the jury to consider both depression and alcohol dependence as factors in assessing whether Atwood suffers from a mental abnormality requiring civil commitment. Jury Instruction No. 10 correctly stated the law and Atwood therefore suffered no prejudice from it.
On the question of the denial of Atwood's additional instruction polling the jury as to the particular mental abnormality possessed by Atwood, we note the statute does not expressly require the jury to identify a specific mental abnormality which justifies continuing detention; rather all that is required is unanimity with regard to whether any mental abnormality contemplated by the statute is possessed by the person. Iowa Code § 229A.7(4); In re Detention of Goodwin, 689 N.W.2d 461, 466 (Iowa 2004). Because an instruction requiring each juror to identify at least one specific affliction as predisposing the person to re-offend is not contemplated by the law, the district court did not err when it refused to give Atwood's proposed instruction.
Finding no merit to either challenge to the jury instructions, we affirm the civil commitment of Wayne Atwood. AFFIRMED.
Finding ample record evidence on which the jury could have found Atwood's hebephilia to be a mental abnormality justifying his commitment without reliance on alcohol dependency or depression evidence, we believe no prejudice was suffered by Atwood by a jury instruction allowing the jury to consider all the evidence suggestive of predisposition to re-offend. Rudolf, 293 N.W.2d at 555.