Opinion
No. 4-393 / 03-0893.
Filed August 11, 2004.
Appeal from the District Court for Scott County, James E. Kelley, Judge.
Mark Etie appeals the district court's order subjecting him to civil commitment as a sexually violent predator. AFFIRMED.
Mark Smith, First Assistant State Public Defender, and Melissa A. Anderson, Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, and Andrew Prosser and Linda J. Hines, Assistant Attorneys General, for appellee State of Iowa.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Mark Etie was serving criminal sentences for third-degree sexual abuse and lascivious acts with a child when the State petitioned to have him civilly committed as a sexually violent predator. Iowa Code ch. 229A (2001). The petition was granted following a jury trial.
On appeal, Etie contends 1) he was entitled to a jury instruction setting forth a presumption that he is not a sexually violent predator and 2) there was insufficient evidence to show that Etie was more likely than not to re-offend.
I. Jury Instruction
At trial, Etie offered the following jury instruction containing a presumption analogous to the long-recognized presumption of innocence in criminal cases:
Mark G. Etie is presumed to not be a sexually violent predator. The presumption requires you to put aside all suspicion which might arise from the present situation of the Respondent. This presumption that he is not a sexually violent predator remains with the Respondent throughout the trial unless the evidence proves beyond a reasonable doubt that he is a sexually violent predator.
The district court declined to use this instruction, stating, this was "a civil matter defined by statute where the presumption is not specified in the statute."
Etie concedes that the court's failure to give his proposed instruction is not in and of itself a constitutional violation. See Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640, 643 (1979). He also does not argue that the failure to give the instruction in his case deprived him of a fair trial. See Taylor v. Kentucky, 436 U.S. 478, 490, 98 So. Ct. 1930, 1937, 56 L.Ed.2d 468, 478 (1978); In re Morrow, 616 N.W.2d 544, 549-50 (Iowa 2000). Instead, he contends that his right to this instruction arises from his statutory right to have the State prove its case beyond a reasonable doubt. See Iowa Code § 229A.7(4). In his view, this "criminal" standard of proof "is diluted without a corresponding presumption against a respondent being a sexually violent predator." See Taylor, 436 U.S. at 484, 98 S.Ct. at 1934, 56 L. Ed.2d at 474 (noting "perceived salutary effect on lay jurors" of instruction on presumption of innocence).
At trial, Etie's counsel stated, "[t]he presumption . . . arises out of the burden of proof that the legislature attached to the government in these cases." Later she urged, "[m]y argument is that the presumption arises out of the burden of proof that is codified."
Because Etie's challenge is not of constitutional magnitude, we review the district court's refusal to submit the instruction for errors of law. State v. Ceasar, 585 N.W.2d 192, 193 (Iowa 1998); cf. Morrow, 616 N.W.2d at 547 (reviewing constitutional claims de novo).
We discern no error. As the district court noted, Iowa Code chapter 229A is civil in nature. In re Detention of Garren, 620 N.W.2d 275, 283 (Iowa 2000). While the statute does afford respondents certain "criminal" rights, a state legislature's decision to "provide some of the safeguards applicable in criminal trials cannot itself turn these [civil commitment] proceedings into criminal prosecutions requiring the full panoply of rights applicable there." Allen v. Illinois, 478 U.S. 364, 372, 106 S.Ct. 2988, 2993, 92 L.Ed.2d 296, 306 (1986). Additionally, even in criminal proceedings, an instruction on the presumption of innocence, "simply represents one means of protecting the accused's constitutional right to be judged solely on the basis of proof adduced at trial." Taylor, 436 U.S. at 486, 98 S.Ct. at 1935, 56 L. Ed.2d at 475. Neither Taylor nor our State's appellate decisions support Etie's assertion that such an instruction must be given where the legislature has mandated proof "beyond a reasonable doubt." We conclude the district court did not err in rejecting Etie's proposed instruction.
See Iowa Code §§ 229A.5 (right to preliminary hearing to determine probable cause); 229A.6(1) (right to counsel); 229A.7(2) (right to speedy trial); 229A.7(3) (right to jury trial); 229A.7(4) (right to unanimous verdict and right to have State prove case beyond reasonable doubt).
II. Sufficiency of the Evidence
The jury was instructed that, to establish Etie was a sexually violent predator, the State would have to prove the following elements:
1. The Respondent has been convicted of, or charged with, a sexually violent offense.
2. The Respondent suffers from a mental abnormality.
3. That mental abnormality makes the Respondent likely to engage in predatory acts constituting sexually violent offenses if Respondent is not confined in a secure facility.
Etie contends there is insufficient evidence to support the third element. Our review of this issue is for errors of law. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). The jury's verdict will be upheld if supported by substantial evidence. Id.
The term "`[l]ikely to engage in predatory acts of sexual violence' means that the person more likely than not will engage in acts of a sexually violent nature." Iowa Code § 229A.2(3). The record reveals the following evidence concerning Etie's likelihood of committing these acts. Etie was diagnosed with pedophelia. He testified to a cycle of rehabilitation efforts, weakness, and self-gratification:
I look at it now is that I didn't care. I started out with good intentions, and when they turned bad, I just decided not to say anything, because I wanted what I wanted. I wanted the immediate gratification for something that was lewd and lascivious and deceitful, and each day that I did it, I deceived myself also, lied to myself that I could stop the next day.
He explained, "Whenever I get back to having a home, having a car, having a job, having everything that I think I need, then I start wanting things, and that's when it turns to deviant sexual assault." He went on,
What I know about my pattern now, my cycle of abuse, is that once I feel that I am no longer worthy or worthwhile or nothing is being done by me, then I go out and do something either to get attention. . . . And this activated a sequence of events where it would build up and I would act out, I would justify that, you know, I would justify and lie to myself that I didn't hurt anybody, and then when I went into the pretend normal, when I started to pretend this is going to be okay, I'll be able to handle it today, then the buildup would start again and I would repeat the cycle.
This cycle is reflected in Etie's history of offenses and treatment. Etie was first arrested for a sexual offense in 1976. Following his conviction, he received psychological treatment. He re-offended in 1979 and, again, received mental health treatment during a four-year period of probation. Despite continued treatment after this probationary period, Etie re-offended in 1983 and 1984. While serving his sentence for the 1984 conviction, Etie reinitiated treatment, which continued following his release in 1990. By 1994, he was sexually abusing his girlfriend's daughter. He was convicted for this offense in 1998. Etie completed yet another sexual offender treatment program during his incarceration for this conviction.
The evidence above was considered by the State's expert, Dr. Harry Hoberman. He opined that Etie, "even with all the treatment experiences he's had, is still more likely than not to commit a sexual offense in the future." While Etie maintains that Dr. Hoberman lacks "special training or experience in the treatment of sexual offenders," his own expert refuted this assertion, stating Hoberman "did a phenomenal job," "was very complete" and "demonstrated a tremendous knowledge of the research literature as well as the literature concerning the risk instruments that are used to predict risk." As for Etie's claim that his expert's contrary opinion is more persuasive, it is axiomatic that a fact-finder is free to choose between competing experts. See Enviro Gas, L.P. v. Cedar Rapids/Linn County Solid Waste Agency, 641 N.W.2d 776, 785-86 (Iowa 2002). We find substantial evidence to support the jury's verdict.
III. Disposition
We affirm the jury's determination that Etie is a sexually violent predator subject to civil commitment under Iowa Code chapter 229A.
AFFIRMED.