Opinion
No. 5-350 / 04-0709
Filed August 17, 2005
Appeal from the Iowa District Court for Jefferson County, Michael R. Mullins, Judge.
Carlton Ward appeals from his civil commitment as a sexually violent predator. AFFIRMED.
Mark Smith, First Assistant Public Defender, and Steven Addington, 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 Mahan, P.J., Zimmer, J., and Beeghly S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Carlton Ward appeals from his commitment as a sexually violent predator. We now affirm.
I. Background Facts and Proceedings.
On March 12, 2002, the State filed a petition with the Jefferson County District Court alleging Carlton Ward, then incarcerated on a conviction of lascivious acts with a child, was a sexually violent predator as defined in Iowa Code chapter 229A (2001). The petition alleged Ward possessed a mental abnormality, pedophilia, making it difficult to control his sexually dangerous behavior and predisposing him to commit sexually violent offenses. The petition alleged that Ward was likely to engage in future sexually violent offenses if not confined in a secure facility.
A jury trial was held on September 10, 2002. The jury returned a verdict finding Ward to be a sexually violent predator. The court entered an order of commitment. Ward appealed to the Iowa Court of Appeals. This court reversed the district court, under authority of In Re Detention of Barnes, 658 N.W.2d 98 (Iowa 2003). On December 24, 2003, the case was remanded for retrial. In Re Detention of Ward, No. 02-1571 (Iowa Ct.App. Dec.24, 2003). A second jury trial commenced on April 13, 2004. On April 15, 2004 the jury returned a verdict finding that Ward was a sexually violent predator. The court entered an order of commitment from which this appeal is taken.
The trial record reveals that Ward was eighty-two years old at the time of his trial in 2004. He has been convicted of three separate sexually violent offenses. The first conviction, indecent liberties with a child, occurred in Illinois in 1970 when Ward was forty-eight years old. He received a suspended sentence and was placed on probation for four years. He violated conditions of probation when he had sexual contact with a young boy. As a result, in October of 1973 he was sentenced to serve a minimum of four years and maximum of five years with the Illinois Department of Corrections. The sentence was appealed and eventually remanded for re-sentencing on February 4, 1976. By that time, Ward had been charged with a new offense, indecent liberties with a minor. He was ordered to serve a term of not less than six nor more than eighteen years on the 1973 offense.
On February 13, 1976, following a jury trial on the new charge he was sentenced to a term of not less than ten nor more than twenty-five years to run concurrent with the sentence from the 1973 offense. He was released from prison in about 1981.
In 1995, when Ward was seventy-two years old, he began sexually abusing a neighborhood boy. This lead to criminal charges. In 1998 he plead guilty to lascivious acts with a Child in Jefferson County, Iowa. He was sentenced to serve a prison term. The sentence was suspended and Ward was placed on probation. In 1999 he violated the terms of probation by having a conversation of a sexual nature with boys under the age of eighteen. His probation was revoked in 1999 and he was ordered into the custody of the Iowa Department of Corrections to serve the original sentence. He was scheduled to be discharged from prison on March 20, 2002. On March 12, 2002 a petition was filed in Jefferson County District Court seeking civil commitment of Ward as a sexually violent predator under chapter 229A of the Iowa Code.
The commitment judgment from which this appeal is taken occurred in April, 2004 when Ward was eighty-two years old. Dr. Harry Hoberman, the State's expert witness, testified that Ward suffered from a mental abnormality, pedophilia, that predisposed him to commit sexually violent offenses and that he was more likely than not to commit sexually violent offenses in the future if not confined in a secure facility. In determining that Ward is more likely than not to re-offend, Dr. Hoberman relied on his past history of sexual behavior, the base rate, statistical measures, and individual risk factors. He then used a rating scale to determine how much weight to give the various factors that apply to Ward, and exercised his professional judgment to determine the degree of risk that Ward would re-offend. Dr. Hoberman concluded that Ward was more likely than not to re-offend if not committed to a secure facility.
Statistical instruments applied by Dr. Hoberman were: (1) the Static 99, which indicated that Ward would have a thirty-nine percent likelihood of being convicted of another sex offense within five years and a forty-five percent likelihood of being convicted within ten years; (2) the Minnesota sex offender screening tool, revised which indicated that Ward has a fifty-four percent likelihood of sex offense conviction within six years; and (3) the sex offenders risk appraisal guide, which indicated a fifty-five percent likelihood of re-offending within five years. These instruments are commonly relied upon by experts in assessing sex offender recidivism risk.
Some studies have included sex offenders of advanced age. In general, these studies indicate that the rate of re-offending decreases with age. For sex offenders released from prison at age eighty, the rates of recidivism are low. However, a 2002 study reported by Thornton and Doran found that for sex offenders between the ages of twenty-five and fifty-nine who had been convicted of three or more prior sex offenses there is no decrease in the rate of re-offending as perpetrators age. Ward has three convictions for sex offenses. His most recent conviction was for a continuing sequence of sex offenses against a ten to twelve year old boy while Ward was between the ages of seventy-two and seventy-four. The kind of sex acts involved would not necessarily be compromised by age or poor health.
Factors Dr. Hoberman considered significant in assessing probability that Ward would re-offend were his age, health, and the fact that he had not completed a sex offender program. Though Ward has been involved in sex offender programs he either performed poorly or did not complete them.
Other factors Dr. Hoberman considered significant are Ward's noncompliance with conditions of probation, his belief that it is appropriate for adults to engage in sex acts with children, poor self-control, sexual preoccupation, paraphiliac interests, and pedophilia.
In Dr. Hoberman's opinion, all of the risk indicators are convergent, indicating that Ward is more likely than not to sexually re-offend.
II. Scope and Standard of Review.
Respondent Carlton Ward was civilly committed after a jury returned a verdict finding him to be a sexually violent predator. Ward appeals, asserting there was insufficient evidence to support the jury's verdict. Because this action was tried at law, our scope of review is for the correction of errors at law. In re Detention Of Williams, 628 N.W. 2d 447, 451 (Iowa 2001). We are bound by the jury's findings so long as they are supported by substantial evidence. See In re Detention of Swanson, 668 N.W. 2d 570, 574 (Iowa 2003). The evidence is substantial if, considering the entirety of the record in the light most favorable to the State, there is evidence from which a rational trier of fact could conclude, beyond a reasonable doubt, that Ward is a sexually violent predator. Id. Upon such review, we conclude the jury's verdict was supported by substantial evidence. We find substantial evidence from which a jury could find that Ward possessed a mental abnormality, pedophilia, making him likely to engage in future sexually violent offenses if not confined in a secure facility.
We affirm the civil commitment of Carlton Ward.