Summary
In Ward, this court considered the scope of the confinement requirement, rejecting an argument that "confined" applied only to "those respondents who have been continuously incarcerated, from the moment of their sentencing for a sexually violent offense to the moment a petition for commitment was filed."
Summary of this case from In re Detention of OgdenOpinion
No. 3-830 / 02-1571.
Filed December 24, 2003.
Appeal from the Iowa District Court for Jefferson County, Michael R. Mullins, Judge.
Respondent appeals following a jury verdict that found him to be a sexually violent predator. REVERSED AND REMANDED.
Mark Smith, First Assistant State Public Defender, and Steven Addington, Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, Roxanne Ryan and Andrew Prosser, Assistant Attorneys General, and Timothy Dille, County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Carlton Ward was committed to the custody of the Iowa Department of Human Services pursuant to Iowa Code section 229A.7(3) (Supp. 2002), after a jury found that he was a sexually violent predator. Ward appealed claiming he was denied due process in several respects. Because we conclude the jury instructions failed to adequately address the issue of whether Ward had serious difficulty in controlling his behavior, we reverse Ward's commitment and remand this matter for a new trial.
Background Facts and Proceedings.
In 1973 Carlton Ward was convicted, in the state of Illinois, of indecent liberties with a child. In 1976 he was convicted, again in Illinois, of indecent liberties with a minor. In October 1995, Ward was accused of lascivious acts with a child in Jefferson County, Iowa. Ward was initially found incompetent to stand trial on the lascivious acts charge. He resided in mental health facilities until December 1996, when he was declared competent.
Ward eventually entered a guilty plea to the lascivious acts charge, and in February 1998 was sentenced to five years in prison. Ward's sentence was suspended and he was placed on probation, with the condition that he reside at a mental health facility. The mental health placement allowed Ward certain freedoms in the local community. In October 1999 a probation violation report was filed accusing Ward of having a sexually explicit conversation with a minor, and attending a church located next to an elementary school. On October 25, 1999, Ward's probation was revoked, and he was sent to prison.
On March 12, 2002, the State filed a petition to commit Ward as a sexually violent predator. At the time, Ward was still incarcerated for his lascivious acts conviction. In September 2002 the case proceeded to trial. A jury found that Ward was a sexually violent predator subject to confinement for treatment. A subsequent district court order committed Ward to the Iowa Department of Human Services for treatment. Ward appeals raising three due process issues. First, he alleges the facial unconstitutionality of chapter 229A, Iowa's Sexually Violent Predator Act. Second, he claims a due process violation based on the trial court's failure to give a requested jury instruction. Third, he contends the State was required to allege and prove a recent overt act.
Scope of Review.
Because Ward forwards constitutional arguments, our review is de novo. In re Detention of Garren, 620 N.W.2d 275, 278 (Iowa 2000).
Facial Validity of Chapter 229A.
Iowa Code chapter 229A provides for confinement of persons found by the court or a jury to be sexually violent predators. Iowa Code § 229A.7(3). The Code defines a "sexually violent predator" as a person who has been convicted of . . . a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.
This subsection has been renumbered and now appears at Iowa Code § 229A.7(4) (2003).
Id. § 229A.2(9). Ward argues this definition is constitutionally infirm because it does not require the State to prove a respondent has serious difficulty in controlling his or her behavior. See Kansas v. Crane, 534 U.S. 407, 410, 122 So. Ct. 867, 870, 151 L.Ed.2d 856, 862 (2002).
This subsection has been renumbered and now appears at Iowa Code § 229A.2(11) (2003).
We agree with Ward that a sexually violent predator civil commitment statute does not comport with due process unless it requires such a showing. Id. However, our supreme court has already interpreted Iowa Code section 229A.2(4)'s definition of "mental abnormality" to require a showing by the State that the respondent has serious difficulty in controlling behavior. In re Detention of Barnes, 658 N.W.2d 98, 101 (Iowa 2003). Accordingly, Ward's first claim is without merit.
This section has been renumbered and now appears at Iowa Code § 229A.2(5) (2003). It defined and continues to define "mental abnormality" as "a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others."
Serious Difficulty in Controlling Behavior.
Ward next argues the jury instructions in this matter did not adequately define "mental abnormality" as requiring the State to show he had serious difficulty in controlling his behavior. The pertinent jury instruction in this case defined "mental abnormality" as a condition that impairs a person's ability to control emotions or act voluntarily and which predisposes that person to commit sexually violent offenses. The predisposition must be so substantial as to constitute a menace to the health and safety of others.
At first glance this instruction would seem adequate, as it both follows the statutory definition of mental abnormality, and addresses the issue of control.
However, our supreme court has indicated that to comport with due process the instructions must also "provoke a thoughtful consideration by the jury of whether [a respondent] has `serious difficulty in controlling behavior.'" In re Detention of Garrett, 671 N.W.2d 497 (Iowa 2003). In Barnes the supreme court suggested that the following jury instruction be used in Sexually Violent Predator Act proceedings:
As used in this instruction, "mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior.
Barnes, 658 N.W.2d at 101 (quoting Thomas v. Missouri, 74 S.W.3d 789, 792 (Mo. 2002).
Under controlling case law, we believe the jury instruction given in this matter was inadequate because it did not allow for a clear determination by the jury that Ward had serious difficulty in controlling his behavior. Cf. Garrett, 671 N.W.2d at 500 (finding constitutional compliance where special verdict form required jury to determine whether the respondent's mental abnormality caused him to have serious difficulty in controlling behavior) with Barnes, 658 N.W.2d at 99 (finding inadequate jury instruction that defined "mental abnormality" as a condition affecting the emotional or volitional capacity of a person). Accordingly, Ward's commitment should be reversed. See Barnes, 658 N.W.2d at 101.
Although neither the Barnes nor Garret decision had been issued at the time of Ward's trial in this matter, the United States Supreme Court had issued its decision in Crane.
The State argues that even if the jury instruction was inadequate, reversal is not warranted as the overwhelming evidence of Ward's inability to control his behavior rendered any error harmless. However, the State must demonstrate beyond a reasonable doubt that the error did not result in prejudice. See State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct. App. 1999) (noting in cases of constitutional question error can be harmless only if it is harmless beyond a reasonable doubt); State v. Engle, 590 N.W.2d 549, 551 (Iowa Ct. App. 1998) (noting erroneous jury instruction is presumed prejudicial unless, from review of whole case, the contrary appears beyond a reasonable doubt). We have reviewed the evidence, and cannot conclude it rises to the level urged by the State.
The State contends the record is so replete with evidence of Ward's inability to control his behavior the only conclusion to be reached by a reasonable jury, whether properly instructed or not, was that Ward did in fact have serious difficulty in controlling his behavior, and thus was a sexually violent predator subject to commitment.
The jury instruction given in this matter did not ensure that Ward was afforded due process. We therefore reverse Ward's commitment and remand this matter for a new trial. Because the State is entitled to pursue a new trial upon remand, we find it necessary to address Ward's third claim on appeal.
Recent Overt Act.
Ward argues the State failed to prove he was a sexually violent predator, because it failed to allege and prove a recent overt act as required by chapter 229A and the mandates of due process. We cannot agree. Under the facts of this case, we conclude the State demonstrated the requisite overt act when it established Ward was incarcerated for a sexually violent offense at the time the commitment petition was filed.
Ward raised this issue by making a motion to directed verdict at the close of the State's case, which was denied by the district court.
As previously noted, to prove a respondent is a "sexually violent predator" under section 229A.7, the State must show the respondent is "likely to engage in predatory acts constituting sexually violent offenses. . . ." Iowa Code § 229A.2(9). If a person is not "confined" at the time the petition for commitment is filed, the State cannot make this showing unless is demonstrates the respondent committed a "recent overt act." Id. § 229A.2(3); see also id. § 229A.4(2) (providing an apparent recent overt act is a prerequisite for filing a petition against one who is not presently confined). A "recent overt act" is any act that causes, or creates reasonable apprehension of, harm of a sexually violent nature. Id. § 229A.2(6). The district court concluded, and we agree, that the record in this case does not demonstrate any overt act by Ward following the 1995 incident that gave rise to his lascivious acts conviction.
This subsection has been renumbered and now appears at Iowa Code § 229A.2(4) (2003).
This subsection has been renumbered and now appears at Iowa Code § 229A.2(7) (2003).
However, the State need not plead or prove a distinct recent overt act if, at the time the petition for commitment is filed, the respondent is confined for a sexually violent offense. See id. §§ 229A.2(3), .3(1), .4(1); In re Detention of Gonzales, 658 N.W.2d 102, 104 (Iowa 2003). Under such circumstances the recent overt act is deemed to be the act for which the respondent is incarcerated. Gonzales, 658 N.W.2d at 105. At the time the petition was filed in this matter, Ward was confined for the offense of lascivious acts with a child. Our Sexually Violent Predator Act defines this crime as a sexually violent offense. See Iowa Code §§ 229A.2(8)(a), 709.8. Thus, it would seem clear the lascivious acts conviction is itself the qualifying overt act.
This subsection has been renumbered and now appears at Iowa Code § 229A.2(10)(a) (2003).
Ward, however, contends that we must interpret "confined" to mean more than simply being incarcerated at the time the petition for commitment is filed. He argues that, to comport with due process, "confined" must be defined to include only those respondents who have been continuously incarcerated, from the moment of their sentencing for a sexually violent offense to the moment a petition for commitment was filed. Under such an interpretation, the State would be required to prove a separate and distinct recent overt act against Ward, who was free on probation for approximately the first eighteen months of his sentence.
We cannot agree with Ward's interpretation of "confined." We see no basis to distinguish the case of a person continually confined from the date of sentencing for a sexually violent offense, and the case of someone like Ward, who had been continually incarcerated for a sexually violent offense for over two years at the time the commitment petition was filed.
This is not a case where a respondent has completed his term of confinement for the sexually violent offense, but was nevertheless incarcerated at the time the petition was filed for a non-sexually-violent offense or parole violation. We would agree that, in such instances, the State should be required to prove a recent overt act. See Gonzales, 658 N.W.2d at 102-03 (requiring recent over act where respondent was discharged from confinement for sexually violent offense, but was incarcerated for motor-vehicle-related violation); In re Albrecht, 51 P.3d 73, 78 (Wash. 2002) (requiring proof of recent overt act, where at time the petition was filed respondent had completed two-year prison term for sexually violent offense, but was serving jail sentence for violating the community placement portion of his sentence). Here, however, Ward's confinement for a sexually violent offense at the time the petition was filed relieves the State from establishing a recent overt act separate and distinct from the lascivious acts conviction.
Conclusion.
Because the jury instruction defining mental abnormality did not adequately instruct the jury that it must find Ward had serious difficulty in controlling his behavior, we reverse Ward's commitment and remand this matter for a new trial. If the State retries Ward prior to his release from confinement, it need not plead or prove a recent overt act beyond Ward's lascivious acts conviction.