Opinion
No. 2-358 / 01-1197
Filed February 12, 2003
Appeal from the Iowa District Court for Henry County, E. Richard Meadows, Jr., Judge.
The respondent, Damon Willis, appeals from a jury's finding he is a sexually violent predator under Iowa Code chapter 229A (1999). REVERSED AND REMANDED.
Mark Smith, First Assistant State Public Defender, and Catherine Johnson, Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, Andrew Prosser and Roxann Ryan, Assistant Attorneys General, for appellee.
Heard en banc.
The respondent-appellant, Damon Willis, appeals from a jury's finding he is a sexually violent predator under Iowa Code chapter 229A (1999). He claims (1) chapter 229A violates substantive due process, (2) the court's refusal of a proposed jury instruction violated due process, (3) the court erred in admitting evidence of prior bad acts, (4) the evidence was insufficient to support his commitment, and (5) the court did not have jurisdiction over him. We reverse and remand for a new trial.
Constitutionality of Chapter 229A. Willis first contends Iowa Code chapter 229A is unconstitutional on its face and as applied to him. Our review of constitutional claims is de novo, in light of the totality of the circumstances. In re Detention of Williams, 628 N.W.2d 447, 451 (Iowa 2001); In re Detention of Garren, 620 N.W.2d 275, 278 (Iowa 2000). In considering a constitutional challenge to chapter 229A, our supreme court stated:
Statutes are cloaked with a strong presumption of constitutionality and, thus, a party challenging a statute "carries a heavy burden" of rebutting this presumption. " `A person challenging a statute must negate every reasonable basis upon which the statute could be upheld as constitutional.' "
Garren, 620 N.W.2d at 278 ( quoting In re Detention of Morrow, 616 N.W.2d 544, 547 (Iowa 2000) (citations omitted)).
Generally, we will only review an issue raised on appeal if it was first presented to and ruled on by the district court. State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). This general rule includes constitutional issues. Id. Thus, a party wishing to attack the constitutionality of a statute must do so at the first available time during the progression of the case. Id. If a party fails to timely apprise the district court of an issue, the matter is deemed unpreserved for our review. Id.
State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002).
Willis does not state in his brief how this claim was preserved for our review. "[A] party challenging the constitutionality of a statute must alert the court to what specific constitutional provisions are allegedly compromised by the statute." Id. at 234. We do not find the constitutional claims raised in the record before us on appeal. Consequently, "because no constitutional basis for the claim was asserted in district court, it will not be so considered on appeal." State v. Leutfaimany, 585 N.W.2d 200, 209 (Iowa 1998); see Donovan v. State, 445 N.W.2d 763, 767 (Iowa 1989). We do not consider Willis's claims concerning the constitutionality of Iowa Code chapter 229A.
Due Process Violation in Jury Instruction 11. Willis asserts the district court erred in not including the requirement of a finding he had "serious difficulty in controlling behavior." See Kansas v. Crane, 534 U.S. 407, ___, 122 S.Ct. 867, 870, 151 L.Ed.2d 856, 862 (2002). Our supreme court has interpreted Iowa Code section 229A.2(4) "as requiring a showing of a serious difficulty in controlling behavior . . . ." In re Detention of Barnes, ___ N.W.2d ___, ___ (Iowa 2003). We conclude Barnes controls our resolution of this issue and requires reversal and remand for a new trial. Because of our resolution of this claim, we do not address Willis's evidentiary claims.
Jurisdiction. Willis contends the State did not have jurisdiction over him on December 27, 2000, for purposes of filing a petition to commit him. See Iowa Code §§ 229A.3(1), 229A.4(2). Willis's scheduled release from custody was December 26, 2000. The State filed a petition to commit Willis on December 21, 2000. The district court filed an order on December 21, 2000, setting a probable cause hearing for December 27, 2000, and delaying taking custody of Willis until after his release on December 26. The court found probable cause at the hearing on December 27 and ordered that Willis be taken into custody pending trial on the petition to commit him. Willis argues that holding the probable cause hearing after his release violated the procedures set forth in chapter 229A. He contends chapter 229A, "clearly anticipates all pre-filing procedures, the actual filing of the petition, the probable cause hearing and a finding of probable cause will occur prior to the respondent's date of discharge." We conclude Willis's argument misreads chapter 229A and is without merit.
Iowa Code section 229A.5 provides, in pertinent part:
1. Upon filing of a petition under section 229A.4, the court shall make a preliminary determination as to whether probable cause exists to believe that the person named in the petition is a sexually violent predator. . . . If the person is in custody at the time of the filing of the petition, the court shall determine whether a transfer of the person to an appropriate secure facility is appropriate pending the outcome of the proceedings or whether the custody order should be delayed until the date of release of the person.
2. Within seventy-two hours after being taken into custody or being transferred to an appropriate secure facility, a hearing shall be held to determine whether probable cause exists to believe the detained person is a sexually violent predator.
Iowa Code § 229A.5(1)-(2) (emphasis added). The State filed a petition under section 229A.4. Willis was in custody at the time. The district court delayed the custody order until the date of Willis's release. See Iowa Code § 229A.5(1). The probable cause hearing was held the same day he was taken into custody. See Iowa Code § 229A.5(2). As Willis was not out of custody when the petition was filed, there is no requirement of a recent overt act to trigger the filing of a petition to commit. See Iowa Code § 229A.4(2). The probable cause hearing does not need to occur before a person currently confined is released. SeeIowa Code § 229A.5(2). We conclude the State had jurisdiction of Willis on December 21, 2000, for purposes of filing the petition for commitment. The custody order properly was delayed until after his release on December 26, 2000. Iowa Code § 229A.5(1). The probable cause hearing (and subsequent commitment trial) properly were held after he was taken into custody on December 27, 2000. Iowa Code §§ 229A.5(2), 229A.7(2).
Conclusion. From our review of the record, we conclude Willis did not preserve his claim Iowa Code chapter 229A is unconstitutional on its face and as applied to him. Iowa Code section 229A.2(4) requires a showing of serious difficulty in controlling behavior. The jury instructions did not contain that concept. The State had jurisdiction of Willis when it filed its petition for commitment. We therefore reverse the decision of the district court and remand for a new trial.