*1 A. Brown: Richard In re the Commitment Petitioner-Respondent, Wisconsin, State
v. Richard A. Brown, Respondent-Appellant-Petitioner.
Supreme Court argument 2004. Decided 03-1419. Oral December No. 22, 2005. March 2005 WI 715.) (Also reported 693 N.W.2d *3 For the there were respondent-appellant-petitioner Weiss, oral briefs and Steven argument by P. assistant *4 state defender. public
For the petitioner-respondent argued cause was Wellman, by L. Sally general, assistant with attorney whom on the brief A. was attor- Peggy Lautenschlager, ney general.
105 ¶ ABRAHAMSON, This is a 1. S. C.J. SHIRLEY appeals published of the court of review of decision affirming of the Circuit Court for Milwaukee an order County, Judge.1 Franke, John
¶ order denied Richard A. 2. The circuit court's supervised petition release under Wis. Stat. Brown's for 980.08(4) (2001-02).2 § as a Brown had been committed person pursuant 980 in violent 1998.
¶ 3. circuit concluded that the State court by convincing proved evidence that "it re- clear likely [Brown] that much more would mains than point of at over the course of the rest his reoffend some community." supervised in life even while ¶ affirmed the circuit 4. The court denying petition supervised for court's order Brown's release.3 presented. First, are stan- 5. issues what Two appellate applies to court review a circuit court's
dard denying petition release under for order 980.08(4)? reviewing conclude that a Wis. Stat. We independent review the record undertakes court sufficiency of the evidence standard review. under denying Second, 6. circuit order petition supported release Brown's conclude, law, as a matter of the evidence? We super- denying Brown's circuit court order supported by sufficient to release is not evidence vised convincing evidence it meet the clear and standard 1 Brown, 750, 33, 269 2d 676 App State v. WI Wis. N.W.2d All to the Statutes are references Wisconsin indicated. 2001-02 version unless otherwise 3Brown, 2d 269 Wis. *5 likely engage much
is more than not that Brown will in acts of sexual violence if he is continued institu- tional care. We therefore reverse the decision of the court of and the the remand cause to circuit notify Department court with instructions to the of Family Health and it Services that should submit to the 980.08(5), § pursuant plan court, circuit Stat. a Wis. supervised for Brown's release.4
h-H determining validity ¶ 7. In the of the circuit denying court order Brown's for appropriate release, we must first establish the stan- appellate dard of review of such circuit court order. appellate The three of standards review of circuit court although decisions been times, have stated numerous sub-principles case law has articulated ways and different (1) stating of the A standards review: review- ing findings court will not overturn of fact unless (2) clearly reviewing erroneous. A court will sustain a discretionary product decision the that is rational process mental which the facts of and record law upon together relied are stated and are considered for purpose achieving a reasoned and reasonable 980.08(5) part Wisconsin Stat. reads in as follows: person appropriate If the court finds that for release, notify department. department shall The placement person arrange shall make its best effort to facility dwelling person's county a residential or is in department county department... residence .... The and the county person prepare plan of residence of the shall services, any, identifies the if treatment that the will community. plan person's receive in the shall address the need, any, supervision, counseling, medication, community if services, support services, services, residential vocational alcohol. .. treatment... . (3) ques- reviewing decide court will A determination. *6 independently court but the circuit of tions of law analysis. benefiting from its 2] parties presented in the the The issue a denial of a circuit court's case is whether instant supervised petition release should be for question of law or as aof a determination classified as person a court discretion. Whether of circuit an exercise engage likely of in acts sexual not to more than is much person in institutional not continued if the violence very question of the question fact. The a of care is question of law appropriate a of review is standard independently circuit of the decides this court which benefiting from the of but court and court analyses of these courts. 980.08(4), § the Stat. look first to Wis. 9. We forth a it sets issue, to determine whether at
statute appellate not. It does review. standard explicitly statu- an stated In the absence govern- tory the statute review, we examine standard decisionmaking in instant ing the circuit court's the 980.08(4) § circuit forth the sets Stat. case. Wisconsin deciding petition release in court's role as follows: the state unless grant petition the
The court shall person the convincing evidence proves by clear and that it is still person sexually violent is still in engage person will substantially probable that if is not continued person acts of sexual violence under this making In a decision care. institutional consider, limitation subsection, may without the court enumeration, the nature and circumstances because of allegation in the basis of the behavior that was , person's petition... commitment] [initial history present condition, mental mental where live, person person will how the will support arrangements himself or herself and what are available to ensure that the person has access to and will participate necessary treatment.... According 980.08(4),
¶ 11. to Wis. Stat. the cir- position having grant cuit court starts in the petition release. The circuit court does grant proves by not have to if the State convincing person clear and evidence that the is still a person substantially violent and that it is probable person engage that the will in acts of sexual violence if the is not continued institutional *7 "Substantially probable" likely care. means "much more than not."5 The statute also forth sets four factors a may along circuit court consider, factors, with other making its determination.
¶ 12. if Thus, the circuit court decides that the State has failed to meet burden, its the circuit court any option: grant does not have It "shall" Brown's petition supervised for release. If the circuit court prove decides, however, that the evidence is sufficient to convincing the State's case clear and evidence, then deny petition. the circuit court must Brown's Having applicable ¶ 13. reviewed the statute, we guidance applicable next examine case law for on the standard of in the review instant case.
¶ 14. The court of
in the instant case
characterized the circuit court's order under Wis. Stat.
980.08(4)
§
discretionary
upheld
as a
decision to be
"ifit
Curiel,
389, 395, 415,
State v.
227 Wis. 2d
was based on legal proper application standards."6 correct agrees appeals, with the court of State discretionary arguing standard of review is predictive nature of the evaluative and consistent with the circuit court must make. the assessment however, that the manda- contends, 16. Brown 980.08(4), directing tory language of Wis. Stat. grant supervised "shall" release unless the court proof, is irreconcilable with State meets its burden discretion the notion that a circuit court exercise its petition it rules on a release. when urges indepen- an that the standard of review is Brown question dent of a of law. The State acknowl- review very edges might that the standard of review well be question of a of law. review bearing Although ¶ 17. several cases have some proper on our decision about the standard of review present provide case, the cases do not careful analysis and in some cases the announced standard of applied. shall examine each of the review is We cases. holding present a circuit In in the case that
court's denial of discretionary release is a decision be reviewed *8 solely appeals v. such, the court of relied on State (Ct. App. Seibert, 308, 314, 220 2d 582 N.W.2d745 Wis. 1998). appellate Seibert, case, like the instant involves denying chapter a 980 review of a circuit court order petition appeals supervised did for release. analyze or the Seibert decision. discuss 6 Brown, Seibert, State v. (citing 16 220 269 Wis. 2d (Ct. 1998)). 308, 314, App. 2d 582 745 Wis. N.W.2d
110 ¶ 19. Seibert, On examination of we conclude that persuasive authority it is not for the use of a discretion- ary standard of review in the instant case. In Seibert the court of announced that the standard of review denying chapter petition for a circuit court order supervised release is the same as that for a circuit placement court's initial determination of in a secure facility facility supervised mental health or other or 980.06(2)(b) (1995-96). release under Wis. Stat. ¶ 20. The sole rationale in the Seibert case is that 980.06(2)(b) 980.08(4) §§ both direct the circuit statutory court to consider enumerated factors in de- termining placement. picked up 21. The Seibert court on the similar
wording of the two statutes but missed difference. § 980.06(2)(b), Under Wis. Stat. after a circuit court or jury person determines that the is a violent person chapter under 980, the circuit court determines placed whether the shall be in institutional care facility in a secure mental health unit or or other facility or on release. The statute enumer- might ates various factors that affect the circuit court's placement. choice of The statute does not establish proof burden of for either the State or person. § 980.08(4),
¶ 22. contrast, In under Wis. Stat. grant petition statute directs the circuit court to places release. The statute a burden on the prove by convincing State to clear evidence that the deny petition. circuit court should If the State fails carry granted. burden, its While plays consideration of the various enumerated factors grant role in the circuit court's decision whether to *9 question a circuit court and release, the reviewing has carried its court is whether State proof. statutory burden Keding, 214
¶ in turn relies on State v. 23. Seibert (Ct. 1997), App. 450 an 363, 367, 2d 571 N.W.2d Wis. placement proposition chapter case, 980 for the initial appropriate placement a determination of the 980.06(2) discretionary § it Stat. is because under Wis. statutory interrelated factors. involves consideration of merely any Keding ¶ cited, 24. in turn without Cook, 2d 194 discussion, State v. 66 Wis. N.W.2d (1974), holding support that a determination for its placement appropriate under Wis. Stat. 980.06(2) discretionary it involved consid- because statutory eration of interrelated factors. is not a 980 case. In 25. State v. Cook being applicable provided
Cook, that after statute guilty by or defect reason of mental disease found may safely prove he had the burden to be the defendant danger discharged to himself or or released without if circuit court is so satisfied the others, and that discharge or on condi- circuit court shall order release necessary. tions as the court determines be Although placed the statute at issue Cook may safely prove on the defendant to that he a burden danger discharged to himself or or released without be accept others,7 the Cook court did not defendant's argument the circuit court's decision must be weight preponderance supported by great and clear of the evidence.8 analogized the cir- Rather, the Cook court under the statute to a circuit
cuit court's decision
(1974).
Cook,
25, 27 n.2,
court's decision and declared the decision discretionary instances, to be a one. In both stated the determining court, Cook the decision involves whether danger the defendant is a to himself or others.9 present Seibert, The statutes case and Cook, which relied on are different than the Cook very significant statute. Cook court considered it that the statute in "satisfied," Cook used word is, the statute stated that the circuit court must be may safely "satisfied" that the defendant be released. It legislature intending viewed the the circuit court's subjective decision about safe release to be and inher- ently discretionary.10 Neither the word "satisfied" nor any "subjective" phrase appears other word or 980.08(4) § governing the instant case and Seibert. not-guilty-by-reason-of-mental-
¶ 29. Unlike the speaks Cook, disease-or-defect statute in which of sat- 980.08(4) isfying speaks court, the circuit Wis. Stat. meeting proof. party the State its burden of a Whether proof appears question has met its burden of to be a law. appeals
¶ 30. The court of in the decision instant only example citing appeals' case is not the of a court of underlying to Seibert without examination cases. appeals Wenk, In a recent case, court of State v. 2001 WI App 6, 714, 417, 248 Wis. 2d 637 N.W.2d appeals applicable court of declared that the standard of denying review for a circuit court's order petition a 980 not-guilty-by- for conditional release of a Cook, Id. at 29. According reviewing a court will sustain if, a circuit court's exercise discretion "on basis expressed, judge record and the rationale we can conclude that a could arrive at the decision in fact reached." Id. at 30.
10 Id. at 29-30.
reason-of-insanity citing committee is unclear. After (but Cook),11 several cases the court of simply conclusory announced, in fashion and without explanation, that it would "reaffirm the standard of recently namely Seibert," review set forth in State v. discretionary standard of review.12 cross-pollenated In sum, the case law is a mish-mash. Seibert declares that the standard of review denying chapter for a circuit court's order release is erroneous exercise of discre- Keding, which, tion. Seibert relies on without discus- significance sion, on relies Cook. Cook loses its when interpreting acknowledges Wenk, statute, CooMike *11 review, confusion about the of standard fails to cite authority. Cook, and turns to Seibert as Yet Seibert in effect efficacy on relies Cook. Under these circumstances the Keding, prece- Seibert, Cook,
of and asWenk persuasive authority dential or that of standard review in the instant case is erroneous exercise of discretion is limited. challenges
¶ 32. Brown the erroneous exercise of argues indepen- discretion standard of review and appellate dent court review Brown on differ- relies two claiming support cases, ent of lines that both his position reviewing independently that a court examines
11
pointed
The State's brief in Wenk
out
that State v.
(Ct.
Gladney,
486,
1984),
120 Wis. 2d
355 N.W.2d
App.
547
and
Gebarski,
754,
v.
(1979),
State
90 Wis. 2d
12 Wenk, 714, State v. 248 2dWis. 6.¶
114 question as a of law whether the State has met its legislatively imposed proof of burden that it is substan- tially probable person engage that the 980 will in acts of sexual violence if the is not continued explain in institutional care. Brown does whether requiring analy- he views lines of cases as different ses. by represented
¶ 33. One line of cases is In re Guardianship Cheryl F., 420, 170 Wis. 2d 489 N.W.2d (Ct. 1992). App. Cheryl disputed the circuit court's appointment guardian person. of a of her The statute placed county by the burden on the to establish clear convincing Cheryl incompet evidence that was Incompetency by ent.13 was defined statute to mean substantially incapable managing property her or caring herself, as determined the circuit court.14 Cheryl
¶ 34. The court of concluded F. particular legal that whether the evidence fufills a namely incompetency ques- standard, case, citing law, DILHR, tion Nottelson v. 2dWis. (1980), questions 116, 287 N.W.2d of law by reviewing are determined deference without citing Leasing Corp. court, to the circuit First National City Madison, 205, 208, v. 81 Wis. 2d 260 N.W.2d251 (1977).15 (and principles Both of these of law the cases them) support oft-repeated cited to have been and are *12 accepted. well 13 F., Guardianship Cheryl In re 420, 170 Wis. 2d
425, 489 N.W.2d(Ct.
1992).
App.
636
14
F.,
Cheryl
115 Although appeals Cheryl ¶ 35. the court of F. question person's incompetency declared the question guardianship proceed- in a law ings, question involving it seems to have treated the sufficiency of evidence.16The court of declared testimony of the witnesses was clear and competent Cheryl evidence that could not care for manage property herself or her this evidence supported the circuit court's conclusion that she was incompetent.17 Watson, 36. Brown also relies on State v. 227 (1999),
Wis. 2d 595 N.W.2d403 in which the court Cheryl F., concluded, as it had in that it would make an independent determination, law, as a matter of whether statutory Watson, the facts met the standard. In statutory probable person's standard was cause that the chapter offense was motivated under 980. The court concluded that the same standard of review applies probable proceedings 980 cause as in probable preliminary a criminal cause examination proceeding: appellate accept An court will the circuit findings they clearly court's fact unless are erroneous but will review de novo whether the facts meet the statutory legal probable standard of cause.18 upon
¶ 37. The second line of cases
which Brown
reviewing
indepen-
relies holds that a
court should
dently
sufficiency
examine the record under a
of evi-
party
dence standard to determine whether a
has met
16
F.,
Cheryl
389, 597 N.W.2d697
Among
sufficiency
of
other
of evidence standard
review.
challenged
challenges,
the circuit court's deter-
Curiel
chapter
violent
mination
he
980
that
was
person.
person
980,
To commit
under
proving beyond
a reasonable
State has the burden
dangerous to others because
that the
doubt
prob-
person's mental disorder creates a substantial
engage
ability
he
in future acts of
or she will
prove
violence,
is,
the State must
that because
19
Inc., 2002
Agency,
cites Poluk v. J.N. Manson
WI
Brown
24,
725,
905,
v.
286,
2d
653 N.W.2d
and State
App
258 Wis.
(Ct.
Wanta,
679, 688,
1999),
App.
592
645
224 Wis. 2d
N.W.2d
sufficiency
of the evidence standard
review.
20
Jones,
565,
226
2d
Property in State v.
Wis.
Return of
Hardiman,
596-97,
(1999);
v.
44 Wis.
Seraphine
Although adopt the court of did not standard, "sufficiency evidence." it referred to of the evidence *14 person's likely disorder, mental it is much more person engage than not that the will in future acts of sexual violence.
¶
Curiel,
In
the court declared that the stan-
appropriate
dard of review
to commitment under ch.
980 is the standard used to review criminal convictions
sufficiency
to determine the
of evidence.22 This stan-
dard of review of criminal convictions has been set forth
appellate
may
An
follows:
court
not reverse a
favorably
conviction unless the evidence, viewed most
proba-
conviction,
the State and
is so
insufficient
tive value and force that it can be said as a matter of law
acting reasonably,
fact,
that no trier of
could have found
guilt beyond a reasonable doubt.23
sufficiency
words,
In other
the test for the
support
denying
the evidence to
the order
Brown su-
pérvised
according
release,
to the State and at least
parts
certain
brief,
of Brown's
is not whether a review-
ing
by
convincing
court is convinced
clear and
evidence
person's petition
that a
release should be
acting reasonably,
denied, but whether a circuit court,
by
right
could be so convinced
evidence it
a
has
accept
credibility
believe and
as true. The
of the wit-
weight
nesses and the
of the evidence are for the circuit
reviewing
court;
court views the evidence most favor-
able to the circuit court's order. If more than one
reasonable inference can be drawn from the evidence,
supports
the inference that
the circuit court's order is
reviewing
adopts.
the one that a
The circuit
22
Kienitz,
See also State v.
423,
20,
227 Wis. 2d
597
(1999)
Curiel).
N.W.2d
(relying
712
on
23Curiel,
¶ 41. The Curiel court Curiel's the standard of review should be two-tiered findings question law, of fact and of fact not with clearly application overturned unless erroneous and the statutory concept question of the facts to a of law independently from conclu- determined a circuit court's sion.25 *15 Although petition 42. Curiel involved for opposed predator to a
commitment of chapter sexual petition supervised release, 980 for and the procedures petition in a used in a for commitment and supervised petition different, for release are we con- independent of of clude that the Curiel standard review of the circuit court's decision on the basis the suffi- ciency for erroneous evidence, of rather than a review appropriate discretion, exercise of in the instant case. appellate The choice of a standard of review depends large extent on a determination strengths comparative appellate courts institutional making particular and and circuit courts in decisions uniformity consistency in circuit court the need for and decisions across the state. 24 State, Curiel, (quoting 2d at 418-19 Gauthier v. 227 Wis. (1965)). 412, 415-16, also
28
2d
¶ 45. Because the of evidence standard provides independent appellate review, it fosters consis- tency uniformity making. and in circuit court decision published appellate legal A decision on a issue serves to guide applying statutory principles courts in facts to consistency uniformity and fosters in circuit courts' case-by-case petitions evaluation of re- lease. Uniformity application
¶ law, of facts to respect reasoning, recognition for circuit courts' advantage evaluating circuit courts' observational *16 goals respect evidence are desirable with on orders petitions for release. These goals likely sufficiency are more to be achieved with the of the evidence standard of review than with an erro- neous exercise of discretion standard of review. Accord- ingly, adopt sufficiency we of evidence standard of reviewing denying review when a circuit court's order petition for release under Wis. Stat. 980.08(4). § apply
¶ 47. We now this standard of review to this case.
HHHH Applying sufficiency ¶ 48. of evidence stan- denying dard of review the circuit court order supervised release, Brown's we conclude hearing the evidence adduced at the was not statutory imposed sufficient to meet the State's burden 980.08(4). by Wis. Stat. agree
¶ 49. We with the court of that "the [circuit] struggled to articulate the exact on basis apparently which it reaches this close call." On our review the evidence we conclude that the circuit likely court's decision that Brown is much more than engage not to in acts of sexual violence if he is not supported by continued institutional care is not convincing evidence sufficient to meet the clear and standard. procedural posture
¶ 50. We first set forth the the case. We then examine the circuit court's review of reasoning. Lastly, the evidence and we examine the sufficiency record under the of evidence standard of review.
A 16-year-old 1988, In a then Brown was adjudicated delinquent sexually assaulting girls. two placed He was at a residential treatment center where he remained until March In he con- 1993 was second-degree victed of sexual assault of a child and forty incest with prison. child and sentenced to months in In Brown of a was convicted sexual assault that occurred in 1990. *17 formally 5, 52. On November 1998 Brown was Ridge under 980 and to Sand
committed moved Secure Treatment Center. April petition In 2002, Brown filed his first supervised appointed Dr.
for release. The circuit court psychologist, Kotkin, Michael a to examine Brown and 980.08(3).26 § report by required file a Dr. Wis. Stat. May prepared 15, 2002, Kotkin examined Brown on August indicating although report 2, on 2002, yet progress, had made treatment he Brown was not ready supervised September for In release. after receiving copy report directly Kotkin, of the from Dr. supervised Brown withdrew his for release. 24, 2002, Warner, 54. On Dr. October David psychologist, report filed a re-examination pursuant with § 980.07, circuit court which Wis. Stat. requires periodic report assessments. The did not rec- outright discharge, ommend Brown's it but stated that "Mr. Brown has reduced his risk for violent point to the behavior he could be considered for a supervised petitioned super- release." Brown then Department vised release. circuit court ordered the Family provide updated of Health and Services to an report explicitly stating department whether the did or actually support supervised did not release for Brown. 980.08(3) provides Wisconsin Stat. part: relevant days receipt petition, appoint Within 20 after the court shall having specialized knowledge one or more examiners deter- appropriate, mined the court to be examine the who shall person report and furnish a written of the examination to the days appointment.... any within after If such examiner appropriate believed that release specified (4), report under the criterion in sub. the examiner shall type person may on the of treatment and services that the need community in the while on release. *18 department 30, 2002, 55. On December filed updated report, supporting supervised release. The report "ha[d] completed stated that Brown sufficient Ridge] [Sand treatment at to reduce his risk for sexu- ally point violent behavior to the that he has an become subject appropriate release." January 20, 2003, 56. On the circuit court held hearing on Brown's release. Dr. Kotkin witness, was not called as a but the circuit court report allowed his to be introduced evidence. Dr. report Kotkin had failed to file the with the circuit court required by request, and, statute at the State's shortly hearing before the case, issue the instant report. the circuit court ordered Dr. Kotkin to file his parties agree report ¶ 57. The that Dr. Kotkin's hearsay disagree report was but whether the ad- was recognized exception hearsay. missible under a to The appeals report court of determined that Dr. Kotkin's § was admissible under Wis. Stat. 908.02 because it was required to be filed with the court under Stat. Wis. 980.08(3). § argues report The State that the is admis- reasoning appeals, sible under the of the court of or as (§ regularly activity 908.03(6)), a record of conducted or (§ 908.03(24)). hearsay disagrees as residual Brown reasoning appeals with the and the State report any hearsay excep- on whether the falls under tion. parties disagree
¶ 58. The also whether the ad- report mission of Dr. Kotkin's resulted in violation of right Brown's constitutional to confrontation or his 980.03(2)(c) § statutory right under Wis. Stat. "[p]resent and cross-examine The witnesses." court of argu- did not consider Brown's confrontation argument amorphous ment because it considered the insufficiently developed. larger hearing issue of the nature of the 980.08(4) § applicability under Stat. and the Wis. fully par- considered rules evidence was ties, and we do not address it. We need not and do not hearsay issues, address the and confrontation because report Dr. Kotkin's does not affect the ultimate decision. agree report with the circuit court that had We limited value because it was based on an interview with prior hearing. By very Brown several months to the its 980.08(4) terms, Stat. evinces the need for a Wis. timely presumably give report, the court an accurate picture petitioner's pro- *19 of the condition. The statute jury, court, vides that "the without a shall hear the days report of within 30 after the the court- appointed . examiner is filed. . ." With or without Dr. report evidence, Kotkin's as admissible the record is support insufficient as a matter of law to the circuit court's order. only
¶ 60. Dr. Warner was the witness called at hearing. opinion Dr. in Warner reiterated stated ready report that his Brown was release. testimony supplemented Dr. Warner's in-court the re- port. opined any supervised Dr. release Warner program including restrictions, for Brown should have supervised setting, anti-depressant "residence in a medication, continued sex offender and substance regular monitoring drug treatment, abuse and with testing polygraph and examinations."27
¶ 61. We turn now to the circuit court's review of reasoning. the evidence and 27Brown, 2d 6. Wis.
B ¶ set We forth circuit court's review reasoning great light in evidence and in detail appeals' court of characterization of the circuit court's reasoning struggle "to articulate the exact basis on apparently which it reaches this close call." explained circuit court its on decision express findings the record. The circuit court made no explicitly of fact and did not make to the reference 980.08(4) factors enumerated as factors a circuit may namely: consider, (1) The nature and circumstances of the behavior allegation was the basis of the commitment petition;
(2) history The person's present mental mental condition;
(3) live; the person Where will
(4) person himself; support How will (5) arrangements What are available to ensure that the necessary has access to and will participate treatment. *20 transcript
¶ is, however, It 64. evident from the that the circuit court had these factors in and mind statutory convincing considered the State's clear and proof. evidence burden began by recognizing
¶ 65. The circuit court difficulty predicting person's a future behavior. The past then circuit court reviewed misbe- Brown's sexual (both community havior in the while and unsupervised) predictive as somewhat of future behav- having ior. The circuit court characterized Brown as "a ages frightening The track record" from 15 20. rather track record as fol- court summarized Brown's circuit lows:
Unfortunately, only have track record we community, in the both while out [Brown] years. supervised, goes back about ten That's a and not 980 cases. But problem Chapter standard sexual —in more with a year problem ten is of a period might fifty-year-old be a thirty-year-old than it with year period, there been a ten but only has because life, and larger segment of the it respondent's it's a that look back to is means that the time frame we can young a juvenile very he a or adult... . a time when was R.110:33.
¶ The court went on to note that 66. circuit period pre-incarceration involved Brown's number degree assaults that "involved material force sexual least took and violence" and that at some of assaults placed place in a residential after Brown had been juveniles. center treatment acknowledged circuit court develop- involve offenses did not considerable Brown's grooming The circuit and of his victims. court ment significant this "common viewed factor as because supervision circuit court that informed the sense" community against protecting more effective in person's if offenses involved preparation grooming planning and and "considerable thought." acknowledged Yet the circuit also pulled up not of who has Brown's behavior is someone and assaulted children. in a car abducted voluntary Zoloft was a con- 69. Brown's use of hearing, Dr. Warner for the court. At the cern circuit prescribed explained to reduce and that the Zoloft was *21 manage Brown's sex drive. The circuit court believed drug may masking problems" that the be "certain and taking any stop drug that Brown could the at time. positive negative aspects Zoloft had both and for the circuit "And court: the concern is to some extent the positive developments may here be related to some- thing may that he do, choose not to al- continue to though suggest it also serves as a consideration to something is that could reduce the risks in the future." family
¶ 70. The circuit on court focused Brown's history, "a source considerable sadness and sorrow and realization that the roots the ... of difficulties and problems may large respect here, and crimes be things that were outside Mr. Brown's own Although outside of his own . . control. ." the circuit history, family family court did not elaborate on the history in the record. Brown's eldest was sister product relationship of an incestuous between Brown's biological mother mother's father. Brown's grandfather maternal molested Brown be- ages parole agent tween the of 11 and 13. As Brown's aptly pathological family, summarized, "His limited learning ability grandfa- and the sexual assaults his negative impact development." have ther made his on family history, according court, to the circuit "tends suggest why things happen reasons these and rea- why present significant he sons continues to risk to community as we look down road." ¶ 71. The circuit court in- viewed actuarial struments, is, the tests done at initial Brown's repeated in thereafter, commitment and not putting edge [but] "on the here Brown ... the instru- suggest ments themselves do not that this defendant is likely going much more than not to re-offend." *22 recognized ¶ Brown's favor- 72. The circuit court stating response Brown treatment, that has to able respon- past years in a treatment addressed "over healthy way, appears apparently and and that sible principal opinion for Dr. that he is basis Warner's be the [Brown's] ready, treatment and investment now and the brought prediction risk this of below in treatment has likely of more than not." the level much report The circuit court also considered previously, prepared Dr. Kotkin had several months according opined, court, Dr. the circuit which Kotkin quite ready moving but toward Brown not is that "is may ready be in the near future." readiness and explicitly of discounted the value Dr. circuit court "[bjecause declaring report, that several Kotkin's gone by evaluation and months that have since that very deciding report, helpful in where Mr. it today . ." Brown is . . recognized that evidence 74. The circuit court track, "Mr. is on a different
demonstrated that Brown . and that he has invested that he had matured. . responsibly in some occa- more treatment with himself setbacks." sional understandable generally weighing ¶ 75. After these comments Brown, circuit favorable to court the evidence as "by convincing concluded that clear and nevertheless yet proper evidence," "is not a candidate for Brown given that, time, at those consider- release and this likely much more not that he ations, it remains than point over the course of the re-offend at some would community." his even while in the rest of life on circuit further elaborated this 76. The supervision summarizing conclusion, extent community. in the The circuit court's Brown would need concluding follows: words were as finding I make this positing what I believe is the supervision reasonable level of can expected, that be expected and it should be of the community, and which includes placements transitional either a group or closely supervised home a setting and which includes regular and regular treatment supervision [Brown's] activities and I posit whereabouts. don't level supervision requires partner. 24-hour If some- that, one needs they ready then are not release, they ready need to be to move to setting periods involves some periods of freedom and some supervision, where there isn't direct I find that *23 ready [Brown] is for that. So the for supervised release is denied. sum, In the circuit court stated that it precommitment
considered Brown's behavior, criminal family history, testimony, his Dr. Warner's the two psychologists' reports, Zoloft, Brown's of use and the suggested supervised of conditions release. only
¶ 78. If this court towere examine the circuit reasoning, court's evaluation the evidence and it would evidence, conclude that the viewed favor- most ably to the State and order, the circuit court's probative insufficient in value as matter law. The circuit court's ultimate seemed conclusion like sur- prise ending marshaling to its the evidence and reasoning.
C urges ¶ 79. The examine State this court to entire record and not to limit itself the evidence sum- by marized the circuit court. points
¶ 80. The Dr. State out that Warner's re- port addendum, which were admitted as evidence court, and considered the circuit classified Brown as personal- suffering pedophilia, abuse, alcohol from (not specified) ity antiso- with otherwise disorder NOS "[rjesearch explained has Dr. cial features. Warner persons develop who deviant sexual demonstrated that early patterns are or adulthood adolescence arousal throughout likely patterns most of their these retain could that the circuit court State asserts lives." reasonably an the fact that Brown was adolescent view young he committed his violent or adult when reduced, increased, rather than conduct as a factor that community. The risk is further to the Brown's risk according State, the as- to the because exacerbated, family strangers. members and both saults involved ending years criminal behavior 81. Brown's weight, ago and is accorded 1992 is troublesome correctly determining argues, whether the State this evidence cannot be has met its burden.28 Yet State ground denying upon an order which the sole basis petition were, if no release, for it then Chapter be 980 would ever individual confined under regardless eligible release, how stellar progress.29 her his or treatment *24 28 980.08(4). § See Wis. Stat.
29 discharge under ch. For both initial commitment com 980, sexually offenses before the past evidence of violent commitment of offense that led to the initial mission that the committee has petition is not sufficient to establish 980.05(4) (initial § commitment Stat. mental disorder. See Wis. (for discharge under trial); petitions 2506 Wis JI —Criminal added): 980.09) (emphasis Stat. Wis. (name) other that committed sexu- Evidence has been submitted committing (identify ally on offense which violent offenses before based). is not to establish is This evidence sufficient (name) you may Before find that has a mental disorder. that 130 ¶ 82. The to State asks this court consider a tele- phone youngest conversation Brown had with his half during sister, he whom had assaulted her child- young hood. She had offered to introduce Brown to adult community. women when he returned to the Brown rejection the offer.Dr. refused Warner saw of Brown's positive.30 argues offer as The State that this conversa- by inappropriate tion can be viewed the circuit court as grounds petition. and as denial of Brown's ¶ 83. The State also asserts that Brown's lack of family support pose when on release would problems. alleged phone In addition to the call from stepfather sister, Brown's half Brown stated that his first (the sisters) biological younger father of Brown's two half up wants Brown locked for the rest of his life. lack This support, poses State, contends the risk reoffense. argues testimony ¶ 84. The State that Dr.Warner's about the actuaríais taken at Brown's initial commit- supports ment the circuit court's order. Actuaríais as- sessed at Brown commitment be in the low-medium to high range of risk to reoffend. Dr. Warner testified that only the actuaríais measured Brown's risk at the time of evaluating commitment and were of no use in his cur- acknowledged rent risk of reoffense. The circuit court suggest that the instruments themselves do not likely is much more Brown than reoffend.31 (name) disorder, you a mental has must so be satisfied to certainty convincing. reasonable evidence that clear 30 suggested Dr. Warner release include a provision allowing only supervised family. Brown visits with his " (ARAs) Actuarial Risk Assessment tests estimate 'risk' aggregate recidivism... based on or Eric group data." S. Prentky, & Janus Robert A. Forensic Use Actuarial Risk Assessment Accuracy, Admissibility With Sex and Ac Offender: (2003). countability, 40 Am. Crim. L. Rev. In other *25 the various treat- The State's brief reviews including participated, in which Brown ment programs was prior years his participation those in which opined that Dr. Warner and emphasizes inadequate, that he has progress, of further capable that Brown is available opportunities the treatment yet exhausted words, the mea- empirically tells us "the actuarial assessment among group sex who a offenders sured rate recidivism subject of the evaluation." of characteristics with share set Id. ARAs
A tool understand that the scales user of this must interpreted reporting risk without consideration "must be at 1481. Id. supervision." treatment or state-of-the-art ARAs, report, opined In Dr. that one his Warner MnSOST-R, the sample group that the indicated offenders who above a thresh- comprising actuarial assessment scored years of of the time within six old number re-offended 70% ARAs, also setting. a secure The other two admin- release from commitment, lower Brown's initial measured upon istered (21.1% 40%) sample groups. rates for their re-offense cannot, however, to testimony Dr. be summarized Warner's (or re-offending Brown has a chance for 21.1% state that 70% chance). to specifically not refer or a actuarial does 40% might any whom the ARAs be Brown or other individual to Prentky Dr. at Professor Janus and administered. Id. using very problem in ARAs in sex offender highlighted this cases: urge language [W]e used to describe the courts control suggest that Both research and commonsense statistical evidence. way way is affects the in which it which risk communicated characteristic, inherently group risk risk is understood. Since group, not to the should be ascribed to the relevant assessments individual defendant. testimony directly a risk [C]ourts ascribes should exclude
the defendant. Id. at 1495-96.
in the institution, and that the research literature is not setting clear that further in treatment a secure will opined further reduce the risk of Dr. recidivism. Warner programs would from Brown benefit treatment in setting community. a secure or in the The State views testimony supporting this as evidence the circuit court denying supervisory order Brown release. despite
¶ 86. The State stresses that Dr. Warner's psychologist conclusions Brown, favorable to the did problems. example, detail group therapy was, Brown for resistant early years
in’the of his commitment. But Dr. Warner traced Brown's successful treatment progress years preceding filing in the two the petition release at issue the instant acknowledged case, and the circuit court treat- Brown's progress. ment urges aspects
¶ 87. The State us to focus on those negative totally that are to Brown's release, ignoring those matters favorable to Brown that circuit court noted. urges In contrast, Brown us to focus on Dr. report.
Warner's favorable But courts are not rubber stamps expert testimony. Neither circuit nor court reviewing required accept expert's court is an ultimate conclusion. may accept reject expert 89. The circuit court or
testimony,32
but
the instant case the extent to which
weighed
expert's opinion
circuit
one
over
weighed parts
expert's reports
other and
of each
is not
any
acceptance
rejection
at issue. Under
variation of
or
experts' opinions
of the two
and factual
de-
matters
32
Kienitz,
v.
State
Wis. 2d
scribed do inferences therefrom not rise dence and reasonable convincing evidence Brown to the level clear likely engage not to in acts of sexual much more than care. if not institutional violence continued urges Brown us to focus on recom- also Family Department of Health and mendation granted supervised release, that Brown be Services although department did file a on 980.08(1). pursuant to Wis. Stat. Brown's behalf *27 stamps 91. But are rubber the courts reviewing department. a a circuit court nor Neither required accept the recommendation the court is to department. hand, court should not 92. On the other a department.
lightly of the dismiss recommendation legislature explained that court has the has This charged custody department the and the with control sexually persons department and thus violent views being position in the to evaluate the various as best placing a committed individual on risks and benefits of explained supervised court the role of the release. The department ¶¶5, 53-54, Morford, State v. 2004 WI 349, 2d as follows: 268 Wis. N.W.2d integral part procedural an of the department The is chapter protections provided to 980 committee Wis. charged chapter department 980. The is with the Stat. person, "custody sexually and of a violent control" 980 committee is institutionalized whether legislature thus views the supervised or on release. being position as in the best to evaluate the department indi- placing and benefits of a committed various risks revoking supervised supervised on release or vidual release. department
It is the that has sufficient experience dealing persons, violent expe- with well as particular rience with individual who been has committed, sound, dispassionate, to make a and unbi- regarding person's ased a committed decision condition. parties' have 93. We reviewed the record and the arguments analyses of the evidence. The State's brief marshaled the evidence unfavorable to Brown's supervised carefully release, and we considered this evidence as the as well evidence favorable Brown and accepted by Simply put, the circuit court. we conclude denying as a matter of law that the circuit court's order supported Brown's release is not convincing evidence sufficient to the clear meet evidence standard.
¶ 94. forth, For reasons set decision appeals court reversed, and we remand the cause to notify Depart- the circuit with instructions to Family ment of Health and it Services that should pursuant court, submit to the circuit Stat. Wis. § 980.08(5), plan for Brown's release.
By *28 the of Court.—The decision the court of is reversed and cause the is remanded to the court. circuit {concurring).
¶ BUTLER, JR., B. 95. LOUIS J. I join majority ¶ the mandate and all but 59 of the opinion agree majority in I this matter. While with the report that Dr. Kotkin's does not affect our ultimate separately decision, I I write reach the because would larger applicability chapters issue of the 911, 901 to hearing otherwise known as the evidence,1 rules at 980.08(4). § under Wis. Stat. See Wis. Stat. § 911.02. points Roggensack in her out As Justice hearsay general agree evidence rule, that as
dissent, we objection is an unless there an over admitted is not Roggensack, J., permits exception admission. its that exceptions the dissenting, to that 114. She notes points may Id. She general statute. established rule be exceptions place for such to look usual that "the out evidentiary governs the basic 908," which Ch. Wis. Stat. hearsay regarding indicates that Id. She evidence. rules provide rules of that the other statutes there are opportunity thereby affording apply, do not evidence points, hearsay Id. On these admitted. evidence to have by looking begin inquiry, agree. however, I would we scope applicability of evi- of the rules first at exception exists an determine whether dence, in order to 980.08(4). § respect to Wis. Stat. with scope provides the Stat. 901.01 Wisconsin specifies general, and evidence of the rules of chapters proceedings "govern in the courts of 901 to 911 provided except 911.01 ss. as of Wisconsin the state 911.01(1) clearly states that Section and 972.11." "apply the state of courts of to the of evidence rules proceedings to the extent in the Wisconsin... except provided in s. 972.11." forth set hereinafter 911.01(2) provides rules of evidence that the Section generally proceedings "apply in civil and criminal to 911.01(4) evi- the rules of lists when actions." Section excep- specified inapplicable.2 there, Unless dence are 2 (4) Chapters INAPPLICABLE. OF EVIDENCE RULES or s. respect privileges than ch. 905 with other 901 to follow admissibility, apply do respect to 901.05 with ing situations: (a) ques- Preliminary questions The determination fact. admissibility preliminary of evidence when
tions of fact 901.14(1). judge by a under s. to be determined issue is
136 applicability tions to the of the rules of evidence do not clearly exist unless set forth elsewhere in the statutes. Nothing chapters exempts in to the applicability proceed- rules evidence ch. 980 ings. governing The rules of evidence include the rules admissibility hearsay evidence. See Wis. Stat. ch. Hearsay except provided by 908. chapter is not admissible as by adopted by
908 or other rules this court or 908.02(2). by Hearsay exceptions statute. Wis. Stat. §§ are identified in Wis. Stat. 908.03-908.045. The pointed any hearsay exceptions dissent has not to admissibility report. would allow for the of Dr. Kotkin's exception Thus, unless 980 creates an to the general regarding applicability rule of the rules of apply govern evidence, the rules of evidence and proceedings. §980.03(2)
¶ 99. Wisconsin. Stat. states that at any hearing chapter, except provided under this 980.09(2)(a) §§ by 980.10, and without limitation subject enumeration, the who is the of a person petition right violent counsel, has to includ- ing appointed right counsel, silent, to remain right present witnesses, cross-examine and the right hearing reporter. to have the recorded a court (b) Jury: proceedings. Proceedings Grand John Doe before
grand juries proceeding. or a John Doe (c) proceedings. Proceedings Miscellaneous for extradition or rendition; sentencing, granting revoking probation, or or issuance warrants, warrants; of arrest criminal summonses and search proceedings 971.14(l)(c); proceedings respect under s. with pretrial except corpus release under ch. 969 where habeas respect provided utilized with to release on or bail as otherwise ch. 969. (d) Proceedings 799, except Small claims actions. under ch. jury trials. *30 discharge exceptions provided govern proceedings, supervised pursuant proceedings release to Wis. not for § 980.08. Stat. proceeding release, the for At grant unless the shall the release
court convincing "proves by and that the clear evidence" state person still and that it engage is still violent person substantially probable the that will if Stat. violence not institutionalized. Wis. acts sexual 980.08(4). produced § words, In other evidence must be by the burden, meet its and state, the which must right cross-examine witnesses. retains the to the hearsay used to circumvent the Inadmissible cannot be person's right against him. to cross-examine witnesses 980.08(4) § nothing in renders There is Wis. Stat. proceeding, inapplicable at rules this of evidence hearsay nothing suggest any and would or create exception report. for Dr. Kotkin's
¶ 101. The court of each the dissent 980.08(3) § requires suggest that because Wis. Stat. professional report to licensed furnish written be to con- court, examination to the it would absurd admissibility provided stat- clude that not was Compare App Brown, 33, 269 Wis. ute. State v. 2004 WI Roggensack, 750, ¶¶ 555; J., with 13-14, 2d 676 N.W.2d dissenting, respectfully disagree. ¶¶ I 115-16. Section 980.08(3) ap- merely procedure for the discusses experts filing pointment their of court and the reports forth, court. with the That section does set exempt, applied to be at the nor proceeding. the rules evidence "may . . the
While consider. history person's present condition,"3 mental mental subject procedure so set Stat. it does forth Wis. 980.08(4) added). § (emphasis Wis. Stat. 980.03(2) nothing and, because 980 indi- hearsay- otherwise, the cates rules of evidence. As no exception report exists that would allow Dr. Kotkin's apply admitted, be and because the rules of evidence during proceedings involving petition release, the trial court should not have considered the report testimony. absent Dr. Kotkin's foregoing respectfully
¶ 102. For the I reasons, concur.
¶ 103. ROGGENSACK, PATIENCE DRAKE J. (dissenting). separately, part, I write I because properly conclude that the trial court admitted and report considered the of Dr. Michael Kotkin, S. even though present testify Kotkin was not to at Richard A. hearing. separately ch. I Brown's 980 also write because majority opinion's I dissent from the reversal of the finding court of decision that affirmed the proved by the circuit court that the State clear and convincing sexually evidence that Brown is still vio- substantially probable lent and that it is still engage that he will in acts of sexual violence if he is not continued in institutional care.
I. BACKGROUND1 Brown, 104. who 23, 1972, was born on March long history has a of sexual assaults that have been perpetrated by young force on victims. He was first sexually assaulting 10-year-old convicted in 1988 of girl, years Apparently, prior when he 16 was old. to that
1 The facts below are taken from the record were available to the circuit court in deciding for its consideration convincing whether State had met its burden clear and evidence.
139 14 and 15 and 1987 when he was conviction, years repeatedly assaulted his three old, he though stepsisters, knew of the as- his mother appropriately In 1990 at saults, intervene. she did not sexually assaulting years age, he convicted of was mentally 13-year-old stepsister, retarded. who his provided treat- Court intervention aggressive sexual behavior followed ment for Brown's stepsister. However, in 1993 the 1990 assault on his age, raped 13-year-old years he he was when runaway; again, perpetrated was this sexual assault prison of force. He was sentenced with use following subsequent In his to that conviction. prison, mandatory he was tried and release date from as a Resource Center committed to the Wisconsin sexually person. He was later transferred violent (Sand Ridge). Ridge Treatment Center Sand Secure petitions one of Brown's This case arises out of supervised release, he filed under Wis. Stat. which 980.08(4) (2001-02).2 hearing petition, Prior to the on Brown's upon propensity *32 commit of sexual violence his acts were release was assessed. Two of those assessments response petition for evidence in to Brown's used as and that of Dr. Michael S. Kotkin release: psychologists E. Both com- that of Dr. David Warner. personal pleted reports after interviews with written August report 2, 2002, is dated and Brown. Kotkin's update 2, 2002, with an as of Warner's is dated October report Kotkin's was ordered December deciding petition court to in on a assist April filed in of 2002. It was release that Brown 2 are to subsequent All references to the Wisconsin Statutes noted. the 2001-02 version unless otherwise statutory prepared of Stat. directive Wis. under 980.08(3). petition super- that Brown withdrew receiving report then Kotkin's and release after vised During petition promptly review. filed the now under peti- proceedings on Brown's second the course of the report could that Kotkin's circuit court ruled tion, the it relevant evi- and the court considered filed, be objection. report hearsay dence, over Brown's Warner's objection. testimony came without and agree- testimony reports were 107. The demonstrating had a consistent that Brown has ment in " diagnosis pedophilia 'recurrent, in- involves, of urges, arousing sexually or be- fantasies, sexual tense activity prepubescent involving awith sexual haviors present for at least six months." are child'... diagnosis personal- of had a consistent Brown also has ity features mental illness has antisocial disorder. This " enduring pattern of inner 'an described as that were markedly experience from deviates and behavior that " 'long expectations of individual's culture'" are] pervasive [that across broad . . and duration'. diag- range personal These and social situations." every place at reaffirmed have been noses beginning done 1998 evaluation with the evaluation, upon prior the State's trial to Brown's person. him as a violent commit part 2002 assess- October As Warner's risk assessment actuarial ment, administered three he "high-risk Wagner in the Brown rated found that tests.3 re-offending" category the MnSOST-R on for sexual can be found testing these devices explanation An Prentky, Forensic Use A. Janus & Robert in: Eric S. Accuracy, Ad with Sex Risk Assessment Actuarial Offenders: Accountability, 40 Am. Crim. L. Rev. missibility and (2003).
diagnostic report explained test. Warner's that least at range 70% of scored in those who that Brown scored years on the MnSOST-R would reoffend within six setting. release from a secured other two tests Warner conducted showed that Brown in a was lower range propensity to reoffend than did report However, MnSOST-R. Warner's also stated that "[r]ecent research has in- demonstrated actuarial types struments are sensitive to different of sexual offending, identifying with the MnSOST-R offenders that have committed sexual assaults on related forceful ages." range (Emphasis or unrelated across a victims added.) report "[r]esearch Warner's also states that has persons develop demonstrated that who deviant sexual patterns early in arousal adolescence or are adulthood likely patterns throughout to retain these most of their diagnosis pedophilia, by lives. Mr. Brown's definition, likely ongoing indicates that he to have an deviant prepubescent pubescent girls." sexual interest notwithstanding negative However, I comments reported opined have above, Warner also that "it would possible manage be Mr. risk for Brown's sex offense community safely supervi- recidivism in the with currently sion and treatment resources available added.) County." (Emphasis Milwaukee ¶ 109. Kotkin reviewed much same informa- very tion Warner, he came but to a different conclu- Although encouraged by begin- sion. he was Brown's ning get involved in treatment he earlier had shunned, Kotkin noted that as late as March participation group process "Richard's lack of contin- ongoing problem." ues to be identified as an He also weighed history ongoing problems mental Brown's family with his as factors that him caused to conclude ready that Brown was not release. *34 testimony, all of the court heard ¶ The circuit 110. reports the it, considered available reviewed length pedophilia, of time and the Brown's nature sexually be- deviant had exhibited Brown over which recent treat- Brown's court also reviewed havior. The appar- drug prescription Zoloft, which ment with thinking ently from some of his him to shift had caused sexually concerns, matters to other oriented at Zoloft choose to discontinue Brown could fact that yet any had not that Brown The court noted time. completed to him at that was available all treatment Ridge. had noted that Warner The court also Sand opinion release was his conditioned appropriate The court extensive, on detailed conditions. proven by clear the State had found that then sexually convincing Brown was still evidence that substantially prob- person still and that it was violent engage if he of sexual violence in acts that he would able in institutional care. not remain did EVIDENCE II. OF THE SUFFICIENCY of review A. Standard that has been an item of evidence 111. Whether properly
objected hearsay admitted is was to as question without deference law that we review App Joyner, 250, 16, v. 2002 WI court. State circuit 249, 2d 653 N.W.2d 258 Wis. sufficiency of the evidence review We finding that Brown was still the circuit court's it was still substan- and that violent engage
tially probable in acts sexual he would to review the we use the same standard under violence sufficiency v. conviction. State a criminal of evidence for (1999). As Curiel, 417, 2d 597 N.W.2d 227 Wis. explained, required
we have we are not to be convinced proof only that the sufficient, was that a reasonable proof trier of fact could find the sufficient. Id. at 418-19.
B. Review trial court decision report
1. Admission of Kotkin *35 objected ¶ 113. Brown to the admission of the report hearsay. Kotkin as The circuit court overruled objection statutory by his because the scheme set out legislature proceedings. the for ch. 980 The court of analyzed report legislative also the in terms of applicable petitions directives that are to § my release conducted under Wis. Stat. 980.08. In view, analysis report that is the correct and therefore, the properly was admitted. agree general hearsay 114. All that as a rule, objection,
evidence not is admitted over an unless there exception permits is an Exceptions that its admission. inadmissibility hearsay may to the by be established County, statute. See R.S. v. Milwaukee 197, Wis. 2d (1991). place 204-07, 470 N.W.2d260 The usual to look exceptions for such is 908, Wis. Stat. ch. which defines explains evidentiary relating the basic rules to the hearsay. admission of that However, is not the only place statutory exceptions where to the usual hearsay many rules are found. There are other statutes provide apply, that the rules of evidence do not thereby affording opportunity hearsay to have Accordingly, evidence admitted.4 it is reasonable to 4 For example, the rules of evidence do apply in small 799.209(2) actions, claims § Wis. Stat. (2003-04), in contested 227.45(1) hearings case § under ch. (2003-04), Wis. Stat. or § provides to see it an examine Stat. 980.08 if Wis. regarding exception usual the admission of to the rules hearsay, as well. report prepared at here at 115. Kotkin issue By filing petition for of the court. directive statutory
supervised release, Brown set motion the report filing its resulted in Kotkin's directives that otherwise, court. Stated once with the required is a circuit to filed, release court is having specialized "appoint or more examiners one petitioner knowledge" examination of the to conduct an petitioner's propensity to reoffend. Wis. assess 980.08(3). completed, § the examination is Stat. When required report the examiner is to "furnish written Id. the circuit the examination the court." When petition, statute to court rules on the it directed up petitioner's all evidence that makes consider 980.08(4). history. report prepared mental Section 980.08(3) § having "filed under is referred to been 980.08(4). report is filed, Once the with the court" petitioner's history part the court it is a of a mental *36 to See id. is consider. statutory my out in view, In the scheme set conducting
regard preparing examination, such a to an filing report with court, it the when combined and with obligation petitioner's a mental the to consider court's report exception history, to the to be an causes Kotkin's hearsay. admissibility general regarding To rules the very report cannot the then conclude that the court use required required to it is to obtain and the examiner is commission, Wis. Stat. proceedings in before a condemnation 32.08(6)(a) (2003-04), reduce, hearing grant, in a to § and release, informa- or revoke condition increase rules Wis. Stat. need not conform to the of evidence. tion offered (2003-04). 969.08(8) § court, to the furnish makes no sense. some While may that the and common say law sense are not necessarily view, in synonyms, my should not they strangers. be Accordingly, I conclude the report Kotkin was properly admitted, to statutory the pursuant exception provided 980.08(3) (4). for Wis. § in Stat.
2. Evidence submitted 117. A petition release is re- viewed whether according proof to the was sufficient the under terms established the in by legislature Wis. 980.08(4).5 § Stat. It provides:
(4) court, jury, without a shall peti- hear the . grant tion .. petition [and] shall the the state unless proves convincing person clear and that evidence the is violent person still and that it is still substantially probable person engage that the in will acts sexual violence if the is not person continued in making institutional care. In a decision under this subsection, consider, may the court limitation without enumeration, because of the nature and circumstances of the behavior that allegation was the basis 980.02(2)(a), s. under the person's mental history present condition, mental person where the live, will how the person support will himself or herself arrangements and what are available to ensure that person necessary has access and will participate treatment, including pharmacological using treatment antiandrogen an or the equivalent chemical of an antiandrogen person if the sex is serious child of- 980.08(4) Wisconsin Stat. was revised in 2003-04 so that the required prove only statutes State is "it is still likely that the person engage will in acts of sexual if violence person care," continued being institutional rather than it substantially probable will so act unless his or *37 her 187, § institutionalization is 2003 continued. Wis. Act
146 on a petition A under this fender. decision subsection may by a is a serious child sex offender person filed who fact is a person proper made on the that the not be based using an antian- subject pharmacological treatment equivalent antiandrogen of an or drogen or the chemical willing participate the fact that the on antiandrogen or the using treatment an pharmacological equivalent antiandrogen. an chemical of challenge sufficiency of the 118. On a to the evidence, all that the circuit court evidence was before light most decision is reviewed the favorable for its Poellinger, 501, v. 153 Wis. 2d the State. See State (1990). specifically Curiel, re In we N.W.2d 752 jected that a a de novo standard of review stated "substantially prob it of whether was determination proposed is a that the committee would reoffend able" Curiel, question fact of fact to determine. of for the trier explained when 2d at 418 n.9. We also that 227 Wis. testing sufficiency evidence, of the we must affirm fact, no of circuit court unless finder the decision acting reasonably, find the defendant was could substantially probable to commit future acts sexual at Id. 418-19. violence. testimony in one It is not volume evi- whether the or another that determines
direction Accordingly, was sufficient. See id. at 419-20. dence sufficiency examining do evidence, we when reweigh pieces probative value of various support- only evidence evidence; rather, it is when the " 'inherently patently ing trier of decision is or fact's judgment our incredible'" that we will substitute (quoting v. trier of fact. Id. at 420 Gauthier that of the (1965)). State, 412, 416, 28 Wis. 2d 137 N.W.2d Additionally, explained "inherently or have we
patently
type
incredible
is
evidence
that
of evidence
fully
which conflicts with
or
nature
established or con
(citing Day
Curiel,
ceded
at
facts."
227 Wis. 2d
418-19
v.
(1979)).
State,
400,
2d
Wis.
N.W.2d666
opinion
majority
agrees
¶ 120. The
that Curiel
yet
ignores
standard,
sets the
it
all the directives of
reweighs
Curiel
does a de
and
novo review wherein it
up
finding
the evidence and comes with its own
of fact.
Majority op.,
example,
¶ 93. For
in
nowhere
the record
implied,
diagnosis
is it
or
stated,
even
that Brown's
pedophilia
changed
long history
has been
or that his
reliability
predicting
sexual violence has no
his
propensity to
commit acts
sexual violence in the
majority says
Instead,
future.
it
that
"is trouble-
weight."
op.,
Majority
some
accorded
81. The
opinion
majority
ignores Brown's score on the
diagnostic
accurately
MnSOST-R, the
test that most
predicts
persons
future acts of sexual violence
those
who
used
have
violence
their
assaults,
sexual
Brown has. Brown's test result
that
showed
there is a
probability
upon
70%
that Brown would reoffend
re-
majority opinion ignores
Instead,
lease.
these test
results
relies on
Brown's
on two
scores
tests that
are less reliable for
sex
violent
offenders like Brown.
Majority op.,
majority
opinion
84. The
does not
testimony
concern
with the
Kotkin,
itself
who ad-
against releasing
Majority op., ¶
vised
Brown.
59. It
ignores
report, except
por-
also
most of Warner's
that
says
"possible"
tion
he
where
it is
that Brown could be
added.)
(Emphasis
maintained
release.
finally,
majority
opinion
121. And
does not
inherently
conclude that the circuit court relied on
or
patently
Yet,
incredible evidence.
is the
test we
overturning
finding
have
established
of a circuit
proceeding. Curiel,
court in a ch. 980
227 Wis. 2d at
As
Kienitz,
418-20.
this court stated in State v.
227 Wis.
(1999),
423, 434-35,
2d