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2010AP658 State v. Sanders

By: WISCONSIN LAW JOURNAL STAFF//August 23, 2011//

2010AP658 State v. Sanders

By: WISCONSIN LAW JOURNAL STAFF//August 23, 2011//

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Sexually Violent Persons
Jury instructions

Contradictory jury instructions do not entitle a person committed as a sexually violent person to a new trial.

“As we have seen, two sentences in what the circuit court told the jury are contradictory: (1) ‘Mental disorder means a condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence and causes serious difficulty in controlling behavior.’ (Emphasis added.) (2) ‘Not all persons with a mental disorder are predisposed to commit sexually violent offenses or have serious difficulty in controlling behavior.’ As noted earlier, the italicized part of the first sentence tracks WIS. STAT. § 980.01(2) (‘“Mental disorder” means a … condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.’). The second sentence, although contradictory, gives a needed escape hatch because it recognizes that not all mentally ill persons are fixated on sexually violent behavior and have serious difficulty in not acting on that fixation. Thus, the second sentence helped Sanders. It made clear that although the statute defined ‘mental illness’ as something that “predisposes a person to engage in acts of sexual violence,” Sanders’s mental illness alone was not sufficient for the jury to find that he was a sexually violent person. Sanders thus has not shown how the inconsistency prevented the ‘real controversy’ (whether as a result of his paraphilia and antisocial personality disorder, he was a sexually violent person) from being ‘fully tried.’ Simply put, the instruction did not prevent him from arguing that his present mental illness did not make him more likely than not to commit further crimes of sexual violence if he were not committed, especially because the circuit court told the jury that Sanders’s mental illness had to cause him ‘serious difficulty’ in controlling his behavior. Indeed, his two expert witnesses so testified.”
Affirmed.

Recommended for publication in the official reports.

2010AP658 State v. Sanders

Dist. I, Milwaukee County, Kremers, J., Fine, J.

Attorneys: For Appellant: Henak, Ellen, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

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