Sexually Violent Persons — jury instructions

Listen to this article

Wisconsin Court of Appeals

Criminal

Sexually Violent Persons — jury instructions

Read as a whole, WIS JI—CRIMINAL 2502 provides an accurate recitation of the law regarding finding an individual to be a sexually violent person under Chapter 980.

“To determine whether the deficiencies in the challenged jury instruction could mislead a jury, as Phillips posits, the jury instruction must be read as a whole. Wille, 299 Wis. 2d 531, ¶23. We agree with the circuit court that all three elements of WIS. STAT. § 980.01 were present in the jury instruction provided to the jury in this case. Significantly, the instruction on the dangerousness element required the jury to find that Phillips is ‘dangerous to others because he has a mental disorder which makes it more likely than not that he will engage in one or more future acts of sexual violence.’ Accordingly, the instruction on ‘dangerousness’ reinforces the initial explanation of ‘mental disorder’ in the previous element; i.e., that under WIS. STAT. § 980.01, a mental disorder is one that causes serious difficulty in controlling behavior. See Laxton, 254 Wis. 2d 185, ¶¶17-21. As the Laxton court noted, reading the instruction as a whole creates the nexus between the mental disorder and the likelihood of reoffending. Id., ¶27. It provides the means by which the jury can distinguish ‘a dangerous sexual offender who has serious difficulty controlling his behavior, from the dangerous but typical recidivist.’ Id.”

“Furthermore, the dangerousness instruction not only clarifies the instruction on the ‘mental disorder’ element, it also stands alone as a separate requirement that the jury find that Phillips has serious difficulty in controlling his behavior. In other words, even if the wording of the ‘mental disorder’ instruction, viewed in isolation, has the potential to mislead a jury, the instruction on the dangerousness element unequivocally requires a finding that the person has a mental disorder that makes it more likely than not that he will reoffend. Accordingly, when read as a whole, we conclude that WIS JI—CRIMINAL 2502 makes clear that for a jury to find that Phillips is a sexually violent person, it must have made the required connection between Phillips’ mental disorder and his ability to control his behavior. See Laxton, 254 Wis. 2d 185, ¶¶20-21.”

Affirmed.

Recommended for publication in the official reports.

2010AP1490 State v. Phillips

Dist. IV, Columbia County, George, J., Higginbotham, J.

Attorneys: For Appellant: Grunder, Steven D., Madison; For Respondent: Kohlwey, Jane E., Portage; O’Brien, Daniel J., Madison