98-3107 In Re: the Commitment of Ronald G. Sorensen

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“However, we remand the case for a determination whether it was fundamentally unfair to apply the doctrine at his trial and with directions that the court consider the fifth factor set out by the court in Michelle T. v. Crozier, 173 Wis. 2d 681 (1993), i.e. whether there are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair. …”

“Consequently, we cannot conclude from the record before us that no reasonable trial court would have allowed the State to use Sorenson’s 1985 conviction to prove that he assaulted his daughter. We therefore remand for a determination on that issue. If the trial court concludes that the application of issue preclusion was improper, the judgment will remain reversed and Sorenson must be given a new Chapter 980 trial. If the trial court concludes that the application of issue preclusion was proper, it shall reinstate the judgment.”

Judgment reversed and cause remanded with directions.

Recommended for publication in the official reports.

CONCURRING IN PART AND DISSENTING IN PART: Dykman, J. “I agree with the majority that the judgment in this matter should be reversed. But I would remand for a trial at which Sorenson would be permitted to introduce evidence of the victim’s recantation. The jury could then weigh that testimony, Sorenson’s possible testimony, and the testimony of the other witnesses to determine whether it was substantially probable that Sorenson would engage in acts of sexual violence in the future.”

Dist IV, Juneau County, Brady, J., Lundsten, J.

Attorneys:

For Appellant: T. Christopher Kelly, Madison

For Respondent: Dennis C. Schuh, Mauston; Warren D. Weinstein, Madison