Commitment of Kienitz, In re

Decision Date30 July 1998
Docket NumberNo. 97-1460,97-1460
Citation221 Wis.2d 275,585 N.W.2d 609
PartiesIn re the COMMITMENT OF Peter KIENITZ. STATE of Wisconsin, Plaintiff-Respondent, v. Peter KIENITZ, Defendant-Appellant. d
CourtWisconsin Court of Appeals

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Mary E. Burke, Assistant Attorney General.

Before EICH, C.J., VERGERONT and ROGGENSACK, JJ.

VERGERONT, Judge.

Peter Kienitz appeals from an order committing him to a secure mental health facility as a sexually violent person under Chapter 980, STATS. After a trial to the court, the court determined that Kienitz had been convicted of a sexually violent offense and is dangerous because he suffers from a mental disorder, pedophilia, which makes it substantially probable that he will engage in acts of sexual violence. 1 Kienitz contends that "substantially probable" means an "extreme likelihood" and the evidence does not support the trial court's determination that it is substantially probable beyond a reasonable doubt that he will engage in acts of sexual violence. If the evidence is sufficient, Kienitz contends, the statute is unconstitutional as applied to him because it is too imprecise to satisfy due process. Finally, Kienitz argues that the State denied him his Fifth Amendment right to remain silent by presenting testimony that he refused to be interviewed by the State's experts.

We conclude that "substantially probable" means "considerably more likely to occur than not to occur," and that the evidence is sufficient to support the trial court's determination. We also conclude there is no merit to Kienitz's constitutional challenge. We do not address the Fifth Amendment issue because we conclude that Kienitz waived this issue by not raising it in the trial court. We therefore affirm.

BACKGROUND 2

The evidence of Kienitz's criminal history shows he was convicted of indecent behavior with a child in 1963, and sentenced to ten-years' probation with psychiatric treatment. In 1966, he was found in violation of the terms of probation because he was molesting young boys and was confined in the Wisconsin State Prison for an indefinite term. He was discharged in 1973. In November 1977, he was convicted of first-degree sexual assault with boys and was sentenced in February 1978 to a commitment to the Department of Health and Social Services under § 975.06, STATS., and five-years' probation. His probation was revoked in 1980 when he was arrested on charges of sexually assaulting two boys under the age of thirteen. He was convicted of second-degree sexual assault on those charges. 3 He was sentenced to an indeterminate term in prison, not to exceed eight years, and was confined in the Mendota Mental Health Institute most of that time. He was conditionally released from Mendota in March 1988, and was supervised by Probation Agent Sandra Reno.

Reno testified at trial as follows. Among other rules of Kienitz's supervision, he was to have no contact with minors, was to report any such incidental contact immediately and was to report all employment to her. After a few months, she learned from another source that he had a job at a bicycle shop that was frequented by children. In the past, Kienitz had asked parents and children to accompany him on bicycle trips, and, after gaining the parents' confidence, would try to see the children alone. The sexual assault for which he was convicted in 1977 occurred when he lured a child to his house saying he was going to help repair the child's bicycle. A search conducted of his house in 1988 turned up a knife, which violated a rule against possessing a knife; a picture of parents and their two boys whom he accompanied on a bicycle trip; another roll of film he had taken of a very young child; and a list of names and addresses and phone numbers, some of children, including a fifteen-year-old boy whom Kienitz had invited to his house on three occasions to look at computer equipment and bicycles he was repairing. Six pieces of rope were found in a backpack in Kienitz's car, and that was considered significant because in the 1963 offense and in two of the three offenses that occurred between 1979 and 1980, he tied the boys up. Based on the physical evidence and the information discovered in this search, Kienitz's supervision was revoked on April 16, 1988. Kienitz was returned to Mendota with a mandatory release date of October 4, 1995.

Sandy Collins, a psychiatric nurse at Mendota, testified to Kienitz's angry and uncooperative behavior toward other patients and to the staff. She also described two incidents that occurred in December 1994: Kienitz received in the mail material considered pornographic depicting minors and, on another date, a magazine called "Family Fun," a craft magazine with many pictures of young children, a few of which might be considered provocative to a person with a sexual attraction to children. In another incident in May 1995, Kienitz attempted to send out some computer diskettes that the labels indicated were for use by the recipient's two children. When the staff questioned him on the contents, he demanded the diskettes and they were given back to him.

The State presented two expert witnesses, Donald Irwin, Ph.D., director of psychology at the Winnebago Mental Health Institution, and Ronald Sindberg, Ph.D., a psychologist at Mendota. The defense presented Michael Caldwell, Ph.D., a psychologist also employed at Mendota. All three agreed that Kienitz had the mental disorder of pedophilia. The State's experts opined that this mental disorder creates a substantial probability that Kienitz will engage in future acts of sexual violence, but Dr. Caldwell disagreed, testifying that there was only a fifty-fifty chance that Kienitz would do so. The experts reviewed Kienitz's correctional, psychiatric and institutional records, but only Dr. Caldwell interviewed Kienitz because Kienitz did not wish to speak to the other two.

Dr. Irwin described the methodology he used to form his opinion of the probability that Kienitz will engage in future acts of sexual violence. He reviewed research literature on predicting sexual violence and recidivism of sexual offenders and applied the factors predictive of recidivism from the research actuarial data to Kienitz, based on his review of Kienitz's records. Dr. Irwin explained that he made a clinical judgment as to which factors were the most important, because not all the factors were equally strong as predictors. Dr. Irwin testified that he weighed the predictive factors Kienitz possessed against those he did not posses and, in Dr. Irwin's opinion, the former far outweighed the latter. By "substantial probability," Dr. Irwin testified he meant "greater than more likely than not."

Dr. Irwin testified that, in addition to pedophilia, Kienitz was diagnosed with a personality disorder, NOS (not otherwise specified). He viewed Kienitz's personality disorder as significant because, in Dr. Irwin's opinion, pedophilia was a disorder that could not be cured but could be controlled if the person was willing to acknowledge the addiction and learn to control it. Kienitz was unwilling to do that because of his personality disorder, which was characterized by a person being a loner, manipulative, unwilling to conform to social expectations, angry and provocative.

Dr. Irwin also used the violence risk assessment guide (VRAG), which was also used by Dr. Caldwell, Kienitz's expert. The VRAG predicts recidivism for sex crimes as well as violent non-sex crimes. Dr. Irwin determined that under the VRAG, Kienitz was in the range of individuals who had a recidivism rate of 44% in a seven-year follow-up period and 58% in a ten-year follow-up period. In Dr. Irwin's methodology, the VRAG score was integrated with the clinical information to arrive at a professional opinion. Dr. Irwin testified that, following the recommended procedure for VRAG, he would increase the probability percentage of the VRAG score for Kienitz by at least 10%.

Dr. Sindberg used a methodology similar to Dr. Irwin's. He reviewed the research literature on the risk factors predictive of future sexually violent acts, determined which applied to Kienitz, and then considered Kienitz's participation in treatment. Dr. Sindberg acknowledged that there were some errors in an article compiling risk factors that he reviewed. He described his methodology as using actuarial data as an "anchor," and then using clinical judgment to add to that or alter that. He testified that no test or studies had been done to verify the accuracy of his method.

Dr. Sindberg testified that Kienitz had sixteen out of thirty-one risk factors. Based on the records he reviewed, Dr. Sindberg testified that Kienitz refused and avoided individual therapy and therapy groups related to sexual offenses, but participated to some extent in other therapy. In Dr. Sindberg's view, Kienitz had shown little, if any, treatment progress relevant to sexual offenses that might counteract the danger suggested by the presence of the risk factors. However, on cross-examination, Dr. Sindberg acknowledged that Kienitz participated in treatment programs that he had not known about, some appropriate for treating pedophilia.

Dr. Caldwell's testimony criticized the methodology used by Dr. Irwin and Dr. Sindberg to predict Kienitz's probability for future acts of sexual violence. He testified that in Dr. Irwin's and Dr. Sindberg's methodology there is no formal process for weighing the various factors correlated with recidivism and for determining the overlap among the factors and their interactions with each other; rather, they rely on clinical...

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