Commitment of Zanelli, In re

• Decision Date: 08 December 1998
• Docket Number: No. 98-0733,98-0733
• Citation: 589 N.W.2d 687,223 Wis.2d 545
• Parties: In re the COMMITMENT OF Ronald J. ZANELLI. State of Wisconsin, Petitioner-Respondent, v. Ronald J. Zanelli, Respondent-Appellant. d
• Court: Wisconsin Court of Appeals

Page 687

589 N.W.2d 687

223 Wis.2d 545

In re the COMMITMENT OF Ronald J. ZANELLI.

State of Wisconsin, Petitioner-Respondent, v. Ronald J. Zanelli, Respondent-Appellant. ^d

No. 98-0733.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 16, 1998.

Opinion Released Dec. 8, 1998.

Opinion Filed Dec. 8, 1998.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Jane Krueger Smith of Oconto Falls.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, Sally L. Wellman, assistant attorney general, and Barbara L. Oswald, assistant attorney general.

Before CANE, C.J., MYSE, P.J., and HOOVER, J.

CANE, C.J.

Ronald Zanelli appeals from an order, following a jury trial, requiring his civil commitment as a sexually violent person under ch. 980, STATS. Zanelli raises four arguments in this, his second appeal. First, he claims that the evidence was insufficient as a matter of law to support a diagnosis of pedophilia because he did not meet the diagnostic criteria for pedophilia in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS § 302.2 at 527-28 (4th ed. 1994) (DSM-IV). As a result, he asserts, his constitutional rights to notice and confrontation were violated. We reject these arguments because there was sufficient evidence for a reasonable jury to find beyond a reasonable doubt that Zanelli suffers from a mental disorder. Second, Zanelli asserts that the trial court erred by failing to give a jury instruction defining "substantial probability." This second argument fails under State v. Zanelli, 212 Wis.2d 358, 374-76, 569 N.W.2d 301, 308 (Ct.App.1997) (Zanelli I ), in which we held that the trial court is not required to define substantial probability.

Third, he argues that the trial court erroneously exercised its discretion when it released information from the presentence investigation files under § 972.15(4), STATS. We reject this argument because although the trial court did not set forth its reasoning when it weighed the factors we directed it to consider on remand, the record supports the trial court's determination. Finally, Zanelli contends that his statements to his probation officers and a police officer were inadmissible. Because his statements to his probation officers were not incriminating and because he was not "in custody" when he gave a statement to police, we reject his argument. Accordingly, we affirm the trial court's commitment order.

I. PROCEDURAL BACKGROUND

This is Zanelli's second appeal arising from the same fact situation. In 1992, Zanelli was convicted of two counts of sexual contact with a child contrary to § 948.02(2), STATS. Zanelli I, 212 Wis.2d at 364, 569 N.W.2d at 304. The State filed a petition under ch. 980, STATS., alleging that Zanelli had a mental disorder, pedophilia, and was dangerous because his pedophilia created a substantial probability of future sexual violence. Id. Pursuant to § 980.04(2), STATS., the court held a probable cause hearing and found probable cause to believe Zanelli was sexually violent. Zanelli's first trial ended in a hung jury. Id. At his second trial, the jury found him sexually violent, and he was committed. Id. at 365, 569 N.W.2d at 304.

In Zanelli I, we reversed his judgment of commitment and ordered a new trial because we concluded that, under § 980.05(1m), STATS., comments by an expert and the State concerning Zanelli's refusal to be interviewed violated his right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Zanelli I, 212 Wis.2d at 363, 369-70, 569 N.W.2d at 303, 306. At his third trial, the one at issue here, a jury again determined that he was sexually violent, and the trial court ordered him committed. Zanelli then filed this second appeal challenging his commitment order. We will set forth additional facts as necessary.

II. ANALYSIS

1. Sufficiency of the Evidence

Zanelli first argues that the evidence was insufficient as a matter of law to support a diagnosis of pedophilia, the alleged mental disorder under ch. 980, STATS., because the State failed to prove beyond a reasonable doubt that he met all the diagnostic criteria for pedophilia in DSM-IV § 302.2. The State responds that it was the jury's province to evaluate the credibility and reliability of the experts who testified that Zanelli suffers from pedophilia. We agree with the State and conclude that a reasonable jury could conclude beyond a reasonable doubt that Zanelli suffers from pedophilia, a mental disorder under § 980.01(2), STATS.

The standard of review for a challenge to a verdict based on the sufficiency of evidence in a ch. 980, STATS., case is as follows:

[W]e reverse only if the evidence viewed in the light most favorable to the verdict is so insufficient in probative value and force that it can be said as a matter of law that no reasonable trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.

State v. Kienitz, 221 Wis.2d 275, 301, 585 N.W.2d 609, 619 (Ct.App.1998), rev. granted. Although Zanelli characterizes this issue as one of sufficiency of the evidence, he neither sets forth the standard of review nor applies it to the facts. With this omission, Zanelli attempts to argue that the evidence was insufficient because due process requires an objective standard for adjudication, here DSM-IV. We will first address whether the evidence was insufficient under the proper standard of review and then address his due process argument.

At trial, the State had the burden of proving that Zanelli had a mental disorder and was dangerous to others because his pedophilia created a substantial probability of future sexual violence. See § 980.05(3)(a), STATS. A mental disorder "means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." Section 980.01(2), STATS. A sexually violent person is one "who has been convicted of a sexually violent offense and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." Section 980.01(7), STATS.

The State's psychologists, Drs. Susan Curran and Ronald Sindberg, both offered testimony that, to a reasonable degree of psychological certainty, Zanelli suffers from pedophilia, a mental disorder in DSM-IV. They further testified that pedophilia fits the ch. 980, STATS., definition of a mental disorder and that Zanelli indeed poses a risk of future sexual violence. To support their opinions, the experts addressed the following three DSM-IV diagnostic criteria for pedophilia:

A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger).

B. The fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

C. The person is at least age 16 years and at least 5 years older than the child or children in Criterion A.

DSM-IV § 302.2 at 528 (emphasis added).

To reach her diagnosis, Curran relied on evidence of Zanelli's sexual contact with a fifteen-year-old boy and prepubescent boys. Further, this contact did not occur over a consecutive six-month period, but in 1977 and December of 1991 to January of 1992. Curran testified that DSM-IV encourages practitioners not to take a literal approach to the criteria because of variance among individuals and the need to "maintain some flexibility in order to capture the patterns and the essence of the disorder." In keeping with a flexible approach, Curran explained that in her opinion, DSM-IV does not require that the conduct occur over a consecutive six-month period, just "over a period of at least six months." Likewise, Sindberg testified that DSM-IV's drafting committee intended six months to refer "not to a block of six months in one continuous sequence, but the overall picture," and that Zanelli meets this criteria. Further, as the State points out, Curran offered the opinion that "prepubescent" does not have a mandatory age requirement. Zanelli insists that without literal compliance with all three factors, the evidence is insufficient as a matter of law.

The evidence was sufficient for a reasonable jury to conclude that Zanelli suffers from pedophilia. Because the jury determines the weight, credibility, and reliability of expert testimony, it was entitled to accept the experts' diagnosis of pedophilia. See Kienitz, 221 Wis.2d at 306-07, 585 N.W.2d at 622. Further, it heard additional evidence to support the diagnosis. The jury heard Zanelli's statements describing his sexual conduct with ten- and eleven-year-old boys. In addition, the jury heard evidence that the walls of Zanelli's studio apartment where the 1991-92 assaults occurred were covered with numerous pictures of young men, perhaps pre-teen, engaged in sexual conduct. Further, a police report reflects that Zanelli expressed a sexual preference for young boys about twelve years old. This evidence was sufficient for the jury to find beyond a reasonable doubt that Zanelli has a mental disorder under § 980.01(2), STATS.

Zanelli cites State v. Post, 197 Wis.2d 279, 310-11, 541 N.W.2d 115, 125 (1995), for the proposition that the experts were not entitled to use their clinical judgment to diagnose him with pedophilia. Rather, he argues that Post requires literal compliance with DSM-IV's "mandatory" criteria. Nothing in Post supports this reading; in fact, Post urges against such a broad reading:

It is important to stress that definitions [in ch. 980], serve a legal, not medical, function. Even the primary tool of clinical diagnosis in the psychiatric field, the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), warns of a...