In re Commitment of Combs, 2005AP859.

• Citation: 2006 WI App 137,720 N.W.2d 684
• Decision Date: 29 June 2006
• Docket Number: No. 2005AP859.,2005AP859.
• Parties: In re the COMMITMENT OF Christopher L. COMBS. State of Wisconsin, Petitioner-Respondent, v. Christopher L. Combs, Respondent-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Court of Appeals of Wisconsin

Page 684

720 N.W.2d 684

2006 WI App 137

In re the COMMITMENT OF Christopher L. COMBS State of Wisconsin, Petitioner-Respondent, v. Christopher L. Combs, Respondent-Appellant.^†

No. 2005AP859.

Court of Appeals of Wisconsin.

Submitted on Briefs October 11, 2005.

Opinion Filed June 29, 2006.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven D. Phillips, asst. public defender, Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Warren D. Weinstein, asst. attorney general, and Peggy A. Lautenschlager, attorney general.

Before LUNDSTEN, P.J., VERGERONT, HIGGINBOTHAM, JJ.

¶ 1 VERGERONT, J

Christopher L. Combs, previously committed as a sexually violent person under WIS. STAT. ch. 980, appeals an order denying his petition for discharge. The circuit court held a probable cause hearing pursuant to WIS. STAT. § 980.09(2)(a)¹ and determined that the re-examination report opining that Combs was not a sexually violent person did not show probable cause to believe that he was no longer a sexually violent person. We agree with the circuit court that the opinion did not establish probable cause because it was based on historical facts, actuarial instruments, and theories of interpreting those instruments that were considered by the experts testifying at the commitment trial. The opinion did not depend upon any fact or professional knowledge or research that was not considered by the experts testifying at the commitment trial. We therefore conclude the report was not sufficient to establish probable cause that Combs no longer was a sexually violent person. See § 980.09(2).² Accordingly, the circuit court properly denied Combs' discharge petition without an evidentiary hearing, and we affirm.

BACKGROUND

I. Commitment Trial

¶ 2 In 1992, Combs was convicted of having sexual intercourse by use of force or violence as a repeat offender in violation of WIS. STAT. §§ 940.225(2)(a) (1991) and 939.62(1)(b) (1991); he was sentenced to thirteen years imprisonment. Shortly before Combs was to be released in April 2000, the State petitioned the court to commit him as a sexually violent person under WIS. STAT. ch. 980. A sexually violent person under WIS. STAT. § 980.01(7) (1997-98), the version of the statute on which the State relied in the petition, is:³

a person 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.

¶ 3 At the May 2001 jury trial on the petition, three psychologists—Dr. Christopher Tyre, Dr. Patricia Coffey, and Dr. Caton Roberts—gave their opinions on whether it was substantially probable, or much more likely than not, that Combs would commit future acts of sexual violence if released.⁴ All three opined that Combs had a mental disorder within the meaning of WIS. STAT. § 980.01(2) (1997-98).⁵ As relevant to this appeal, each diagnosed Combs with anti-social personality disorder (ASPD), and Dr. Tyre, in addition, diagnosed Combs as having paraphilia not otherwise specified.⁶ Dr. Tyre opined that, to a reasonable degree of professional certainty, it was substantially probable that Combs would engage in acts of sexual violence; both Dr. Coffey and Dr. Roberts opined that they could not conclude to the requisite degree of certainty that it was much more likely than not that Combs would engage in acts of sexual violence.

¶ 4 In evaluating the likelihood of Combs engaging in future acts of sexual violence, all three experts used actuarial instruments. These are statistical research-based instruments that are created using data obtained by studying various factors associated with recidivism in groups of people who were convicted for sexual offenses, released, and followed over time. All three experts used: the Rapid Risk Assessment for Sex Offender Recidivism (RRASOR), a four-item scale that considers prior sex offenses, current age, victim gender, and relationship to victim; the Static-99, which considers those factors as well as a broader category of criminal offenses and whether the individual is "single" as defined in the instrument; and the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), which considers prior sex offenses and other factors based on the individual's life before the current offense as well as factors based on events occurring during institutionalization.⁷

¶ 5 Dr. Tyre scored Combs as a four on the RRASOR and a "six slash seven slash eight" on the Static-99, depending on how he calculated certain events, while both Dr. Coffey and Dr. Roberts scored Combs as a three on the RRASOR and a five on the Static-99. The scores on these instruments are associated with a particular percentage of persons who are reconvicted of a sexually violent offense within a particular number of years, and each expert explained what those were, given the scores of each. The higher the score, the greater the risk.

¶ 6 The trial testimony explored some of the differences in the methods of scoring that led to the difference in scores. One of the differences was that Dr. Tyre counted as "convictions" incidents that resulted in sanctions or consequences but not in convictions or adjudications, while Dr. Coffey and Dr. Roberts disagreed with this practice. Based on their understanding of how these instruments had been validated, these two experts counted only incidents that resulted in convictions and adjudications.⁸

¶ 7 In addition to their scores on the actuarial instruments, all three experts considered other events and other behavior of Combs in evaluating the risk that he would engage in acts of sexual violence. Furthermore, each considered their diagnoses of Combs in evaluating that risk. For example, Dr. Tyre testified that risk assessment research shows that people who have a combination of paraphilia and ASPD are the highest risk individual. In contrast, Dr. Coffey, besides disagreeing that Combs had paraphilia, did not agree that the combination of paraphilia and ASPD, by itself, meant a high risk. In her view, the degree of psychopathy, as measured by the Hare Psychopathy Checklist (PCL-R), was a critical factor, and she concluded Combs did not have a high degree of psychopathy according to this instrument.

¶ 8 Based on the testimony of these experts and the other evidence, the jury found Combs was a sexually violent person and the circuit court committed Combs to the custody of Department of Health and Family Services (DHFS).

II. 2004 Re-Examination

¶ 9 In April 2004, Dr. James Harasymiw examined Combs as part of a periodic re-examination required by WISCONSIN STAT. § 980.07(1)⁹ and prepared a report. Like the three trial experts, Dr. Harasymiw diagnosed Combs as having ASPD and concluded this was a mental disorder under WIS. STAT. ch 980 that predisposed Combs to engage in acts of sexual violence. Like Dr. Coffey and Dr. Roberts, he did not give Combs a diagnosis of paraphilia.

¶ 10 Next, Dr. Harasymiw calculated Combs' score on the RRASOR as a three, calculated his score on the Static-99 as a six, and found Combs had a high degree of psychopathy as measured by the PCL-R. Dr. Harasymiw concluded Combs had a high risk for recidivism based on his having a combination of a high degree of psychopathy, a high-risk score on the Static-99, and an ASPD diagnosis. Based on his diagnosis and the scores on the actuarial instruments, which Dr. Harasymiw described as "historically-based," he concluded "to a reasonable degree of professional certainty that Mr. Combs still meets criteria for commitment under Chapter 980."

¶ 11 Dr. Harasymiw then assessed Combs with regard to certain "dynamic" characteristics: (1) illegal sexual interests and/or sexual pre-occupation; (2) attitudes that justify offending; (3) social/emotional functioning; and, (4) self-management. While Dr. Harasymiw concluded that Combs had made progress in three of these categories, that progress did not alter Dr. Harasymiw's opinion based on the "historically-based" considerations. Dr. Harasymiw concluded that Combs "still represent[ed a] substantial probability to commit another sexually violent offense," and had "not made sufficient progress for the court to consider supervised release or discharge."

¶ 12 Combs did not affirmatively waive his right to petition for discharge under WIS. STAT. § 980.09(2)(a)¹⁰ and he exercised his right to request that the circuit court appoint a qualified professional to examine him. See WIS. STAT. §§ 980.07(1) and 980.03(4). The circuit court appointed Dr. Sheila Fields. Dr. Fields filed a report in August 2004 in which she concluded that she "[did] not believe to a reasonable degree of psychological certainty that Mr. Combs is more likely than not to commit additional sexually violent acts if discharged," and "the preponderance of data ... suggest that Mr. Combs' sexually violent recidivism risks most likely do not reach threshold levels necessary for commitment under Chapter 980 criteria."

¶ 13 In arriving at her conclusion, Dr. Fields, like Dr. Harasymiw, reviewed Combs' DOC files, including previous WIS. STAT. ch. 980 examinations, and interviewed Combs. Like Dr. Harasymiw, Dr. Coffey, and Dr. Roberts, Dr. Fields diagnosed Combs as having ASPD but not paraphilia. Like Dr. Coffey, and unlike Dr. Harasymiw, the score she gave Combs on the PCL-R did not, in her opinion, magnify risks beyond those already associated with ASPD.

¶ 14 Dr. Fields scored Combs as a two on the RRASOR and a four on the Static-99. She explained that, while "some other [WIS. STAT. ch. 980] evaluators" had included Combs' juvenile sexual misconduct, she did not do so because there were no adjudications. She acknowledged that he did receive significant punishments for those incidents, but she did not view the punishments as the equivalent of adjudications. She noted that "the norms for these...