In re Martin

• Decision Date: 11 September 2019
• Docket Number: No. 18-0854,18-0854
• Parties: IN RE the DETENTION OF Andrew Henry MARTIN, Andrew Henry Martin, Respondent-Appellant.
• Court: Iowa Court of Appeals

939 N.W.2d 660 (Table)

IN RE the DETENTION OF Andrew Henry MARTIN,

Andrew Henry Martin, Respondent-Appellant.

No. 18-0854

Court of Appeals of Iowa.

Filed September 11, 2019

Jill Eimermann of State Public Defender’s Office, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee State.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

VAITHESWARAN, Presiding Judge.

Andrew Martin appeals a district court order adjudicating him a sexually violent predator (SVP) and committing him to the custody of the department of human services for control. He contends (A) he was not convicted of a sexually violent offense and (B) he did not commit a recent overt act, both predicates for the adjudication. We granted the State’s petition for rehearing. This opinion replaces our August 21, 2019 opinion.

I. Background Facts and Proceedings

In 2012, Martin pled guilty to sexual exploitation of a minor based on possession of child pornography. See Iowa Code § 728.12(3) (2011). The district court sentenced him to a prison term not exceeding two years, suspended the term, and placed him on probation. The court also imposed a special sentence requiring supervision as if under parole for a period of ten years. See id. § 903B.2. His special sentence parole began in March 2014.

In early 2015, an administrative parole judge revoked Martin’s special parole based on events in late December 2014. Twenty-one months later, the State filed a petition to have Martin declared an SVP under Iowa Code chapter 229A (2016). The State alleged Martin "suffer[ed] from at least one mental abnormality" that "predispos[ed] him to commit sexually violent offenses to a degree constituting a menace to the health and safety of others." The State further alleged Martin was "presently confined ... for a sexually violent offense" and had committed a "recent overt act."

The district court found probable cause to believe Martin was an SVP. The court later denied his two motions to dismiss the proceedings. Following a bench trial, the court adjudicated Martin an SVP and ordered civil commitment. Martin appealed.

II. Discussion

A "sexually violent predator" is defined as "a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility." Id. § 229A.2(12). A "mental abnormality" is "a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others." Id. § 229A.2(6). A person is "likely to engage in predatory acts of sexual violence" if "the person more likely than not will engage in acts of a sexually violent nature." Id. § 229A.2(5). In assessing this factor, the statute makes a distinction between persons who are confined and "not confined." Id. ; see also id. § 229A.4 (providing certain criteria to begin proceedings to commit "a person presently confined" and separate criteria to begin proceedings to commit "a person who has committed a recent overt act"); In re Det. of Wygle , 910 N.W.2d 599, 608 (Iowa 2018) ("Section 4 provides a two-track approach to SVP commitment."). Specifically, "[i]f a person is not confined at the time that a petition is filed, a person is ‘likely to engage in predatory acts of sexual violence’ only if the person commits a recent overt act." Iowa Code § 229A.2(5).

After trial, the State filed a supplemental brief withdrawing "its reliance on" the "presently confined" option for commitment. The State sought a decision only under the "recent overt act" track. See Wygle , 910 N.W.2d at 619 ("[W]e conclude that a person who has completely discharged the sentence for the underlying sexual crime and is serving a special sentence under Iowa Code chapter 903B is not ‘presently confined’ for the purposes of Iowa Code section 229A.4(1).").¹ Under that track, the State may "file a petition alleging that a person is [an SVP] and stating sufficient facts to support such an allegation, if it appears that a person ... committed a recent overt act" and "was convicted of a sexually violent offense and has been discharged after the completion of the sentence imposed for the offense."² See Iowa Code § 229A.4(2)(a).

A. Sexually Violent Offense

Iowa Code section 229A.2(11) lists several crimes that are automatically deemed "sexually violent offenses." See id. § 229A.2(11)(a)–(f). The statute also contains a catch-all provision defining a "sexually violent offense" as "[a]ny act which, either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to [chapter 229A], has been determined beyond a reasonable doubt to have been sexually motivated." Id. § 229A.2(11)(g). Under this provision, " ‘[s]exually motivated’ means that one of the purposes for commission of a crime is the purpose of sexual gratification of the perpetrator of the crime." Id. § 229A.2(10).

The offense to which Martin pled guilty—sexual exploitation of a minor based on possession of child pornography—was not an enumerated sexually violent offense.³ Accordingly, the crime had to fall within the catch-all provision to trigger chapter 229A.

Following the SVP trial, the district court found the crime was sexually motivated. The court reasoned: "Martin was convicted for possessing child pornography that he had downloaded from the internet for masturbation purposes and clearly meets the definition of an offense which occurred for sexual gratification and accordingly qualifies as a sexually motivated offense." Substantial evidence supports the court’s finding. See In re Det. of Altman , 723 N.W.2d 181, 184 (Iowa 2006) (setting forth standard of review). Specifically, Martin testified as follows:

Q. Did you save additional child pornography files? A. Yes.

Q. Overall, do you know how many? A. Overall, roughly 15.

Q. Did you use those later to masturbate? A. Yes ....

Q. What’s your age range of victims? A. They range from four years old to roughly [sixteen].

Q. In one interview you discussed a pornography video you used often to masturbate to that involved a child around the age of four or six; is that right? A. Yes.

Q. And what did that involve? A. It involved her performing oral sex on an adult male.

See In re Det. of May , No. 12-0798, 2013 WL 4506323, at *2 (Iowa Ct. App. Aug. 21, 2013) (concluding "child endangerment offenses contained a component that was sexually motivated"); In re Det. of Blaise , No. 07-0188, 2009 WL 1066767, at *4 (Iowa Ct. App. Apr. 22, 2009) (finding sufficient evidence that conviction for first-degree harassment was for respondent’s "sexual gratification and thus sexually motivated"). Based on Martin’s testimony, we affirm the finding that Martin committed a sexually violent offense.

B. Recent Overt Act

A "recent overt act" is "any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm." Iowa Code § 229A.2(8). "Commitment of a nonconfined person absent a ‘recent overt act’ showing would ‘raise serious constitutional issues.’ " In re Det. of Stenzel , 827 N.W.2d 690, 697 (Iowa 2013) (quoting In re Det. of Gonzales , 658 N.W.2d 102, 105 (Iowa 2003) ).

" ‘Recent’ is not defined in the statute." Gonzales , 658 N.W.2d at 103. A finding of a "recent overt act" involves "an objective assessment based on all the surrounding circumstances." In re Det. of Swanson , 668 N.W.2d 570, 576 (Iowa 2003). The key question is "whether a past act of sexual violence has become too stale to serve as a predictor of future acts of a similar nature," a determination which "is not a precise task." In re Det. of Willis , 691 N.W.2d 726, 729 (Iowa 2005). The acts triggering the SVP petition were committed in late 2014, the State revoked Martin’s special parole within three months of the acts, and the State filed its SVP petition shortly before Martin’s special sentence was to be discharged. Although twenty-three months elapsed between the "recent overt acts" and the filing of the petition, that timeframe is virtually identical to the timeframe in In re Detention of Tripp , 915 N.W.2d 867, 869 (Iowa 2018), where the apparent passage of close to two years from the "recent" overt act to the filing of the SVP petition was not a factor considered by the court. Indeed, the procedural posture there was virtually identical to the procedural posture here: an administrative parole judge revoked Tripp’s section 903B.2 release in late 2013, and the State filed an SVP petition "before [he] was discharged from his two year incarceration under Iowa Code section 903B.2." Id. Based on Tripp , we conclude the twenty-three month lapse of time between the acts on which the parole revocation was predicated and the filing of the State’s petition did not render the acts stale. Cf. In re L.H. , 890 N.W.2d 333, 341 (Iowa Ct. App. 2016) (concluding in an appeal from an involuntary civil commitment order under Iowa Code chapter 229 that "[t]he record before us does not include substantial evidence of a recent overt act, attempt, or threat. The last overt act occurred in February 2015, nearly one year before L.H.’s placement review").

The district court found a recent overt act, reasoning as follows:

Martin’s 903B supervision was revoked in 2014 for multiple violations, which included a continued sexual preoccupation regarding children and a total inability to recognize inappropriate behavior when it comes to children, such as showering with his own children, which allowed contact between his young children and Martin’s penis. A review of [State’s] Exhibit 5 and the evidence at trial as a whole

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