In re the Commitment of Herbert O. Richard:State

• Decision Date: 27 April 2011
• Docket Number: No. 2010AP1188.,2010AP1188.
• Citation: 2011 WI App 66,799 N.W.2d 509,333 Wis.2d 708
• Parties: In re The Commitment of Herbert O. RICHARD:State of Wisconsin, Petitioner–Respondent,v.Herbert O. Richard, Respondent–Appellant.
• Court: Wisconsin Court of Appeals

333 Wis.2d 708
799 N.W.2d 509
2011 WI App 66

In re The Commitment of Herbert O. RICHARD:State of Wisconsin, Petitioner–Respondent,
v.
Herbert O. Richard, Respondent–Appellant.

No. 2010AP1188.

Court of Appeals of Wisconsin.

Submitted on Briefs March 16, 2011.Opinion Filed April 27, 2011.

[799 N.W.2d 510]

On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven D. Grunder, assistant state public defender of Madison.On behalf of the petitioner-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and J.B. Van Hollen, attorney general.Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.REILLY, J.

[333 Wis.2d 710] Herbert O. Richard appeals from a circuit court order denying his petition for discharge from his commitment as a sexually violent person under Wis. Stat. ch. 980 (2009–10).¹ The sole basis for Richard's petition for discharge is a research paper written by several psychologists who argue that sex offenders are less likely to commit further acts of sexual violence as they get older. The circuit court ruled that the research paper, standing alone, was not evidence that Richard's condition had changed such that he was no longer in need of commitment. The court denied Richard's petition without granting him a discharge hearing. We agree with the circuit court and hold that a research paper is not sufficient evidence to demonstrate that a sex offender's condition has changed. The order of the circuit court is affirmed.

FACTS

¶ 2 Richard has a long history of committing sexual assault. In 1977 he was convicted of fourth-degree[333 Wis.2d 711] sexual assault after he snuck into a woman's bedroom and attempted to rape her. Six years later he was convicted of false imprisonment of a ten-year-old girl. Richard stipulated that the victim did not report that she was also sexually assaulted by Richard because Richard threatened to kill her father if she reported the assault. In 1986, after Richard had escaped from prison, he

[799 N.W.2d 511]

abducted and sexually assaulted a nine-year-old girl. Richard was subsequently convicted of first-degree sexual assault and sentenced to two thirty-year prison terms.

¶ 3 As Richard's mandatory prison release date approached, the State filed a Wis. Stat. ch. 980 petition to have Richard committed as a sexually violent person. In a ch. 980 proceeding, the State must prove beyond a reasonable doubt that the offender is a sexually violent person. Wis. Stat. § 980.05(3). “ ‘Sexually violent person’ means 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 likely that the person will engage in one or more acts of sexual violence.” Wis. Stat. § 980.01(7). “Likely” means “more likely than not,” which means that the offender is more than 50% likely to commit another sexually violent offense. State v. Smalley, 2007 WI App 219, ¶¶ 3, 10, 305 Wis.2d 709, 741 N.W.2d 286.

¶ 4 At Richard's Wis. Stat. ch. 980 trial, two psychologists—Janet Hill and Richard Elwood—testified that Richard is a pedophile with personality disorder. Hill also diagnosed Richard with “paraphilia.” Both psychologists reached the conclusion that Richard was more likely than not to commit another act of sexual violence.

¶ 5 Hill and Elwood each utilized three actuarial tests to assess whether Richard was likely to commit [333 Wis.2d 712] another act of sexual violence. The first test that Hill administered was the Rapid Risk Assessment of Sex Offense Recidivism test (RRASOR), which Richard scored a three on. Hill testified that of the individuals who score a three on this test, 48% of them are reconvicted of another sexually violent offense within seventeen years. Additionally, Hill administered a Static–99 test to Richard. Richard scored an eight on this test. Hill testified that the developers of the Static–99 test lump all individuals who score between six and ten into the same risk category, and that 52% of the members of this cohort were reconvicted of another sexual offense within fifteen years. Finally, Hill administered a Minnesota Sex Offender Screening Tool—Revised test (MnSOST–R). Richard scored a twelve on this test, and Hill testified that 54% of sex offenders who scored between eight and twelve were rearrested for another sexual offense within six years. Elwood also gave Richard the same scores on the RRASOR, Static–99, and MnSOST–R tests.

¶ 6 In addition to the actuarial tests, the psychologists relied on other factors as well in reaching their conclusion that Richard was more likely than not to commit another act of sexual violence. For example, Elwood noted that Richard was a sexual deviant, that he previously violated the terms of his supervision, that he did not complete sex offender treatment, and that Richard's last crime was an impulsive act. Hill looked at other factors as well.

¶ 7 A jury subsequently found that Richard was a sexually violent person and the circuit court entered an order committing Richard to the Department of Health and Family Services for control, care, and treatment until Richard is no longer a sexually violent person.

[333 Wis.2d 713] In October 2009, Richard filed a petition for discharge on the grounds that his condition changed and that he was no longer a sexually violent person. The basis for Richard's petition was a research paper written by the developers of the Static–99 test arguing that the test should be revised to reflect the lower probability of older sex offenders committing another offense. Under the new scoring system, Richard alleges that he would score a seven instead of an eight on the Static–99 test, and that the likelihood of him committing another sexually violent offense, according

[799 N.W.2d 512]

to the revised test, would decrease.

¶ 9 The circuit court dismissed the petition without holding a hearing. The court ruled that Richard's petition did not allege any new facts to show that his condition changed; rather, Richard...