In re the commitment of Hung Nam Tran
| Decision Date | 30 March 2011 |
| Docket Number | Cir. Ct. No. 2004CI3,Appeal No. 2008AP340,Appeal No. 2010AP329,Appeal No. 2008AP2528 |
| Parties | In re the commitment of Hung Nam Tran: State of Wisconsin, Petitioner-Respondent, v. Hung Nam Tran, Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
APPEAL from orders of the circuit court for Racine County: BRUCE E. SCHROEDER, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Anderson, J. ¶1 PER CURIAM. Hung Nam Tran appeals pro se from orders committing him as a sexually violent person, denying his post commitment motion and denying his petition for discharge from commitment. Tran raises a plethora of challenges to his original commitment and the subsequent proceedings.1 None of his arguments persuades us. We affirm all three orders.
¶2 Tran was convicted in 1992 of first-degree sexual assault of a child. In November 2004, as Tran approached the end of his prison term, the State petitioned to commit him as a sexually violent person under WIS. STAT. § 980.02 (2003-04).2 Department of Corrections (DOC) psychologist Dr. Anthony Jurek diagnosed Tran with a mental disorder—pedophilia, sexually attracted to males— and made a provisional diagnosis of Personality Disorder Not Otherwise Specified (NOS) with Anti-Social and Narcissistic Features. Tran represented himself at the May 2007 trial. The jury found that he met the criteria for commitment as a sexually violent person. The court committed Tran to the custody of the then-named Department of Health and Family Services (DHFS), which committed him to institutional care.
¶3 Tran filed a pro se notice of appeal from the order of commitment. Circumstances not essential to the determination of this appeal resulted in Tran's appeal of the commitment being remanded to the trial court for post commitment proceedings. In the meantime, in August 2008, Tran filed a pro se petition for discharge from commitment. The court denied it without a hearing and Tran appealed. In April 2009, Tran filed his motion in the trial court for post commitment relief. The court denied the motion and Tran appealed from that order. This court ultimately consolidated the three appeals. Tran now asks that we vacate his commitment order and/or grant a new trial.
¶4 For Tran to be committed as a sexually violent person, the State had to prove beyond a reasonable doubt that Tran (1) has been convicted of a sexually violent offense; (2) was within ninety days of discharge or release when the petition was filed; (3) has a mental disorder; and (4) is dangerous because his mental disorder makes it more likely than not that he will engage in future sexual violence. See Wis. Stat. §§ 980.01(1m), 980.02(2) and 980.05(3)(a) (2003-04).
¶5 We first consider whether the evidence was sufficient to support the verdict. The sufficiency of the evidence in a Wis. Stat. ch. 980 case is reviewed under the standard applicable to criminal convictions—that is, whether the evidence viewed most favorably to the State "is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found [it more likely than not that the person would commit at least one future sexually violent offense] beyond a reasonable doubt." State v. Curiel, 227 Wis. 2d 389, 416-17, 597 N.W.2d 697 (1999) (quoting State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990)). If any possibility exists that the evidence adduced at trial permitted the jury to find to the requisite degree that Tran was a sexually violent person, we may not overturn the verdict even if we would not have so found. See Poellinger, 153 Wis. 2d at 507.
¶6 The State introduced Tran's 1992 judgment of conviction for first-degree sexual assault of a child, contrary to WIS. STAT. § 948.02(1), a sexually violent offense, see WIS. STAT. § 980.01(6), and established that it filed its petition ten days before Tran's mandatory release date. Evidence also was adduced, through the testimony of a police officer who investigated some of the assaults and an attorney who had prosecuted his juvenile case, that Tran admitted molesting several boys ages four to eight and was "grooming" two other boys, ages five and seven. Two of Tran's victims, now grown, testified about the nature of the assaults. Prison psychologist Linda Nauth testified that she evaluated Tran's need for sex offender treatment when he first was incarcerated. She described Tran's sexually assaultive behavior as "compulsive and repetitive," making him an appropriate candidate for the more intensive treatment program. She testified that Tran was disruptive in and unmotivated for treatment; that he repeatedly was terminated from treatment and/or refused to participate in it; that he "sexualized" his prison roommate; and that he passed letters to a teenaged male Wisconsin Resource Center (WRC) inmate, an act perceived by staff as grooming behavior and which also was prohibited contact between a prisoner and a patient.3Dr. Jurek testified that offenders with male-oriented pedophilia pose a higher risk of reoffense than the actuarial instruments reflect and opined that Tran is more likely than not to engage in future acts of sexual violence. We conclude that the evidence adduced at trial was sufficient to permit a reasonable jury to find to the requisite degree of certainty that Tran was a sexually violent person.
¶7 Tran next fires a volley of attacks, a mix of facial and as-applied challenges, against the constitutionality of Wis. Stat. ch. 980. We first note that ch. 980 has withstood rigorous constitutional scrutiny. See State v. Carpenter, 197 Wis. 2d 252, 263-72, 541 N.W.2d 105 (1995), and State v. Post, 197 Wis. 2d 279, 301-31, 541 N.W.2d 115 (1995). However, we review de novo whether a statute is constitutional. Post, 197 Wis. 2d at 301. We presume that all legislative enactments are constitutional, and resolve doubts in favor of the statute's constitutionality. State v. Laxton, 2002 WI 82, ¶8, 254 Wis. 2d 185, 647 N.W.2d 784. The challenger bears the burden of proving the statute unconstitutional beyond a reasonable doubt. Id.
¶8 Tran first contends he had no notice of the probable cause hearing. He claims the hearing was held on November 24, 2004, just a day after his defense attorneys were appointed, such that they had no opportunity to "marshal facts or prepare a defense." In reality, his attorneys requested an adjournment on November 24 to afford them sufficient time to prepare. Tran expressly and voluntarily waived the statutory time frame. See Wis. Stat. § 980.04(2).
¶9 We read Tran's next complaint to be that he has a due process right to bail or another alternative to pretrial commitment. The cases he cites do not support that proposition, however. Moreover, Tran was afforded a hearing on his temporary detention and a jury trial on his commitment.
¶10 Tran next contends, correctly, that he was entitled to have the facts impartially determined. See State v. Jefferson, 163 Wis. 2d 332, 337-38, 471 N.W.2d 274 (Ct. App. 1991). He intimates, however, that Nauth and Dr. Jurek were not neutral fact finders. The argument's premise is flawed. The fact finders were not the psychologists but the judge at the probable cause hearing and the jury at his commitment trial. Indeed, the jury was free to accept or reject portions or all of any expert's opinion. See State v. Harrell, 2008 WI App 37, ¶41, 308 Wis. 2d 166, 747 N.W.2d 770. Furthermore, Tran points to nothing suggesting that either entity was biased.
¶11 Tran next challenges the admission through other witnesses of "prejudicial hearsay" from statements made by a victim's mother, prison officials, the presentence investigation writer and in psychiatric reports. A party waives any objection to the admissibility of evidence by failing to object before the trial court. See State v. Mayer, 220 Wis. 2d 419, 430, 583 N.W.2d 430 (Ct. App. 1998). There is an exception to the waiver rule for plain error. See Wis. Stat. § 901.03(4). Tran does not assert that he either objected at trial or that the admission of the alleged hearsay was plain error.
¶12 A petition alleging that a person is sexually violent must allege that the person is dangerous. Wis. Stat. § 980.02(2)(c). Tran asserts that "dangerousness" implies the need to allege a recent overt act and that due process requires it. This court already has rejected a substantive due process challenge to the definition of dangerousness. See State v. Nelson, 2007 WI App 2, ¶¶9-18, 298 Wis. 2d 453, 727 N.W.2d 364. Further, the State need not establish a recent overt act to demonstrate probable cause of dangerousness of an offender incarcerated when the petition is filed. See Carpenter, 197 Wis. 2d at 275-76.
¶13 In a related challenge, Tran argues that Wis. Stat. ch. 980 offends due process because it permits a prediction of dangerousness without requiring a finding of a specific type of conduct the person will engage in or the likelihood that he or she will engage in it.
¶14 Predicting an offender's dangerousness under Wis. Stat. ch. 980 obliges the fact finder to examine the offender's past actions, relevant character traits and patterns of behavior, including his or her behavior while incarcerated, and then to make a determination as to whether the person's current mental condition predisposes him or her to commit another sexually violent act. State v. Bush, 2005 WI 103, ¶¶33, 37, 283 Wis. 2d 90, 699 N.W.2d 80. We accord particular deference to reasonable legislative judgments in the mental health arena. See Post, 197 Wis. 2d at 311. It is...
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