State v. Curiel

• Decision Date: 02 July 1999
• Docket Number: No. 97-1337.,97-1337.
• Citation: 227 Wis.2d 389,597 N.W.2d 697
• Parties: IN RE the COMMITMENT OF Frank CURIEL: STATE of Wisconsin, Petitioner-Respondent, v. Frank CURIEL, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

227 Wis.2d 389

597 N.W.2d 697

IN RE the COMMITMENT OF Frank CURIEL:

STATE of Wisconsin, Petitioner-Respondent, v. Frank CURIEL, Respondent-Appellant-Petitioner.

No. 97-1337.

Supreme Court of Wisconsin.

Oral argument May 4, 1999.

Decided July 2, 1999.

For the respondent-appellant-petitioner there were briefs by Jack C. Hoag and Sedor & Hoag, Janesville and oral argument by Jack C. Hoag.

For the petitioner-respondent the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DONALD W. STEINMETZ, J.

The petitioner, Frank Curiel, seeks review of an unpublished decision of the court of appeals¹ which upheld a verdict and commitment order of the Circuit Court for Milwaukee County, the Honorable Jeffrey A. Kremers. The circuit court found Curiel to be a sexually violent person under Wis. Stat. ch. 980 (1995-96)² and ordered his commitment.

¶ 2. We are presented with the following issues for our review ¶ 3. 1) What is the proper interpretation of "substantially probable" as the term is used in Wis. Stat. ch. 980? We hold that "substantially probable," construed according to its common and appropriate usage, means "much more likely than not."

¶ 4. 2) Is a person's right to equal protection violated where a finding of dangerousness under Wis. Stat. ch. 980 does not require that the risk that the person will engage in sexual violence is to a degree of "extreme likelihood?" We hold that the standards for dangerousness under ch. 980 do not violate equal protection.

¶ 5. 3) Is the term "substantially probable" as used to determine whether a defendant is dangerous under Wis. Stat. ch. 980 unconstitutionally vague? We hold that the term "substantially probable," when construed according to its common and appropriate usage to mean "much more likely than not," is not unconstitutionally vague.

¶ 6. 4) Whether the proper standard of review to apply to a challenge to the sufficiency of the evidence in a Wis. Stat. ch. 980 proceeding is that used in criminal or civil cases. We hold that appellate court review of challenges to the sufficiency of the evidence in ch. 980 proceedings should be that standard applied in criminal cases.

¶ 7. 5) Is the verdict of the court supported by the evidence? We hold that the evidence adduced at trial was sufficient to support the commitment of the defendant under Wis. Stat. ch. 980.

I

¶ 8. In 1989, Frank Curiel (Curiel) was convicted of second degree sexual assault in violation of Wis. Stat. § 940.225(2)(e) (1985-86) and was sentenced to prison for a term of six years. Prior to his scheduled release, the State petitioned for his commitment under ch. 980, which governs the civil commitment of sexually violent persons. The State satisfied the circuit court that Curiel was eligible for commitment and, following a number of adjournments, a trial to the court was held on December 2, 1996.³

¶ 9. The only disputed issue at trial was whether it was substantially probable that Curiel would engage in future acts of sexual violence.⁴ Both witnesses for the State testified that, to a reasonable degree of psychological certainty, it was substantially probable that Curiel would engage in future acts of sexual violence. The one witness for the defense testified that it was not. None of the witnesses, however, used the same working definition of "substantially probable" in reaching their conclusions.

¶ 10. The State called Dr. Frederick Waddell (Waddell), a psychologist with the Kettle Moraine Correctional Institution, as its first witness. Waddell testified that he had concluded to a reasonable degree of psychological certainty that Curiel suffered from the mental disorder known as pedophilia and that it was substantially probable that because of the disorder Curiel would engage in future acts of sexual violence. He explained that he reached these conclusions based upon an approximately one hour interview with Curiel and an examination of Curiel's social services and clinical services files, which included a copy of Curiel's presentence investigation report. He based his conclusion that it was substantially probable that Curiel would reoffend sexually on the following five factors: 1) Curiel was diagnosed a pedophile, 2) had episodes of exhibitionism, 3) was not treated for either pedophilia or exhibitionism, 4) had serious problems with drugs and alcohol, and 5) his known sexual offenses demonstrated a pattern of increasing severity. Waddell also testified that his personal working definition of "substantially probable" was "more likely than not" and that he did not think it was "substantially probable" that Curiel would engage in future acts of sexual violence if that term were defined as "much more likely than not." Following his testimony, his written evaluation of Curiel was admitted into evidence.

¶ 11. As its second witness, the State called Dr. Ronald Sindberg (Sindberg), a psychologist employed by the Mendota Mental Health Institute. As did Waddell, Sindberg testified to a reasonable degree of psychological certainty that Curiel had a mental disorder known as pedophilia and that it was substantially probable that Curiel would engage in future acts of sexual violence. He based his conclusion upon his examination of Curiel's social services and clinical files; Curiel, on the advice of his attorney, refused to speak with Sindberg. Sindberg's opinion was developed by considering whether Curiel met the criteria for a number of risk factors used to predict whether a person was likely to reoffend sexually, and then whether treatment that Curiel had received would tend to diminish the weight of the risk factors.

¶ 12. Specifically, Sindberg testified that Curiel met the criteria for 17 of 31 risk factors the Mendota Mental Health Institute had identified as predictors that a person would commit future acts of sexual violence. He further testified that of those 31 risk factors, 14 were regarded in scientific literature as highly reliable predictors of future acts of sexual violence. Of those 14 most reliable risk factors, Sindberg found that Curiel met the criteria for the following ten: 1) pre-treatment deviate sexual arousal, 2) non-sexual criminality, 3) denial or minimization of offenses, 4) extra familial victims, 5) never very married, 6) multiple paraphilias, 7) attitudes which legitimize crimes, 8) hands on and hands off offenses, 9) history of sexual abuse as a child, and 10) history of substance abuse. Sindberg testified that together, these risk factors made it substantially probable that Curiel would reoffend. He stated that he did not believe that the non-sex offender treatment Curiel had received offset to any significant degree the weight of these risk factors. Finally, he explained that his opinion remained the same whether "substantially probable" was defined as "more likely than not" or "much more likely than not." Sindberg's written evaluation was also admitted into evidence.

¶ 13. At the close of the State's case, defense counsel moved for a directed verdict, arguing that the evidence was insufficient to establish that there was a substantial probability that Curiel would reoffend. Defense counsel argued first that Sindberg's testimony could not support a finding that the risk that Curiel would reoffend sexually was substantially probable because Sindberg's method of evaluation was fraught with error: he did not personally interview Curiel and in the view of the defense, his use of objectively-based risk factors to reach his conclusion was a questionable method of evaluation. Then, with the premise that the term "substantially probable" must mean a degree of likelihood no less probable than "much more likely than not," counsel argued that Waddell's testimony was insufficient to support a finding of "dangerousness."

¶ 14. The circuit court denied the motion. It found that regardless of the fact that the witnesses used varied working definitions of the term, both had testified that it was substantially probable that Curiel would reoffend. Second, the court stated that even if "substantially probable" were defined as "much more likely than not," that standard was satisfied by Sindberg's testimony alone.

¶ 15. The defense called a single witness in rebuttal, Dr. Charles Lodl (Lodl), a psychologist in private practice. Lodl testified that he had met with Curiel for many hours and that he performed three psychological tests, including two that were directed toward assessing Curiel's sexual interests and knowledge. Lodl further testified that based on this background, and to a reasonable degree of psychological certainty, it was not substantially probable that Curiel would engage in future acts of sexual violence. He had concluded that Curiel was a moderate risk for reoffending sexually. He also testified that he internalized the probability of future acts of sexual violence as a five-point scale that he described as "low risk," "low to moderate risk," "moderate risk," "moderate to high risk," and "high risk." He believed only "moderate to high risk" and "high risk" equated with the term "substantially probable."

¶ 16. Lodl also cast doubt on the analysis Sindberg used in developing his expert opinion. Of the 14 factors which Sindberg had claimed most accurately predicted whether a person would engage in a future act of sexual violence, Lodl admitted that scientific literature had once given its support; however, some of the factors more recently had been called into doubt as less predicative of such behavior than once thought. He further testified that one's consideration of all the risk factors should not be conducted in a "check-mark" manner but should include some clinical judgment that was based in part on an interview with the subject.

¶ 17. Considering the evidence before it, the circuit court believed that the State had carried its burden to prove all the allegations in the petition...