Opinion
No. 5-858 / 05-0048
Filed January 19, 2006
Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.
Brett Shearer appeals after he was found to be a sexually violent predator by a jury and the district court entered an order of commitment. AFFIRMED.
Mark Smith, First Assistant State Public Defender, and Michael Adams, Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, and Linda Hines and Andrew B. Prosser, Assistant Attorneys General, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Brett Shearer appeals the jury verdict finding him to be a sexually violent predator under Iowa Code chapter 229A (2003). He argues that (1) the actuarial risk assessment instruments used to evaluate him were unreliable and should not have been admitted, (2) the evidence concerning undetected recidivism and lifetime risk of reoffense was unreliable and should not have been admitted, and (3) the district court erred in giving a certain jury instruction. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Shearer has a history of sexually abusing children. In the summer of 1996, when Shearer was ten or eleven years old, his parents discovered he had molested his step-mother's four-year-old granddaughter. Upon finding out, Shearer's parents instructed him that this conduct was inappropriate and not to be repeated. Shearer's actions were also discussed in therapy sessions. Despite the actions taken, approximately a year later it was discovered Shearer was again engaging in inappropriate sexual contact with the same young girl. As a result, in July of 1997 Shearer was adjudicated as a juvenile delinquent for having committed the act of assault with intent to commit sexual abuse. Shearer was placed in a foster home and ordered to undergo an outpatient treatment program for sexual offenders. Approximately three months after being released from juvenile court supervision, shortly before his eighteenth birthday, Shearer again engaged in inappropriate sexual contact with a child. In May of 2003 Shearer was convicted of two counts of indecent contact with a child. Shearer was given a suspended sentence and placed on probation for two years. As a condition of his probation he was ordered to live at a residential treatment center and participate in sex offender treatment. In April of 2004 Shearer's probation was revoked, and he was imprisoned for the duration of his sentence.
On August 11, 2004 the State filed a petition under Iowa Code chapter 229A to have Shearer civilly committed as a sexually violent predator. Prior to a trial being held Shearer filed a motion to determine the admissibility of evidence pursuant to Iowa Rule of Evidence 5.104. Shearer sought to exclude (1) evidence of sexual offenses for which Shearer had not been convicted; (2) evidence concerning the application of actuarial risk assessment instruments to show sex offender recidivism rates; (3) evidence that indicated that sex offenses frequently go unreported; (4) evidence that lifetime risk to reoffend is higher than the estimates revealed by the actuarial risk assessment instruments; (5) certain hearsay; and (6) any legal conclusions made by the State's expert witness. Essentially, Shearer argued that the testimony of the State's expert was based upon studies and data which were so flawed that the testimony cannot be relied upon to constitute "expert witness" testimony. The district court denied Shearer's motion after concluding that Iowa's policy of "liberal admission" of expert testimony allowed the admission of the testimony at issue; however, Shearer would be allowed to attack the credibility of that testimony at trial.
At trial, Dr. Craig Monroe testified as an expert witness for the State. Dr. Monroe diagnosed Shearer as having a mental abnormality, pedophilia, which causes him difficulty in controlling his behavior. Dr. Monroe also testified that he believed it was more likely than not Shearer would commit another sexual offense if he was not confined to a secured facility.
Over Shearer's objection, the results of actuarial risk assessment instruments that were applied by Dr. Monroe were admitted into evidence. The instruments utilitzed were the Rapid Risk Assessment for Sex Offender Recidivism (RRASOR) and the Static-99. Dr. Monroe testified that of people who score as Shearer did on the RRASOR, 48.6 percent are convicted of a subsequent sex offense within ten years of release from confinement. Dr. Monroe testified that of people who score as Shearer did on the Static-99, forty percent are convicted of a subsequent sex offense within fifteen years of release from confinement. Dr. Monroe further testified that because the instruments only measure subsequent convictions and not all subsequent sex offenses, the likelihood of reoffense is actually higher than the percentages revealed by the tests. At trial, Shearer testified he had committed five or six other offenses that had gone uncharged. Although, Shearer maintained those incidents involved over-the-clothes-touching and did not progress further. Additionally, Dr. Monroe testified that there is no assessment of lifetime risk of reoffending, but he believed it was more likely that Shearer would reoffend during his lifetime than during the next fifteen years because there would be more opportunity for reoffense.
In addition to applying the actuarial instruments to determine Shearer's risk of reoffense, Dr. Monroe also interviewed Shearer and assessed his treatment history. Shearer indicated to Dr. Monroe that he was still attracted to adolescents and children. Dr. Monroe also noted that past treatment had proved ineffective, as Shearer went on to molest more children after treatment.
Shearer retained two expert witnesses. Dr. Craig Rympa reviewed Shearer's records and interview and conducted an evaluation of Shearer. Dr. Rympa concluded there was nothing in the record or in his evaluation that suggested Shearer was more likely than not to reoffend. Dr. Richard Wollert also testified for Shearer. Dr. Wollert applied the Static-99 to Shearer and reached the same result as Dr. Monroe, which was that the Static-99 indicated there was a forty percent chance Shearer would reoffend in the next fifteen years. Based on this result, Dr. Wollert testified it was not more likely than not that Shearer would reoffend. Dr. Wollert did not think it appropriate to apply other factors, such as unreported sex offenses and lifetime risk in reaching a conclusion as to whether Shearer was likely to reoffend. Dr. Wollert believed there was no scientific support for the use of such factors.
On December 9, 2004, the jury returned a verdict finding Shearer was a sexually violent predator and the district court entered an order of commitment. Shearer appeals. Shearer argues that certain expert testimony should not have been admitted at trial and the district court erred in instructing the jury.
II. SCOPE OF REVIEW.
We review the admissibility of expert testimony for abuse of discretion. In re Detention of Holtz, 653 N.W.2d 613, 615 (Iowa Ct. App. 2002). "In general, whether a witness may testify as an expert with reference to a particular topic is within the trial court's discretion." Heinz v. Heinz, 653 N.W.2d 334, 340 (Iowa 2002). We review challenges to jury instructions for correction of errors at law. In re Detention of Crane, 704 N.W.2d 437, 438 (Iowa 2005).
III. ANALYSIS.
General Admissibility of Actuarial Risk Assessment Instruments.
Shearer's first argument on appeal is that the RRASOR and Static-99 actuarial risk assessment instruments are not reliable and, thus, are not probative on any issue and should have been excluded from evidence.
Iowa Rule of Evidence 5.702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
See also Heinz, 653 N.W.2d at 340. Iowa has a liberal rule on the admission of expert testimony. Wilson v. Hedican, 561 N.W.2d 817, 822 (Iowa 1997). Our trend has been toward broadening the scope of the admissibility of such testimony. Id. Iowa Rule of Evidence 5.702 has codified that liberality. Id. Additionally, we are quite deferential to the district court in the exercise of its discretion in the admissibility of expert testimony. Holtz, 653 N.W.2d at 615.
Iowa has abandoned the test found in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), that requires a scientific test to be generally accepted as reliable within the scientific community to be admissible. We have, however, retained the rationale of the Frye test that evidence, scientific or otherwise, must be reliable to be admitted. Williams, 561 N.W.2d at 823. A threshold finding of reliability is necessary because unreliable evidence cannot assist a trier of fact. Williams, 561 N.W.2d at 822; State v. Klindt, 389 N.W.2d 670, 672 (Iowa 1986).
In Holtz we affirmed the district court in admitting actuarial risk assessment instruments, including the RRASOR and Static-99. Holtz, 653 N.W.2d at 616. The Holtz decision holds that these types of instruments are admissible when certain conditions are met. Id. at 619. In order to be admissible it must be made clear to the jury that the instruments have limitations and are not an end-all in evaluating offenders. Id. Additionally, the use of the instruments should be accompanied by a full clinical evaluation. Id. Under those conditions, we held it was not an abuse of discretion for the district court to admit the evidence of the instruments. It was also noted in Holtz that no state appellate court has found actuarial risk assessment instruments inadmissible in sexually violent predator civil commitment proceedings. Id. at 619. In the present case the instruments were not used as the "end-all" in evaluating Shearer and use of the instruments was accompanied by a full clinical evaluation. We cannot say the district court abused its discretion; we affirm on this issue.
Evidence of Underestimation by Actuarial Risk Assessment Instruments.
Shearer's next allegation of error is that evidence concerning undetected recidivism due to sex offenses going unreported and lifetime risk of recidivism was not reliable and, thus, the district court erred in admitting such evidence over defense objections.
The assumption used by the experts at trial was that in order for it to be more likely than not Shearer would engage in acts of a sexually violent nature, the likelihood must have been greater than fifty percent. The RRASOR placed Shearer's recidivism rate at 48.6% over a ten-year period following his release from custody, and the Static-99 placed Shearer's recidivism rate at forty percent over a fifteen-year period following his release from custody. The State's expert testified that in reaching his conclusion that it was more likely than not that Shearer would reoffend, he believed the actuarial instruments underestimate the likelihood of reoffense because they are based only on convictions and there are more sex offenses than there are convictions and because the instruments only measure a limited time period and not lifetime risk.
Shearer argues the State expert's opinions as to actual recidivism and lifetime risk are based solely on speculation and conjecture and there is no scientific foundation for such opinions. As support for this position, Shearer points out that the State expert could not give a specific figure as to how much he believed Shearer's likelihood of recidivism suggested by the actuarial instruments was raised by these factors. The State expert indicated that "[t]here isn't a good way of evaluating [how much undetected recidivism should raise the overall likelihood of recidivism] at this point in time." The State expert stated that one prominent researcher in the field suggests the likelihood of underestimation by the instruments should only raise the rate a "small amount," while another prominent researcher suggests the instruments so underestimate recidivism that "he would triple" the rates. Additionally, in pretrial hearings an expert retained by Shearer indicated that there is no empirical authority for bridging that gap from forty percent to more likely than not by virtue of underestimation of sex offense recidivism by the instruments. The defense expert stated that in such a case the evaluator "would be using clinical judgment, and ultimately that evaluator under those circumstances would be resorting to wholesale guesswork and speculation disguised with a nice term called `clinical judgment.'" The defense expert further testified that there are too many unknown factors to successfully predict recidivism after the fifteen-year window. Therefore, Shearer argues evidence that the actuarial instruments underestimate recidivism was unreliable and should not have been admitted.
As we previously noted, we have abandoned the Frye testthat requires a scientific test to be generally accepted as reliable within the scientific community to be admissible. Williams, 561 N.W.2d at 823. We have, however, retained the rationale of the Frye test that evidence scientific or otherwise must be reliable to be admitted. Id. Additionally, the Iowa Supreme Court has approved of "somewhat speculative" expert testimony. See Olson v. Nieman's, Ltd., 579 N.W.2d 299, 312 (Iowa 1998). "There is no requirement that the expert be able to express an opinion with absolute certainty: `an expert's lack of absolute certainty goes to the weight of his testimony, not to its admissibility.'" State v. Buller, 517 N.W.2d 711, 713 (Iowa 1994) (quoting United States v. Cyphers, 553 F.2d 1064, 1072-73 (7th Cir. 1977)). We cannot say that the district court abused its discretion in finding the evidence at issue sufficiently reliable; therefore, we affirm on this issue.
Jury Instruction.
Shearer's final allegation of error is that the jury instruction was improper. The district court included the following instruction:
INSTRUCTION NO. 18
It is your duty as jurors to determine if the Respondent Brett N. Shearer is or is not a sexually violent predator.
In the event of a verdict that the Respondent is a sexually violent predator, the Respondent shall be committed to the custody of the Director of the Department of Human Services for control, care, and treatment until such time as the Respondent's mental abnormality has so changed that the Respondent is safe to be placed in a transitional release program or discharged.
Shearer objected to this instruction based on the inclusion of the language regarding treatment because he claimed treatment was not a relevant jury consideration; the only consideration for the jury was whether Shearer was likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.
During deliberations, the jury submitted the following question to the court: "When we present the verdict can we emphasize Instruction 18 and its reference to treatment?" Shearer argues that this question clearly indicates the jury's verdict was substantially based on the jury's desire to have Shearer receive treatment, rather than its opinion as to whether Shearer was likely to commit subsequent sexually violent offenses. Before the court could answer the jury's question the jury reached a verdict.
Shearer acknowledges the jury instruction given by the district court appears to have been taken verbatim from Iowa Code section 229A.7(4). Even so, Shearer argues that as to instructing the jury of its duty the language is an incorrect statement of the law, it is confusing, and it is misleading. Essentially, Shearer argues the instruction's focus on the results of the jury's finding motivated the jury to overlook the elements that it was charged with finding and instead focus on what should happen to Shearer in the future. The instruction allowed the jury to minimize its finding that Shearer was a sexually violent predator by instead focusing on the fact Shearer would be placed in treatment and would have the opportunity to subsequently be released if he successfully completed treatment.
The second paragraph of the instruction given by the district court in this case is diametrically in opposition with the instruction that Shearer sought, which was recently approved as an appropriate instruction by the Iowa Supreme Court in Crane, 704 N.W.2d at 439-40. The instruction proposed by Shearer is as follows:
It is your duty as jurors to determine if the Respondent, Brett N. Shearer, should be confined as a sexually violent predator.
In the event of a verdict that the Respondent should be confined as a sexually violent predator, you have nothing to do with confinement or treatment.
With regard to a similar instruction to the above, the supreme court stated, "The court's instruction simply told jurors they should not concern themselves with Crane's subsequent treatment or confinement, but rather, focus upon whether he was a sexually violent predator." Crane, 704 N.W.2d at 440. Shearer argues the instruction given in the present case served the inverse purpose because it planted the seed that the jury should not solely concern itself with whether Shearer was a sexually violent predator and focused the jury on the treatment he would receive, as evidenced by the jury question submitted to the court.
The State argues the given instruction did not minimize the jury's responsibility of determining whether Shearer was a sexually violent predator. Additionally, the State argues the instruction correctly stated the law and, thus, was not error. See State v. Predka, 555 N.W.2d 202, 204 (Iowa 1996).
"The statement to the jury of the possible punishment to be inflicted in an instruction has been repeatedly condemned." State v. Loucks, 218 Iowa 714, 719, 253 N.W. 838, 841 (1934). "The jury has no concern with the punishment which the law prescribes. Its function is to determine the fact question as to whether the defendant is guilty or not guilty." State v. Piper, 663 N.W.2d 894, 915 (Iowa 2003) (quoting State v. Purcell, 195 Iowa 272, 274, 191 N.W. 849, 850 (1923)). Knowledge of the penalty only serves to confuse and distract the jury from its unique and important judicial function. See State v. Hatter, 381 N.W.2d 370, 375 (Iowa Ct.App. 1985). The instruction given in the present case focused the jury on the consequences prescribed by the law, instead of focusing the jury on the fact question as to whether Shearer was a sexually violent predator.
Nevertheless, any error with respect to the court's instruction of the jury will not support reversal unless the defendant shows prejudice. Piper, 663 N.W.2d at 914 (citing State v. Webb, 516 N.W.2d 824, 831 (Iowa 1994)). The State argues that even if the district court erred in giving the instruction, it was not prejudicial and does not require reversal. In Loucks, 218 Iowa at 719, 253 N.W. at 841, the Iowa Supreme Court indicated that although stating the punishment that would be imposed on a defendant was improper, "a reversal will not be based upon this ground alone."
We conclude the instruction was not prejudicial. Jurors are presumed to follow the court's instructions. See State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998). The first paragraph of the challenged instruction correctly charged the jury with the duty to determine whether Shearer was a sexually violent predator. Additionally, another instruction correctly informed the jury of each element that it must find beyond a reasonable doubt in order to reach a verdict that Shearer was a sexually violent predator. See Thavenet v. Davis, 589 N.W.2d 233, 237 (Iowa 1999) ("Instructions must be considered as a whole, and if some part was given improperly, the error is cured if the other instructions properly advise the jury as to the legal principles involved."). The instructions stated the law, and it is reasonable to assume a jury finding Shearer to be a sexually violent predator would understand he would remain under State care.