SVP – Sexually Motivated Offense; Admissibility, No-Contest Plea; Expert Opinion – Reliance on Hearsay

State v. Albert M. Virsnieks, 2010AP1967, District 2 / 1, 6/21/11

court of appeals decision (not recommended for publication); pro se; case activity

Virsnieks’ plea-based conviction for burglary supported  ch. 980 commitment.

¶35      A Wis. Stat. ch. 980 petition must allege, among other things, that a “person has been convicted of a sexually violent offense.”[5] Wis. Stat. § 980.02(2)(a)1.  A “[s]exually violent offense” is defined, in relevant part, as “[a]ny crime specified in s. … 943.10 … that is determined, in a proceeding under [Wis. Stat. §] 980.05(3)(b), to have been sexually motivated.”  Wis. Stat. § 980.01(6)(b).  Whether a person was “sexually motivated” is a question of fact for the jury.  State v. Watson, 227 Wis. 2d 167, 190, 595 N.W.2d 403 (1999).  We will not overturn the jury’s finding unless there is no credible evidence to sustain it.  Wis. Stat. § 805.14(1).

¶36      Here, the question of whether Virsnieks’s 1999 burglary (a crime set forth in Wis. Stat. § 943.10) was sexually motivated was plainly presented to the jury during a trial held pursuant to Wis. Stat. § 980.05(3)(b). …

…

¶38      There was sufficient evidence in the record to support the jury’s verdict that Virsnieks’s 1999 burglary was sexually motivated. …

¶40      Next, Virsnieks complains that he was prejudiced at trial when statements from his plea hearing were admitted into evidence.  He contends that because he pled no contest the statements he made during the plea hearing were not admissible at a Wis. Stat. ch. 980 proceeding.  However, he offers no case law demonstrating that a no-contest plea offers a defendant protection in a later ch. 980 prosecution, nor could he, because in fact the opposite is true.  Cf. State v. Bollig, 224 Wis. 2d 621, 627, 635-36, 593 N.W.2d 67 (Ct. App. 1999) (holding that a ch. 980 petition is not a direct consequence of a no-contest plea and, therefore, a defendant need not be notified of the possibility of a ch. 980 petition when pleading no contest).

Minor point: Bollig was reviewed, and affirmed, by the supreme court, 2000 WI 6, 232 Wis.2d 561, 605 N.W.2d 199, albeit on the different question of whether sex offender registration is a direct consequence of a plea.

¶46      Regardless, Virsnieks’s claim is meritless.  It is well established that experts may rely on otherwise inadmissible evidence, such as hearsay, if the evidence is of the type experts typically rely on to form opinions.  See Wis. Stat. § 907.03.  Psychological experts regularly rely on police reports, medical reports, and presentence investigation reports in forming their opinions.  See Watson, 227 Wis. 2d at 194 (“[T]here can be no question that professionals in corrections, including clinical psychologists, routinely and reasonably rely on presentence investigations to evaluate persons in the corrections system and to form opinions.”); see also State v. Weber, 174 Wis. 2d 98, 105-08, 496 N.W.2d 762 (Ct. App. 1993) (psychiatrist was permitted to offer an opinion based on hearsay evidence contained in, among other things, police reports, a presentence investigation report, correction records, clinical service records, and treatment reports).

Not raised or discussed but worth keeping in mind: § 907.03 isn’t a hearsay rule. In other words, just because the expert is entitled to rely on hearsay doesn’t make that hearsay admissible for the truth of the matter. See, e.g., State v. Corey Kleser, 2010 WI 88, ¶¶88-90;  State v. Craig A. Swope, 2008 WI App 175, ¶¶35-36. It’s a potentially complicated discussion – if the data aren’t admissible as proof of what they purportedly represent, then how is the expert’s reliance on same explicable? on the other hand, if the data must be substantively admissible, then how would an expert ever be expected to formulate an opinion? – but the distinction between expert reliance and substantive admissibility is well-entrenched.

A chapter 980 petition is concerned with the respondent’s mental condition at the time of his scheduled release, not at the time of sentencing on the qualifying offense. Therefore, a mental health evaluation conducted for purposes of Virsnieks’ 1999 sentencing didn’t bear on his mental condition at the time his 2009 SVP petition was resolved, and therefore could have no res judicata effect on the latter, ¶¶47-48.

¶49      Virsnieks appears to challenge the sufficiency of the evidence to support the jury’s verdict that he is a sexually violent person.  More specifically, he contends that because the State’s expert witnesses both testified that Virsnieks scored low on their actuarial tests, demonstrating a less than fifty percent chance that he is likely to sexually reoffend, the State could not demonstrate that it was “more likely than not” that Virsnieks would reoffend.

…

¶52      In other words, Virsnieks is correct that the jury must determine, based on the evidence and reasonable inferences therefrom, that Virsnieks is “more likely than not” to commit another sexually violent offense.  However, Virsnieks is mistaken that the experts’ testimony regarding the actuarial tests are the gold standard for making that determination.

¶53      The jury had before it, and was permitted to consider, far more information than just the experts’ actuarial test scores, when considering whether it was “more likely than not” that Virsnieks would commit another sexually violent offense, including:  Virsnieks’s psychopathy and sexual defiance, his failure to comply with treatment, his failures on supervision, and the escalation of his crimes as he has aged.  Furthermore, the jury was permitted to consider Dr. Marsh’s testimony that it was unclear how the actuarial measures applied to sexual sadists, and the testimony of all the experts that the actuarial measures may not account for Virsnieks’s psychopathy.

To assign some detail to the argument: a single expert testified that he was more likely than not to commit sexual violence, even though the actuarials assigned pegged the likelihood of reconviction at 19-24% within 5 years, 27-36% within 10. Two other experts, using the same instruments, derived similar if somewhat lower scores and concluded that he was not sufficiently likely to reoffend to support commitment. ¶¶14-33. As seen from the blockquote, his high PCL-R score tilted the balance. What? You didn’t think ch. 980 is a preventive detention regime for psychopaths?