No. 4-094 / 02-1287Court of Appeals of Iowa.
April 28, 2004.
Appeal from the Iowa District Court for Story County, Kurt Wilke, Judge.
Norman Holby appeals the district court decision finding he was a sexually violent predator, as defined in Iowa Code chapter 229A (2003). AFFIRMED.
Mark Smith, First Assistant State Public Defender, and Greg Bal, Assistant Appellant Defender, for appellant.
Thomas J. Miller, Attorney General, Roxann M. Ryan and Andrew B. Prosser, Assistant Attorneys General, for appellee-State.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
MAHAN, P.J.
I. Background Facts Proceedings
The State alleged Norman Holby was a sexually violent predator within the meaning of Iowa Code chapter 229A (2003). Holby has a long history of sexual offenses. In 1955 he was convicted of indecent assault after he threatened a woman with a knife and forced her to undress while he masturbated. In 1958 he was convicted of assault and battery when he fondled a woman’s breasts. In 1962, when a woman refused to have sex with him, Holby beat her, took her clothes off, then left the state in her car. He was convicted of first-degree robbery and sentenced to twenty years in prison. In 1977 he touched the breasts of a thirteen-year-old girl, who was the foster child of his sister. He admits to this incident. In 1982 he was convicted of first-degree robbery and second-degree sexual abuse after he assaulted a male and forced a female to perform oral sex on him. He was sentenced to two consecutive twenty-five-year terms of imprisonment. Even after Holby was in prison, in 1994, he touched the buttocks of a female prison guard.
Dr. Craig Monroe, a psychologist, examined Holby and diagnosed him with an antisocial personality disorder. Monroe also testified Holby was psychopathic, which meant he was more likely to engage in violent criminal behavior in the future than others with an antisocial personality disorder. Monroe applied actuarial tests, the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR), the Static-99, and the Minnesota Sex Offense Screening Tool Revised (MnSOST-R), and determined Holby scored in the high risk range on all three instruments.
Holby presented the testimony of Dr. Lynn Maskel, a medical doctor with a specialty in psychiatry. She testified the actuarial tests applied by Dr. Monroe were not very reliable. She also testified that as people age the risk of recidivism goes down. Dr. Maskel stated Holby’s age and physical condition should be considered in assessing his risk to reoffend.
At the time of the detention hearing, Holby was sixty-five years old. He had been diagnosed with Parkinson’s Disease, which is a progressive disease that affects mobility. He suffered from degenerative disk disease, diabetes, hardening of the arteries, and high blood pressure. He also has a history of alcohol dependence and smoking. Holby argued that due to his health problems he had a low risk of reoffending.
The case was submitted to a jury, which found Holby was a sexually violent predator. Holby now appeals.
II. Due Process
Holby claims that a civil commitment under chapter 229A based solely on a diagnosis of an antisocial personality disorder is a violation of his due process rights. He asserts that he does not have a diagnosis, such as pedophilia, which might predispose him to commit sexually violent offenses.
Our review of the district court’s construction and interpretation of the statute is for correction of errors at law In re Detention of Swanson, 668 N.W.2d 570, 574 (Iowa 2003). We review constitutional claims de novo. In re Detention of Cubbage, 671 N.W.2d 442, 444 (Iowa 2003).
Chapter 229A provides for the civil confinement of a sexually violent predator, who is defined as:
a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.
Iowa Code § 229A.2(11); In re Detention of Gonzales, 658 N.W.2d 102, 103 (Iowa 2003). The legislature found “sexually violent predators generally have antisocial personality features that are unamenable to existing mental illness treatment modalities and that render them likely to engage in sexually violent behavior.” Iowa Code § 229A.1. Under the statute, a “mental abnormality,” is a “congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others.” Iowa Code § 229A.2(5).
An argument similar to Holby’s was rejected by the Wisconsin Court of Appeals:
Farmer maintains that because 40-60% of the male prison population is diagnosed with antisocial personality disorders, he is no more dangerous than the typical recidivist.
We conclude, however, that Farmer’s antisocial personality disorder does qualify him for commitment under Wis. Stat. ch. 980. Certainly, not everyone with antisocial personality disorder would be subject to commitment. . . .
[T]he jury found Farmer to be sexually violent and that it was substantially probable Farmer would commit sexually violent acts in the future. In this way, the jury determined that Farmer was distinguished from the typical recidivist.
In re Commitment of Farmer, 2003 WI App 42 (Wis.Ct.App. Jan. 14, 2003).
We first note that Holby was not subject to detention based solely on a diagnosis of antisocial personality disorder. Holby was also found to be a psychopath, and he met the other requirements of the statute. Furthermore, we note that in In re Detention of Morrow, 616 N.W.2d 544, 548, (Iowa 2000), Morrow argued that by being subject to civil commitment, he was treated differently than other violent offenders with antisocial personality disorders, which implies that Morrow was diagnosed with an antisocial personality disorder. Our supreme court upheld Morrow’s detention as a sexually violent predator. Morrow, 616 N.W.2d at 549. We conclude that it does not offend due process for a person diagnosed with an antisocial personality disorder to be determined a sexually violent predator, assuming the other requirements of the statute are met.
III. Sufficiency of the Evidence
Holby claims the State did not present sufficient evidence that he was unable to control his behavior. He also claims there was insufficient evidence he was likely to reoffend, considering his age and health problems.
Our review of challenges to the sufficiency of the evidence is for correction of errors at law. Swanson, 668 N.W.2d at 574. We are bound by the jury’s findings if they are supported by substantial evidence. Id.
The State is not required to show that the mental abnormality causes a total inability to control behavior. Kansas v. Crane, 534 U.S. 407, 411, 122 S.Ct. 867, 870, 151 L.Ed.2d 856, 861-62
(2002). The State must produce proof of a mental abnormality that makes it difficult for the person to control sexually dangerous behavior. In re Detention of Barnes, 658 N.W.2d 98, 101 (Iowa 2003) (citing Kansas v. Hendricks, 521 U.S. 346, 358, 117 So. Ct. 2072, 2080, 138 L.Ed.2d 501, 513 (1997)).
Holby was found to suffer from an antisocial personality disorder and to be a psychopath. The United States Supreme Court has noted the term “psychopath” refers to severely ill people See Crane, 534 U.S. at 411-12, 122 S.Ct. at 870, 151 L. Ed.2d at 862. A psychopath, such as Holby, is more likely to engage in violent criminal behavior than others diagnosed with antisocial personality disorder and has more difficulty controlling his behavior. Dr. Monroe testified Holby had difficulty controlling his behavior.
The jury was presented with the evidence of Holby’s age and physical condition, but concluded he met the statutory criteria to be considered a sexually violent predator. We conclude there is substantial evidence in the record to support the jury’s findings that Holby was a sexually violent predator. Holby had a long history of sexually violent offenses.
We affirm the decision of the district court.
AFFIRMED.