State of Iowa ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1282
Filed January 12, 2022
IN RE THE DETENTION OF
ZACHARY WELSH,
ZACHARY WELSH,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Fayette County, Richard D. Stochl,
Judge.
Zachary Welsh appeals his commitment as a sexually violent predator.
AFFIRMED.
Matthew S. Sheeley, State Public Defender Adult Division, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Keisha F. Cretsinger, Assistant
Attorney General, and Richard Bennett, Special Counsel, for appellee, State.
Considered by Mullins, P.J., and May and Ahlers, JJ.
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AHLERS, Judge.
At the district court, the State successfully petitioned to have Zachary Welsh
committed as a sexually violent predator. Welsh appeals. He contends the
evidence is insufficient to support the commitment.
I. Statutory Background and Standards
Civil commitment of sexually violent predators is governed by Iowa Code
chapter 229A (2020). That chapter plots separate courses of commitment
depending on whether the person sought to be committed is “presently confined”
for a sexually violent offense.1 The first course is followed when the person is
“presently confined” for a sexually violent offense.2 The second course is followed
when the person is no longer confined but has committed a recent overt act under
certain circumstances.3 In its petition, the State alleged Welsh is presently
confined for a sexually violent offense, and Welsh does not challenge that claim.
As there is no disagreement that Welsh is presently confined, Welsh is on the first
course for commitment.
The purpose of the civil commitment proceeding is to determine if the
person is a “sexually violent predator,” which is defined as “a person who has been
convicted of or charged with a sexually violent offense [4] and who suffers from a
1 In re Det. of Wygle, 910 N.W.2d 599, 601 (Iowa 2018).
2 Wygle, 910 N.W.2d at 601 (citing Iowa Code § 229A.4(1)).
3 Wygle, 910 N.W.2d at 601 (citing Iowa Code § 229A.4(2)).
4 The statute lists various offenses that constitute sexually violent offenses. The
offenses include “violation of any provision of chapter 709” and “[a]ny act which,
either at the time of sentencing for the offense or subsequently during civil
commitment proceedings pursuant to this chapter, has been determined beyond a
reasonable doubt to have been sexually motivated.” Iowa Code
§ 229A.2(12)(a), (g). “Sexually motivated” is defined to mean “that one of the
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mental abnormality[5] which makes the person likely to engage in predatory acts[6]
constituting sexually violent offenses, if not confined in a secure facility.” 7
As it pertains to this appeal, the parties generally agree that the State must
prove two elements to commit a person under the first course of chapter 229A:
(1) the person has a mental abnormality causing the person serious difficulty
controlling the person’s behavior; and (2) the person is more likely than not to
commit a sexually violent offense in the future, absent confinement.8 The State
must prove these elements beyond a reasonable doubt.9 The district court found
that the State met its burden and civilly committed Welsh. On appeal, Welsh’s only
challenge is to the sufficiency of the evidence supporting the State’s claim that he
has serious difficulty controlling his behavior.
II. Standard of Review
We review claims of insufficient evidence for correction of errors at law. 10
We will uphold the court’s decision if there is substantial evidence “upon which a
purposes for commission of a crime is the purpose of sexual gratification of the
perpetrator of the crime.” Iowa Code § 229A.2(11).
5 “Mental abnormality” is defined as “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(6).
6 With respect to a person currently confined—like Welsh—“likely to engage in
predatory acts of sexual violence” is defined to mean “that the person more likely
than not will engage in acts of a sexually violent nature.” Iowa Code § 229A.2(5).
“Predatory” is defined as “acts directed toward a person with whom a relationship
has been established or promoted for the primary purpose of victimization.” Id.
§ 229A.2(7).
7 Iowa Code § 229A.2(13).
8 See Iowa Code § 229A.2(13) (defining sexually violent predator); In re Det. of
Stenzel, 827 N.W.2d 690, 701 (Iowa 2013).
9 Iowa Code § 229A.7(5); Stenzel, 827 N.W.2d at 701.
10 In re Detention of Betsworth, 711 N.W.2d 280, 286 (Iowa 2006).
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rational trier of fact could find the respondent to be a sexually violent predator
beyond a reasonable doubt.”11 On our review to determine if the evidence was
substantial, “we consider the entirety of the evidence presented in a ‘light most
favorable to the State, including all legitimate inferences and presumptions which
may be fairly and reasonably deduced from the record.’ Evidence is not substantial
if it raises only suspicion, speculation, or conjecture.”12
III. Analysis of the Sufficiency of the Evidence
The evidence here consists of a number of uncontested facts coupled with
a battle of experts.
A. The Uncontested Facts
The uncontested facts include Welsh’s criminal behavior. Welsh began
exposing himself to others when he was around ten years old. At age fifteen, he
was adjudicated delinquent for assault with intent to commit sexual abuse of a
thirteen-year-old boy. In 2002, when he was nineteen, he was convicted of
indecent exposure and placed on the sex offender registry after exposing his penis
to a female employee of a hair salon. Two to three years later, Welsh was
convicted of harassment twice for making obscene phone calls to women. When
he was twenty-three years old, Welsh was again convicted of indecent exposure,
this time for exposing his penis and masturbating in a department store. Four
years later, Welsh was convicted for violating sex offender registry requirements
by being in a public library. One and one-half years later, when he was twenty-
11Betsworth, 711 N.W.2d at 286.
12Betsworth, 711 N.W.2d at 287 (quoting In re Det. of Swanson, 668 N.W.2d 570,
574 (Iowa 2003)).
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eight, Welsh was convicted of harassment for making an obscene phone call to a
library employee. In 2018, when he was thirty-four years old, Welsh was convicted
of two counts of violating sex offender registry requirements after being caught
loitering outside a dance studio and peering through the windows at the young
dancers. He was in prison for these two registry charges when the State filed its
petition for civil commitment.
In addition to his delinquency adjudication and criminal convictions, Welsh
testified that he exposed himself to others somewhere between ten and twenty-
five times without being caught. He also failed to complete sex offender treatment
while placed at the State Training School for his delinquency adjudication. While
in prison for his adult convictions, Welsh completed sex offender treatment, but he
testified that he only completed the program by lying. He asserts his lie was
admitting there was a sexual reason why he was peering in the windows at the
dance studio.
B. The Battle of the Experts
Both sides called expert witnesses. The State’s expert, a licensed
psychologist, interviewed Welsh twice and reviewed over 1200 pages of records
about Welsh. He testified that after his examination of Welsh, his opinion is that
Welsh suffered from a predisposing mental disorder that makes him more likely
than not to commit future acts of sexual violence. He diagnosed Welsh with “other
specified disruptive, impulse-control, and conduct disorder—hypersexual type.”
With this, he opined that Welsh has difficulty controlling his impulses and sexually
acts out. The State’s expert also conducted and relied on several actuarial-based
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assessments.13 Based on the information gathered and the assessments
conducted, the expert determined that Welsh is very likely to reoffend if he is
released.
Welsh’s expert is a clinical and forensic psychologist. He also interviewed
Welsh and reviewed records about Welsh. Armed with that information, he gave
the opinion that Welsh does not suffer from a qualifying mental abnormality. He
acknowledged Welsh has a number of mental disorders, but none that would
cause him to commit sexually violent offenses. The conclusion that Welsh did not
presently suffer from a qualifying mental abnormality was based, in part, on his
belief that Welsh had not exposed himself in over thirteen years and had not made
an obscene phone call in approximately eight years.
C. The District Court’s Decision
After hearing the testimony from Welsh and the two experts, the district
court found that the State met its burden to prove that Welsh was a sexually violent
predator. In reaching this conclusion, the district court stated that it found the
State’s expert more convincing than Welsh’s.
The unchallenged facts show that Welsh has an extensive and primarily
sexual criminal history. That history shows Welsh’s failure to control his sexual
impulses. The fighting issue then boils down to a battle of the competing experts.
As the factfinder, it was up to the district court to decide which expert it found more
13See Stenzel, 827 N.W.2d at 703 (considering actuarial assessments along with
an expert’s clinical judgment to find substantial evidence supporting a finding that
the respondent was a sexually violent predator); In re Det. of Hill, No. 07-1379,
2008 WL 2520810, at *4 (Iowa Ct. App. June 25, 2008) (same).
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convincing.14 The district court found the State’s expert more convincing. As the
district court “is in a better position to weigh the credibility of the witnesses” than
we are, we “readily defer to the district court’s judgment” when there is a battle of
experts.15
IV. Conclusion
The evidence presented at trial, including the testimony of the State’s expert
that the district court found more convincing, constitutes substantial evidence
supporting the district court’s finding that Welsh is a sexually violent predator. In
particular, there is substantial evidence supporting the finding that Welsh has
serious difficulty controlling his behavior. As a result, we affirm.
AFFIRMED.
14 In re Det. of Altman, 723 N.W.2d 181, 185 (Iowa 2006).
15 State v. Jacobs, 607 N.W.2d 679, 685 (Iowa 2000).