In re the Detention of Robert Swanson ( 2019 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 18-0715
    Filed May 1, 2019
    IN RE THE DETENTION OF ROBERT SWANSON,
    ROBERT E. SWANSON,
    Respondent-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
    Lekar, Judge.
    Robert Swanson appeals the order continuing his commitment as a sexually
    violent predator. AFFIRMED.
    Michael H. Adams of State Public Defender’s Office, Des Moines, for
    appellant.
    Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
    General, for appellee State.
    Heard by Potterfield, P.J., and Doyle and Mullins, JJ.
    2
    PER CURIAM.
    Robert Swanson appeals the order continuing his commitment as a sexually
    violent predator under Iowa Code chapter 229A (2017) following an annual review.
    He challenges the sufficiency of the evidence concerning the existence of a mental
    abnormality and the likelihood that he will commit a sexually violent offense if
    discharged from treatment. Because the State has met its burden of proving
    beyond a reasonable doubt that Swanson’s mental abnormality remains such that
    he is likely to engage in predatory acts that constitute sexually violent offenses if
    discharged, we affirm.
    I. Background Facts and Proceedings.
    The State initiated sexually violent predator proceedings against Swanson
    after his release from prison in November 2001. While living in a halfway house,
    Swanson made phone calls and sent a letter to a woman whom he had only brief
    contact with while asking about a job. The content of those communications was
    disturbing enough that the woman reported them to the police, who initiated an
    investigation.
    The investigation revealed Swanson had a long history of
    committing sexually violent offenses. He was charged with his first
    sexual offense in 1964, at the age of fourteen. In 1973, he was
    convicted for raping a fourteen-year-old girl. He was released from
    prison in 1979 and returned there in 1980 after another conviction,
    this time for sexual abuse in the third degree. He also allegedly
    assaulted another woman in 1980 who did not report the crime
    before the statute of limitations on the offense had run. In a letter to
    the governor in 1984, Swanson pleaded for additional state
    treatment programs for sex offenders such as him, claiming that he
    had raped five or six additional women between 1964 and 1973. In
    the same letter, he claimed he had raped at least one more woman
    between 1979 and 1980. Finally, while imprisoned for the second
    time, Swanson called or wrote several women in the Marshalltown
    3
    area, apparently by randomly finding phone numbers and addresses
    that were listed with only a single, female name.
    Based on his prior criminal record and his own admissions,
    Swanson had committed about ten sexually violent offenses in his
    lifetime. However, it was the pattern of his prior conduct that became
    most alarming as the investigation proceeded. On a number of times
    in the past, Swanson had randomly contacted single women with
    whom he had had little or no prior connection in an effort to befriend
    them. Tragically, some of these women later became victims of his
    violent sexual assaults.
    In re Det. Swanson, 
    668 N.W.2d 570
    , 573 (Iowa 2003) (footnotes omitted).
    The State filed a petition seeking to have Swanson determined to be a
    sexually violent predator. After a jury determined that Swanson is a sexually
    violent predator, the district court entered an order civilly committing him. Swanson
    appealed, and our supreme court affirmed Swanson’s commitment as a sexually
    violent predator. 
    Id. at 577
    .
    Swanson participated in a Civil Commitment Unit for Sexual Offenders
    (CCUSO) treatment program from 2002 to 2009. During that time, he progressed
    to Phase 3 of treatment. However, after sending a threatening letter to the Federal
    District Court, Swanson served a seven-and-one-half-year sentence in federal
    prison. Although he returned to the CCUSO treatment program after he completed
    his sentence, he had not progressed beyond Phase 1 in approximately twenty-four
    months, even though offenders typically move past Phase 1 in a few weeks.
    Although Swanson could proceed to Phase 2 by submitting a written request, he
    refused to do so.
    The State filed a notice of annual report in November 2017, and Swanson
    requested a hearing. At the final hearing, the court heard testimony from Swanson,
    as well as from Dr. Stacey Hoem, the State’s expert witness, and Dr. Richard
    4
    Wollert, Swanson’s expert witness. The district court entered an order continuing
    his commitment under chapter 229A. Swanson appeals.
    II. Scope of Review.
    We review challenges to the sufficiency of the evidence for the correction
    of errors at law. See In re Det. of Betsworth, 
    711 N.W.2d 280
    , 286 (Iowa 2006).
    We will affirm if, when the evidence is viewed in the light most favorable to the
    State, a rational factfinder could find the respondent to be a sexually violent
    predator beyond a reasonable doubt. See 
    id.
     However, evidence that raises only
    suspicion, speculation, or conjecture is insufficient. See 
    id.
    III. Sufficiency of the Evidence.
    Once civilly committed under chapter 229A, an annual examination must be
    made of the committed person’s mental abnormality. See Iowa Code § 229A.8(2).
    Once the report of the examination is presented to the district court, it must conduct
    an annual review. See id. § 229A.8(3). The committed person may present
    evidence for the court’s consideration in the annual review, including expert
    opinions, and petition the court for discharge or placement in a transitional release
    program. See id. § 229A.8(2), (4), (5)(e)(1).
    If a person is determined to be a sexually violent predator and civilly
    committed under chapter 229A, there is a rebuttable presumption that the person’s
    commitment should continue.       See id. § 229A.8(1). However, the committed
    person may rebut this presumption by presenting evidence that would lead a
    reasonable person to believe a final hearing should be held to determine whether
    the mental abnormality of the committed person has so changed that the person
    is not likely to engage in predatory acts constituting sexually violent offenses if
    5
    discharged. Id. § 229A.8(1), (5)(e)(1)(a). If the presumption is rebutted, the district
    court must hold a final hearing, at which the State has the burden of proving
    beyond a reasonable doubt that “[t]he committed person’s mental abnormality
    remains such that the person is likely to engage in predatory acts that constitute
    sexually violent offenses if discharged.”1 Id. § 229A.8(5)(e)(2)(a), (6)(d)(1).
    The district court found Swanson met his burden of rebutting the
    presumption of continued commitment.             After the final hearing, the court
    determined that the State had presented proof beyond a reasonable doubt that
    Swanson’s mental abnormality remains and that he would be likely to engage in
    sexually violent offenses if discharged.
    A. Mental abnormality.
    Swanson first challenges the sufficiency of the evidence showing he
    continues to suffer from a mental abnormality. Chapter 229A defines “mental
    abnormality” 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.” Id. § 229A.2(6).
    Chapter 229A “places no limitation on the nature and condition that may
    qualify as a ‘mental abnormality.’” Betsworth, 
    711 N.W.2d at 284
    . The question
    1
    A committed person may also rebut the presumption of continued commitment by proof
    that would lead a reasonable person to believe a final hearing should be held to determine
    the committed person is suitable for placement in a transitional release program pursuant
    to section 229A.8A. See Iowa Code § 229A.8(5)(e)(1)(b). The State then has the burden
    of proving the committed person is not suitable for such placement. See id.
    § 229A.8(6)(d)(2). Although the district court determined Swanson is not suitable for
    placement in a transitional release program, Swanson does not challenge this finding on
    appeal.
    6
    is whether the condition is congenital or acquired and “affect[s] the emotional or
    volitional capacity of the person subject to commitment.” In re Det. of Barnes, 
    689 N.W.2d 455
    , 458-59 (Iowa 2004). Moreover, chapter 229A “does not require that
    the condition affect the emotional or volitional capacity of every person who is
    afflicted with the disorder or condition; the requirement is that it has that effect on
    the particular individual subject to commitment.” 
    Id. at 459
    .
    At the time Swanson was committed, he was diagnosed with paraphilia, not
    otherwise specified (nonconsent), and antisocial personality disorder. Since that
    time, Swanson has not done any specific work to treat or reduce his mental
    abnormality. Dr. Hoem opined that Swanson meets the diagnostic criteria for
    personality disorder with antisocial aspects, as well as many other criteria for
    antisocial personality disorder. Our supreme court has held “that a diagnosis of
    an antisocial personality disorder affecting a respondent’s ability to control
    behavior . . . can support a jury finding that someone is a sexually violent predator.”
    In re Det. of Stenzel, 
    827 N.W.2d 690
    , 702 (Iowa 2013). Our supreme court has
    found substantial evidence to support a finding that an offender is a sexually violent
    predator based on expert testimony diagnosing the offender “with paraphilia, not
    otherwise specified, (non-consent), as well as antisocial personality disorder.” 
    Id.
    Additionally, on the question of whether Swanson’s condition affects his emotional
    or volitional capacity, the evidence shows Swanson resists rules and supervision,
    exhibits poor problem-solving abilities, violates social boundaries, and engages in
    impulsive behavior.
    Swanson notes that Dr. Wollert testified he does not suffer from any
    condition that qualifies as a mental abnormality. Confronted with contradictory
    7
    testimony from the expert witnesses, the district court was free to accept the
    testimony of the State’s expert instead. 
    Id.
     Additionally, although Dr. Wollert
    testified that Swanson’s conditions are not mental disorders as set forth in the
    Diagnostic and Statistical Manual of Mental Disorders, “the types of conditions that
    can serve to establish a ‘mental abnormality’ are not limited to certain recognized
    diagnoses.” Barnes, 
    689 N.W.2d at 458
    .
    Viewing the evidence in the light most favorable to the State and leaving
    credibility determinations to the district court, substantial evidence supports a
    finding that Swanson has a mental abnormality affecting his emotional or volitional
    capacity.
    B. Likelihood of committing a sexually violent offense if discharged.
    Swanson also challenges the sufficiency of the evidence showing he is
    likely to engage in predatory acts that constitute sexually violent offenses if
    discharged. “‘Likely to engage in predatory acts of sexual violence’ means that the
    person more likely than not will engage in acts of a sexually violent nature.” Iowa
    Code § 229A.2(5).
    Swanson notes that the tools used to assess his risk in 2002 are no longer
    widely used.   Using the Static-99R, the most commonly used actuarial static
    instrument, both experts assessed Swanson as having a low risk of reoffending.
    In evaluating his risk, Dr. Hoem scored Swanson at a “1” and Dr. Wollert scored
    him at a “0.” However, Dr. Hoem opined that Swanson is more likely than not to
    reoffend based on individual dynamic factors. Dr. Wollert was critical of the use of
    dynamic factors to assess risk.
    8
    The district court gave greater weight to the evidence presented by Dr.
    Hoem. The court noted that Swanson’s low score on the static test was primarily
    determined by his age, because sexual desire typically reduces with age.
    However, the court did not find Swanson credible when he testified that his sexual
    urges have disappeared.          Swanson’s own testimony demonstrates why his
    professed lack of desire is of little consequence:
    Q. Mr. Swanson, you said you don’t currently have a desire to
    rape anyone; is that right? A. No, ma’am.
    Q. Did you fantasize about those things before your first
    offense? A. Rape?
    Q. Yeah. A. No, ma’am.
    Q. After you went to prison for that the first time, did you ever
    want to do it again? A. No, ma’am.
    Q. But you did; right? A. Yes, ma’am.
    The district court also noted that Swanson “refuses to actively participate in sex
    offender programming such that the veracity of his statements could be tested by
    the therapy process” and “engages in argumentative verbal behavior and
    communication that is threatening to others, which suggests that despite his age,
    he retains an aggressive nature.”
    When viewed in the light most favorable to the State, substantial evidence
    supports the finding that Swanson is likely to engage in predatory acts that
    constitute sexually violent offenses if discharged from treatment. Accordingly, we
    affirm.
    AFFIRMED.
    

Document Info

Docket Number: 18-0715

Filed Date: 5/1/2019

Precedential Status: Precedential

Modified Date: 5/1/2019