In Re the Detention of Perry Cummings ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1955
Filed March 23, 2016
IN RE THE DETENTION OF
PERRY CUMMINGS,
Respondent-Appellant.
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Appeal from the Iowa District Court for Fayette County, John J.
Bauercamper, Judge.
Perry Cummings appeals a district court order determining he was a
sexually violent predator. AFFIRMED.
Adam C. Gregg, State Public Defender, and Thomas J. Gaul, Assistant
State Public Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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VAITHESWARAN, Presiding Judge.
Perry Cummings appeals a district court order determining he was a
sexually violent predator. He contends the evidence was insufficient to support
the determination.
A “sexually violent predator” 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) (2013).1 Our review of the district court’s application of this
definition is for substantial evidence. In re Det. of Hennings, 744 N.W.2d 333,
340 (Iowa 2008).
The first element of the definition—a “sexually violent offense”—lists
several crimes, including “[a] violation of any provision of chapter 709.” Iowa
Code § 229A.2(10)(a). Cummings conceded he was convicted of assault with
intent to commit sexual abuse in violation of section 709.11. Accordingly, this
element was satisfied.
We turn to the “mental abnormality” element. 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.” Id.
1
The chapter 229A definitions are renumbered in the 2015 code, but the substance of
the provisions are the same.
3
§ 229A.2(5). The State presented uncontroverted expert testimony2 on this
element. Dr. Anna Salter diagnosed Cummings with “other specified personality
disorder.” She stated his personality disorder was “definitely in the antisocial
area” and she listed the events in his life conforming with the criteria for antisocial
personality disorder. She also stated people like him with a “constellation of
personality traits,” together with a “risk factor of high psychopathy,” did not have
“brakes woven into their personality.” She agreed Cummings lacked these
brakes and his disorder constituted a “mental abnormality.”
We are left with whether Cummings was “likely to engage in predatory
acts constituting sexually violent offenses, if not confined in a secure facility.” Id.
§ 229A.2(11). A person is “likely to engage in predatory acts of sexual violence”
if “the person more likely than not will engage in acts of a sexually violent nature.”
Id. § 229A.2(4). Dr. Salter considered “static” as well as “dynamic” risk factors in
reaching her opinion that Cummings was “more likely than not to reoffend” if
released.
The cited evidence amounts to substantial evidence in support of the
district court’s determination that Cummings met the definition of a “sexually
violent predator.” See In re Det. of Stenzel, 827 N.W.2d 690, 702 (Iowa 2013)
(“[A] diagnosis of an antisocial personality disorder affecting a respondent’s
ability to control behavior—a diagnosis . . . made here—can support a jury
finding that someone is a sexually violent predator.”). Accordingly, we affirm the
court’s order committing Cummings “to the custody of the Iowa Department of
2
Cummings’ brief makes reference to a defense expert. It is apparent from the context
that the paragraph containing this reference was copied from another brief. Cummings
did not call an expert witness to counter the State’s evidence.
4
Human Services to be held in a secure facility for control, care, and treatment
until such time as his mental abnormality has so changed that he is safe to be at
large in the community.”
AFFIRMED.