In re the Detention of Cory Blake West ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0641
Filed August 15, 2018
IN RE THE DETENTION OF CORY BLAKE WEST,
CORY BLAKE WEST,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, Shawn R. Showers,
Judge.
Cory West appeals from the jury verdict finding that his mental abnormality
has not changed such that he is suitable for discharge from civil commitment as a
sexually violent predator. AFFIRMED.
Jason Dunn of State Public Defender’s Office, Sioux City, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., Vogel, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2
DANILSON, Chief Judge.
Cory West appeals from the jury verdict finding that his mental abnormality
has not changed such that he is suitable for discharge from civil commitment as a
sexually violent predator. Because there is substantial evidence from which the
jury could find West was not suitable for discharge from civil commitment, we
affirm.
On September 1, 2011, a jury found West was a sexually violent predator
(SVP) as defined by Iowa Code chapter 229A.1 In re Det. of West, No. 11-1545,
2013 WL 988815, at *1 (Iowa Ct. App. Mar. 13, 2013) (affirming SVP finding).
Pursuant to that finding, West was confined at the Civil Commitment Unit for Sex
Offenders (CCUSO).
West progressed through the CCUSO programming and moved to
transitional release in 2013,2 working at a food processing plant. In the summer
of 2014, West was harassed at work. Several days later, he cut off his ankle
monitor, purchased a plane ticket, and flew to Oklahoma. Once there, he checked
1
Iowa’s civil commitment statute defines a SVP as a person who has been convicted of
or charged with a sexually violent offense and suffers from a “mental abnormality” that
makes the person “likely to engage in predatory acts of sexual violence” if not confined in
a secure facility. Iowa Code § 229A.2(5) (2015) (defining “likely to engage in predatory
acts of sexual violence”), (12) (defining “sexually violent predator”). The statute defines a
“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).
2
“Transitional release is a treatment phase in which the committed person ‘is gradually
given increasing opportunities to live in less restrictive settings. The patient is monitored
closely, assessed clinically, and provided support as the patient takes on increasing
responsibility for the patient’s own care.’” Taft v. Iowa Dist. Ct. ex rel Linn Cty., 828
N.W.2d 309, 322 (Iowa 2013) (citation omitted).
3
into a hotel. He registered as a sex offender and was arrested four days later.
Upon his return to Iowa, West restarted the CCUSO programming.
In July 2016, West was identified as a person who might benefit from
counseling with a trauma group conducted by psychologist, Dr. Jane Daniel.
During group counseling, West reported he was having night terrors related to the
2014 harassment:
What he reported to me was that . . . in 2014 in the summer, . . . he
was assaulted in his place of employment by a coworker, slash,
supervisor type person. And the person attempted or threatened
sexual assault in the shower, and then threatened physical assault
with a knife immediately following that.
In August, West also began individual counseling with Dr. Daniel, with whom he
met eighteen times over the next several months.
At the CCUSO, West reached Phase IV, Level 5, the highest level of
privileges prior to transitional release. He has remained at that level for eighteen
months and seeks discharge.
On December 5, 2016, an annual-review hearing was held.3 The district
court “acknowledged [receipt of] the November 28th annual report of Dr. Richard
B. Krueger, which counsel agree is relevant and reliable evidence to rebut the
3
At an annual review,
The burden is on the committed person to prove by a preponderance of the
evidence that there is relevant and reliable evidence to rebut the
presumption of continued commitment, which would lead a reasonable
person to believe a final hearing, should be held to determine either of the
following:
(a) 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 discharged.
(b) The committed person is suitable for placement in a
transitional release program pursuant to section 229A.8A.
Iowa Code § 229A.8(5)(e)(1). See Taft, 828 N.W.2d at 318 (discussing burden under
recently amended provision).
4
presumption of continued commitment such that it would lead a reasonable person
to believe a final hearing should be held.” The district court scheduled a final
hearing on West’s request for discharge.
A jury trial was held on March 21-23, 2017. Dr. Anna Salter, the State’s
expert witness, testified she believed West continued to suffer from a mental
abnormality that made him more likely than not to engage in another sexually
predatory act. Dr. Salter consulted West’s permanent file, his CCUSO notes, and
his records. She also interviewed him and scored him with the Static-99R actuarial
instrument. Dr. Salter stated West was diagnosed with a paraphilic disorder not
otherwise specified (NOS), arousal to non-consenting partners. In Dr. Salter’s
interview with West, West acknowledged a past practice of “taking advantage of
women” and “choosing to have nonconsensual sex.” He acknowledged deriving
enjoyment from “being able to manipulate [women] into something I wanted them
to do, which was still nonconsensual.” Dr. Salter found these statements were
consistent with his prior diagnosis of paraphilia NOS—non-consent.
Dr. Salter opined West remained more likely than not to commit another
sexual offense if released. Dr. Salter scored West a four on the Static-99R. Using
“high risk” actuarial norms, she found West was a member of a group of which
27.3 percent were caught for a new offense within the first ten years of release, or
almost twice as likely to reoffend and be caught as the average sex offender. She
testified that though the Static-99R was a valuable and widely-used tool, it was
incomplete as it only provided a statistical likelihood of re-offense and arrest. She
noted rapes and sexual assaults are underreported. Moreover, Dr. Salter
observed the Static-99R provides statistical analysis for five and ten-year sample
5
sizes and does not assess an individual’s lifetime chances for offense as Iowa
Code section 229A.2(5) inquires. In addition, because the Static-99R examines
“static” factors of an individual’s makeup, the instrument does not examine
“dynamic” factors such as changes in an individual through therapy and
conditioning. Thus, Dr. Salter also evaluated a number of dynamic factors to
assess West’s likelihood of re-offense—including sexualized violence,
manipulation, grievance and hostility, a lack of emotionally intimate relationships,
a lack of concern for others, poor problem solving, and dysfunctional coping—all
of which indicated to Dr. Salter that West was more likely than not to commit further
acts of sexual violence.
Dr. Salter also noted recent incidents suggested West’s preoccupation with
manipulation continued. In mid-2015, West had reached out to the Centers
Against Abuse and Sexual Assault (CAASA) requesting services and materials for
dealing with trauma following his harassment at the food plant. Within the year
prior to trial, West repeatedly contacted a woman who worked with the CAASA.
Although the woman stated CAASA could not provide direct services to West,
Aaron Blood (West’s therapist) did request materials on West’s behalf. Thereafter,
West personally requested additional materials intended for male victims from the
woman at CAASA. He made multiple telephone calls a week to her, left voicemails,
and sent thank you cards. He proposed that she come to CCUSO to give a
presentation on CAASA’s services, remarking that he was “on the CCUSO
committee and they would like to highlight CAASA’s agency in order to give back.”
In pursuing the visit, West commented that some sexual abusers were themselves
victimized at one time or another. The woman was unclear what sort of
6
presentation West was seeking, and indicated that even if she were to make a
presentation, she would need to bring someone along. The next day she received
a thank-you card from West and a visitation application for the proposed
presentation. The card read, “[Blood] asked me to send this to you and that he
also provided an additional form for another person to come.” The woman
telephoned Blood about excessive contacts from West. Blood informed her he
had not requested a presentation; rather, West had informed Blood that CAASA
wanted to come to CCUSO and speak to the inmates about their services. Blood
asked the woman to write a letter, which she did. West was told not to contact her
again. Dr. Salter also observed that a person identifying herself as a realtor had
called CCUSO and asked that West not be allowed to call her anymore. CCUSO
personnel had not kept a good record of this contact and the call could not be
confirmed.
West testified about his ten months in transitional release. He
acknowledged developing and maintaining a relationship with a woman during that
time despite being told by his treatment team to no longer have any contact with
her. He testified about his coworker who harassed him, assaulted him in the
shower, threatened to rape him, and pulled a knife on him. West stated he did not
report the threat or the knife incident at work but gave a CCUSO program
supervisor “a brief overview” of what had occurred, and West was told, “Well, just
deal with it then.” West absconded about a week later. He purchased a plane
ticket on Saturday. On Sunday, West lied about having to work and left CCUSO,
cut off his GPS tracking unit, drove his car to work, where he was met by a cab he
had ordered, and was taken to the airport. When he arrived in Oklahoma, he called
7
an Iowa police department (which was neither in the county where he worked or
where CCUSO was) and reported “what had happened to me.” West described
his treatment plan upon his return to CCUSO programming. He discussed the
“dynamic risk factors” (or “things that you can actually change”) he was working on
explaining, “I’ve been looking at in the last year and a half, two years, is being able
to redevelop a lot of the structure that I didn’t have whenever I was offending and
being able to manage that structure on a day-to-day basis.”
Dr. Kreuger testified for West. He first opined that West did not suffer from
a mental abnormality, and instead only made a diagnosis of “alcohol abuse in
sustained remission in a controlled environment.” In Dr. Kreuger’s view, a
diagnosis of paraphilia NOS, non-consent, would require the individual to engage
in multiple physically coercive rapes, equating the requisite conduct with sexual
sadism. Based upon this definition, Dr. Kreuger found West “did not fit that
criteria.” He noted West had “a sort of unusual, screwy way of, sort of, trying to
meet women, meet individuals, but the essence of the matter where one is forcing
or coercing somebody was not present basically, so I don’t think that he meets the
criteria” of paraphilia NOS, non-consent. Dr. Krueger also stated that he believed
West’s chances of re-offense were “remote.” While he, too, scored West a four on
the Static-99R, he relied upon the “regular” norming tables, rather than the “high
risk” tables Dr. Salter used. Nor did Dr. Kreuger consult the updated coding rules
released in 2016. He also ran West through a battery of other
assessment instruments, some of which were outdated and not recommended in
current practice. Dr. Krueger opined West was not more likely than not to commit
future acts of predatory violence.
8
The jury was instructed as follows:
Instruction No. 9
In order to prove [West] is not suitable for discharge from civil
commitment, the State must prove that [West]’s mental abnormality
remains such that he is likely to engage in predatory acts that
constitute sexually violent offenses if he is discharged.
Instruction No. 10
As used in these Instructions, the term “mental abnormality”
means a congenital or acquired condition affecting the emotional or
volitional capacity and predisposing the person to commit sexually
violent offenses to a degree that causes the person serious difficulty
in controlling his behavior.
You are instructed that at the time of his commitment in 2011,
[West] was determined to be suffering from at least one mental
abnormality.
Instruction No. 11
As used in these Instructions, the term “predatory acts” means
engagement or dealings with another person which is primarily
aimed at victimizing the person in a sexual manner.
Instruction No. 12
As used in these Instructions, the term “likely to engage in
predatory acts constituting sexually violent offenses” means that the
person more likely than not will engage in acts constituting sexually
violent offenses. The word “likely” means that a proposition is more
probably true than not.
You are instructed that at the time of [West]’s commitment in
2011, it was determined that he was likely to engage in predatory
acts constituting sexually violent offenses if not confined in a secure
facility.
The jury returned a verdict finding West’s mental abnormality had not
changed such that he is suitable for discharge from civil commitment. The trial
court denied West’s motions for directed verdict, judgment notwithstanding the
verdict, and new trial.
West appeals, arguing there is insufficient evidence that he continues to
suffer a mental abnormality and that he is more likely than not to commit future
acts of sexual violence.
9
We review West’s challenge 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 the jury’s finding if it is supported by substantial evidence.
See id. In determining whether substantial evidence supports the finding, we
consider the evidence in the light most favorable to the State, including all
legitimate inferences and presumptions that may be fairly and reasonably deduced
from the record. See id. Evidence that raises only suspicion, speculation, or
conjecture is insufficient. See id.
At a final hearing, it is the State’s burden to prove beyond a reasonable
doubt “either of the following: (1) The committed person’s mental abnormality
remains such that the person is likely to engage in predatory acts that constitute
sexually violent offenses if discharged. (2) The committed person is not suitable
for placement in a transitional release program pursuant to section
229A.8A.”4 Iowa Code § 229A.8(6)(d).
4
Section 229A.8A(2) provides in part:
A committed person is suitable for placement in the transitional
release program if the court finds that all of the following apply:
(a) The committed person’s mental abnormality is no longer
such that the person is a high risk to reoffend.
(b) The committed person has achieved and demonstrated
significant insights into the person’s sex offending cycle.
(c) The committed person has accepted responsibility for
past behavior and understands the impact sexually violent crimes
have upon a victim.
(d) A detailed relapse prevention plan has been developed
and accepted by the treatment provider which is appropriate for the
committed person's mental abnormality and sex offending history.
(e) No major discipline reports have been issued for the
committed person for a period of six months.
(f) The committed person is not likely to escape or attempt
to escape custody pursuant to section 229A.5B.
(g) The committed person is not likely to engage in
predatory acts constituting sexually violent offenses while in the
program.
10
The jury was presented opposing expert witness opinions. Determining
witness credibility and weighing evidence is the job of the factfinder. See In re Det.
of Barnes, 689 N.W.2d 455, 461 (Iowa 2004). In doing so, the jury was free to
reject the testimony of Dr. Kreuger and accept the testimony of Dr. Salter. See In
re Det. of Hennings, 744 N.W.2d 333, 340 (Iowa 2008) (“The jury was free to reject
the testimony of Hennings’s expert witnesses and to instead accept the testimony
of [the State’s expert witness].”). In reaching its conclusion, the jury was entitled
to consider the entire testimony of the experts including their credentials. Our
review of the record reveals substantial evidence from which the jury could find
beyond a reasonable doubt that West remains subject to confinement as a SVP.
Finding no basis for reversal, we affirm.
AFFIRMED.
(h) The placement is in the best interest of the committed
person.
(i) The committed person has demonstrated a willingness to
agree to and abide by all rules of the program.