In re Detention of Larry Nicklus Dean Howard, Jr. ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0855
Filed July 26, 2023
IN RE DETENTION OF LARRY NICKLUS DEAN HOWARD, JR.,
LARRY NICKLUS DEAN HOWARD, JR.,
Respondent-Appellant.
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Appeal from the Iowa District Court for Butler County, DeDra L. Schroeder,
Judge.
Larry Howard appeals his civil commitment as a sexually violent predator.
AFFIRMED.
Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.
Brenna Bird, Attorney General, and Kyle Hanson and Keisha F. Cretsinger,
Assistant Attorneys General, for appellee State.
Considered by Bower, C.J., Badding, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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CARR, Senior Judge.
Larry Howard appeals from his civil commitment as a sexually violent
predator under Iowa Code chapter 229A (2022). He argues on appeal that the
State did not prove he was a sexually violent predator under the chapter, namely
being a person who has been convicted of or charged with a sexually violent
offense and who suffers from a mental abnormality that makes the person likely to
engage in predatory acts constituting sexually violent offenses, if not confined in a
secure facility. On review, we affirm the district court, finding sufficient evidence
to support its findings.
I. Background Facts & Proceedings
Howard is a twenty-seven-year-old man with a long history of sexual abuse
of minors. From the age of thirteen onwards, he abused strangers and his half-
sisters several times, all of whom were substantially younger than him. These
incidents led to several rounds of treatment programs and incarceration for
Howard, the most recent of which occurred in the past several years.
The State filed a petition in February 2022 for Howard to be civilly committed
as a sexually violent predator under Iowa Code chapter 229A. After a preliminary
hearing, the district court entered an order finding probable cause existed that
Howard was a sexually violent predator. The court also ordered further
proceedings on the issue, with Howard to be held and professionally evaluated in
order to make further determinations on whether he should remain committed.
Howard was then evaluated by Dr. Rachel Kahn, on behalf of the State, and
by Dr. Luis Rosell, on behalf of Howard. The parties submitted reports, and the
court heard testimony from both experts at a second hearing in April 2022. The
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experts disagreed in their assessments of Howard. Dr. Kahn diagnosed Howard
with pedophilic disorder and other specified personality disorder that straddled the
line between antisocial and borderline personality disorder, both of which qualified
as a mental abnormality. She also opined that these disorders and several other
factors, such as risk assessments she took of Howard, showed he was more likely
than not to reoffend if released. In contrast, Dr. Rosell did not find any mental
abnormalities, opining that Howard only suffered from pedophilic disorder, which
did not qualify as an abnormality because it could be controlled. Dr. Rosell also
believed that Howard could control his behaviors and it was more likely than not
he would not reoffend if released back to the general population.
After a hearing, the district court issued its order finding Howard to be a
sexually violent predator and committed him to the custody of the Iowa Department
of Human Services1 for control, care, and treatment. Howard now appeals.
II. Standard of Review
We review challenges to the sufficiency of the evidence for corrections of
errors at law. In re Det. of Barnes, 689 N.W.2d 455, 457 (Iowa 2004). We will
uphold the court’s decision if substantial evidence exists “upon which a rational
trier of fact could find the respondent to be a sexually violent predator beyond a
reasonable doubt.” In re Det. of Betsworth, 711 N.W.2d 280, 286 (Iowa 2006). “To
determine whether 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
1 The Iowa Department of Human Services is now known as the Iowa Department
of Health and Human Services.
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the record.” In re Det. of Swanson, 668 N.W.2d 570, 574 (Iowa 2003) (internal
quotations and citations omitted).
III. Discussion
Iowa Code section 229A.2(13) defines “sexually violent predator” 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.” Howard concedes he has been convicted of a sexually violent offense,
but he contends the State failed to establish that he suffers from a mental
abnormality which makes him likely to engage in predatory acts constituting
sexually violent offenses, if not confined in a secure facility. See Iowa Code
§ 229A.2.
Howard first argues the State did not sufficiently establish that he suffered
from a mental abnormality. He contends that because Dr. Rosell did not diagnose
Howard with a mental abnormality and discounted Dr. Kahn’s testimony, the district
court should have ruled in Howard’s favor on this issue.
On review, we find sufficient evidence to show that Howard suffers from a
mental abnormality. Under chapter 229A, a “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).
On review, we find Dr. Kahn’s report and testimony constituted more than
enough evidence to fit this definition of a mental abnormality. Dr. Kahn first found
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Howard’s pedophilic disorder qualified as a mental abnormality, as it affected his
emotional and volitional capacity and predisposed him to reoffend. This diagnosis
alone was enough to satisfy the qualification of a mental abnormality. See In re
Det. of Darling, 712 N.W.2d 98, 100 (Iowa 2006) (collecting cases and ruling,
“Darling’s mental abnormality—pedophilia—is a proper foundation for his
commitment under chapter 229A”).
In addition, Dr. Kahn diagnosed Howard with other specified personality
disorder, which also satisfied this condition of mental abnormality. She testified
that this personality disorder caused volitional and emotional impairment, caused
serious difficulty controlling his sexual behavior, and was the definition of a mental
abnormality. See also Barnes, 689 N.W.2d at 459 (finding that antisocial
personality disorder could qualify as a mental abnormality under chapter 229A).
Dr. Rosell disagreed whether Howard had a mental abnormality, but his different
opinion does not compel a finding in Howard’s favor. See State v. Jones, 967
N.W.2d 336, 339 (Iowa 2021) (“[T]he ultimate question is whether [the evidence]
supports the finding actually made, not whether the evidence would support a
different finding.”) (internal quotations and citations omitted); see also Barnes, 689
N.W.2d at 461 (giving weight to the district court’s judgment on an issue that hinged
on two different expert opinions). Dr. Kahn’s report and testimony constitute
sufficient evidence of a mental abnormality on two different bases.
Second, Howard argues that insufficient evidence existed to show that he
was more likely than not to reoffend. He asserts Dr. Rosell’s report and testimony
demonstrates that he could control himself and would not be likely to reoffend if
released. He argues that the testimony and evidence shows that if released, he
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could control himself, and his support structure would ensure that he would not be
likely to reoffend.
We disagree and affirm the district court on this issue. Within her
assessment of Howard, Dr. Kahn identified several risk factors she found made
Howard more likely than not to reoffend if released, such as his denial of sexual
attraction to children, his lack of candor during his assessment, and his plan to
never have sex for the rest of his life. These factors, among others, led Dr. Kahn
to rate Howard “well above likely” to reoffend, with a fifty-six percent chance of
reoffending over the next twenty years. While Dr. Rosell provided a different
opinion disagreeing with Dr. Kahn’s assessment, a different opinion does not
necessitate a different outcome. See Jones, 967 N.W.2d at 339; Barnes, 689
N.W.2d at 461. Substantial evidence in the record supports the district court’s
finding that Howard was more likely than not to reoffend if released.
IV. Conclusion
We reject Howard’s arguments on appeal and affirm the district court’s
findings and judgment.
AFFIRMED.