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In re Commitment of Stephenson

Court of Appeals of Wisconsin, District III

October 29, 2019

In re the commitment of Jamie Lane Stephenson:
Jamie Lane Stephenson, Respondent-Appellant. State of Wisconsin, Petitioner-Respondent,

          APPEAL from orders of the circuit court for Dunn County No. 2011CI1: ROD W. SMELTZER, Judge.

          Before Stark, P.J., Hruz and Seidl, JJ.

          STARK, P.J.

         ¶1 Jamie Stephenson appeals an order denying his petition for discharge from his commitment as a sexually violent person under Wis.Stat. ch. 980 (2017-18).[1] He also appeals an order denying his motion for postcommitment relief. Stephenson argues the circuit court erred by denying his discharge petition because the State was required-and failed-to present expert testimony that Stephenson was dangerous to others because his qualifying mental disorders made it more likely than not that he would commit a future act of sexual violence. In the alternative, Stephenson argues that even if such expert testimony was not required, the evidence at his discharge hearing was insufficient to satisfy the State's burden of proof regarding his risk of reoffense.

         ¶2 We conclude, as a matter of first impression, that the State is not required to present expert testimony in order to meet its burden of proof on the question of future dangerousness in discharge proceedings under Wis.Stat. ch. 980. We further conclude that the evidence presented at Stephenson's discharge hearing was sufficient to establish that Stephenson's qualifying mental disorders made it more likely than not that he would commit a future act of sexual violence. We therefore affirm the orders denying Stephenson's discharge petition and his motion for postcommitment relief.


         ¶3 Stephenson has a long history of committing sexual assaults. In 2000, when Stephenson was fifteen years old, he was charged with three counts of fourth-degree sexual assault. He was adjudicated delinquent on one of those counts in April 2001, and the two remaining counts were dismissed but read in at sentencing.

         ¶4 In 2001 or 2002, Stephenson was adjudicated delinquent in two separate cases on one count of second-degree sexual assault of a child and one count of repeated sexual assault of the same child.[2] Both of those cases involved the same victim, who was a female classmate of Stephenson's. In the first case, Stephenson led the victim "to a secluded area of the high school, forcefully pushed her up against a wall using both hands, pulled down her pants, and began engaging in forced intercourse." The second case was based on four additional assaults. During the first assault, Stephenson "rubbed his groin up and down along the back side of the victim," and when she asked him what he was doing, he laughed and walked away. On two other occasions, Stephenson approached the victim from behind and pressed his groin against her buttocks without her consent. On a fourth occasion, Stephenson followed the victim to a secluded area and tripped her. While she was on the floor, Stephenson lifted her left hand above her head and attempted to put his hand underneath her shirt. The victim fought Stephenson off, and as she fled he stated, "If you tell anyone, I'll kill you."

         ¶5 In 2004, the State charged Stephenson with two counts of second-degree sexual assault of a child, and he ultimately pled guilty to two counts of fourth-degree sexual assault in that case. According to a police report, Stephenson-who was nineteen at the time-engaged in sexual intercourse with two fifteen-year-old girls. Stephenson was placed on probation for two years, but his probation was later revoked, and he was sentenced to six months in jail.[3]

         ¶6 Also in 2004, Stephenson was charged in Minnesota with two counts of first-degree criminal sexual conduct-sexual penetration; two counts of second-degree criminal sexual conduct; and one count of illegal consumption of alcohol. The criminal complaint alleged that Stephenson had sexual intercourse with a twelve-year-old girl on two separate occasions. Stephenson was ultimately convicted of one count of second-degree criminal sexual conduct and was placed on probation for twenty-five years.

         ¶7 In 2007, Stephenson was charged in Wisconsin with one count of sexual assault of a child under the age of sixteen and one count of third-degree sexual assault. The first charge was based on allegations that Stephenson-who was twenty-two at the time-had sexually assaulted a fourteen-year-old girl. Stephenson began chatting with the victim online and misrepresented to her that he was seventeen years old. He ultimately met the victim at her home, and while they were cuddling, he attempted to remove the victim's shorts and underwear. The victim resisted, and Stephenson then "began rubbing [her] vagina" over her shorts and "pulled [her hand] to his exposed penis." He then "inserted his penis between [the victim's] upper legs … pulling her back and forth."

         ¶8 The second charge in the 2007 case alleged that Stephenson had sexually assaulted a sixteen-year-old girl. According to the criminal complaint, Stephenson engaged in a "brief consensual kiss" with the victim while watching a movie, but she refused to engage in any further physical activity. Despite her refusal, Stephenson "pulled down [her] pants and underwear … and engaged in forced intercourse for approximately one minute," until the victim was able to escape.

         ¶9 Stephenson pled guilty to one count of second-degree sexual assault of a child in the 2007 case, and the third-degree sexual assault charge was dismissed. In August 2009, he was sentenced to two years of initial confinement, followed by four years of extended supervision.

         ¶10 In April 2011, the State filed a petition to commit Stephenson as a sexually violent person, pursuant to Wis.Stat. ch. 980.[4] Following a bench trial in June 2012, the circuit court found that Stephenson qualified as a sexually violent person and ordered him committed to the Department of Health Services for institutional care in a secure mental health facility.

         ¶11 Stephenson has filed a petition for discharge from his Wis.Stat. ch. 980 commitment every year since 2013. The petition that is at issue in this appeal was filed in January 2017. The State conceded that Stephenson was entitled to a discharge hearing on that petition, and the hearing took place in October 2017.

         ¶12 In order to defeat Stephenson's discharge petition, the State needed to prove by clear and convincing evidence that Stephenson still met the criteria for commitment as a sexually violent person. See Wis. Stat. § 980.09(3). Thus, the State needed to prove that: (1) Stephenson had been convicted of a sexually violent offense; (2) Stephenson had a mental disorder; and (3) Stephenson was dangerous to others because he had a mental disorder that made it more likely than not that he would engage in one or more future acts of sexual violence. See Wis JI-Criminal 2506 (2017); see also Wis. Stat. § 980.01(7). It is undisputed that Stephenson has been convicted of a sexually violent offense. Accordingly, the evidence at the discharge hearing focused on the second and third elements-i.e., whether Stephenson had a mental disorder and whether he was dangerous to others because of that mental disorder.

         ¶13 In order to satisfy those elements, the State relied on the testimony of psychologist Donn Kolbeck, a member of the evaluation unit at Sand Ridge Secure Treatment Center where Stephenson has been confined since 2011. Kolbeck testified that Stephenson suffered from two qualifying mental disorders for purposes of Wis.Stat. ch. 980: (1) other specified personality disorder with antisocial and borderline features; and (2) alcohol abuse disorder.

         ¶14 As to the alcohol abuse disorder, Kolbeck explained that Stephenson's symptoms were technically "in remission" because he had not used alcohol "during the last 12 months or more" as a result of his placement "in a controlled environment which restrict[ed] his access to alcohol." Nonetheless, Kolbeck testified there was "evidence that [Stephenson's] alcohol abuse predisposed him to commit … acts of sexual violence." For instance, Kolbeck pointed to Stephenson's own admission during a recent group session that he had "never committed a crime sober." Kolbeck also cited Stephenson's long history of alcohol abuse, which began "at a very early age in childhood" and "progressed to frequent intoxication over time." In addition, Kolbeck observed that Stephenson had "disclosed in the context of various legal documents and reports that his sexual misbehavior was related to his use of alcohol."

         ¶15 Turning to Stephenson's other mental disorder, Kolbeck defined a "personality disorder" as "an enduring pattern of inner experience and behavior that deviates … markedly from the expectations of the individual's culture leading to impairments[] in cognitions, emotions, interpersonal functioning, and impulse control." He opined that Stephenson's personality disorder was a qualifying mental disorder for purposes of Wis.Stat. ch. 980 because there was a "direct causal connection" between the disorder and Stephenson's "sexually violent behaviors in the community."

         ¶16 In support of that opinion, Kolbeck noted there was evidence of "a variety of antisocial traits … at work in the period of time that [Stephenson] was sexually reoffending." For example, Kolbeck observed that Stephenson "repeatedly failed to observe societal norms" and "repeatedly engaged in behaviors that were grounds for arrest, including … a total of 13 charges for illicit sexual contact and six convictions for sexual offenses." Moreover, Kolbeck testified that Stephenson had "a history of disregard for and violation of the rights of others" and a "long history of deceitfulness, conning and manipulation in the context of his sexually violent behaviors." Kolbeck also opined that Stephenson exhibited other antisocial traits, including "impulsivity, irritability, consistent irresponsibility and a lack of remorse." Kolbeck testified that all of these antisocial personality traits "interacted in such a way … to cause that causal connection to sexually violent offending."

         ¶17 Kolbeck also discussed Stephenson's borderline traits, explaining that Stephenson had a "history of an unstable self[-]image." In addition, Kolbeck emphasized Stephenson's "[s]elf[-]damaging impulsivity," as evidenced by his "sexually impulsive promiscuous sexual encounters in the community and also by virtue of his impulsive use of alcohol."

         ¶18 Kolbeck next discussed the specific circumstances of Stephenson's 2007 offenses. He observed that Stephenson had "engage[d] in conning and manipulation to gain access to a pubescent victim." He also highlighted Stephenson's pattern of sexual assaults, emphasizing that Stephenson had continued to reoffend despite being repeatedly charged, convicted, and punished for his conduct.

         ¶19 Kolbeck also testified regarding Stephenson's behavior while committed. He acknowledged that Stephenson had not received a behavior dispositional record-the most serious behavioral sanction at Sand Ridge-during the year preceding the discharge hearing. Nevertheless, he testified that several incidents during that time period provided "evidence of antisocial traits at work." For example, he noted that Stephenson had responded untruthfully to polygraph questioning in November 2016. He also observed that during a ...

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