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SVP – Discharge Proof

State v. Eric James Hendrickson, 2010AP1181, District 3/4, 3/10/11

court of appeals decision (not recommended for publication); for Hendrickson: Jefren E. Olsen, SPD, Madison Appellate; case activity

Under State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784, proof of a mental disorder implicitly proves requisite risk of sexually violent recidivism (“serious difficulty” controlling behavior). Therefore, “direct evidence” of such difficulty, such as in the form of an expert opinion, isn’t necessary. In the present instance, Hendrickson’s conceded discharge proceeding proof of his mental disorder necessarily rendered irrelevant expert witness testimony that “serious difficulty” controlling behavior can’t be defined.

¶15      Laxton plainly holds that the “serious difficulty” requirement of Hendricks and Crane is met by proof of a mental disorder and “proof that due to a mental disorder it is substantially probable that the person will engage in acts of sexual violence.”  Laxton, 254 Wis. 2d 185, ¶23.  And, we repeat here, Hendrickson does not argue that proof was lacking that he had a mental disorder that made it substantially probable that he would engage in acts of sexual violence or, in the words of the current jury instruction, that Hendrickson has a “mental disorder [that] makes it more likely than not that he will engage in future acts of sexual violence.”  See Wis JI—Criminal 2506, at 2 (footnote omitted).

¶16      Finally, we note that we do agree with Hendrickson’s assertion that the State’s responsive brief incorrectly states that serious difficulty controlling behavior has been rendered irrelevant by Laxton.  Plainly, under Crane, serious difficulty controlling behavior must be proven, and the Laxton majority accepts this requirement as a given.  It is the way the Laxton majority deals with that requirement that is at the heart of the dispute in Laxton, as it is here.  The Laxton majority does not say or imply that this requirement is irrelevant.  Rather, the Laxton majority takes the view that this proof requirement is necessarily met when the State proves that a Wis. Stat. ch. 980 respondent has a mental disorder that makes it substantially probable—now “more likely than not”—that he or she will engage in acts of sexual violence.  Thus, the point of Laxton is not that “serious difficulty” is irrelevant but, rather, that “serious difficulty” is adequately addressed by a differently worded requirement.

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