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SVP – Disposition: Supervised Release – Revocation – Sufficiency of Evidence

State v. Ervin Burris, 2004 WI 91, affirming 2002 WI App 262, 258 Wis. 2d. 454, 654 N.W.2d 866
For Burris: Joseph L. Sommers

Issue/Holding:

¶73. Judge Welker found that Burris disregarded the rules of his supervised release in order to satisfy his compulsive urges. Burris consumed alcohol, a drug that lowers inhibitions. He abused the privileges provided to him in order to meet a married woman and have sex with her, in derogation not only of the rules and conditions of his supervised release but also in direct contradiction of his supervising agent’s warning not to contact the woman. Without the permission of his supervising agent, Burris secretly sought out a drug designed to enhance his sex life. Upon discovery of this secret, Burris became angry and refused to accept the prescription, demonstrating that he knew his conduct was improper.

¶74. The court concluded that these repeated violations of the rules of his supervised release involving sex and alcohol demonstrated that written rules and conditions and verbal admonitions were inadequate to protect the public. While these major transgressions did not specifically injure others through violence, they demonstrated that Burris was unable to conform his conduct to the rules and conditions of supervised release when he sought to satisfy his physical urges. In addition, Burris was not meaningfully participating in his sex offender treatment. Hence, Burris had become a clear risk to the community. The court determined there was no option short of revocation that would ameliorate the risk to the community because the serious nature of written rules, the verbal warnings, and the importance of treatment were lost on Burris. We conclude that the evidence supports Judge Welker’s conclusion that the safety of others required that his supervised release be revoked.

“Major transgressions”? The Chief Justice points out that “Burris never obtained any Viagra, nor did he ever obtain the prescription.” Instead, a prescription slip was delivered to the house and he refused it. ¶91 n. 13. And he had what the Chief characterizes as “a consensual one-night sexual encounter … Indeed the circuit court declared that Burris would benefit from a normal sexual relationship with an adult woman.” Id. Is it, then, that his singular sexual encounter was with “a married woman” that the majority finds so alarming? Otherwise, “married” is a gratuitous descriptor.

 

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