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§ 940.225(2)(c), Sexual Assault: Mentally Ill Victim – Sufficiency of Evidence

State v. Eugene M. Perkins, 2004 WI App 213, PFR filed 11/9/04
For Perkins: Jeffrey W. Jensen

Issue Whether expert testimony is required to establish the victim’s mental illness, an element of § 940.225(2)(c).

Holding: This element may be shown through credible lay opinion testimony:

¶17 Here, the State had to prove four things: (1) that Perkins had sexual contact or intercourse with H.V.; (2) that H.V. suffered from a mental illness or deficiency at the time of the sexual contact or intercourse; (3) that the mental illness or deficiency rendered H.V. temporarily or permanently incapable of appraising her conduct, or in other words, H.V. must have lacked the ability to evaluate the significance of her conduct because of her mental illness or deficiency; and (4) Perkins knew that H.V. was suffering from a mental illness or deficiency and knew that the mental condition rendered H.V. temporarily or permanently incapable of appraising her conduct. See WIS JI—CRIMINAL 1211. Perkins insists that the State failed in two regards—there was insufficient evidence to establish that H.V. suffered from a mental illness and that Perkins knew of her illness. We disagree.¶18 Perkins asserts that without expert testimony, there was insufficient evidence to establish that H.V. suffered from a mental illness. …

¶19 He does not, however, point to a single statute requiring expert testimony to prove a victim’s mental condition. Furthermore, he ignores the comment following the jury instruction for WIS. STAT. § 940.225 …. The jury is not asked to diagnose the victim’s mental illness or deficiency—the State only has to prove that the victim suffered from a mental illness or deficiency that rendered the victim incapable of appraising his or her conduct.

¶21 Moreover, when the matter to be determined is within the common understanding of the jury, lay opinion testimony may be sufficient. In light of the lack of Wisconsin precedent requiring expert testimony in cases such as this, and the lack of any statutory language defining the requisite mental illness or deficiency or requiring such testimony, we cannot conclude that expert testimony should be required in every case to establish the existence of a mental illness or deficiency rendering the victim unable to appraise his or her conduct under WIS. STAT. § 940.225(2)(c).

Perkins and H.V. were both residents of a facility for the elderly. Lay testimony indicated that H.V. was 78, had “severe Alzheimer’s,” couldn’t converse coherently, and had limited recall. This, the court says, was enough for the fact-finder to conclude “that H.V. suffered from a mental illness that rendered her incapable of appraising her conduct,” ¶23. And, because there was also evidence “that Perkins interacted with H.V. on a daily basis,” the evidence sufficiently established Perkins’ knowledge of her infirmity, ¶24. Perkins, by the way, was 60 and had suffered 3 strokes but had no cognitive impairment; he was generally confined to a wheelchair and required oxygen while he slept. His sentence? 8 years; 4 confinement, 4 supervision.

H.V.’s impaired condition seems pretty obvious, but for authority (foreign, but under similarly worded statute) that conviction isn’t supported where the victim’s IQ was in the mild to moderate retardation range; no expert evidence addressed whether this mental condition rendered her incapable of consent; and the victim’s own testimony indicated a capacity to understand the nature of sexual relations, see State v. Reed, OR SCT No. SC S51670, 9/1/05.

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