State v. Jonathan Phillips, 2010AP1490, District 4, 4/26/12
court of appeals decision (not recommended for publication); for Phillips: Steven D. Grunder, SPD, Madison Appellate; case activity; originally recommended for publication, changed per order 5/1/12
Although admittedly “inconsistent” in the way it defines “mental disorder,” when read “as a whole,” the pattern jury instruction for ch. 980 commitments (Wis JI—Criminal 2502) adequately conveys the required nexus between mental disorder and serious difficulty controlling behavior.
¶5 The court instructed the jury on the meaning of “mental disorder” using pattern jury instruction, Wis JI—Criminal 2502 (2007). The jury instruction provided, in pertinent part:
“Mental disorder” means a condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence and causes serious difficulty in controlling behavior. Mental disorders do not include merely deviant behaviors that conflict with prevailing societal standards. Not all persons who commit sexually violent offenses can be diagnosed as suffering from a mental disorder. Not all persons with a mental disorder are predisposed to commit sexually violent offenses or have serious difficulty in controlling behavior. You are not bound by medical opinions, labels, or definitions.
Wis JI—Criminal 2502 (State’s Burden of Proof 2) (emphasis added). The jury found Phillips to be a sexually violent person and the circuit court entered an order committing Phillips to a secure mental health facility.
¶11 We recognize that the challenged jury instruction contains inconsistent sentences. It first defines “mental disorder” as a condition that causes serious difficulty for a person in controlling behavior. Three sentences later, it then states that not all persons with a “mental disorder” have serious difficulty in controlling behavior. Phillips focuses his argument on the interplay of these two sentences, arguing that they are misleading to the jury and could result in the second sentence negating the remainder of the jury instruction and the jury improperly finding him a sexually violent person. The resolution of this challenge is controlled by our decision in State v. Sanders, 2011 WI App 125, 337 Wis. 2d 231, 806 N.W.2d 250. In Sanders, we addressed the same conflicting sentences and concluded that the conflict did not prevent the real controversy from being fully tried. Id., ¶14. The same is true here. To the reasoning expressly stated in Sanders, we add the following.
¶12 To determine whether the deficiencies in the challenged jury instruction could mislead a jury, as Phillips posits, the jury instruction must be read as a whole. Wille, 299 Wis. 2d 531, ¶23. We agree with the circuit court that all three elements of Wis. Stat.§ 980.01 were present in the jury instruction provided to the jury in this case. Significantly, the instruction on the dangerousness element required the jury to find that Phillips is “dangerous to others because he has a mental disorder which makes it more likely than not that he will engage in one or more future acts of sexual violence.” Accordingly, the instruction on “dangerousness” reinforces the initial explanation of “mental disorder” in the previous element; i.e., that under Wis. Stat. § 980.01, a mental disorder is one that causes serious difficulty in controlling behavior. See Laxton, 254 Wis. 2d 185, ¶¶17-21. As the Laxton court noted, reading the instruction as a whole creates the nexus between the mental disorder and the likelihood of reoffending. Id., ¶27. It provides the means by which the jury can distinguish “a dangerous sexual offender who has serious difficulty controlling his behavior, from the dangerous but typical recidivist.” Id.
In addition to changing the publication recommendation, the court amended the text of the originally-issued opinion. The new footnote 2 recognizes that the problematic instructional language has been supplanted. (“The inconsistency we address in this opinion has been eliminated.”) Undoubtedly, the perceived need for publication was also eliminated. Paragraph 11 adds reference to Sanders, which the court deems controlling (something that would separately eliminate the need for publication).