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SVP – Sufficiency of Evidence – Difficulty Controlling Behavior

State v. Steven J. Burgess, 2003 WI 71, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81
For Burgess: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the evidence was sufficient, where the state’s expert conceded that respondent could conform his conduct to requirements of the law.


¶29. Nevertheless, Burgess claims that the expert testimony presented at trial, specifically that of Dr. Fields, established that he is able to control his behavior. Consequently, Burgess contends that the State did not prove that he cannot control his behavior due to his mental disorders as required for commitment under chapter 980. Burgess points to testimony of Dr. Fields, where she agreed that Burgess might be able to conform his conduct to the requirements of the law and that there was not “anything in the record indicating he doesn’t know the difference between right and wrong.” However, there is a critical difference between potentially being able to conform one’s conduct to the requirements of law (i.e. knowing right from wrong) and actually doing so. Even though Dr. Fields thought that Burgess might know right from wrong and might be able to abide by the law, she ultimately concluded that Burgess would not in fact conform his behavior to the law. Specifically, Dr. Fields concluded that “Burgess’ mental disorders create a substantial probability that he will commit a sexually violent act” in the future.

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