State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62, 2005 WI App 62
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether evidence of probation supervision was relevant to future dangerousness, and therefore should have been admitted into evidence.
¶41 … (T)he plain language of Wis. Stat. § 980.01(7) makes the existence of a mental disorder—not any extrinsic factors—the first step in determining dangerousness and the substantial probability of the person engaging in future acts of sexual violence. Therefore, we affirm the decision of the court of appeals, upholding the circuit court’s exclusion of the conditions of Mark’s probation supervision from his chapter 980 trial because, under the terms of § 980.01(7), such evidence was irrelevant in determining whether he was a “sexually violent person.”
The court thus adopts both State v. Lombard (Lombard II), 2004 WI App 52 (upholding trial court’s refusal to answer jury’s question whether Lombard would remain under supervision even if on finding not sexually violent because irrelevant to whether he was sexually violent person), and State v. Thiel, 2004 WI App 140 (recommendation of supervised release, on post-commitment petition, not relevant to “black-and-white determination” of whether will commit acts of sexual violence). The effect is also to adopt the court of appeals holding in this case, 2005 WI App 62, ¶47, “that evidence that a ch. 980 respondent will be on probation or parole if not adjudicated and committed as a sexually violent person is not relevant to the determination whether the respondent is a sexually violent person as defined in Wis. Stat. § 980.01(7); nor are the rules of any such probation or parole relevant to that determination.”