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SVP – Trial – Jury Instructions – Serious Difficulty Controlling Behavior

State v. John Lee Laxton, 2002 WI 82, affirming unpublished court of appeals decision
(Affirmed on other grounds, habeas review, John L. Laxton v. Bartow, 421 F.3d 565 (7th Cir 2005))
For Laxton: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether the jury instructions adequately conveyed the requirement of mental disorder causing serious difficulty in controlling behavior.

Holding: Though Laxton waived objection on this ground, ¶26, the court reviews the issue in its discretion:

¶27. We reject Laxton’s argument that the circuit court’s instructions to the jury denied him due process of law. We have already concluded that Wis. Stat. ch. 980 satisfies due process requirements because proof that a person is sexually violent necessarily and implicitly includes proof that the person’s mental disorder involves serious difficulty in controlling his or her behavior. Here, the jury instructions virtually tracked the definitions of “mental disorder” and “sexually violent person” in Wis. Stat. § 980.01. The circuit court instructed the jury, in part:

The second fact that must be established is that the respondent has a mental disorder. Mental disorder means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to engage in acts of sexual violence.

The third fact that must be established is that the respondent is dangerous to others because he has a mental disorder which creates a substantial probability that he will engage in acts of sexual violence. A substantial probability means much more likely than not.

By concluding that Laxton has a mental disorder and that his mental disorder creates a substantial probability that he will engage in acts of sexual violence, the jury had to conclude that Laxton’s mental disorder involved serious difficulty for him in controlling his behavior. This nexus between the mental disorder and the level of dangerousness distinguishes Laxton as a dangerous sexual offender who has serious difficulty controlling his behavior, from the dangerous but typical recidivist. We conclude, therefore, that the jury was properly instructed and that the jury instructions did not violate substantive due process.

(Accord, State v. Shawn Virlee, 2003 WI App 4, ¶8, PFR filed 1/3/03.)

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