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In re Commitment of Franklin4/1/2004
ions, Doren reviewed the records that Franklin complains should not have been admitted. Doren opined that the 1978 battery did have a sexual component and if not interrupted it would have led to a sexual assault. He noted that while incarcerated, Franklin has had repeated instances of out-of-control conduct and that Franklin has said that he was not in control of what happened during the sexual crimes of which he was convicted. Doren opined that since Franklin was a juvenile he has had difficulties controlling his behavior and that this lack of control is a feature of his paraphilia. Doren also explained that each time Franklin was released from a controlled environment, he soon committed another act of sexual violence, showing a compulsion to continue non-consensual sexual interactions. And finally, his department of correction records and the pre-sentence reports show Franklin has not completed treatment programs for his sexual disorder while confined. Doren said it was his opinion that Franklin suffers from a mental disorder, paraphilia, and it is substantially probable that if released from confinement, Franklin will commit acts of sexual violence in the future due to that mental disorder.
. In ruling on Franklin's motion, the circuit court considered the potential relevancy of the challenged evidence and concluded it had some degree of relevancy to whether Franklin was a sexually violent person, but the weight was for the jury. It also concluded that the evidence appeared to support Franklin's case as well as the State's, and that there was no unfair prejudice. Based on this record and the circuit court's patient attention to the arguments and the testimony presented, we cannot say the circuit court erroneously exercised its discretion in concluding that the evidence at issue was relevant and not unfairly prejudicial.
. Our opinion in this regard is supported by Doren's diagnosis that Franklin has a mental disorder that features uncontrolled, aggressive conduct. Franklin has a long history of repeatedly being out-of-control, commencing with his juvenile court adjudications, continuing in his adult criminal conduct and in his failure to conform his behavior to established rules when on probation, parole or when within a correctional institution. Other courts have noted past uncontrolled behavior is relevant to whether a person will exhibit uncontrolled behavior in the future. See Wolfe, 246 Wis. 2d 233, . As the United States Supreme Court has explained, " revious instances of violent behavior are an important indicator of future violent tendencies." Kansas v. Hendricks, 521 U.S. 346, 357-58 (1997) (quoting Heller v. Doe, 509 U.S. 312, 323 (1993)). Here, even though all of the past examples of uncontrolled conduct did not relate to sexual acts, they were relevant to Franklin's diagnoses of paraphilia and of schizophrenia, as both experts used this evidence to support their opinions. Additionally, as the record in this case shows, the standard risk assessment for sexual offenders takes into account all past violations of the law in attempting to evaluate the probability of future sexually assaultive behavior. However, those violations that are sexually related are weighted more heavily in the assessment. Both experts testified that they used these risk assessment tools. We agree that the evidence is relevant.
. We also agree that the probative value of this evidence is not substantially outweighed by unfair prejudice to Franklin. See Wis. Stat. § 904.03. Almost any relevant evidence presented by the State would be prejudicial to Franklin. The test, however, is whether the evidence is unfairly prejudicial. Evidence is unfairly prejudicial if it has "a tendency to influence the out
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