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In re Commitment of Franklin4/1/2004
opriate legal standard to the relevant facts in the case." "If a judge bases the exercise of his discretion upon an error of law, his conduct is beyond the limits of discretion."
. The majority opinion contends that "the circuit court's patient attention to the arguments and the testimony presented" demonstrated a proper exercise of discretion. I disagree with this characterization of the record.
. In making its determination to admit the evidence, the circuit court did not examine the evidence of the defendant's prior juvenile convictions, non-sexual adult convictions, or institutional conduct reports for their relevance. The circuit court never ruled on how each of these types of evidence is relevant to show that the defendant had a mental disorder that makes it substantially probable that he will engage in future acts of sexual violence. Rather, the circuit court merely asserted that all of the evidence was relevant without considering the legal requirements of chapter 980.
. Had the circuit court examined and analyzed the evidence of the defendant's prior non-sexual misconduct, it would have concluded as a matter of law that none of this evidence was relevant.
. Relevance is governed by Wis. Stat. § 904.01. In the context of a chapter 980 proceeding, evidence is relevant if it pertains to "a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." In order to address relevance, I must first set forth certain facts that are not clearly provided in the majority opinion. I then address the majority opinion's erroneous explication of the State's and the defendant's expert witnesses and U.S. Supreme Court precedent to support its conclusion that evidence of the defendant's prior non-sexual misconduct was relevant.
A
. At trial, the defendant sought to exclude evidence of three types of prior non-sexual misconduct contained in presentence investigation reports and other institutional records from being read to the jury by a probation and parole agent. Those pieces of evidence were: (1) his juvenile record; (2) his prior adult criminal record for crimes unrelated to sexual activity; and (3) conduct violations while he was incarcerated. The defendant did not contest the admission of his prior misconduct that was sexual in nature.
. The circuit court denied the defendant's motion to exclude this evidence and allowed the probation and parole agent to testify. As a result of that decision, the State introduced instances of the defendant's prior non-sexual misconduct into evidence, including the following:
Juvenile conduct:
• 1970: Uncontrollable conduct.
• 1971: Uncontrollable conduct.
• 1971: Loitering, escape from custody, obstructing an officer, running away, uncontrollable and disorderly conduct, fleeing and fornication.
Adult conduct:
• 1973: Battery. Convicted and sentenced to one year of probation.
• 1975: Theft misdemeanor. Convicted and sentenced to 6 months, stayed and 1-year probation.
• 1976: Theft from person, obstructing an officer and theft. Convicted and sentenced to two years.
• 1978: Battery. Convicted and sentenced to 6 months.
Institutional conduct (107 minor and 19 major incidents):
• Attempted battery
• Battery, disobeying orders, disruptive conduct, threats
• Fighting
• Disobeying orders, disrespect, threats
• Disobeying orders, disrespect, threats
• Attempted escape
. At trial, the probation and parole
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