IN THE SUPREME COURT OF IOWA Supreme Court No APPEAL FROM THE IOWA DISTRICT COURT FOR FAYETTE COUNTY THE HONORABLE JOHN J. BAUERCAMPER, JUDGE

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1 IN THE SUPREME COURT OF IOWA Supreme Court No ELECTRONICALLY FILED JUL 03, 2017 CLERK OF SUPREME COURT IN RE THE DETENTION OF RONALD E. TRIPP, Respondent Appellant. APPEAL FROM THE IOWA DISTRICT COURT FOR FAYETTE COUNTY THE HONORABLE JOHN J. BAUERCAMPER, JUDGE THOMAS J. MILLER Attorney General of Iowa APPELLEE S BRIEF TYLER J. BULLER Assistant Attorney General Hoover State Office Building, 2nd Floor Des Moines, Iowa (515) (515) (fax) tyler.buller@iowa.gov KEISHA F. CRETSINGER Assistant Attorney General ATTORNEYS FOR PLAINTIFF-APPELLEE FINAL 1

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... 3 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW... 5 ROUTING STATEMENT... 6 STATEMENT OF THE CASE... 7 ARGUMENT I. The District Court Properly Found the Respondent Was Subject to Commitment Because He Was Both Presently Confined and Committed a Recent Overt Act A. The respondent was presently confined because he was serving the 903B portion of his sentence for a sexually violent offense B. The respondent committed a recent overt act by groping a woman, as found by the administrative parole judge II. Error Was Not Preserved as to the Stenzel Objection and the Defendant s Complaints on Appeal Lack Specificity. But Even If the Issue Was Properly Preserved and Raised, the Objection Was Without Merit CONCLUSION REQUEST FOR NONORAL SUBMISSION CERTIFICATE OF COMPLIANCE

3 TABLE OF AUTHORITIES Federal Case Jackson v. California Dep t of Mental Health, 318 F. App x 582 (9th Cir. 2009) State Cases City of Orange City v. Lot 10, No , 2002 WL (Iowa Ct. App. Jan. 28, 2002) Hale v. State, 891 So.2d 517 (Fla. 2004) Holtcamp v. State, 259 S.W.3d 537 (Mo. 2008) In re Civil Commitment of P.Z.H., 873 A.2d 595 (N.J. Super. 2005) In re Det. of Gonzales, 658 N.W.2d 102 (Iowa 2003)... 19, 20, 23 In re Det. of Johnson, No , 2012 WL (Iowa Ct. App. May 23, 2012) In re Det. of Shaffer, 769 N.W.2d 169 (Iowa 2009)... 16, 17, 18, 19 In re Det. of Stenzel, 827 N.W.2d 690 (Iowa 2013)... 28, 29, 30 In re Det. of Willis, 691 N.W.2d 726 (Iowa 2005) In re Detention of Altman, 723 N.W.2d 181 (Iowa 2006) In re Detention of Wilber W., 53 P.3d 1145 (Ariz. 2002) In re Manigo, 728 S.E.2d 32 (S.C. 2012) In re Matlock, No , 2003 WL (Iowa Ct. App. Feb. 12, 2003) In re W.G., No , 2002 WL (Iowa Ct. App. June 19, 2002) Marshall v. State, 125 P.3d 111 (Wash. 2005) Shumate v. Drake Univ., 846 N.W.2d 503 (Iowa 2014)

4 State v. Casady, 491 N.W.2d 782 (Iowa 1992) State v. Hanes, 790 N.W.2d 545 (Iowa 2010) State v. Harkins, 786 N.W.2d 498 (Iowa Ct. App. 2009)... 17, 18, 19 State v. Harlow, 325 N.W.2d 90 (Iowa 1982) State v. Matheson, 684 N.W.2d 243 (Iowa 2004) State v. Piper, 663 N.W.2d 894 (Iowa 2003) State v. Tangie, 616 N.W.2d 564 (Iowa 2000) State v. Trowbridge, No., , 2014 WL (Iowa Ct. App. March 12, 2014) State Statutes Iowa Code 229A.2(1) (2015) Iowa Code 229A.2(11)(a) (2015) Iowa Code 229A.2(8) (2015) Iowa Code (2015) Iowa Code Iowa Code 903B Iowa Code (6) (2015) State Rules Iowa R. Evid (a) Iowa R. Evid , , 31, 32 Iowa R. Evid (8) Iowa R. Evid (8)(B)

5 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW I. The District Court Properly Found the Respondent Was Subject to Commitment Because He Was Both Presently Confined and Committed a Recent Overt Act. Jackson v. California Dep t of Mental Health, 318 F. App x 582 (9th Cir. 2009) Hale v. State, 891 So.2d 517 (Fla. 2004) Holtcamp v. State, 259 S.W.3d 537 (Mo. 2008) In re Civil Commitment of P.Z.H., 873 A.2d 595 (N.J. Super. 2005) In re Det. of Gonzales, 658 N.W.2d 102 (Iowa 2003) In re Det. of Johnson, No , 2012 WL (Iowa Ct. App. May 23, 2012) In re Det. of Shaffer, 769 N.W.2d 169 (Iowa 2009) In re Det. of Willis, 691 N.W.2d 726 (Iowa 2005) In re Detention of Altman, 723 N.W.2d 181 (Iowa 2006) In re Detention of Wilber W., 53 P.3d 1145 (Ariz. 2002) In re Manigo, 728 S.E.2d 32 (S.C. 2012) In re Matlock, No , 2003 WL (Iowa Ct. App. Feb. 12, 2003) Shumate v. Drake Univ., 846 N.W.2d 503 (Iowa 2014) State v. Harkins, 786 N.W.2d 498 (Iowa Ct. App. 2009) Iowa Code Iowa Code 229A.2(1) (2015) Iowa Code 229A.2(11)(a) (2015) Iowa Code 229A.2(8) (2015) Iowa Code (2015) Iowa Code 903B.2 Iowa Code (6) (2015) 5

6 II. Error Was Not Preserved as to the Stenzel Objection and the Defendant s Complaints on Appeal Lack Specificity. But Even If the Issue Was Properly Preserved and Raised, the Objection Was Without Merit. City of Orange City v. Lot 10, No , 2002 WL (Iowa Ct. App. Jan. 28, 2002) In re Det. of Stenzel, 827 N.W.2d 690 (Iowa 2013) In re W.G., No , 2002 WL (Iowa Ct. App. June 19, 2002) Marshall v. State, 125 P.3d 111 (Wash. 2005) State v. Casady, 491 N.W.2d 782 (Iowa 1992) State v. Hanes, 790 N.W.2d 545 (Iowa 2010) State v. Harlow, 325 N.W.2d 90 (Iowa 1982) State v. Matheson, 684 N.W.2d 243 (Iowa 2004) State v. Piper, 663 N.W.2d 894 (Iowa 2003) State v. Tangie, 616 N.W.2d 564 (Iowa 2000) State v. Trowbridge, No., , 2014 WL (Iowa Ct. App. March 12, 2014) Iowa R. Evid (a) Iowa R. Evid , Iowa R. Evid (8) Iowa R. Evid (8)(B) ROUTING STATEMENT The first issue presented is arguably one of first impression whether incarceration pursuant to revocation of a Chapter 903B special sentence establishes a person is presently confined for purposes of Chapter 229A but this case may be a poor vehicle for resolving the question. First, even if the respondent could prove he was not presently confined on the 903B revocation, his commitment as a sexually violent predator was still valid based on a 6

7 recent overt act, meaning that any error is harmless. And second, a variation on this same Chapter-903B issue is pending in a granted application for discretionary review and the parties in that case have agreed the issue, as presented there, may be appropriate for retention. See In re. Det. Wygle, Sup. Ct. No This case can be decided based on existing legal principles. Transfer to the Court of Appeals would be appropriate. Iowa R. App. P (3). STATEMENT OF THE CASE Nature of the Case The respondent, Ronald Tripp, was found to be a sexually violent predator following a bench trial in the Fayette County District Court, the Hon. John J. Bauercamper presiding. Course of Proceedings The State accepts the respondent s course of proceedings as adequate and essentially correct. Iowa R. App. P (3). Facts The issues presented on appeal relate to the respondent s index offense of indecent contact with a child; his sentence for that sexually violent crime (including Chapter 903B special parole); his recent overt act, where an administrative parole judge concluded he fondled 7

8 a woman; and evidence regarding his commitment as a sexually violent predator, as established at a bench trial. The criminal charge(s) and sentence(s) On August 18, 2010, the respondent was convicted of indecent contact with a child and initially sentenced to two years of probation, as well as a ten-year special sentence pursuant to Iowa Code Chapter 903B. Ruling, p. 2; App The offense related to sex acts with a ten-year-old girl in Fayette County. Ruling, p. 2; App. 9. On July 25, 2011, the respondent s probation was revoked and he was sent to prison, following new charges in Buchanan County for failing to abide by the requirements of the sex-offender registry and for three counts of harassment. Ruling, p. 2; App. 9. The respondent was later found guilty of three aggravated misdemeanors for failure to register as a sex offender and three simple misdemeanors for harassment. Ruling, pp. 2 3; App The sentences for the new Buchanan charges were ordered to be served concurrently to each other and to the Fayette indecent-contact-with-a-child sentence. Ruling, p. 3; App Ruling refers to the findings of fact[,] conclusions of law[,] ruling[,] and order filed by the district court on December 9, See App

9 While incarcerated, the respondent did not successfully complete sex offender treatment because he would not admit that some of his offenses were sexually motivated. Ruling, p. 3; App. 10. He also had a disciplinary violation for a dirty urinalysis. Trial tr. p. 64, lines The respondent discharged the Fayette County prison term on June 29, 2012, and his 903B-special-parole sentence commenced upon his release. See Ruling, pp. 2 3; App The revocation In May of 2013, the respondent was arrested for and charged with assault with intent to commit sex abuse in Buchanan County. Ruling, p. 3; App. 10. The State pursued revocation of the 903B special-sentence based on the new charges and, on October 11, 2013, an administrative parole judge revoked the special parole and sentenced the defendant to a two-year prison term. Ruling, p. 3; App. 10. Evidence at the parole revocation hearing established that Tripp fondled an adult female acquaintance who was traveling with him in his vehicle when he offered to give her a ride. Tripp touched her breast and thighs, and tried to touch her vagina despite multiple 9

10 attempts to block the assault. Ruling, p. 3; App. 10. The Department of Corrections placed the defendant at the Mount Pleasant Correctional Facility for this term of incarceration. Resistance to Motion to Dismiss, 5; App. ---; trial tr. p. 64, lines Following the respondent s imprisonment, the State dismissed the Buchanan County charges in the interests of justice. Ruling, p. 2; App. 9. The commitment petition and proceedings On May 6, 2015 before the two-year prison term for the 903B revocation expired the State filed a petition seeking the respondent s commitment as a sexually violent predator. See Petition; App. 14. Evidence at trial established the defendant had a lengthy criminal history related to burglary and theft. Ruling, p. 3; App. 10. Specifically, in the late 1990 s, the respondent admitted to approximately 48 counts of third-degree burglary. See trial tr. p. 32, lines He also had previously contributed to the delinquency of a minor by providing a 15-year-old girl alcohol. See trial tr. p. 30, lines The respondent admitted on the stand that, in 2010, he grabbed the breasts of a ten-year-old girl. See trial tr. p. 36, line 17 p. 37, 10

11 line 16. He claimed the act was not sexually motivated. Trial tr. p. 37, lines As revealed later, the respondent gave a different version of events to the State s expert. Trial tr. p. 79, lines He told her: We were all playing. They would all come over and hang around. Sometimes there would be five or six kids. They knew they could talk me out of candy and pop. Then they would talk me into lifting weights with them and go for a ride with them on the bicycle and hide and seek at that time. We were playing hide and seek and it was [the girl s] turn to come and find everybody after they hid. In order for -- the way they played it, when she found us, we d have to get back to the home base before her. What I was supposed to do was stop her before I could get back there. She ran by, and I grabbed around that breast area, and had, I guess, felt her up. But she didn't have any breasts, so I don't know what I was thinking. Trial tr. p. 80, lines The expert asked, So you did feel her up deliberately? Trial tr. p. 80, lines The respondent answered: Yes, well, I did." Trial tr. p. 80, lines Then he said: I m not trying to undermine, then she wiggled loose and I got out ahead of her and got there before her. All of those kids were always talking about sex in one way or another. Trial tr. p. 80, lines Later, the respondent spoke about the event again: 11

12 I didn t intentionally go to do it. When I grabbed around her, it seemed like the thing to do at the time. I just groped her, as curiosity. I didn t think at that time it was a sexual thing. Trial tr. p. 80, line 22 p. 81, line 3. The expert asked, Grabbing a breast isn t a sexual thing? And the respondent answered: I m sure it is. Even at an instant s notice. Trial tr. p. 80, line 22 p. 81, line 3. The respondent gave yet another version of events to his own expert, Richard Wollert, to whom he admitted he grabbed [the girl] and he did touch her crotch and did touch her inappropriately. Wollert Depo, p. 41, line 22 p. 42, line 4. The respondent also told Wollert that touching the girl was wrong. Wollert Depo, p. 42, lines The respondent admitted to the sex-offender-registry violations at trial, and admitted that he was near minors (pre-teens and teens) who were swimming. Trial tr. p. 49, line 2 p. 50, line 2. He initially claimed he was near the river because he was looking for mushrooms. Trial tr. p. 49, line 22 p. 50, line 2. He later admitted to talking to the kids, discussing skinny dipping with them, and showing the girls his underwear. Trial tr. p. 50, line 3 p. 51, line

13 The SVP court also received the parole-revocation order from October 11, 2013, where the administrative parole judge had found the facts alleged in the parole violation report were true. See State s Exhibit 8: Parole Revocation Hearing Findings of Fact and Order; App The violation report referenced documents that established the respondent cupped a woman s breast, stroked her legs, and tried to reach inside her pants near the vaginal area. 5/13/2013 Complaint; App. 60. At trial, forensic psychologist Dr. Anna Salter opined (and the district court accepted) that the respondent suffers from a personality disorder best described as Other Specified Personality Disorder. Ruling, p. 3; App The court found this personality disorder was a congenital or acquired condition that caused the respondent to have serious difficulty controlling his behavior. Ruling, p. 3; App. 10. The court also concluded that the condition 2 Dr. Salter also found that the respondent met all of the criteria for a diagnosis of Antisocial Personality Disorder, with the exception of the criterion requiring he exhibit conduct disorder before age 15. Trial tr. p. 74, lines The issue was not that there was evidence the respondent was well-adjusted before age 15; instead, Dr. Salter, explained, I actually don t really have any records from that period of time. Trial tr. p. 74, lines 8 22 (emphasis added). In short, Dr. Salter s diagnosis of other specified personality disorder was the more cautious approach. Trial tr. p. 74, line 19 p. 75, line 2. 13

14 predisposed the respondent to committing future acts of sexual violence. Ruling, p. 2; App. 9. Based in part on Dr. Salter s testimony, the court found that the respondent was likely to commit another act of sexual violence if not confined in a secure facility, because he has a greater than fifty percent chance of committing another sex offense in the course of his lifetime, as determined by the use of scientifically validated actuarial instruments. Ruling, p. 3; App. 10. The court credited Dr. Salter s testimony that a number of dynamic risk factors exacerbate the likelihood that the respondent will commit future sexually violent crimes, including his failure to cooperate with parole rules, sexual preoccupation; sexually deviant life style in the trailer park; [that] he has not completed sex offender treatment; and [that] he minimizes, justifies, and denies his offenses. Ruling, p. 3; App. 10. ARGUMENT I. The District Court Properly Found the Respondent Was Subject to Commitment Because He Was Both Presently Confined and Committed a Recent Overt Act. Preservation of Error In his brief, the respondent relies on his motion to dismiss as the basis on which he preserved his claim. See Respondent s Proof 14

15 Br. at 7. The Court of Appeals has addressed a similar issue before and concluded the motion was really one for directed verdict. See In re Matlock, No , 2003 WL , at *1 n.1 (Iowa Ct. App. Feb. 12, 2003); see also In re Det. of Johnson, No , 2012 WL , at *3 7 (Iowa Ct. App. May 23, 2012) (addressing a similar challenge in the context of reviewing a directed-verdict motion). On this basis, the State does not contest error preservation. Standard of Review Review of the sufficiency of the evidence would be for correction of errors at law. In re Detention of Altman, 723 N.W.2d 181, 184 (Iowa 2006). This Court views the evidence in a light most favorable to the [bench] verdict, disregarding all contrary evidence and inferences, and determines whether the evidence was sufficient for the [fact-finder] to have believed beyond a reasonable doubt that the respondent is a sexually violent predator. See id. at 184. If the respondent is correct that this Court is reviewing a ruling on a motion to dismiss, the standard of review is even more favorable to the State, as this Court must accept as true the petition s wellpleaded factual allegations. Shumate v. Drake Univ., 846 N.W.2d 503, 507 (Iowa 2014). 15

16 Merits There are two different paths by which the State may seek to have a person committed as a sexually violent predator: (1) by filing a petition against a person who is presently confined for a sexually violent offense; or (2) by filing a petition against a person who has committed a recent overt act. See In re Det. of Shaffer, 769 N.W.2d 169, 173 (Iowa 2009); see generally Iowa Code Ch. 229A (2015). In this case, the detention of the respondent can be affirmed on either ground: either because he was presently confined pursuant to his 903B sentence for a sexually violent offense or because he committed a recent overt act when he groped a woman. A. The respondent was presently confined because he was serving the 903B portion of his sentence for a sexually violent offense. The respondent s first contention is that he was not presently confined at the time the State filed its SVP petition, because he was incarcerated pursuant to revocation of his Chapter 903B specialparole sentence following conviction for a sexually violent offense. See Respondent s Proof Br. at This contention is unpersuasive in light of controlling Iowa Supreme Court and Court of Appeals decisions. 16

17 The term presently confined is not expressly defined in the Code, but some guidance can be found in the case law. In Shaffer, the Iowa Supreme Court was asked to determine whether a person erroneously held in custody qualified as presently confined for purposes of Chapter 229A. See In re Det. of Shaffer, 769 N.W.2d 169 (Iowa 2009). The Court answered yes, noting it had rejected attempts to apply a hypertechnical definition of the phrase presently confined. Id. at 174. Similarly, in Willis, the Supreme Court held that a respondent was presently confined for a sex offense when he was in the county jail but not yet convicted of a sex offense. In re Det. of Willis, 691 N.W.2d 726, (Iowa 2005). Shaffer and Willis both weigh in favor of affirming the district court here, rather than accepting the respondent s hypertechnical argument that presently confined excludes a portion of the sentence imposed for conviction of a sexually violent offense. In Harkins, a published Court of Appeals decision, the court reviewed a number of challenges to Iowa Code Chapter 903B, which establishes a special-parole sentence for certain sex offenders. See generally State v. Harkins, 786 N.W.2d 498, 503 (Iowa Ct. App. 2009). Harkins, who was convicted of sexual abuse, alleged that the 17

18 903B special sentence was punishment for crimes not yet committed, and the Court of Appeals rejected that argument, finding that the special sentence is part of [the] sentence for third-degree sexual abuse that [Harkins] is currently serving. Id. at 505. In other words, the 903B sentence is part of the criminal sentence, not separate from it. See id. at 505. Reading Shaffer and Willis (which mandate a flexible, nontechnical interpretation of presently confined ) in tandem with Harkins (which holds that the 903B special sentence is part of the criminal sentence) leads to the inescapable conclusion that a person is presently confined for a sexually violent offense when they are serving a 903B special sentence or they are incarcerated pursuant to revocation of the same. Because this respondent was serving a 903B sentence as part of his conviction for a sexually violent offense (indecent contact with a child), he was presently confined and thus eligible for commitment as a sexually violent predator under Chapter 229A. See Ruling, p. 2; App. 9. In his brief, the respondent attempts to align this case with Gonzales, but that comparison does not hold up. See Respondent s Proof Br. at 11. In Gonzales, the respondent had fully discharged his 18

19 sentence for conviction of a sexually violent offense and was instead imprisoned for driving a vehicle without the owner s consent. In re Det. of Gonzales, 658 N.W.2d 102, 103 (Iowa 2003). The Supreme Court reasoned that Gonzales was not presently confined because it was improper to premise commitment of a sexually violent predator on confinement for a totally different or even perhaps trivial offense. Id. at 105 (article omitted). The confinement here is not totally different and is certainly not for a trivial offense. The respondent was imprisoned pursuant to the Chapter 903B portion of his sentence for a sexually violent offense, and his revocation was related to improper sexual behavior. See Ruling, pp. 2 3; App The respondent s commitment comports with due process. To the extent the respondent hangs his argument on policy concerns in his brief, nothing he mentions warrants disturbing the holdings of Wills, Shaffer, and Harkins. In the respondent s own words, there is no dispute that [he] was confined when the petition was filed, nor is there any real dispute that a judicial or quasi-judicial proceeding before the administrative parole judge ended with a conclusion that the respondent had engaged in improper sexual behavior. See Respondent s Proof Br. at The facts here are a 19

20 far cry from the inmate facing SVP proceedings while incarcerated on a driving charge, without any evidence of recent sexual impropriety. Contra Gonzales, 658 N.W.2d at There is nothing arbitrary or wrongful in the commitment of the respondent and this Court should affirm the district court order finding the respondent to be a sexually violent predator. Also, to the extent Iowa case law should be supplemented with out-of-state case law, support for special parole supporting an SVP commitment can be found in the Ninth Circuit s application of California law. See Jackson v. California Dep t of Mental Health, 318 F. App x 582, 586 (9th Cir. 2009). Under the California SVP scheme, the equivalent term to Iowa s presently confined was inmates who were in custody serving a determinate sentence or in custody following a revocation of parole. Id. at The Ninth Circuit concluded that parolees met this definition of in custody, even though they were not physically confined in prison, because the state retained significant control over them. See id. at So too with special parole under Chapter 903B, which mandates parole conditions, allows revocation and further incarceration, and permits placement in a work release program or at a residential correctional 20

21 facility. See generally Chapter 903B (2015); see also Iowa Code Chapter 901B (2015) (establishing the corrections continuum, including quasi-incarceration sanctions at Level III, such as placement at residential facilities or house arrest). Aside from the case law, the statutory provisions contained in Chapter 229A also support a broader definition of presently confined than only as the respondent seems to allege the prison portion of a sentence. Section 229A.2(1), which defines agency with jurisdiction, provides parameters for agencies that must provide the Attorney General notice concerning potential SVPs in the agency s custody, and the definition includes but is not limited to the department of corrections, the department of human services, a judicial district department of correctional services, and the Iowa board of parole. Iowa Code 229A.2(1) (2015). This definition is much broader than the respondent s proposal that presently confined refers only to prison: if only prison were relevant, the definition in section 229A.2(1) would refer only to the Department of Corrections, not entities involved with parole, probation, and special sentences, like the Department of Human Services, the Department of Correctional Services, and the Board of Parole. The language of 21

22 Chapter 903B similarly supports that a person on a special sentence is in custody. See Iowa Code 903B.2 ( A person [subject to this Chapter] shall also be sentenced to a special sentence committing the person into the custody of the director of the Iowa department of corrections for a period of ten years (emphasis added)). That the respondent in this case is in custody and presently confined is also supported by the criminal code. Iowa Code section criminalizes escape or absence from custody, and expressly applies to Department of Corrections facilities See Iowa Code (2015). There is no real dispute that the Mount Pleasant Correctional Facility (where the respondent was sent following his 903B revocation) is a correctional facility. See Iowa Code (6) (2015) (establishing the Mount Pleasant correctional facility under the control of the Department of Corrections ); Resistance to Motion to Dismiss, 5; App. ---; trial tr. p. 64, lines Finally, to the extent the policy concern underlying the respondent s brief is that he worries the SVP law will sweep too broadly if presently confined includes 903B sentences, the legal landscape shows that Iowa s SVP law is already sufficiently narrow. At least five courts have expressly held that the reason for which the 22

23 respondent is presently confined need not be related to a sexual offense. See, e.g., In re Manigo, 728 S.E.2d 32, 36 (S.C. 2012); Holtcamp v. State, 259 S.W.3d 537, (Mo. 2008); In re Civil Commitment of P.Z.H., 873 A.2d 595, 598 (N.J. Super. 2005); Hale v. State, 891 So.2d 517, (Fla. 2004); In re Detention of Wilber W., 53 P.3d 1145, 1152 (Ariz. 2002) vacated by In re Detention of Wilber W., 62 P.3d 126 (Ariz. 2003)). Given the Iowa Supreme Court s holding in Gonzales, Iowa s SVP law is already substantially restrained and complies with due process. See generally Gonzales, 658 N.W.2d 102 (holding confinement must be for a sex offense). B. The respondent committed a recent overt act by groping a woman, as found by the administrative parole judge. Even if the State should not have been allowed to rely on the presently confined alternative below, the respondent s commitment was still proper under the theory that he committed a recent overt act. The direct examination of the respondent, on its own, was sufficient to establish the necessary facts: Q. And you were arrested for assault with intent to commit sexual abuse? A. Yes. Q. As I understand it, that charge was later dismissed? 23

24 A. Yes. Q. In fact, the allegation that you committed that offense was the only alleged violation of your 903B supervision? A. Yes, it was. Q. And you were present for the parole hearing where they considered whether that was your violation or not; yes? A. Yes. Q. And you heard the proceedings as they went on? A. Yeah, I did. Q. The probation officer presented the evidence of that assault with intent charge? A. Yes. Q. And ultimately the ALJ found you to be in violation for that offense? A. Yes. Q. And so for that reason then in 2013 you were returned for a two-year prison term? A. Yes. [ ] Q. Mr. Tripp, I m going to show you what we ve marked as Exhibit 5. It appears to be a violation report I m sorry, dated May 14th of Is that correct? [ ] 24

25 A. Yes. Q. Thank you. And that references [ ] your violation from 2013; is that correct? A. Yes. Q. Okay. And it indicates that your violation was term C, I shall obey all laws and ordinances; is that right? A. Yes, whatever that may be, C. Q. And then it says you violated by that by the charge of assault with intent to commit sexual abuse; is that correct? A. Yes. Q. And ultimately, your parole was revoked by an order dated June 19th of 2015; does that look familiar to you? A. Yes, I have a copy of that. Trial tr. p. 53, line 21 p. 55, line 19. Further details can be found in the certified exhibits offered by the State at trial. See State s Exhibit 7: Certified Records in AGCR078249; App ; State s Exhibit 8: Certified Records in FECR078251; App The Code specifies that recent overt act means any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm. Iowa Code 229A.2(8) (2015). If charged criminally (rather than proven at the 25

26 administrative parole hearing), the act of assault with intent to commit sex abuse is a sexually violent offense by statute. See Iowa Code 229A.2(11)(a) (2015); Iowa Code (2015). Therefore the respondent s commitment could also rest on the commission of a recent over act and any error in the district court s resolution of the presently confined question is harmless. II. Error Was Not Preserved as to the Stenzel Objection and the Defendant s Complaints on Appeal Lack Specificity. But Even If the Issue Was Properly Preserved and Raised, the Objection Was Without Merit. Preservation of Error/Waiver The defendant asserts that error was preserved by filing a motion in limine, but he is mistaken. See Respondent s Proof Br. at 17. A ruling on a motion in limine only preserves error when the ruling amounts to an unequivocal holding concerning the issue raised. State v. Harlow, 325 N.W.2d 90, 91 (Iowa 1982); see also State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000) ( Ordinarily, error claimed in a court's ruling on a motion in limine is waived unless a timely objection is made when the evidence is offered at trial. ). Here, the district court did not even rule on the motion in limine before trial; after the parties made arguments on the issue, the court 26

27 said: The Court will take that motion under advisement also since I don t have an opportunity to review the legal authorities cited. Trial tr. p. 25, lines 6 8. This was not a final ruling and error was not preserved. While an objection in theory could have preserved this issue at trial, the respondent does not cite any trial testimony in his preservation-of-error section or the argument section of his brief. See Respondent s Proof Br. at The State cannot discern what evidence the respondent claims was improperly admitted or whether any timely objection was made at trial, given the respondent s failure to brief the issue. The State declines to comb the record searching for support regarding the respondent s claim, and this Court must decline as well. See State v. Piper, 663 N.W.2d 894, 913 (Iowa 2003) ( [T]he defendant has not identified in his brief where in the record [error was preserved]. Therefore, [the defendant] has not demonstrated that [these errors] were preserved for our review. ) overruled on other grounds by State v. Hanes, 790 N.W.2d 545 (Iowa 2010); In re W.G., No , 2002 WL , at *2 (Iowa Ct. App. June 19, 2002) ( The State notes Dawn does not indicate how error was preserved on this issue. We agree and decline to 27

28 address it. ); City of Orange City v. Lot 10, No , 2002 WL , at *1 (Iowa Ct. App. Jan. 28, 2002) (dismissing an appeal where the defendant did not cite to the record in support of error presentation because those failures substantially hinder[ed the court s] review and consideration of the issues and to engage in such analysis on [the court s] own would lean too close toward advocacy ). Standard of Review If error had been preserved and if the respondent had adequately briefed the issue, review would be for an abuse of discretion. In re Det. of Stenzel, 827 N.W.2d 690, 697 (Iowa 2013). This Court will reverse only if the district court exercised its discretion on clearly untenable or unreasonable grounds. Id. Merits Given the respondent s failure to identify what (if any) specific evidence he believes should have been excluded, it is difficult for the State to respond to this Division of the respondent s brief. To the extent the State can speculate as to the nature of the objection, the respondent s issue seems to be with Dr. Salter relying on police reports and other documents that did not result in a criminal 28

29 conviction. As Dr. Salter explained at trial, This is the kind of information that we [forensic psychologists] typically use in these reports. Trial tr. p. 91, line 24 p. 92, line 2. Dr. Salter similarly explained later that this is the type of information that is used by [other experts in the field when] making these assessments [about recidivism]. Trial tr. p. 92, lines This testimony supports admission of Dr. Salter s testimony under the Iowa Rules of Evidence. See Iowa R. Evid , To the extent the respondent relies on Stenzel, his reliance is misplaced. Neither the State below or this brief on appeal take issue with Stenzel s holding that it is potentially improper for a witness to read a trial information or minutes of testimony (both of which are charging documents) into the record at an SVP trial. In re Det. of Stenzel, 827 N.W.2d 690, 710 (Iowa 2013) (noting these items are prepared by the prosecutor for prosecution purposes ). Dr. Salter s reliance on witness statements and police reports is materially different, particularly given her explanation that these kinds of documents are properly considered by experts in her field. See trial tr. p. 91, line 24 p. 92, line 19. Iowa Rule of Evidence expressly permits an expert to form an opinion based on otherwise 29

30 inadmissible evidence. Iowa R. Evid ( If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. ). In fact, both Stenzel and the district court s post-trial ruling state this principle similarly. Compare Ruling, p. 2; App. 9 ( [T]his court finds that it is acceptable under certain circumstances for an expert witness to rely on facts not in evidence or crimes not charged or resulting in conviction, based upon the facts of the case. ), with Stenzel, 827 N.W.2d at 710 ( In appropriate circumstances, an expert may testify about facts learned from other records, although the defendant may raise case-specific objections ). Finally, this conclusion that an expert witness can, in appropriate cases, consider police reports, legal records, treatment records, juvenile records, psychological and psychiatric evaluations, and medical records is supported by the case law in other jurisdictions, as recognized in Stenzel. 827 N.W.2d at 710 (citing In re Det. of Marshall v. State, 125 P.3d 111, 113 (Wash. 2005)). To the extent the respondent complains about evidence that the administrative parole judge revoked the respondent s parole, there are several problems with that argument. First, the respondent did 30

31 not object to Exhibit 8, which is the order revoking parole. Trial tr. p. 56, lines 4 7 ( MS. EIMERMANN: I have no objection to Exhibit 5 or Exhibit 8. ). Second, the State offered a certified copy of that document, which is an exception to the hearsay rules. See State s Exhibit 8: Parole Revocation Hearing Findings of Fact and Order; App ; Iowa R. Evid (8). 3 Third contrary to the respondent s assertions the offense was proven, not unproven. See State s Exhibit 8: Parole Revocation Hearing Findings of Fact and Order; App (finding the facts contained in the Parole Violation Report are correct ). And fourth, these certified public records contain judicial fact-finding and therefore contain sufficient indicia of reliability to be considered for non-truth purposes by an expert witness such as Dr. Salter. See Iowa R. Evid Also, to the extent the respondent s appeal brief might be read to argue that SVP experts cannot rely on any out-of-court documents, he cannot have it both ways: his expert, Richard Wollert, based large swaths of his direct testimony including his scoring of the 3 Although the respondent does not clearly articulate this argument on appeal, he could be arguing that the parole violation report is a prosecution document. The parole revocation hearing findings of fact and order are a judicial or quasi-judicial document and not subject to exclusion under Rule 5.803(8)(B). 31

32 respondent on the Static-99 on similar out-of-court papers. See, e.g., Wollert Depo, p. 9, lines (explaining he relied on those [same] records when forming his opinion); p. 24, line 13 p. 25, line 3 (discussing prior convictions, as well as the charge that was dismissed); p. 25, line 4 p. 26, line 6 (discussing a deposition and other prior convictions); p. 26, line 24 p. 27, line 7 (discussing the identity of a victim, which could only be discerned through police reports, the parole-violation report, or the minutes of testimony); p. 32, line 15 p. 33, line 1 (discussing department of corrections records related to sex offender treatment); p. 33, lines 2 24 (discussing disciplinary records, and admitting that he considered this information when forming his opinions); p. 34, line 9 p. 35, line 25 (discussing a police report and victim statements); p. 36, line 1 p. 37, line 15 (quoting, apparently from a police report, that the respondent tried to entice children to strip down by offering them money). This reinforces that, as Dr. Salter explained, SVP experts routinely rely on this kind of information, and their opinions are not subject to exclusion under Stenzel. Finally, even if the respondent had preserved error and had briefed the issue on appeal, he still would not be entitled to relief 32

33 because any resulting error is harmless. Although it is difficult to identify the specifics of the respondent s complaint from his briefing, the district court s written ruling does not appear to rely on any information even arguably subject to a very generous interpretation of Stenzel. See Ruling; App There is no reason to think that any information subject to Stenzel affected the respondent s substantial rights or otherwise prejudiced him. See Iowa R. Evid (a) (providing error is harmless unless it affects the substantial rights of the complaining party). And the respondent s claim is further undermined because this case was tried to the bench: [A]n appellate court is less likely to reverse when improper evidence is introduced in bench trials in which the matter is for a judge's determination rather than for determination by a jury. State v. Matheson, 684 N.W.2d 243, 244 (Iowa 2004); accord State v. Casady, 491 N.W.2d 782, 786 (Iowa 1992). As the Court of Appeals has explained, This is generally true because legal training assists the fact finder in a bench trial to remain unaffected by matters that should not influence the determination. State v. Trowbridge, No , 2014 WL , at *6 (Iowa Ct. App. March 12, 2014) (internal citation and quotation marks omitted). On this record and 33

34 based on the arguments advanced in his brief, the respondent is not entitled to relief, even if his reading of Stenzel should carry the day. CONCLUSION This Court should affirm the respondent s commitment as a sexually violent predator. REQUEST FOR NONORAL SUBMISSION This case can be decided on the briefs. In the event argument is scheduled, the State asks to be heard. Respectfully submitted, THOMAS J. MILLER Attorney General of Iowa TYLER J. BULLER Assistant Attorney General Hoover State Office Bldg., 2nd Fl. Des Moines, Iowa (515) tyler.buller@iowa.gov 34

35 CERTIFICATE OF COMPLIANCE This brief complies with the typeface requirements and typevolume limitation of Iowa Rs. App. P (1)(d) and 6.903(1)(g)(1) or (2) because: This brief has been prepared in a proportionally spaced typeface using Georgia in size 14 and contains 5,763 words, excluding the parts of the brief exempted by Iowa R. App. P (1)(g)(1). Dated: July 3, 2017 TYLER J. BULLER Assistant Attorney General Hoover State Office Bldg., 2nd Fl. Des Moines, Iowa (515) tyler.buller@iowa.gov 35