Opinion
No. 3-517 / 02-1293
Filed September 24, 2003
Appeal from the Iowa District Court forHenry County, David B. Hendrickson, Judge.
John Carmondy appeals from his adjudication as a sexually violent predator. REVERSED AND REMANDED.
Thomas G. Becker, Public Defender, Mark Smith, First Assistant Public Defender and Steven Addington, Assistant Public Defender, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Andrew Prosser and Linda Hines, Assistant Attorneys General, and Michael A. Riepe, County Attorney, for appellee State.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
John Carmondy appeals from his adjudication as a sexually violent predator pursuant to Iowa Code chapter 229A (2001) .
I. Background Facts and Proceedings.
In a petition filed on October 12, 2001, the State alleged Carmody, a convicted sex offender, was a sexually violent predator and should be committed for control, care and treatment until he could be safely released. Carmody denied the State's allegations, and the matter was tried to a jury. At the conclusion of the evidence Carmody moved for summary judgment/judgment of acquittal. Carmody's lawyer argued:
It is still not really clear what the proper motion is. Whatever it is, I want to make it, because I wish to make the idea that the State hasn't proven beyond a reasonable doubt that Mr. Carmody fits the definition of a sexually violent predator. Reviewing-In a review of the admissible evidence, no reasonable finder of fact could find that the State has proven beyond a reasonable doubt that he has a serious difficulty controlling his behavior, that the State made proof beyond a reasonable doubt that he could only be kept from sexually re-offending by confinement in a secure facility.
Carmody's motion was overruled. The trial court, over Carmody's objection, instructed the jury as follows:
INSTRUCTION NO. 7
To find the Respondent, John Carmody, is a sexually violent predator, the State must prove each of the following elements beyond a reasonable doubt:
1. The Respondent has been convicted of, or charged with, a sexually violent offense.
2. The Respondent suffers from a mental abnormality.
3. That mental abnormality makes the Respondent likely to engage in predatory acts constituting sexually violent offenses if Respondent is not confined in a secure facility.
If you find from the evidence that the State has proved each of these elements, then the Respondent is a sexually violent predator. If, however, the State has failed to prove any one of the elements, the Respondent is not a sexually violent predator.
The record concerning the jury instructions includes the following objection by Carmody's attorney:
MR. GAUL: Yes, Your Honor, I think we can also show that this objection was timely made. It is an objection for the record that the Court's Instruction Number 7, having to do with the elements of mental abnormality, I have submitted a set of jury instructions. The only one — The Court has adopted some and not adopted others. I would object to Instruction Number 8 that the Court did give. It eliminates an element that I believe is necessary under Crane, and that the respondent-it has to do with controlling a sexually violent behavior. I believe there should be another element and it should read as follows: Because of that mental abnormality, the Respondent has serious difficulty in controlling his sexually violent behavior. I submitted an instruction to that effect. It would be a modification of Instruction 7 and would object to the Court's Instruction 7.
The jury returned a verdict finding Carmody was a sexually violent predator, and the court entered an order commiting Carmody as required by Iowa Code section 229A.7(3).
On appeal Carmody raises the following issues:
(1) Iowa Code Chapter 229A violates the substantive due process requirements of the Fourteenth Amendment of the United States Constitution and is unconstitutional on its face and as applied because it does not require a lack of control determination.
(2) Respondent was denied his constitutional right to substantive due process when the trial court failed to instruct the jury that "mental abnormality" means "a serious difficulty in controlling behavior."II. Scope of Review
Our review of actions tried at law is for correction of legal error. Iowa R.App.P. 6.4. To the extent Carmody's arguments rest on constitutional principles, we review them de novo in light of the totality of the circumstances. In re Detention of Williams, 628 N.W.2d 447, 451 (Iowa 2001).
III. Error Preservation
It is a fundamental rule of appellate practice that questions not presented to and passed on by the trial court cannot be raised or reviewed on appeal. Cole v. City of Osceola, 179 N.W.2d 524, 527 (Iowa 1970). The theory under which a case was submitted in the trial court will be the theory upon which the appeal is based. Davidson v. Van Lengen, 266 N.W.2d 436, 439 (Iowa 1978). Further, constitutional questions must be preserved in the same manner. State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987) (citing State v. Johnson, 272 N.W.2d 480, 484 (Iowa 1978)). "No `plain error' rule exists to allow appellate review of allegations and deprivation of constitutional rights without requiring preservation of error via timely and adequate objections at trial." Id.
Carmody argues on appeal that Iowa Code Chapter 229A violates his due process rights under the United States Constitution because it does not require a lack of control determination. However, this argument was not presented to the trial court. Carmody has therefore failed to preserve error on this issue.
IV. Sexually Violent Predator
The State concedes that instruction seven is constitutionally insufficient because it failed to require the State to prove Carmody has serious difficulty controlling his behavior. See In re Detention of Barnes, 658 N.W.2d 98, 101 (Iowa 2003) (interpreting Iowa Code chapter 229A to require a showing of respondent's serious difficulty controlling behavior). The State, despite this concession, argues reversal for retrial is unnecessary because the trial court's instructional error was harmless.
"If a defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis." Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35, 47 (1999) (citation omitted). Harmless error analysis has been accordingly applied where trial courts have failed to instruct or improperly instructed a jury on the elements of a criminal offense. Id. at 9-10, 119 S.Ct. at 1834, 144 L. Ed.2d at 47 (citations omitted); see also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967); State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998) (applying harmless error analysis for errors of constitutional magnitude).
Although we find no authority applying a harmless error analysis in this context, its application has been recognized in other contexts involving a constitutionally flawed jury instruction. See, e.g., Pope v. Illinois, 481 U.S. 497, 499-501, 107 S.Ct. 1918, 1920-21, 95 L.Ed.2d 439, 444-45 (1987). In Pope the trial court erroneously instructed the jury that the defendant could be found guilty of an obscenity related offense if the obscene material lacked value under a community standard, rather than the reasonable person standard required by the First Amendment. Id. The case was thereafter remanded to state court for review under a harmless error standard. Id.at 504, 107 S.Ct. at 1923, 95 L. Ed.2d at 447. We accordingly hold the trial court's constitutional error in instructing the jury must be reviewed to determine if the conceded error was harmless.
In Neder, 527 U.S. at 20, 119 S.Ct. at 1938, 144 L. Ed.2d at 53, the court explained harmless error in these terms:
Of course, safeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error-for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding-It should not find the error harmless.
Here, Carmody testified about his years of sexual exploitation and manipulation of women. He explained how he developed elaborate schemes to con women into performing sexual acts, and he discussed his prior convictions of rape and extortion involving the women he sexually oppressed. Although the record establishes a clear pattern of Carmody's sexual misconduct, the evidence concerning Carmody's ability to control his behavior is conflicting. The State's expert, Dr. Harry Hoberman, opined that Carmody suffers from conditions that predispose him to commit sexual offenses and cause him difficulty in controlling his behavior. Carmody's expert, Dr. Dan Rogers, disputed Dr. Hoberman's opinion. He testified that Carmody does not have serious difficulty in controlling his behavior, and specifically stated, "he controls his behavior well." Additionally, Carmody testified that he understood his past behavior was wrongful and he also described the measures necessary to prevent its recurrence.
We are unable to find beyond a reasonable doubt that the jury's verdict would have been the same if they were properly instructed. Because the element of serious difficulty in controlling behavior was contested and the evidence conflicting, we conclude the trial court's instructional error was not harmless, and therefore reverse and remand for new trial in conformity with our opinion.