Opinion
No. 3-542 / 02-1919
Filed September 24, 2003
Appeal from the Iowa District Court for Pottawattamie County, Charles L. Smith, III, Chief Judge.
Ross appeals his civil commitment as a sexually violent predator. REVERSED AND REMANDED.
Thomas G. Becker, Public Defender, Mark Smith, First Assistant Public Defender, and Steven Addington, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Andrew Prosser, and Linda Hines, Assistant Attorneys General, and Matt Wilber, County Attorney, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
James Ross was about to complete a criminal sentence for sexually abusing children when the State petitioned to have him civilly committed as a sexually violent predator. A jury found in favor of the State.
Ross now seeks reversal of the jury finding based on a conceded constitutional infirmity in a key jury instruction. See In re Detention of Barnes, 658 N.W.2d 98, 101 (Iowa 2003) (holding that to comport with substantive due process, jury instruction and statute on which it was based required a showing of a serious difficulty in controlling behavior).
The State responds that we need not reverse because the instructional error was harmless. See Neder v. United States, 527 U.S. 1, 10-13, 119 S.Ct. 1827, 1834-1836, 144 L.Ed.2d 35, 48-49 (1999) (holding failure to instruct on element of crime is error subject to harmless error analysis). In the State's view, error in this context is harmless if it is proven beyond a reasonable doubt that the error did not prejudice the respondent. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-711 (1967); State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998).
Prejudice has been defined in multiple ways. In Sullivan v. Louisiana, the United States Supreme Court was asked to decide whether a constitutionally deficient reasonable doubt instruction was prejudicial. 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The court stated the inquiry "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id., 508 U.S. at 279, 113 S.Ct. at 2081, 124 L. Ed.2d at 189 (1993) (emphasis in original).
In Neder v. United States, a more recent case involving the failure to instruct a jury on an element of the crime, the Court distinguished Sullivan, stating that where the omitted element was uncontested, the purpose underlying jury trials was not undermined by requiring only that the "jury verdict would have been the same absent the error." 527 U.S. at 19, 119 S.Ct. at 1838, 144 L. Ed.2d at 53. The Court held the constitutional error was harmless because the reviewing court could conclude "beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . ." Id., 527 U.S. at 17, 119 S.Ct. at 1837, 144 L. Ed.2d at 52. Cf. Griffin, 576 N.W.2d at 597 (stating, in the criminal context, instructional error of constitutional magnitude is non-prejudicial if "[t]he weight of the evidence of guilt was overwhelming.").
Neither the United States Supreme Court nor our highest court has decided whether a harmless error analysis should apply to constitutional errors in sexually violent predator civil commitment cases or what harmless error standard should be applied. Cf. People v. Hurtado, 52 P.3d 116, 124 Cal.Rptr.2d 186 (2002) (applying criminal harmless error analysis in sexually violent predator case involving infirm jury instruction), cert. denied, 123 S.Ct. 1753 (April 17, 2003) (No. 02-8848). Assuming without deciding that a harmless error standard should apply as recommended by the State and that the standard should be the one articulated in Neder, we conclude the State did not satisfy this standard.
In Neder, the evidence on the omitted element was undisputed. Here, in contrast, the evidence concerning Ross's difficulty in controlling his behavior was controverted. Despite vigorous questioning by the State's attorney, Ross refused to admit that he had difficulty controlling his sexual behavior towards children. He pointed out that he did not molest every child he ran into and was not aroused by being in stores or other places where children were present.
Expert witnesses did not resolve the matter. While the State's expert opined that Ross found it "difficult to control his behavior," one of Ross's experts stated that none of the personality disorders with which he diagnosed Ross "either logically or statistically, predispose an individual to commit sexual crimes." Commenting on the State expert's diagnosis of pedophilia, he found "no evidence that Ross had an "enduring sort of attraction to children or fantasies about children."
In short, we cannot conclude beyond a reasonable doubt that the omitted element of serious difficulty in controlling behavior was "uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error." Neder, 527 U.S. at 17, 119 S.Ct. at 1837, 144 L. Ed.2d at 52. Accordingly, we reject the State's harmless error argument and reverse and remand for a new trial.