Summary
assuming the recent-overt-act predicate was a jury question
Summary of this case from In re Detention of OgdenOpinion
No. 2-357 / 01-1094
Filed February 12, 2003
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.
Matlock appeals an order of civil commitment as a sexually violent predator, contending he committed no recent overt act and was not confined for a sexually violent offense, rendering his detention unconstitutional. REVERSED AND REMANDED.
Mark Smith, First Assistant State Public Defender and Greg Bal and Catherine Johnson, Assistant Public Defenders, for appellant.
Thomas J. Miller, Attorney General, Andrew B. Prosser and Roxann M. Ryan, Assistant Attorneys General, for appellee.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Roosevelt Matlock pled guilty to sexual offenses in 1985 and 1991. He discharged his sentences for both offenses. In 1996, Matlock was convicted of theft. Before he discharged his sentence, the State petitioned to have him found a sexually violent predator. See Iowa Code ch. 229A (1999). A jury found him to be one and he was civilly committed.
On appeal, Matlock raises a number of arguments, only one of which we will address here. He contends application of the sexually violent predator statute to him is unconstitutional because his most recent confinement was for a nonsexual offense and he did not commit a "recent overt act" as defined in chapter 229A. The State responds: 1) Matlock failed to preserve error on this issue, 2) the statute does not require confinement for a sexual offense, and 3) Matlock committed a "recent overt act" while in prison.
I. State's Arguments
A. Error Preservation. Matlock's counsel moved to dismiss the case following the close of the State's evidence, on the ground raised here. The district court reserved ruling on the issue. Before the conference on jury instructions, the court denied the motion. Error was therefore preserved.
B. Confinement for Sexual Offense. The State's second argument, that chapter 229A does not require confinement for a sexual offense, was squarely rejected by our highest court in In re Detention of Gonzales, ___ N.W.2d ___, ___ (Iowa 2003). The Court did not reach the constitutional question this issue presents but held the facts did not provide a basis for a finding of sexually violent predator status.
Like Gonzales, Matlock was not confined for a sexually violent offense when the State served him with the chapter 229A petition. Therefore, he is entitled to dismissal of the commitment order on this ground.
C. Recent Overt Act. The State argues an alternate basis for commitment: that Matlock was twice disciplined for exposing himself while in prison for the theft conviction and these incidents are "recent overt acts" that form the predicate for his commitment as a sexually violent predator. The district court agreed with this assertion and relied on it in denying Matlock's motion to dismiss. We review the denial of Matlock's motion on error. Top of Iowa Co-op v. Sime Farms, Inc., 608 N.W.2d 454, 466 (Iowa 2000).
Matlock styled his motion as a motion to dismiss. However, the motion was made at the close of the State's evidence and the ruling made reference to trial evidence. Therefore, we will treat the motion as a motion for directed verdict. See Wernimont v. State, 312 N.W.2d 568, 570 (Iowa 1981); State v. Campbell, 214 N.W.2d 195, 197 (Iowa 1974).
We believe there are several reasons for rejecting the "recent overt act" theory as a basis for commitment here. First, that language applies to individuals not presently confined in prison. See Iowa Code § 229A.4(1), (2); Gonzales, ___ N.W.2d at ___ (stating, "[t]he significant difference between the provisions for petitioning against confined and nonconfined persons is that, in the latter case, the State must show the person has committed a recent overt act, while this is not expressly required as to a person who is confined.")
Second, assuming the State has a right to base a commitment request on a "recent overt act" other than the one for which a person is confined, there is not substantial evidence to support Matlock's commission of such an act. See Boham v. City of Sioux City, 567 N.W.2d 431, 435 (Iowa 1997) (setting forth standard of review). The State did not introduce the prison disciplinary records furnishing the basis of the claim and, when questioning Matlock about them, elicited no admissions that the acts were committed. Therefore, all the record contains concerning these acts are counsel's questions to Matlock and his summary of the disciplinary records. These statements are not evidence. See Rasmussen v. Yentes, 522 N.W.2d 844, 846 (Iowa Ct.App. 1994) (holding court does not consider issues based on information outside the record).
Finally, after the district court denied the motion, the State did not attempt to have the jury instructed on this "recent overt act" predicate. Therefore, even assuming a jury question was generated on the question, the issue was never submitted and decided by the fact-finder. As the State did not prove Matlock committed a recent overt act, there is no basis for a finding he was a sexually violent predator.
We also note the State did not allege this basis for commitment in its petition.
II. Disposition
Matlock was not confined for a sexually violent offense when the State served him with the chapter 229A petition. Additionally, assuming the State can rely on a recent overt act distinct from the act for which a respondent is confined, the State did not prove Matlock committed such an act. Accordingly, we reverse the commitment order and remand for dismissal of the petition.