COURT OF APPEALS

COURT OF APPEALS

DECISION

DATED AND FILED

January 7, 2014

Diane M. Fremgen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2013AP452	Cir. Ct. No.� 2002CI4
STATE OF WISCONSIN�			IN COURT OF APPEALS
			DISTRICT I


In re the commitment of Edward Cotton: State of Wisconsin, �� Petitioner-Respondent, �� v. Edward Cotton, �� Respondent-Appellant.

�� APPEAL from an order of the circuit court for Milwaukee County:� jonathan d. watts, Judge.� Affirmed.�

�� Before Fine, Kessler and Brennan, JJ.

�1�� FINE, J. Edward Cotton appeals the order denying his petition for discharge from a Chapter 980 commitment.� Cotton claims there was insufficient evidence to prove he is still dangerous.� We affirm.

�2�� In the 1980s and 1990s, Cotton committed sexually violent crimes for which he was imprisoned.� In 2004, Cotton was committed under Chapter 980.� As material to this appeal, in September of 2011, Cotton filed a petition for discharge from commitment and the circuit court was the factfinder at the discharge hearing.

�3�� At the discharge hearing, two psychologists testified for the State, Dr. Richard McKee and Dr. Christopher Tyre.� Psychologist, Dr. Richard Elwood, testified for Cotton.� Dr. McKee testified, as material:

� Psychologists consistently have diagnosed Cotton with two mental disorders that predispose him to engage in acts of sexual violence: (1) paraphilia not otherwise specified and (2) anti-social personality disorder.

� Actuarial tools, such as the PCL-R test, help psychologists determine whether a patient is psychopathic.� A score of �25 and above � is considered in research circles to be an indication of psychopathy.��

� On the PCL-R test, Cotton scored a 31 in 2005 when tested by Dr. Tyre; a 26 in 2006 when tested by Dr. Warner, a 32 in 2007 when tested by a team of doctors, and a 20 when tested by Dr. Elwood in 2010.

� The 2007 score is the most accurate because it was a team assessment.

� When the scores vary, the best approach is to average all the scores; here, that gives Cotton a �score of 25.6.� �

� A �PCL-R score of 25 or above and the history of sexual deviance� is considered �high-risk to future acts of sexual violence.�

� Although Cotton completed sex offender treatment programs while in prison, these programs were not �designed to deal with the intensity, the risk level of his � [t]reatment needs because he is a high- -- fairly high-risk -- high-risk sex offender.��

� �In 1998, when Mr. Cotton graduated from the [Sexual Offender Treatment Program], there was no program in the world that I know of that was designed to successfully treat high-psychopathy sex offenders.�

� The treatment facility where Cotton currently resides, Sand Ridge, now offers a Sex Offender Treatment program that targets the high-psychopathy sex offenders.� Sand Ridge �repeatedly and periodically offered the opportunity to participate in Sex Offender Treatment at Sand Ridge� but Cotton refused.�

� Using the most recent PCL-R is not reliable; instead, the �best method� is to take the average of all the scores available over time.

� Prisoners who have completed sexual offender treatment programs �general[ly] show about a 20 percent reduction in recidivism risk� when compared to those who have not completed those programs.

� The treatment programs that Cotton completed, however, did not reduce his recidivism risk �because of his high psychopathy -- the characteristics that he has of high psychopathy.�

�4�� Dr. Tyre testified, as material:

� He has done over 400 �special-purpose evaluations� �to offer opinions regarding potential for either supervised release or discharge� in Chapter 980 cases. �

� He met with Cotton for �the initial special-purpose evaluation.�

� He reviewed �all of [Cotton�s] available files and records.�

� All of Cotton�s records show �that doctors have been unanimous in� �diagnosing [Cotton with] both paraphilia and Antisocial Personality Disorder� that predispose him �to future acts of sexual violence.�

� Cotton �currently meets that standard of more likely than not� to commit sexual crimes in the future.

� �[A]ctuarial tools, objective measures of factors empirically established to be associated with individuals who display future violent -- or future sexual violent behavior[,] assist in that process� or risk assessment.

� The Static-99R actuarial tool �is probably the most widely used.� Tyre gave Cotton a �6� on the 99R, but Dr. Elwood gave Cotton a �5� because of Cotton�s claim in the presentence investigation report that he �had a live-in relationship with an intimate partner that was two-plus years.� �

� Dr. Tyre explained why he did not credit Cotton for any long-term relationship:

Originally, it was based upon my interview with Mr. Cotton.� I asked him if he had ever had a stable relationship or if he had ever been married.

Subsequent to reviewing records in the preparation of this report, I went back to the original reports by Dr. Coffey and Dr. Lodl, my report, my notes and I reviewed the annual examinations that have been done, and I didn�t find any evidence to [credit Cotton for a marital-type relationship.]

Given the very limited time available to Mr. Cotton that he was on the street between 18 and approximately 21 or [2]2 when he was then arrested and subsequently put in the prison system as an adult, there didn�t seem to be any time available for him to have established what would be akin to a marriage.

� The 99R credits a person who has a marital-type relationship because �the relative risks to sexually reoffend is lower in men who have been able to form intimate partnerships.�

� When a person scores a 6 or more on the 99R, it places that person in �High Risk/High Need sample.�� In adjusting that sample for underreporting, �Chapter 980[�s requirement to assess] for the likelihood of reoffending over a person�s lifetime� and other factors, that person �sit[s] at about 62 percent� likely to reoffend.

� He also looked at Cotton�s PCL-R scores, which assess psychopathy.� He did so because �elevated psychopathy is a risk factor for sexual recidivism.� ��[W]hen you combine those factors of sexual deviance [as evidenced by a diagnosis of paraphilia] and psychopathy, individuals with those characteristics seem to sexually recidivate at rates much higher than what is captured by the actuarial instruments.�

� �[R]esearch show[s]� a PCL-R �score of 25 and above� with sexual deviance is a �highly dangerous combination.�

� Cotton �has demonstrated sexual deviance� both with his diagnosis of paraphilia and �the facts of the cases with the victims being nonconsenting.�

� Dr. Tyre scored Cotton at 31.

The State then went through each question on the PCL-R where Dr. Tyre�s score differed from Dr. Elwood�s and asked Dr. Tyre why he gave a higher score than Dr. Elwood�s.� Before explaining the reason for each difference in score, Dr. Tyre testified:� �I would assume that probably the majority of the difference in our scoring on this is the fact that I had an interview with Mr. Cotton,� whereas Cotton refused an interview to Dr. Elwood.� Dr. Tyre explained that some of the questions on the test are �very sensitive to the presence of an interview because a person is actually demonstrating these types of characteristics or traits with you at the time, and it�s harder to assess if you don�t sit down and talk with a person.� �For example, one question is to �observe indicia of Glibness and Superficial Charm.�� Dr. Tyre explained that when a doctor does a PCL-R assessment without a personal interview, the scores tend to be lower.

�5�� Dr. Tyre also testified that:

� When different PCL-R scores are recorded, the best practice is to average all of them; he agreed with Dr. McKee that the most accurate score is the one found by the 2007 team of �32.��

� The records showed Cotton �had some success� in �changing his behavior� through �sex offender treatment in the past� but �staff involved in his care over the last year suggest that he has either forgotten or disregarded some of the skills he learned.�� Staff �recommended [that Cotton] participate� in �the S[exual] O[ffender] T[reatment] P[rogram]� but �Cotton � refus[ed] treatment.�

� His opinion, that Cotton was more likely than not to reoffend if discharged, apply to �Cotton�s condition today� �to a reasonable degree of psychological certainty.�

On cross-examination, Dr. Tyre testified that:

� He disagreed with Dr. Elwood�s reliance on the long-term relationships Cotton described in the presentence investigation report because �it didn�t add up.� ��[W]hen I also factored in the times that Mr. Cotton had been incarcerated,� �I couldn�t come up with, arithmetically if you will, a long enough period of time that would have qualified for a live-in, marriage-like relationship.�

� He would still put Cotton at �more likely than not� even if he changed the 99R score to �5� because of the other factors.�

� He does not agree with Dr. Elwood�s reliance on the recent articles that say recidivism is reduced by 20% for individuals who complete treatment programs because �we can[not] calculate a specific number.� It seems as though for some individuals there is a risk attenuating effect for participating in treatment, but there�s also research that shows that there is no effect at all.� �

Dr. Tyre also testified that the treatment programs Cotton completed in the 1990s have changed significantly, and as a result, any program completed before the changes are not likely to �reduce his percentage of recidivism.� �

�6�� Dr. Elwood testified for the defense, as material:

� He prepared a report for this case from reviewing records.� He did not interview Cotton.�

� Cotton has two diagnoses that predispose him to commit sexually violent acts:� �Paraphilia, Not Otherwise Specified and Antisocial Personality Disorder.��

� He scored Cotton as a �5� on the Static-99R, which �would be the equivalent of a 36 percent likelihood of being charged with another sex offense within ten years of release from custody.� �Cotton has a �56 percent probability of � actually committing another sex offense over the next 15 years from release.�

� He used the presentence investigation report for information about Cotton�s long-term relationships even though the doctors� reports in the Record said Cotton �had not lived with someone for a significant period of time� because he thought �the weight of evidence certainly suggested a credible inference that he had sustained a marital-type relationship for at least two years, though the data was somewhat inconsistent.�

� On the PCL-R, he scored Cotton at a �20,� �moderate level of psychopathy,� much below the �high [psychopathy] range� of �between 25 and 32.�

� He assessed �Glibness and Superficial Charm� from other doctors� reports who had interviewed him, specifically referencing Dr. Coffey�s note that Cotton �did not present as glib or superficially charming during the interview.��

�7�� In regard to medical articles on how treatment reduces risk for re-offending, he testified:

� �[T]here has been a flurry of activity, probably since 2009, including some last year, that consistently show a substantial reduction in risk by prison-based Sex Offender Treatment even for high-risk, high-psychopathy individuals.� So I just took the average reduction in risk, and it�s about 25 percent.�� [T]he studies that show a good treatment effect even for high-psychopathy individuals themselves go back to the 1990 or early 2000 decades, which was when [Cotton] was being treated.� ��So I think it�s a very compelling argument that Sex Offender Treatment is effective even for high-psychopathy or high-risk offenders.�

� Using the 25 percent risk reduction as a result of Cotton�s treatment, his 56 percent risk of re-offending would drop to under 40 percent, putting Cotton �well under more likely than not.��

�8�� When asked if he reached �an ultimate conclusion on the issue of whether or not you would recommend to the Court that Mr. Cotton should be discharged from his commitment under 980?� �Dr. Elwood answered:� �I�m reluctant to make a recommendation to the Court.� I would simply say that, in my opinion, he�s not a sexually violent person as defined by statute.�

�9�� The circuit court questioned Dr. Elwood about the change in the risk he listed in his reports.� The circuit court asked why the risk of re-offending changed from �65 percent in the August 2010 report to 48 to 56 in the August 2011 report?� �Dr. Elwood answered:

That�s a good question.�

In 2011, I lowered his risk of committing another offense.� What I also did is I used a similar extrapolation for the [actuarial test] that I did for age.� In other words, the [actuarial test] has categories.� And so there�s a difference in risk between being the lowest number in that range versus being the highest number in that range.

So now, I do the same thing on the [actuarial test] that I do for age to get, I think, a closer, more accurate estimate of risk.� So I believe -- I like to think that I get better every year, and I refine my procedures.� So I believe the 2011 is the more accurate, but it�s very close to the one in the previous year.

�10�� The circuit court found that the State had satisfied its burden of proving: �(1) Cotton had been convicted of a sexually violent offense; (2) Cotton currently has two mental disorders (paraphilia not otherwise specified and anti-social personality disorder) that affect his emotional or volitional capacity and predispose him to engage in acts of sexual violence and causes serious difficulty in controlling behavior; and (3) Cotton is dangerous to others because he is more likely than not to engage in future acts of sexual violence.� The circuit court based its findings in part on:

� �Dr. Tyre testified credibly and thoughtfully throughout this hearing, and the Court gives great weight to both his oral testimony and his report.� �

� Dr. Elwood scored Cotton a �5� on the Static-99R by using information in the presentence investigation report that the circuit court �places little weight on the reliability of [Cotton�s] statements in the� presentence investigation report because Cotton�s statements there are �confusing, self-serving, and contradictory.� �

� ��[E]ven with the reduced score [for treatment], Dr. Elwood�s conclusions are still very close to or greater than the standard of more likely than not, which is the Wisconsin threshold.� �

� �Dr. Tyre�s testimony and report conclude that Respondent Cotton is more likely than not to recidivate.� �

� �This Court has greater confidence in Dr. Tyre�s report and methodology than Dr. Elwood�s.� Dr. Elwood�s report had typos, he�s grasping at supposed supporting documentation in a [presentence investigation report] when the facts clearly don�t support those conclusions, and the other doctors expressly rejected Dr. Elwood�s approach.� �

� The circuit court �adopt[ed] the testimony of Dr. McKee that taking the average of the [PCL-R] score is accepted by psychologists as a valid way to resolve� �different scores,� �that recency of score was not a factor[,] and that� �averaging� is �preferred.� �

� The circuit court found the PCL-R score of 32 given by the �group of psychologists� �would have more weight [than Dr. Elwood�s] because scoring would have been a consensus.� �

� Dr. Tyre�s PCL-R score of 31 more closely matched that of all the other psychologists who scored Cotton, besides Dr. Elwood.

� �Dr. Elwood�s score of 20 carries less weight.� Dr. Elwood did not have a clinical interview, just records, because the respondent refused to have an interview, and Dr. Tyre testified that research shows that PCL-R scores are lower when the examiner does not have a personal interview but only records.�

� The circuit court found �by clear and convincing evidence that [Cotton�s] score on the � PCL-R is greater than 25.� �

�11�� The circuit court then ruled:� �Therefore, [Cotton] manifests the combination of elevated psychopathy and sexual deviance, and that research has found this to be an indicator of elevated risk of sexual recidivism.� And this, Mr. Cotton, is an important fact that shows you�re still a sexually violent person.�

�12�� In addressing whether the treatment Cotton completed reduced his risk to reoffend, the circuit court said:

� �[W]hile at Sand Ridge, [Cotton] has consistently refused Sexual Offender Treatment.�

� �Both doctors [Elwood and Tyre] testified to their general knowledge of research regarding Sexual Offender Treatment.� Dr. Tyre felt that the effect on the reduction of risk of recidivism when a person completes Sexual Offender Treatment is still being studied,� and �disagreed with Dr. Elwood that completion of a prison-based Sexual Offender Treatment Program can reduce risk by a fixed percentage.��

� �[I]t�s difficult for this Court to assess who gets more weight on this issue.� It�s somewhat of a draw or inconclusive, but there�s more in this record that does assist this Court in making a decision about prison-based Sexual Offender Treatment.�

� �Dr. McKee testified that� Cotton started treatment �well before� effective treatment for �high psychopathy� was available and the treatment Cotton completed �was not designed to deal with high psychopathy� and did not use any �independent verification� to measure �efficacy of the Sexual Offender Treatment.� �

� �[T]he Court finds, again by clear and convincing evidence on this record that [the treatment Cotton completed] was not designed or adapted to deal with Mr. Cotton�s high psychopathy� and the lack of �verification� �takes away� �the efficacy of Sexual Offender Treatment.� �

�13�� The circuit court then discussed Cotton�s actions long after he had completed the treatment showing that the treatment had either been �forgotten or disregarded,� that he clearly needed more treatment, but refused to accept the invitation to go to the new and improved treatment programs, finding:

(1) �[Cotton] is not demonstrating an understanding of Sexual Offender Treatment that he had earlier.�

(2) �[T]he Sexual Offender Treatment [Cotton completed before coming to Sand Ridge] was not adapted to [Cotton] because he still presents with high psychopathy.�

(3) �Despite completion of Sexual Offender Treatment, [Cotton] is not showing an understanding or application of the treatment.� �

�14�� The circuit court then concluded:

When this Court reviews the mountain of evidence that�s in this record with particular weight to Dr. Tyre�s testimony and reports and you look at the conclusions that Dr. Tyre felt [Cotton] was more likely than not to recidivate if released.

And then you consider Dr. Elwood�s testimony and his reports with its flaws and its lesser weight, and I accept the argument that where he differs, he�s an outlier as compared to the other doctors, the Court places much less weight in Dr. Elwood�s testimony and report.

The Court finds that the State has met its burden of proof by clear and convincing evidence as to the establishment of the third fact [dangerousness].� The State has prevailed on all three facts, and [Cotton�s] petition for discharge is denied. �

II.

�15�� We will not reverse a Wis. Stat. ch. 980 commitment ��unless the evidence, viewed most favorably to the state and the [commitment], is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found [the defendant to be a sexually violent person] beyond a reasonable doubt.�� State v. Marberry, 231 Wis. 2d 581, 593, 605 N.W.2d 612, 619 (Ct. App. 1999) (quoted source omitted; brackets in Marberry).� To defeat a petition for discharge under ch. 980, the State must prove that the person seeking discharge: �(1) has been convicted of a sexually violent offense; (2) currently has a mental disease that predisposes him to engage in acts of sexual violence; and (3) is dangerous to others and, because of the mental disorder, more likely than not to engage in future acts of sexual violence.� See Wis. Stat. � 980.01(7) (��Sexually violent person� means a person who has been convicted of a sexually violent offense � and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence.�). ��Likely� means more likely than not.� �Wis. Stat. � 980.01(1m). �

�16�� Cotton does not argue that the evidence is insufficient on the first two elements.� He contends only that the State did not prove the third:� that his mental disorders render him currently dangerous�more likely than not to engage in future acts of sexual violence.

�17�� As we have seen from the lengthy recitation of the testimony at the discharge, the evidence is clearly sufficient to support the circuit court�s finding that the State met its burden to show that Cotton is currently dangerous and more likely than not to engage in future acts of sexual violence.� Dr. Tyre testified that Cotton�s actuarial scores together with his clinical findings showed that if discharged, Cotton is more likely than not to commit acts of sexual violence because of his mental disorders.� Dr. McKee�s testimony supported Dr. Tyre�s.� The circuit court appropriately weighed the experts� opinions, and found Dr. Tyre�s testimony and report more credible than Dr. Elwood�s.� We are bound by the factfinder�s determination on credibility.� State v. Kienitz, 227 Wis. 2d 423, 435, 597 N.W.2d 712, 717�718 (1999) (�The trier of fact has the ability to accept so much of the testimony of a medical expert that it finds credible, and it then weighs the evidence and resolves any conflicts in testimony.�) (citation omitted).� Dr. Tyre�s testimony is sufficient to uphold the circuit court�s ruling denying Cotton�s petition for discharge.

�� By the Court.�Order affirmed.

�� Publication in the official reports is not recommended.