                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0715
                               Filed May 1, 2019


IN RE THE DETENTION OF ROBERT SWANSON,

ROBERT E. SWANSON,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      Robert Swanson appeals the order continuing his commitment as a sexually

violent predator. AFFIRMED.



      Michael H. Adams of State Public Defender’s Office, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.



      Heard by Potterfield, P.J., and Doyle and Mullins, JJ.
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PER CURIAM.

       Robert Swanson appeals the order continuing his commitment as a sexually

violent predator under Iowa Code chapter 229A (2017) following an annual review.

He challenges the sufficiency of the evidence concerning the existence of a mental

abnormality and the likelihood that he will commit a sexually violent offense if

discharged from treatment. Because the State has met its burden of proving

beyond a reasonable doubt that Swanson’s mental abnormality remains such that

he is likely to engage in predatory acts that constitute sexually violent offenses if

discharged, we affirm.

       I. Background Facts and Proceedings.

       The State initiated sexually violent predator proceedings against Swanson

after his release from prison in November 2001. While living in a halfway house,

Swanson made phone calls and sent a letter to a woman whom he had only brief

contact with while asking about a job. The content of those communications was

disturbing enough that the woman reported them to the police, who initiated an

investigation.

               The investigation revealed Swanson had a long history of
       committing sexually violent offenses. He was charged with his first
       sexual offense in 1964, at the age of fourteen. In 1973, he was
       convicted for raping a fourteen-year-old girl. He was released from
       prison in 1979 and returned there in 1980 after another conviction,
       this time for sexual abuse in the third degree. He also allegedly
       assaulted another woman in 1980 who did not report the crime
       before the statute of limitations on the offense had run. In a letter to
       the governor in 1984, Swanson pleaded for additional state
       treatment programs for sex offenders such as him, claiming that he
       had raped five or six additional women between 1964 and 1973. In
       the same letter, he claimed he had raped at least one more woman
       between 1979 and 1980. Finally, while imprisoned for the second
       time, Swanson called or wrote several women in the Marshalltown
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       area, apparently by randomly finding phone numbers and addresses
       that were listed with only a single, female name.
               Based on his prior criminal record and his own admissions,
       Swanson had committed about ten sexually violent offenses in his
       lifetime. However, it was the pattern of his prior conduct that became
       most alarming as the investigation proceeded. On a number of times
       in the past, Swanson had randomly contacted single women with
       whom he had had little or no prior connection in an effort to befriend
       them. Tragically, some of these women later became victims of his
       violent sexual assaults.

In re Det. Swanson, 668 N.W.2d 570, 573 (Iowa 2003) (footnotes omitted).

       The State filed a petition seeking to have Swanson determined to be a

sexually violent predator. After a jury determined that Swanson is a sexually

violent predator, the district court entered an order civilly committing him. Swanson

appealed, and our supreme court affirmed Swanson’s commitment as a sexually

violent predator. Id. at 577.

       Swanson participated in a Civil Commitment Unit for Sexual Offenders

(CCUSO) treatment program from 2002 to 2009. During that time, he progressed

to Phase 3 of treatment. However, after sending a threatening letter to the Federal

District Court, Swanson served a seven-and-one-half-year sentence in federal

prison. Although he returned to the CCUSO treatment program after he completed

his sentence, he had not progressed beyond Phase 1 in approximately twenty-four

months, even though offenders typically move past Phase 1 in a few weeks.

Although Swanson could proceed to Phase 2 by submitting a written request, he

refused to do so.

       The State filed a notice of annual report in November 2017, and Swanson

requested a hearing. At the final hearing, the court heard testimony from Swanson,

as well as from Dr. Stacey Hoem, the State’s expert witness, and Dr. Richard
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Wollert, Swanson’s expert witness. The district court entered an order continuing

his commitment under chapter 229A. Swanson appeals.

       II. Scope of Review.

       We review challenges to the sufficiency of the evidence for the correction

of errors at law. See In re Det. of Betsworth, 711 N.W.2d 280, 286 (Iowa 2006).

We will affirm if, when the evidence is viewed in the light most favorable to the

State, a rational factfinder could find the respondent to be a sexually violent

predator beyond a reasonable doubt. See id. However, evidence that raises only

suspicion, speculation, or conjecture is insufficient. See id.

       III. Sufficiency of the Evidence.

       Once civilly committed under chapter 229A, an annual examination must be

made of the committed person’s mental abnormality. See Iowa Code § 229A.8(2).

Once the report of the examination is presented to the district court, it must conduct

an annual review. See id. § 229A.8(3). The committed person may present

evidence for the court’s consideration in the annual review, including expert

opinions, and petition the court for discharge or placement in a transitional release

program. See id. § 229A.8(2), (4), (5)(e)(1).

       If a person is determined to be a sexually violent predator and civilly

committed under chapter 229A, there is a rebuttable presumption that the person’s

commitment should continue.       See id. § 229A.8(1). However, the committed

person may rebut this presumption by presenting evidence that would lead a

reasonable person to believe a final hearing should be held to determine whether

the mental abnormality of the committed person has so changed that the person

is not likely to engage in predatory acts constituting sexually violent offenses if
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discharged. Id. § 229A.8(1), (5)(e)(1)(a). If the presumption is rebutted, the district

court must hold a final hearing, at which the State has the burden of proving

beyond a reasonable doubt that “[t]he committed person’s mental abnormality

remains such that the person is likely to engage in predatory acts that constitute

sexually violent offenses if discharged.”1 Id. § 229A.8(5)(e)(2)(a), (6)(d)(1).

       The district court found Swanson met his burden of rebutting the

presumption of continued commitment.             After the final hearing, the court

determined that the State had presented proof beyond a reasonable doubt that

Swanson’s mental abnormality remains and that he would be likely to engage in

sexually violent offenses if discharged.

       A. Mental abnormality.

       Swanson first challenges the sufficiency of the evidence showing he

continues to suffer from a mental abnormality. Chapter 229A defines “mental

abnormality” as “a congenital or acquired condition affecting the emotional or

volitional capacity of a person and predisposing that person to commit sexually

violent offenses to a degree which would constitute a menace to the health and

safety of others.” Id. § 229A.2(6).

       Chapter 229A “places no limitation on the nature and condition that may

qualify as a ‘mental abnormality.’” Betsworth, 711 N.W.2d at 284. The question



1
  A committed person may also rebut the presumption of continued commitment by proof
that would lead a reasonable person to believe a final hearing should be held to determine
the committed person is suitable for placement in a transitional release program pursuant
to section 229A.8A. See Iowa Code § 229A.8(5)(e)(1)(b). The State then has the burden
of proving the committed person is not suitable for such placement. See id.
§ 229A.8(6)(d)(2). Although the district court determined Swanson is not suitable for
placement in a transitional release program, Swanson does not challenge this finding on
appeal.
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is whether the condition is congenital or acquired and “affect[s] the emotional or

volitional capacity of the person subject to commitment.” In re Det. of Barnes, 689

N.W.2d 455, 458-59 (Iowa 2004). Moreover, chapter 229A “does not require that

the condition affect the emotional or volitional capacity of every person who is

afflicted with the disorder or condition; the requirement is that it has that effect on

the particular individual subject to commitment.” Id. at 459.

       At the time Swanson was committed, he was diagnosed with paraphilia, not

otherwise specified (nonconsent), and antisocial personality disorder. Since that

time, Swanson has not done any specific work to treat or reduce his mental

abnormality. Dr. Hoem opined that Swanson meets the diagnostic criteria for

personality disorder with antisocial aspects, as well as many other criteria for

antisocial personality disorder. Our supreme court has held “that a diagnosis of

an antisocial personality disorder affecting a respondent’s ability to control

behavior . . . can support a jury finding that someone is a sexually violent predator.”

In re Det. of Stenzel, 827 N.W.2d 690, 702 (Iowa 2013). Our supreme court has

found substantial evidence to support a finding that an offender is a sexually violent

predator based on expert testimony diagnosing the offender “with paraphilia, not

otherwise specified, (non-consent), as well as antisocial personality disorder.” Id.

Additionally, on the question of whether Swanson’s condition affects his emotional

or volitional capacity, the evidence shows Swanson resists rules and supervision,

exhibits poor problem-solving abilities, violates social boundaries, and engages in

impulsive behavior.

       Swanson notes that Dr. Wollert testified he does not suffer from any

condition that qualifies as a mental abnormality. Confronted with contradictory
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testimony from the expert witnesses, the district court was free to accept the

testimony of the State’s expert instead. Id. Additionally, although Dr. Wollert

testified that Swanson’s conditions are not mental disorders as set forth in the

Diagnostic and Statistical Manual of Mental Disorders, “the types of conditions that

can serve to establish a ‘mental abnormality’ are not limited to certain recognized

diagnoses.” Barnes, 689 N.W.2d at 458.

       Viewing the evidence in the light most favorable to the State and leaving

credibility determinations to the district court, substantial evidence supports a

finding that Swanson has a mental abnormality affecting his emotional or volitional

capacity.

       B. Likelihood of committing a sexually violent offense if discharged.

       Swanson also challenges the sufficiency of the evidence showing he is

likely to engage in predatory acts that constitute sexually violent offenses if

discharged. “‘Likely to engage in predatory acts of sexual violence’ means that the

person more likely than not will engage in acts of a sexually violent nature.” Iowa

Code § 229A.2(5).

       Swanson notes that the tools used to assess his risk in 2002 are no longer

widely used.   Using the Static-99R, the most commonly used actuarial static

instrument, both experts assessed Swanson as having a low risk of reoffending.

In evaluating his risk, Dr. Hoem scored Swanson at a “1” and Dr. Wollert scored

him at a “0.” However, Dr. Hoem opined that Swanson is more likely than not to

reoffend based on individual dynamic factors. Dr. Wollert was critical of the use of

dynamic factors to assess risk.
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          The district court gave greater weight to the evidence presented by Dr.

Hoem. The court noted that Swanson’s low score on the static test was primarily

determined by his age, because sexual desire typically reduces with age.

However, the court did not find Swanson credible when he testified that his sexual

urges have disappeared.          Swanson’s own testimony demonstrates why his

professed lack of desire is of little consequence:

                 Q. Mr. Swanson, you said you don’t currently have a desire to
          rape anyone; is that right? A. No, ma’am.
                 Q. Did you fantasize about those things before your first
          offense? A. Rape?
                 Q. Yeah. A. No, ma’am.
                 Q. After you went to prison for that the first time, did you ever
          want to do it again? A. No, ma’am.
                 Q. But you did; right? A. Yes, ma’am.

The district court also noted that Swanson “refuses to actively participate in sex

offender programming such that the veracity of his statements could be tested by

the therapy process” and “engages in argumentative verbal behavior and

communication that is threatening to others, which suggests that despite his age,

he retains an aggressive nature.”

          When viewed in the light most favorable to the State, substantial evidence

supports the finding that Swanson is likely to engage in predatory acts that

constitute sexually violent offenses if discharged from treatment. Accordingly, we

affirm.

          AFFIRMED.
