               IN THE SUPREME COURT OF IOWA
                            No. 04 / 06-0971

                            Filed May 9, 2008


IN RE THE DETENTION OF
BRYAN M. PIERCE,

STATE OF IOWA,

      Appellant.


      Appeal from the Iowa District Court for Warren County, William H.

Joy, Judge.



      State appeals a district court determination finding respondent is

not a sexually violent predator.   REVERSED AND REMANDED WITH

INSTRUCTIONS.



      Thomas J. Miller, Attorney General, and Linda J. Hines and Denise

A. Timmins, Assistant Attorneys General, for appellant.



      Mark C. Smith, State Appellate Defender, and Matthew S. Sheeley,

Assistant State Public Defender, for appellee Bryan Pierce.
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STREIT, Justice.

      Bryan Pierce has a history of sexually abusing young children.

Prior to his release from prison, the State filed a petition to have him

committed as a sexually violent predator (“SVP”). The case was tried to

the district court. While the court found Pierce suffered from pedophilia

and antisocial personality disorder, it held the State failed to prove Pierce

is likely to “currently” engage in predatory acts constituting sexually
violent offenses if not confined in a secure facility. The State appealed.

As an initial matter, we find the State has the right to appeal a

determination an individual is not an SVP. Moreover, we find the State

was not required to prove Pierce was likely to commit a sexually violent

offense in a given time frame.      We remand for the district court to

reexamine the evidence in light of our ruling.

      I.    Facts and Prior Proceedings.

      Pierce was forty-four years old at the time of his commitment

hearing.    He has an extensive criminal history which includes

convictions for burglary, interference with official acts, criminal mischief,

trespass, eluding, assaulting a police officer, and domestic assault. He

has also been convicted of three sexually violent offenses. See Iowa Code
§ 229A.2(10) (2005) (defining sexual offense as either a “violation of any

provision of chapter 709” or an “offense committed in another

jurisdiction which would constitute an equivalent offense”).

      In 1987, Pierce, while living in Missouri, fondled and performed

oral sex on his girlfriend’s six-year-old son.    He pled guilty to sexual

abuse in the first degree and was sentenced to five years in prison.

      In 2000, Pierce was living in Iowa with a different girlfriend and her

children.   He fondled this girlfriend’s seven-year-old daughter on two

occasions. That same year, Pierce showed pornographic magazines to a
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nine-year-old girl he was babysitting and performed oral sex on her. As a

result of the incidents in 2000, Pierce pled guilty to lascivious acts with a

child and third degree sexual abuse.        He was sentenced to a term of

imprisonment not to exceed ten years.

      Pierce was scheduled to be released from prison on August 20,

2005. However, on August 2 the State filed a petition alleging Pierce was

an SVP and should be committed. See Iowa Code ch. 229A. The district
court found probable cause existed to believe Pierce was an SVP and

ordered a trial on the matter.       In May 2006, after a bench trial, the

district court found the State failed to prove Pierce was an SVP and

dismissed the State’s petition for commitment. Pierce was released from

custody.    The State thereafter appealed the district court’s ruling.      It

alleged the district court misunderstood the standards for commitment

under chapter 229A as well as the testimony of the State’s expert

witness.

      Pierce moved to dismiss the appeal, arguing chapter 229A does not

grant the State the right to appeal a determination that a person is not

an SVP.     We ordered the motion be submitted with the appeal and

directed both parties to brief the issue of whether the State may appeal.
      II.      Scope of Review.

      We review issues of statutory interpretation for correction of errors

of law. In re Detention of Willis, 691 N.W.2d 726, 728 (Iowa 2005) (citing

Iowa Dep't of Transp. v. Soward, 650 N.W.2d 569, 571 (Iowa 2002)). The

district court’s factual findings are binding on us if supported by

substantial     evidence   unless   they   are   induced   by   an   erroneous

application of law. Hedrick Savings Bank v. Myers, 229 N.W.2d 252, 254

(Iowa 1975).
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      III.     Merits.

      A.       Whether the State has the right to appeal.                Pierce

challenges the State’s authority to appeal a district court’s determination

that an individual is not an SVP.        Pierce claims Iowa Code section

229A.7(5) only provides for the respondent to appeal, and thus the State

is without authority to appeal the district court’s decision. Although the

State apparently concedes section 229A.7(5) does not expressly provide it
with the right to appeal, it claims section 229A.7(5) does not “usurp the

general right of any party to appeal a final civil judgment.” See Atwood v.

Vilsack, 725 N.W.2d 641, 649 (Iowa 2006) (stating chapter 229A

commitment proceedings are civil in nature).

      Iowa Code section 229A.7(5) provides in relevant part:

            If the court or jury determines that the respondent is a
      sexually violent predator, the respondent shall be committed
      to the custody of the director of the department of human
      services . . . . The determination may be appealed.

(Emphasis added.)
      On the other hand, Iowa Rule of Appellate Procedure 6.1 states:

      All final judgments and decisions of the district court and
      any final adjudication in the district court under Iowa R. Civ.
      P. 1.444, involving the merits or materially affecting the final
      decision, may be appealed to the supreme court, except as
      provided in this rule and in rule 6.3.
      Both parties agree “[t]he right to appeal is strictly governed by

statute.”    In re Matter of Melodie L., 591 N.W.2d 4, 6 (Iowa 1999).

“[W]hen more than one statute is pertinent to an inquiry, we first

consider them together in an attempt to harmonize both statutes.” City

of Des Moines v. City Dev. Bd., 633 N.W.2d 305, 311 (Iowa 2001). To the

extent the two statutes conflict, the statute dealing with the subject

matter in a more definitive and minute way will prevail over the general

statute. Id.
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      We agree with the State the statutes can be harmonized. We need

not decide whether “[t]he determination” in section 229A.7(5) refers only

to the determination the respondent is an SVP. Assuming argumendo

the parties’ interpretation is correct, we nevertheless believe the last

sentence in section 229A.7(5) was merely an effort by the legislature to

emphasize the respondent’s right to appeal an SVP determination rather

than an intent to eliminate the State’s general right to appeal.          See
Osborne v. Florida, 907 So. 2d 505, 507 (Fla. 2005) (holding Florida’s

statute stating “The determination that a person is a sexually violent

predator may be appealed” did not eliminate the State’s right to appeal in

any civil proceeding).

      Moreover, Pierce’s reliance on a Missouri Court of Appeals decision

is misplaced. See In re Care & Treatment of Salcedo, 34 S.W.3d 862 (Mo.

Ct. App. 2001), superseded by statute, Mo. Rev. Stat. § 632.495 (Supp.

2002), as recognized by Barlow v. State, 114 S.W.3d 328, 331–32 (Mo.

Ct. App. 2003). Iowa rule 6.1 gives civil litigants the right to appeal “[a]ll

final judgments.”   In contrast, Missouri provides for a right to appeal

from any civil cause unless “clearly limited in special statutory

proceedings.” Mo. Rev. Stat. § 512.020 (2006). The Salcedo court found
that because Missouri’s SVP Act provided only for the appeal of a

determination that a person is an SVP, the legislature “clearly limited”

the state’s general right of appeal. Salcedo, 34 S.W.3d at 868–69. We do

not find Salcedo persuasive in light of the statutory differences between

Missouri and Iowa law. Thus, we hold the State may appeal the district

court’s determination that Pierce is not an SVP.

      B.     Whether the district court applied the correct standard

in its determination.     Turning to the merits of the appeal, we must

determine whether the district court applied the correct legal standard.
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The State was required to prove “beyond a reasonable doubt, [Pierce] is a

sexually violent predator.” Iowa Code § 229A.7(5). Thus, the State had

to prove the following three elements: (1) Pierce has been convicted of a

sexually violent offense; (2) Pierce suffers from a mental abnormality; and

(3) the mental abnormality makes him more likely than not to engage in

predatory acts constituting sexually violent offenses, if not confined in a

secure facility.     Id. § 229A.2(4), (11).   A mental abnormality is 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(5).

      The district court found the State met its burden with respect to

the first two elements. Specifically, the court found Pierce suffered from

two   mental       abnormalities—pedophilia   and    antisocial   personality

disorder. However, the court found the State failed to prove the third

element because the State’s expert could not offer an opinion as to

whether Pierce is more likely than not to reoffend within five years. The

court held the third element “requires a finding that the likelihood to

engage in sexually violent offenses is a current or present likelihood of
reoffense at the time of the proposed commitment.” (Emphasis added.)

The      State’s   expert   presented   evidence    Pierce   shares   similar

characteristics with sex offenders who had high rates of reoffense over

six to fifteen year periods. The district court held “opinion evidence of

someone’s lifetime risk of reoffending is irrelevant to the issue to be

decided.”     We find the Act does not require the State to prove a

respondent is more likely than not to reoffend within a particular time

frame.      The district court should have considered all of the State’s

evidence.
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      The district court’s reliance on In re Detention of Selby, 710 N.W.2d

249 (Iowa Ct. App. 2005), for its interpretation of the Act was misplaced.

There, the court of appeals rejected a respondent’s contention chapter

229A violated due process because it fails to contain a temporal

limitation for calculating a predator’s risk of reoffense.        Selby, 710

N.W.2d   at   250.     The   court   found   the   respondent’s    argument

unconvincing because it interpreted chapter 229A to require a person be
found to be both dangerous and mentally ill at the time of the proposed

commitment. Id. at 252. We have no quarrel with this statement from

the Selby court. However, there is no merit to the notion a person is not

dangerous unless the State proves he would inflict harm immediately

upon release. See Hubbart v. Superior Ct., 969 P.2d 584, 600 (Cal. 1999).

We have previously stated “we are convinced the legislature did not

intend to impose a burden upon the State to prove that alleged sexual

predators are expected to reoffend within a specific time period . . . .” In

re Detention of Ewoldt, 634 N.W.2d 622, 624 (Iowa 2001); see also In re

Detention of Altman, 723 N.W.2d 181, 185 (Iowa 2006) (stating chapter

229A requires an individualized determination “that the particular

respondent is likely to commit sexually violent offenses in the future”
(emphasis added)).    Moreover, it would be impossible for the State to

pinpoint exactly when it believes the respondent will reoffend.          We

conclude the statute requires the State to establish the respondent is

presently suffering from a mental abnormality that makes him more

likely than not to engage in sexually predatory acts in the future.

      In the present case, Dr. Hoberman, the State’s expert witness,

determined Pierce’s risk of reoffending using base rates for sex offenders,

actuarial risk assessments, individual risk factors, and structured

clinical judgment.   Dr. Hoberman used three different actuarial risk
                                     8

assessment instruments in his evaluation of Pierce.           An actuarial

assessment provides an “empirically measured rate of recidivism among

a group of sex offenders who share a set of characteristics with the

subject of the evaluation.” Eric S. Janus & Robert A. Prentky, Forensic

Use of Actuarial Risk Assessment with Sex Offenders: Accuracy,

Admissibility and Accountability, 40 Am. Crim. L. Rev. 1443, 1476 (2003).

Using the Static-99 instrument, Dr. Hoberman placed Pierce in the high
risk category associated with a 52% rate of reconviction over a period of

fifteen years. Based on the MNSOST-R instrument, Pierce was placed in

the category associated with a 72% risk of being rearrested for a sexual

offense within a six-year period. With the SORAG instrument, Pierce fell

in the category associated with an 89% likelihood of violently reoffending

(not necessarily a sex crime) within a ten-year period.     Dr. Hoberman

opined these actuarial figures may be conservative because they are

based on rates of rearrest or reconviction and studies have shown sex

offenses against children are vastly under reported.

      Dr. Hoberman also considered Pierce’s individual risk factors. He

concluded Pierce possessed several traits associated with future sexual

offending such as deviant sexual behavior and arousal, problems in
interpersonal relationships, persistent rule violations, failure to complete

sex offender treatment, and a general criminal history.

      Finally, Dr. Hoberman used structured clinical judgment to

evaluate Pierce’s risk of reoffending.   He labeled Pierce a psychopath

using the Hare Psychopathy Checklist-Revised. Dr. Hoberman explained

research has shown people who have high psychopathy scores and

deviant sexual arousal are at a “particularly elevated rate of sexual

reoffending.”   Dr. Hoberman concluded Pierce “falls into the higher

category of risk and is someone whose level of risk would be more likely
                                      9

than not” to commit future sexual offenses.     The Act does not require

more precise evidence for a reasonable fact finder to conclude Pierce is

dangerous and a menace to society if not committed. The district court

erred by refusing to consider evidence of Pierce’s lifetime risk.     The

actuarial risk assessment results were relevant to determine whether

Pierce is an SVP within the meaning of the Act. See Iowa R. of Evid.

5.401 (stating evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence”). How much weight the evidence should be given is of course

up to the fact finder. State v. Thorton, 498 N.W.2d 670, 673 (Iowa 1993).

      Sexual offenses are often crimes of opportunity. It is impossible to

predict when Pierce will have access to young children. However, there is

abundant evidence Pierce has abused children when the opportunity was

presented to him.   If a fact finder believes Pierce will commit another

sexual offense if given the opportunity because his pedophilia and

antisocial personality disorder prevent him from controlling his behavior,

then the State has proven Pierce is an SVP. Because the district court

misinterpreted what the Act requires the State to prove, we reverse and
remand for the court to reconsider the evidence presented at trial.

      IV.   Conclusion.

      The State may appeal a determination that an individual is not an

SVP. Moreover, the State was not required to prove Pierce is likely to

reoffend within a given time frame.

      REVERSED AND REMANDED WITH INSTRUCTIONS.
