                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0634
                               Filed May 25, 2016


IN RE DETENTION OF

DANIEL JOSEPH SCOTT,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Douglas S.

Russell, Judge.




      Daniel Scott appeals the jury’s verdict finding he is not suitable for

discharge from civil commitment pursuant to Iowa Code chapter 229A (2015).

AFFIRMED.



      Adam C. Gregg, State Public Defender, and Thomas J. Gaul, Assistant

Public Defender, Special Defense Unit, State Public Defender’s Office, for

appellant.

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

General, for appellee State.




      Considered by Vogel, P.J., and Doyle and Bower, JJ
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DOYLE, Judge.

       Daniel Scott appeals the jury’s verdict finding he is not suitable for

discharge from civil commitment pursuant to Iowa Code chapter 229A (2015),

asserting the district court erred in denying his motions for summary judgment

and for a directed verdict. Our review is for correction of errors at law. See In re

Det. of Stenzel, 827 N.W.2d 690, 697 (Iowa 2013); In re Det. of Hennings, 744

N.W.2d 333, 340 (Iowa 2008); see also Iowa R. Civ. P. 6.907.             Summary

judgment is only appropriate when, viewing the record in the light most favorable

to the opposing party, “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Iowa R. Civ. P. 1.981(3); Walker v. State, 801

N.W.2d 548, 554 (Iowa 2011). A directed verdict is appropriate if, viewing the

evidence in the light most favorable to the nonmoving party, the State failed to

present substantial evidence on each element of the claim, meaning, from the

evidence presented, a jury could not reasonably infer a fact from the evidence.

See Hennings, 744 N.W.2d at 340.

       A “sexually violent predator” is defined as “a person who has been

convicted of or charged with a sexually violent offense and who suffers from a

mental abnormality which makes the person likely to engage in predatory acts

constituting sexually violent offenses, if not confined in a secure facility.” Iowa

Code § 229A.2(12). A person is “likely to engage in predatory acts of sexual

violence” if “the person more likely than not will engage in acts of a sexually

violent nature.” Id. § 229A.2(5).
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         In this case, the record

         reveals that in 1984 twenty-seven-year-old Scott took a customer
         back to his tow-service business and forced her to perform oral sex
         upon him. He pled guilty to third-degree kidnapping and sexual
         abuse in exchange for receiving immunity from other sexual
         assaults that were committed around this same time. Scott was
         released from prison in the fall of 1989.
                The following March, thirty-three-year-old Scott assaulted a
         female acquaintance by grabbing her breast and forcing her to
         place her hand on his exposed penis while he gave her a ride
         home. He was convicted of assault with intent to commit sexual
         abuse and sentenced to prison.
                After his release from prison, Scott lost his left leg in a
         motorcycle accident and began working as a taxicab driver. On
         September 2, 1997, forty-year-old Scott sexually assaulted a
         female passenger by grabbing her breasts in his cab. The next
         day, he assaulted another female passenger in a similar manner.
         Scott was convicted of assault with intent to commit sexual abuse
         and third-degree sexual abuse as an habitual offender.

In re Det. of Scott, No. 06-0556, 2007 WL 3085880, at *1 (Iowa Ct. App. Oct. 24,

2007).

         In 2006, Scott was found to be a sexually violent predator and civilly

committed. See id. at *2. He subsequently appealed that finding, and this court

affirmed. See id. at *4.

         “Following the filing of an annual report in May 2009, the district court

granted Scott’s request for a final hearing on whether he was eligible for

discharge,” and a hearing before a jury was subsequently held. In re Det. of

Scott, No. 11-0653, 2012 WL 1860758, at *1 (Iowa Ct. App. May 23, 2012). At

the time of that hearing, Scott was fifty-four years old and had many health

conditions: “Both of his legs have been amputated. He has diabetes and heart

problems—having suffered two major heart attacks—suffers from acute kidney

disorder, and wears a catheter. Scott’s medical problems are severe enough
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that he was unable to make progress in his treatment.” Id. at *2. The State

presented expert testimony opining that Scott was likely to reoffend despite his

health conditions. See id. Scott presented his own experts, one of whom opined

that “Scott’s declining health would diminish his risk of committing sexually

violent offenses.” Id. After hearing the evidence, the jury found “Scott’s mental

abnormality remained such that he was likely to engage in predatory acts

constituting sexually violent offenses.” Id. at *1. Scott appealed that finding,

arguing there was “insufficient evidence that he would likely commit sexually

violent offenses if discharged” and noting his treatment, age, and physical health

made “it unlikely he would reoffend.” Id. at *2. Viewing the record in the light

most favorable to the State, we affirmed the verdict finding Scott’s civil

commitment should continue. Id. at *2.

       Following Scott’s November 2014 annual report, an annual review hearing

was held. The district court concluded Scott

       met his burden of showing, by a preponderance of the evidence,
       there is relevant and reliable evidence that would lead a reasonable
       person to believe a final hearing should be held to determine if
       either: 1) 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 discharged; or 2) the
       committed person is suitable for placement in a transitional release
       program pursuant to section 229A.8A.

       The hearing was held before a jury in March 2015, and the case was

again a battle of the experts. The State’s expert opined that Scott continues to

have a mental abnormality—antisocial personality disorder—and, despite

treatment, Scott was still more likely than not to commit acts constituting sexually

violent offenses. Even considering Scott’s physical limitations, the expert opined
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he was still more likely than not to reoffend, pointing out that Scott committed

sexual offenses even after he lost his first leg in 1992 and his particular offenses

of grabbing and touching were things he could still do while seated in a

wheelchair.   The expert believed Scott still possessed several dynamic risk

factors, such as a lack of insight into his actions and lack of the ability to manage

his emotions and outbursts.       Conversely, Scott’s experts, Drs. Reese and

Rypma, opined that Scott’s physical condition made Scott unlikely to reoffend.

The matter was submitted to the jury, which found that Scott’s mental

abnormality had not “so changed that he is no longer likely to engage in

predatory acts constituting sexually violent offenses if discharged” and that he

was not suitable for placement in a transitional release program.

       Viewing the evidence in the light most favorable to the State, we are

unable to find the court erred in denying Scott’s motions for summary judgment

and for a directed verdict. Under Iowa Code section 229A.8(1), “a rebuttable

presumption exists that the commitment should continue.”            Scott’s experts

rebutted that presumption, warranting a hearing “to determine whether [Scott] no

longer suffer[ed] from a mental abnormality which makes the person likely to

engage in predatory acts constituting sexually violent offenses if discharged, or

the committed person is suitable for placement in a transitional release program.”

Nevertheless, given the State’s opposing position and its expert’s supporting

opinion, clearly a genuine issue of material fact existed making summary

judgment inappropriate. Consequently, the court did not err in denying Scott’s

motion for summary judgment.
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       Moreover, the State’s expert testimony substantially supported the jury’s

conclusion that Scott continued to suffer “from a mental abnormality which makes

the person likely to engage in predatory acts constituting sexually violent

offenses if discharged” and was not suitable for placement in a transitional

release program. Although Scott’s experts offered contrary opinions, it is not this

court’s function to determine the correctness of either the theory or testimony

between experts; rather, it is for the jury to decide which expert is more credible

and whose opinion it accepts. See In re Det. of Altman, 723 N.W.2d 181, 185

(Iowa 2006); see also State v. Jacobs, 607 N.W.2d 679, 685 (Iowa 2000) (“When

conflicting psychiatric testimony is presented to the fact finder, the issue . . . is

clearly for the fact finder to decide. The . . . trier of fact is not obligated to accept

opinion evidence, even from experts, as conclusive. When a case evolves into a

battle of experts, . . . the reviewing court . . . readily defer[s] to the [fact finder’s]

judgment as [they are] in a better position to weigh the credibility of the

witnesses.”    (citations omitted.)).   Here, the jury chose to accept the State’s

expert’s opinion over Scott’s experts’ opinions. Because substantial evidence

supported the jury’s verdict, the district court did not err in denying Scott’s motion

for a directed verdict.    Accordingly, we affirm the verdict finding Scott’s civil

commitment should continue.

       AFFIRMED.

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