In re the Detention of Dempsey

IN THE COURT OF APPEALS OF IOWA

No. 17-1306
Filed August 15, 2018

IN RE THE DETENTION OF ERIC DEMPSEY,

ERIC DEMPSEY
Respondent-Appellant.
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Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.

Eric Dempsey appeals from the district court judgment finding him to be a

sexually violent predator subject to civil commitment. AFFIRMED.

Jill A. Eimermann of State Public Defender’s Office, Des Moines, for

appellant.

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

General, for appellee.

Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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DANILSON, Chief Judge.

Eric Dempsey appeals from the jury verdict finding him to be a sexually

violent predator subject to civil commitment under Iowa Code chapter 229A (2015).

Dempsey challenges the sufficiency of the evidence showing that he is a sexually

violent predator. We conclude there is sufficient evidence and affirm.

As defined in chapter 229A, a sexually violent predator (SVP) is a person

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

from a mental abnormality that makes the person more likely than not to engage

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

facility. Iowa Code § 229A.2(5) (defining “likely to engage in predatory acts of

sexual violence”), (12) (defining “sexually violent predator”). We review

Dempsey’s challenge 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 the finding that Dempsey is a SVP if it is supported by substantial evidence.

See id. In determining whether substantial evidence supports the finding, we

consider the evidence in the light most favorable to the State, including all

legitimate inferences and presumptions that may be fairly and reasonably deduced

from the record. See id. Evidence that raises only suspicion, speculation, or

conjecture is insufficient. See id.

At trial, Dr. Jeffrey Davis opined Dempsey meets the diagnostic criteria for

a paraphilic disorder not otherwise specified (NOS), arousal to non-consenting

partners; antisocial personality disorder; and three substance use disorders. Dr.

Davis explained, “A paraphilia is a sexual deviation, essentially. It means recurrent

or intense fantasies, urges or behaviors related to sexual behavior.” Using the
3

Static-99R instrument and considering factors such as Dempsey’s age, criminal

history, history of relationships, and prior sex offenses, Dr. Davis scored Dempsey

as a three. Dr. Davis explained “[o]ne to three is the average range on the Static-

99R. He falls in the upper end of the average range as far as the number of the

score.” According to Dr. Davis, “offenders with a score of three are about 1.4 times

more likely than the ordinary two score offender to recidivate.”

Dr. Davis then used the SRA-FV instrument1 to determine it was appropriate

to use a high-risk/high-need table to quantify Dempsey’s risk of recidivism. Among

the high-risk/high-need group, in five years fourteen percent and in ten years just

under twenty-three percent of offenders with a Static-99R score of three are

detected, arrested, charged, or convicted of additional offenses. Dr. Davis

ultimately opined that based on the static and dynamic factors in Dempsey’s case,

he is likely to commit future predatory acts of sexual violence if not confined for

treatment.

Dempsey presented evidence from expert witness Dr. Christopher Fisher

at trial. Dr. Fisher opined Dempsey does not suffer from a current mental

abnormality and stated, “I don’t think [Dempsey’s] risk to reoffend rises to that more

likely than not threshold.” Dr. Fisher also scored Dempsey as a three using the

Static-99R instrument, but found it was not appropriate to compare Dempsey to

the high-risk/high-need table. Dr. Fisher explained he does not use the SRA-FV

1
Dr. Davis stated the SRA-FV instrument measures three domains: sexual interests,
relational style, and self-management. At a total score of 4.21, Dr. Davis determined
Dempsey’s dynamic factors were “quite dense,” and use of the high-risk/high-need table
was appropriate.
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tool. Overall, Dr. Fisher found Dempsey was not more likely than not to commit

future acts of predatory violence.

Dempsey contends there is insufficient evidence to establish he has a

mental abnormality or that he is more likely than not to commit sexually violent

offenses if not confined in a secure facility. 2 Specifically, Dempsey contends the

State’s expert testimony from Dr. Davis diagnosing Dempsey with a paraphilic

disorder not otherwise specified (NOS) was not sufficient to meet the State’s

burden of proof that Dempsey is a SVP because a paraphilic disorder NOS is not

a specific diagnosis under the American Psychiatric Association Diagnostic

Statistical Manual (DSM).

Iowa Code section 229A.2(6) defines a 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.” “This definition

places no limitation on the nature and condition that may qualify as a ‘mental

abnormality.’” Betsworth, 711 N.W.2d at 284; see Barnes, 689 N.W.2d at 458-59

(holding “the types of conditions that can serve to establish a ‘mental abnormality’

are not limited to certain recognized diagnoses”). “What is important is that the

2
To establish Dempsey was a sexually violent predator, the State was required to prove:
(1) he was “convicted of or charged with a sexually violent offense”; and (2) he “suffers
from a mental abnormality which makes [him] likely to engage in predatory acts
constituting sexually violent offenses, if not confined in a secure facility.” Iowa Code §
229A.2(12); see also In re Detention of Barnes, 689 N.W.2d 455, 457 (Iowa 2004). There
is no dispute with respect to the first element as Dempsey has been previously convicted
of a sexually violent offense. See Iowa Code § 229A.2(12). Dempsey was first convicted
of a sex offense—sexual abuse in the third degree—in May 2002. Dempsey was
subsequently convicted of an additional sex offense—assault with intent to commit sexual
abuse—which occurred in April 2008—approximately six months after his release from
prison for his first conviction.
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statute requires the condition to be congenital or acquired and to affect the

emotional or volitional capacity of the person subject to commitment.” Barnes, 689

N.W.2d at 458-59. Dr. Davis explained Dempsey’s paraphilic disorder NOS,

antisocial personality disorder, and substance use disorders constitute mental

abnormalities. Dr. Davis also thoroughly explained to the jury the factors he

considered in reaching the ultimate determination that without further treatment

Dempsey is more likely than not to commit further predatory acts of violence.

Determining witness credibility and weighing evidence is the job of the

factfinder. See id. at 461. In doing so, the jury was free to reject the testimony of

Dr. Fisher and accept the testimony of Dr. Davis. See In re Det. of Hennings, 744

N.W.2d 333, 340 (Iowa 2008) (noting the jury was free to reject the testimony of

Hennings’s expert witnesses and instead to accept the testimony of the State’s

expert witness). The testimony of Dr. Davis provides sufficient evidence to support

the jury verdict.

Our review of the record reveals sufficient evidence from which the jury

could find beyond a reasonable doubt that Dempsey is likely to engage in

predatory acts in the future. Finding no basis for reversal, we affirm.

AFFIRMED.