In re the Detention of Dewayne Bethke ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2118
Filed November 27, 2019
IN RE THE DETENTION OF DEWAYNE BETHKE,
DEWAYNE BETHKE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mitchell County, Christopher Foy,
Judge.
The respondent challenges the district court’s ruling granting the State’s
petition to civilly commit him as a sexually violent predator. AFFIRMED.
Jill Eimermann of State Public Defender’s Office, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., and May and Greer, JJ.
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POTTERFIELD, Presiding Judge.
Dewayne Bethke appeals from the district court ruling granting the State’s
petition to civilly commit him as a sexually violent predator. Bethke challenges
the sufficiency of the evidence supporting the district court’s findings he suffers
from a mental abnormality, as defined by Iowa Code section 229A.2(5) (2017),
which makes it more likely than not he will commit another sexually violent act.
I. Background Facts and Proceedings.
Bethke was born in 1966. He dropped out of school after the eighth grade
and has engaged in criminal acts since the age of thirteen. He has not
maintained stable employment or housing and often relies on family members for
financial and housing assistance.
In 1992, when he was approximately twenty-six years old, he broke into a
home and stole a photograph and two pairs of underwear of the daughter who
lived there. Bethke stole the items with the intention of sexual gratification. He
was initially charged with burglary in the third degree but entered a guilty plea to
trespass with damage.
In 2001, Bethke pled guilty to one count of lascivious acts with a child and
one count of assault in violation of individual rights after sexually molesting two of
his nieces, who were approximately ten years old at the time. Bethke’s prison
sentence was suspended, and he was placed on probation.
Bethke’s probation was eventually revoked; he continued to get caught
with underwear he stole from various women, including in 2007 when he was
found with underwear belonging to one of the nieces he molested and in 2008
when he was kicked out of the residential facility where he lived for stealing
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another resident’s underwear. Bethke admits he stole the underwear for
masturbatory purposes.
In 2014, when Bethke was nearly fifty years old, he was convicted of
assault resulting in injury after he pushed a young woman on a bike trail off her
bike. At various times since the incident, including during a later polygraph test,
Bethke stated he pushed the woman off the bike with the intention of raping her.
During the trial on the State’s petition to have him civilly committed, Bethke
denied having the intent to rape the woman—who he recognized as a friend of
one of the nieces he molested—and claimed he and the woman were in an
unintentional bike accident.
Also in 2014, Bethke was convicted of burglary in the third degree after he
broke into the home of one of the nieces he had molested—now a woman in her
twenties—and stole multiple pairs of her underwear. Bethke admits he stole the
underwear with the intention of using them for sexual gratification.
In February 2017, while Bethke was still serving his prison sentence for
his 2014 conviction of burglary in the third degree, the State filed a petition
asserting Bethke is a sexually violent predator who should be committed under
chapter 229A of the Iowa Code.
After a hearing, the court determined there was probable cause to find
Bethke is a sexually violent predator pursuant to Iowa Code section 229A.2,
ordered Bethke to be allowed to serve and discharge his criminal sentence, and
ordered the Iowa Department of Corrections to maintain custody of Bethke “at an
appropriate secure facility” after his sentence discharged pending final
disposition of the proceedings on whether he is a sexually violent predator.
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The trial took place in March 2018.1 When asked what ages his nieces
were at the time he molested them, Bethke answered they were twelve or
thirteen. When confronted with the fact that the records showed they were nine
and eleven, he denied that was possible. Bethke also minimized his actions,
stating he touched each niece’s “breast area over the top of her clothing” on a
single occasion. The description of the action taken and number of times is at
odds with the reports made by the nieces and earlier admissions made by
Bethke. Additionally, Bethke changed his story about what took place on the
bike trail and his intentions when he shoved the woman from her bike. During his
2016 polygraph test, Bethke admitted to sexually abusing three other minors, for
which he was never caught or faced legal charges—an eleven-year-old boy and
two teenage girls. At trial, Bethke denied having any male victims and
maintained his admission had been that he was abused as a young child.
Dr. Kimberly Weitl, a clinical psychologist who testified as an expert
witness for the State, testified that she diagnosed Bethke as having pedophilic
disorder, fetish disorder, and antisocial personality disorder. When asked about
Bethke’s denial of being sexually attracted to children, Dr. Weitl noted that the
DSM-5 provides that pedophilic disorder “doesn’t go away. . . . [T]here’s some
suggestion that maybe even the intensity of the urges can diminish, um, as time
goes by or—and/or with treatment. Um, but it doesn’t go away.” She also noted
1
By statute, the court “shall conduct a trial to determine whether respondent is a
sexually violent predator” “within ninety days after . . . [the] completion of the probable
cause hearing held under section 229A.5.” Iowa Code § 229A.7(3). However, as
occurred here, the respondent can waive the ninety-day trial requirement. In fact, the
delay between the probable cause hearing and the trial can be largely attributed to
Bethke’s requests for continuances, which the district court granted.
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that Bethke’s fetish regarding women’s underwear had led him to break the law
repeatedly between 1992 and 2014, breaking into homes and stealing the
personal belongings of women to whom he claimed an attraction. His pedophilic
and fetish disorder, combined with the antisocial personality disorder—which is
“a disregard for and violation of the rights of others” and includes “an inability to
control their behavior or manage their behavior”—led her to conclude it was more
likely than not Bethke would continue to commit sexually violent offenses if not
held in a secure facility.
Dr. Weitl discussed her use of the Static-99R and the Static-2002R, which
are risk assessment tools commonly used in the profession to help determine the
likelihood a person will commit another sexual offense. Based on Bethke’s
personal history, Dr. Weitl determined he scored an eight on the Static-99R,
which she reported meant he was 7.32 times more likely than the typical
offender, which has a score of two, to be caught, charged, or convicted of
another sex offense. When asked, Dr. Weitl testified that the instruments also
came with recidivism tables, which provide “a percentage of the studied sample
group that sexually re-offended.” Dr. Weitl did not include those percentages in
her report because she believes the numbers confuse the question of whether a
person is more likely than not to re-offend. In support of this, she testified the
recidivism charts underestimate the risk because their data only includes those
who are caught reoffending, sexual assaults often go unreported,2 and the charts
only show chance of reoffending within a certain time period—five years or ten
2
According to Dr. Weitl’s testimony, the “last time [she] looked” at FBI statistics, “it said
57 percent of” “sexual assaults aren’t even reported.”
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years, depending on the chart. When asked, she testified that, using the “high
risk tables” for the Static-99R, the recidivism rate within ten years for someone
with a score of eight was 37% to 60%. She also expressed concern that Bethke
had been unable to testify about his offense cycle, indicating that it was important
for someone with deviant urges to be able to “have a good grasp on [their]
pattern of behavior,” so they can “know where to intervene and how to intervene.”
Dr. Luis Rosell, a forensic psychologist who testified as an expert witness
for Bethke, agreed with Dr. Weitl’s diagnoses for Bethke: pedophilic, fetish, and
antisocial personality disorder. But he maintained the diagnoses did not mean
Bethke suffered from a mental abnormality as defined by Iowa law, as he opined
Bethke did not have serious difficulty controlling his behavior. In reaching this
conclusion, Dr. Rosell noted there was no evidence that Bethke had acted on
pedophilic urges after his 2001 convictions for molesting his nieces. Additionally,
Dr. Rosell relied heavily on the version of events Bethke told him—testifiying it
was “questionable” whether Bethke’s assault of the woman on the bike trail was
sexually motivated, in spite of the fact Bethke stated during the polygraph that he
intended to rape the woman. Dr. Rosell also put emphasis on the fact Bethke
had completed sex offender treatment, testifying:
So in terms of addressing maybe issues of anger and boundaries
and how to behave appropriately around other people . . . , any
time you go into any treatment program, even if you don’t do—
you’re not doing that well in there; you’re not admitting to
everything, you can always pick up so many things regarding your
life on how you should behave and interact with people in a more
appropriate manner.
And at a minimum those are some of the things I believe he
was able to pick up and trying to figure out, trying to understand
more about empathy and consider other people, etc, when you
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don’t have to.
The district court filed a written ruling in November 2018, granting the
State’s petition to civilly commit Bethke as a sexually violent predator and stating,
in part:
The court found the testimony of [Bethke] at trial to be extremely
unbelievable and unreliable. He minimalized the harm to the
victims of his crimes. He was unwilling to accept responsibility for
his own actions and attempted to shift blame to others for almost
every conviction on his record. [Bethke] appears to have very little
insight into the disorders that motivate his criminal behavior and
even less understanding of what he must do to avoid committing
sexually motivated offenses in the future.
....
The court gave more weight to the analysis and conclusions
made by the expert offered by the State, Kimberly Weitl, Psy.D.,
than those of [Bethke’s] expert, Luis Rosell, Psy.D. In reaching his
ultimate conclusion, it appears that Dr. Rosell relied too heavily on
what he was told by [Bethke] and assigned too much significance to
the sex offender treatment programming done by [Bethke]. Based
on its review of the record and its observations of [Bethke] during
the trial, the court has no confidence that [he] has internalized and
would be able to implement any of the principles or concepts of the
sex offender treatment programming he has received. The analysis
employed and conclusions reached by Dr. Weitl are consistent with
and supported by the evidence in the record beyond a reasonable
doubt.
Bethke appeals.
II. Standard of Review.
We review challenges to the sufficiency of the evidence for correction of
errors at law. In re Det. of Bosworth, 711 N.W.2d 280, 286 (Iowa 2006). We
review all the evidence in the record in the light most favorable to the State. Id.In doing so, we do not ignore the evidence not supporting the ruling, but we
afford the State “all legitimate inferences and presumptions which may be fairly
and reasonably deduced from the record.” Id. (citation omitted).
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III. Discussion.
Iowa Code section 229A.2(12) defines “sexually violent predator” 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.” Bethke concedes he has been convicted of a sexually violent offense.
But he challenges whether the State established he suffers from a mental
abnormality that makes him likely to engage in predatory acts constituting
sexually violent offenses, if not confined in a secure facility.
While Bethke does not challenge his diagnoses of pedophilic, fetish, and
antisocial personality disorders, he maintains the State did not prove those
disorders cause him serious difficulty in controlling his behavior, as is required for
a “mental abnormality.” See Iowa Code § 229A.2(6) (defining “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.”); see also In re Det. of Barnes, 658 N.W.2d 98, 101 (Iowa
2003) (requiring a showing of “mental abnormality” to include proof the person
has “serious difficulty in controlling their behavior”). In making this claim, Bethke
points to the fact that he was not charged with any crimes implicating his
pedophilic disorder after 2000 and argues his 2014 crimes of aggravated assault
and burglary in the third degree “were not squarely sexually motivated.”
As to his first argument, nothing in the sexually-violent-predator statute
requires that the offender continue to commit the same type of sexually violent
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offenses in order to be confined. Stated another way, while Bethke’s original
convictions for sexually violent offenses involved children, the court can find
Bethke to be a sexually violent predator if he is likely to commit sexually
motivated offenses against persons of any age. We agree the record supports
that Bethke seems to have better control over his urges involving children,3 but
he has been less successful in stopping himself from acting on other sexually
motivated urges.
As to his second argument, Bethke characterizes the evidence regarding
his motivation for shoving the woman off her bike and breaking into his niece’s
home to steal her underwear as “conflicting.” But as the district court concluded,
Bethke’s attempt to minimize his actions or recast his intentions was “extremely
unbelievable and unreliable.” Bethke admitted to various people at various
times, including to the person conducting the polygraph exam that Bethke
passed, that he shoved the woman off her bike with the intention of raping her.
And he admitted during trial that he broke into his niece’s home—though he
maintained it was to use her bathroom—and then stole her underwear with the
intention of using them for masturbatory purposes. Bethke continued to make
impulsive criminal decisions for the purpose of his own sexual gratification. He
completed sex offender treatment programming after the two 2014 crimes, but
his inability to testify about his offense cycle and his plans for coping with his
urges supports the court’s conclusion that Bethke has very little “understanding
of what he must do to avoid committing sexually motived offenses in the future.”
3
We acknowledge, but do not credit, Bethke’s testimony that he is no longer attracted to
prepubescent children.
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Viewing the evidence in the light most favorable to the State, Bethke continues to
suffer from a mental abnormality that causes him serious difficulty in controlling
his behavior and predisposes him to commit sexually violent offenses.
Next, Bethke challenges the sufficiency of the evidence to support the
court’s determination he is “likely to engage in predatory acts constituting
sexually violent offense.” See Iowa Code § 229A.2(12). “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.” Id. § 229A.2(5) (emphasis
added). “Sexually violent offense” is broadly defined to include criminal acts that
have “been determined beyond a reasonable doubt to have been sexually
motivated.” Id. § 229A.2(11)(g). A crime is “sexually motivated” when one of the
reasons the perpetrator commits it is for their sexual gratification. Id.
§ 229A.2(10). In support of this claim, Bethke relies on the various recidivism
charts that show a less than 50% recidivism rate. He questions the court’s
reliance on Dr. Weitl’s opinion that he is more likely than not to reoffend when her
opinion is based on factors other than those provided for in the actuarial
instruments and deviates from the percentages provided by the actuarial charts.
But Dr. Weitl gave a number of reasons why she believes the recidivism charts
underrepresent the likelihood someone will reoffend, including that it only takes
into account when an offender gets caught for the later offense, that sexual
offense crimes often go unreported, and the period of time it provides for is
limited. Moreover, her opinion of how well Bethke had internalized treatment and
the fact that Bethke continued to commit offenses into his late forties—when the
DSM-5 provides that reduced criminality can be expected after a person reaches
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thirty—informed her opinion that Bethke was more likely than not to commit
another sexually violent offense. Insofar as Dr. Weitl explained why she diverged
from reported recidivism rates in forming her opinion, and the district court found
Dr. Weitl to be more credible than Bethke’s expert, substantial evidence supports
the court’s determination that Bethke is likely to engage in predatory acts
constituting sexually violent offense. See State v. Jacobs, 607 N.W.2d 679, 685
(Iowa 2000) (“When the case evolves into a battle of the experts, we, as the
reviewing court, readily defer to the district court’s judgement as it is in a better
position to weigh the credibility of the witnesses.”).
IV. Conclusion.
Because substantial evidence supports the district court’s determination
Bethke is a sexually violent predator, we affirm the district court ruling granting
the State’s petition to have him civilly committed.
AFFIRMED.