State v. Roy C. O'Neal

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 24, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP1855 Cir. Ct. No. 1996CI842

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE COMMITMENT OF ROY C. O’NEAL:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

ROY C. O’NEAL,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
WILLIAM M. ATKINSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1855

¶1 PER CURIAM. Roy O’Neal appeals an order denying his petition
for discharge from his commitment as a sexually violent person under WIS. STAT.
ch. 980 (2017-18).1 O’Neal argues the State failed to present sufficient evidence to
support a finding that he is more likely than not to commit a future act of sexual
violence. We reject O’Neal’s argument and affirm.

BACKGROUND

¶2 In 1996, the State petitioned to commit O’Neal as a sexually violent
person under WIS. STAT. ch. 980. The petition alleged that on December 23, 1975,
O’Neal was convicted of two sexually violent offenses—second-degree murder,
contrary to WIS. STAT. § 940.02 (1973-74), and attempted rape, contrary to WIS.
STAT. §§ 939.32 and 944.01 (1973-74). The victim of those offenses was a
seventeen-year-old female. Based on the allegations in the original criminal
complaint, the petition characterized both offenses as being “sexually motivated.”
The petition included a psychologist’s opinion that O’Neal suffered from a mental
disorder—namely, sexual sadism—that predisposed him to commit sexually violent
acts. The psychologist further opined that O’Neal’s sexual sadism created a
substantial probability that he would engage in future acts of sexual violence.

¶3 O’Neal stipulated to his commitment as a sexually violent person, and
in September 1996, the circuit court entered an order committing him to inpatient
treatment in a secure mental health facility. In April 2014, O’Neal petitioned for
supervised release. The parties stipulated that supervised release was appropriate,
and O’Neal was ultimately placed on supervised release in August 2015.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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¶4 In January 2018, O’Neal petitioned for discharge from his WIS. STAT.
ch. 980 commitment, based on a report authored by psychologist Charles Lodl. The
circuit court determined that O’Neal was entitled to a discharge trial, and the court
subsequently held a bench trial on O’Neal’s discharge petition in September 2018.
At trial, the parties stipulated that O’Neal had been convicted of a sexually violent
offense, for purposes of ch. 980. The court then heard evidence related to the
remaining two elements the State was required to prove in order to defeat O’Neal’s
discharge petition—specifically, that O’Neal had a qualifying mental disorder, and
that O’Neal was dangerous to others because his mental disorder made it more likely
than not that he would engage in one or more future acts of sexual violence. See
WIS JI—CRIMINAL 2506; see also WIS. STAT. § 980.01(7).

¶5 The State’s first witness at trial was psychologist Laura DeMarzo, a
Sand Ridge Secure Treatment Center employee who had completed O’Neal’s
treatment progress reports in 2017 and 2018. DeMarzo testified that O’Neal had
initially struggled to adjust to his community placement in 2015, but she also noted
that he had shown positive engagement and progress in treatment since 2016.
DeMarzo testified, however, that O’Neal at times had trouble applying his treatment
in a community setting. For instance, she explained that O’Neal had violated his
rules of supervision by making unapproved purchases and by “[n]ot always being
forthcoming” about his arousal patterns and about “being in the presence of
individuals under the age of 18.”

¶6 DeMarzo also testified that in 2017, O’Neal had engaged in “offense
paralleling behavior”—that is, behavior that “mirrors or has aspects [of his past] sex
offending”—toward one of his treatment monitors. DeMarzo explained that O’Neal
had admitted sexually fantasizing about the monitor, who was a young woman, and
engaging in “sadistic games” to see how she would react. O’Neal also admitted

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experiencing sexual attraction to postpubescent teenagers, as well as having sexual
thoughts about a ten-year-old girl.

¶7 The State’s second witness at trial was psychologist Dawn Pflugradt,
who had performed O’Neal’s annual reexamination in 2018. Pflugradt testified that
O’Neal suffers from several qualifying mental disorders for purposes of WIS. STAT.
ch. 980, specifically: sexual sadism in a controlled environment; exhibitionistic
disorder in a controlled environment; voyeuristic disorder in a controlled
environment; and antisocial personality disorder. Pflugradt testified that O’Neal’s
sexual sadism and antisocial personality disorder each individually predispose him
to engage in acts of sexual violence, while his exhibitionistic disorder and
voyeuristic disorder predispose him to commit such acts “in combination with the
sadism.” Pflugradt explained that O’Neal’s exhibitionism and voyeurism “started
his sexual arousal patterns[,] which then prompted deviant sexual fantasies[,] which
then would predispose him to sexual violence.”

¶8 Pflugradt also opined that O’Neal’s mental disorders make it more
likely than not that he will commit a future act of sexual violence. Pflugradt
explained that she assessed O’Neal’s risk of reoffense using both the Static-99R and
the VRS-SO. She testified O’Neal scored a seven on the Static-99R, which meant
that his characteristics matched “a group of offenders who were in the well above
average risk range or were at high risk of reoffending.” Using the VRS-SO,
Pflugradt determined that O’Neal’s pretreatment score was 43, his posttreatment
score was 34.5, and his change score was 8.5.

¶9 Based on O’Neal’s scores on the Static-99R and the VRS-SO,
Pflugradt determined his risk of committing a sexually violent offense in the next
ten years was “in the upper 30’s.” Pflugradt noted, however, that WIS. STAT. ch. 980

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requires her to assess “lifetime risk.” She also stated that the Static-99R
underestimates an individual’s risk of reoffense because it does not account for
undetected sexual reoffenses. After applying “conservative” multipliers to address
those additional considerations, Pflugradt determined O’Neal was more likely than
not to commit a future act of sexual violence during his lifetime. Specifically, she
testified that O’Neal’s risk of committing a future sexually violent act was “[t]wo
to three percentage points” above fifty percent.

¶10 O’Neal was sixty-one years old at the time of his discharge trial.
Pflugradt acknowledged that research suggests an offender’s risk of reoffense
decreases with age, particularly once the offender reaches age sixty. Because
O’Neal was healthy and active for his age, however, Pflugradt testified she believed
his risk of reoffense “still may be higher than your average 60-year-old or
61-year-old.”

¶11 On cross-examination, Pflugradt acknowledged that O’Neal’s
noncontact offenses involving voyeurism and exhibitionism did not qualify as
sexually violent offenses under WIS. STAT. ch. 980. Nevertheless, Pflugradt
testified that she appropriately considered those offenses when scoring O’Neal on
the Static-99R. She explained that O’Neal’s voyeuristic and exhibitionistic offenses
were “wrapped into hypersexuality and sexual fantasies of violence,” and that
O’Neal had reported “fantasiz[ing] about violent offenses” when committing his
noncontact offenses.

¶12 More specifically, Pflugradt observed that during treatment, O’Neal
had acknowledged “that all of his hands-off offenses at some point in time have
caused him to have sexually violent fantasies or caused him to want to commit a
hands-on offense.” For example, Pflugradt noted O’Neal had self-reported that

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when he was seventeen years old, he was riding on a motorcycle when he saw a
fourteen-year-old girl and exposed his penis to her. O’Neal subsequently grabbed
the girl’s breast and attempted to rape her. Pflugradt noted that in that instance,
O’Neal’s noncontact offense—exhibitionism—was “directly linked” to his sexually
violent conduct. Thus, even though O’Neal’s sex offenses involving voyeurism and
exhibitionism were not sexually violent, Pflugradt believed those offenses
contributed to his risk of committing a sexually violent act because he had violent
fantasies before or after engaging in his voyeuristic and exhibitionistic offenses, and
“the violence has been connected to those” offenses.

¶13 O’Neal called two witnesses to testify on his behalf at the discharge
trial: Lodl (the psychologist whose report O’Neal had submitted in support of his
discharge petition) and psychologist David Thornton. Both Lodl and Thornton
testified that O’Neal had two qualifying mental disorders for purposes of WIS. STAT.
ch. 980: sexual sadism and antisocial personality disorder. Like Pflugradt,
Thornton also diagnosed O’Neal with exhibitionistic disorder and voyeuristic
disorder. Lodl similarly diagnosed O’Neal with exhibitionistic disorder, and he
noted that other examiners had diagnosed O’Neal with voyeuristic disorder.
Thornton and Lodl both opined, however, that O’Neal’s exhibitionistic and
voyeuristic disorders were not qualifying mental disorders under ch. 980 because
they did not predispose O’Neal to commit acts of sexual violence. Nonetheless,
Lodl acknowledged that both of those disorders “appeared to be in the service of
[O’Neal’s] sadistic interests and arousal to women.”

¶14 Unlike Pflugradt, both Thornton and Lodl concluded O’Neal’s risk of
committing another sexually violent act did not exceed the “more likely than not”
threshold. While Thornton agreed with Pflugradt’s scoring of O’Neal on the
Static-99R and the VRS-SO, he testified O’Neal’s risk of committing a sexually

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violent act was “probably somewhere in the ra[n]ge of about 25 percent.” Thornton
acknowledged that his testimony in that regard differed from his report, which stated
O’Neal’s “lifetime risk for new acts of sexual violence is presently a little
below 50%.” He explained that since preparing his report, he had “made greater
allowance” for the distinction between future noncontact sex offenses and future
sexually violent offenses. He testified he believed O’Neal primarily posed a risk of
committing future noncontact sex offenses—specifically, exposing himself to
others—rather than sexually violent offenses. Thornton also disagreed with
Pflugradt’s opinion that O’Neal’s age did not reduce his risk of committing future
sexually violent acts.

¶15 Lodl similarly opined that O’Neal was “below the more likely than
not standard for continued commitment.” Based in large part on O’Neal’s score on
the Static-99R, Lodl opined that O’Neal’s risk of committing a future act of sexual
violence was “up to 37 percent” over a ten-year period.

¶16 The circuit court denied O’Neal’s discharge petition, concluding the
State had “met its burden and shown by clear and convincing evidence that [O’Neal]
remains a sexually violent person at this time.” The court first found, based on the
parties’ stipulation, that O’Neal had been convicted of a sexually violent offense.
Second, the court found that O’Neal suffered from a mental disorder for purposes
of WIS. STAT. ch. 980.

¶17 The circuit court then turned to the third element—whether O’Neal
was more likely than not to commit a future act of sexual violence. The court
acknowledged that Pflugradt, Thornton, and Lodl disagreed about O’Neal’s risk of
reoffense, and that Thornton and Lodl had determined his risk was less than fifty
percent. Nevertheless, the court stated it gave Pflugradt’s testimony “greater

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weight” than that of Thornton and Lodl because Pflugradt “always [had] a specific
reason to back up every bit of her testimony.” The court explained, “[O]ne of the
factors the Court has to consider when you have opposing expert testimony is who
has presented the factual background to support the testimony, and I thought that
[Pflugradt] did an excellent job of that.”

¶18 The circuit court acknowledged that Thornton was one of the
“originators” of the Static-99R. The court questioned Thornton’s credibility,
however, based on the substantial difference between his report’s assessment that
O’Neal’s risk of reoffense was “a little below 50%” and his trial testimony that
O’Neal’s risk of reoffense was only about twenty-five percent. The court did not
specifically address Lodl’s credibility.

¶19 Based on Pflugradt’s testimony, the circuit court concluded the State
had met its burden to prove that O’Neal was more likely than not to commit a future
act of sexual violence, although only “by the razor thin edge.” The court therefore
entered a written order denying O’Neal’s discharge petition, and O’Neal now
appeals.

DISCUSSION

¶20 At O’Neal’s discharge trial, the State had the burden to prove by clear
and convincing evidence that O’Neal still met the criteria for commitment as a
sexually violent person. See WIS. STAT. § 980.09(3). As noted above, in order to
meet that burden, the State needed to prove three elements: (1) that O’Neal had
been convicted of a sexually violent offense; (2) that O’Neal had a mental disorder,
as that term is used in WIS. STAT. ch. 980; and (3) that O’Neal was dangerous to
others because his mental disorder made it more likely than not that he would engage
in one or more future acts of sexual violence. See WIS JI—CRIMINAL 2506; see also

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WIS. STAT. § 980.01(7). On appeal, O’Neal does not dispute that the State presented
sufficient evidence to establish the first and second of these elements. He argues,
however, that the evidence was insufficient to support a determination that he was
more likely than not to commit a future act of sexual violence.

¶21 “We utilize the criminal standard of review to determine whether
there is sufficient evidence to prove a person was a sexually violent person subject
to commitment.” State v. Kienitz, 227 Wis. 2d 423, 434, 597 N.W.2d 712 (1999).
Thus, we will not reverse an order denying a discharge petition based on insufficient
evidence unless the evidence, viewed most favorably to the State and the
commitment, is so insufficient in probative value and force that it can be said as a
matter of law that no fact finder, acting reasonably, could have found by clear and
convincing evidence that the defendant still met the criteria for commitment as a
sexually violent person. See id.

¶22 If any possibility exists that the fact finder could have drawn the
appropriate inferences from the evidence at the discharge trial to find that the
defendant was still a sexually violent person, then we may not overturn the order
denying discharge, even if we believe the fact finder should not have made that
finding based on the evidence before it. See id. at 434-35. The fact finder, not this
court, “determines issues of credibility, weighs the evidence and resolves conflicts
in testimony.” Id. at 435. Furthermore, the fact finder is “free to weigh [conflicting
expert testimony] and decide which was more reliable; to accept or reject the
testimony of any expert, including accepting only parts of an expert’s testimony;
and to consider all of the non-expert testimony” when deciding whether the State
met its burden of proof. Id. at 441 (citation omitted).

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¶23 Here, O’Neal has not met his “heavy burden” to show that the
evidence was insufficient to support the circuit court’s determination regarding his
risk of reoffense. See State v. Beamon, 2013 WI 47, ¶21, 347 Wis. 2d 559, 830
N.W.2d 681. Pflugradt opined that O’Neal’s risk of committing another sexually
violent act exceeded the “more likely than not” threshold in WIS. STAT. ch. 980.
She set forth the basis for that opinion, explaining O’Neal’s scores on the Static-99R
and the VRS-SO demonstrated that his risk of committing a sexually violent offense
in the next ten years was “in the upper 30’s.” Pflugradt then explained that after
applying “conservative” multipliers to account for O’Neal’s lifetime risk of
reoffense and the potential for undetected sexual offenses, she determined O’Neal’s
lifetime risk of committing a future act of sexual violence was fifty-two or
fifty-three percent. Pflugradt also explained why she did not believe that O’Neal’s
age lessened his risk of committing a new sexually violent act. Pflugradt’s
testimony provided a sufficient basis for the court to find that O’Neal was more
likely than not to commit a future act of sexual violence.

¶24 In addition, the circuit court could consider DeMarzo’s testimony
regarding O’Neal’s progress in treatment and his adjustment to supervised release.
DeMarzo testified that although O’Neal had positive treatment gains and had not
engaged in significant violations of his rules of supervised release, he at times had
trouble applying his treatment in a community setting. She explained that O’Neal
had violated his rules by making unapproved purchases and by failing to be
forthcoming about his arousal patterns and about his contact with individuals under
age eighteen. DeMarzo also described how O’Neal had engaged in “offense
paralleling behavior” toward a female treatment monitor, which involved playing
“sadistic games” to see how she would react. DeMarzo further noted that O’Neal
had admitted experiencing sexual attraction to postpubescent teenagers, as well as

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having sexual thoughts about a ten-year-old girl. Based on DeMarzo’s testimony,
the court could find that O’Neal’s behavior on supervised release outweighed his
treatment progress and increased the likelihood that he would engage in future acts
of sexual violence.

¶25 Although both Thornton and Lodl testified that O’Neal was not more
likely than not to commit a future act of sexual violence, the circuit court was not
required to accept their opinions. See Kienitz, 227 Wis. 2d at 441. In fact, the court
explained that it gave Pflugradt’s testimony “greater weight” than that of the other
experts because she “always [had] a specific reason to back up every bit of her
testimony.” The court also explained that it questioned Thornton’s credibility based
on the substantial difference between the risk estimate in his report and that to which
he testified at trial. On this record, Thornton’s and Lodl’s opinions regarding
O’Neal’s risk of reoffense do not demonstrate that the other evidence at the
discharge trial was insufficient to support the court’s finding that O’Neal was more
likely than not to commit a future sexually violent act.

¶26 O’Neal’s arguments regarding the sufficiency of the evidence are
unpersuasive. First, he contends the circuit court should not have relied on
Pflugradt’s opinion because she improperly considered his past noncontact offenses
when determining his risk of committing a future sexually violent act. O’Neal notes
that his noncontact offenses involving voyeurism and exhibitionism do not qualify
as sexually violent offenses under WIS. STAT. § 980.01(6). He therefore argues his
past commission of noncontact offenses has no relevance to his future risk of
committing a sexually violent act.

¶27 Pflugradt testified, however, that O’Neal’s voyeurism and
exhibitionism are connected to his commission of sexually violent offenses. She

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explained that those disorders are “wrapped into hypersexuality and sexual fantasies
of violence,” and that O’Neal had reported fantasizing about violent offenses when
committing his voyeuristic and exhibitionistic offenses. Pflugradt also observed
that O’Neal had acknowledged “that all of his hands-off offenses at some point in
time have caused him to have sexually violent fantasies or caused him to want to
commit a hands-on offense.” Pflugradt therefore explained that even though
O’Neal’s voyeuristic and exhibitionistic offenses were not sexually violent, they
contributed to his risk of committing a sexually violent offense. Moreover, Lodl
also acknowledged a link between O’Neal’s voyeurism and exhibitionism and his
sexual sadism, opining that “[b]oth disorders appeared to be in the service of his
sadistic interests and arousal to women.” Based on Pflugradt’s and Lodl’s
testimony, the circuit court could reasonably find that Pflugradt appropriately
considered O’Neal’s past noncontact offenses when determining his risk of
committing a future sexually violent act.

¶28 O’Neal also asserts that although his record “includes numerous
instances of exhibitionism and voyeurism, there were only two acts of sexually
violent behavior”—his predicate offenses in 1975, and a subsequent, self-reported
prison rape. He contends there is no record of him committing a sexually violent
offense since 1996, which undermines Pflugradt’s opinion that he is more likely
than not to commit a future act of sexual violence.

¶29 As the State correctly notes, however, the record actually contains
evidence that O’Neal has committed three sexually violent offenses during his life—
those listed above, as well as the incident when he attempted to rape a
fourteen-year-old girl after seeing her while riding his motorcycle. More
importantly, when assessing O’Neal’s risk of committing a future act of sexual

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violence, the circuit court could consider the fact that O’Neal has been in controlled
environments for much of his adult life.

¶30 Both Pflugradt and Thornton diagnosed O’Neal’s sexual sadism,
exhibitionism, and voyeurism as being “in a controlled environment.” Thornton
further explained that “currently, and for many years, Mr. O’Neal has lived under
circumstances where opportunities to act on these sexual interests [have] been
restricted and where, should he act on them, there would be a high probability of
detection and punitive sanctions.” Thornton also observed that O’Neal’s supervised
release qualifies as a controlled environment because it “takes the form of a highly
restricted lifestyle in which he is extensively monitored and chaperoned.” Based on
this evidence, the circuit court could reasonably infer that O’Neal’s commission of
only three sexually violent offenses was attributable to his extended time in
controlled environments and therefore does not demonstrate that his future risk of
committing a sexually violent act falls below the “more likely than not” threshold.

¶31 In his reply brief, O’Neal also argues that his diagnosis of sexual
sadism, in and of itself, is insufficient to permit an inference that he will more likely
than not commit a future act of sexual violence. The circuit court did not, however,
find that O’Neal was more likely than not to commit a future sexually violent act
based solely on his sexual sadism diagnosis. Rather, the court relied on Pflugradt’s
expert opinion that O’Neal’s future risk of committing a sexually violent act
exceeded the “more likely than not” threshold. Pflugradt’s testimony, along with
the other evidence discussed above, was sufficient to support the court’s finding in
that regard.

¶32 Finally, O’Neal contends that by stating the State had only met its
burden of proof “by the razor thin edge,” the circuit court essentially asserted that it

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was “able to determine [his] risk of reoffense down to a few percentage points.”
O’Neal argues that “level of precision, based only on the evidence presented in this
case, is simply inconceivable.” He then cites Wiggins Construction Co. v. Joint
School District No. 3, 35 Wis. 2d 632, 640, 151 N.W.2d 642 (1967), where our
supreme court stated: “If the credible evidence would allow reasonable minds to
differ as to the conclusions to be drawn from the evidence, then this case should
have been submitted to the jury.”

¶33 The issue on appeal, however, is not whether a jury, rather than the
circuit court, should have determined whether the State met its burden of proof at
O’Neal’s discharge trial. The issue is whether there was sufficient evidence for the
court, acting as fact finder, to find that O’Neal was more likely than not to commit
a future act of sexual violence. Again, Pflugradt testified that O’Neal’s lifetime risk
of committing a sexually violent act was “[t]wo to three percentage points” above
fifty percent, and the court gave her testimony greater weight than that of O’Neal’s
experts. Pflugradt’s testimony provided a sufficient basis for the court to find that
O’Neal was more likely than not to commit a future act of sexual violence, even if
his risk of reoffense only slightly exceeded the “more likely than not” threshold.
The court’s apparent belief that this was a close case does not compel a conclusion
that the evidence was insufficient to support its finding regarding O’Neal’s risk of
reoffense.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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