State v. Lynnott Rogers

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.
January 28, 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. 2019AP64 Cir. Ct. No. 2011CI2

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE COMMITMENT OF LYNNOTT ROGERS:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

LYNNOTT ROGERS,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.

Before Brash, P.J., Dugan and Donald, 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. 2019AP64

¶1 PER CURIAM. Lynnott Rogers appeals an order of the trial court
denying his petition for supervised release from his commitment for being a
sexually violent person, pursuant to WIS. STAT. ch. 980 (2017-18).1 The trial court
held that Rogers did not meet the statutory criteria for supervised release. We
agree and affirm.

BACKGROUND

¶2 Rogers was charged with committing three sexually violent crimes
in 1983, 1988, and 1996.2 In each case, Rogers physically assaulted the victims,
and then threatened to kill or disfigure them if they did not comply with his
demand for oral sex.

¶3 In May 2011, shortly before Rogers’s mandatory prison release date
for his conviction in the 1996 case, the State filed a petition to commit Rogers as a
sexually violent person under WIS. STAT. ch. 980. In addition to the convictions
noted above, the State’s petition alleged that Rogers had committed three other
sexual crimes that had not been prosecuted, two of which involved Rogers’s five
and six-year-old nieces. Additionally, while Rogers was in prison, he “engaged in
numerous acts of misconduct,” including sexual violations, violence, and threats.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Rogers was convicted in all three of these cases; however, the conviction for the 1983
offense was reversed by this court and remanded for retrial. While the retrial was pending,
Rogers was arrested and convicted in the 1988 case. The victim in the 1983 case informed the
State that she did not want to return to Wisconsin to testify in light of Rogers’s conviction in the
1988 case, so the State declined to pursue retrying the 1983 case.

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¶4 A jury trial on the petition was held in September and October of
2014. The jury returned a verdict finding Rogers to be a sexually violent person,
and the trial court issued a judgment and order committing him to a secure facility
for treatment and care. Rogers appealed the verdict; a no-merit report was filed by
his appellate counsel, and this court summarily affirmed. See State v. Rogers,
No. 2016AP56-NM, unpublished op. and order (WI App Jan. 4, 2017). Rogers
then filed a petition for review with our supreme court, which was denied.

¶5 In October 2017, Rogers filed a pro se petition for supervised
release, which was followed by a second petition for supervised release in
February 2018 that was filed by counsel on his behalf. A court trial on that
petition was held in May 2018, where both parties presented evidence from
experts. Rogers’s expert was Dr. David Thornton, a psychologist who had
previously been the treatment director of the Sand Ridge inpatient facility for the
WIS. STAT. ch. 980 program. Dr. Thornton had interviewed Rogers while at Sand
Ridge and evaluated his treatment progress. Dr. Thornton noted that Rogers
suffers from schizophrenia and likely had “psychotic delusional processes going
on” at the time of his offenses, which affected his memory of those events;
through this “distorted lens,” Rogers did not see that he had committed sexually
violent offenses.

¶6 The State’s expert was Dr. William Merrick, a psychologist and an
experienced WIS. STAT. ch. 980 evaluator. Dr. Merrick had also interviewed
Rogers, and had diagnosed him with schizophrenia and antisocial personality
disorder, both of which would predispose Rogers to commit sexual offenses.
Dr. Merrick observed that although Rogers was on medication for his mental
health issues, he still suffered from delusions; for example, Rogers believed he

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was being gassed in his room every night. Rogers had also told Dr. Merrick that
he had never committed a sex offense.

¶7 During their testimony, each expert was asked whether Rogers met
the statutory criteria required for supervised release. The primary conflict in their
opinions was with regard to the criterion of “making significant progress in
treatment,” set forth at WIS. STAT. § 980.08(4)(cg)1. That phrase—“making
significant progress in treatment”—is specifically defined at WIS. STAT.
§ 980.01(8), and consists of four elements. The third element—that the offender is
“[d]emonstrating an understanding of the thoughts, attitudes, emotions, behaviors,
and sexual arousal linked to his or her sexual offending”—is where the experts
proffered conflicting opinions, based on their interpretation of that element. See
§ 980.01(8)(c).

¶8 Dr. Thornton believed that Rogers’s progress in treatment satisfied
that element. Dr. Thornton testified that Rogers understands that he engages in
“criminal thinking,” and that he was working “quite actively” in controlling that
behavior. Thus, even though Rogers himself had not linked that behavior to his
previous offenses—because he did not remember or recognize committing them—
his clinical team had made the link and then conducted Rogers’s treatment
accordingly. In that manner, Dr. Thornton opined that Rogers had met the
“making significant progress” criterion, albeit in an “unusual way.”

¶9 It was Dr. Merrick’s opinion, however, that Rogers did not satisfy
that element. Dr. Merrick stated that part of the reasoning behind the treatment of
a sexual offender is “to help the person to understand all of the factors that went
into his offending in the past so that he can change them in the future.” In
Dr. Merrick’s opinion, Rogers’s lack of memory of his past sexual offenses would

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make it “difficult for him to change” his behavior in the future. Dr. Merrick
further stated that the language of the statute was absolutely clear that the offender
must understand the link between his attitudes and behavior and his previous
offending in order to meet that criterion. Therefore, Dr. Merrick did not believe
that Rogers met the requirement of “making significant progress in treatment.”

¶10 The trial court recognized the interpretation of that criterion as the
primary issue; thus, in making its determination, the court conducted a statutory
interpretation analysis of the definition of “significant progress in treatment.” The
court ultimately agreed with Dr. Merrick’s interpretation—that the statute requires
that the offender make the link between his “thoughts, attitudes, emotions,
behaviors, and sexual arousal” and his previous sexual offenses. See WIS. STAT.
§ 980.01(8)(c). Therefore, the court found that Rogers had not met his burden of
proof that he had met all of the criteria for supervised release, and denied his
petition. This appeal follows.

DISCUSSION

¶11 This court reviews the trial court’s denial of a petition for supervised
release under the sufficiency of the evidence standard. State v. Brown, 2005 WI
29, ¶5, 279 Wis. 2d 102, 693 N.W.2d 715. This standard of review was adopted
from the standard used to review criminal convictions, which mandates that an
appellate court “may not reverse a conviction unless the evidence, viewed most
favorably to the State and conviction, is so insufficient in probative value and
force that it can be said as a matter of law that no trier of fact, acting reasonably,
could have found guilt beyond a reasonable doubt.” Id., ¶39.

¶12 As such, our review entails an “independent review of the record,”
while “giv[ing] deference to the [trial] court’s strength in determining the

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credibility of witnesses and in evaluating the evidence” and “recogniz[ing] the
evaluative aspects involved in a [trial] court’s denial of a petition for supervised
release.” Id., ¶¶5, 44. The petitioner bears the burden of proving that supervised
release is “appropriate[.]” State v. Rachel, 2010 WI App 60, ¶19, 324 Wis. 2d
465, 782 N.W.2d 443.

¶13 In this case, the trial court’s decision came down to the statutory
interpretation of the definition of “[s]ignificant progress in treatment,” see WIS.
STAT. § 980.01(8), a phrase which is included in the criteria for authorizing
supervised release: there is a specific criterion that requires that the offender has
demonstrated that he is “making significant progress in treatment[.]” See WIS.
STAT. § 980.08(4)(cg)1.

¶14 “The aim of statutory construction is to determine the legislature’s
intent.” Fond Du Lac Cty. v. Town of Rosendale, 149 Wis. 2d 326, 332, 440
N.W.2d 818 (Ct. App. 1989). “This intent is primarily deduced from the language
which the legislature has chosen to use.” Id. “A statute’s purpose or scope may
be readily apparent from its plain language or its relationship to surrounding or
closely-related statutes—that is, from its context or the structure of the statute as a
coherent whole.” State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶49, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory interpretation is a question of
law that we review de novo. Fond Du Lac Cty., 149 Wis. 2d at 332.

¶15 In this case, the experts had conflicting interpretations of the
definition of “significant progress in treatment.” As noted above, that definition
includes four elements, the third of which is that the offender is “[d]emonstrating
an understanding of the thoughts, attitudes, emotions, behaviors, and sexual

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No. 2019AP64

arousal linked to his or her sexual offending[.]” WIS. STAT. § 980.01(8)(c).
Specifically, they disagreed on the meaning of “linked” in that definition.

¶16 Dr. Thornton—Rogers’s expert—opined that because of Rogers’s
mental illness, this criterion would be “almost impossible” for him to meet
because of his delusions and their effect on his memory. In fact, Rogers concedes
that Dr. Thornton was clear in his testimony that Rogers does not possess the
requisite understanding described in WIS. STAT. § 980.01(8)(c). However, under
Dr. Thornton’s interpretation of the statute, since Rogers’s clinical team had
identified Rogers’s thoughts, attitudes, emotions, and behaviors linked to his
offending, and Rogers was making an effort to control those thoughts, attitudes,
emotions, and behaviors, that “link” was sufficient to meet the criterion.

¶17 We disagree with that interpretation. As statutory interpretation
requires, we reviewed the statute’s “plain language” as well as “its relationship to
surrounding or closely-related statutes.” See State ex rel. Kalal, 271 Wis. 2d 633,
¶49. First, we looked at the entire subsection in which “significant progress in
treatment” is defined:

(8) “Significant progress in treatment” means that
the person is doing all of the following:

(a) Meaningfully participating in the treatment
program specifically designed to reduce his or her risk to
reoffend offered at a facility described under [WIS. STAT.
§] 980.065.

(b) Participating in the treatment program at a level
that is sufficient to allow the identification of his or her
specific treatment needs and demonstrating, through overt
behavior, a willingness to work on addressing the specific
treatment needs.

(c) Demonstrating an understanding of the thoughts,
attitudes, emotions, behaviors, and sexual arousal linked to

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No. 2019AP64

his or her sexual offending and an ability to identify when
the thoughts, emotions, behaviors, or sexual arousal occur.

(d) Demonstrating sufficiently sustained change in
the thoughts, attitudes, emotions, and behaviors and
sufficient management of sexual arousal such that one
could reasonably assume that, with continued treatment, the
change could be maintained.

WIS. STAT. § 980.01(8).

¶18 Each of these elements requires action by the offender: participating
in treatment, and demonstrating that treatment is helping him change his behavior.
In fact, Dr. Merrick testified that it was “imperative” that the offender is the one
who understands the link between his thoughts, attitudes, emotions, and behaviors
and his sexual offending, because the purpose of treatment for a sexual offender is
“to help the person to understand all of the factors that went into his offending in
the past so that he can change them in the future.” Thus, the reasonable
interpretation of element (c) is that the offender is required to understand how his
thoughts, attitudes, emotions, and behaviors led to his committing sexually violent
crimes in order to lessen the risk of reoffending.

¶19 Furthermore, this interpretation is consistent with the criteria
required for supervised release, set forth at WIS. STAT. § 980.08(4)(cg). That
statute, in its entirety, reads:

(cg) The court may not authorize supervised release
unless, based on all of the reports, trial records, and
evidence presented, the court finds that all of the following
criteria are met:

1. The person is making significant progress in
treatment and the person’s progress can be sustained while
on supervised release.

2. It is substantially probable that the person will
not engage in an act of sexual violence while on supervised
release.

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No. 2019AP64

3. Treatment that meets the person’s needs and a
qualified provider of the treatment are reasonably available.

4. The person can be reasonably expected to comply
with his or her treatment requirements and with all of his or
her conditions or rules of supervised release that are
imposed by the court or by the department [of health
services].

5. A reasonable level of resources can provide for
the level of residential placement, supervision, and ongoing
treatment needs that are required for the safe management
of the person while on supervised release.

Id.

¶20 A plain reading of this statute indicates that the intent of these
criteria is to ensure that a person who has been deemed sexually violent is not
likely to reoffend upon release. In order to achieve this, there must be an
understanding by the offender of the link between his thoughts, attitudes,
emotions, and behaviors and his previous sexual offenses so that additional
offenses can be averted in the future. Therefore, we conclude that the “context …
of the statute as a coherent whole” supports our interpretation of “significant
progress in treatment.” See State ex rel. Kalal, 271 Wis. 2d 633, ¶49.

¶21 Based on that interpretation, and our review of the record, Rogers
did not meet that criterion, which is required for the grant of supervised release.
Therefore, we conclude that there is sufficient evidence to support the trial court’s
denial of Rogers’s petition. Accordingly, we affirm.

By the Court.—Order affirmed.

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

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