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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.
April 7, 1998
A party may file with the Supreme Court a
                                                                                      Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                      Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                      of Wisconsin              STATS.
No.                                                                                   97-0668
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT I
IN RE THE COMMITMENT OF STANLEY MARTIN:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
STANLEY MARTIN,
DEFENDANT-APPELLANT.
APPEAL from orders of the circuit court for Milwaukee County:
JEFFREY A. KREMERS, Judge.  Affirmed.
Before Wedemeyer, P.J., Fine and Curley, JJ.
PER CURIAM.    Stanley Martin was committed to a mental health
facility as a sexually violent person pursuant to Chapter  980, STATS.    Martin
appeals from the trial court’s order of commitment and from the trial court’s order
denying his post-verdict motions.   Martin argues that his commitment should be




No. 97-0668
vacated because:                                                                                      (1) the expert witnesses allegedly misled the jury as to the
proper standard by which Martin’s status as a sexually violent person was to be
judged; (2) the trial court allegedly erred in limiting Martin’s cross-examination of
an  expert  witness;  and  (3)  Chapter  980  allegedly violates  the  Ex  Post  Facto
Clause,  the  Double  Jeopardy  Clause,  the  Due  Process  Clause  and  the  Equal
Protection Clause of the United States Constitution.   We reject Martin’s arguments
and affirm his commitment.
BACKGROUND
On June  11,  1996, less than  90 days before Martin’s mandatory
release date for his conviction of second-degree sexual assault, the State filed a
petition under  §  980.01(7), STATS., alleging that Martin was a sexually violent
person.   The trial on the petition began on October 30, 1996.   The State presented
expert testimony that Martin suffered from two mental disorders, paraphilia and
antisocial  personality  disorder,  which  predisposed  Martin  to  commit  sexually
violent acts.1   The expert opinions were based upon, among other things, Martin’s
history of violent sexual behavior towards women, his failure to participate in
sexual offender therapy, and interviews of Martin.   The jury found that Martin was
a sexually violent person, and the trial court ordered Martin committed.
DISCUSSION
1  The  essential  feature  of  antisocial  personality  disorder  is  a  pervasive  pattern  of
disregard for, and violation of, the rights of others.   See State v. Post, 197 Wis.2d 279, 295-296
n.3, 541 N.W.2d 115, 119 n.3 (1995).   Paraphilia may be characterized by recurrent, intense
sexually arousing fantasies, sexual urges, or behaviors, generally involving children or other non-
consenting persons.  See id., 197 Wis.2d at 296 n.4, 541 N.W.2d at 119 n.4.
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No. 97-0668
Martin  argues  that  the  State’s  expert  witnesses  misstated  the
standard by which his status as a sexually violent person was to be evaluated and
thereby misled the jury as to the appropriate standard.   He argues that because the
jury did not use the proper standard, the real issue has not yet been tried and he is
entitled to a new trial.   See § 752.35, STATS. (court of appeals may remit a case to
the trial court for a new trial if it appears from the record that the real controversy
has not been fully tried).
Section 980.06(1), STATS., provides:
If a court or jury determines that the person who is
the  subject  of  a  petition  under  s.                                                  980.02  is  a  sexually
violent  person,  the  court  shall  order  the  person  to  be
committed to the custody of the department for control,
care  and  treatment  until  such  time  as  the  person  is  no
longer a sexually violent person.
A sexually violent person is “a person who has been convicted of a
sexually violent offense … and who is dangerous because he or she suffers from a
mental disorder that makes it substantially probable that the person will engage in
acts of sexual violence.”   Section 980.01(7), STATS.   A mental disorder is defined
as                                                                                        “a  congenital  or  acquired  condition  affecting  the  emotional  or  volitional
capacity that predisposes a person to engage in acts of sexual violence.”   Section
980.01(2), STATS.
At  trial,  both  experts  testified  that  Martin  suffered  from  both
paraphilia and antisocial personality disorder, and that he was substantially likely
to commit future acts of sexual violence.   Martin’s counsel then asked each of the
experts how they used the statutory phrase  “substantial probability” when they
formed their opinions about Martin.   One of the experts responded that Martin was
“more likely than not to commit another offense,” and that there was, “at the very
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No. 97-0668
least,” a fifty-percent chance that Martin would reoffend.   The other expert stated
that he used the phrase to mean at least “more likely than not,” but that he usually
used the phrase to mean  “much more likely than not.”    He also testified that
Martin was much more likely than not to reoffend.
Martin alleges that this testimony misled the jury as to the legal
standard reflected by the phrase  “substantial probability.”    We disagree.    The
experts did not provide a legal definition for the phrase “substantial probability,”
but rather explained how they used that term in expressing their opinions about
Martin.    Moreover, the jury was not bound by the opinions expressed by the
experts.    See State v. Post,  197 Wis.2d  279,  305-306,  541 N.W.2d  115,  123
(1995) (statutory terms have legal, not medical, function, and the jury is not bound
by medical labels, definitions, or conclusions as to what satisfies statutory terms).
Martin made this very point in his cross-examination of one of the experts, when
he  elicited  testimony  that  the  phrase                                                  “substantial  probability”  was  not  a
psychological  term,  but  rather  a  legal  term.    Martin  also  addressed  the  legal
standard reflected by the phrase “substantial probability” in his closing argument.
The jury instructions provided the jury with the legal standards by
which it was to determine whether Martin was a sexually violent person.   The jury
was instructed in both the preliminary and the final instructions that it was not
bound by the medical labels, definitions, conclusions or opinions offered by the
experts.    Martin does not challenge the jury instructions.    We therefore reject
Martin’s argument that the jury was misled as to the standard by which it was to
judge his status as a sexually violent person.
Martin next argues that the trial court erred in limiting his cross-
examination of one of the State’s expert witnesses.    Martin contends that his
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No. 97-0668
intended line of questioning would have revealed weaknesses in the method that
the expert used to diagnose him, and that the trial court erred in prohibiting his line
of questioning because it would have elicited relevant impeachment evidence.
Trial courts are granted broad discretion in determining whether to
admit or exclude proffered evidence.   State v. Larsen, 165 Wis.2d 316, 319-320,
477 N.W.2d 87, 88 (Ct. App. 1991).   Our review is limited to determining whether
the trial court erroneously exercised this discretion.   Id., 165 Wis.2d at 320 n.1,
477 N.W.2d at  89 n.1.   We will not overturn a trial court’s evidentiary ruling
unless there was no reasonable basis for it.   See State v. McConnohie, 113 Wis.2d
362, 370, 334 N.W.2d 903, 907 (1983).
Both experts testified that they based their opinions that Martin was
likely to reoffend, in part, upon the fact that he met several risk factors that are
predictive of recidivist behavior.   Martin attempted to cross-examine one of the
experts about the reliability of one of the risk factors that the experts considered.
The trial court precluded Martin from this line of questioning, however, because
both experts testified that the risk factor at issue did not apply to Martin.   Martin
asserts that this was error because he was attempting to impeach the experts by
challenging the method by which they formed their opinions regarding Martin.
We are unable to reach the merits of this issue because Martin failed
to make an offer of proof in the trial court.   There is nothing in the record from
which we can determine whether Martin’s line of questioning would have elicited
relevant impeachment evidence.    Martin has, therefore, waived the issue.    See
§ 901.03(1)(b),  STATS.  (error  may not  be  predicated  upon  a  ruling  excluding
evidence unless the substance of the evidence was made known to the judge by
offer or was apparent from the context within which the questions were asked);
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No. 97-0668
State v. Hoffman,  106 Wis.2d  185,  217-218,  316 N.W.2d  143,  160  (Ct. App.
1982) (failure to make an offer of proof results in waiver).
Further, Martin was permitted to ask several other questions which
elicited testimony that significantly challenged the experts’ use of risk factors in
forming their opinions about Martin.   For example, one expert testified that “there
are many things in those instruments and predictive studies [involving risk factors]
that are open to question.”   Martin also elicited expert testimony that the use of
risk factors was not a precise system, that the risk-factor analysis used for Martin
had not yet been published in the professional literature for peer review, and that
there were difficulties in evaluating the reliability of the risk factors.   Therefore,
the trial court’s decision to limit Martin’s cross-examination with respect to the
risk factor that did not apply to him did not prejudice Martin because it did not
prevent him from challenging the experts’ use of risk factors.   Thus, we reject
Martin’s assertion of error.   See § 901.03(1), STATS. (error may not be predicated
upon the exclusion of evidence unless a substantial right of the party is affected).
Martin’s final argument is that his commitment should be vacated
because Chapter 980 is unconstitutional.   He asserts that Chapter 980 violates the
Ex Post Facto Clause, the Double Jeopardy Clause, the Due Process Clause and
the Equal Protection Clause of the United States Constitution.   Martin concedes,
however, that his constitutional attacks are foreclosed by controlling authority.
In State v. Carpenter, 197 Wis.2d 252, 541 N.W.2d 105 (1995), the
Wisconsin Supreme Court held that Chapter 980 is not an ex post facto law, and
that it does not violate double jeopardy.   See id.,  197 Wis.2d at  271-274,  541
N.W.2d at 112-114.   In State v. Post, 197 Wis.2d 279, 541 N.W.2d 115 (1995),
the supreme court held that Chapter 980 comports with both due process and equal
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No. 97-0668
protection.   See id., 197 Wis.2d at 301-317, 330, 541 N.W.2d at 122-128, 133.
We therefore reject Martin’s constitutional arguments.
By the Court—Orders affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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