State v. Franklin

2004 WI 38, 677 N.W.2d 276, 270 Wis. 2d 271, 2004 Wisc. LEXIS 238

• Court: Wisconsin Supreme Court
• Decided: April 1, 2004
• Docket: 00-2426
• Status: Published

Opinions

PATIENCE D. ROGGENSACK, J.

¶ 1. Gregory J. Franklin was committed by Milwaukee County Circuit Court according to the provisions of Wis. Stat. ch. 980, after a jury found him to be a sexually violent person pursuant to Wis. Stat. § 980.01(7) (1997-98).¹ Franklin claims the circuit court committed reversible error when it admitted "other acts" evidence, contrary to the provisions of Wis. Stat. § 904.04(2). The court of appeals affirmed. We accepted review to clarify whether § 904.04(2) applies to evidence offered in ch. 980 commitment proceedings to prove that it is substantially probable that the respondent will commit acts of sexual violence in the future.² We conclude that during a commitment proceeding under ch. 980, § 904.04(2) does not apply to evidence offered to prove that the respondent has a mental disorder that makes it substantially probable that the respondent will commit acts of sexual violence in the future. Because we also conclude that evidence of prior conduct was properly admitted here, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 2. In March 1998, the State filed a petition pursuant to Wis. Stat. ch. 980, alleging that Franklin was a sexually violent person and that he was within 90 days of release from his sentences for sexual assault.³ The State's petition also alleged that Franklin had a mental disorder that predisposed him to engage in acts of sexual violence.

¶ 3. Prior to trial, Franklin moved to exclude the prior acts evidence, pursuant to Wis. Stat. § 904.04(2). The evidence included Franklin's adult criminal record containing crimes that he asserts are unrelated to sexual activity, pre-sentence investigation reports, department of corrections conduct reports from his periods of incarceration, evidence of his parole violations and references to his juvenile record. The circuit court analyzed the evidence pursuant to Wis. Stat. § 904.01 for relevancy; concluded that it was relevant; determined that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, pursuant to Wis. Stat. § 904.03; and admitted it. The jury found Franklin a sexually violent person, and the circuit court committed him to a secure facility.

¶ 4. Franklin appealed the commitment order on a number of grounds.⁴ The court of appeals affirmed. On the issue of the admission of what he characterized as other acts evidence, all members of the court of appeals panel agreed that the evidence was properly admitted, but each member had a different rationale for that conclusion. The application of Wis. Stat. § 904.04(2) in this ch. 980 commitment proceeding and the Wis. Stat. § 904.01 and Wis. Stat. § 904.03 questions are the issues before us.

II. DISCUSSION

A. Standard of Review

¶ 5. This case requires us to construe and apply Wis. Stat. § 904.04(2) in the context of a ch. 980 proceeding. Statutory interpretation and the application of a statute to established facts are questions of law that we review de novo. State ex. rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 121, 561 N.W.2d 729, 733 (1997); Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 219, 550 N.W.2d 96, 98 (1996); Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773, 778 (1989).

¶ 6. However, whether evidence is admissible is a discretionary decision of the circuit court. National Auto Truckstops, Inc. v. DOT, 2003 WI 95, ¶ 12, 263 Wis. 2d 649, 665 N.W.2d 198; Grube v. Daun, 213 Wis. 2d 533, 541-42, 570 N.W.2d 851 (1997); State v. Oberlander, 149 Wis. 2d 132, 140, 438 N.W.2d 580 (1989). We review discretionary decisions under the erroneous exercise of discretion standard. National Auto Truck-stops, 263 Wis. 2d 649, ¶ 12.

B. Wisconsin Stat. § 904.04(2)⁵

¶ 7. The State is required to prove in a ch. 980 commitment that the respondent is "sexually violent" within the meaning of Wis. Stat. § 980.01(7) because the respondent suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence in the future. Wis. Stat. § 980.06. Here, the State introduced evidence of Franklin's past conduct both to show Franklin has a mental disorder and that it was substantially probable that he would commit acts of sexual violence in the future, thereby meeting its burden under § 980.01(7) and § 980.06.

¶ 8. Franklin contends that the admission of evidence of his past conduct is prohibited character evidence under Wis. Stat. § 904.04(2), which statute he contends is applicable. The State asserts, among other arguments, that because the definition set out in Wis. Stat. § 980.01(7) requires proof for assessing the substantial probability of future conduct, rather than proof offered in regard to disputed past conduct, § 904.04(2) is not part of the analysis for admission of the evidence received here.

¶ 9. Given the positions of the parties, this case requires us to interpret the use of Wis. Stat. § 904.04(2) in the context of a ch. 980 proceeding. As is usual in cases of statutory construction, we begin with the language of the statute itself. The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. Angela M.W., 209 Wis. 2d at 121; Ball v. District No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis. 2d 529, 537-38, 345 N.W.2d 389 (1984). Unless technical terms are involved, the statutory language is given its plain and ordinary meaning. Angela M.W., 209 Wis. 2d at 121; Bruno v. Milwaukee County, 2003 WI 28, ¶ 20, 260 Wis. 2d 633, 660 N.W.2d 656. If that meaning is clear on its face, we need go no. further, and simply will apply it. Bruno, 260 Wis. 2d 633, ¶ 20; Ball, 117 Wis. 2d at 537-38. However, if the language is ambiguous, we may examine extrinsic sources for evidence of legislative intent. Angela M.W., 209 Wis. 2d at 121. Here, although neither party contends that the statute is ambiguous in the usual sense of disputing what it means, they do disagree about whether it is applicable in a ch. 980 proceeding for the evidence received here:

¶ 10. Wisconsin Stat. § 904.04(2) is known as the "other acts" statute and it sets out when certain types of evidence may be excluded or admitted. It provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In order to ascertain whether evidence of Franklin's past acts is to be evaluated under § 904.04(2), it is helpful to review the types of evidence that fall within § 904.04(2) and for what purposes use has been restricted or permitted.

¶ 11. Wisconsin Stat. § 904.04(2) evidence may be offered in a criminal trial or a civil suit. State v. Sullivan, 216 Wis. 2d 768, 783, 576 N.W.2d 30 (1998) and Daniel B. Blinka, Evidence of Character, Habit and "Similar Acts" in Wisconsin Civil Litigation, 73 Marq. L.Rev. 283, 289 (1989). It has been offered to prove the character of a person: (1) for the impermissible purpose of implying that the person committed a disputed past act⁶ that is consistent with his or her character, or (2) for a permissible purpose, such as showing the person acted with a plan, motive, absence of mistake.⁷ Its use is carefully regulated when the other acts are "bad acts" because the admission of such evidence may imply that the defendant is a bad person. Whitty v. State, 34 Wis. 2d 278, 292-97, 154 N.W.2d 557 (1967). As we said in Whitty, when other acts evidence is admitted, there can be "an overstrong tendency" to believe that a defendant is guilty of the crime charged simply because he or she is the kind of person who is likely to act a certain way, or that the defendant should be punished now, not necessarily for the crime charged, but because the defendant may have escaped punishment for a previous offense. Id. at 292. ''

¶ 12. Wisconsin Stat. § 904.04(2) addresses evidence offered for a prohibited use and for a permitted use. When evidence is offered for a prohibited use, it is offered as relevant proof - of acts that have already occurred by attempting to show that the person has a certain character and the acts denied are consistent with his or her character. State v. Veach, 2002 WI 110, ¶ 48, 255 Wis. 2d 390, 648 N.W.2d 447. As the statute explains, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith ...Section 904.04(2) (emphasis added). Additionally, in a permitted use of other acts evidence, e.g., to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,"⁸ § 904.04(2) evidence again is offered to prove whether the defendant did or did not do a past act. State v. Anderson, 230 Wis. 2d 121, 129-30, 600 N.W.2d 913 (Ct. App. 1999). Therefore, in each instance, § 904.04(2) looks back to analyzing proof of acts that have already occurred. It does not look forward to assess the substantial probability of future conduct, which is the relevant question here.

¶ 13. We can reasonably presume that the legislature chose the statutory words carefully. Ball, 117 Wis. 2d at 539. Therefore, its use of the past tense, consistent with the lack of a prospective quality to the statute, evidences unambiguous legislative intent to restrict the application of Wis. Stat. § 904.04(2) to analyzing evidence used to prove past acts.

¶ 14. We also note that the use of prior acts has provided proof where future conduct is the focus of other types of proceedings. For example, in actions to terminate parental rights, a parent's past conduct is offered not to prove that the parent is a bad person, but to illuminate the reasons why the parent is unable or unwilling to establish a parental relationship or adequately care for the child in the future. See Wis. Stat. § 48.415 (2001-02); State v. Quinsanna D., 2002 WI App 318, ¶ 23, 259 Wis. 2d 429, 655 N.W.2d 752 (concluding that evidence of the parent's past criminal conduct and resulting incarceration is relevant to the parent's failure to establish a substantial parental relationship with her children and why that failure continued); La Crosse County Dep't of Human Servs. v. Tara P., 2002 WI App 84, ¶ 13, 252 Wis. 2d 179, 643 Wis. 2d 194 (concluding that evidence of a parent's failure to meet specific conditions necessary for the return of her children was relevant to proving whether there is a "substantial likelihood" that the parent will be able to meet those conditions within the requisite time period). In Tara E, the court of appeals explained,

In determining whether "there is a substantial likelihood" that a parent will not meet conditions for the return of his or her children, a fact finder must necessarily consider the parent's relevant character traits and patterns of behavior, and the likelihood that any problematic traits or propensities have been or can be modified in order to assure the safety of the children.

Id., ¶ 18. Likewise, in ch. 980 proceedings, the fact finder must necessarily consider a respondent's "relevant character traits and patterns of behavior, and the likelihood that any problematic traits or propensities have been or can be modified" in order to assure the safety of the community at large and the person himself.⁹ To look forward, we must necessarily loqk back. From this we conclude that Wis. Stat. § 904.04(2) is not applicable when evaluating the admissibility of evidence that is offered in a ch. 980 proceeding.

C. Evidence Admitted Here

¶ 15. Chapter 980 provides a process for the "civil commitment of persons, previously convicted of a sexually violent offense, who currently suffer from a mental disorder that predisposes them to repeat such acts." State v. Post, 197 Wis. 2d 279, 294, 541 N.W.2d 115 (1995). In a ch. 980 proceeding, the State must prove beyond a reasonable doubt that: (1) the person has a mental disorder; and (2) the person is dangerous to others because his or her mental disorder creates a substantial probability that he or she will engage in acts of sexual violence.¹⁰ Post, 197 Wis. 2d at 298. The distinction, between a dangerous sexual offender subject to ch. 980 commitment and the typical recidivist, is the lack of behavioral control in regard to acts of sexual violence that the respondent's mental disorder causes. State v. Laxton, 2002 WI 82, ¶ 21, 254 Wis. 2d 185, 647 N.W.2d 784.

¶ 16. In order to be admissible in a ch. 980 proceeding, all evidence must be relevant and that relevance must not be outweighed by the danger of unfair prejudice. Wis. Stat. § 904.01; Wis. Stat. § 904.03; State v. Wolfe, 2001 WI App 136, ¶ 39, 246 Wis. 2d 233, 631 N.W.2d 240. It is that dual test the circuit court must have applied in order to have appropriately exercised its discretion in admitting this evidence.

¶ 17. Here, Franklin's complained of error is the circuit court's admission of: (1) his adult criminal record for battery, thefts, and obstruction; (2) conduct reports from the department of corrections; (3) pre-sentence investigation reports; (4) evidence of his probation and parole violations; and (5) references to his juvenile record. He does not object to the admission of his prior adult criminal record of sexually related conduct.

¶ 18. Much of the objected to evidence initially came in through probation agent Plewa. For example, in introducing the three pre-sentence reports, she explained the repetitive nature of Franklin's criminal conduct, which began when he was only fifteen years old and was found to be "uncontrollable." She described his repeated lack of control of his behavior that continued as an adult. She explained that one of the theft convictions resulted from his pushing a woman to the ground, punching her in the face and taking her purse, while the other two thefts involved merchandise taken from a jewelry store and the theft of an automobile. She described the battery, which involved a female that he beat and kicked and batteries and attempted batteries that occurred while he was incarcerated. The State tied her testimony to that of Dr. Dennis Doren, a major witness for the State.

¶ 19. Doren testified that in his expert opinion Franklin suffers from paraphilia, a mental disorder characterized by sexual arousal toward something that causes the person problems in his life. It was his opinion that Franklin is aroused by non-consenting sexual interactions and that during these interactions Franklin is not in control of what happens.

¶ 20. In forming his opinions, Doren reviewed the records that Franklin complains should not have been admitted.¹¹ Doren opined that the 1978 battery did have a sexual component and if not interrupted it would have led to a sexual assault. He noted that while incarcerated, Franklin has had repeated instances of out-of-control conduct and that Franklin has said that he was not in control of what happened during the sexual crimes of which he was convicted. Doren opined that since Franklin was a juvenile he has had difficulties controlling his behavior and that this lack of control is a feature of his paraphilia. Doren also explained that each time Franklin was released from a controlled environment, he soon committed another act of sexual violence, showing a compulsion to continue non-consensual sexual interactions. And finally, his department of correction records and the pre-sentence reports show Franklin has not completed treatment programs for his sexual disorder while confined. Doren said it was his opinion that Franklin suffers from a mental disorder, paraphilia, and it is substantially probable that if released from confinement, Franklin will commit acts of sexual violence in the future due to that mental disorder.

¶ 21. In ruling on Franklin's motion, the circuit court considered the potential relevancy of the challenged evidence and concluded it had some degree of relevancy to whether Franklin was a sexually violent person, but the weight was for the jury. It also concluded that the evidence appeared to support Franklin's case as well as the State's, and that there was no unfair prejudice. Based on this record and the circuit court's patient attention to the arguments and the testimony presented, we cannot say the circuit court erroneously exercised its discretion in concluding that the evidence at issue was relevant and not unfairly prejudicial.

¶ 22. Our opinion in this regard is supported by Doren's diagnosis that Franklin has a mental disorder that features uncontrolled, aggressive conduct. Franklin has a long history of repeatedly being out-of-control, commencing with his juvenile court adjudications, continuing in his adult criminal conduct and in his failure to conform his behavior to established rules when on probation, parole or when within a correctional institution.¹² Other courts have noted past uncontrolled behavior is relevant to whether a person will exhibit uncontrolled behavior in the future. See Wolfe, 246 Wis. 2d 233, ¶ 37.¹³ As the United States Supreme Court has explained, "[p]revious instances of violent behavior are an important indicator of future violent tendencies." Kansas v. Hendricks, 521 U.S. 346, 357-58 (1997) (quoting Heller v. Doe, 509 U.S. 312, 323 (1993)). Here, even though all of the past examples of uncontrolled conduct did not relate to sexual acts, they were relevant to Franklin's diagnoses of paraphilia and of schizophrenia, as both experts used this evidence to support their opinions. Additionally, as the record in this case shows, the standard risk assessment for sexual offenders takes into account all past violations of the law in attempting to evaluate the probability of future sexually assaultive behavior.¹⁴ However, those violations that are sexually related are weighted more heavily in the assessment. Both experts testified that they used these risk assessment tools. We agree that the evidence is relevant.

¶ 23. We also agree that the probative value of this evidence is not substantially outweighed by unfair prejudice to Franklin. See Wis. Stat. § 904.03. Almost any relevant evidence presented by the State would be prejudicial to Franklin. The test, however, is whether the evidence is unfairly prejudicial. Evidence is unfairly prejudicial if it has "a tendency to influence the outcome by improper means or if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case." Sullivan, 216 Wis. 2d at 789-90. See State v. Davidson, 2000 WI 91, ¶ 73, 236 Wis. 2d 537, 613 ; Wolfe, 246 Wis. 2d 233, ¶ 41. There is nothing unfairly prejudicial about the other acts evidence offered in this case. It is simply factual observations showing Franklin's long and consistent history of poorly controlled conduct that both experts used in coming to their conclusions. As such, we conclude that the circuit court did not erroneously exercise its discretion in admitting it.

III. CONCLUSION

¶ 24. We conclude that during a commitment proceeding under ch. 980, Wis. Stat. § 904.04(2) does not apply to evidence offered to prove that the respondent has a mental disorder that makes it substantially probable that the respondent will commit acts of sexual violence in the future. Because we also conclude that such evidence was properly admitted here, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

2 The concurrence asserts that "Wisconsin Stat. § 904.04(2) is not the focus of this case." Concurrence, ¶ 26. However, both the State and Franklin requested that we decide whether § 904.04(2) applied in the context of a ch. 980 proceeding.

3 Franklin was serving sentences for second-degree sexual assault and attempted second-degree sexual assault, contrary to Wis. Stat. §§ 940.225(2)(a) and 939.32 (1985-86), consecutive to an earlier conviction for first-degree sexual assault, contrary to Wis. Stat. § 940.225(1)0») (1979-80).

4 Franklin argued on appeal that the State failed to prove he lacked the volitional ability to control his dangerous and sexually violent behavior; that the circuit court erred in admitting the other acts evidence; that the circuit court erroneously exercised its discretion in refusing to give a special jury instruction he requested; that the legislative changes made to ch.980 violated his due process and equal protection rights; and, lastly, that his commitment should be reversed in the interest of justice. State v. Franklin, No. 00-2426, unpublished slip op. at ¶ 1 (Wis. Ct. App. March 11, 2003). Before us Franklin argues only that Wis. Stat. §§ 904.01, 904.03 and 904.04 were misapplied.

5 Because proving the respondent's mental state is an essential element of the State's case, it can be argued that the respondent's character, itself, is at issue. Therefore, evidence of character, or specific instances of conduct that bear on character, maybe offered. See Wis. Stat. § 904.05(2) (2001-02). Section 904.05(2) states, "In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct." Id. (emphasis added). This statute does not address the admissibility of such character evidence; rather, it addresses methods of proof when character is at issue. 7 Daniel D. Blinka, Wisconsin Practice, Wisconsin Evidence § 405.1 (2d. ed. 2001). However, because the applicability of § 904.05(2) was not fully briefed by the parties, we do not further address it.

6 See State v. Sullivan, 216 Wis. 2d 768, 783, 576 N.W.2d 30 (1998) (concluding that a "focus on an accused's character magnifies the risk that jurors will punish the accused for being a bad person regardless of his or her guilt of the crime charged"); see also La Crosse County Dep't of Human Servs. v. Tara P., 2002 WI App 84, ¶ 18, 252 Wis. 2d 179, 643 Wis. 2d 194 (concluding that "[t]he other acts evidence statute is directed at preventing fact finders from unnecessary exposure to character and propensity evidence in the context of determining whether a party committed an alleged act").

7 See, e.g., Peasley v. State, 83 Wis. 2d 224, 232-33, 265 N.W.2d 506 (1978) (allowing evidence of defendant's prior drug sales to show defendant possessed cocaine with the intent to deliver); Haskins v. State, 97 Wis. 2d 408, 412-14, 294 N.W.2d 25 (1980) (admitting evidence of defendant's earlier felony conduct as proof of plan and motive for murder); State v. Pharr, 115 Wis. 2d 334, 346-47, 340 N.W.2d 498 (1983) (allowing evidence of other crimes in order to show plan and to provide context for the crime charged); State v. Rutchik, 116 Wis. 2d 61, 68, 341 N.W.2d 639 (1984) (concluding that evidence of defendant's previous burglary was admissible to show method of operation, preparation, plan, identity and intent); and State v. Derango, 2000 WI 89, ¶ 42, 236 Wis. 2d 721, 613 N.W.2d 833 (concluding that defendant's possession of videotapes of young girls performing striptease dances is admissible to show intent and motive in a child enticement case). And in a civil context, see Lievrouw v. Roth, 157 Wis. 2d 332, 349, 459 N.W.2d 850 (Ct. App. 1990) (concluding that evidence of defendant's other incidents of drunk driving is admissible when a plaintiff seeks compensatory and punitive damages arising out of an accident that defendant allegedly caused while intoxicated in order to show that defendant was aware of the dangers of drunk driving); Lohermeier v. General Tel. Co. of Wisconsin, 119 Wis. 2d 129, 150, 349 N.W.2d 466 (1984) (permitting evidence of other or similar accidents or occurrences to show that the responsible party knew or should have known of a defect or unsafe condition).

8 See Blinka, supra, § 404.7 (stating the list of "permissible propositions in [Wis. Stat.] § 904.04(2) are neither exhaustive nor mutually exclusive").

9 One authority noted, "[T]he nature of the 'sexual predator' inquiry virtually guarantees the wide-ranging admissibility of evidence concerning the defendant's past crimes and transgressions." Blinka, supra, § 404.4.

10 Although there are other factors the State must address in a ch. 980 commitment, these two factors are those for which the State says the objected-to evidence is relevant so we focus on them. The concurrence asserts the majority is in error in examining the evidence in terms of proof for two components relative to Franklin's condition. Concurrence, ¶¶ 53-54. However, both Dr. Dennis Doren, the State's expert, and Dr. Charles Lodi, Franklin's expert, identified two components to their opinions.

11 The concurrence asserts this evidence has no relevance because it does not relate to whether it is substantially probable that Franklin will engage in future acts of sexual violence. Concurrence, ¶¶ 48-52. This is too limited a reading of the proof required by Wis. Stat. § 980.01(7), which requires proof of a mental disorder and proof that the disorder causes it to be substantially probable that the respondent will commit acts of sexual violence in the future. Furthermore, both experts relied on this evidence as background for their opinions. Most specifically, Lodi, Franklin's expert, required this information to form the basis for his opinion that Franklin suffered from schizophrenia, which Lodi opined would not cause it to be substantially probable that Franklin would commit future acts of sexual violence. See R. 52:36-40, 48-49.

Additionally, Lodi specifically considered whether Franklin ever had "been involved with the legal system other than the sexual offenses that occurred." R. 52:19. Lodi also decided that there was insufficient evidence upon which he could opine that Franklin had a mental disorder sufficient to satisfy ch. 980, even though he acknowledged on cross examination that Franklin did evidence elements of an anti-social personality disorder, both in his sexual interactions and in other conduct. See R. 52:81-84.

12 Franklin had 126 conduct reports while incarcerated as an adult. Those department of corrections violations that were repeated to the jury involved battery, attempted battery, disorderly conduct, threats to others, fighting and failure to obey the rules of the institution. Additionally, as Lodi testified, "there are sexual issues in his record as well, the sexual assaults that he is convicted of, the battery incidents that seem to include some sexual behavior or at least have some sexual inuendo to them all the way back to I believe 1971 where he was charged with fornicating . . . ." R. 52:48-49.

13 In State v. Wolfe, 2001 WI App 136, 246 Wis. 2d 233, 631 N.W.2d 240, the court of appeals determined that the use of other acts evidence unrelated to sexual behavior in a ch. 980 proceeding was relevant to the proofs required for commitment. There, the State introduced evidence of Wolfe's misconduct at Norris Adolescent Treatment Center and his adult conviction of arson. The court of appeals concluded that these convictions demonstrated a pervasive pattern of disregard for the rights of others, failure to comply with rules, irresponsibility and lack of remorse, which were relevant to Wolfe's diagnosed personality disorder and therefore relevant to the ch. 980 elements required for commitment. Id., ¶ 40.

14 The concurrence maintains that the only place where these tools are found is in a deposition that was not admitted into evidence. Concurrence, ¶ 45. However, all three tools are in the appendix of Franklin's brief in reply. The State did not object to this inclusion, so we have assumed that both parties agree the assessment tools are correctly part of the record.