IN RE COMMITMENT OF SUGDEN

ludes this excluded supervision evidence as one of the reasons the real controversy was not fully tried. However, because he requested that this evidence be admitted at trial, we first review the courts ruling in the framework of trial court error. Our conclusion that it was properly excluded means that the jury was not erroneously prevented from hearing this testimony and we therefore do not consider it in our real-controversy-not-tried analysis. See State v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435 (1996) (real controversy may not be fully tried where the jury was erroneously not given the opportunity to hear important testimony that bore on an important issue of the case) (emphasis added).

¶ 31. On cross-examination, the prosecutor elicited from Dr. Pierquet confirmation of this statement from her report: "Mr. Sugden presents risk in terms of general antisocial behavior and complying with community rules. There is a risk for opportunistic sex offending." Defense counsel requested that the jury be allowed to hear the next sentence: "However, these risks should be mitigated by his 22 years of remaining parole supervision in the pommunity until he is age 74-years-10-months old." The court denied the request.

¶ 32. Sugden acknowledges that in State v. Mark, 2006 WI 78, ¶ 41, 292 Wis. 2d 1, 718 N.W.2d 90, the supreme court held that evidence of conditions of Mark's probation supervision was irrelevant in determining whether he was a "sexually violent person" under Wis. STAT. § 980.01(7). He also acknowledges that in State v. Budd, 2007 WI App 245, ¶¶ 10-14, 306 Wis. 2d 167, 742 N.W.2d 887, we held that evidence that Budd would be on supervision upon release from prison was properly excluded. Sugden's position is that, despite this general rule of inadmissibility, once the State read the preceding two sentences from Dr. Pierquet's report, § 901.07 requires that he be permitted to read the sentence on parole supervision.

¶ 33. WISCONSIN STAT. § 901.07, often called "the rule of completeness," provides: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." Sugden points out that a circuit court may, in the proper exercise of its discretion, determine that the rule of completeness requires that an additional portion be introduced into evidence even if it is otherwise inadmissible. See State v. Anderson, 230 Wis. 2d 121, 140-41, 600 N.W.2d 913 (Ct. App. 1999). He asserts that the circuit court here erroneously exercised its discretion because it mistakenly applied the law. We disagree.

¶ 34. The rule of completeness gives a circuit court the discretion "to admit only those statements which are necessary to provide context and prevent distortion." State v. Eugenio, 219 Wis. 2d 391, 411-12, 579 N.W.2d 642 (1998). Statements about supervision are irrelevant to the issues the jury must decide in determining if a person is sexually violent within the meaning of Wis. STAT. § 980.01(7), and, in particular, are irrelevant to the issue whether a person is "dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in acts of sexual violence." Mark, 292 Wis. 2d 1, ¶¶ 37-41 (quoting § 980.01(7)). The two sentences the State read accurately present Dr. Pierquet's opinion on Sugden's dangerousness without consideration of supervision. Introducing the next sentence to the jury misleads the jury by suggesting that it should take supervision into account in deciding whether it is likely that Sugden will reoffend.

¶ 35. We conclude the circuit court properly exercised its discretion in excluding the sentence on Sugden's parole supervision.

Sugden contends that a comment the court made, out of the jury's presence, in ruling on his request to have the supervision statement read shows that the court was impermissibly "severing" Dr. Pierquet's opinion on dangerousness from her opinion that Sugden does not have a predisposing mental disorder. We do not read the court's statement in this way. Moreover, we do not understand what this contention has to do with the admissibility of the statement on supervision from Dr. Pierquet's report. If Sugden is arguing that all Dr. Pierquet's testimony on risk should have been excluded because in her opinion Sugden did not have a qualifying mental illness, he does not develop this argument.

III. Discretionary Reversal — Real Controversy Not Tried

A. Legal Standard

¶ 36. Because Sugden did not object to the portions of Dr. Hill's testimony that he now asserts were erroneously admitted, he has forfeited the right to the review of these errors. See State v. Romero, 147 Wis. 2d 264, 274, 432 N.W.2d 899 (1988) ("In order to preserve an issue for appeal as a matter of right, a party must object to the error at trial. . ."). He does not claim ineffective assistance of counsel with respect to these claimed errors. Rather, he asks that we exercise our discretionary power of reversal.

¶ 37. This court has the authority under Wis. STAT. § 752.35 to grant a new trial in the interest of justice when it appears that the real controversy has not been fully tried. Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990). The party seeking a new trial on this ground need not show a probable likelihood of a different result on retrial. Id. When, as here, a request for a discretionary reversal rests on the admission of evidence that was not objected to, courts have concluded the real controversy has not been fully tried when the jury had before it "evidence not properly admitted which so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried." State v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435 (1996) (citation omitted). The power to grant a new trial when it appears the real controversy has not been fully tried "is formidable, and should be exercised sparingly and with great caution." State v. Williams, 2006 WI App 212, ¶ 36, 296 Wis. 2d 834, 723 N.W.2d 719 (citation omitted). We exercise this power "only in exceptional cases." State v. Chu, 2002 WI App 98, ¶ 55, 253 Wis. 2d 666, 643 N.W.2d 878 (citation omitted).

WISCONSIN STAT. § 752.35 provides:
In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

¶ 38. In subsection B, we divide the challenged testimony of Dr. Hill into three categories, tracking the arguments of the parties: postcommitment annual reviews, postcommitment treatment, and the screening process. Within each category we identify each piece of testimony that Sugden challenges and determine whether it would have been admissible if there had been an objection. We do this because we look at "evidence not properly admitted" in deciding whether evidence the jury heard "so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried." See Hicks, 202 Wis. 2d at 160 (citation omitted) (emphasis added). In subsection C, we analyze all the evidence we have identified as inadmissible to determine whether it so clouded the crucial issues that the real controversy was not fully tried. We conclude it did not.

B. Admissibility of the Claimed Improper Testimony

1. Postcommitment Annual Reviews

¶ 39. Sugden contends that references Dr. Hill made in her testimony to annual reviews performed pursuant to Wis. STAT. § 980.07 after commitment are irrelevant to the issues the jury was to decide and instead refer to the effect of the verdict, which is improper information to present to the jury. The State does not directly address relevancy, but responds that the two most significant references to annual reviews were invited error and therefore properly before the jury.

¶ 40. No published opinion has addressed the admissibility of evidence of postcommitment annual reviews in a Wis. STAT. ch. 980 commitment trial. In State v. Kaminski, 2009 WI App 175, ¶¶ 22-24, 322 Wis. 2d 653, 777 N.W.2d 654, we decided that particular testimony on this topic did not prevent the real controversy from being tried in that case, but we did not decide whether it was admissible.

¶ 41. However, we find guidance in the case law holding that a jury should not be informed of the effect of its verdict. See Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 481-82, 387 N.W.2d 751 (1986) (legal effect of verdict is irrelevant to the jury's fact-finding function); State v. Garnett, 243 Wis. 615, 617-18, 11 N.W.2d 166 (1943) (where the prosecutor improperly told the jury of the minimum sentence, upon objection by the defense the court should have told jury the maximum sentence and then instructed the jury that the sentence is solely for the court to impose and jury must decide the case based on the evidence regardless of what punishment might be imposed); State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498 (Ct. App. 1992) (improper to refer to possible penalties in closing arguments to the jury).

¶ 42. Like a sentence and like the legal effect of a verdict, the postcommitment annual review is a legally determined consequence of the jury's verdict. Annual reviews are statutorily mandated for each person who has been committed under Wis. STAT. § 980.06. § 980.07(1). Commitment is required after a judge or jury has found that the evidence establishes beyond a reasonable doubt that the person meets the statutory requirements for a sexually violent person. See §§ 980.06; 980.05(3) and (5). Postcommitment annual reviews do not, generally, bear on the factual issues the jury must resolve in order to determine whether a person is a sexually violent person. We say "generally," because we cannot establish a blanket exclusion for all testimony of annual reviews. Rather, the question of relevancy of such evidence needs to be examined in the particular context in which the evidence is offered.

¶ 43. Dr. Hill's first two references to annual reviews occurred on direct examination, when Dr. Hill was describing her job duties involving Wis. STAT. ch. 980. She stated at one point that she "perform[ed] Chapter 980 re-evaluations for men who've already been committed," and at another point that she started doing ch. 980 re-evaluations in 2002, noting that they "must be done annually."

¶ 44. We conclude these references to postcommitment annual reviews are not relevant. Dr. Hill's experience in evaluating persons to determine if they meet the statutory criteria for commitment is certainly relevant to her expertise, which is a necessary foundation for the admissibility of her opinions. See Wis. STAT. § 907.02 (expert testimony). Thus, for example, the number of evaluations she has done is relevant to her expertise. However, whether she performed the evaluations before commitment — to determine if a person should be committed — or after commitment — to determine if a person continues to meet the criteria — does not add in any way to her expertise. Nor does the fact that the postcommitment reviews are done annually add to her expertise. If Sugden had objected to the portion of this testimony informing the jury about postcommitment annual reviews, the circuit court should have excluded it.

¶ 45. Dr. Hill's third and fourth references to postcommitment annual reviews suggested to the jury the role these reviews play in determining the length of a person's commitment. In disagreeing with defense counsel's suggestion that changes in a person because of age or health make risk predictions unreliable, Dr. Hill stated, "[b]ut, you see, in 15 years he would be reevaluated every single year." She later indicated the annual re-evaluations were the means for evaluating the progress in treatment, which, in turn, was related to the length of commitment.

¶ 46. We agree with Sugden that whether he will be re-evaluated every year, at which times age and declining health and progress in treatment will be assessed, is irrelevant to any issue before the jury. The jury is to make a determination whether Sugden now meets the statutory criteria for commitment. Whether there is a method for re-evaluating him to take changed circumstances into account does not have a tendency to make any fact related to his present mental disorder or dangerousness more or less probable. See Wis. STAT. § 904.01 (defining relevance).

¶ 47. Instead of arguing relevancy, the State contends that the doctrine of invited error applies. See State v. Robles, 157 Wis. 2d 55, 60, 458 N.W.2d 818 (Ct. App. 1990), aff'd sub nom. State v. Martin, 162 Wis. 2d 883, 470 N.W.2d 900 (1991) ("If a defendant selects a course of action, that defendant will not be heard later to allege error or defects precipitated by such action. Such an election constitutes waiver or abandonment of the right to complain.") (citations omitted). The State contends that in the third instance Dr. Hill's response was an appropriate response to defense counsel's question and in the fourth instance the prosecutor's question regarding the length of commitment was proper given defense counsel's earlier reference to "potential . . . lifelong commitment." In essence, the State is arguing that Sugden has waived the right to object to irrelevant testimony on annual reviews because his counsel's deficient questioning led to that testimony. However, reversal based on the real controversy not being fully tried does not require that errors be preserved. Thus, even if defense counsel's deficient questioning was responsible for Dr. Hill's irrelevant testimony on annual reviews — an issue we do not decide — that testimony is nonetheless evidence that we consider in deciding whether the real controversy was fully tried.

2. Postcommitment Treatment

¶ 48. Sugden cites two references by Dr. Hill to postcommitment treatment, which, he contends, were erroneously admitted. One occurred when the State, in the context of examining Dr. Hill about her experience, asked, "What's the commitment [under Wis. STAT. ch. 980] for?" She answered, "Commitment is for treatment." At a later point she explained that "commitment is until a person demonstrates progress in treatment" and "a person committed is required to be involved in treatment." Sugden also refers to the State's comments at the end of its initial and rebuttal closing arguments, which repeated Dr. Pierquet's testimony that ch. 980 gives high risk sex offenders "the opportunity for treatment."

¶ 49. In Kaminski we addressed testimony on postcommitment treatment in the context of an argument that the testimony, not objected to at trial, implicitly suggested that commitment was in the best interests of Kaminski and the community. Kaminski, 322 Wis. 2d 653, ¶ 25. In deciding this did not warrant reversal on the ground that the real controversy was not fully tried, we rejected an argument based on an analogy to proceedings involving termination of parental rights (TPR). Id., ¶¶ 26-27. The argument was that, as in a TPR proceeding, in a Wis. STAT. ch. 980 proceeding the best interests of the respondent should be considered separately from the fact-finding. Id. To the extent Sugden is asking us to revisit this argument, we decline to do so because we are bound by our ruling in Kaminski. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

¶ 50. However, we did not decide in Kaminski whether evidence on postcommitment treatment was relevant to the issues before a jury in a Wis. STAT. ch. 980 proceeding. We therefore address it here. We conclude that, similar to postcommitment annual reviews, the existence of treatment for committed persons is a consequence of commitment and, generally, is not relevant in determining whether a person is a sexually violent person. While the purpose of commitment is for "control, care and treatment until such time as the person is no longer a sexually violent person," § 980.06, the finding that someone is a sexually violent person does not involve consideration of whether the person needs or would benefit from treatment. See § 980.01(7). However, as with evidence of postcommitment annual reviews, each instance of proffered evidence on post-commitment treatment must be analyzed in context to determine if it is relevant.

¶ 51. We agree with Sugden that Dr. Hill's testimony that the purpose of Wis. STAT. ch. 980 is for treatment is not relevant. It does not bear on her credentials or expertise and we can identify no other fact of consequence that this evidence makes more or less probable. See § 904.01. The State does not offer a developed argument to the contrary.

¶ 52. The State contends that Dr. Pierquet's testimony on postcommitment treatment, referred to in the State's closing argument, was in response to defense counsel's question and was more extensive than the State's closing references and more extensive than Dr. Hill's testimony. Therefore, according to the State, the State is not responsible for having "clouded" any crucial issue.

¶ 53. The State's argument is based on a misunderstanding of the real-controversy-not-tried standard. This standard is not concerned with who is "at fault" for the unobjected-to, erroneously admitted evidence. Rather, it is concerned with the result: did that evidence prevent the real controversy from being fully tried? Thus, even if Dr. Pierquet's testimony on the "opportunity for treatment" was responsive to defense counsel's question — an issue we need not decide — it is evidence that should not have been permitted for purposes of our analysis here.

¶ 54. Accordingly, we conclude that Dr. Pierquet's testimony on postcommitment treatment, like Dr. Hill's testimony that the purpose of commitment is treatment, is irrelevant and should be considered in deciding whether the real controversy was fully tried. We discuss the State's references in closing argument in subsection C.

3. Screening Process

¶ 55. In summarizing her experience on direct examination, Dr. Hill testified that she currently performs "special purpose evaluations." In explaining the nature of these evaluations, Dr. Hill effectively informed the jury that only "a small number" of the total number of sex offenders facing release from prison are referred for a special purpose evaluation to determine whether the prisoner meets the criteria for a Wis. STAT. ch. 980 commitment. Sugden contends that this information is irrelevant to establish Hill's credentials and irrelevant to the issue whether he is a sexually violent person. He relies on Budd, 306 Wis. 2d 167. The State responds that Budd is distinguishable and that this testimony is relevant to establish Dr. Hill's credentials.

¶ 56. We agree with Sugden that Budd is dispositive on the issue of relevancy. In Budd we addressed expert testimony on the screening process, which the circuit court had admitted over the respondent's objection. Id., ¶ 3. That expert, presented by the State, testified that the chairman of the End of Confinement Review Board (ECRB) annually screens all sex offenders scheduled for release from Wisconsin state prisons and refers about 25% to the ECRB, which then refers about 50% of those cases to the special purpose evaluation unit, where that expert worked. Id., ¶ 4. The expert testified that she and the other evaluators in her unit recommend about a third of those cases for Wis. STAT. ch. 980 commitment proceedings. Id. We determined that, without an explanation of why only 4.5% were chosen for a ch. 980 referral, this evidence was irrelevant to the issue of whether Budd was a sexually violent person. Id., ¶ 16.

¶ 57. It is true, as the State contends, that in this case the expert's testimony on the screening process was not as elaborate as that in Budd, and the jury was not given a concrete, very low number, but the more general and ambiguous phrase, "a small number of them." However, our reasoning in Budd is nonetheless applicable. The proportion of about-to-be released sex offenders who are referred for a special purpose evaluation — to determine whether they meet the requirements of Wis. STAT. ch. 980 — is not, in itself, relevant to whether a particular person referred meets the requirements. This is true whether that proportion is expressed in terms of a specific percentage or a more general description of the relative size of the group.

¶ 58. We do not agree with the State that this testimony is relevant to establish Dr. Hill's credentials. Dr. Hill's experience in doing evaluations under Wis. STAT. ch. 980 is relevant to her expertise, but the existence of a screening process before a referral is made to her or the relative size of the group selected for evaluations is not.

Because of this conclusion, we do not reach the parties' dispute over whether this testimony contains inadmissible hearsay.

C. Effect of Inadmissible Testimony on Trial of Real Controversy

¶ 59. The crucial issues in this trial were whether Sugden had a qualifying mental illness and whether he was more likely than not to commit a future act of sexual violence because of that disorder. The defense did not dispute that Sugden had committed a sexually violent offense: there was detailed evidence from the victim and others on one of the rapes, and in closing argument defense counsel acknowledged that "Sugden was convicted of some terrible crimes 32 years ago, undisputed."

¶ 60. On the issue of a qualifying mental illness, the dispute between Dr. Hill, on the one hand, and Drs. Rosell and Pierquet, on the other, centered on their differing views over whether the details of the two violent rapes that Sugden committed in 1976 and his sexual treatment of his wife in that same time period satisfied the criteria for a mental disorder that predisposes him to commit acts of sexual violence. The victim of the second rape, her friend who went to get help, and the police officer who came to the rescue testified, as did Sugden's ex-wife; and the jury heard accounts of the first rape. Sugden's son and sister testified on Sugden's behalf, stating that his ex-wife never told them she was sexually assaulted by Sugden. Thus, the jury had to evaluate the truth of Sugden's ex-wife's account in order to decide whether to accept Dr. Hill's opinion on a qualifying mental illness.

Sugden's ex-wife testified that he would force her to have sex after slapping her around and on one occasion beat her up and held a knife to her neck, saying he was going to rape her. On that occasion, she testified, he admitted to the first of the rapes for which he was convicted and told her that if she didn't stop him, he would do it again.

¶ 61. The experts also differed on how they viewed the evidence that Sugden had not sexually reoffended during his long period of incarceration and had over the last sixteen years in large part conformed to prison rules. Drs. Rosell and Pierquet viewed this as evidence Sugden could control his behavior, including his sexual behavior. This evidence thus contributed to their view that Sugden's personality disorder does not predispose him to acts of sexual violence. Dr. Hill, on the other hand, opined that paraphilia nonconsent and sadism do not remit over time and can result in violent sexual conduct given the opportunity.

¶ 62. These differences between the experts on diagnosis were thoroughly explored, with extensive testimony on the basis for the opinions of each.

¶ 63. As for the issue of future dangerousness, we have discussed above the testimony of Drs. Hill and Pierquet, who agreed the risk of sexual reoffending was more likely than not. Both witnesses were thoroughly examined on how they arrived at their respective opinions.

¶ 64. The jury also heard from the custodian of Sugden's DOC records, who described the circumstances of the attempted escape and hostage-taking in 1984, as well as numerous prison misconduct reports between 1977 and 1992. That witness, as well as two witnesses called by Sugden, testified to his improved behavior in prison over the last fourteen to sixteen years in terms of complying with prison rules and being a good worker. The jury also heard that Sugden consistently refused all recommended training and treatment, including sex offender treatment, and that he denied to Dr. Rosell that he had committed any sexual assaults. In summary, there was detailed information about Sugden's behavior in prison for the jury to take into account along with the experts' opinions on Sugden's risk of reoffending.

¶ 65. In the context of this extensive testimony properly focused on the issues in controversy, we consider the evidence that should not have been admitted. We begin with the testimony on postcommitment annual reviews. Sugden asserts that the prejudice arising from telling the jury about postcommitment annual reviews is that it may lead jurors to believe that, if they make a mistake in returning a verdict that results in commitment, the error can be corrected through annual reviews. According to Sugden, this may make jurors decide he is a sexually violent person even if they have a reasonable doubt.

¶ 66. We do not believe this testimony would have made a reasonable juror likely to take less seriously his or her responsibility to decide whether the State had proved beyond a reasonable doubt that Sugden is a sexually violent person as defined in the instructions and based on the evidence. First, immediately after Dr. Hill's statement that Sugden would be re-evaluated every year after commitment, defense counsel elicited her agreement that the issue of evaluations after commitment was not before the jury; and he refocused her attention — and the jury's attention — on the issues the jury was to decide. Second, there was no connection drawn for the jurors, even implicitly, between the availability of postcommitment annual reviews and the significance of the jurors' decision. This distinguishes this case from the two cases of other jurisdictions on which Sugden relies: Johnson v. State, 601 A.2d 1093, 1096-97 (Md. 1992) (prosecutor's comments on defendant's right of appeal are improper because, besides not being based on the evidence, they implied that the jury need not be unduly concerned about convicting the defendant and encouraged the jury to disregard the instructions); and People v. Rutledge, 578 N.Y.S.2d 162, 163 (1992), accord Kaminski, 322 Wis. 2d 653, ¶ 22.

In State v. Kaminski, 2009 WI App 175, ¶ 22, 322 Wis. 2d 653, 777 N.W.2d 654, we concluded that the testimony in that case on postcommitment annual reviews would not lead a reasonable juror to conclude that the reviews could correct any mistake in their verdict and thereby relieve them of their obligation to make a decision based on the law and evidence.

¶ 67. Next we address the evidence on postcommitment treatment and the State's comments on that topic in closing argument. In this case, as in Kaminski, 322 Wis. 2d 653, ¶ 23, and likely most Wis. STAT. ch. 980 proceedings, there was evidence concerning precommitment treatment. The jurors here heard that treatment can reduce the risk of reoffending and that sex offender treatment was regularly offered Sugden in prison but he declined to participate. Our analysis in Kaminski applies here: without any specific reference to postcommitment treatment, a jury could reasonably infer from the evidence properly before it that Sugden would be offered treatment if he were committed. Id.

¶ 68. Testimony on postcommitment treatment could be prejudicial, potentially clouding the real issues in controversy, if presented in a way that invited the jury to focus on the need for treatment rather than on the requirements for commitment as instructed. However, we are satisfied that did not occur here. The brief reference by Dr. Hill to treatment as the purpose of commitment and the somewhat more extended comments on the same topic by Dr. Pierquet did not suggest that the jury should overlook the statutory requirements for commitment. Indeed, Dr. Pierquet's comments, in the context of her other testimony, demonstrate the importance in her view of strictly adhering to the statutory standard.

¶ 69. As for the State's final sentences in initial closing argument and rebuttal, we view these in the context of the rest of the State's argument. The State's argument properly focused on the elements it needed to prove to establish that Sugden was a sexually violent person and the evidence supporting those elements. While the references to the "opportunity for treatment" should not have been made, we conclude they cannot reasonably be viewed as a suggestion to the jury that they disregard the instructions defining a sexually violent person and the evidence related to these criteria.

We recognize that, because there was no objection to evidence on postcommitment treatment, the prosecutor's reference to it in closing argument was not an instance of asking the jury to arrive at a verdict by considering factors other than the evidence. That sort of request would have been improper. See State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979).

¶ 70. We turn to Dr. Hill's testimony that "a small number" of sex offenders released from prison are referred, after a review, for a special purpose evaluation. The harm in this type of testimony is that it could potentially convey that a person must be or probably is a sexually violent person because only a small number of sex offenders are even referred for a special Wis. STAT. ch. 980 evaluation. However, we conclude that this single reference in this case was not sufficient to deflect the jury's attention from a proper focus on the instructions defining a sexually violent person and the evidence relevant to that definition.

¶ 71. We do not agree with Sugden that Budd requires a different outcome. In Budd, after concluding the testimony on the screening process, which had been objected to, was irrelevant, we concluded its admission was not harmless error. Budd, 306 Wis. 2d 167, ¶ 18. The percentages testified to in Budd — working out to 4.5% — vividly demonstrated how very small the number of referrals were, and the prosecutor reiterated this testimony in his closing argument. Id., ¶ 4. In addition, this testimony was referenced in closing argument. Id., ¶ 18. Given these facts, and the fact that three out of four experts opined that Budd was not a sexually violent person, we concluded that the inadmissible testimony contributed to the jury's finding that Budd was a sexually violent person. Id.

¶ 72. In contrast, in this case the "small number" description was more understated than the percentages and there was no repetition or attention focused on it. In addition, the framework of our analysis is different than that in Budd. We are not inquiring in this case, as we did in Budd, whether the State has successfully demonstrated that a preserved trial court error is harmless. See id., ¶ 17; see also State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985) (beneficiary of the error has the burden of proving the error is harmless). Rather, the inquiry here is whether the defendant has persuaded us that this is one of the exceptional cases in which we should use our discretionary power of reversal because inadmissible evidence, not objected to, prevented the real controversy from being fully tried. In this analysis, we look at the evidence properly presented to the jury and the arguments of counsel to determine whether the inadmissible evidence was sufficient to distract the jury from its task of deciding if Sugden was a sexually violent person according to the instructions and the admissible evidence. We have concluded that the evidence on the screening process did not have this effect, and Budd does not require a different result.

¶ 73. Having decided that none of the categories of inadmissible testimony prevented the real controversy from being fully tried, we consider whether there is a different result when we view all the categories together. We conclude there is not. In no category did the effect of the inadmissible evidence present a close question as to whether it was significant enough to prevent the real controversy from being fully tried. Viewing the categories of inadmissible evidence in combination, we are satisfied that they did not distract the jury from its task of considering, in light of the court's instructions, the extensive evidence on the crucial issues of a qualifying mental disorder and the likelihood of future re-offending.

Sugden requests that, even if we decide he is not entitled to a new trial based on the newly discovered evidence standard, we consider the new Static-99 percentages in deciding whether to exercise our discretionary powers of reversal. We have already decided that the new risk percentages do not warrant a new trial because there is no reasonable probability that this new evidence will raise a reasonable doubt that Sugden meets the standard for commitment as a sexually violent person. We conclude the absence of these new risk percentages did noli, either alone or in combination with the testimony we have discussed in section III.C., prevent the real controversy from being fully tried.

CONCLUSION

¶ 74. We conclude the circuit court properly denied Sugden's motion for a new trial based on newly discovered evidence and properly excluded the statement on supervision in Dr. Pierquet's report. For the reasons explained above, we decline to exercise our discretionary power of reversal. Accordingly, we affirm the judgment of commitment and the order denying the postcommitment motion.

By the Court. — Judgment and order affirmed.