STATE OF MINNESOTA
IN COURT OF APPEALS
C5-00-1715

In Re the Matter of:
Leon James Preston.


Filed June 12, 2001
Affirmed
Amundson, Judge

Sibley County District Court
File No. P-19933

Anthony F. Nerud, 325 West Main Street, Arlington, MN 55307 (for appellant)

Mike Hatch, Attorney General, Gail A. Feichtinger, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

S Y L L A B U S

A pedophile who has uncontrollably committed numerous sexual assaults involving vaginal penetration, oral sexual contact, and the use of physical restraint on eight juvenile females meets the standard for indeterminate commitment as a sexual psychopathic personality and a sexually dangerous person regardless of whether the assaults involved collateral violence.

O P I N I O N

AMUNDSON, Judge

The district court ordered the indeterminate commitment of appellant as both a sexual psychopathic personality and a sexually dangerous person. Appellant argues that there is insufficient evidence to establish that he has an utter lack of power to control his sexual impulses or that he has exhibited a habitual course of misconduct in sexual matters so as to support commitment as a sexual psychopath. Appellant also argues that there is insufficient evidence to establish that he is likely to engage in harmful sexual conduct, as required for commitment as a sexually dangerous person. Lastly, Appellant argues that the court abused its discretion in imposing time constraints on the examination of expert witnesses.

F A C T S

This case concerns the indeterminate commitment of Leon James Preston as a sexual psychopathic personality and a sexually dangerous person pursuant to Minn. Stat. § 253B.02, subds. 18b, 18c (2000). Preston, a 25-year-old man diagnosed with pedophilia and antisocial personality disorder among other disorders, sexually assaulted eight juvenile females when he was between the ages of 14 and 17.

In 1990, when Preston was 14, he was playing a game with his eight-year-old female cousin at her house. After she went into her bedroom to change out of her swimsuit, he followed her, removed her shirt and pants, placed her on the bed, and touched her between the legs. After being informed of the incident, her family and Preston’s family responded to this incident privately and sought counseling for the girl.

The following spring, in 1991, Preston fondled the vaginal area of a nine-year old girl on approximately 30 to 45 separate occasions while the two were riding on a school bus.

That fall, Preston, then 15, twice sexually assaulted a four-year-old-girl in a park. He first spotted the girl near a concession stand, and then approached and offered her candy, which she refused. According to Preston, after he set the candy bar down by her, she began to trust him and picked up the candy. To put her further at ease, he began to talk to her. At that point, he began fondling her, initially on top of her swimsuit, putting his arm around her so she could not get away, all the while continuing to give her candy. The girl struggled during the assault and wanted to escape, but Preston held her on his lap. He then put his hand under her swimsuit and attempted to fondle her vagina. Finding this too difficult, he lifted the girl up, removed her swimsuit, and fondled her breasts and vaginal area. He then put the swimsuit back on and continued to fondle her. At a later date, Preston returned to that park, again gave the same girl some candy, and fondled her on top of and underneath her clothing.

During February 1992, when Preston was 16, he assaulted another eight-year-old girl at a park on at least 15 separate occasions. Preston would follow her into a bathroom and fondle her vagina and breasts both on top of and underneath her clothing, asking her if she "liked it." He also fondled her in the same manner approximately 35 times on a school bus. Preston used planning and stalking behaviors with this victim.

In April 1992, Preston assaulted J.M.R., his five-year-old half-sister, during his confirmation party. While she was playing hide and seek with some other children, Preston hid in his grandparents’ garage. When she entered the garage, Preston picked her up, placed her on a lawnmower, and began to fondle her breasts and vagina, forcing her to stay there. Preston then removed her tights, performed cunnilingus on her, and digitally penetrated her vagina. In August 1992, Preston again assaulted her at a cousin’s house. Preston suggested they play hide and seek, and when she went into the garage, Preston followed her, touched her breasts under her shirt and pulled down her pants and touched her between her legs.

Between March and June of 1992, Preston repeatedly sexually assaulted L.S., a nine-year-old neighborhood girl, in a park, on the school bus, and at her house. The first assault occurred while Preston was baby-sitting her and her siblings at the park. When L.S. went into the bathroom, he followed her, and, once inside, fondled her breasts and vagina both on top of and underneath her clothing, removed her clothes, and masturbated in front of her. L.S. was visibly terrified. Later that day, he told L.S. to go to her room and remove her clothes. After she complied, he fondled her, masturbated in front of her, and performed cunnilingus on her, asking her if she liked it. Throughout the spring of 1992, he also touched her on top of her clothing while they rode a school bus together. These school-bus incidents occurred every other day, totaling approximately 60 incidents; the assaults only stopped when L.S. moved and began riding a different bus to school. Even then, Preston would drive by her residence. During these assaults, Preston prevented L.S. from leaving and was indifferent about whether he was hurting her.

On September 14, 1992, a juvenile petition was submitted for the offenses Preston had committed against J.M.R.. He attempted outpatient sex offender counseling through the Leo Hoffman Center. From May 1993 through July 1993, while in outpatient treatment, he fondled A.D., the five-year-old daughter of his father’s girlfriend, on at least seven different occasions—performing cunnilingus on her during at least four of these assaults. In one particular incident, Preston was watching a pornographic movie when A.D. entered the room. A.D. started watching the movie with him and asked what a penis was. Preston then removed his pants, showed her his penis, and had her fondle him while he ejaculated. He then performed cunnilingus on her. In another incident, after watching a pornographic movie, Preston took A.D. outside with him and placed her on his lap while he mowed the lawn; he had erection and was fondling her breasts. After parking the mower in the garage, he removed her clothing and masturbated in front of her, after which he then performed cunnilingus on her before returning to the house to watch more pornographic movies. While he was watching the movies, A.D. walked into the room, and Preston again fondled her, and performed cunnilingus on her, made her fondle him and masturbated in front of her. During many other instances, Preston rubbed his penis between her legs and unsuccessfully tried to persuade A.D. to perform fellatio on him.

On July 15, 1993, Preston was adjudicated delinquent on the offense of criminal sexual conduct in the fifth degree for the August 1992 offense against J.M.R.

Earlier that year, Preston had occasionally gone to visit the home of one of his father’s friends whose family was helping him deal with family problems. Over time, the family observed Preston talking sexually to E.D., their 12-year-old daughter; Preston was banned from the house. However, after failing and being discharged from the Hoffman Center outpatient program (but before being admitted to the in-patient program), Preston went to E.D.’s house to help fix a lawn mower. When E.D.’s father left to get a part for the mower, Preston went in the house and began watching television with E.D. and her brother. The brother started tickling his sister and Preston joined in. When the brother left the room, Preston talked to E.D. about sensitive parts of the human body and convinced E.D. to remove her shirt. He then fondled her breasts. He then convinced her to remove her pants. He fondled her vagina, performed cunnilingus on her, and masturbated in front of her.

Preston, then 17, next attempted in-patient treatment at the Hoffman Center but on two separate occasions had sexual contact with a 14-year-old male resident—in violation of the program rules. Both times, Preston successfully convinced the reluctant boy to perform fellatio on him. Preston was removed from the Hoffman Center program.

After Preston’s commitment to the commissioner of corrections, he again attempted and failed sex-offender counseling at Minnesota Correctional Facility at Sauk Centre. He was discharged from supervision by the commissioner of corrections on October 31, 1994. In August 1994, Preston was charged with first-degree criminal sexual conduct for the April offense against his J.M.R., first-degree criminal sexual conduct for the offenses against A.D., and second-degree criminal sexual conduct for the offenses against L.S. From August 8, 1994 until he was released on bail on March 3, 1995, Preston was incarcerated in several county jails. While out on bail, he resided with his father near Jordan, Minnesota and was employed at both Valleyfair amusement park and a Hardee’s restaurant. During this time, no allegations were raised regarding any improper sexual activity. On January 17, 1996, Preston was convicted of second-degree criminal sexual conduct. He was sentenced and incarcerated at Minnesota Correctional Facility—St. Cloud.

On September 27, 1999, a verified petition was filed for judicial commitment as a sexual psychopathic personality and a sexually dangerous person, pursuant to Minn. Stat. § 253B.02, subds. 18b, 18c. At that time, Preston was serving a sentence at the Minnesota Correctional Facility at Lino Lakes. His target supervised release date was December 23, 1999. The district court appointed psychologists James Alsdurf, Ph.D., and John Austin, Ph.D., as court appointed examiners.

At the trial on the commitment petition, both expert psychologists testified that Preston had exhibited a habitual course of sexual misconduct. Dr. Alsdurf testified that Preston met all of the criteria for commitment under both the sexual psychopathic personality and sexually dangerous person