This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
C4-00-85 & C8-00-171
In the Matter of: James Robinson Poole.
Filed June 20, 2000
Traverse County District Court
File No. PO9958
John L. Kirwin, Piper Kenney Aafedt, Assistant Attorneys General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent in Case No. C4-00-85); and
Bruce W. Klopfleisch, Traverse County Attorney, 109 East 6th Street, P.O. Box 66, Morris, MN 56267 (for respondent Traverse County in Case No. C8-00-171)
Kenneth L. Hamrum, 10 East 6th Street, P.O. Box 70, Morris, MN 56267 (for appellant in Case No. C4-00-85)
Marc G. Kurzman, Kurzman, Grant & Ojala, St. Anthony Main, 219 S.E. Main Street, Suite 403, Minneapolis, MN 55414 (for appellant Rosen in Case No. C8-00-171)
Considered and decided by Schumacher, Presiding Judge, Harten, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
In this consolidated appeal, appellant James Robinson Poole appeals his commitment as a Sexual Psychopathic Personality (SPP) and a Sexually Dangerous Person (SDP), contending that the evidence is insufficient to show he meets the criteria for either SPP or SDP commitment. He also alleges numerous errors require a new trial. Finally, he argues he was denied the effective assistance of counsel. Because we find the evidence sufficient to conclude Poole meets the standards for commitment as a SPP and a SDP, and because we find no error by the district court or ineffective assistance of counsel, we affirm Poole’s commitment.
Appellant Rachel B. Rosen, Poole’s initial attorney during the commitment proceedings, appeals the district court’s denial of her request for payment of attorney fees and costs, arguing that the denial constitutes an unconstitutional taking of property. Because we find that Rosen knew that prior court approval of fees and costs was required, and that she failed to seek such approval, we affirm.
In 1991, James Robinson Poole was convicted of 13 counts of third-degree criminal sexual conduct and three counts of fourth-degree criminal sexual conduct against his obstetrics/gynecology patients. Poole maintained his innocence throughout the proceedings and numerous appeals, but his convictions were ultimately affirmed. State v. Poole, 489 N.W.2d 537 (Minn. App. 1992), aff’d, 499 N.W.2d 31 (Minn. 1993). After Poole’s criminal convictions, members of his family and others made new allegations of sexual misconduct.
Following his criminal convictions, Poole was sent to Minnesota Correctional Facility (MCF)-Stillwater. In February 1996, Poole entered sex-offender treatment at MCF-Moose Lake. During treatment, Poole completed numerous assignments that indicated a continuing obsession with sexual matters and sexual gratification. He also continued to deny any misconduct against his patients. In February 1997, Poole was terminated from the program for lack of progress and for violations of program confidentiality. Program staff observed that Poole denied any wrongdoing, showed no empathy for his victims, and felt sorry for himself. Poole sought no further sex-offender treatment while in prison.
Prior to his scheduled release date, the state petitioned to commit Poole as a Sexual Psychopathic Personality (SPP) and Sexually Dangerous Person (SDP). The district court appointed Dr. Rosemary Linderman as an examiner, and, at Poole’s request, appointed Dr. James Alsdurf as a second examiner. The court appointed appellant Rachel B. Rosen to represent Poole and issued an order setting attorney fees and costs. Rosen became ill before the commitment hearing, and the court appointed James Dahlquist to represent Poole. After trial, Rosen submitted a bill for fees and costs incurred after the substitution of counsel. The court denied the bill and Rosen appeals.
During the six-day commitment hearing, victims W, the child of a family friend; X and Y, Poole’s nieces; Z, Poole’s sister-in-law; and W’s mother each testified about Poole’s molestation and sexual misconduct. Victim L, Poole’s second cousin, testified by deposition. Poole’s daughter, Catherine Poole, testified for Poole by telephone from Sweden. Poole also testified, explaining his plans if discharged and his recently developed empathy. Exhibits introduced at the hearing included manuscripts of three books written by Poole containing sexually explicit material.
Both Dr. Linderman and Dr. Alsdurf testified extensively on Poole’s condition. Dr. Linderman diagnosed Poole with: (1) a narcissistic personality disorder; (2) multiple paraphilias; (3) pedophilia; (4) incest non-exclusive; and (5) voyeurism. She testified that he had scored within the moderate psychopathy range on the Hare Psychopathy Checklist, but his factor-one score was extremely high, indicating a callous disregard of people, lack of remorse or guilt, lack of empathy, a grandiose sense of self-worth, and failure to accept responsibility. She testified that Poole met the factors for commitment as a SPP and a SDP.
Dr. Alsdurf diagnosed Poole with: (1) severe narcissism; (2) voyeurism; (3) sexual paraphilia; and (4) several “rule-outs.” He testified that Poole’s life revolves around his sexual appetite. His testing of Poole on the Hare Psychopathy Checklist resulted in findings similar to Dr. Linderman’s. He agreed that Poole met the factors for commitment as a SPP and a SDP.
The court ordered Poole’s commitment as a SPP and a SDP. Poole appeals.
Poole argues that the evidence fails to support the district court’s determination that he lacks control of his sexual impulses as required by section 253B.02, subd. 18b. In determining whether a person has an utter lack of power to control their sexual impulses, the court considers
the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender’s attitude and mood, the offender’s medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it.
In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).
Poole argues that the district court erred in discounting the lack of violence involved in his sexual misconduct. The court found that the lack of violence is not indicative of control or lack of control, because Poole used a process of grooming to seduce his victims. “Although the ‘grooming’ process requires time, thus eliminating any ‘suddenness’ regarding the sexual activity,” the habitual nature of predatory sexual conduct can indicate an inability to stop the grooming process. In re Bieganowski, 520 N.W.2d 525, 529 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Both experts testified that Poole has an utter lack of power to control his sexual impulses. Dr. Linderman testified that pedophiles do not generally use violence against their victims. Dr. Alsdurf testified that part of Poole’s lack of control is his grooming of his victims without even realizing he is doing it. The district court accepted as credible the opinions of both experts. This court defers to the district court’s credibility determinations. See In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986) (“Where the findings of fact rest almost entirely on expert opinion testimony, the probate judge’s evaluation of credibility is of particular significance.”).
The district court found that Poole has no insight into his behavior and has shown no empathy for his victims. Dr. Linderman testified that Poole has no insight into the harm he has caused his victims, and he has no insight into his sexual offending because he does not believe he has a problem. An important factor in determining power to control is whether the person feels he has a problem. In re Irwin, 529 N.W.2d 366, 375 (Minn. App. 1995), review denied (Minn. May 16, 1995). Poole argues that while he may not have insight into the harm he has caused others, he realizes the harm to himself. Knowing that his actions have caused problems for himself and his family, but not admitting he has a problem, shows an inability to control sexual impulses.
Poole argues that the district court’s findings on psychological testing and evaluation do not reflect any kind of psychopathic disorder. Both experts testified, however, that he is paranoid, in a hypervigilant self-protective state, has a low capacity for insight, is self-centered, and holds antisocial attitudes and values. Both experts testified that Poole met the definition of a psychopathic personality.
In addition, the district court found that Poole has an utter lack of power to control his sexual impulses based on: (1) the repetitive nature of his conduct; (2) the length of time over which he offended; (3) the variety of ages and relationships of his victims; and (4) the fact that he continued to offend even after receiving a warning from the Board of Medical Practice. The court found specifically that: (1) he engaged in patterns of grooming with his victims; (2) he does not see himself as a sex offender but as a physician held hostage by a hostile government; and (3) he entered sex-offender treatment for selfish reasons and was terminated for lack of progress and breach of program confidentiality. See In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995) (“Refusal of treatment and lack of a relapse prevention plan can show an utter lack of control.”), review denied (Minn. Aug. 30, 1995).
Unlike the SPP Act, the SDP Act does not require proof that the person has an utter inability to control the person’s sexual impulses. In re Linehan, 594 N.W.2d 867, 874 (Minn. 1999), cert. denied, 120 S. Ct. 587 (Dec. 6, 1999); see Minn. Stat. § 253B.02, subd. 18c(b). The SDP Act was enacted to protect the public from sexual predators with mental disorders “who retain enough control to ‘plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success.’” Linehan, 594 N.W.2d at 875. The SDP Act requires clear and convincing evidence that the person has “manifested a sexual, personality, or other mental disorder or dysfunction.” Minn. Stat. § 253B.02, subd. 18c(2). Both experts testified that they diagnosed Poole with numerous sexual and personality disorders.
Poole also argues that the evidence does not support a finding that he is likely to inflict serious physical or mental harm on others in the future. In determining whether commitment as a SPP or a SDP is appropriate, the district court must determine the likelihood of future harm. See Minn. Stat. § 253B.02, subd. 18b (SPP requirement showing that person “is dangerous to other persons”); Minn. Stat. § 253B.02, subd. 18c(3) (SDP requirement that person is “likely to engage in acts of harmful sexual conduct”). For SDP commitment, the likelihood of harm must be high. Linehan, 594 N.W.2d at 876. Where utter uncontrollability of sexual impulses is found, the court should consider the following factors, if such evidence is presented, in predicting serious danger to the public:
(a) the person’s relevant demographic characteristics (e.g., age, education, etc.); (b) the person’s history of violent behavior (paying particular attention to recency, severity, and frequency of violent acts); (c) the base rate statistics for violent behavior among individuals of this person’s background (e.g., data showing the rate at which rapists recidivate, the correlation between age and criminal sexual activity, etc.); (d) the sources of stress in the environment (cognitive and affective factors which indicate that the person may be predisposed to cope with stress in a violent or nonviolent manner); (e) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (f) the person’s record with respect to sex therapy programs.
Bieganowski, 520 N.W.2d at 530 (quotation and citation omitted). In reviewing a commitment order, this court will look to see whether the factors have been considered, especially when there is a large gap of time between the petition for commitment and appellant’s last sexual misconduct. Irwin, 529 N.W.2d at 375.
Poole claims the court erred in dismissing his age and education as irrelevant. However, Dr. Alsdurf testified that Poole’s demographic characteristics do not inform the court one way or the other as to Poole’s likelihood of reoffending. The court found that because molesters abuse after age 70, Poole’s age of 61 is not relevant, and, although highly educated and intelligent, Poole is likely to reoffend.
Poole’s lack of recent misconduct is also irrelevant because he is heterosexual, all of his victims were female, and he was in a male prison. Good behavior in an artificial environment is not determinative of dangerousness, where medical experts testify that the patient remains mentally ill and dangerous. In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985); see Pirkl, 531 N.W.2d at 909 (rejecting appellant’s arguments as to lack of recent sexual assaults where he had been in prison for last nine years and had no opportunity to commit sexual assaults).
Poole also argues that the court dismissed the fact that his acts of abuse were not violent. The relevant question is whether there is a substantial likelihood of serious physical or emotional harm. In re Rickmeyer, 519 N.W.2d 188, 190 (Minn. 1994). The court found that Poole’s type of non-violent abuse is likely to cause in victims a loss of trust, insecurity, anxiety, depression, sleep disorders, and problems with parenting. The court’s findings are supported by testimony from witnesses and both experts.
The district court also found that Poole plans to return to the same small town he was living in when he was convicted in 1991. There, sources of stress include a dubious plan to farm and the fact that his actions as a doctor in a small town were highly publicized. Also, he would be living with his daughter, presenting a potential victim, and his wife, who helped facilitate much of his misconduct in the past. In addition, his probation officer is located 40 miles away and has a high caseload.
A person being committed under chapter 253B has the right to be represented by an attorney. Minn. Stat. § 253B.07, subd. 2c (1998). Persons unable to afford counsel may petition to proceed in forma pauperis under Minn Stat § 563.01, subd 3 (1998).
Poole does not show how the cap on fees and costs affected his case.
An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.
Minn. Stat. § 253B.07, providing persons subject to commitment with the right to counsel, states:
In all proceedings under this chapter, the attorney shall:
(1) consult with the person prior to any hearing;
(2) be given adequate time and access to records to prepare for all hearings[.]
Poole argues that the district court abused its discretion in refusing to excuse Dr. Alsdurf as an examiner and appoint a new examiner. Poole argues this issue only with reference to the transcript and arguments made at the hearing. Generally, an issue is deemed waived if appellant fails to brief it and instead cites to arguments in the transcript. Bieganowski, 520 N.W.2d at 529. Therefore, we decline to address this issue.
d. Dr. Elizabeth Loftus
Poole argues that the district court abused its discretion in refusing to allow the testimony of Dr. Elizabeth Loftus, a witness for Poole who was to testify about lack of memory. The court excluded her testimony because Poole failed to provide a written summary of the expert’s testimony as required by the court’s scheduling order and stated additionally that, because Dr. Loftus was not present during the testimony of the witnesses, there would likely be no foundation for her testimony.
In determining whether to relieve a party of a scheduling order, the court applies a balancing approach, considering factors such as the degree of prejudice to the parties seeking and opposing modification, the impact of the modification, and the degree of willfulness, bad faith, or inexcusable neglect on the part of the party seeking modifications. Cotroneo v. Pilney, 343 N.W.2d 645, 649 (Minn. 1984). Dahlquist knew that Dr. Loftus was to be called as a witness. The court relieved him of the requirement of the scheduling order by allowing him to submit a report during the hearing. He failed to do so. We find no abuse of discretion.
e. Christina Poole
Poole argues that the district court abused its discretion in reopening the hearing for additional testimony. After trial, the state moved to reopen the evidence to take the testimony of Poole’s daughter, Christina. The court found that the state’s attorney had used reasonable diligence in trying to locate Christina before the hearing, but had only been able to locate her after the hearing. The court found her proposed testimony material and relevant.
Reopening the trial for the purpose of hearing additional testimony is a matter within the discretion of the trial court and will not be reversed absent an abuse of discretion. King v. Larsen, 306 Minn. 546, 546, 235 N.W.2d 620, 621 (1975). Additionally, Poole was not prejudiced by the court’s decision to reopen testimony because Christina ultimately failed to testify.
Poole also argues the court abused its discretion in failing to strike the state’s offer of proof as to Christina’s proposed testimony because: (1) the court made a finding that living with his wife and youngest daughter would be a stressor; and (2) the court derived that finding from the offer of proof concerning his alleged abuse of Christina. However, the court made no finding about Christina, nor about Poole abusing his own children. The court’s finding that living with his youngest daughter would be a stressor was based on the fact that she is a minor female and he has a record of abusing minor females, and the fact that he would have to contend with comments made to his daughter about his criminal past. We find no abuse of discretion.
f. Jury trial or new judge
Poole argues the district court judge erred in failing to provide a jury trial, a different judge, or both, for the commitment hearing after the court’s evidentiary rulings.
A jury trial is not required in a commitment case. Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999), review denied (Minn. July 28, 1999).
A party who fails to remove a judge before the start of trial has lost his opportunity to do so unless he demonstrates prejudice or implied or actual bias. Uselman, 464 N.W.2d at 139. Judges may decide cases even after hearing preliminary matters. See Withrow v. Larkin, 421 U.S. 35, 56, 95 S. Ct. 1456, 1469 (1975) (finding no constitutional problem with judges issuing arrest warrants and presiding at preliminary hearings and then presiding over the trial). Because Poole did not file a notice or a motion to remove the judge, and because he cannot show prejudice simply because the same judge heard pretrial motions, we find no error.
g. Interpreter for Catherine Poole
Poole argues that the district court erred in failing to continue the testimony of his daughter Catherine Poole, who testified by phone from Sweden, until a new interpreter could be found. Poole argues that it was clear Catherine could not understand the interpreter’s Swedish, and therefore he was prejudiced because it is impossible to say what questions she misinterpreted or misunderstood.
The appointment of an interpreter for a witness rests within the discretion of the district court. State v. Saldana, 310 Minn. 249, 252, 246 N.W.2d 37, 39 (1976). The court made a specific finding during her testimony that Catherine could understand and communicate in English. See State v. Perez, 404 N.W.2d 834, 838 n. 1 (Minn. App. 1987) (“The court made a specific finding that appellant could understand and communicate in English, and on appeal we affirm that finding.”), review denied (Minn. May 20, 1987). We find no abuse of discretion.
Finally, Poole contends he was denied the effective assistance of counsel. Proposed patients facing commitment have the right to be represented by counsel. Minn. Stat. § 253B.07, subd. 2c. Counsel must act as a vigorous advocate. Minn. Stat. § 253B.07, subd 2c(4). The instructions of the proposed patient to counsel regarding what ultimate dispositions to seek, whether to attend hearings or testify on their own behalf, and whether to consent to continuances are binding. Minn. R. Civ. Commitment 4.06. All other trial decisions, including the selection and examination of witnesses, and the making of motions, are “the exclusive province of counsel [to make] after consultation with [the proposed patient].” Minn. R. Civ. Commitment 4.07.
The standard applicable for evaluating the adequacy of counsel in commitment cases is that applied to criminal cases. In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). To prove ineffective assistance of counsel, Poole must prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the proceedings would have been different. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064-65 (1984)). There is a strong presumption that an attorney’s performance fell within the range of reasonableness. King v. State, 562 N.W.2d 791, 795 (Minn. 1997).
Minn. Stat. § 253B.23 addresses the costs of commitment hearings. It provides:
In each proceeding under this chapter the court shall allow and order paid * * * to the patient’s counsel, when appointed by the court, a reasonable sum for travel and for the time spent in court or in preparing for the hearing.
(6) In the event Attorney Rosen seeks the appointment of co-counsel, requests should be made of the Court; however, any attorney time spent by co-counsel shall be subject to the total attorney time limitation of three hundred (300) hours.