This opinion will be unpublished and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
In the Matter of:
Eugene Christopher Banks.
Filed August 15, 2000
Dakota County District Court
File No. P6988535
Joe C. Dalager, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue West, Suite 100, South St. Paul, MN 55075 (for appellant)
James C. Backstrom, Dakota County Attorney, Kenneth A. Malvey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Poritsky, Judge.
U N P U B L I S H E D O P I N I O N
Appellant was committed as a sexually dangerous person (SDP). In a prior appeal, this court remanded to the trial court for further findings on whether appellant “lacked adequate control” over his sexual impulses as required under In re Linehan, 594 N.W.2d 867 (Minn. 1999) (Linehan IV), cert. denied, 120 S. Ct. 587 (Dec. 6, 1999). On remand and after a hearing, the trial court made additional findings and concluded that appellant lacked such adequate control. Appellant now argues that the record does not contain clear and convincing evidence to support the finding that he lacks such adequate control over his sexual impulses. We affirm.
Beginning in 1979, when appellant was nine and his sister was seven, appellant began to engage in sexual intercourse with her. Later, he threatened or slapped her if she resisted. This course of conduct continued until September 1987, when the sister reported it to authorities. In 1987, appellant was adjudicated delinquent of first-degree criminal sexual conduct for the assaults against his sister and ordered to reside in out-of-home placement. He was later released in October 1989. Although given the opportunity to participate in sex offender treatment, he did not complete any program.
He was discharged from juvenile court authority in April 1990. On March 12, 1990, he pleaded guilty to theft of a motor vehicle, fleeing a police officer, and criminal damage to property. On July 5, 1990, he pleaded guilty to two counts of felony theft. On April 1, 1991, he pleaded guilty to terroristic threats.
In July 1991, appellant befriended a 12-year-old girl who had babysitting jobs in the apartment complex in which appellant resided. He frequently offered her cigarettes and beer. On one occasion, after she drank two to three beers, he followed her into the bathroom and locked the door. He unzipped her pants and touched her vagina.
In a September 1991 plea bargain, appellant pleaded guilty to second-degree criminal sexual conduct for the assault against the 12-year-old. Appellant was released from this sentence in June 1996.
In 1996, appellant violated conditions of his supervised release by failing to file sex offender change of address and by issuing a dishonored check. On July 2, 1997, a jury convicted appellant of motor vehicle theft, unauthorized use of a motor vehicle, and careless driving. He was sentenced with a supervised release date of July 23, 1998. He entered a chemical dependency program in March 1998, but was terminated from the program the next day.
A petition to commit appellant as an SDP was filed on July 8, 1998, shortly before his release date. At the hearing, Dr. Roger Sweet, the court-appointed examiner, testified that he had diagnosed appellant with antisocial-personality disorder with narcissistic features. He recommended commitment as an SDP, testifying that appellant was highly likely to commit harmful sexual conduct in the future. Dr. James H. Gilbertson, the second court-appointed examiner, also diagnosed appellant with an antisocial-personality disorder with narcissistic features. He believed that appellant was more likely than not to re-offend sexually. The trial court committed appellant as an SDP. After a review hearing, the court made appellant’s commitment indeterminate.
Appellant appealed, claiming evidentiary errors, insufficient evidence, and challenging the constitutionality of the SDP act. On July 6, 1999, this court affirmed the trial court findings, but remanded for further findings on whether appellant lacked adequate control over his sexual impulses, as required under Linehan IV. On remand, the trial court held a hearing, took additional testimony from the two court-appointed examiners, made additional factual findings, and concluded that appellant lacked adequate control over his harmful sexual impulses.
D E C I S I O N
Whether the record supports the standards for commitment with clear and convincing evidence is a question of law, which this court reviews de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I). Findings of fact will not be reversed unless clearly erroneous. Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).
The statute defines “sexually dangerous person” as follows:
(a) A “sexually dangerous person” means a person who:
(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;
(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.
(b) For the purposes of this provision, it is not necessary to prove that the person has an inability to control the person’s sexual impulses.
Minn. Stat. § 253B.02, subd. 18c (1998). In Linehan IV, the Minnesota Supreme Court clarified that this definition requires that the present disorder
does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.
594 N.W.2d at 876 (Minn. 1999).
Here, the law of the case is that the first two elements of the SDP definition have been met. In re Banks, No. C5-99-217 (Minn. App. July 6, 1999). Even if that were not the law of the case, there is ample evidence to support the findings that the first two elements have been met: (1) the course of harmful sexual conduct is supported by appellant’s eight-year-long sexual abuse of his sister and by the incident involving the 12-year-old girl; and (2) with respect to the personality disorder, both court-appointed examiners testified at the hearing that appellant has an antisocial-personality disorder.
Thus, the narrow issue is whether there is clear and convincing evidence to support the finding that appellant lacks “adequate control” over his sexual impulses. Here, we hold that the record contains sufficiently clear and convincing evidence to support such a finding.
First, the expert testimony supports such a finding. The court-appointed examiner, Dr. Sweet, testified that appellant has an antisocial-personality disorder with narcissistic features. The antisocial-personality disorder diminishes ability to control his behavior and makes it highly likely that appellant will re-offend sexually. Dr. Sweet also testified, and the trial court found, that due to appellant’s personality disorder, if he is presented with something he wants, he is going to take it, whether it is a car or committing a sexual offense. The other court-appointed examiner, Dr. Gilbertson, noted that insight is not well represented in appellant, and insight is an important part of control. Further, Dr. Gilbertson testified that appellant lacks discomfort over behavior based upon empathy and care for others, which goes to emotional control. Although Dr. Gilbertson disagreed that appellant is highly likely to re-offend sexually, this conflict in expert testimony is a fact issue for the trial court. See In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984) (conflicting testimony as to existence of a psychopathic personality is fact question for the trial court), review denied (Minn. Sept. 12, 1984).
Second, appellant remains an untreated sex offender. Although he has been offered repeated opportunities to participate in sex-offender treatment, he has either flatly refused or attempted to place his own unreasonable demands on the treatment programs. Perhaps more importantly, he continues to deny his prior sexual offense involving his sister even occurred. And although he admitted that he had sexual contact with the 12-year-old girl--when he was 20 years old--he minimized that offense and excused his behavior on the grounds that she led him on. See, e.g., In re Irwin, 529 N.W.2d 366, 375 (Minn. App. 1995) (expert testimony showed that important factor in determining whether one has control is whether one admits to a problem--if one knows he is flawed, he may be more vigilant to seek assistance), review denied (Minn. May 16, 1995).
Finally, as the trial court has found, appellant has displayed continued aggressiveness toward the hospital staff. Appellant has engaged in numerous rule infractions. His belligerence is illustrated by the fact that he has told staff that their policies were “bull shit” and to “[s]tick your policies up your ass.” Although this aggressiveness is not of the same order as rape, when an individual is in custody, one must look for more subtle signs of continued aggression. Linehan IV, 594 N.W.2d at 877.
The evidence is sufficient to support the trial court’s conclusion that appellant lacks adequate control over his harmful sexual impulses.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 In re Banks, No. C5-99-217 (Minn. App. July 6, 1999).
In Linehan IV, the Minnesota Supreme Court reasoned that subdivision 18c(b) of the SDP definition (i.e., “it is not necessary to prove that the person has an inability to control the person’s sexual impulses”) should be read narrowly to mean that the state need not prove the person has an “utter lack of power” to control sexual impulses (the “utter inability” Pearsonstandard), but only need prove that the present mental disorder does not allow the person “to adequately control their sexual impulses.” Linehan IV, 594 N.W.2d at 875-76 (emphasis added).
The purpose of the act is 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.’” Id. at 875 (quotation omitted).