This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
In the Matter of:
Hennepin County District Court
File No. PX9960078
Michael J. Biglow, 839 Midland Bank Building, 401 Second Avenue South, Minneapolis, MN 55401 (for appellant)
Amy Klobuchar, Hennepin County Attorney, Coleen Brady, Carolyn Peterson, Assistant County Attorneys, A-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.
Appellant Crawford Wilson challenges his commitment as a sexual psychopathic personality (SPP) and as a sexually dangerous person (SDP), contending that (1) the evidence is not clear and convincing that he meets the criteria for either commitment or to support the district court’s finding that the least restrictive alternative for Wilson is the Minnesota Sex Offender Program; and (2) his commitment is unconstitutional. We affirm.
Wilson has an extensive criminal background. He acknowledges his record as a juvenile includes car theft, petty theft, and fighting. Wilson’s criminal record as an adult includes felony convictions and imprisonment for auto theft, grand theft, two unauthorized uses of a weapon, two burglaries, armed robbery, and possession of burglary tools.
Wilson’s documented sex-offense history began in 1962 with an attempted rape. Part of his history includes sexually molesting a step-sister when she was 8 years old and he was 17 or 18. Before moving to Minnesota in 1981, Wilson lived in Illinois. Wilson has acknowledged that he committed five or six rapes during the time he lived in Illinois. Wilson was paroled from an Illinois state prison on October 2, 1981. He began raping women in Minnesota in January 1982, while still on probation.
Wilson’s current incarceration is the result of a series of rapes of 11 women during a six-month period in 1982. He preyed on unknown women of widely varying ages. In each instance, Wilson used a knife to subdue and intimidate his victim, who was accosted either in her own apartment or apartment building. Generally, Wilson was intoxicated when he committed these crimes. He would blindfold, gag, and tie up the victim before raping her. Some assaults involved multiple acts of penetration. In some instances, Wilson cut off a victim’s clothing with the knife while she was bound, and he physically struck at least two of his victims. He routinely remained in the victim’s apartment for a period of hours after the rape, rummaging through the victim’s belongings and then stealing cash and personal items.
In 1982, Wilson pleaded guilty to five counts of criminal sexual conduct in the first degree and was sentenced to 25 years in prison. During his incarceration, Wilson received four discipline reports relating to sexual behavior. In December 1983, he exposed his penis to a female visitor. In October 1986, he was found to be involved in anal intercourse with a fellow inmate. In August 1991, Wilson attempted to hug and kiss a female corrections officer, telling her he fantasized about having sex with her. Finally, in June 1997, Wilson was seen standing naked in front of his window, masturbating in full view of a female officer.
In addition to the discipline reports involving sexual behavior, Wilson accumulated numerous other infractions during his incarceration, including verbal abuse; disobeying a direct order; disorderly conduct; possession of contraband, drug paraphernalia, and alcohol; use of intoxicants; unauthorized possession of property; conspiracy to smuggle; and smuggling.
Wilson was admitted to the Intensive Treatment Program for Sexual Aggressives (ITPSA) on October 14, 1982. Psychological testing suggested a diagnosis of antisocial personality. Dr. Erickson, the consulting psychiatrist, noted that Wilson had little ability to inhibit his behavior in the community and a high tolerance for punishment. The ultimate conclusion was that the staff was not confident that a two- or three-year treatment program would result in sufficient control to permit Wilson’s release back into the community. As a result, he was not accepted into the ITPSA program.
While incarcerated at MCF-Lino Lakes, Wilson completed a psychological evaluation as part of the assessment phase for entry into the Sex Offender Treatment Program at Lino Lakes. Results from the MMPI-2 and MCMI-III were consistent with the criteria associated with diagnoses of an antisocial personality disorder and alcohol dependence. Wilson’s Megargee Classification on the MMPI-2 placed him in the category described as “the most difficult criminal offenders * * * distrustful, cold, irresponsible and unstable.”
Wilson was scheduled for release on May 22, 1999. Prior to the scheduled release date, the state petitioned to commit Wilson as a sexual psychopathic personality (SPP) and sexually dangerous person (SDP) under Minn. Stat. § 253B.02, subds. 18b, 18c (1998). A hearing was held before the district court on May 24 and 25, 1999, pursuant to the petition. Roger C. Sweet, Ph.D., the court-appointed examiner, provided a report and testified. Scott Alan Johnson, civil-commitment review coordinator, also testified.
Dr. Sweet concluded, based on his examination and testing of Wilson, that Wilson does not meet the stringent criteria necessary for designation as a SPP. But Sweet stated that Wilson’s score of 27 on the Hare Psychopathy Checklist-Revised (PCL-R) is above the cut-off score (25) used by many researchers to classify an individual as a psychopath. Sweet also agreed that Wilson’s MMPI-2 and MCMI-III test results are consistent with the PCL-R, indicating a propensity for violent behavior. Dr. Sweet characterized his opinion on the SPP determination as a “close call.”
With respect to the issue of commitment as a SDP, Dr. Sweet found that Wilson meets the requisite criteria and recommended commitment. Dr. Sweet opined that Wilson exhibits a moderately deviant pattern, more characteristic of a “power assertive” rapist who regards rape as an expression of his virility and/or an “anger retaliatory” rapist, who rapes as an expression of hostility and rage. Johnson differed with Dr. Sweet’s ultimate conclusion. In his judgment, Wilson’s tendency to be impulsive results from an utter lack of control.
The district court found the evidence clear and convincing that Wilson meets the required statutory criteria for designation as a SPP and a SDP. In an order filed August 30, 1999, Wilson was committed as a SPP and a SDP to the head of the Minnesota Sex Offender Program for evaluation and a final determination pursuant to Minn. Stat. § 253B.18, subd. 2 (1998). The evaluation included a psychiatric assessment by B. Jones, M.D., a psychological assessment by Anita Schlank, Ph.D., L.P., and social history by Pamela R. Bidelman, M.S.W., L.I.C.S.W. The evaluation team concluded that there had been no changes in Wilson’s condition since the district court’s findings and commitment of Wilson as a SPP and a SDP. The team concluded that Wilson is presently in a category of offenders who present a high risk for reoffense. Sex-offender treatment was recommended.
Wilson filed an appeal from the initial order on October 26, 1999. Because Wilson failed to file a brief or a motion for an extension, as required, this court dismissed the appeal in an order dated January 5, 2000.
Following a hearing on January 13, 2000, the district court found that Wilson continues to meet the criteria for commitment as a SPP and a SDP and committed him indeterminately to the Minnesota Sex Offender Program in an order dated January 17, 2000. This appeal of the January 17, 2000 order follows.
D E C I S I O N
Wilson contends that there is insufficient evidence to support findings that he is a SPP or a SDP. To commit a person as a SPP or a SDP, the petitioner must prove the requirements for commitment by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (1998); see Minn. Stat. § 253B.185, subd. 1 (1998) (providing that the provisions of section 253B.18 (1998) apply to SPP and SDP commitments).
Where there is conflicting evidence, the resolution is a fact question to be determined by the district court. In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). An appellate court will uphold the district court’s findings if they are not clearly erroneous. See, e.g., In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). This court will review de novo whether there is clear and convincing evidence to support the district court’s conclusions that the standards for commitment are met. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).
I. Sexual psychopathic personality
Commitment as a SPP requires proof that a person: (1) engaged in a habitual course of misconduct in sexual matters; (2) has an utter lack of power to control the person’s sexual impulses; and (3) is therefore dangerous to others. Minn. Stat. § 253B.02, subd. 18b (1998).
Wilson challenges his designation as a SPP through the use of the April 29, 1999 report of Dr. Sweet, which found that Wilson falls short of an utter lack of control of his sexual impulses. Dr. Sweet concluded that Wilson does not meet the criteria necessary for designation as a SPP, while acknowledging “this is a close call.”
At the hearing, Johnson testified that Wilson meets the statutory definition of a SPP. Johnson testified as to why his conclusions regarding SPP are different from Dr. Sweet’s. Framing it as a difference in professional judgment, Johnson testified that he believes Wilson to be more impulsive than does Dr. Sweet. The district court had to resolve this conflict in the experts’ testimony in the context of the record as a whole. This court must defer to the district court’s factual determinations unless they are clearly erroneous. In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).
In determining whether a person has an utter lack of power to control their sexual impulses, a court considers the following factors:
the nature and frequency of 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).
The district court specifically applied the Blodgett factors to the record in reaching its conclusion that Wilson has an utter lack of power to control his sexual impulses and, as a result, is dangerous to other persons:
Respondent’s most recent episode of raping consisted of violent, forced penetrations of eleven known victims in a short period of time; he displayed a weapon to overpower his victims and in a show of force used that knife to cut underwear and clothing off their bodies before raping several victims; the victims were all strangers to the Respondent; Respondent’s attitude about his victims and his own mood varies from depending on the situation he is in while reflecting on these topics; Respondent’s personal history of criminal behavior and inability to accept society’s limits is entrenched beginning when he was eight years old and his sexual misconduct starting when he was 17 or 18 and including offenses he committed in the community as well as in prison; the weight of test results and evaluation suggest that Respondent is most fairly placed in a group of individuals highly likely to engage in violent sexual acts.
The court also applied the criteria set out in In re Pirkl, 531 N.W.2d 902 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995), concluding that Wilson
has an utter lack of power to control his sexual impulses because: he has not completed a sex offender treatment program which would have addressed his sexual aggression and the chemical dependency progress Respondent may have made is largely untested.
Utter lack of control may be inferred from a person’s lack of insight regarding his own sexual misconduct, as has been demonstrated by Wilson. See In re Irwin, 529 N.W.2d 366, 375 (Minn. App. 1995), review denied (Minn. May 16, 1995). While Wilson has recently seemed more amenable to a treatment program, the record also indicates that Wilson has in the past refused treatment, sometimes disputing his need for it.
The district court’s extensive findings, taken together with the four incidents of sexual misconduct while incarcerated, support the court’s decision. The evidence clearly and convincingly supports the district court’s conclusion that Wilson has an utter lack of power to control his sexual impulses and should be committed as a SPP.
II. Sexually dangerous person
Commitment as a SDP requires proof that a person: (1) engaged in a course of harmful sexual conduct; (2) manifests a sexual, personality, or other mental disorder; and (3) is therefore likely to engage in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18c (1998). Wilson challenges only the third element, by arguing that it has not been established by clear and convincing evidence. The district court used the appropriate criteria set out in Linehan I to evaluate Wilson’s likelihood of future dangerous behavior:
(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.
Linehan I, 518 N.W.2d at 614. In reviewing a commitment order, this court will look to see whether these factors have been considered. Irwin, 529 N.W.2d at 375.
The district court, in considering the Linehan I factors, concluded, in part, that Wilson
is an untreated, violent sex offender; he is in a group of offenders whom research studies predict are likely to commit future violent acts although this may be somewhat mitigated by his advancing age; he habitually used force and the immediate threat of force to commit his past rapes; there is no proof that [Wilson] has developed a relapse prevention plan that would help him now to deal with identified stressors in his environment that have been triggers for his sexual aggression in the past; and, [Wilson] has led a life dedicated to antisocial behavior including a twenty year history of raping behavior and there is no credible proof that he has developed any understanding of the practical day to day things that he has to do to avoid this conduct in the future, except that he does understand that his use of alcohol is an exacerbating factor in his sexual offense history.
An additional fact in support of the district court’s conclusion is that Wilson was disciplined for sexual misconduct on four separate occasions while in prison. But even if Wilson had no record of discipline while incarcerated, good behavior in an artificial environment is not determinative of dangerousness. See Pirkl, 531 N.W.2d at 909 (rejecting appellant’s arguments as to the lack of recent sexual assaults where he had been in prison for the last nine years and had no opportunity to commit sexual assaults); In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985). The conclusion that Wilson is a SDP is also supported by both experts, Sweet and Johnson.
Dr. Sweet concluded that Wilson isa sexually dangerous person (SDP), meeting all three elements of Minn. Stat. § 253B.02, subd. 18c, based on the following: (1) Wilson is a career criminal with a history replete with violent sexual and nonsexual criminal behavior; (2) his PCL‑R degree of psychopathy approaches the cutoff point for indication of psychopathy; (3) his MMPI-2 and MCMI-III results indicate a propensity for violent behavior; (4) he is chemically dependent and use of mood-altering substances contributes to his impulsive, unreflective behavior; (5) he has not yet successfully completed a chemical dependency or sexual offender treatment program; and (6) the combination of psychopathy and a deviant sexual arousal pattern is associated with a greater sexual offense recidivism rate. Johnson reached the same conclusion and provided the district court with similar bases to support his opinion. The district court’s determinations with regard to finding that Wilson is a SDP is consistent with the experts’ opinions and well-supported by the record.
III. Least restrictive alternative
Wilson contends that he has been denied the right to the least restrictive treatment alternative. Our supreme court recently determined that there is no statutory requirement that a person committed as a SPP or a SDP must be committed to the least restrictive treatment alternative. In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998) (concluding that “there is no requirement for commitment to the least restrictive alternative for persons determined to be sexually psychopathic personalities or sexually dangerous persons”). The legislature has since amended the relevant statute to give the patient the opportunity to prove that a less restrictive treatment program is available. See 1999 Minn. Laws ch. 118, § 3. The burden is, however, on the patient:
If the court finds by clear and convincing evidence that the proposed patient is mentally ill and dangerous to the public, it shall commit the person to a secure treatment facility or to a treatment facility willing to accept the patient under commitment. The court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient's treatment needs and the requirements of public safety.
Minn. Stat. § 253B.18, subd. 1(a) (Supp. 1999). Therefore, under the applicable law, the district court was not required to commit Wilson to the least restrictive alternative. Wilson did not offer any evidence regarding suitable alternatives other than calling Cheri Lynn Kuesel, an agent from the Intensive Supervised Release Program. Kuesel testified that inpatient sex-offender programming would not be available to Wilson in the community and that she was not aware of any alternatives in the area or any programming in nearby states. She specifically testified that Alpha Human Services would not accept level three or committed sex offenders. Dr. Sweet added further credence to Kuesel’s opinion when he testified that there were no options other than the Sex Offender Treatment Program. Wilson, therefore, did not meet his statutory burden.
IV. Constitutional challenges
Wilson raises several constitutional challenges to his commitment that have recently been addressed by the supreme court and this court. Wilson first contends that the SDP Act is in conflict with the United States Supreme Court holding in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997). In Hendricks, the Supreme Court upheld the constitutionality of a sexual-predator commitment law. Id. at 371, 177 S. Ct. at 2086.
Specifically, Wilson asserts that the “inability to control is the well-established standard for civil commitment.” Wilson argues that the Minnesota SDP Act “specifically eliminates the need for the state to prove such an inability” and is, therefore, a violation of substantive due process. Wilson is correct in that Minn. Stat. § 253B.02, subd. 18c, does not contain an “inability to control” factor. This raises the question of whether the SDP Act was outside the embrace of the Hendricks court’s reasoning. But this apparent conflict between the SDP Act and Hendricks was very recently settled. The Minnesota Supreme Court upheld the constitutionality of the SDP law as clarified under Hendricks. In re Linehan, 594 N.W.2d 867 (Minn. 1999), cert. denied, 120 S. Ct. 587 (Dec. 6, 1999) (Linehan IV). The supreme court imposed an additional requirement for the SDP commitment that the individual exhibit a lack of “adequate” control. Id. at 876.
We now clarify that the SDP Act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction 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.
Id. (emphasis added). The supreme court concluded that as long as “some degree of volitional impairment” is required for commitment, substantive due process is satisfied. Id. at 873. The district court clearly found Wilson to be volitionally impaired.
Wilson also asserts an equal-protection argument, claiming that Minnesota’s commitment laws conflict with the limits on the use of civil commitment as discussed in Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780 (1992). Foucha stands for the proposition that freedom from restraint is “at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Id. at 80, 112 S. Ct. at 1785 (citation omitted). This liberty interest is, however, not absolute, and involuntary commitment of those who are mentally ill or have a mental abnormality and who are dangerous to the public is constitutional. Hendricks, 521 U.S. at 356-57, 117 S. Ct. at 2079-80. Involuntary-commitment statutes have consistently been upheld “provided the confinement takes place pursuant to proper procedures and evidentiary standards.” Id. at 357, 117 S. Ct. at 2080 (citations omitted). There is nothing in this record to suggest that proper procedures and evidentiary standards were not used.
Next, Wilson challenges his commitment on procedural due-process grounds. Wilson argues that whether he meets the standards for commitment must be proved beyond a reasonable doubt, as required by the Kansas statute. But the United States Supreme Court has declined to impose a reasonable-doubt standard on civil commitments. Addington v. Texas, 441 U.S. 418, 431, 99 S. Ct. 1804, 1812 (1979). Instead, it determined a clear-and-convincing standard was sufficient. Id.
Wilson argues that, because that Kansas law requires a jury verdict, the Minnesota law is unconstitutional because it does not. See Hendricks, 521 U.S. at 354, 117 S. Ct. at 2078. Hendricks concluded that the numerous protections did not convert the proceedings into criminal ones, but demonstrated that the legislature authorized confinement of a narrow class of particularly dangerous individuals only after meeting the strictest procedural standards. Id. at 364, 117 S. Ct. at 2083. Furthermore, this court has acknowledged that the Minnesota Supreme Court has rejected the argument that a jury trial is required in a psychopathic personality commitment procedure. Pearson, 205 Minn. at 557, 287 N.W. at 303.
Wilson next points out that Kansas law provides for commitment for only one year and requires periodic judicial reviews to determine whether the initial commitment standards continued to be met. See Hendricks, 521 U.S. at 353, 117 S. Ct. at 2078. This court has rejected the argument that the Minnesota statute is unconstitutional because it lacks this requirement. Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999), review denied (Minn. July 28, 1999). Further, the supreme court has spoken to this issue:
So long as the statutory discharge criteria are applied in such a way that the person subject to commitment as a psychopathic personality is confined for only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public, continued commitment is justified because the confinement bears a reasonable relation to the original reason for commitment.
Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995).
Finally, Wilson challenges his commitment as “punitive” rather than remedial in nature. This argument must also fail.
The Minnesota SDP Act is similar to the Kansas Act, using prior criminal acts for evidentiary purposes only, and therefore does not involve retribution.
Linehan IV, 594 N.W.2d at 871-72 (emphasis added); Call, 535 N.W.2d at 319-20 (commitment is remedial and not for punitive purposes). “The Supreme Court’s reasoning [in Hendricks] supports our earlier ruling that the SDP Act does not contravene the Double Jeopardy and Ex Post Facto Clauses.” Linehan IV, 594 N.W.2d at 871.
 Appellant also cites to State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939), aff’d, 309 U.S. 270 (1940), for additional support of his argument emphasizing the long-standing “inability-to-control” standard.
 The SDP Act states “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(b).
 [T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.
Hendricks, 521 U.S. at 356-57, 117 S. Ct. at 2079 (quoting Jacobson v. Massachusetts, 197 U.S. 11, 26, 25 S. Ct. 358, 361 (1905)).