This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In the Matter of:

Mark Prather.



Filed November 21, 2000


Toussaint, Chief Judge

Concurring specially

Randall, Judge


Hennepin County District Court

 File No. P69660208


Brian C. Southwell, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415  (for appellant)


Amy Klobuchar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)



            Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

Mark Prather appeals his commitment as a sexually dangerous person (SDP) arguing: (1) the trial court erred in not applying the “difficult, if not impossible” standard according to Hendricks and Linehan IV; (2) due process allows him to present new evidence on the issue of “adequate control;” and (3) he is allowed a new trial on the issue of “highly likely to re-offend.”  Because the trial court applied the correct standard from Linehan IV, we affirm.

            A petition was filed to commit Prather as a sexual psychopathic personality (SPP) and as a sexually dangerous person (SDP).  Based on two examiners’ reports, the petition for SPP commitment was voluntarily withdrawn.  At a September 4, 1996 trial, the only issue presented was whether Prather was subject to commitment as an SDP. The trial court found that Prather met the statutory criteria for commitment as an SDP.

            After another petition, on March 5, 1998, the trial court found that Prather continued to meet the criteria for commitment as an SDP and was committed for an indeterminate period.  Prather appealed the indeterminate commitment.  This court affirmed Prather’s commitment and did not address the constitutionality of the SDP statute stating that it “will continue to treat the statute as constitutional pending final decision in Linehan.”  In re Prather, No. C8-98-847 (Minn. App. Dec. 22, 1998).

            Prather petitioned the Minnesota Supreme Court for review of the court of appeals decision.  That petition was granted pending the remand decision in Linehan IV.  After the release of Linehan IV, in which it affirmed the constitutionality of the SDP law, the supreme court remanded Prather’s appeal for determination by this court in light of Linehan IV.  In turn, this court remanded to the trial court for a determination of whether Prather should be committed as an SDP under the Linehan IV standard. 

            On September 23, 1999, Prather moved the trial court for a new trial and a hearing was held on January 6, 2000.  On April 12, 2000, the trial court denied Prather a new trial and amended the orders for the initial and indeterminate commitments.  The trial court found Prather satisfied the SDP statute requirements as interpreted in Linehan IV.  Prather appeals.  



            To commit a person as an SDP, the petitioner must prove that the requirements for commitment were met by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1 (1998); see Minn. Stat. § 253B.185, subd. 1 (1998) (providing generally that chapter 253B.18 applies to SPP and SDP commitments).  Where there is conflicting evidence, the trial court must resolve the factual issues.  In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984).  An appellate court will not reverse the trial court’s findings of fact unless they are clearly erroneous.  In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).

            An SDP commitment requires a showing that the person (1) engaged in a course of harmful sexual conduct; (2) manifested a sexual personality, or other mental disorder; and (3) as a result is likely to engage in acts of harmful sexual conduct.  Minn. Stat. § 253B.02, subd. 18c(a) (1998).  The SDP law specifically provides that an inability to control sexual impulses need not be proven.  Id., subd. 18c(b). 

 The SDP law was challenged as unconstitutional, but the law was upheld.  In re Linehan, 557 N.W.2d 171, 175 (Minn. 1996).  The United States Supreme Court granted certiorari, vacated Linehan, and mandated the Minnesota Supreme Court to address whether, under Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997), the SDP law was unconstitutional.  Linehan v. Minnesota, 522 U.S. 1011, 118 S. St. 596 (1997).

            In doing so, the Minnesota Supreme Court first noted that in Hendricks, the Supreme Court affirmed the civil commitment for “people who are unable to control their behavior and who thereby pose a danger to the public health and safety.”  Hendricks, 521 U.S. at 357, 117 S. Ct. at 2079.  It held that Hendricks’s “lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.  Id. at 360, 117 S. Ct. at 2081, quoted in Linehan, 594 N.W.2d at 873.  The Minnesota Supreme Court interpreted this to require that “some lack of volitional control is necessary to narrow the scope of civil commitment statutes.”  Linehan, 594 N.W.2d at 873 (footnote omitted).

            The Minnesota Supreme Court determined that: (1) under Hendricks, section 18c(b) must be read very narrowly, to mean only that the state does not need to prove the utter inability to control which is required for an SPP commitment.  Linehan, 594 N.W.2d at 875; (2) that civil commitment as an SDP is allowed for a person who has engaged in prior harmful sexual behavior and “whose present disorder or dysfunction does not allow them to adequately control their sexual impulses.”  Id. at 876 (emphasis added); and (3) this lack of adequate control makes it highly likely a person will commit future harmful sexual acts.  Id.            

            Prather argues that this court and the district court used an incorrect standard in citing the “lack of adequate control” standard instead of the “difficult if not impossible” standard.  However, Linehan IV uses the term “adequately.”  Id.  The issue is better examined by addressing whether the trial court properly applied Linehan IV as clarified.

In the initial commitment hearings, the trial court considered a petition for commitment as an SDP.  Expert witnesses provided extensive testimony stating that Prather has difficulty making good decisions about his boundaries, has “a long history of impulsive behavior,” his level of impulsiveness will increase if he is not on his medication, and uses poor judgment in his sexual behavior.  Based on that testimony, the trial court: (1) found that Prather’s “Bipolar Affective disorder clouds his judgment and his ability to control his behavior;” and (2) committed Prather as an SDP.  In the indeterminate commitment hearing, the trial court, after considering all of the experts’ opinions, held that Prather “continues to meet the criteria for commitment as a Sexually Dangerous Person.”

            On remand, the trial court painstakingly reviewed the findings and testimony from the record to reach its conclusion that “the same factors, which supported a finding that, Respondent lacks adequate control over his initial commitment hearing continue to exist.”  The record included expert testimony stating that: (1) Prather’s bipolar disorder and pedophilia cloud his ability to control his sexual behavior and his judgment, and increase his likelihood to sexually re-offend; and (2) he has a long history of impulsive and noncompliant behavior dating back to his early childhood. The trial court was well within its discretion in addressing the lack of control issue on the record, which was thoroughly addressed by expert witnesses.  The record supports the trial court’s determination that Prather continues to meet the standards for SDP commitment as clarified in Linehan, 594 N.W.2d at 875-76.


            Prather argues that the trial court violated his due process rights when the trial court did not grant him a new trial after remand and instead relied on the existing record to decide the constitutionality of his commitment under Linehan IV.  The trial court must execute the appellate court’s mandate on remand “strictly according to the terms.”  Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1984) (citation omitted).  The trial court may not “alter, amend, or modify” the mandate it receives.  Id. (citation omitted).  When the appellate court does not provide specific direction as to how to proceed, the trial court “has discretion in handling the course of the cause to proceed in any manner not inconsistent with the remand order.”  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (citation omitted).

            To address the issue of whether the trial court properly decided the issue without additional evidence, this court must first examine the scope of the remand to determine whether the trial court acted within its discretion.  In the remand order, this court stated:

Remand is necessary for the trial court to determine whether Prather should be committed as an SDP under the standard clarified in Linehan [IV].


In re Prather, No. C8-98-847 (Minn. App. July 27, 1999).  Without directing whether the trial court should consider additional evidence, this court “remanded for such further proceedings as the trial court deems appropriate in accordance with this opinion.”  Id.  Thus, whether a new hearing was necessary was within the discretion of the trial court.  Because the experts addressed the issue of control in extensive testimony on the record, the trial court was within its discretion to make the decision on remand without taking additional evidence on the issue of control.


            Prather also contends the trial court erred in failing to reconsider the issue of whether Prather was “highly likely to re-offend.”  See Minn. Stat. §253B.02, subd. 18c(a)(3) (setting out this factor in the SDP definition).  An issue that has already been decided in a first appeal may not be relitigated on remand or in a second appeal.  Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn. 1987).  Here, the supreme court granted review only as to whether the SDP law was unconstitutional because it did not require proof of utter lack of control.  In all other respects, the supreme court denied the petition.  Thus, the only issue remanded was the “lack of control” issue, not whether appellant was highly likely to cause future harm.

            Prather contends he is entitled to retrial on the “highly likely to re-offend” issue because it was affected by the supreme court’s intervening decision in Linehan IV.  He contends that under Linehan IV, there was a causal link between inadequate control and being highly likely to re-offend, which did not exist previously because the issue of control was not relevant to the SDP commitment under the statute.  In Linehan IV, the supreme court did not feel compelled to review the other elements for an SDP commitment, because they had been fully reviewed in Linehan, 557 N.W.2d at 189-91.  Instead, they focused only on whether appellant demonstrated a lack of adequate control over his sexually harmful behavior, based on the trial court’s findings.  Linehan, 594 N.W.2d at 876.  Because the issue of the likelihood of future harm has been reviewed on the previous appeal and not within the scope of the remand, Prather is not entitled to another review of the issue. 


RANDALL, Judge (concurring specially).

            I concur in the result.  See Joelson v. O'Keefe, 594 N.W.2d 905, 913 (Minn. App. 1999) (Randall, J., concurring specially), review denied (Minn. July 28, 1999).