This opinion will be unpublished and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

C2-00-831

 

 

In the Matter of:

Daniel Scott Hommes.

 

 

Filed January 9, 2001

Affirmed

Amundson, Judge

 

Hennepin County District Court

File No. P19960079

 

 

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

 

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

 

            Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

            Appellant challenges his indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP).  Appellant asserts the evidence was insufficient to show that he engaged in a habitual course of sexual misconduct or that he exhibited an utter lack of power to control his sexual impulses, as required for an SPP commitment.  Additionally, appellant argues that the district court failed to apply the proper standard as to the lack of control required for an SDP commitment.  Finally, appellant contends the district court erred when it denied his motions for an independent medical examination of one of his victims under Minn. R. Civ. P. 35, and for the appointment of an expert psychologist to assist in his defense.  We affirm.

FACTS

            Appellant Daniel Scott Hommes admitted sexually abusing his younger sister when she was a child.  As an adult, he engaged in harassing behavior toward prepubescent girls, which resulted in arrests and convictions for various misdemeanors.  In 1988, Hommes pleaded guilty to three counts of criminal sexual conduct in the first degree for sexual acts involving three girls, ages ten to twelve.  As part of the plea agreement, the state dropped three additional counts of soliciting children to engage in sexual conduct involving three other girls.  Hommes’s sentence was stayed on condition he enter treatment, but the stay was revoked after he was terminated from the program.  Several other attempts at treatment ended when he was terminated from other programs.

            In 1999, a petition was filed for Hommes’s commitment as an SPP and SDP.  Examiners at the hearing offered differing opinions as to whether he met the requisite standards for commitment and the district court ordered Hommes’s initial commitment as an SPP and SDP.  The Minnesota Sex Offender Program evaluated Hommes’s condition and submitted a report to the district court.  After the review hearing, the district court committed Hommes as SPP and SDP for an indeterminate period.

D E C I S I O N

            We will not reverse findings by the district court unless clearly erroneous.  In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).  Issues of law will be reviewed de novo.  In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992).

I.

            We first address Hommes’s argument that the evidence was insufficient to demonstrate that he met the standards for commitment as an SPP.  This is a question of law subject to de novo review.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).  An SPP is one who

                        has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.

 

Minn. Stat. § 253B.02, subd. 18b (1998).

            Hommes argues that the district court erred in determining that he met the “habitual course of misconduct in sexual matters” standard for two reasons.  First, Hommes contends that while some of his behavior, such as telephoning or befriending young girls, was inappropriate, it did not rise to the level of “misconduct in sexual matters.”  He argues, therefore, it should not be considered in the determination of whether his misconduct was habitual.  While the telephone calls and “friendships” in themselves may not constitute the requisite sexual misconduct, the incidents are relevant to the habitual nature of the misconduct.  We are not required to permit events to ripen into accomplishment to consider them.  Considered in context, Hommes’s telephone calls and “friendships” with young girls constituted a pattern of grooming these girls for the criminal sexual misconduct he anticipated.  See In re Bieganowski, 520 N.W.2d 525, 530 (Minn. App. 1994) (discussing grooming as part of predatory sexual conduct in discussion of lack of control), review denied (Minn. Oct. 27, 1994).

            Next, Hommes argues that “habitual” misconduct requires a “frequent, periodic manifestation of an uncontrolled appetite,” which he contends he did not exhibit.  See Hereid v. Hereid, 209 Minn. 573, 575, 297 N.W. 97, 98 (1941) (defining habitual alcoholic).  He argues that he engaged in only two incidents, counting the convictions for three counts of criminal sexual conduct against the young girls as one incident and the sexual abuse of his younger sister as another, and he contends that they were separated by considerable time.

            Remoteness in time does not preclude a determination that conduct is habitual.  Linehan, 518 N.W.2d at 610-11, 613 (concluding that criminal history did show habitual course of sexual misconduct even though the last act occurred seventeen years before petition for commitment was filed, during which time he was incarcerated).  The district court’s findings reveal that he engaged in sexual misconduct over a period of years, starting with his young sister, continuing with his grooming of young girls, and escalating until he was able to prevail upon three young girls to engage in sex with him.  His claim that the latter incident be considered a single incident is not credible.  He inveigled each girl more than six months, establishing trust and friendship with them, before finally drawing them into sexual relations with him.  Inviting them to his apartment for conversation, Hommes later showed them pornographic videotapes and persuaded them to perform “strip-tease” dancing.  Escalating his assault, he then engaged in direct sexual contacts, digitally manipulating their vaginas and touching their breasts, along with reciprocal cunnilingus and fellatio, and masturbation.  He paid them money and gave them gifts, encouraging them to return.  During this time, Hommes also attempted to engage three other girls in sexual relationships.  He contacted the first girl by making an obscene phone call to her, after obtaining her name from an envelope in her family’s garbage.  To these girls, he represented that he was 20 years old, imported drugs, had a gun, and was having sex with other girls at his house for money.  After the mother of one of the girls contacted police, Hommes’s misconduct with the first three girls was discovered.  In light of these facts, the district court correctly determined that Hommes engaged in “habitual” sexual misconduct.

            Hommes next challenges whether the evidence showed he exhibited “an utter lack of power to control [his] sexual impulses.”  Minn. Stat. § 253B.02, subd. 18b.  The statute “identifies a volitional dysfunction which grossly impairs judgment and behavior with respect to the sex drive.”  In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994), (identifying factors relevant to the determination of whether someone meets the statute’s definition of an SPP).

            Hommes lists several reasons supporting his claim that he does, in fact, have control over his sexual impulses.  The district court rejected all of these.  He advances the fact that although he had frequent contact with young girls, he did not engage in sexual intercourse, and he did not always engage in sexual behavior.  But the court found that once the opportunity for sexual behavior presented itself, Hommes did not have the ability to control his impulses, noting that even he characterized his interest in young girls as something he cannot control.  The court rejected Homme’s argument that he had control of his sexual impulses because he did not have sexual intercourse with his young girl victims.  The digital penetration of their vaginas was a horrendous bodily invasion.  Further, the court found it unclear whether he ever intended to have sexual intercourse with his victims, in view of his inability to accomplish it with adult women on the two occasions he attempted to do so.

            Hommes also argues he exhibited control because he used “positive reinforcement” rather than force and violence.  But grooming conduct is part of predatory sexual behavior.  Bieganowski, 520 N.W.2d at 530.  Further, the law under which Hommes was convicted does not require any violence or force when there is a significant age difference between the perpetrator and the victim.  See, e.g., Minn. Stat. § 609.342, subd. 1(a) (1986) (defining first-degree criminal sexual conduct to include sexual penetration when complainant is under 13 years and actor more than 36 months older).  Next, Hommes asserts the district court should not have considered his interest in female correctional staff because they were adults and his interest did not have a sexual component.  But this behavior, which the district court characterized as consistent with the “fictional relationships” that Hommes constructed with his young victims ten years earlier, was relevant and therefore properly considered by the court.

            Finally, Hommes cites the fact he has not reoffended against young girls.  But this was during a period in which he was incarcerated, and even then, he continued to display an interest in and sexual attraction to young girls.  The district court correctly rejected Homme’s arguments and applied the proper standards to determine he exhibited an utter lack of power over his sexual impulses.

II.

            Commitment as an SDP requires proof 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) (1)-(3) (1998).  Unlike the SPP law, the SDP law specifically provides that the person’s inability to control sexual impulses need not be proven.  Minn. Stat. § 253B.02, subd. 18c(b) (1998).  The supreme court has recently discussed the degree of lack of control required for constitutional commitment as an SDP.  In re Linehan, 594 N.W.2d 867, 875-76 (Minn. 1999).  Hommes contends that the district court used an incorrect standard in assessing whether he met this standard of lack of control.

            The district court properly applied the standard.  Further, Hommes, meeting the higher standard of an utter lack of control under the SPP statute, clearly meets the lesser standard imposed by the SDP statute.

III.

            Hommes contends that the district court erred in denying his motion for medical examination of one of his victims pursuant to Minn. R. Civ. P. 35.01.  A district court’s refusal to order an independent medical exam will not be reversed absent a showing of an abuse of discretion.  Hill v. Hietala, 268 Minn. 296, 298, 128 N.W.2d 745, 747-48 (1964).

            Minn. R. Civ. P. 35.01 states, in relevant part:

In an action in which the * * * mental condition * * * of a party, or of an agent of a party, or of a person under control of a party, is in controversy, the court * * * may order the party to submit to, or produce such agent or person for a * * * mental * * * examination by a suitably licensed or certified examiner.

 

It requires a party who “voluntarily places in controversy the * * * mental * * * condition of that party, a decedent, or a person under that party’s control,” to waive the medical privilege that would otherwise exclude such evidence.  Minn. R. Civ. P. 35.03.  Even then, there must be a showing that the condition for which the examination is sought is in controversy and there is good cause for ordering the examination.  Minn. R. Civ. P. 35.01; Haynes v. Anderson, 304 Minn. 185, 188, 232 N.W.2d 196, 199 (1975) (stating that “the rule does not require that the party to be examined place his or her condition in controversy, but only that the condition be in controversy”).  Further, Haynes involved a question as to whether a plaintiff who argued that she put only her physical condition in controversy, not her psychological condition, could be subject to a psychological examination; it did not address whether a nonparty could be subject to a rule 35.01 examination.  This court has declined to allow the plaintiff to put the defendant’s medical condition at issue, where the defendant did not assert a counterclaim for injuries, did not waive the privilege in a prior action, and did not voluntarily disclose the information by prior testimony.  Muller v. Rogers, 534 N.W.2d 724, 727 (Minn. App. 1995).

            The rule is very specific about who may be subject to an adverse medical examination.  Only parties, agents of parties, or persons under control of a party are subject to a rule 35.01 examination.  The district court, in denying Homme’s motion for an exam, properly recognized this, and further correctly stated that

[e]ven if the Rule could be construed so as to allow an order for such an examination in this situation, defendant has failed to show that the need for the examination and the anticipated probative value of the information garnered from the examination outweigh the intrusion onto the witness’s privacy.

 

Properly characterized as a non-party to the civil commitment proceeding, the victim is not, and should not, be subject to rule 35.01 examination.  The district court did not abuse its discretion.

            Hommes also challenges the district court’s denial of his motion for the appointment of an expert psychologist to assist him in the defense of his case.[1]  In a criminal case, when a defendant demonstrates his sanity is at issue and provides specific evidence that the expert’s testimony is necessary, the state must provide such an expert.  Ake v. Oklahoma, 470 U.S. 68, 83, 105 S. Ct. 1087, 1096 (1985); State v. Richards, 495 N.W.2d 187, 197-98 (Minn. 1992).  Hommes has not demonstrated that the requirements for a criminal case should apply here.  The district court’s decision to deny Hommes’s request for the appointment of a psychologist was proper.

            Affirmed.



[1] Hommes requested and received an examination by a second court-appointed examiner pursuant to Minn. Stat. § 253B.07, subd. 3 (1998).