This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-2229

 

In the Matter of:
Robert Eugene Holden, Jr.

 

Filed June 19, 2001

Affirmed

Peterson, Judge

Concurring specially, Randall, Judge

 

Stearns County District Court

File No. P9001236

 

Michael J. Michalski, Michalski Law Office, 923 West Saint Germain Street, P.O. Box 393, St. Cloud, MN  56302-0393 (for appellant Robert Eugene Holden, Jr.)

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, Angela M. Helseth, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and

 

Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303-4773 (for respondent State of Minnesota)

 

 

            Considered and decided by Randall, Presiding, Peterson, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order committing him as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), appellant Robert Eugene Holden, Jr., argues that (1) there is insufficient evidence to support his commitment; (2) his due process rights were violated; (3) the expert examinations of him were invalidated by the presence of others during the exams; and (4) he was not committed to the least restrictive alternative.  We affirm.

FACTS

In December 2000, Holden was committed for an indeterminate period as an SDP and an SPP.  Holden has numerous convictions of indecent exposure dating back to November 1968.  He also has numerous convictions for driving while intoxicated and contributing to the delinquency of minors by providing alcohol to children. 

In 1984, all four of Holden’s children reported that he had sexually abused, molested, and raped them for many years.  The abuse began as early as 1975 and included several forms of sexual contact and sexual penetration.  Holden sometimes forced some of the children to watch while he abused their siblings.  The abuse occurred while the children were as young as five years old and continued until they were teenagers.  In July 1984, Holden pleaded guilty to one count of first-degree intrafamilial sexual abuse for the abuse of his children and was sentenced to prison for 54 months. 

In 1997, Holden pleaded guilty to attempted first-degree criminal sexual conduct and attempted third-degree criminal sexual conduct for abusing two boys under age 16.  He was sentenced to concurrent 53-month and 36-month prison terms.

Holden has participated in both inpatient and outpatient chemical dependency programs five times since 1978.  He received sex-offender treatment twice while in prison and performed poorly both times. 

In March 2000, a little more than two months before Holden was scheduled to be released from the Minnesota Correctional Facility at Lino Lakes, Stearns County petitioned to have him committed as an SPP and an SDP.  The district court appointed Dr. Paul M. Reitman to examine Holden.  Holden requested that the court appoint Dr. Michael Miner as a second examiner, but the court refused to appoint Miner because his fees were higher than the court would allow.  Holden then hired Miner as a private expert witness.  The state hired Dr. Harry Hoberman as its expert witness.

All three experts testified extensively at trial.  Reitman and Hoberman testified that Holden met the criteria for commitment as an SPP and an SDP.  Miner testified that Holden does not have a sexual psychopathic personality and is not a sexually dangerous person.       

D E C I S I O N

I.

            Holden argues that the petitioner did not meet its burden of proving that he has a sexual psychopathic personality because Reitman made the following statement in his deposition just two or three days before trial:

Well, he may have some elements of depression, * * *, he may have some elements of anxiety, but I would not describe him as a person that suffers from a mental illness, for example, that would need civil commitment to a hospital, to an inpatient psychiatric hospital.

 

            Citing portions of Minn. Stat. § 253B.18 (2000), which sets forth the procedures for committing a person as mentally ill and dangerous to the public, Holden appears to be arguing that he could not be committed as an SPP because Reitman testified that he is not mentally ill and does not need to be in an inpatient psychiatric hospital.  This argument overstates the role that Minn. Stat. § 253B.18 plays in an SPP commitment proceeding.

            Minn. Stat. § 253B.185, subd. 1 (2000), provides:

Upon the filing of a petition alleging that a proposed patient is a sexually dangerous person or is a person with a sexual psychopathic personality, the court shall hear the petition as provided in section 253B.18.

 

This provision requires only that the procedures in Minn. Stat. § 253B.18 for committing a person as mentally ill and dangerous shall be used in proceedings to commit a person as an SDP or an SPP.  It does not mean that the statutory criteria for committing a person as mentally ill and dangerous to the public must be met to commit a person as an SDP or an SPP.

            The legislature has separately defined “person mentally ill and dangerous to the public,” “sexual psychopathic personality,” and “sexually dangerous person.”  Minn. Stat. § 253B.02, subds. 17, 18b-c (2000).  These definitions establish the criteria that must be proved before a person may be committed for any of the three conditions.  Unlike the criteria for commitment as a person mentally ill and dangerous to the public, the criteria for commitment as an SPP or an SDP do not include mental illness.  Id.  Under Holden’s argument, mental illness would be added to the criteria that must be proved for commitment as an SPP or an SDP because the legislature chose to use the same procedures for commitments for all three conditions.

II.

            Holden argues that Stearns County did not meet its burden of proving clearly and convincingly that he should be committed as an SPP because Hoberman’s testimony, upon which the district court relied, was inconsistent.  Holden argues that Hoberman claimed that in conducting his psychological evaluation, he reviewed a report prepared by Reitman, but that Hoberman also claimed that he was never given Reitman’s report.

            Our review of the transcript of Hoberman’s trial testimony persuades us that Hoberman’s testimony was not inconsistent with respect to Reitman’s report.  Hoberman testified that he “was provided with a report by Dr. Reitman.”  Soon after this testimony, Holden’s attorney asked Hoberman if he had read page two of Reitman’s examination of Holden.  Hoberman answered that he had read through Reitman’s report.  Respondent’s counsel then interrupted and clarified that Holden’s counsel was looking at the transcript of Reitman’s examination of Holden and not at Reitman’s report.  Holden’s counsel then acknowledged that he was looking at the examination rather than the report.  Hoberman then indicated that that was the first time he had seen the transcript.  Hoberman did not testify that he was never given Reitman’s report.

III.

            Holden argues that the district court could not rely on Hoberman’s testimony because Hoberman did not actually meet with Holden before preparing his evaluation report and testifying, and he did not review the transcript of Reitman’s interview with Holden.  Holden argues that Hoberman testified that the transcript would have been an important document to review and that Hoberman drew some inaccurate conclusions because the transcript was not available to him. 

Holden contends that one of Hoberman’s inaccurate conclusions, which Hoberman stated during his trial testimony, was that Holden failed to disclose that he had been held back or flunked a grade in school.  Holden contends that this inaccurate conclusion was caused by Hoberman’s failure to read the transcript of the Reitman interview, in which Holden openly discussed the fact that he flunked a grade in school.

            Our review of the transcript of Hoberman’s trial testimony again reveals that Holden’s argument is based on a mischaracterization of the record.  During cross- examination, Holden’s attorney asked Hoberman,

Would you agree with me that the transcript of [Reitman’s] interview of Mr. Holden is a critical document if you were going to evaluate a subject like Mr. Holden?

 

            Hoberman responded,

No.  I mean, it’s a source of information, but actually, Counselor, you just proved the point that I made, which is that yesterday he testified he only failed the 8th grade.  Here, apparently he told Dr. Reitman, and again that’s the first time I’ve seen that transcript, that he failed the 7th and 8th grade.  He was specifically asked if he failed two grades yesterday, as I recall, and he said, no, only one.  So whether you want to call it memory problems or deception, the point is that he tells different stories about his past at different times.

 

            Holden has not demonstrated that there was any reason why the district court could not rely on Hoberman’s testimony.

IV.

            Holden argues that he demonstrated that he does not have a sexual psychopathic personality and he is not a sexually dangerous person because Miner testified to that effect.  He contends that Miner used a variety of methods and assessment tools to reach his opinion and did not rely on a single test or rating scale.

To commit a person as an SDP or an SPP, the petitioner must prove the requirements for commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1; see Minn. Stat. § 253B.185, subd. 1 (provisions of section 253B.18 apply to SPP and SDP commitments).  Where there is conflicting evidence about the existence of a psychopathic personality, the question is one of fact 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).  The district court’s findings of fact will not be reversed unless clearly erroneous.  In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).

A.         Commitment as SDP

The SDP statute requires that the person being committed manifest “a sexual, personality, or other mental disorder or dysfunction” and “as a result, is likely to engage in acts of harmful sexual conduct.”  Minn. Stat. § 253B.02, subd. 18c (a) (2)-(3).  Both Reitman and Hoberman diagnosed Holden with sexual and personality disorders, including pedophilia, exhibitionism, antisocial personality disorder, and personality disorder not otherwise specified, and Miner agreed that Holden meets the DSM-IV criteria for pedophilia.  All three experts diagnosed Holden with alcohol dependency.

Both Reitman and Hoberman testified that Holden was highly likely to engage in acts of harmful sexual contact in the future, while Miner testified that Holden’s risk of reoffense was not very high.  Hoberman testified that Holden’s gender, lower economic status, unstable school or vocational history, and possible juvenile history of alcohol abuse all increase the risk of reoffense.

  The district court’s conclusion that Holden was highly likely to engage in acts of harmful sexual contact in the future was based on (1) the base rates for recidivism in child molesters and actuarial measures that indicate that individuals like Holden pose a heightened risk of reoffense; (2) although Miner relied on the MnSOST-R and Static-99 to conclude that Holden’s risk of reoffense was low, the tests conflicted with one another and Miner did not testify regarding other important risk factors; (3) both Reitman and Hoberman testified that Holden copes with stress negatively, Holden’s testimony indicated that his sexual offenses occurred when he was under great stress, and the testimony of the experts indicated that Holden would be under great stress when he was released; and (4) Holden has not successfully completed sex-offender treatment.

Holden argues that Miner’s testimony negates the evidence that he is likely to reoffend.  Miner scored the HARE psychopathic checklist of Holden at 12, which was substantially under the score of 30 needed to diagnose him with psychopathy.  However, Reitman disagreed with the score of 12 that Miner assigned to Holden.  Reitman explained:

            Every single actuarial table that was administered by myself, * * * the other former psychologists, all of them indicate a moderate to high recidivism rate.  In reviewing Dr. Miner’s report, he opined that he administered the Hare and that he had a low score.  Now, he did not give the score, and it is now – it is really realistically, methodologically, impossible for this man to have a low score.  If you look at the case review, there has to be a scoring error.  Because as I said yesterday, the average inmate score is 22, which is – that alone would be considered to be moderate. 

 

            Given the conflicting expert testimony, we cannot conclude that the district court’s factual determination that Holden is an SDP is clearly erroneous.

B.  Commitment as SPP

The district court found that Holden has an utter lack of power to control his sexual impulses.  Both Reitman and Hoberman testified that Holden meets this criterion, and Miner testified that Holden could control his sexual impulses.  The district court concluded that Holden met the criteria for commitment as an SPP because of (1) the extreme nature and high frequency of his sexual assaults towards his children; (2) the degree of violence involved when he continued to offend against his victims despite their protests, sometimes using force to take their clothing off, and using force to hold one victim while he attempted oral and anal sex; (3) his relationship to his victims, some of whom were his own children and some of whom were complete strangers; (4) his attitude of entitlement, blame, and minimization towards his victims;  and (5) the results of psychological testing indicating that Holden is impulsive and self-centered.  All three experts agreed that the test results indicate Holden is impulsive and self-centered.  In addition, the court noted that Holden (1) does not avoid the precursors, such as alcohol, that trigger his sexually acting out; (2) lacks insight into his offenses and minimizes his behavior; and (3) does not have an adequate relapse prevention plan.

            There is clear and convincing evidence in the record that Holden has a mental disorder, utterly lacks control over his sexual impulses, and is likely to reoffend. The district court’s conclusion that Holden has a sexual psychopathic personality is not clearly erroneous.  See Minn. Stat. § 253B.02, subd. 18b (definition of SPP).

VI.

Holden argues that he was not placed in the least restrictive alternative treatment program available.  Minn. Stat. § 253B.185, subd. 1, provides that when a person is committed as an SPP or an SDP,

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.

 

Under this statute, the burden is on Holden to prove that a less restrictive treatment program is available.

            Holden argues that John Blaczyk, his supervised release agent, testified that he saw no reason why Holden could not live in an apartment in St. Cloud or Brainerd so long as it had a phone line and a place where he could be monitored.  Holden testified that he could live with his father across the street from an elementary school.  However, even Blaczyk testified that he did not believe that Holden living with his father would be enough to protect the welfare of others.  He testified that when visiting Holden, it would be difficult to tell if a child had been at the residence, and even though Holden would be subject to electronic monitoring, that monitoring would not indicate where Holden went when he left his home. Blaczyk also described the difficulties of testing Holden for alcohol if he lived in an apartment. 

Holden presented no plan for living in an apartment in St. Cloud or Brainerd, and the only sex-offender program available at those locations was the CORE program, which is an outpatient program without security that meets two hours per week. 

            Holden also argues that Miner testified that it would be satisfactory for Holden to live in an apartment and be on probation with a program with intensive supervision and continued classes and/or counseling.  However, both Reitman and Hoberman disagreed, and felt that the least restrictive alternative for Holden would be the Minnesota sex offender program at the Moose Lake corrections facility.  Hoberman stated:

[I]t seems very clear to me that Mr. Holden needs intensive sex offender treatment, and his—his issues, broadly put, are significant enough that he needs a residential or inpatient program.  And his risk of reoffending is sufficiently great  that it would be my opinion that it needs to be a secure facility.

 

In light of the conflicting testimony about the appropriate treatment program, we cannot conclude that the district court erred when it concluded that Holden failed to meet his burden of proving that Moose Lake is not the least restrictive alternative treatment program available.

VII.

            Holden contends that during earlier criminal proceedings against him, the state took the position that he was not mentally ill and could stand trial and contribute to his defense.  Therefore, he argues that to now claim that he is mentally ill violates his due process rights and his right to an impartial trier of facts.

            But the state is not now arguing that Holden is mentally ill.  As we have already explained, it is not necessary for the state to demonstrate that Holden is mentally ill in order to meet the requirements for committing him as an SPP or an SDP.

VIII.

            Holden argues that there are problems caused by the failure to preserve a good record.  Citing Minn. Stat. § 253B.08, subd. 8 (2000), he contends that pretrial telephone conferences should have been transcribed.  But Minn. Stat. § 253B.08, subd. 8, requires the court to “take and preserve an accurate stenographic record or tape recording” of the commitment hearing.  It does not establish recording requirements for pretrial proceedings.

            Furthermore, Holden has not explained how he was prejudiced by the failure to make a record of the telephone conferences.  He has only argued that “perhaps a full transcript of the telephonic proceedings would be helpful.”

IX.

            Finally, Holden makes several arguments that his constitutional rights were violated by procedures used during the commitment proceeding.

            Holden argues that the procedures used to prepare for trial were compressed into such a short period of time that he was denied his due process rights.  The procedures he cites are that Reitman waived his right to read his deposition because he did not want to hold up the trial schedule; Hoberman did not have an opportunity to read the transcript of Reitman’s examination of Holden; Hoberman had to complete his examination report under a very pressured schedule; and Holden was not able to complete depositions of Hoberman and Miner.

            Holden argues that allowing the county attorney and his attorney to be present during his prehearing examination, as expressly permitted by Minn. Stat. § 253B.07, subd. 5 (2000),[1] invalidated the answers he gave during the examination and, consequently, invalidated the opinions of the state’s experts.  Holden contends that because allowing the attorneys to be present invalidated the examination, relying on the results of the examination violates his due process rights.

            The only basis for Holden’s claim that the presence of the attorneys invalidated his examination is Miner’s testimony that the presence of others during the examination could make it more difficult for the patient to answer questions honestly and Reitman and Hoberman’s testimony that a person in front of a group of people might be less likely to admit having done things that were wrong.

            Holden also appears to argue that requiring him to testify in front of others at trial, which could affect his testimony, was a violation of due process.  He also argues that because he was required to participate in the prehearing examination, it was unconstitutional to require him to repeat the examination at trial.

            Holden does not explain how he was prejudiced by any of the procedures he cites, and he has not cited any authority to support any of his claims that the procedures violated his constitutional rights.

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.

 

Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971).

Prejudicial error is not obvious on mere inspection.  Holden’s claims regarding these issues are waived.

Affirmed.

 

R.A. RANDALL, Judge (concurring specially).

            I concur with the result.



*          Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] Holden did not specifically cite Minn. Stat. § 253B.07, subd. 5.  He cited chapter 253B.