This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
In the Matter of
Timothy Paul Mohawk.
Douglas County District Court
File No. P7001332
James S. Dahlquist, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for appellant)
Christopher Karpan, Douglas County Attorney, Marcia G. Bremer, Assistant County Attorney, 305 8th Avenue West, Alexandria, MN 56308 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
Appellant Timothy Paul Mohawk appeals his commitment as a sexually dangerous person under Minn. Stat. § 253B.02, subd. 18c (2000). He argues that the evidence to support civil commitment is insufficient because his conduct of the past 18 years consists mainly of voyeurism and exhibitionism, both of which he claims are insufficient to meet the standard for harmful sexual conduct. Appellant also contends that the statute requires a “recent overt act,” which is not present here. There is sufficient evidence of harmful sexual conduct to support appellant’s civil commitment as a sexually dangerous person, and we affirm. Because a “recent overt act” is not an element required for commitment of a sexually dangerous person, we do not reach it.
Appellant’s first exposure to sexual conduct occurred at the age of five when his 17-year-old neighbor sexually abused him, and taught appellant to masturbate while window peeping on the neighbor’s sister. Appellant would then go inside with his neighbor and watch while the neighbor and his sister had sexual intercourse.
In interviews that occurred in conjunction with his most recent incarceration and treatment, appellant admitted to many instances of previously unknown and uncharged sexual misconduct. During a March 2000 evaluation with Scott Johnson, M.A., who conducted the civil commitment review assessment, appellant admitted that when he was between the ages of 6 and 14, he sexually abused approximately 30 other children (though he later revised that number to 13). Appellant stated that some of the incidents included touching and/or oral sex. He also admitted to many sexual burglaries up until age 23, in which he stole women’s underwear to masturbate with. The trial court ultimately found by clear and convincing evidence that at least nine of these incidents amounted to criminal sexual conduct in the third and fourth degrees.
Appellant also acknowledged sexually abusing his sister and cousin, J.K., when they were children. Appellant abused his sister for many years, usually by peeping on her or touching her with his hands and penis. The abuse continued until he was 16, when his father caught him attempting to rape her. Appellant also repeatedly molested his cousin, J.K. On one occasion, he undid her pants and fondled her. On another occasion, appellant took off his clothes and tried to get J.K. “to play with him.” The trial court found by clear and convincing evidence that the abuse of his sister amounted to criminal sexual conduct in the third and fourth degrees, while the abuse of his cousin constituted criminal sexual conduct in the second degree.
In addition to the previously unknown and uncharged conduct, appellant has been convicted or criminally investigated on numerous other occasions. In 1982, at the age of 16, appellant was convicted of fourth-degree assault for grabbing the breasts of a girl whom appellant believed to be 13. One month later, appellant was charged with three counts of criminal sexual conduct involving groping females on the buttocks, genitals, or breasts while in crowded places and rubbing his genitals against them. In once instance, appellant followed a woman into a library, continuing to grab and rub against her, despite her saying, “no.” Although court records regarding the incidents no longer exist, the trial court found that respondent presented clear and convincing evidence that the offenses occurred.
In 1983, authorities found appellant in a women’s bathroom. Records of the disposition of that offense no longer exist. In October 1984, when he was 18, appellant contributed to the delinquency of a minor when he provided alcohol to and had sex with his 17-year-old girlfriend. Although the court records no longer exist, the trial court found that respondent presented clear and convincing evidence that the offense occurred. On May 6, 1991, appellant was convicted of disorderly conduct for making derogatory sexual comments, including solicitation for sex, to adult and minor females. Appellant served a brief time in jail for this offense. He later admitted that he intended to have sex with the victims.
Five months later, while living in Superior, Wisconsin, appellant exposed himself to paper-delivery girls on two occasions. The first incident happened on October 2, 1991, when a 13-year-old girl delivered a newspaper to appellant’s door and found him standing naked in the apartment building hallway. Nine days later, a 14-year-old female newspaper carrier was confronted by appellant, standing nude outside his building. He followed her for a short distance, asking her 5-7 times to “make love” to him. Appellant pleaded guilty to “exposing genitals to child” and “lewd and lascivious behavior” and was sentenced to 60 days in jail. In a later evaluation, appellant admitted to having sexual fantasies involving the girls while masturbating and his intent to have intercourse and oral sex with them.
Without permission, appellant left Wisconsin and his supervised probation in March 1992. On May 23, 1992, he was involved in a sexual incident in Sioux City, Iowa. Appellant knocked on the door of a neighbor’s trailer and, after gaining admittance, played a pornographic movie for three boys who were 11, 12, and 14 years old. Appellant began talking about sex with the boys, exposed himself, and asked the boys to participate in a “circle jerk.” Although they refused, appellant continued to masturbate in front of them until one boy mentioned that his mother would be home soon. Appellant then ejaculated and left. Appellant was convicted of two felony-level counts of lascivious acts with a child and sentenced to five years in prison in Iowa.
Approximately one month before his scheduled release date in Iowa, appellant was referred for civil commitment as a sexually violent predator by the Iowa Department of Corrections. But appellant was released before any action was taken on the referral. Appellant was released from prison on July 5, 1998.
On August 18, appellant was picked up in Minnesota by the Alexandria Police Department following a report of an attempted break-in. He had been standing outside the bedroom window of the cousin he abused as a child, hoping to see her naked. The police took appellant into custody, but later released him. Appellant’s cousin obtained a restraining order against him after this incident. The trial court found that respondent presented clear and convincing evidence that this sexual offense occurred.
The following night, August 19, 1998, appellant masturbated outside his neighbor’s bedroom window while watching her undress. He then removed the screen on a living-room window, entered the home, and stole a purse and apron from the kitchen. When questioned by the police about the reasons for this crime, appellant stated, “I guess I was reverting to my childhood problem. Yes, there was a sexual connection to this.” Appellant eventually pleaded guilty to first-degree burglary and was sentenced to 43 months in prison. Based upon appellant’s statements and the probation officer’s opinion, the trial court found by clear and convincing evidence that this crime was sexually motivated.
Following a sex-offender assessment done at St. Cloud, the team recommended that appellant complete the sex-offender treatment program at Lino Lakes. Appellant was diagnosed with pedophilia, both sexes, non-exclusive; voyeurism; exhibitionism; and cannabis and hallucinogenic dependence (provisional). He started the sex-offender treatment program on February 16, 1999, but was terminated on September 3, 1999, as a result of sexual behavior on the unit. Appellant and three other inmates were caught performing oral and anal sex in one of the group rooms.
He returned to the program on November 16, 1999. In the annual report dated December 22, 1999, the following was noted concerning appellant:
He is compliant but his participation is very superficial. He is assessed as being high risk to re-offend due to his chemical dependency and untreated sex offending behavior.
In total, appellant completed only three months of sex-offender treatment. A corrections program therapist later testified that the average treatment length is 18 months and that the shortest period of program completion she had ever observed was nine months. The End of Confinement Review Committee assigned a Risk Level 3 to appellant in December 2000, the highest risk level assigned to offenders in Minnesota.
Appellant was scheduled for release from Lino Lakes on February 7, 2001. On December 29, 2000, the Douglas County Social Services supervisor filed a petition to commit appellant as a sexual psychopathic personality (SPP) or a sexually dangerous person (SDP) pursuant to Minn. Stat. § 253B.02, subds. 18b, 18c (2000). The trial court granted a motion to hold the appellant at the Minnesota Security Hospital during the pendency of the civil commitment proceeding.
The trial court appointed Robert G. Riedel, Ph.D., as a court-appointed examiner. A second psychologist, Harry M. Hoberman, Ph.D., was also court-appointed at appellant’s counsel’s request. Both court-appointment experts conducted thorough assessments and testified at trial concerning their conclusions.
The trial court heard testimony at trial from 11 witnesses and received in evidence appellant’s criminal and treatment records.
Both court-appointed examiners concluded that appellant meets all of the criteria to be classified as an SDP or an SPP. The diagnosis is voyeurism; exhibitionism; fetishism; frotteurism; pedophilia; cannabis and hallucinogenic dependence (in remission in a controlled setting); antisocial personality disorder; narcissistic personality disorder; and mixed personality disorder.
Dr. Hoberman concluded that appellant is a high risk to reoffend in the future and is dangerous to other persons. The trial court quoted from Dr. Hoberman’s report with respect to this conclusion in its findings of fact:
Mr. Mohawk should be regarded as a person who is highly likely to be dangerous to female and male children, adolescents and adults in a sexual manner. First, the base rates for reoffending for child molesters would indicate that Mr. Mohawk presents at least a moderate risk for committing another sexual offense. The estimated rates for Mr. Mohawk are even more substantially elevated when one considers the nature of his sexual offenses, his deviant sexual arousal and relative indifference to the consequences of his acts. Thus, the base rates for consideration for child molesters such as Mr. Mohawk become even higher. Second, the psychological testing and the clinical evaluations, both currently and in the past, all suggest similar personality characteristics which reflect substantial deficiencies in Mr. Mohawk’s internal affective and cognitive controls and an indifference or disregard for convention or social authority. Third, Mr. Mohawk is characterized by many of the specific risk factors associated with sexual offending. When one considers Mr. Mohawk’s sexual offending history, it is one characterized by impulsivity, opportunism, and even indifference to discovery when he has resided in the community. * * * The degree of harm associated with the types of acts of sexual offending perpetrated by Mr. Mohawk is variable – greater for physical contact offenses involving children and lesser for adults who are victimized through Voyeurism and Exhibitionism. Given his history of continued sexual assaults despite therapeutic and punitive placements/opportunities, these factors indicate a substantially elevated risk of sexual reoffending.
Dr. Reidel testified that his opinion coincided with Dr. Hoberman’s opinion 90% of the time. He disagreed with the number of children with whom appellant sexually abused. Instead of 12, Dr. Reidel found evidence of physical contact with 6. Both experts felt that appellant’s sister suffered “serious” harm as a result of the abuse. Dr. Hoberman testified that there was no less restrictive alternative treatment available.
The trial court found that there is clear and convincing evidence that appellant satisfies the criteria for commitment as an SDP under Minn. Stat. §§ 253B.02, subd. 18c, and 253B.185 (2000), but does not satisfy the statutory criteria for commitment as an SPP. An interim order for commitment was issued on February 15, 2001. The court ordered the Minnesota Sex Offender Treatment program to file a treatment report with the court within 60 days, as required by Minn. Stat. § 253B.18, subd. 2 (2000).
A final commitment hearing was held on May 4, 2001. In addition to the record established at the initial commitment hearing, the trial court received into evidence the treatment report and the testimony and report of James M. Alsdurf, Ph.D., LP, who was appointed March 19, 2001, at appellant’s request. Dr. Alsdurf concluded, consistent with Drs. Hoberman and Reidel, that appellant meets the criteria for commitment as an SDP and further testified that there is no less restrictive treatment alternative available. Based on the evidence, the trial court ordered that appellant be indeterminatively committed to the Minnesota Sex Offender Program as an SDP. This appeal follows.
D E C I S I O N
Clear and convincing evidence is required to commit an individual as a sexually dangerous person (SDP). Minn. Stat. § 253B.18, subd. 1 (2000). See Minn. Stat. § 253B.185, subd. 1 (2000) (providing generally that section 253B.18 also applies to SDP commitments). When the evidence is in conflict, the question is one of fact to be resolved by the trial court. In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995). “The trial court’s findings of fact will not be reversed unless clearly erroneous.” In re Robb, 622 N.W.2d 564, 568 (Minn. App. 2001) (citation omitted), review denied (Minn. Apr. 17, 2001). But whether the evidence is sufficient to meet the commitment standard is a question of law reviewed de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).
Appellant argues that the evidence is insufficient to commit him because his conduct of the past 18 years consists mainly of voyeurism and exhibitionism. Additionally, he contends that without a recent overt act of more serious conduct, his commitment is improper.
Committing someone as an SDP requires a clear and convincing showing of (1) a course of harmful sexual conduct, (2) a sexual, personality, or other mental disorder or dysfunction, and (3) a resulting likelihood of future harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18c (2000).
Minn. Stat. § 253B.02, subd. 7a(a) (2000), defines harmful sexual conduct as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Minn. Stat. § 253B.02, subd. 7a(b) (2000), then states that conduct amounting to criminal sexual conduct in the first through fourth degrees creates a rebuttable presumption of a likelihood of serious physical or emotional harm. In addition, the statute lays out other conduct which, if “motivated by the person’s sexual impulses,” also raises the rebuttable presumption. Id. Included in that other conduct is first-degree burglary. Id.
In this case, the trial court found that at least three incidents met the rebuttable presumption and that none were rebutted. First, the court found that appellant’s most recent conviction for first-degree burglary was sexually motivated. The court based this finding both on appellant’s concession that “[y]es, there was a sexual connection to this,” and on his probation officer’s similar assessment. Although appellant later disputed his statement at his initial commitment hearing, the court found that appellant’s retraction lacked credibility. Given the probation officer’s assessment, appellant’s statement, and the lack of credibility in his retraction, the trial court’s conclusion is not error.
The trial court also found that appellant’s sexual abuse of his sister and cousin raises a rebuttable presumption under the statute. Based primarily on appellant’s own statements, the court concluded that appellant’s molestation of his sister with his hands and penis meets the statutory definition of criminal sexual conduct in the third and fourth degrees. Appellant did not dispute these claims, but attempted to minimize the extent of his conduct. Appellant also admitted to molesting his cousin. This, coupled with his cousin’s testimony that he fondled her and tried to get her to touch him, led the court to find that appellant’s abuse of his cousin amounted to criminal sexual conduct in the second degree. Concerning both of these victims, the trial court relied heavily on appellant’s own statements and found nothing to dispute their accuracy. On this record, we do not find the court’s findings to be clearly erroneous.
The trial court concluded as a matter of law that appellant did not offer any credible evidence to rebut the presumption that this conduct was likely to cause serious physical or emotional harm to the victims. But the court went on to note that it did not have to rely solely on the rebuttable presumption. The trial court concluded that the evidence showed conduct of the type to create “a substantial likelihood of serious physical or emotional harm” to the victims within the meaning of Minn. Stat. § 253B.02, subd. 7a(a). The record in this case is extensive. The trial court not only had the opportunity to review the criminal and medical records with the assistance of three court-appointed examiners, but also to evaluate the credibility of the appellant. We conclude that there is sufficient evidence to support appellant’s commitment as an SDP.