This opinion will be unpublished and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:
Najee Que Shadee f/k/a Alan Curtis Jones.
Hennepin County District Court
File No. P70060160
Lisbeth J. Nudell, 3228 Holmes Avenue South, Minneapolis, MN 55408; and
James S. Dahlquist, 270 Grain Exchange Building, 301 South 4th Avenue, Minneapolis, MN 55415 (for appellant)
Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Huspeni, Judge.
Appellant challenges his indeterminate commitment as a sexual psychopathic personality and sexually dangerous person, and argues that because he has made a favorable adjustment to treatment following initial commitment, the district court erred in ruling that he continued to show the “dangerousness” required for indeterminate commitment. Because we see no error in the decision to indeterminately commit appellant, we affirm.
Appellant Najee Que Shadee was born on October 31, 1964, and by age ten he had developed significant psychological and behavioral problems. He was first placed for residential treatment from November 1974 through March 1976.
In 1978, Shadee entered a residential treatment program. After his discharge, he was placed in a group-home setting. In both settings, he coerced other male residents into sexual activity with him in a pattern described in a progress report as “sexual experimentation primarily of an exploitive nature with younger children.” He began to show signs of sexual sadism.
In 1979, Shadee pleaded guilty to second-degree sexual assault as a result of his attack on a four‑year‑old neighbor girl. While at a facility for a mental health evaluation, Shadee terrorized female residents by harassing them verbally and, at times, physically. After he was adjudicated delinquent for the assault, he was placed at a state school in Connecticut, the state where his mother had moved. While there, he exposed his erect penis to another resident of the school and asked the boy to perform oral sex on him. After being placed at another facility, Shadee made sexual overtures to other residents.
In 1982, Shadee attacked a 74-year-old man during a robbery. He was committed to a juvenile correctional facility where, according to reports, he exploited the weaknesses of other residents of the facility for his own sexual gratification, such as engaging in oral sex with a young resident who had a long history of being sexually abused.
In 1986, Shadee sexually abused nine-year-old twin boys numerous times while babysitting. One of the boys contracted gonorrhea of the throat from the assaults. Shadee threatened to beat the boys and throw them out of a window if they reported him. He pleaded guilty to first-degree criminal sexual conduct, and was incarcerated from 1987 to 2001. In prison, he exhibited violent behavior, including assaults on other inmates and a guard, and a sexual assault against another inmate.
A petition for civil commitment was filed before Shadee’s 2001 release date. Two court-appointed psychologists examined him; both recommended commitment. Shadee was transferred to the Minnesota Sex Offender Program (MSOP) at St. Peter while the commitment proceedings were pending.
At the initial commitment hearing, one court-appointed examiner diagnosed Shadee with paraphilia not otherwise specified, sexual sadism, cannabis dependence, alcohol abuse, cocaine abuse, and mixed personality disorder with prominent antisocial, narcissistic and borderline elements. Both examiners concluded that numerous risk assessment tools, as well as other factors used to predict sex offense recidivism, showed that Shadee was highly likely to commit additional sex offenses if not committed.
After the initial commitment hearing, the district court concluded that Shadee was a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), and that he had demonstrated a “total lack of remorse or empathy for his victims” beginning with his assault against the four‑year‑old victim at age 14 and continuing throughout his offense history. The district court also concluded that Shadee was highly likely to sexually reoffend, and that he met the other requirements for commitment under the SPP and SDP laws.
MSOP issued a treatment report within 60 days as required by Minn. Stat. § 253B.18, subd. 2(a) (2000). The report, completed by members of Shadee’s treatment team, recommended further commitment. The treatment team members diagnosed Shadee with pedophilia, attracted to both genders, non‑exclusive type; marijuana abuse, in a controlled setting; history of attention deficit disorder; and antisocial personality disorder. Because Shadee had sexually assaulted adults as well as children, the evaluators concluded that a diagnosis of paraphilia, not otherwise specified, should also be considered.
Since shortly after the initial commitment order, Shadee has participated in the sex offender treatment program at MSOP. By the time of the review hearing from which this appeal is taken, he had completed the introductory group and entered the first phase of the four‑phase program. MSOP staff viewed Shadee’s start in sex offender treatment as a positive step. Nevertheless, in the MSOP report, the evaluators stated that Shadee’s “prognosis remains quite guarded at this time since he has never completed sex offender treatment, nor does he have a reoffense prevention plan.” The evaluators stated that there was
no new evidence that there has been any change in [Shadee’s] ability to control his sexual impulses; and * * * further, no new evidence which would suggest that he has lessened the risk he presents to society since the time of his initial commitment.
In preparation for the 60-day review hearing, Shadee selected a second examiner, as provided under the statute, who recommended that Shadee be indeterminately committed as an SPP and SDP, and wrote:
Mr. Shadee has already been found to meet the statutory criteria for both a SPP and a SDP. The major question at this time is, has something occurred in the time since he was committed that should alter this decision? Based on my evaluation of Mr. Shadee, both reading the records that were provided and engaging him in a clinical interview, the answer is no.
However, he remains a clinical psychopath and his current behavioral changes are very new. He is not at this time ready to re‑enter free society without being a significant threat to the safety of others. * * * [His] likelihood for future sexual dangerousness remains very high.
Shadee’s selected examiner and a treatment team member testified at the 60-day review hearing. Also, at that hearing, Shadee’s attorney stated that she intended to raise the issue then before the U.S. Supreme Court in Kansas v. Crane, 122 S. Ct. 867 (2002), which has subsequently been decided.
After the review hearing, the district court determined that Shadee continued to meet the commitment requirements under both statutes, stating that
[i]t is the conclusion of [Shadee’s] treatment team that there is no change in the conditions that led the Court to find that [Shadee] is a Sexual Psychopathic Personality and a Sexually Dangerous Person.
While the district court acknowledged that Shadee had taken positive steps in beginning treatment, the court nevertheless found that he “remains a clinical psychopath and a danger to society due to his deviant sexual behaviors and disorders;” and that he “is presently in the category of offenders who present a high risk for reoffense.” This appeal followed.
D E C I S I O N
While Shadee does not challenge the sufficiency of the evidence supporting his initial commitment, he does argue that the record is insufficient, as a matter of law, to support the district court’s decision after the 60-day review hearing, that he continues to meet the statutory definitions of SPP and SDP. He contends that the review hearing failed to include evidence of his continued dangerousness. Instead, argues Shadee, the record demonstrates that he has made positive changes since his commitment. Therefore, Shadee argues, he should be released from commitment rather than committed for an indeterminate period. Despite our recognition that Shadee has made commendable progress in treatment, we conclude that the record supports his commitment for an indefinite period.
In an appeal concerningcivil commitment, we are limited to examining whether the district court complied with the requirements of the commitment statute. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). 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). We will not reverse this determination unless it is found to be clearly erroneous. In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991). We examine the record in the light most favorable to the decision. Knops,536 N.W.2d at 620. Whether or not certain facts found by the district court satisfy the commitment requirements is a legal matter that we review de novo. Id.
To commit a person as an SPP, the state must prove, inter alia, that the person, through an utter lack of power to control sexual impulses, “is dangerous to other persons.” Minn. Stat. § 253B.02, subd. 18b (2000). To demonstrate that a person is dangerous under the SPP statute, it must be shown that the person is likely to commit violent sexual assaults. In re Robb, 622 N.W.2d 564, 569 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001). Likewise, a person to be committed as an SDP must be likely to engage in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18c(a) (2000). “Harmful sexual conduct” is defined as conduct that creates a substantial likelihood of serious physical or emotional harm to another. Minn. Stat. § 253B.02, subd. 7a(a) (2000). Specifically, the state must show that the person’s
disorder or dysfunction does not allow [that person] to adequately control [his or her] sexual impulses, making it highly likely that [the person] will engage in harmful sexual acts in the future.
In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV).
Shadee concedes that he met the “dangerousness” standard for initial commitment. He stresses, however, that at the review hearing the district court found that he had improved since the initial determination, noting that he
appears to have made significant changes in his attitude and approach to others and to treatment. [Shadee] has cooperated with and established effective treatment relationships with staff.
Shadee argues that the district court failed to make any additional findings regarding dangerousness since the initial commitment. Therefore, he concludes that because the district court found that he had made improvements, there was no longer a sufficient basis to find him to be dangerous under the statute as a matter of law. We cannot agree. The district court found that Shadee “remains a * * * danger to society,” and that he “would benefit from sex offender treatment and that he is presently in the category of offenders who present a high risk of reoffense.” This finding is sufficient to demonstrate continued dangerousness as required by statute; the law only requires that the district court find that the committed person “continues to be [an SPP or SDP] and dangerous” to warrant continued commitment. Minn. Stat. § 253B.18, subd. 3 (2000) (emphasis added). See also Minn. R. Civ. Commit. 23(e) (court must determine whether “the statutory requirements for commitment under Minn. Stat. ch. 253B continue to be met”).
The district court’s finding is amply supported by evidence considered at the review hearing. The treatment team examiner conceded that Shadee had begun sex offender treatment and had done “quite well” in the introductory, pre-treatment phase, and that his behavior, while not discipline-free, had improved compared to his behavior in prison. Nevertheless, she reported that Shadee continued to be a highly dangerous person and falls into a group that “presents a high risk for reoffending.” She also stated that there was
no new evidence that there has been any change in his ability to control his sexual impulses; and * * * no new evidence which would suggest that he has lessened the risk he presents to society since the time of his initial commitment.
She determined that Shadee’s prognosis “remains quite guarded at this time since he has never completed sex offender treatment, nor does he have a reoffense prevention plan.” The examiner further testified that “none of the conditions that appeared to cause the Court to make its [initial] decision have been changed or altered.”
Shadee’s selected examiner stated in his report that Shadee had made an “excellent start” at treatment, but that “likelihood for future sexual dangerousness remains very high.” He testified that Shadee’s initial treatment efforts were “unusually good,” but his prognosis at the time of the review hearing was “guarded” due to his “decades-long history of behavior consistent with what is the clinical notion of a psychopath.” He agreed that nothing has occurred since commitment that has altered the decision that Shadee meets the criteria for an SPP and SDP.
The evidence thus supports the court’s determination that Shadee continues to be dangerous, despite the court’s recognition of his initial progress in treatment. Shadee argues, however, that if the review hearing is to be meaningful under the statutory regime, positive changes in a patient’s condition since the initial commitment must be evaluated as more significant than the district court here found them to be. We conclude that the district court gave proper weight to Shadee’s progress. Progress in treatment, while commendable, relevant, and of evidentiary value, cannot be considered, by itself, sufficient to require a determination that a patient no longer meets the definition of SPP and SDP. The district court did not err in ordering that Shadee be indeterminately committed.
In his brief to this court, Shadee stated that he reserved the right to argue constitutional issues addressed in Kansas v. Crane, 122 S. Ct. 867 (2002). At oral argument, however, Shadee’s attorney requested that those issues not be decided by this court. In re Irwin, 529 N.W.2d 366, 373 (Minn. App. 1994) (issue waived where appellant did not adequately argue or brief it), review denied (Minn. May 16, 1995). Therefore, we do not reach the issues considered in Crane.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Shadee does not challenge his initial commitment or the evidentiary basis for the district court’s findings in the initial commitment order of January 12, 2001. We, therefore, briefly summarize the findings justifying the commitment.