This opinion will be unpublished and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
In the Matter of the Civil Commitment of:
Maurice Edward Rubin.
Chisago County District Court
File No. PX001648
Angela M. Helseth, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Minge, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Maurice Rubin seeks reversal of his commitment as a sexual psychopathic personality (SPP), arguing that his non-violent assaults did not demonstrate that he was dangerous to others; and reversal of his commitment as a sexually dangerous person (SDP), arguing that the evidence was insufficient to establish that he was likely to engage in harmful sexual conduct in the future. He argues, in the alternative, that he should be allowed to implement the least restrictive alternative treatment plan that he proposed at his 60-day review hearing. Because there was sufficient evidence to support appellant’s commitment and because appellant failed to meet his burden of showing a less restrictive alternative to commitment, we affirm.
Maurice Edward Rubin’s history of abuse culminated in three guilty pleas to multi-victim criminal sexual conduct with children, one in 1986 and two in 1992. He also admitted to additional victims other than those in the criminal cases. Several of these victims commenced personal injury lawsuits against him, all of which have settled. In total, he has had 18 documented victims, and 11 of those were over the nine-year period from 1983 to 1992.
Rubin reports several incidents of inappropriate sexual conduct prior to 1972. In the 1950s, Rubin reports that his foster mother abused him over a 12-to-18 month period. He, in turn, abused his foster mother’s four-year-old daughter, B.B. While in his teens, Rubin also sexually abused a seven-to-eight-year-old girl he was babysitting. Later, while in the military, he admits to inappropriate sexual behavior toward the 14-to-16-year-old Vietnamese girl who cleaned his apartment.
Starting in about 1983, Rubin victimized children he coached on a football team. Victims C.D. and A.B., now adults, testified at his commitment trial. The court found them to be credible witnesses and accepted their testimony as true.
C.D. was about 11 years old when the abuse began. He described abuse occurring over a five-year period at Rubin’s cabin, in his work truck, personal truck, work place, and home. C.D. described (1) Rubin’s threats to harm and kill C.D. and his parents if C.D. were to tell; (2) Rubin’s threats to blame C.D. as the initiator if C.D. were to tell; (3) Rubin’s gifts of money and meals and use of toys and alcohol to keep C.D. compliant; and (4) sexual conduct ranging from kissing and fondling to anal penetration. C.D. also testified to the physical and mental harm he suffered and suffers, including depression, insomnia, nightmares, poor academic performance, flashbacks, alcohol use, and weight loss.
A.B. testified to sexual abuse by Rubin when A.B. was 12-to-15 years old. He described incidents of abuse similar to C.D.’s, but without penetration, and B.B. also testified that Rubin photographed his genitals. Like C.D., A.B. testified to suffering from mental and physical harm as a result of the abuse.
At trial, Rubin denied any inappropriate sexual contact with C.D. or A.B. However, at a settlement hearing in a civil case against Rubin in 1993, Rubin testified under oath that he had had inappropriate sexual contact with C.D. on a number of occasions. About the same time as the abuse of C.D., Rubin molested a young female victim, A.M. He admitted to abusing A.M. and digitally penetrating C.D.’s then five-year-old sister N.D., as well.
From 1983 to 1992, Rubin sexually molested J.J., the daughter of Rubin’s foster sister, B.B. (whom he molested when he was a child). The abuse began when J.J. was about nine years old and continued until she was 17. He would fondle her, have oral sex with her, and penetrate her with his finger. Rubin warned J.J. not to tell anyone or he would say that she asked for it. He also abused J.J.’s younger sister, NB, in the same ways from 1991 to 1992, when N.B. was six-to-eight years old. He bought both girls presents to maintain their compliance.
J.N., six-to-nine years old, and her younger sister, J.N., four-to-seven years old, were also abused by Rubin at his restaurant and other locations. Rubin fondled their vaginas, performed oral sex on them, and had one fondle his penis. One of the sisters suffered from depression, fear, anxiety, and emotional distress.
Rubin also admitted touching K.B., four years old, and S.B., six years old, on their vaginal areas and digitally penetrating S.B.’s vagina. The abuse occurred at the restaurant, at the telephone company offices, and in a restaurant parking lot.
Between 1984 and 1986, Rubin molested other children, ages three to nine, at his wife’s daycare. In addition to the four alleged victims, J.H., K.S., E., and C.H., Rubin remembers touching “others” at the daycare, too.
The first criminal complaint against Rubin was brought in Hennepin County in 1986 and was based on the daycare complaints. Rubin pleaded guilty to one count of second-degree criminal sexual conduct, and two other counts were dismissed. He was given a stayed sentence of ten years in prison. He served six months at the Hennepin County Adult Corrections Facility and participated in Alpha Human Services outpatient treatment from March 1987 to November 1991. Rubin concedes that while he was in treatment, he continued to reoffend. Rubin’s second and third criminal complaints were filed in Chisago and Hennepin counties in 1992. These were based on the allegations of the children he abused while he was in treatment at Alpha House. Of the two complaints, Rubin pleaded guilty to five counts of first-degree, two counts of second-degree, and one count of third-degree criminal sexual conduct. He was sentenced to 86 months in prison in the Hennepin County case and a concurrent sentence in Chisago County. The four civil actions alleging abuse followed.
At his commitment trial, Rubin described his “grooming” behavior: he would get familiar with his victims, learn what their likes and dislikes were, and then “go from there.” He said he never forced the children into anything. Rubin did not believe that they wanted him to do things to them, but his own sexual gratification was all that was important. The children wanted whatever gifts and treats he had to offer. He liked the younger victims because they were easier to control, and he liked power and control. He also testified that he knew that his conduct was wrong, but he did it anyway. Rubin also testified that he would like to get treatment at Alpha House and to live in an apartment on his own.
Three experts testified at trial: (1) Dr. Ayers, Rubin’s outpatient therapist while he attended Alpha House; (2) Dr. Gilbertson, a licensed psychologist and a frequent court-appointed examiner in SDP/SPP cases; and (3) Dr. Nelson, a licensed psychologist and the second court-appointed examiner. Drs. Gilbertson and Nelson testified in support of Rubin’s commitment as an SDP and SPP. The 60-day report was based on additional expert opinion regarding Rubin’s status. While the report was limited, due to Rubin’s failure to complete the clinical interview, it recommended continued indeterminate commitment.
Rubin was incarcerated on December 8, 1992, based on his Hennepin and Chisago County guilty pleas. Prior to his scheduled release date of May 7, 2001, Chisago County petitioned for his dual commitment as SPP/SDP. After a court trial, the court made findings, conclusions, and an order for Rubin’s commitment as a SPP/SDP. An order committing Rubin to the Minnesota Sex Offender Program for an indeterminate period was filed on February 14, 2002. This appeal followed.
In reviewing a mental health commitment, this court accepts the trial court’s factual findings unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). Whether the trial court’s factual findings justify commitment, on the other hand, is a question of law subject to de novo review. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).
1. Utter Lack of Control Requirement
A sexual psychopathic personality is defined as
the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person 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 (2000) (emphasis added). Although the statute defining a “sexually dangerous person” does not require an inability to control sexual impulses, Minn. Stat. § 253B.02, subd. 18c(b) (2000), recent case law imposes this requirement for civil commitments of the mentally ill and dangerous. See Kansas v. Crane, 534 U.S. ___, 122 S. Ct. 870, 867 (2002) (holding that finding of lack of control is prerequisite to civil commitment); In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999) (adopting “lack of adequate control” standard for commitment as sexually dangerous person).
Appellant argues that the state did not meet its burden to show utter lack of control because (1) there was no offense history for the nine years preceding the civil commitment; and (2) the conduct was nonviolent, nonspontaneous, and nonimpulsive.
The analysis for determining a person’s inability to control sexually assaultive behavior includes consideration of: (a) the nature and frequency of the sexual assaults; (b) the degree of violence involved; (c) the relationship of the offender with the victim; (d) the offender’s attitude and mood; (e) the offender’s medical and family history; (f) the results of psychological and psychiatric testing and evaluation; and (g) other relevant factors. In re Blodgett 510 N.W.2d 910, 915 (Minn. 1994). Both of appellant’s examiners opined that many factors indicate that Rubin lacked control, and the court ultimately concluded that Rubin had an utter lack of power to control his sexual impulses.
The nine-year period in which Rubin has no offense history, from 1992 to 2001, consists of the time he served for criminal sexual conduct offenses against children. As indicated by the many factors involved in making the determination concerning control, a period of non-offense alone does not preclude a finding of utter lack of control. See In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (listing factors to be considered, “particularly where, as here, there is a large gap of time” between petition and last sexual misconduct); In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985) (holding that good behavior while hospitalized is not good indicator of continuing dangerousness). In fact, Rubin’s period of non-offense did not persuade the experts that Rubin had control of his sexual impulses. Dr. Nelsen concluded that Rubin would continue to reoffend “because he did it for 10 or 15 years, and he continued to do it in treatment.” When returned to the community “Mr. Rubin, or anybody else, may be just as impulsive, if not more so, than they were.”
On the nature and frequency of the sexual assaults, the experts noted the large number and ages of the victims and the continuous nature of the assaults. On the relationship between Rubin and the victims, the experts concurred that Rubin took advantage of his positions as coach, daycare provider, lineman, and godfather, to control and manipulate vulnerable individuals. With regard to Rubin’s attitude and mood, the experts noted that Rubin continued to reoffend during his Alpha House treatment from 1986 to 1992 and that he admitted that he tried to keep his victims compliant with presents. Rubin’s “repetitive acting out in the face of severe consequences of which he was aware does appear to demonstrate a certain impulsiveness of behavior that was not tempered.”
Rubin thinks that his risk of reoffending is low, but the experts disagree. Gilbertson stated that Rubin’s dismissal of the Alpha House treatment is “alarming.” Rubin “was involved in well over one hundred separate sessions that spanned at least four years.” Nevertheless, he reoffended then and shows minimal insight now. His caseworker, Mr. Sobey, stated for the 60-day report that “Mr. Rubin has ‘excellent management tools’ for again creating an environment in which victims are easily available within a seemingly appropriate social context.” See In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995)(noting refusal of treatment and lack of relapse prevention plan are indicative of lack of control), review denied (Minn. Aug. 30,1995).
Rubin, like other SPP and SDP defendants, argues that his “grooming behavior” is not consistent with a finding of lack of control because grooming involves planning his assaults. The case law is clear, however, that such behavior in a pedophile does not preclude a finding of utter lack of power to control sexual impulses. See In re Preston, 629 N.W.2d 104, 111 (Minn. App. 2001) (grooming did not indicate “control over impulses,” where defendant did not plan out all offenses and had unpredictable sexual responses to certain external factors); In re Bieganowski, 520 N.W.2d 525, 530 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Where the grooming behavior itself is uncontrollable or habitual, the impulse is likewise not controllable. Preston, 629 N.W.2d at 111; Bieganowski, 520 N.W.2d at 530. In short, the evidence supports the court’s finding that Rubin lacked control over his sexual impulses.
2. Nonviolent Sexual Behavior
Rubin contends that his particular pattern of sexual misconduct was not “so egregious that there was a substantial likelihood of serious physical and mental harm being inflicted on the victims so as to meet the ‘dangerous to other persons’ requirement for commitment as a psychopathic personality.” He also argues that his nonviolent sexual behavior does not constitute a risk of serious danger to the public in the future.
Although neither the SPP nor the SDP statute expressly requires a finding of violence, under the SPP statute, the state must show “violent sexual assaults that create a substantial likelihood of serious physical or mental harm being inflicted on the person’s victims.” In re Robb, 622 N.W.2d 564, 571 (Minn. App. 2001). The SDP statute also requires conduct that creates “a substantial likelihood of serious physical or emotional harm to another.” Minn. Stat. § 253B.02, subds. 7a, 18c (2000). The statutes and the case law tie a finding of violence to serious physical or mental harm suffered by the victims. See In re Preston, 629 N.W.2d 104, 112 (Minn. App. 2001) (serious psychological harm sufficient to meet violence requirement); In re Robb, 622 N.W.2d at 571-72 (concluding no violence where no serious physical or mental harm).
Under the SPP statute, the court must consider the types of assaults and consequent harms suffered by the victims to determine whether the requisite violence exists. An assault is considered violent when the “physical and mental harm likely to be caused by [the defendant’s behavior] was greater than the physical and mental harm likely to be caused by sexual assaults that involve some physical force.” In re Robb, 622 N.W.2d. at 572. The statute does not require actual harm, but only “likely” harm. Minn. Stat. § 253B.02, subds. 7a, 18c. Serious harm results from acts that are “highly likely to have a serious, lasting effect on the victim’s sense of security and to cause a continuing sense of fear.” In re Robb, 622 N.W.2d at 572; cf. In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (concluding that conduct of primarily touching and spanking young boys in buttocks was not likely to cause serious harm).
Dr. Gilbertson noted that the harm inflicted by Rubin “arises primarily from the vulnerability of his victims, the multiplicity of his assaults upon certain victims and that such violations occurred within the context of his being in a trusted and authoritative position.” He also stated that the presence of force or threats produces greater harm. It is also not uncommon to have the effects or harm emerge long after the actual assault.These themes run throughout Rubin’s record. Rubin admitted that he chose younger victims because they were “the easiest to control.” Assaults occurred where children should have felt safe: daycare, public places, or a trusted person’s home, cabin, or car. Threats, some violent, some not, accompanied the assaults, and several assaults involved some form of penetration. Victims of even the milder assaults did not like the tickling and touching, and Rubin admitted that he did not believe that they liked it. While the actual harm to some of the young victims might not yet be fully realized, those who testified clearly expressed the various levels of serious lasting insecurities and fears that constitute serious harm.
Appellant argues that the Linehan factors “in predicting serious danger to the public” do not support a finding of violence. See Linehan, 518 N.W.2d at 614. The court has held that none of the factors is more important than the others. In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996). The factors are: (1) relevant demographic characteristics; (2) history of violent behavior; (3) base rate statistics for violent behavior; (4) sources of stress in the environment; (5) similarity of present and future contexts to past contexts in which violence was used, and (6) record with regard to sex therapy programs. Linehan, 518 N.W.2d at 614.
Rubin’s assaults on his child victims were violent due to the multiple assaults, many involving penetration, coupled with threats. Furthermore, the experts opined that the demographic characteristics, environmental stresses, and base rate statistics also placed Rubin at a high risk to reoffend. Consequently, the evidence was sufficient to support the court’s findings of violence and serious harm satisfying both the SDP and SPP statutes.
3. Least Restrictive Alternative and Treatment Plan
Under chapter 253B,
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.
Minn. Stat. § 253B.185, subd. 1 (2000).
The experts opined that Rubin needed a secure facility to get the necessary treatment and therapy and to prevent his reoffending. The agent who would be in charge of Rubin if he were released to the halfway house stated that the facility is not secure, supervision could be spotty, and there was no guarantee that Rubin would not have access to children. Since Rubin’s 1992 incarceration, he has not completed an in-depth sex offender program, he would not cooperate with the 60-day report assessment. Both Nelson and Gilbertson concluded that the Minnesota Sex Offender Treatment Program (MSOP) was appropriate. The 60-day report also concluded that Rubin continued to need further sex offender treatment in a residential setting, namely MSOP.
In light of all of the evidence supporting treatment at the MSOP, Rubin’s personal opinion that he needs something less than MSOP is not clear or convincing. He cites no expert opinion supporting his proposal. His proposal that he reside at the 180 Degree Halfway House for one year reflects only his “rather primitive and non-detailed” relapse prevention plan and his belief that he does not require sex offender treatment in an institutional setting. Both experts opined that there is a greater risk of reoffending for someone who has had inadequate treatment and denies the need for the treatment. Even in the 60-day report, the case manager remains concerned that Rubin could reoffend easily.
Therefore, the court did not err in ordering Rubin’s commitment to MSOP and rejected his alternative plan.