This opinion will be unpublished and

may not be cited except as provided by

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






Earl William Crocker,





Michael O’Keefe,

Commissioner of Human Services,




Filed October 8, 2002


Toussaint, Chief Judge


Winona County District Court

File No. P895282



Ross A. Phelps, Law Offices of Ross A. Phelps, 106 South Walnut Street, La Crescent, MN 55947 (for appellant)


Mike Hatch, Attorney General, David Anthony Rowley, Assistant Attorney General, NCL Tower, Suite 900, 445 Minnesota Street, St. Paul, MN 55101-2127; and


Charles E. MacLean, Winona County Attorney, 171 West Third Street, Winona, MN 55987 (for respondent)



            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


Appellant Earl Crocker challenges the decision by the supreme court appeal panel denying his petition for provisional or full discharge from his commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP).  Crocker argues that the panel clearly erred in concluding that he failed to show a basis for discharge from commitment.  Because Crocker failed to introduce prima facie evidence supporting the statutory criteria supporting discharge, we affirm.


The discharge of persons committed as SPP and SDP is governed by the discharge provisions in Minn. Stat. § 253B, 18.  See Call v. Gomez, 535 N.W.2d 312, 318 (Minn. 1995).  This court views a supreme court appeal panel’s dismissal of a petition for discharge under Minn. Stat. § 253B.18, subd. 5 (2000), as a decision on a motion for involuntary dismissal pursuant to Minn. R. Civ. P. 41.02(b).  On review, this court considers whether the evidence and inferences, considered in the light most favorable to the petitioner, are sufficient to present a factual question.  Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980).  The appeal panel’s decision will not be set aside unless clearly erroneous.  See Piottler v. Steffen, 490 N.W.2d 915, 920 (Minn. App. 1992) (finding the appeal panel’s reliance on the testimony of the doctor clearly erroneous).

            Crocker claims that the appeal panel erred in denying his petition for provisional or full discharge from his commitment as a sexual psychopathic personality and a sexually dangerous person.  A petition for discharge from commitment will be granted only if petitioner meets the statutory discharge criteria requiring that the patient be (1) capable of making an acceptable adjustment to open society; (2) no longer dangerous to the public; and (3) no longer in need of inpatient treatment and supervision.  Minn. Stat. § 253B.18, subd. 15 (2000); Call v. Gomez, 535 N.W.2d 312, 318 (Minn. 1995) (discharge criteria in this provision for mentally ill and dangerous also apply to discharge of psychopathic personalities).  The party seeking discharge bears the initial burden of presenting evidence sufficient to establish a prima facie case for discharge.  See Minn. Stat. § 253B.19, subd. 2 (2000).  To carry this burden, the petitioner may present evidence that would be sufficient to avoid a directed verdict, would allow the trier of fact to make a factual determination, or would constitute conclusive evidence; merely filing a petition is insufficient.  Caprice v. Gomez, 552 N.W.2d 753, 757-58 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  We agree with the appeal panel that here, the evidence provided by Crocker was insufficient to support the statutory criteria.

The evidence provided by Crocker did not establish that he “is capable of making an acceptable adjustment to open society.”  Minn. Stat. § 253B.18, subd. 15.  Instead, Dr. John V. Austin, the court appointed examiner, explicitly opined that Crocker would have a difficult time making an adjustment to open society.  He explained that Crocker has been incarcerated most of his adult life, possesses few skills necessary to function well, has no support system in the community, and would have difficulty developing one.  Crocker, a 74-year-old chronic alcoholic, has refused chemical dependency treatment and has not disclosed plans for remaining alcohol-free.  Dr. Austin opined that if, upon discharge, Crocker were “to return to the use of alcohol, his ability to adjust to [open society] would be destroyed.” 

            Crocker also fails to support his claim that he is no longer dangerous to the public.  He relies on the affidavit of Dr. Anita Schlank, Clinical Director at the Minnesota Sex Offender Program (MSOP), which states that Crocker has not committed any sexual infractions since entering the program in 1995.  This one fact specific to Crocker, however, does not demonstrate that he is no longer dangerous to the public.  See In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985) (stating that good behavior in an artificial environment does not mean that person is not dangerous to public).  Aside from this fact, Dr. Schlank provides as evidence that he is no longer dangerous to the public, only general statistics that are not specific to Crocker or his personal circumstances, on sexual offenders in the program who are over the age of 70.  The statistics shed no light on whether Crocker will re-offend.  Thus, Dr. Schlank’s affidavit is, at best, informational, but does not establish that Crocker is no longer dangerous to the public.

            Crocker’s statement that he no longer has sexual desires is self-serving; according to Dr. Austin, people can hide their sexual thoughts, especially when it is to their benefit.  Therefore, Crocker’s statement does little to support his claim that he is no longer dangerous to the public.  See Piotter, 490 N.W.2d 915, 920 (Minn. App. 1992)(expressing “grave reservations” about according much weight to petitioner and his wife’s testimony, noting that it is “self-serving”), review denied (Minn. Nov. 17, 1992).

            While Dr. Austin stated that “the conclusion of whether [Mr. Crocker] is dangerous to the public is mixed” and explained that

[f]rom a behavioral science perspective, utilizing strictly static/historical data, he is likely to be sexually dangerous to others, * * * if this determination is approached from a more dynamic perspective (provided he refrains from drinking), the conclusion is that his is unlikely to be dangerous.


Dr. Austin’s latter conclusion, however, was based on Crocker’s more recent behavior and the assumption that Crocker will refrain from drinking.  The supreme court has rejected reliance on “good behavior in the artificial environment of a hospital,” stating that it is not determinative on the issue of dangerousness to the public.  Bobo, 376 N.W.2d at 432 (citation omitted).  Moreover, Crocker has refused both chemical dependency and sex offender treatment.  While Crocker claims that he has no desire to drink, Dr. Austin noted that

[Crocker] was unable to provide a reasoned explanation of just what had changed, how he could maintain that change and what steps would be necessary to prevent him from using alcohol again.


This suggests that Crocker is at risk to drink again, which according to Dr. Austin will likely make him a danger to the public.  Cf. 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).  In light of this evidence, we conclude that the evidence introduced by Crocker is insufficient to show that Crocker is no longer dangerous to the public. 

Finally, the evidence provided by Crocker to show the third criterion, that he is no longer in need of inpatient treatment and supervision, was also insufficient.  Dr. Austin stated that Crocker “still needs to gain better control [of] his anger and hostility.”  While Dr. Austin did not reach an ultimate conclusion regarding whether Crocker was still in need of treatment, he explained that

based on his behavior during the recent past [Crocker] likely does not need sex offender specific treatment.  However, based on his behavior over the entirety of his life, he does. 

As we previously noted, Crocker’s recent conduct is not determinative.  Furthermore, an MSOP psychologist had just six months before Dr. Austin’s report indicated Crocker’s numerous “existing treatment needs.”  Because Crocker did not produce prima facie evidence supporting each of the three statutory criteria, we conclude that the appeal panel properly denied Crocker’s petition for discharge.