This opinion will be unpublished and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
the Matter of:
Joseph Nathaniel Givens.
Hennepin County District Court
File No: P601060242
Warren J. Maas, 7964 Brooklyn Boulevard, PMB 107, Brooklyn Park, MN 55445 (for appellant)
Amy Klobuchar, Hennepin County Attorney, Theresa Fehringer Couri, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Halbrooks, Judge.
TOUSSAINT, Chief Judge
Appellant Joseph Nathaniel Givens challenges a district court order committing him to the Minnesota Sex Offender Program as a sexually dangerous person (SDP) and sexual psychopathic personality (SPP). The district court entered findings of fact and conclusions of law determining each element existed for commitment as both a SPP and a SDP and ordered that Givens be committed. Because the evidence supporting the district court’s findings was sufficient to satisfy the “course of sexual misconduct” and “habitual course of misconduct” requirements of the SDP and SPP statutes, we affirm.
Givens’s history of sexually assaultive behavior began in October 16, 1980, when he was charged with first-degree murder, criminal sexual conduct in the first degree, criminal sexual conduct in the second degree, kidnapping, and aggravated robbery for the sexual assault and killing of M.S. On that evening, Givens and two accomplices approached a vehicle in north Minneapolis; they threatened the occupants with a knife and robbed them. The three offenders forced the male occupant into the car’s trunk and locked him there. The female victim, (M.S.), resisted a sexual assault by Givens as he fondled her breasts in the back seat of the car. She was repeatedly struck with a piece of lumber found near the scene. Givens and his accomplices fled the scene and divided the money stolen from the victims.
Later that same evening, Givens returned to the scene to rape M.S., though Givens was unsure if M.S. was dead or alive when he raped her. The medical examiner’s report indicates that M.S. died shortly after she was assaulted from blows on or about the neck.
A jury found Givens guilty of murder in the third-degree, criminal sexual conduct in the second-degree, kidnapping, and aggravated robbery. In December 1981, Givens was sentenced to consecutive terms of 24 years for murdering of M.S. and four years for kidnapping her. In a direct appeal of his convictions to this court Givens’ murder sentence was subsequently reduced to 16 years.
In March 1990, Givens was released from prison and entered a treatment center for sex offenders. While there, Givens was charged with marijuana possession and made violent threats against staff. Treatment summaries indicated he did not actively pursue treatment issues.
In June 1994, Givens was paroled to a halfway house. The following September, Givens moved from the halfway house to live under the intensive supervised release program with his girlfriend and her two daughters. In June 1995, he was transferred from intensive supervision to traditional supervision.
In August 1996, Givens violently raped C.M.D. This rape was similar to the 1980 rape in that Givens (1) chose to assault a stranger; (2) pushed her blouse up over her breasts to fondle them; (3) pulled down one pant leg in order to accomplish intercourse; and (4) raped the victim in an isolated area. Givens was charged with two counts of criminal sexual conduct in the first degree. At the time of this offense, Givens was still under supervision for the 1980 offense and had been released from the halfway house for only 23 months.
Givens pleaded guilty to criminal sexual conduct in the second degree for raping C.M.D., and was sentenced to 86 months of confinement. In prison, Givens participated in a sex-offender treatment program, alternately earning satisfactory performance reviews and criticism for making no progress. He was terminated from the program for threatening and intimidating behavior in June 1999. A month later, he was given a directive to re-apply to sex-offender treatment, which he did.
In January 2000, Givens received a score of 12 under the sex-offender screening tool – revised (SOST-R); which put him in the category of sex offenders highly likely to reoffend. Givens continued in sex-offender treatment until July 2001, when he was released from the Department of Corrections (DOC) and transported to the Minnesota security hospital. Prior to his release, the DOC end of confinement review committee assigned to Givens a level 3 status under the community notification act, based on an assessment that he was highly likely to reoffend and that his offenses were predatory and extremely violent. He did not complete the sex-offender treatment program.
Three psychologists testified at Givens’s trial. Two of them, after studying his record, agreed that he had engaged in a harmful and habitual course of sexual misconduct. The district court found that there was clear and convincing evidence that Givens’ behavior was habitual and harmful, that he has an utter lack of power to control his impulse to engage in harmful sexual conduct, that it is highly likely that Givens will engage in further harmful sexual conduct, and that he is in need of treatment. The court issued a warrant of commitment committing Givens to the Minnesota sex offender program at St. Peter and at Moose Lake, Minnesota.
Clear and convincing evidence is required to support an individual’s commitment as a sexual dangerous person (SDP) or a sexual psychopathic personality (SPP). Minn. Stats. §§ 253B.18, subd. 1 (a) 185, subd. 1 (2000). “‘Clear and convincing’ requires more than a preponderance of the evidence, but less than proof beyond a reasonable doubt.” State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997) (citing Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978)). This court will not reverse the district court’s findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991). Nevertheless, whether the record supports the standards for commitment with clear and convincing evidence is a question of law, which we review de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I), review denied (Minn. Aug. 15, 1994). In the presence of conflicting evidence, the district court must resolve the factual issues. In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). This court defers to the district court’s credibility determinations. See Joelson, 385 N.W.2d at 811 (“Where the findings of fact rest almost entirely on expert opinion testimony, the probate judge’s evaluation of credibility is of particular significance.”).
Commitment as an SDP requires clear and convincing evidence that the person (1) engaged in a course of harmful sexual conduct; (2) manifested a sexual, personality, or other mental disorder; and (3) as a result is likely to engage in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18c(a) (2000). The Minnesota Supreme Court has clarified that the definition of SDP requires that the present disorder “does not allow [offenders] to adequately control their sexual impulses,” making it highly likely that they will engage in harmful sexual acts in the future. In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (hereafter Linehan IV).
A person may be committed as an SPP based on clear and convincing evidence that he (1) has engaged in a habitual course of misconduct in sexual matters; (2) has an utter lack of power to control his or her sexual impulses; and (3) is, therefore, dangerous to others. See Minn. Stat. § 253B.02, subd. 18b (2000).
Givens contends that his actions do not constitute either a course of harmful sexual conduct or a habitual course of conduct in sexual matters. We disagree.
Sexual Dangerous Person
Various factors have been identified for determining whether particular actions are sufficient to show a “course of harmful sexual conduct,” including similarities between incidents, see In re Bieganowski, 520 N.W.2d 525, 529 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994), and the number of actual behavioral incidents or specific acts, rather than the number of convictions. See In re Monson, 478 N.W.2d 785, 789 (Minn. App. 1991) (noting that the statute does not address convictions but behavior). Givens argues that the 1980 murder and sexual assault was one behavioral incident. The district court finding that the murder and sexual assault were two behavioral incidents is supported by the record. We hold that for the purpose of determining habitual conduct, the 1980 events were two behavioral incidents. Together, Givens’s offenses against M.S. in 1980 and his offense against C.M.D. in 1996 sufficiently demonstrate a course of harmful sexual conduct.
This court in In re Pirkl, 531 N.W.2d 902, 909, (Minn. App. 1995), review denied (Minn. Aug. 30, 1995), rejected arguments that certain offenses were too remote to include as part of habitual behavior because the defendant had been “in prison the last nine years and [had] not had the opportunity to commit sexual assaults.” Id. (citation omitted). Here, it is unimportant that the offenses were separated by a period of 16 years, given that appellant was incarcerated for 14 of those years with no opportunity to commit additional offenses. The 1980 incidents, together with the 1996 incident, are sufficient to satisfy the statute’s “habitual course” requirement. We conclude that Givens may be committed as a sexual psychopathic personality, because his actions constitute a habitual course of misconduct in sexual matters.
Further, Givens never completed the sex-offender treatment program while incarcerated for the two prior convictions and was rated highly likely to reoffend. This assessment was reiterated by the psychological evaluation in the commitment hearing testimony.
Testimony provided by the court’s examiners and the state’s expert witness supports the district court’s finding of a habitual course of misconduct and course of harmful sexual misconduct, and its decision to commit Givens. Givens objected at trial to the expert’s testimony regarding whether or not his actions met the statutory elements of a sexual dangerous person and of a sexual psychopathic personality. Givens argues that it is improper for a psychological expert to testify whether a statutory criterion has been met or whether an element from case law has been met. Givens asserts that by testifying as to whether he met the criteria for commitment under the SPP and SDP statutes, the expert witnesses were drawing legal conclusions that psychologists are not competent to answer. We affirm the district court’s rulings that the expert testimony in this case was appropriate.
The question of whether to admit or exclude evidence in general is also within the district court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W. 2d 42, 45-46 (Minn. 1997). It is within the broad discretion of the court to decide if an expert opinion embracing the ultimate legal question is admissible. State v. McCarthy, 259 Minn. 24, 32, 104 N.W.2d 673, 678 (1960). Under Minn. R. Evid. 704, “expert testimony within the witness’s field of expertise is admissible even if the expert’s opinion touches on the ultimate issues that the jury must decide.” Scott v. Johnson, 379 N.W.2d 180,182 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986). To be admissible under Minn. R. 702, however, expert testimony must assist the trier of fact in resolving the factual issues presented. As the trier of fact in this case, the district court found the psychologists’ testimony helpful and admitted it.
Psychological testing is required in civil commitment cases, and expert testimony is regularly used in aiding the trier of fact. The Minnesota Supreme Court set forth certain factors that courts should consider in determining whether an offender meets the factors for commitment as set forth in the SPP statute. In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994). These factors include the results of psychological and psychiatric testing. Id.
The district court properly admitted the testimony by psychological experts and did not abuse its discretion, despite the fact that the expert testimony addressed an ultimate issue of fact.
 The purpose of the act is to protect the public from sexual predators with mental disorders “who retain enough control to ‘plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success.’” In re Linehan, 594 N.W.2d 867, 875 (Minn. 1999) (hereafter Linehan IV), (quoting Linehan III, 557 N.W.2d 171, 182 (Minn. 1996), vacated and remanded, 522 U.S. 1011, 118 S.Ct. 596 (1997) (quoting Linehan II, 544 N.W.2d 308, 318)). (Minn. App. 1996).
 In Linehan IV, the Minnesota Supreme Court reasoned that subdivision 18c(b) of the SDP definition (i.e., “it is not necessary to prove that the person has an inability to control the person’s sexual impulses”) should be read narrowly to mean that the state need not prove the person has “utter lack of power” to control sexual impulses, but only need prove that the present mental disorder does not allow the person “to adequately control their sexual impulses.” Linehan IV, 594 N.W.2d at 875 (emphasis added).