This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Matter of: Michael Dale Benson.
Douglas County District Court
File No. P493117
James S. Dahlquist, 270 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)
Mike Hatch, Attorney General, Theresa Meinholz-Gray, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Christopher D. Karpan, Douglas County Attorney, Marcia Gail Bremer, Assistant County Attorney, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)
Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Wright, Judge.
G. BARRY ANDERSON, Judge
Appellant Michael Dale Benson challenges the June 21, 2002 order of the three-judge Supreme Court Appeal Panel (“SCAP”) denying his petition for discharge from his commitment as a sexual psychopathic personality. Because appellant and expert testimony demonstrate that appellant does not meet the discharge criteria set forth in Minn. Stat. § 253B.18, subd. 15 (2000), we affirm.
Appellant pleaded guilty to criminal sexual conduct in the first degree in 1989. As part of the pre-sentence investigation, the district court ordered appellant to complete a sex-offender evaluation. During this evaluation, appellant stated that he committed at least five additional rapes in California and Colorado over a four-to-five year period. The district court sentenced appellant to 43 months.
After appellant served his sentence, the district court adjudicated him a psychopathic personality stating that he is
unable to control his impulses with regards to sexual matters; is emotionally unstable; lacks customary standards of good judgment; is unable to appreciate the consequences of his acts; and has a demonstrated history of habitual sexual misconduct.
The district court ordered appellant committed to Minnesota Security Hospital for an indeterminate time pursuant to Minn. Stat. § 526.10 (1992). Appellant appealed his civil commitment, and this court affirmed. In re Benson, No. C0-93-1357 (Minn. App. Nov. 9, 1993).
Pursuant to Minn. Stat. § 253B.18, subd. 5, appellant petitioned respondent Commissioner of Human Services for discharge, and the commissioner referred the petition to a special review board. On the board’s recommendation, the commissioner denied appellant’s petition. Appellant filed a petition for rehearing and reconsideration of the commissioner’s decision and a three-member panel affirmed the commissioner’s order and denied appellant’s petition for discharge. This court affirmed the panel’s denial of appellant’s petition. Benson v. Gomez, No. C6-96-79 (Minn. App. June 4, 1996), review denied (Minn. Aug. 6, 1996).
In October 1997, appellant, seeking discharge, filed an amended petition for a writ of habeas corpus. The district court denied appellant’s petition, concluding that the record indicated that appellant could not control his sexual impulses and that appellant was likely to continue to attack and sexually assault innocent victims. Appellant appealed the denial of his habeas petition, and this court affirmed the district court. Benson v. Doth, C6-98-331 (Minn. App. Aug. 3, 1998). This court concluded that collateral estoppel and res judicata barred each of appellant’s arguments. Id. at ¶ 7.
Appellant again petitioned the Commissioner of Human Services for discharge in 2002. The commissioner referred the petition to the Supreme Court Appeal Panel (“SCAP”) and, upon its recommendation, denied appellant’s petition. Subsequently, appellant filed a petition for rehearing and reconsideration. After hearing appellant and Dr. Thomas Alberg, Ph.D., testify, the SCAP granted the commissioner’s motion for dismissal pursuant to Minn. R. Civ. P. 41.02(b) and affirmed the commissioner’s order denying appellant’s discharge petition. The present appeal followed.
Minnesota Statutes section 253B.18 governs the discharge of persons committed as sexual psychopathic personalities. See Call v. Gomez, 535 N.W.2d 312, 318 (Minn. 1995). This court views a SCAP’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).
On review from a denial of a discharge petition, this court
is not to weigh the evidence as if trying the matter de novo, but to determine from an examination of the record if the evidence as a whole sustains the appeal panels’ findings. If it does so, it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary.
Enebake v. Noot, 353 N.W.2d 544, 548 (Minn. 1984) (italics in original) (quotation omitted).
Appellant contends that the district court and the SCAP panel erred by refusing to discharge appellant from his civil commitment. A petition for discharge from commitment will be granted only if a petitioner meets the statutory discharge criteria requiring that the petitioner 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; Call, 535 N.W.2d at 318.
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). If the petitioner satisfies the burden of going forward, the party opposing discharge bears the burden of proof by clear and convincing evidence that the petitioner is in need of commitment. Minn. Stat. § 253B.19, subd. 2.
1. Adjustment to society
Appellant contends that he has produced sufficient evidence under the three-part statutory test to carry his burden of going forward. See Minn. Stat. § 253B.19, subd. 2 (2000). First, appellant asserts that his unrebutted testimony indicates that he will be able to assimilate into the American Indian community. Appellant claims that he knows of relatives that surely would take him in and that finding employment would be “relatively simple.”
Appellant has not sustained his burden that he will assimilate safely into society. Appellant has no discharge plan that provides a reasonable degree of protection to society, other than his promise to live within the traditions of his Native American culture. In addition, Alberg concluded that appellant has an antisocial personality disorder. We agree with Alberg’s conclusions that appellant’s pattern of disregard for and “violation of the rights of others” and his failure “to conform to social norms with respect to lawful behaviors” make it less likely that he will be able to adequately adjust to open society.
As a convicted sexual-offense felon who has spent the last 13 years in confinement, appellant must demonstrate a more concrete plan for assimilation success to satisfy this test. A more specific analysis of how the petitioner would adjust his lifestyle and what process appellant would take to ensure the public’s safety is necessary. Merely filing a petition for discharge and self-serving testimony that a transition will be easy is insufficient to meet petitioner’s burden of going forward. See Caprice, 552 N.W.2d at 757-58.
2. No longer dangerous to the public
Appellant argues that Alberg’s testimony demonstrates that appellant is no longer dangerous to the public. Appellant contends that, because Alberg expresses uncertainty regarding whether commitment was originally appropriate, this court should conclude that appellant is not dangerous to the community today. The issue before us, however, is not whether appellant’s original commitment was appropriate but rather whether appellant has sufficiently shown he meets the discharge criteria. Thus, appellant’s claim that he does not currently meet the original commitment criteria has no bearing on the current analysis.
Call v. Gomez addressed this issue and held that the elements justifying commitment are not the same as the requirements to support a discharge from commitment. 535 N.W.2d 312. While the commitment requirements include showing that the petitioner has utterly no control over his sexual impulses,
confinement may continue without meeting this threshold if the confinement still bears the reasonable relation to the original reason for commitment; that is, the person continues to need treatment for his sexual disorder and continues to pose a danger to the public * * * .
Id. at 319. Call essentially ruled that SCAPs should use only the statutory criteria set forth in Minn. Stat. § 253B.18, subd. 15 when deciding whether discharge is appropriate, not the factors used to support the original commitment. Id.
Under Call, Alberg’s uncertainty regarding appellant’s original commitment does not justify discharge. Before Alberg’s examination of appellant, appellant carried the diagnoses of Axis I, sexual sadism and polysubstance abuse, and Axis II, antisocial personality disorder. According to Alberg, appellant “is an antisocial personality who takes what he wants and if violence is a part of the method for taking what he wants, that is incidental.” Although Alberg had doubts regarding the sexual sadism diagnosis, he also stated that appellant has not changed since he was committed and that appellant has not altered his personality or behaviors. Appellant also has not undergone treatment or counseling to deal with his multiple issues.
Because Alberg’s report indicated that appellant has not changed during his incarceration or commitment, it is appropriate to examine whether appellant was a risk to sexually reoffend when examined following his initial conviction. During appellant’s 1989 pre-sentence investigation, the Intensive Treatment Program for Sexual Aggressives (“ITPSA”) Unit of St. Peter Treatment Center concluded that appellant was a “very dangerous, patterned, power rapist who presented a clear and substantial risk to reoffend against other women.” In addition, testimony during the commitment proceeding by Dr. Douglas Fox, a licensed psychologist, concluded that appellant had difficulty controlling his sexual impulses and that there was a high degree of risk that appellant would reoffend if released to the community. See In re Benson, C0-93-1357, 1993 WL 459840, at *1 (Minn. App. Nov. 9, 1993).
Appellant’s diagnoses, the reports from ITPSA, Fox, and Alberg’s opinion that appellant has not changed since his original commitment, demonstrate appellant’s continuing high degree of risk to the community.
3. No longer in need of treatment or supervision
Finally, appellant relies on Alberg’s report to argue that no further treatment or supervision of him is necessary. Because Alberg questioned the propriety of the original commitment, appellant argues, it is clear that no further treatment or confinement is necessary.
This reasoning, however, is inconsistent with the substance of Alberg’s testimony before the SCAP:
[Respondent’s counsel]: In your opinion, does Michael Benson still need treatment?
[Respondent’s counsel]: In your opinion, should he have this treatment while he is under supervision?
[Respondent’s counsel]: And at the present time, if he were to be released without the treatment or any supervision, would he pose a danger to the public?
A: I think he could pose a danger, yes.
Alberg’s testimony demonstrates that, although he may have doubted the original commitment decision, discharge is not now appropriate. Alberg stated that, in his opinion, appellant “could pose a danger” if released and that appellant is still in need of treatment and supervision. In Alberg’s view, appellant would benefit from a program that would prompt him to understand his motivations and behaviors. Only through such a program, Alberg believes, would appellant fully ensure that he doesn’t offend in the future.
Finally, appellant asserts that a recent United States Supreme Court ruling indicates that the SCAP incorrectly decided this case. Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002). Crane involved the commitment of a sex offender under the Kansas Sexually Violent Predator Act. Id. at 408, 122 S. Ct. at 868. The Court held that there must be proof that the petitioner has “serious difficulty in controlling behavior” to justify commitment. Id. at 412-13, 122 S. Ct. at 870. The volitional problems must be severe enough to distinguish a sex offender from other dangerous criminals to create a need for the civil commitment. Id.
Crane addresses the criteria that constitutionally must be in place for a commitment to occur. Id. In contrast, here, the propriety of appellant’s original commitment is not before the court. Call makes clear that the factors supporting the discharge of a psychotic personality differ from the commitment criteria. Id. Accordingly, Crane is not applicable to our facts, and the absence of a lack-of-control component in Minn. Stat. § 253B.18, subd. 15 (2000), does not render it unconstitutional.
Appellant has failed to demonstrate that (1) he can make an effective transition to society, (2) he no longer poses a danger to the community, and (3) further treatment and supervision is not necessary.
 Minn. Stat. § 253B.19 requires the supreme court to establish an appeal panel (SCAP) composed of three judges and four alternate judges appointed from the acting judges of the state to hear petitions from persons challenging their commitment as a sexual psychopathic personality or a sexually dangerous person by the commissioner of human services. Minn. Stat. § 253B.19 (2002). The county attorney of the county from which a patient was committed may also petition the SCAP for a rehearing and reconsideration of a decision of the commissioner. Minn. Stat. § 253B.19, subd. 2. A decision made by the majority of the SCAP shall supersede the order of the commissioner. Minn. Stat. § 253B.19, subd. 3. A party aggrieved by the SCAP’s ruling may appeal that decision to the court of appeals as in other civil cases. Minn. Stat. § 253B.19, subd. 5.
 An issue decided on direct appeal from a patient’s original commitment cannot be reasserted. Benson v. Gomez, No. C6-96-79, 1996 WL 291552, at *1 (Minn. App. June 4, 1996) (citing Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982) (“[c]ollateral estoppel precludes the relitigation of issues which are both identical to those issues already litigated by the parties in a prior action and necessary and essential to the resulting judgment.”))