This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Robert Joseph Dekart,





Michael O’Keefe,

Commissioner of Human Services,




Filed February 11, 2003


Toussaint, Chief Judge


Hennepin County District Court

File No. 05012



Allan R. Poncin, Suite 550 Wells Fargo Midland Building, 401 Second Avenue South, Minneapolis, MN 55401 (for appellant)


Mike Hatch, Attorney General, Kathy Meade Hebert, Assistant Attorney General, 445 Minnesota Street, St. Paul, MN 55101-2109; and


John Kirwin, Assistant County Attorney, A-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)



            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Willis, Judge.



U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


On appeal from an order of the supreme court appeal panel sustaining the revocation of his provisional discharge, appellant argues that the evidence does not clearly and convincingly prove that he (1) departed from the conditions of his provisional-discharge plan; (2) was exhibiting signs of mental illness that may require in-hospital evaluation or treatment; and (3) was exhibiting behavior that may be dangerous to himself or others.  Because the panel did not err in its findings that appellant violated his provisional-discharge conditions, we affirm.



Appellant Robert Joseph Dekart, 63 years old, (1) has an extensive history of chemical dependency, polysubstance abuse, and criminal behavior and (2) was twice committed as a psychopathic personality, once in 1966 after the rape of his developmentally disabled sister and multiple rapes of young boys and again in 1988 after the rape at knifepoint of a young woman who regarded him as a father figure.  Dekart was indefinitely committed when he neared the supervised release date for the latter assault.  He denies having committed any sexual assaults.

Despite being in prison or confined to a psychiatric facility for most of his adult life, Dekart has never completed a sex-offender treatment program.  After the 1988 commitment to the Minnesota Security Hospital (MSH), Dekart was transferred to the Moose Lake Sexual Psychopathic Personality Treatment Center (MSPPTC) when it opened on January 3, 1996.  Because Dekart refused to participate in the treatment program, he was returned to MSH in 1998. 

In 1997, Dekart began experiencing back, hip, and leg weakness and pain.  In early 2001, due to anticipated continued physical deterioration in ambulation, Dr. Anita Schlank, of the MSH, proposed a provisional discharge to the locked unit at the state-operated nursing home Aw-Gwah-Ching Center, in Walker, Minnesota.  The special review board issued an order on June 13, 2001, granting the provisional discharge with 17 conditions.

Hennepin County appealed the June 13 provisional-discharge order, but before Dekart was transferred to the nursing home, he committed a rule violation at MSH.  On August 26, 2001, hospital staff observed Dekart lying on his back in his bed with a much younger and cognitively impaired resident standing bent over the head of Dekart’s bed with his pants down around his knees.  The hospital staff knocked on his door, waited ten seconds, and then opened the door.  Dekart testified that when he went to the door, the other resident “got scared and crawled underneath the bed,” but Dekart denied any sexual activity.

After the August 26 incident, Hennepin County dismissed its appeal of the provisional-discharge order with the understanding that upon receipt of the dismissal, Dr. Schlank would file a revocation of the provisional discharge.  Dr. Schlank did so on October 11, 2001.  Dekart then filed an appeal of the revocation of the provisional discharge.  The special review board heard the matter and issued its findings and recommendations on October 26, revoking the provisional discharge specifically based on Dekart’s violation of condition 13.  The board also found that Dekart’s “impaired ambulation and health needs,” on which the provisional discharge was based, “[e]vidently *** were exaggerated or Mr. Dekart has improved significantly.”

Dekart petitioned for reconsideration to the supreme court appeal panel on December 6, 2001.  After the July 19, 2002 hearing, the panel issued findings that the provisional discharge was based on what the team perceived to be Dekart’s deteriorating medical condition, but testimony revealed that he ambulates at MSH either on his own or with the assistance of a cane or a walker, and MSH is able to adequately address his medical needs.  The panel found that the August 26 incident was a rule violation and that the revocation was based on Dekart’s increased risk to others “as evidenced by his failure to follow the rules of the facility through the commission of the August 26, 2001 incident and violation of the proposed provisional discharge plan paragraph numbers 8 and 13.”  Dekart was assigned a risk level of III, which represents the highest risk level for reoffending.  The panel found that if Dekart is not closely supervised even in the most secure settings, he poses a significant risk to other patients. 


            In reviewing a decision by a judicial appeal panel, an appellate court must determine whether the evidence as a whole sustains the findings, but it will not reweigh the evidence.  Enebak v. Noot, 353 N.W.2d 544, 548 (Minn. 1984).  Findings of fact will not be reversed unless clearly erroneous.  Minn. R. Civ. P. 52.01.  This court will not defer to the judicial appeal panel on questions of law.  In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992); See Minn. Stat. § 253B.19, subds. 2,3 (2002) (panel shall hear and receive all relevant testimony and panel decision supersedes commissioner’s order).

              A patient’s provisional discharge may be revoked by the head of a treatment facility if the patient has (a) departed from the conditions of the provisional-discharge plan; (b) exhibited signs of a mental illness, that may require in-hospital evaluation or treatment; or (c) exhibited behavior that may be dangerous to himself or others.  Minn. Stat. § 253B.18, subd. 10 (2000).  Dekart argues that the panel erred in affirming the revocation because the state failed to show that his conduct violated a condition of the provisional-discharge plan.

The panel found that Dekart violated condition 13 of the plan, which included (1) noncompliance with the provisional-discharge plan and (2) any behavior that may be dangerous to himself or others or that may require evaluation or treatment in a secure treatment facility.  While Dekart argues that engaging in “some sort of sexual activity is not in and of itself dangerous,” his treatment team disagreed and concluded that Dekart engaged in behavior that was sexual, harmful to a vulnerable resident, violative of the facility rules, and consequently increased his risk of reoffending and endangering other residents.  Dekart’s denial of the behavior also indicated an increased need for treatment in a secured facility.  Dekart remains in need of treatment at MSH.  Therefore, the panel’s finding of his violation of condition 13 was not clearly erroneous.

The panel also found that Dekart violated condition 8 requiring that he “shall refrain from any verbal or physically aggressive or sexually aggressive behavior that would cause alarm and/or harm to others.”  Dekart argues that the state failed to prove that his conduct with the other resident was aggressive.  There was evidence from which the panel could conclude that Dekart, rather than the cognitively impaired young man, was the aggressor in the sexual incident: (1) the man was in his early twenties with some brain damage; (2) the treatment team characterized the man as “vulnerable” and subject to sexual exploitation; (3) when caught, the man was “scared” and hid under Dekart’s bed; and (4) Dekart’s history involved sexual assaults on vulnerable children and young adults.  Therefore, the finding that Dekart failed to refrain from sexually aggressive behaviors that would cause harm to others was not clear error.