This opinion will be unpublished and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
Michael T. Adams, a/k/a James D. Fries,
Commissioner of Human Services,
Filed May 13, 2003
Sherburne County District Court
File No. P695611
Robert W. Adams, P.O. Box 303, 1200 North Highway 25, Buffalo, MN 55313 (for appellant)
Mike Hatch, Attorney General, Michael E. Burns, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127; and
Mark Miller, Assistant Sherburne County Attorney, 13880 Highway 10, Elk River, MN 55330-4601 (for respondent)
Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Willis, Judge.
G. BARRY ANDERSON, Judge
Appellant Michael T. Adams, a/k/a James D. Fries, challenges an order of a Supreme Court Appeal Panel (SCAP) denying his petition for discharge from his commitment from the Minnesota Sexual Offender Program (MSOP). Because the record sufficiently supports the SCAP’s conclusion that appellant failed to sustain his burden of going forward by establishing the criteria found in Minn. Stat. § 253B.18, subd. 15 (2002), we affirm.
The facts supporting appellant’s incarceration and commitment are addressed in detail in In re James David Fries, No. C5-96-1997 (Minn. App. June 17, 1997), review denied (Minn. Aug. 21, 1997), and will not be recounted here. On October 9, 1995, after completing his period of incarceration, appellant was committed to the MSOP at Moose Lake as a sexually dangerous person and a sexual psychopathic personality. That order was made indeterminate on August 2, 1996, and appellant remains in the MSOP today.
Appellant filed a petition with respondent Commissioner of Human Services to grant him a full discharge or, in the alternative, a provisional discharge from his commitment. A Special Review Board recommended that respondent deny appellant’s petition for provisional or full discharge. Respondent accepted the board’s recommendation and denied appellant’s petition.
Appellant thereafter filed a petition for rehearing and reconsideration before a SCAP. At the close of appellant’s case, respondent and Sherburne County moved to dismiss appellant’s petition pursuant to Minn. R. Civ. P. 41.02(b), claiming that appellant failed to meet his burden of going forward. Based on appellant’s testimony and the report of the court-appointed examiner, Dr. James Alsdurf, Ph.D., LP, the SCAP granted the motion to dismiss and affirmed respondent’s order to continue appellant’s commitment. This appeal followed.
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’ [sic] 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). 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 a doctor clearly erroneous).
Appellant contends that the SCAP erred by refusing to discharge him from his civil commitment. A petition for discharge from commitment will be granted only if the individual is “capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.” Minn. Stat. § 253B.18, subd. 15 (2002); see Call v. Gomez, 535 N.W.2d 312, 318 (Minn. 1995) (holding that Minn. Stat. § 253B.18, subd. 15, governs the discharge of persons committed as sexual psychopathic personalities as well as persons committed as dangerous to the public).
Appellant bears the initial burden of presenting evidence sufficient to establish a prima facie case for discharge. Minn. Stat. § 253B.19, subd. 2 (2002). To carry this burden, appellant must 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 appellant satisfies his burden of going forward, respondent bears the burden of proof by clear and convincing evidence that appellant is still in need of commitment. Minn. Stat. § 253B.19, subd. 2.
The SCAP concluded that appellant failed to produce sufficient evidence to withstand a motion to dismiss. The panel found that appellant “has no insight into the dynamics of his personality that lead to his sexual assaults” and that he “continues to represent a danger to the public.” The SCAP further found that appellant has not shown any ability to change his behaviors, has openly refused to attend sex-offender treatment, and has engaged in inappropriate behaviors while committed to the MSOP; thus appellant has failed to establish that he is no longer a danger to society.
Each of the SCAP’s findings of fact is sufficiently supported by the record, and the findings establish that appellant failed to sustain his burden of going forward. First, the SCAP’s finding that appellant’s deviant sexual behavior has continued while in the MSOP is not clearly erroneous. The report of the court-appointed examiner, Dr. Alsdurf, noted that appellant continued to display inappropriate sexual behavior while subject to the commitment order. Appellant has been found to be corresponding with young girls by mail and telephone and has been cited for possession of contraband that he received through the mail. He has also been reprimanded for “stalking behavior” related to a staff member and has been disciplined for staring at or intimidating female employees.
Second, appellant presented little evidence to indicate that he is no longer a danger to society other than to say that he would work his hardest to avoid re-offending. Appellant stated that living with his mother and father would help him to avoid committing additional sexual offenses. But one of appellant’s sexual offenses was committed against his mother, and appellant has conceded that there is a “slight possibility” that he could re-offend. Placing such a risk at “maybe two out of 10,” appellant told the appeal panel that he was unable to say he would never offend again.
In addition, although Dr. Alsdurf did not directly address the likelihood of appellant’s recidivism, he supports appellant’s continued commitment. The SCAP also found that appellant’s “testimony regarding his ability to control his behavior is not credible.” We give deference to such credibility determinations. See Minn. R. Civ. P. 52.01 (“due regard shall be given to the opportunity of the [fact finder] to judge the credibility of the witnesses.”). We thus conclude that the SCAP’s finding that appellant failed to sustain his burden of presenting prima facie evidence that he is no longer a danger to society was not clearly erroneous.
As to the requirement of establishing prima facie evidence that he is able to make an acceptable adjustment to open society, appellant argued that he would live with his parents and work in construction with his brother-in-law. He also maintains that, should he be released, he would be willing to see a psychiatrist for individual counseling and would take medication if the psychiatrist believed that it would help control him.
But appellant has been openly resistant to attending sex-offender treatment while committed, claiming that he should not be required to attend such classes. Appellant’s open hostility to participation in the treatment programs offered at Moose Lake also undermines his claim that he would be willing to participate in similar sex-offender treatment if released from his present commitment. Furthermore, the appeal panel found that appellant’s open resistance to treatment has prevented him from appreciating “the seriousness of his sexual pathology,” and therefore, even if he were released, appellant is unable to choose an appropriate treatment program. We find the SCAP’s conclusion that appellant did not sustain his burden of going forward on this issue was well supported by the record.
Because we hold that the appeal panel’s findings that appellant failed to sustain his burden of going forward were adequately supported by the record, we affirm.
 Appellant claimed that his testimony about the likelihood of reoffending was offered because he realized that if he said there was absolutely no chance he would ever re-offend that he might not pass a polygraph examination.