This opinion will be unpublished and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 the Matter of the Civil Commitment of Alexander Scott Carner,
f/k/a Craig Scott Mortland.
Filed November 4, 2003
Toussaint, Chief Judge
Hennepin County District Court
File No. PX-02-60187
William L.H. Lubov, Lubov & Associates, LLC, 820 North Lilac Drive, Suite 210, Golden Valley, MN 55422 (for appellant)
Amy Klobuchar, Hennepin County Attorney, Theresa F. Couri, Assistant County Attorney, A-2000 Hennepin County Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Hudson, Judge.
TOUSSAINT, Chief Judge
Appellant challenges his civil commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), arguing that (1) the court erred in concluding that he has serious difficulty controlling his behavior; and (2) evidence of the scores he achieved in psychological tests is inconclusive on the issue of his dangerousness because the tests do not take into account the time that elapsed since the last offense. Because the evidence in the record supports each of the statutory criteria for commitment as an SPP and SDP, we affirm.
Between 1977 and 1985, appellant Alexander Scott Carner was involved in at least ten acts of criminal sexual misconduct. While Carner admitted to assaulting adult females, his victims were usually young females ranging from age two to fourteen years of age, including his foster parents’ two-year-old daughter, his nine-year-old step-sister, eleven-year-old biological sister, and eleven–year-old cousin. Carner’s sexual misconduct ranged from lying on top of the child to repeated and forced anal intercourse. Carner also sexually assaulted young children he encountered in public places. His modus operandi was luring them into isolated places, throwing them on the ground, and fondling them, forcing them to perform oral sex, or attempting vaginal and anal sex, sometimes at knifepoint.
As a result of his sexual misconduct, Carner has been convicted of four counts of first-degree-criminal sexual conduct, three counts of second-degree criminal sexual conduct, one count each of fourth-degree-criminal sexual conduct, second-degree assault, and kidnapping. Carner’s last offense was on July 2, 1985, for which he was sentenced to 300 months at the Minnesota Correctional Facility at Stillwater.
While Carner was incarcerated at Stillwater on January 29, 1986, he chose not to begin the Sex Offender Treatment at Lino Lakes until January 9, 1998. Initially, Carner made good progress in the sexual treatment program. The summary reports for the first quarter of 1999, indicated that he was making “satisfactory progress” in the area of admitting to and taking responsibility for his behavior. By the end of 1999, his progress was rated as slightly above satisfactory. At the end of the third quarter of 2000, Carner was moved from Track 3 to Track 5, and during the last quarter of 2000 he received a higher than satisfactory overall rating. During the first and second quarters of 2001, Carner was rated close to “above expectations,” but then his progress began to decline.
The fourth quarter report for 2001, indicated that Carner was acting passively and resistant to treatment. Carner was subsequently moved back to Track 3 “because of his negative, aggressive attitude.” The report indicated that Carner had pictures of children of ages similar to those of his victims and other unauthorized materials, and that when he was confronted about his possession of these items, he became angry, aggressive, and disruptive, and he refused to listen to feedback. Carner was placed on probation on April 9, 2002, for “not meeting group exceptions, victim stance and not dealing with resentment toward staff and peers,” and he quit the program the following day.
On April 10, 2002, the Hennepin County Attorney filed a petition seeking to commit Carner as an SPP and SDP. A trial was held on June 10 and 11, 2002, where the court appointed examiner, Mary Kenning, Ph.D, testified, based on her examination and testing of Carner, that he met the statutory criteria for commitment as an SPP and SDP. Dr. Kenning’s testimony was unrebutted. The trial court concluded that the state had established by clear and convincing evidence that Carner is an SPP, as defined in Minn. Stat. § 253B.02, subd. 18b (2002), and is an SDP, as defined in Minn. Stat. § 253B.02, subd. 18c (2002), and thus granted the petition for commitment. This appeal follows.
D E C I S I O N
In reviewing a mental health commitment, this court accepts the trial court’s factual findings unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). Whether the trial court’s factual findings justify commitment, on the other hand, is a question of law subject to de novo review. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).
Sexual Psychopathic Personality
Before a person can be committed as a sexual psychopathic personality (SPP) the state must prove:
[T]he existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.
Minn. Stat. § 253B.02, subd. 18b (2002).
A. Habitual Course of Sexual Misconduct
Initially, Carner did engage in a habitual course of sexual misconduct. Carner has admitted to or has been convicted of engaging in numerous acts of criminal sexual conduct from 1977 through 1985, and to assaulting adult females, and young females ranging from age two to fourteen years of age. While many of his victims were members of his family, he also sexually assaulted young girls he encountered in public places. His sexual assaults have involved fondling, and forced oral, vaginal, and anal sex. Many times he held his young victims at knifepoint and threatened to kill them. Due to these acts, Carner has been convicted of numerous counts of criminal sexual conduct. Thus, there is clear and convincing evidence of a habitual course of sexual misconduct.
Second, is Carner utterly unable to control his sexual impulses. To determine whether a person lacks control of his sexual impulses section 253B.02, subdivision 18b, requires a court to consider: (1) nature and frequency of the sexual assaults; (2) degree of violence involved; (3) relationship (or lack thereof) between the offender and the victims; (4) the offender’s attitude and mood; (5) offender’s medical and family history; (6) results of psychological and psychiatric testing and evaluation; and (7) such other factors that bear on the predatory sex impulse and the lack of power to control it. In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).
Relying on the unrebutted testimony of Dr. Kenning, the trial court concluded that each of the Blodgett factors indicate that Carner has an utter lack of power to control his sexual impulses. Relative to the nature and frequency of his offenses, Dr. Kenning explained that the crimes were close together and could be violent. Specifically, she stated he would push down his victims, hold them at knifepoint, and threaten to kill them. Dr. Kenning also noted that his victims tend to be vulnerable, such as young children and adult women. With regard to Carner’s attitude, mood and family history, Dr. Kenning stated that Carner shows very little remorse, and that Carner has a family history of sexual abuse, as he claims that his father sexually assaulted both him and his sister as children.
Dr. Kenning also testified that Carner’s psychological and psychiatric testing reveal that he is a pedophile with an antisocial personality disorder, and that the actuarial tests indicate that Carner is likely to reoffend. Dr. Kenning explained that Carner scored a 30 on the Hare Psychopathy Checklist, which classifies him as a psychopath and more likely to reoffend. Additionally, Carner scored an 11 on the MN-SOST test, which according to Dr. Kenning, places him at a high-risk to reoffend. Carner scored an 8 on the Static-99, a test that assesses recidivism. Dr. Kenning testified that those people who score over a 6 on the Static-99 recidivate at a rate of over 52% in a fifteen-year-post-release period. Finally, Carner scored a 34 on the Sex Offender Risk Appraisal Guide (SORAG). Under this test, people are placed into one of nine categories. Carner’s score fell within the highest category. Dr. Kenning testified that 100% of offenders in Carner’s category reoffend within ten years of release.
With regard to other factors that affect Carner’s ability to control his sexual impulses, Dr. Kenning stated that while Carner had made some progress in his sexual treatment, his progress began to decline in mid-2001. Carner admitted to his group leader that he was getting “angrier and angrier” during his group sessions, and his fourth quarter report for 2001 noted “passivity and resistance to treatment.” Eventually, Carner was moved from Track 5 to Track 3 “because of his negative, aggressive attitude,” and he was also caught with forbidden pictures of young children. Finally, Dr. Kenning testified Carner’s relapse prevention plan is “ineffective” because it does not contain the appropriate programs and the facility he intended to use for post release treatment was not remotely capable of treating him. In light of these factors, Dr. Kenning opined that Carner has an utter lack of power to control his sexual impulses.
Carner argues, however, that the fact that he has not committed any sexual offenses, and has not engaged in any sexually inappropriate conduct since his institutionalization indicates that he can control his sexual impulses. But Dr. Kenning testified at trial that the prison conditions did not present the type of conditions that led to his prior sexual offenses. She also testified that neither the kind of opportunities nor his usual type of victims were available to him in prison. Thus any ability to control himself while in prison is unlikely to transfer to an ability to control himself when he is out in the community. Carner provided no evidence, other than his own testimony, to contradict this opinion. Dr. Kenning’s opinion is also consistent with that of this court. See In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985) (holding that good behavior in an artificial environment, such as a prison, is not determinative of dangerousness). Thus, we conclude there is clear and convincing evidence to support the trial court’s conclusion that Carner has an utter lack of power to control his sexual impulses.
C. Dangerous to Others
The final issue is whether Carner poses a danger to others. In predicting the risk of serious danger a person presents to the public in the future under the SPP statute, a court considers the following factors: (1) relevant demographic characteristics; (2) history of violent behavior; (3) base rate statistics for violent behavior among individuals of this person’s background; (4) sources of stress in the environment; (5) similarity of the present or future context to those contexts in which the person has used violence in the past; and (6) record with respect to sex-therapy programs. Linehan, 518 N.W.2d at 614.
Dr. Kenning testified that because Carner is a male, was truant as a youth, never held a job for any significant period of time, and has usually been financially supported by his parents or a girlfriend, the demographics suggest he is highly likely to reoffend. Carner has a long history of violent offenses as he has been convicted of four counts of first-degree criminal sexual conduct, three counts of second-degree criminal sexual conduct, and has pled guilty to one count of fourth-degree criminal sexual conduct. Dr. Kenning also testified that the actuarial tests show that Carner is likely to recidivate.
Relying on the unrebutted testimony of Dr. Kenning and in light of the Linehan I factors, the court concluded
[t]hat respondent’s demographic characteristics, history of violent behavior, base rate statistics, the sources of stress in his environment and his lack of skill to cope with the stress, the similarity of his planned environment upon release to the ones in which he has offended previously, and his failure to complete sex offender treatment aggravate respondent’s ability to control his sexual impulses and make him a serious danger to the public . . .
While Carner argues that the actuarial tests are inconclusive as to the issue of his dangerousness because they do not consider the time elapsed since the last offense, Dr. Kenning explained:
[The time lapse between offenses is] not relevant because once you have gotten the history—for, example, with the Hare Psychopathy Checklist . . . —that gets you a score of over 30 then your risk remains quite high and the time between offenses doesn’t matter because you’re somebody likely to reoffend and being incarcerated doesn’t by itself reduce the risk of reoffense.
Additionally, Dr Kenning testified that Carner is unlikely to have an adequate support system to help him prevent reoffending. Specifically, she testified that his mother is the only person he can rely on in this regard, and she is not a good source of support because she has attempted to cover up his past offenses. Dr. Kenning also noted that Carner has in the past returned to places where he knows he can find his victims, such as parks, and she believes that he will do so once again when he finds himself in the same environment.
Finally, Dr. Kenning testified extensively about Carner’s record with respect to sex therapy. In spite of his initial progress, his progress began to decline in mid-2001. Since then, Carner has been caught with contraband, become more aggressive, and grown more uncooperative. As a result he was moved back from Track 5 to Track 3 and placed on probation. He later quit the sex offender program. In light of Dr. Kenning’s testimony, and Carner’s refusal to continue treatment, there is clear and convincing evidence to support the trial court’s conclusion that Carner is a danger to others.
Sexually Dangerous Person
Before a person can be committed as a sexually dangerous person (SDP), the state must prove that the person: (1) engaged in a course of harmful sexual conduct; (2) manifests 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) (2002). While the SDP statute does not require proof of utter lack of ability to control sexual impulses, the Minnesota Supreme Court interpreted the SDP statute and concluded:
[T]he SDP act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them 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) (Linehan IV ).
Course of Harmful Sexual Conduct
The first issue is whether Carner engaged in a course of harmful sexual misconduct. “Harmful sexual conduct” is defined as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Minn. Stat. § 253B.02, subd. 7a (2002). As discussed under the SPP analysis, Carner has been convicted of numerous counts of criminal sexual conduct. There is a rebuttable presumption that criminal sexual assault in the first through fourth degrees creates a substantial likelihood that the victim will suffer serious physical or emotional harm. Minn. Stat. § 253B.02, subd. 7a(b). Carner does not challenge the trial court’s finding that he engaged in a course of harmful sexual misconduct. Carner has not presented any evidence to rebut the presumption of harm, thus there is clear and convincing evidence that Carner engaged in a course of harmful sexual conduct.
A. Sexual, Personality, or Other Mental Disorder & Adequate Control
The next issue is whether Carner manifests a sexual, personality, or other mental disorder. As previously discussed, Carner has been diagnosed as a pedophile with an antisocial personality disorder, and is classified as a psychopath. Because this court concluded in the SPP analysis that the Blodgett factors, show that Carner has an utter lack of control of his sexual impulses, there is clear and convincing evidence that Carner’s present disorders do not allow him to have adequate control over his sexual impulses.
B. Future Harm
Finally, we address whether Carner is likely to cause future harm. The same six factors for predicting danger to others in a SPP commitment are also used to determine future harm for a SDP commitment. In re Linehan, 557 N.W.2d 180, 189 (Minn. 1996), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997) (Linehan III). Because this court concluded under the SPP analysis that the Linehan I factors indicate that Carner is dangerous to others, it necessarily follows that there is clear and convincing evidence that Carner is likely to cause future harm.