This opinion will be unpublished and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

A03-623

 

In the Matter of the Civil Commitment of

Jerome Mathew Daniels.

 

 

FiledNovember 18, 2003

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. P4-01-60448

 

Marilyn B. Knudsen, 1043 Grand Avenue, Suite 207, St. Paul, MN 55105 (for appellant)

 

John L. Kirwin, Adult Services Section, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Hudson, 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 indeterminate commitment as a sexual psychopathic personality and a sexually dangerous person, appellant argues that (1) his pretrial detention pursuant to Minn. Stat. § 253B.07, subd. 2b (2002), violated his due-process rights; (2) the district court erred by making a finding of dangerousness based solely on his pre-commitment behavior; (3) the Civil Commitment Act is unconstitutional; and (4) the evidence is insufficient to establish that he is unable to control his behavior.  We affirm.

Facts

 

Appellant Jerome Matthew Daniels was confined at the Minnesota Correctional Facility at Lino Lakes and was almost 68 years old when an Eden Prairie police officer petitioned for his civil commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP).  On October 31, 2001, the district court issued a provisional hold order to keep Daniels in custody pending a hearing to extend custody.  On November 7, 2001, the court made extensive findings and ordered that Daniels remain in custody pending the outcome of the commitment hearing.  The six-day civil-commitment hearing concluded in Daniel’s initial commitment to the Minnesota Sex Offender Program (MSOP) as an SPP and an SDP on June 3, 2002.  Following the 60-day treatment report and hearing, Daniels was committed for an indeterminate period of time.

Daniels’s offense history begins with his abuse, at age thirteen, of a seven-year-old neighbor girl by “groping her vaginal area and putting his penis between her legs.”  He repeated sexual misconduct throughout his adult life, even after “successfully completing” treatment on two occasions.  With some victims, the conduct also included kissing, digital penetration, touching their breasts, and having the victims touch his penis.  At about the age of 27, he admitted to the police that he had a way of seducing his young victims; he would seek out a seven- to ten-year-old girl, ask for help, and take her to a place where he could grope her genital area and possibly expose himself.  At that time, he thought he had already had about 100 victims.

Daniels first served time in prison in 1960.  After pleading guilty in Wisconsin to disorderly conduct arising out of reports that he had approached two young girls and tried to get them in his car, he was released to Minnesota authorities.  There, his probation for a 1958 indecent assault conviction on a nine-year-old was revoked, and he was sentenced to seven years.  He was paroled in 1963.  In 1977, Daniels was again reported to have attempted picking up two young girls but no charges were brought.  In 1978, he pleaded guilty to second-degree criminal sexual conduct for touching the genitals of two young girls who were daughters of two single mothers, one of whom Daniels was dating.   The court ordered a stay of execution of five years on the condition he complete outpatient treatment at Alpha House. 

In 1985, Daniels was not charged with new offenses despite interviews and reports indicating Daniels’s contacts with other victims in the mid- to late-1970s while he was attending outpatient treatment.  That year, however, Daniels pleaded guilty to second-degree criminal sexual conduct with two young girls, one the daughter of another woman he was dating.  Daniels was given a stayed sentence and ordered to complete inpatient treatment at Alpha House.  In 1989, one year after “successful completion” of inpatient treatment at Alpha House, Daniels was charged with criminal sexual conduct of three seven-year-old girls and one eleven-year-old girl at another girlfriend’s apartment complex.  In 1990, Daniels pleaded guilty to the 1989 offenses and was sentenced as a patterned sexual offender.

At the commitment hearing, Daniels denied many of his prior admissions regarding his offense history and his inability to restrain himself from offending.  He also did not participate in the evaluation process for the 60-day treatment report.  In the social history assessment, social worker Pamela Bidelman recommended that Daniels participate in the assessment and complete inpatient treatment in a secure setting so that he might gradually transition into a secure and carefully monitored community setting.  Clinical Director Anita Schlank concurred that Daniels should participate in the assessment process so that specific treatment recommendations could be made.  The report indicated that Daniels suffers from pedophilia, attracted to females, based on a long history of sexually assaulting pre-pubescent female children.  He appears to suffer from antisocial personality disorder, based on what appears to be a pervasive pattern of perceiving and relating to the world in a dysfunctional manner.  As an adult, this has been evidenced by his failure to conform to society’s norms with respect to lawful behavior, his impulsivity, his deceitfulness, and his apparent lack of remorse.  

The sixty-day report indicates that his prognosis remains “quite guarded” since he has a history of reoffense following his completion of sex offender treatment programs.  In addition, the record indicates that he has admitted that he manipulated treatment.  The record indicates that Daniels still needs comprehensive sex offender treatment. The report concludes that the MSOP would best meet Daniels’s needs because he presents a high risk of reoffending due to the (1) diverse pool of related and unrelated female children victims of various ages; (2) penetration during his offense; (3) reoffense following completion of sex offender treatment; (4) reoffense while on supervised release; (5) history of other criminal behavior; (6) history of alcohol abuse; and (7) high scores on risk assessment tools.

On May 29, 2003, Daniels appealed from the November 7, 2001 hold order, the June 4, 2002 initial commitment order, and the April 1, 2003 indeterminate commitment order.

D E C I S I O N

I.

Indeterminate Commitment Standards

Daniels argues that the statutory scheme for indeterminate commitments does not set forth a standard on which to base such a determination.

The procedures applicable to persons with sexual psychopathic personalities and sexually dangerous persons are set out in the Minnesota Commitment and Treatment Act.  Minn. Stat. §§ 253B.18, .185 (2002).  After a petition, hearing, and findings that clear and convincing evidence establishes that the person falls within the statutory definitions, the district court shall commit the person to a secure treatment facility or other treatment facility willing to accept the person.  Minn. Stat. § 253B.18, subd. 1.  Within sixty days of the commitment, the treatment facility must file a written treatment report.  Id., subd. 2.  At a review hearing after the report is filed, the district court makes a final determination as to whether the person should remain committed.  Id.  If, at the review hearing, the court finds that the person “continues to be a person who [falls within the statutory definitions],” the district court shall commit the person indeterminately.  Id., subd. 3.  The standard for indeterminate commitment, therefore, is the standard set out in the statutory definitions.

The purpose of the final commitment hearing is to consider the views of the treatment facility and to consider any changes in the person’s condition that might bear on his commitment.  In re Linehan ,557 N.W.2d 167 (Minn. 1996) (Linehan III), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).  The same standard is applied at the final hearing as is applied at the initial commitment hearing because the purpose of the final hearing is to review the decision from the previous hearing while allowing for admission of new evidence.  The burden remains on the petitioner to show that there is clear and convincing evidence that the statutory requirements for commitment continue to be met.  Minn. R. Civ. Commitment 23(e).  Therefore, there is no basis for Daniels’s claim that the statute lacks a standard for the final commitment.

II.

Basis for Dangerousness 

Daniels argues that the district court wrongly assumed dangerousness based solely on his pre-commitment behavior.     

As the trier of fact, the district court may resolve factual conflicts and determine the credibility of witnesses, and its factual findings must be affirmed if they are not clearly erroneous.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  The trial court record must be examined in the light most favorable to the findings, In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  Whether the record supports a conclusion that the appellant meets the elements for commitment is a question of law reviewed de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994)(Linehan I). 

There is an element of “dangerousness” under both the SPP and SDP statutes.  SPP means the existence in any person of certain conditions that 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).  The SDP statute requires proof of “future dangerousness,” and links that finding to the existence of a mental abnormality or personality disorder that makes it difficult, if not impossible, for the person to control his dangerous behavior.  In re Linehan, 594 N.W.2d 867, 875 (Minn. 1999) (Linehan IV) (quotations omitted). 

            Daniels provides no legal support for his contention that the district court must have evidence other than his pre-commitment behavior to support the finding of dangerousness.  Between the preliminary and the final orders, there is also an opportunity to present new evidence that the pre-commitment dangerousness no longer exists, but Daniels provided none.  In contrast, the court had abundant expert evidence that Daniels’s behavior had not changed.  The evidence supporting the conclusion that Daniels is highly likely to reoffend was contained in the review report.  And the record indicates that he still needs treatment.  In the June 4, 2002 findings, the district court noted several experts who agreed that Daniels was highly likely to reoffend and therefore was dangerous.  The court also found that the court-appointed evaluators and licensed psychologist Jack Rusinoff were more credible than the department evaluators, which supports the conclusion that Daniels is still essentially an untreated pedophile.  Therefore, there was no error in the court’s determination of Daniels’s dangerousness.  

III.

Propriety of Hold Order 

Daniels argues that conditional release is required for treatment.  He contends that the record did not support the October 31, 2001 hold order because there was no showing that likely physical harm would result from his release.  Respondent Hennepin County argues that this claim is moot because the hold order is no longer effective and therefore cannot be enforced or dismissed. 

An issue is moot if there is no longer subject matter on which a decision on appeal could operate.  E.g., State v. Arens, 586 N.W.2d 131 (Minn. 1998) (appeal of a pretrial bail order is moot after conviction, because holding bail provision was unconstitutional would not afford defendant any relief).  An appeal is not moot, however, where the issue raised is capable of repetition yet evades review or where collateral consequences attach to the judgment.  In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999).

The constitutionality of the procedure for prehearing confinement of an allegedly mentally ill person is an issue capable of repetition yet evading review due to the short duration of the hold and the possibility of multiple confinements.  State ex rel. Doe v. Madonna, 295 N.W.2d 356, 360 (Minn. 1980).  Where the issue raised on the appeal of the pretrial detention order does not present a broader issue capable of repetition, however, the appeal is moot.  See McCaskill, 603 N.W.2d at 328.

Here, the issue raised by Daniels’s appeal of the hold order is whether the evidence in his case sufficiently showed a likelihood of serious physical harm.  This is a narrow issue unlikely to be raised again, likely incapable of repetition, and does not evade review.   The district court’s hold order and continued hold order are reviewable.  Minn. R. Civ. App. P. 105.01, 120.01.   Furthermore, because he has been committed indefinitely as an SPP and SDP, there is little likelihood that Daniels will be subjected to a hold order again.  After the final order for indeterminate commitment, Daniels is subject to procedures for transfer, provisional discharge, or discharge and hold orders are unnecessary.  Minn. Stat. § 253B.18, subd. 3.  Therefore, appeal of the hold order at this time is moot.

Notwithstanding our determination that the appeal of the hold order is moot, we conclude that the evidence in the record showed a likelihood of serious physical harm supporting the order.  The findings reflect Daniels’s multiple physical acts of digital penetration and fondling of children, use of force and manipulation on victims, and the consequent embarrassment and humiliation of the victims.  There is no requirement that petitioner establish that the victims experienced severe pain at the time of the act.  See In re Knops, 536 N.W.2d 616, 620-21 (Minn. 1995) (determining that digital penetration which caused removal of hymenal tissue constitutes serious physical injury). The physical harm inflicted by Daniels is a combination of his manipulation and force used on particularly vulnerable victims, the multiplicity of his assaults upon certain victims, and his status of a trusted and authoritative person.  While the actual harm to some of the young victims might not yet be fully realized, one victim’s testimony at trial expressed the level of lasting insecurities and fears that also constitute serious harm.  See In re Preston, 629 N.W.2d 104, 112  (Minn. App. 2001)(determining that serious psychological harm is sufficient to meet the violence requirement); In re Robb, 622 N.W.2d 564, 572 (Minn. App. 2001)(determining that serious harm results from acts that are "highly likely to have a serious, lasting effect on the victim's sense of security and to cause a continuing sense of fear"), review denied (Minn. Apr. 17, 2001).  Therefore, the court’s hold order was based on sufficient evidence of the likelihood of serious physical harm resulting from a release.

IV.

Constitutional Shift in Burden of Proof

Daniels argues that the commitment act unconstitutionally shifts the burden to him to show a less restrictive alternative to commitment. This court addressed this very issue in the SPP and SDP commitment case In re Kindschy, 634 N.W.2d 723, 731 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).  There, the court noted that the SPP and SDP statutes do not confer a right to the least-restrictive treatment program available.  Therefore, the statute does not burden the defendant with proof of the treatment options.  Id.


V.

Burden of Proof 

Clear and convincing evidence is required to support an individual’s commitment as an SPP and SDP.  Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd. 1 (2002).  Clear and convincing evidence 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). 

Daniels argues that the commitment act must require proof beyond a reasonable doubt.  Yet he concedes that the constitutionally minimum burden of proof for commitment is clear and convincing evidence as set out in Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979).  This court has also concluded on several occasions that the lack of procedural safeguards identical to those in the Kansas statute in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997), do not render the Minnesota statutes unconstitutional.  See, e.g., Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999), review denied (Minn. July 28, 1999).  Therefore, there is no support for application of the heightened burden of proof in this case.

VI.

Inability to Control 

Daniels argues that he has shown control in a prison setting and in Arizona and that proper monitoring would provide controls necessary to allow him an alternative to commitment. 

Both the SPP and SDP statutes require that the court find the patient’s lack of control over his sexual impulses, Minn. Stat. § 253B.02, subd. 18b (2002) (SPP requires “utter lack of power to control”); Linehan IV, 594 N.W.2d at 876 (SDP requires that person’s disorder “does not allow [him] to adequately control [his] sexual impulses”), and the record provides ample support for the court’s findings of lack of control.

Daniels admitted that he genuinely thought that he would follow through with his Alpha House in-patient therapy and that he would not reoffend.  He also admitted that, despite that intention, he reoffended.  The district court also made findings that Daniels’s caseworker reported that Daniels was continually trying to overcome the urges to molest female children and that he felt almost powerless to restrain himself.  The court specifically commented on Daniels’s lack of credibility based on his demeanor when he denied allegations in his early caseworker’s reports.  When the court asked Daniels specifically why he did not deal with the addictive behavior the way he dealt with smoking and drinking, Daniels responded, “I just can’t.  I don’t know.  It was there.  The desire was there.”  Both court-appointed examiners concluded that the hallmarks of Daniels’s personality are impulsivity and lack of control.  This evidence of lack of control and the examiners’ opinion that they are unaware of a program providing the security necessary to protect the public, defeat Daniels’s claim of a satisfactory alternative to commitment.

Affirmed.