This opinion will be unpublished and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: Steven George Notch.
Filed January 13, 2004
Stearns County District Court
File No. PX-02-5171
Michael G. Blee, 1529 West St. Germain, Box 801, St. Cloud, MN 56302-0801 (for appellant Steven George Notch)
Janelle P. Kendall, Stearns County Attorney, Richard J. May, Assistant Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent Stearns County)
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Anderson, Judge.
G. BARRY ANDERSON, Judge
In 1986, appellant Steven George Notch murdered his sleeping roommate by shooting him in the head twice. Notch committed the murder because he believed his roommate and some of his roommate’s friends, who were not in the house, had blocked the exits and planned to rape Notch. Notch also believed that his roommate was a child molester. Notch was convicted of second-degree murder for the killing. In that trial, Notch unsuccessfully asserted an insanity defense. Shortly before his prison term was to expire, the county brought a petition to commit Notch as a mentally ill and dangerous person. The district court granted the petition and ordered Notch indefinitely committed as mentally ill and dangerous. We affirm.
Notch has a lengthy history of violence and mental illness. In 1978, Notch physically assaulted a teacher at the Galloway Boys Ranch; Notch was placed in that school because of conflict at home. In 1982, Notch wrote in white paint on his neighbor’s driveway, “I will kill your whole family before I die.” After this, Notch was placed in the Willmar Regional Treatment Center and attempted suicide there.
In 1985, while at Brainerd Regional Treatment Center, Notch started a grass fire. Also in 1985, Notch kicked his father in the throat and was committed. Notch said his parents made the incident up because they “had lost their minds.” Seven months later, Notch kicked a police officer in the face four times because Notch believed the officer made sexual advances on him and “had mental health problems.” After the assault, Notch was evaluated for mental-health problems, and he revealed that he had repeatedly contemplated homicide.
After the 1986 murder of his roommate, Notch was convicted of second-degree murder. In that case, Notch became convinced his roommate was a rapist because Notch said the roommate had grabbed Notch’s back side, gave Notch a “bad look,” and had been seen “mooning” another male. Notch also believed his roommate was a child molester because Notch saw “signs” of it between the roommate and the roommate’s five-year-old son. On the night of the murder, Notch believed the roommate’s “gay” friends were guarding the exits of the house so the roommate and his friends could rape Notch; thus, Notch believed he was acting in self-defense. While the roommate was sleeping, Notch shot the roommate in the head with a rifle. Notch explained that he fired again to put the roommate “out of his misery” when the roommate started gurgling. The jury convicted Notch and rejected his insanity defense.
In 1988, Notch threatened to beat two prison guards and threw a glass bowl at other guards. In prison, Notch has said there were many “come ons” by people he believes are mentally disturbed. Notch has also referred to at least one of the guards as a child molester and rapist. Prison officials documented numerous events showing bizarre behavior by Notch, but he denies those events took place and maintains those are lies propagated by “sick” people, even though at least one of the incidents was caught on videotape. Notch believes that many of those around him are child molesters or rapists, and he has acted violently because he believes that they are threatening him. Despite the fact that he has been diagnosed as having paranoid schizophrenia numerous times, Notch has consistently denied being mentally ill and has refused medical treatment.
Shortly before his prison term ended, Stearns County filed a petition to commit appellant. At Notch’s review hearing following his commitment, all four of the mental-health professionals who testified stated that Notch suffers from paranoid schizophrenia, that he committed the requisite overt act, and that there is a substantial likelihood he will engage in acts that can result in serious harm in the future. Based on this testimony and the record, the district court concluded that Notch is mentally ill and dangerous and committed him for an indefinite period. This appeal followed.
I. Double Jeopardy
Notch argues that his proposed commitment violates the prohibitions against double jeopardy contained in the U.S. and Minnesota Constitutions. Minnesota Rule of Civil Procedure 24.04 and Minnesota Rule of Civil Appellate Procedure 144 both require notice to the attorney general prior to challenging the constitutionality of a Minnesota statute. Notch did not provide timely notice to the attorney general of his challenge to the constitutionality of the statutes governing the commitment of those found to be mentally ill and dangerous.
While lack of notice to the attorney general does not absolutely bar this court from considering constitutional issues, Elwell v. Hennepin County, 301 Minn. 63, 73, 221 N.W.2d 538, 545 (1974), such issues will be considered on an as-applied basis only if they have been adequately raised and considered at the district court and the appellate record is sufficient for review. Erickson v. Fullerton, 619 N.W.2d 204, 208 (Minn. App. 2000). At the district court, Notch stated in one sentence that the district court needed to determine whether his commitment was constitutional; later, apparently relying on this sentence, Notch asserted that his commitment violates the double-jeopardy provisions of the U.S. and Minnesota constitutions. The district court did not consider the constitutional argument. Notch’s “argument” concerning double jeopardy was not adequately briefed and was not considered by the district court. Therefore, we will not address Notch’s challenges to the constitutionality of the statutes governing his commitment. See id.
II. Expert Testimony
Notch argues that the expert testimony on future dangerousness is neither admissible nor reliable. “A district court’s evidentiary ruling on the admissibility of an expert opinion rests within the sound discretion of the trial court and will not be reversed unless it is based on an erroneous view of the law or it is an abuse of discretion.” Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998).
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,” an expert may give an opinion. Minn. R. Evid. 702. The expert’s opinion can be based on facts “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Minn. R. Evid. 703(a). This testimony “is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Minn. R. Evid. 704.
Commitment decisions involving mentally ill and dangerous individuals have consistently held that experts may testify concerning an individual’s future dangerousness and that an experts’ testimony may be the only evidence of future dangerousness. The supreme court has upheld a finding of future dangerousness when the only evidence introduced on future dangerousness, other than the past overt act, was the testimony of an expert. In re Jasmer, 447 N.W.2d 192, 196 (Minn. 1989). We have similarly ruled that there was sufficient evidence to find future dangerousness based solely on expert testimony. See, e.g., In re Dirks, 530 N.W.2d 207, 211-12 (Minn. App. 1995); In re Grafstrom, 490 N.W.2d 632, 637 (Minn. App. 1992); In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985). Thus, Notch’s argument is simply incorrect. The district court properly admitted and ruled on expert testimony in finding future dangerousness.
III. Substantive due process
The U.S. and Minnesota constitutions protect citizens from deprivation of their liberty without due process of law. U.S. Const. amend. XIV; Minn. Const. art. I, § 7. “Both guarantees include substantive components prohibiting ‘certain arbitrary, wrongful government actions.’” In re Linehan, 557 N.W.2d 171, 181 (Minn. 1996) (quoting Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990)) vacated Linehan v. Minnesota, 522 U.S. 1011, 118 S.Ct. 596 (1997). Notch argues his substantive due-process rights have been violated in two ways. First, he argues that the evidence is insufficient to support his commitment. Second, he argues that his commitment as a mentally ill and dangerous person is not narrowly tailored to protect society.
a. sufficiency of the evidence
Notch argues that the overt act must be the product of the mental illness, the experts’ opinions were given too much weight, the overt act was too remote in time to support a finding that Notch is mentally ill and dangerous now, and thus the evidence is insufficient to support his commitment.
Notch’s claim that the overt act must be the product of the mental illness is wrong. This court has said, “[A]n overt act demonstrating dangerousness need not be the result of mental illness.” In re Hofmaster, 434 N.W.2d 279, 281 (Minn. App. 1989).
Notch’s argument concerning the expert testimony is also incorrect. We have already concluded that the district court properly relied on expert testimony in finding future dangerousness; thus, there was sufficient evidence to support the finding of future dangerousness and therefore the commitment.
Notch’s last argument, that the overt act is too remote in time, is also unpersuasive. “[R]emoteness of an overt act does not necessarily preclude commitment as mentally ill and dangerous.” In re Irwin, 529 N.W.2d 366, 374 (Minn. App. 1995) review denied (Minn. May 16, 1995). This is because good behavior in an artificial, confined environment is not conclusive. Hofmaster, 434 N.W.2d at 281 (stating that “good behavior in the artificial environment of a hospital is not conclusive”). In Hofmaster, the court said:
We think it is a close question whether the 1977 incident by itself would be sufficient to demonstrate that Hofmaster poses a clear danger to others at the present time. We conclude, however, that the trial court could properly consider Hofmaster’s entire history, including his actions both prior and subsequent to the 1977 incident, when determining that he remains a clear danger to others.
Id. (emphasis in original)
Here, although the overt act is roughly 17 years old, it was not an isolated incident. Prior to his incarceration, Notch assaulted a police officer and his father, and he threatened neighbors. Quite recently, Notch has engaged in bizarre behavior and has repeatedly described people around him as rapists or child molesters. The lack of recent violence is not conclusive because Notch has been in detention since his last serious outburst. See Hofmaster, 434 N.W.2d at 281. We reject the argument that the remoteness of the overt act automatically precludes civil commitment. Thus, the overt act is not too remote in time because Notch has been in detention since the overt act was committed, Notch has a history of violence, Notch has recently engaged in bizarre behavior that is of concern, and Notch has refused treatment.
b. narrowly tailored remedy
Notch argues that he is only subject to commitment for a six-month period provided by Minnesota Statutes section 253B.09, subdivision 5 (2002).
In Blodgett, the issue was squarely addressed. Blodgett sought release arguing that a “psychopathic personality condition is untreatable, and, therefore, confinement is equivalent to life-long preventive detention.” 510 N.W.2d at 916. The Minnesota Supreme Court rejected Blodgett’s argument and stated, “So long as civil commitment is programmed to provide treatment and periodic review, due process is provided.” Id. The court continued that indefinite commitment satisfied substantive due process because the patient “may petition the Commissioner of Human Services at any time” for release. Id. This echoed an earlier decision from the U.S. Supreme Court in which the high court, in a different context, said:
We hold that when a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.
Jones v. U.S., 463 U.S. 354, 370, 103 S. Ct. 3043, 3052-53 (1983). Here, Notch is raising, essentially, the same issue raised in Blodgett and in Jones, that his detention violates substantive due process because he is indefinitely confined. Jones and Blodgett rejected that argument, and we do so as well. Just as Blodgett’s and Jones’ commitments were programmed to provide treatment and allowed them to be released once they met the criteria for release, Blodgett, 510 N.W.2d at 916; Jones, 463 U.S. at 370, 103 S. Ct. at 3052-53, so too does Notch’s commitment provide for treatment and release upon a successful petition. Thus, the mentally ill and dangerous statute satisfies substantive due process requirements.
 Even were we to consider the issue, Notch concedes that the commitment is civil and not criminal in nature; thus, there is no double-jeopardy violation. See In re Blodgett, 490 N.W.2d 638, 646 (Minn. App. 1992) (quoting U.S. v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897 (1989)), aff’d, 510 N.W.2d 910 (Minn. 1994).
 Notch also argues that because the evidence was insufficient to commit him, his substantive due-process rights were violated. Because we conclude the evidence was sufficient, we do not reach whether the argument even implicates substantive due-process rights.