This opinion will be unpublished and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

A03-1019

In the Matter of Randy Dean Fox

 

 

Filed January 13, 2004

Affirmed
Poritsky, Judge
*

 

Hennepin County District Court

File No.  PO-02-60246

 

 

Brian C. Southwell, 701 Fourth Avenue South, Suite 500, Minneapolis, Minnesota 55415 (for appellant)

 

 

Amy Klobuchar, Hennepin County Attorney, Theresa F. Couri, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge; Shumaker, Judge; and Poritsky, Judge.

 

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

The district court found appellant Randy Dean Fox to be a sexually dangerous person (SDP) and ordered him committed to the Minnesota Sex Offender Program for an indefinite period of time.  In this appeal, Fox argues that (1) this court should remand for findings on whether Fox has serious difficulty in controlling his behavior; (2) the SDP commitment statute is unconstitutionally vague as applied to him because it fails to narrowly define the terms “adequate control” and “course of harmful sexual conduct” and thereby allows for arbitrary enforcement; (3) the district court erred in finding that his conduct involving three individuals was harmful sexual conduct; (4) the district court abused its discretion by admitting into evidence and relying on portions of a pre-sentence investigation describing conduct involving a fourth individual; and (5) the district court violated his due-process rights by denying his request for a jury trial.  We affirm.

FACTS   

In April 1992, Fox pleaded guilty to one count of kidnapping and one count of first-degree criminal sexual conduct against T.P.  Fox was sentenced to an executed prison term of 183 months.  He was released from prison in January 2002 and released from a half-way house in March of that year.  In May 2002, a sergeant from the Minneapolis Police Department filed a petition to commit Fox as a sexually dangerous person (SDP) and sexual psychopathic personality (SPP). 

Fox has a history of criminal sexual behavior, consisting of assault, criminal sexual conduct, and kidnapping.  His history, starting in 1979, shows acts of increasing violence and aggressiveness.  J.M testified at Fox’s commitment hearing that in June 1979 Fox sexually touched her without her consent.  She stated that she reported the incident to the police.  Fox later admitted that he touched J.M.’s breast after she refused to engage in sexual conduct with him and that he placed his hand on her mouth when she started to scream and struggle.  Fox was not prosecuted for this incident. 

            In September 1980, Fox followed S.S. in his van for six to ten blocks.  The incident occurred at approximately 2:20 a.m.  S.S. testified at Fox’s commitment trial and stated that she confronted Fox, but he continued to follow her.  No charges were filed against Fox as a result of this incident.  During his commitment trial, Fox admitted that he followed S.S. but stated that he thought she was a classmate from his high school. 

            On October 11, 1981, at 5:30 a.m., Fox abducted a 13-year old girl, C.Y., and forced her into his van.  C.Y. escaped and reported the matter to the police.  Fox admitted to police that he tried to get C.Y. into his van so he could “get into her pants, to screw her.”   Within one hour of kidnapping C.Y., Fox approached two girls, A.H. and S.B., as they walked to work.  Fox approached 16-year old A.H. while driving his van and asked if she wanted a ride.  A.H. refused and ran to work where she called the police.  Fox also approached S.B. while driving his van and “tried talking her into getting a ride from him.”  S.B. ran to work and reported the incident to the police.  Fox admitted that he talked to each girl and asked if they wanted a ride to work.  No charges were filed for Fox’s involvement with A.H. and S.B., but both girls testified against Fox at his trial for the kidnapping of C.Y.   Fox was convicted of kidnapping with intent to commit sexual assault against C.Y. and received a stayed sentence of 21 months on the condition that he complete outpatient treatment for chemical dependency.  Fox never completed treatment.

            In May 1985, Fox picked up T.D., a prostitute, in Minneapolis.  Fox tried to take off her clothes, and demanded that she give him oral sex.  T.D. told him to calm down, but Fox grabbed and choked her.  T.D. struggled with Fox but managed to get out of the vehicle.  Fox chased after her and pulled off her wig.  T.D. was cut when she struggled to get a knife away from Fox.  A passing vehicle took T.D. to the police station where she reported the incident.

            A few months later, a police officer investigated a claim that on October 13, 1985, Fox committed an offense against P.M.  However, Fox was never charged for this alleged offense, and P.M. did not testify at Fox’s commitment hearing.  The information was admitted in the commitment hearing in a pre-sentence investigation (PSI) that had been completed in preparation for sentencing Fox on the assault against T.D. 

On February 13, 1986, a jury convicted Fox of second-degree assault against T.D., and Fox received an executed sentence of 26 months.  On July 21, 1987, Fox was paroled to a halfway house, and no other sexually related offenses were reported until 1991.  In November 1991, Fox met T.P and invited her to his apartment.  After having drinks and talking with Fox, T.P. tried to leave, but Fox pushed her onto the bed, put his hand on her nose and mouth, threatened to hit her if she screamed, and put a “wooden thing” across her neck.  Next, Fox tied her up, threatened to hit her with an axe handle, put Kleenex in her mouth, tape around her face, and fastened a shirt around her eyes.  Fox then inserted his fingers into her vagina, raped her multiple times, and cut her pubic hair.  Fox eventually untied T.P. and let her go on the condition that he would kill her if she told anyone.  T.P. reported the matter to the police.  She suffered a swollen neck, lips, and cheek as well as a sore throat from the incident. For the offense against T.P., Fox received an executed sentence of 183 months in prison.  Fox was incarcerated from June 5, 1992, until January 8, 2002, when he was released to a halfway house. 

 In April 1992, Fox was interviewed by Dr. Mary Kenning, a court psychologist, in connection with the T.P. incident.  Fox said that he was “unable to account for his own behavior” with T.P. and that “something snapped” inside of him.  Fox told Dr. Kenning that T.P. bit his arm and that was when he “lost it.”  He also told Dr. Kenning that he had a sex problem.  Fox further stated that he was “really scared of what was going on but [he] couldn’t stop, [and he] didn’t know why.”  He stated that he had “never been that mad before.” 

During Fox’s commitment hearing on October 15, 21, 30, and December 16, 2002, Dr. James Alsdurf, the first court-appointed examiner, testified that he diagnosed Fox with sexual paraphilia, alcohol and marijuana dependence, and personality disorder not otherwise specified with antisocial and narcissistic features.  He recommended commitment as a SDP, testifying that Fox did not have adequate control over his sexual impulses and was highly likely to commit harmful sexual conduct.  Dr. Roger Sweet, the second court-appointed examiner, also diagnosed Fox with alcohol and marijuana dependence, and personality disorder with antisocial and narcissistic features.  He testified that when Fox is under the influence of drugs and alcohol, he has serious difficulty controlling his sexual impulses and is more likely to re-offend.  In their reports, both examiners noted Fox’s lack of appreciation and understanding of his previous conduct.  Dr. Sweet reported and testified that Fox expressed remorse toward T.P. but showed no remorse for his other victims.  Dr. Alsdurf reported that Fox’s lack of remorse and understanding was due to his narcissistic personality.  Neither examiner concluded that Fox met the criteria to designate him as a SPP. 

            The district court committed Fox as a SDP, but concluded that there was insufficient evidence to commit Fox as a SPP.  On May 30, 2003, a hearing for indeterminate commitment was held where the court found no new evidence to suggest that Fox was any less of a risk than he was at the commitment hearing.  As a result, on June 3, 2003, the district court ordered Fox indeterminately committed as a SDP. 

D E C I S I O N

 

Whether the record supports the standards for commitment with clear and convincing evidence is a question of law, which this court reviews de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994), rehearing denied (Minn. Aug. 15, 1994) (Linehan I).  Findings of fact will not be reversed unless clearly erroneous.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810 , 811 (Minn. 1986). 

To commit a person as a SDP, the petitioner must prove four elements.  Three of the elements are contained in the SDP statute.  Under the statute, the petitioner must prove that the person (1) has engaged in a course of “harmful sexual conduct,” as defined in Minn. Stat. § 253B.02, subd. 7a (2002); (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct.  Minn. Stat. § 253B.02, subd. 18c(a) (2002).  Under case law, the petitioner must also prove a fourth element: that the person has a “present disorder or dysfunction [that] does not allow [the person] to adequately control . . . sexual impulses, making it highly likely that [the person] will engage in harmful sexual acts in the future.”  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) cert. denied, 528 U.S. 1049, 120 S. Ct. 587 (1999) (Linehan IV).  The elements must be proven by clear and convincing evidence.  Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd 1 (2002); see also Addington v. Texas, 441 U.S. 418, 433, 99 S. Ct. 1804, 1813 (1979) (stating that due process requires a clear and convincing standard of proof in involuntary commitment proceedings).  We address Fox’s arguments in the order they were presented.

1.  District Court Findings

The district court did not make a specific finding on the issue of whether Fox had serious difficulty in controlling his sexually dangerous behavior.  Fox argues that this court should remand for a finding on that issue.  We disagree.  Because the factual specificity requirements found in Minn. Stat. § 253B.09, subd. 2, (relating to commitments of persons who are mentally ill, mentally retarded, or chemically dependent) were not adopted in the SDP act, district courts are not under an obligation to make such specific findings.  In re Ayers, 570 N.W.2d 21, 25 (Minn. App. 1997); see also In re King, 476 N.W.2d 190, 194 (Minn. App. 1991) (concluding sufficient evidence sustained district court’s findings on least-restrictive treatment program where expert opinion supported court’s finding, even though findings were scant).

Three of the eight complaints against Fox¾those involving C.Y., T.D. and T.P¾resulted in convictions for sex-related offenses.  As we demonstrate below in paragraph 3, there is ample credible evidence to support the district court’s findings that Fox committed acts of harmful sexual conduct upon two other victims, A.H., and S.B.  And although Fox was never prosecuted for the 1979 incident involving J.M., the record supports the court’s finding that Fox’s actions amounted to harmful sexual conduct.  In describing the T.P. incident, Fox stated that he was “unable to account for his own behavior,” that “something snapped” inside of him, that he “lost it,” and that he had a sex problem.  The district court relied on this evidence and the expert testimony to support its decision that Fox is a SDP.  Because specific findings are not required, and because the district court’s findings support its conclusion that Fox is a SDP, which necessarily includes a finding that Fox has serious difficulty in controlling his behavior, this court does not need to remand for further findings. 

2.  Constitutional Arguments

Fox argues that the phrases “lack of adequate control” and “course of harmful sexual conduct” are unconstitutionally vague and allow arbitrary enforcement of the SDP law as applied to him.  And, because those terms are vague, he also asserts that his commitment under those terms violates his right to liberty.  A statute that “defines an act in a manner that encourages arbitrary and discriminatory enforcement, or . . . is so indefinite that people must guess at its meaning” is void for vagueness.  Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 (Minn. App. 2001) (quotation omitted).

This court recently addressed the vagueness issue in In re Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002) in which we pointed out that any vagueness in the phrase “adequate control” comes from taking it out of context.  Further, as stated in Ramey, “[t]aken in the larger context of the holding of Linehan IV, the meaning of the phrase ‘adequate control’ is clear; an offender’s history of harmful sexual conduct and a high likelihood of future dangerousness, coupled with a mental illness or dysfunction, demonstrates that an offender will find it difficult to control behavior.”  Id. at 268 (citing Linehan IV, 594 N.W.2d at 875).  In challenging a statute as void for vagueness, the challenging party must show that the statute lacks specificity as to his own behavior.  Ruzic v. Comm’r of Pub. Safety, 455 N.W.2d 89, 92 (Minn. App. 1990), review denied (Minn. June 26, 1990).  Because, as the district court found, it is highly likely that Fox will engage in harmful sexual conduct, given his current mental disorders, past course of harmful sexual conduct, and difficulty in controlling his sexual impulses, the lack-of-adequate-control standard is not vague as applied to Fox.  See Ramey, 648 N.W.2d at 268-69. 

Also in Ramey, this court determined that “course” is defined as “a systematic or orderly succession; a sequence.”  Id. at 268.  The course of conduct need not consist solely of convictions, but may also include conduct amounting to harmful sexual conduct for which the offender was not convicted.  Id.  In Ramey, we concluded that “the phrase ‘course of harmful sexual conduct’ [was] not vague as applied to Ramey.”  See 648 N.W.2d at 268-69.  Here, we likewise conclude that the phrase is not vague as applied to Fox.    

Fox also argues that because the Department of Corrections did not recommend commitment, the SDP statute lends itself to arbitrary enforcement.  We find this argument unpersuasive because under the SDP statute, the county attorney is the proper party to determine whether to proceed with a SDP petition.  Minn. Stat. § 253.185, subd.1.  Because the decision to proceed is vested in the county attorney, a conflict in opinions between the DOC and the county attorney’s office does not support a claim of arbitrary enforcement of the law.   

3.  Conduct involving S.S., A.H., and S.B.

             Fox next contends that the district court erred in its findings concerning Fox’s conduct in the incidents involving S.S., A.H., and S.B. Because no physical sexual contact or physical contact was involved in these incidents, he argues, his conduct did not amount to harmful sexual conduct.  “The trial court’s findings of fact will not be reversed unless clearly erroneous.”  In re Robb, 622 N.W.2d 564, 568 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001) (quotation omitted).  “‘Harmful sexual conduct’ means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.”  Minn. Stat. § 253B.02, subd. 7a(a) (2002) (emphasis added).

As to S.S., we agree with Fox.  S.S. reported to police that while she was in her car, Fox followed closely behind in his van.  S.S. testified that she pulled into her driveway, stayed in her car, and watched the van drive by several times, at a slow speed, with its headlights turned off.  S.S. decided to confront Fox by driving beside his van, and asking him why he was following her.  S.S. testified that Fox told her his name was George.  S.S. testified that Fox continued to follow her, and drove past her several times while she was in a gas station reporting the incident to the police.  But no charges were filed against Fox, and while Fox may have committed a criminal act by stalking S.S., there is no evidence of any sexual conduct in the incident. 

As to the girls A.H. and S.B., we conclude that the district court did not err.  Both girls testified at Fox’s trial on the charges of kidnapping C.Y.  Although Fox claims that he only offered them a ride, Fox admitted that the crime against C.Y. was sexually motivated.  Fox’s conduct toward the two girls happened within an hour after his kidnapping of C.Y.  His conduct toward the girls and his conduct toward C.Y. were similar enough to allow the district court to find that his conduct toward the girls was harmful sexual conduct.    

4.  Conduct involving P.M.

Fox also argues that the district court erroneously found that he sexually assaulted P.M. because the district court improperly relied on a pre-sentence investigation report.  We agree.  This court will not reverse a district court’s evidentiary ruling absent a clear abuse of discretion.  State v. Washington, 521 N.W.2d 35, 41 (Minn. 1994).  A reviewing court will not reverse the district court’s admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1998). 

The only evidence received at the commitment hearing concerning Fox’s conduct toward P.M. consisted of a paragraph in the pre-sentence investigation report that was prepared in connection with Fox’s sentencing for assaulting T.D.  The incident involving P.M. was never prosecuted, and P.M. did not testify at Fox’s commitment hearing.  As a result, there is insufficient evidence to support a finding by clear and convincing evidence that the P.M. incident took place. 

            Respondent argues that even if the district court erred in finding that Fox’s conduct involving S.S. and P.M. was harmful sexual conduct, his offenses against J.M., C.Y., A.H., S.B., T.D., and T.P. clearly meet the standard of a course of harmful sexual conduct.  We agree.  Fox’s record still shows harmful sexual conduct toward those six victims, all occurring during a period of slightly over 12 years (6/16/79 to 11/10/91, 15 months of which Fox spent in prison).  Fox’s most recent conviction is for one count of kidnapping and one count of first-degree criminal sexual conduct.  Fox repeatedly raped T.P., physically abused, and humiliated her.  As we have noted, his history shows incidents of increasing violence and aggressiveness.  In connection with the offense against T.P., Fox stated that he was “unable to account for his own behavior,” that “something snapped” inside of him, that he “lost it,” and that he had a sex problem.  He also stated that he was “really scared of what was going on but [he] couldn’t stop, [and he] didn’t know why,” and that he had “never been that mad before.”  The incidents with respect to these victims support the district court’s findings that Fox engaged in a course of harmful sexual conduct. 

5.  Right to Jury Trial

Although Fox acknowledges that there is no statutory right to a jury trial in civil commitment proceedings, he argues that he is entitled to a jury trial under the United States and Minnesota Constitutions.  We disagree.

The Minnesota Supreme Court has rejected the argument that the Minnesota Constitution provides a right to a jury trial in commitment proceedings.  State ex rel. Anderson v. U.S. Veterans Hosp., 268 Minn. 213, 221-22, 128 N.W.2d 710, 716-17 (1964); see also State ex rel. Pearson v. Probate Court, 205 Minn. 545, 557, 287 N.W. 297, 303 (1939) (holding that the absence of provision for jury trial in SPP statute does not deny due process), aff’d, 309 U.S. 270, 60 S. Ct. 523 (1940).  Fox cites a guardianship statute and guardianship cases to argue that the right to a jury trial in commitment proceedings was embodied in the Minnesota constitution when the constitution was adopted.  The present case, however, involves a civil commitment, not a guardianship proceeding.  Judicial commitments for the mentally ill did not exist in Minnesota until after the constitution was adopted.  Therefore, there was no jury trial for such cases at the time of adoption.  See Pearson, 205 Minn. at 557, 287 N.W.2d at 302.  For this reason we reject Fox’s argument that the Minnesota constitution grants him the right to a jury trial, which he bases on a claim that the right to a jury trial was embodied in the Minnesota constitution when it was adopted. 

Fox argues further that the federal constitution grants him a right to a jury trial.  In support of this argument he cites Kansas v. Hendricks, 521 U.S. 346, 364, 117 S. Ct. 2072, 2083 (1997).  In Hendricks the Supreme Court upheld the Kansas commitment statute, which included a right to jury trial.  But there is nothing in Hendricks that says that states must grant a right to a jury trial in commitment proceedingsId.  at 361-63, 117 S. Ct. at 2082-83. 

In Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999), review denied (Minn. July 28, 1999), this court considered Hendricks and concluded that the Supreme Court did not mandate jury trials in a commitment proceeding.  Joelson involved sexual psychopathic personality (SPP) cases, but the same reasoning applies to the SDP statute.  The Minnesota Commitment Act, which applies to both SPP and SDP cases, does not afford a jury trial.  See Minn. Stat. § 253B.185, subd. 1 (2000) (“Upon the filing of a petition alleging that a proposed patient is a sexually dangerous person or is a person with a sexual psychopathic personality, the court shall hear the petition”).  Fox encourages this court to change the law.  But see Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating that the task of extending the law falls to the supreme court or the legislature, but not to this court), review denied (Minn. Dec. 18, 1987).  For these reasons, we reject Fox’s argument that the SDP statute violates the federal constitution by not providing for a jury trial. 

Affirmed.



*          Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment to Minn. Const. Art. VI, § 10.