This opinion will be unpublished and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

A03-1330

 

 

In the Matter of the Civil Commitment of:

Kirk Alan Fugelseth.

 

 

Filed March 9, 2004

Affirmed; motions denied

Anderson, Judge

 

Clay County District Court

File No. PX-02-1341

 

Beverly L. Adams, Serkland Law Firm, 10 Roberts Street, P.O. Box 6017, Fargo, ND 58108-6017 (for appellant Kirk Fugelseth)

 

Mike Hatch, Attorney General, Gail A. Feichtinger, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Lisa N. Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN  56560 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge; Klaphake, Judge; and Crippen, Judge*.

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

            On appeal from an order of indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), appellant argues that (1) the district court abused its discretion when it admitted results of psychological and actuarial tests without establishing the foundational reliability of those tests as is required by the second prong of the Frye-Mack test; (2) his constitutional rights to substantive due process and the protections of a criminal justice system were violated during the commitment proceedings; and (3) the evidence was insufficient to support the court’s finding that he is an SDP and an SPP and that commitment is the least-restrictive treatment alternative.  We affirm.

FACTS

Appellant Kirk Fugelseth was first charged with sex crimes against children in 1993, after he molested two children in Oregon.  He pleaded guilty and was sentenced to 10 years probation and was required to participate in individual, outpatient therapy.  He received treatment from a therapist in Oregon until 1994, when he moved to Moorhead.  From 1994 until 1997 he continued treatment with a therapist in the Fargo-Moorhead area.  He continued to molest children while he was receiving therapy, although those incidents were neither discovered nor prosecuted.             

In December 1997, while vacationing in Arizona with his girlfriend, Sheila Lunsden, and her nine-year-old daughter, B.L., Lunsden caught Fugelseth attempting to molest B.L.  Fugelseth admitted that he had been sexually molesting B.L. for approximately three months.  Lunsden called the police, who arrested Fugelseth for attempted child molestation.  An Arizona court sentenced him to 12 months in prison and lifetime probation. 

Upon returning to Minnesota after Fugelseth’s arrest in Arizona, Lunsden contacted police in Moorhead concerning Fugelseth’s admitted molestation of B.L. Lunsden told police that Fugelseth had accessed child pornography on the Internet, and in January 1998, United States marshals executed a search warrant on Fugelseth’s computer and found approximately 20 images of child pornography.

After serving eight months in prison in Arizona, Fugelseth was extradited to Minnesota to face additional charges relating to the molestation of B.L.  On March 17, 1999, he pleaded guilty to second-degree criminal sexual conduct.  The court sentenced him to 45 months in prison and ten years of supervised release.  Fugelseth began serving his sentence at Minnesota Correctional Facility (MCF) - St. Cloud, but was transferred to MCF-Moose Lake so that he could participate in that facility’s sex-offender treatment program.  The following December he completed phase 1 of the treatment program. 

In October 2000, United States marshals issued a detainer charging Fugelseth with possession of child pornography, and the federal district court sentenced him to 60 months in prison for that offense.  That same month Fugelseth was transferred from MCF-Moose Lake to MCF-Lino Lakes to proceed with phase 2 of his sex offender treatment program.

In March 2001, Fugelseth was transferred to the Federal Correctional Institution in Oxford, Wisconsin, to begin serving his sentence on the child-pornography-possession conviction.  In August 2001 he was transferred to the Federal Correctional Institution in Butner, North Carolina (FCI-Butner) so that he could participate in that facility’s sex-offender treatment program.  As part of the FCI-Butner treatment program, Fugelseth was required to make a full disclosure of his victims of sexual abuse, including those victims who were never discovered by law enforcement personnel.  Fugelseth made a “victim list” disclosing that, when he was between the ages of 14 and 36, he sexually molested 31 boys and girls between the ages of three and 14.  Many of the incidents involved “grooming” behavior, in which Fugelseth would earn the victim’s trust through gifts and favors over an extended period of time before engaging in sexual activity.  Many of the incidents involved vaginal or anal penetration.  Additionally, many of the victims were children over whom Fugelseth held a position of authority.  Fugelseth successfully completed the FCI-Butner program and was discharged from the program with a recommendation from the program staff that he be released into the community under intense supervision. 

In January 2003, a representative of the Clay County Social Services Department filed a petition for civil commitment seeking to have Fugelseth committed as a sexual psychopathic personality (“SPP”) and as a sexually dangerous person (“SDP”).  While pursuing this petition, the Clay County Attorney’s office obtained a court order, pursuant to Minn. Stat. § 253B.185, subd. 1b (2002), requiring personnel at FCI-Butner to turn over copies of all treatment records relating to Fugelseth.  Although the district court in Clay County did not have jurisdiction over the FCI-Butner records, authorities at FCI-Butner agreed to provide the requested information.  The records provided to the county included Fugelseth’s victim list.

The district court appointed Dr. Robert G. Riedel, Ph.D., to examine Fugelseth to determine if he met the criteria for commitment as an SPP or SDP.  The county retained Dr. Harry M. Hoberman, Ph.D., to provide an additional expert opinion on whether Fugelseth met the SPP and SDP criteria.  On February 20, Dr. Riedel filed a report in which he opined that Fugelseth met the statutory criteria of an SDP but not the criteria of an SPP.  Two days later, after discussing the matter with attorneys for Fugelseth and for the county, he submitted an addendum to his report stating that he had determined that Fugelseth did not meet the criteria of either an SPP or an SDP.  On March 27, Dr. Hoberman submitted a report opining that Fugelseth met the statutory criteria for both an SPP and an SDP.      

Over the course of a 12-day trial, the district court heard testimony from Fugelseth, Dr. Riedel, Dr. Hoberman, and Lunsden.  Much of the testimony concerned the results of various psychological and actuarial tests to which Fugelseth had submitted during treatment in Oregon, Minnesota, and at FCI-Butner.  Dr. Riedel and Dr. Hoberman stipulated that these tests are commonly accepted and relied on in SPP/SDP commitment cases. 

Dr. Riedel found that Fugelseth suffered from a “sexual, personality, or other mental disorder or dysfunction” and that his test results and history indicate a diagnosis of pedophilia and personality disorder not otherwise specified.  Dr. Riedel testified on direct examination that Fugelseth is characterized by a “high level of inability to control his impulses”, but in his written report and on cross-examination he indicated that Fugelseth has the ability to control his sexual impulses.  Dr. Riedel expressed concern with a variety of factors bearing on Fugelseth’s ability to control his sexual misconduct and his likelihood to re-offend, including the nature and frequency of his previous misconduct, the make-up of his victim pool, and the fact that Fugelseth had previously continued to engage in inappropriate sexual conduct even while on probation and receiving treatment.  Dr. Riedel also testified that Fugelseth has improved in some areas because of treatment but that he still remained dangerous or potentially dangerous to the public and that there is no definitive evidence that sex-offender treatment reduces recidivism.  Still, Dr. Riedel expressed the opinion that Fugelseth did not meet the criteria for commitment as either an SPP or an SDP.  

Dr. Hoberman testified that Fugelseth’s conduct with respect to sexual matters has been characterized by emotional instability, impulsiveness in both initiation and continuation of sexual offenses, lack of customary standards of good judgment, and a failure to appreciate the consequences of his actions.  As evidence of Fugelseth’s inability to control his sexual impulses, Dr. Hoberman noted that Fugelseth continued to re-offend even while he was on probation and receiving treatment due to previous sex offenses.  Dr. Hoberman opined that Fugelseth has shown an utter lack of ability to control his sexual impulses.  Dr. Hoberman also noted that Fugelseth has participated in treatment only when it was ordered by the court or offered as a consequence of his criminal convictions.  Dr. Hoberman also testified, as did Dr. Riedel, that there is no definitive evidence that sex-offender treatment reduces recidivism.  Dr. Hoberman concluded that Fugelseth met the criteria for classification as both an SPP and an SDP, that he posed a high level of risk for re-offending, that he presented a danger to the public, and that the Minnesota Sex Offender Program (“MSOP”) was the only appropriate placement option for Fugelseth.

The district court concluded that Fugelseth met the criteria for commitment as both an SPP and an SDP and issued an interim order requiring MSOP personnel to file a report with the court within 60 days, as required by Minn. Stat. § 253.18, subd. 2.  The MSOP report indicated that Fugelseth was diagnosed with “pedophilia, sexually attracted to both males and females, nonexclusive type” and stated that he continued to meet the criteria for classification as both an SPP and an SDP and needed continued comprehensive sex offender treatment in a residential setting.  The report recommended placement in the sex-offender program at Moose Lake and St. Peter. 

The district court concluded that Fugelseth met the statutory requirements for commitment as both an SPP and an SDP as defined in Minn. Stat. § 253B.02, subds. 18(b) and 18(c), and that MSOP offered the appropriate and least-restrictive alternative for him to receive the treatment he required.  On September 8 the court issued an order committing Fugelseth to the Minnesota Sex Offender Program at Moose Lake and St. Peter for an indeterminate amount of time.  This appeal followed.

D E C I S I O N

I.

In Minnesota, the two-pronged Frye-Mack standard governs admissibility of scientific evidence.  State v. Kromah, 657 N.W.2d 564, 565 n.2 (Minn. 2003).  The Frye-Mack standard requires, first, that experts in the field widely share the view that the testing results are scientifically reliable, and second, that the person conducting the specific test complied with appropriate standards and controls.  State v. Roman Nose, 649 N.W.2d 815, 819 (Minn. 2002).  The standard of review for admissibility determinations under Frye-Mack is also two-pronged.  Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn. 2000).  Conclusions about whether a technique is generally accepted are questions of law that are reviewed de novo. Id.  “[D]eterminations under the second prong, foundational reliability, are reviewed under an abuse of discretion standard.” Id.  The parties here stipulated that all of the psychological and actuarial tests relied on by Dr. Riedel and Dr. Hoberman are commonly accepted and relied on in SPP/SDP commitment cases and agree that the first prong of the Frye-Mack standard was met.  But instead of holding a separate hearing on the reliability prong of the Frye-Mack standard, the district court instructed the parties that they should use cross-examination during the hearing on the merits to call the foundational reliability of any test into question. 

Fugelseth argues that the foundational reliability of the tests was not sufficiently established at the hearing to meet the second prong of the Frye-Mack test.  He contends that testimony from both experts indicated that the tests used could not accurately predict his chances of recidivism because the tests do not include, in their normative samples, persons who have completed an extensive sex-offender treatment program.  Therefore, he contends, the tests lacked foundational reliability, and no evidence concerning the tests should have been admitted.  The state argues that because the experts were subjected to detailed cross-examination the foundational reliability requirement of the Frye-Mack test was met and Fugelseth’s argument focusing on his successful completion of treatment goes only to the weight of the evidence and not to its admissibility.  The state also points out that some of the tests mentioned in the court’s order do include treated sex offenders in their normative samples.

A district court’s evidentiary ruling on the admissibility of an expert opinion rests within the sound discretion of the district court and will not be reversed unless it is based on an erroneous view of the law or it is an abuse of discretion.  Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 445-46 (Minn. 1990). The district court has “considerable discretion in determining the sufficiency of foundation laid for expert opinion.” Reinhardt v. Colton, 337 N.W.2d 88, 92 n. 1 (Minn. 1983).  In this case, the district court chose to use the primary hearing on the merits as the forum for addressing the reliability of the psychological and actuarial tests rather than conducting a separate Frye-Mack hearing.  The record indicates that the parties were given adequate opportunity to address their reliability concerns at the hearing.  The district court did not abuse its discretion when it admitted results from the tests into evidence.

Fugelseth also argues that, by requiring the reliability of the psychological and actuarial tests to be addressed in cross-examination at the hearing on the merits, the district court improperly shifted the burden establishing reliability to Fugelseth.  “The proponent of scientific evidence has the burden to establish the proper foundation for the admissibility of the test by showing that the methodology used is reliable and in the particular instance produced reliable results.”  Goeb, 615 N.W.2d at 816.  But a party is not entitled to reversal of a judgment based on an erroneous evidentiary ruling unless the error was prejudicial.  New Market Township v. City of New Market, 648 N.W.2d 749, 755 (Minn. App. 2002). 

Here the shifting of the burden was harmless error.  As the district court noted in its findings of fact, in In re Linehan the supreme court stated that base rate statistics such as those at issue in these psychological and actuarial tests are a factor that courts should use in determining whether a person should be committed as an SPP or SDP.  518 N.W.2d 609, 614 (Minn. 1994) (“Linehan I”).  Therefore, the district court was obligated to consider the psychological and actuarial tests in its decision and any question of their reliability would only affect the weight the court afforded them and not their admissibility.  Because the reliability of the psychological and actuarial tests was sufficiently established in the hearing and the district court was obligated to consider the results of the psychological and actuarial tests in its decision, Fugelseth was not prejudiced by the fact that the burden of proving the reliability of the psychological and actuarial tests was shifted to him.   

II.

 

            Fugelseth also argues that his constitutional rights to substantive due process were violated in several ways during the commitment proceedings.  The constitutionality of a statute is a question of law.  Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).  “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.”  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  A party challenging the constitutionality of a statute bears the burden of demonstrating that the statute is unconstitutional.  State v. Clausen, 493 N.W.2d 113, 115 (Minn. 1992).  In determining whether a civil commitment law violates substantive due process, a court subjects the law to strict scrutiny and places the burden on the state to show that the law is narrowly tailored to serve a compelling state interest.  In re Linehan, 594 N.W.2d 867, 872 (Minn. 1999) (Linehan IV).  Fugelseth concedes that the state has a compelling interest in protecting the public from sexual violence and rehabilitating the mentally ill. 

            Fugelseth first argues that Minn. Stat. § 253B.185, subd. 1 (2002), which establishes the procedure for civilly committing individuals, is unconstitutional because it is not narrowly tailored to meet the state’s compelling interest of protecting the public from sexual violence and rehabilitating the mentally ill.  He claims that the definitions of “sexual psychopathic personality” and “sexually dangerous person” on which the statute relies do not sufficiently narrow the class of individuals they target because the definitions take into account only a person’s past and cannot account for changes that have resulted from treatment.  Therefore, Fugelseth claims, the statute is overly broad because it allows a person to be committed as an SPP or SDP even after they have been cured of their sexual deviancy. 

Under the relevant statutes,

 

 “Sexual psychopathic personality” means the 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 “sexually dangerous person” means a person who:


(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;


(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 as defined in subdivision 7a.

 

Minn. Stat. § 253B.02, subd. 18c(a)(2002).

Fugelseth’s arguments are without merit.  The use of the present tense in Minn. Stat. § 253B.02, subd. 18b, (e.g. “the existence of”, “which render the person”, “is dangerous”) makes it clear that a present condition is necessary to meet the criteria of a “sexual psychopathic personality.”  Additionally, in interpreting Minn. Stat. § 253B.02, subd. 18c(a) in Linehan IV, the supreme court stated that the “Minnesota SDP Act requires evidence of past harmful sexual behavior and a present qualifying disorder or dysfunction that makes future dangerous conduct highly likely.”  594 N.W.2d at 874 (emphasis added).  So even though subdivision 18c(a)(2) speaks in the past tense, Linehan IV makes it clear that the actual requirement is a present disorder.  Therefore, if a person has been cured of the disorder, that person would not be subject to commitment as an SPP or as an SDP.

Fugelseth’s argument that participation in sex-offender treatment programs has no effect on a court’s decision to commit a person as an SPP or SDP is also without merit.  In Linehan I, the supreme court set out a nonexclusive list of factors that should be considered by a court, if evidence is presented, in deciding whether a person poses a serious danger to the public.  518 N.W.2d at 614.  Among the factors is “the person’s record with respect to sex therapy programs.”  Id.  If evidence of a person’s previous participation in a sex-offender treatment program is presented, therefore, the court is obligated to consider that treatment in reaching its decision on commitment.

Fugelseth next argues that Minn. Stat. § 253B.185, subd. 1b, giving the petitioning county attorney access to confidential records, violates his substantive due process rights because it allowed a document he was required to create to successfully complete treatment, his victim list, to later be used against him in the commitment proceedings. Therefore, he contends, his sincere attempt to rehabilitate himself became a detriment to his liberty interests.  He claims the statute is not narrowly tailored because it targets persons who have successfully completed sex-offender treatment programs and who should not be subjects of the commitment process.

The state argues that the statute does not violate substantive due process rights because it promotes the important purpose of having well-informed examiners, attorneys, and courts involved in the SPP and SDP commitment process and thereby ensures that erroneous commitment decisions will not be made.  Therefore, the state argues, the statute does not broaden the applicability of section 253B.185 but instead only ensures that the commitment statute is properly applied.

           

Minn. Stat. § 253B.185, subd. 1b, provides that

 

prior to filing a petition for commitment as a sexual psychopathic personality or as a sexually dangerous person, and upon notice to the proposed patient, the county attorney. . . may move the court for an order granting access to any records or data, to the extent it relates to the proposed patient, for the purpose of determining whether good cause exists to file a petition and, if a petition is filed, to support the allegations set forth in the petition. 

 

         The court may grant the motion if: (1) the department of corrections refers the case for commitment as a sexual psychopathic personality or a sexually dangerous person; or (2) upon a showing that the requested category of data or records may be relevant to the determination by the county attorney.

 

Minn. Stat. § 253B.185, subd. 1b (2002).

            In order to assure that persons are not improperly subjected to involuntary civil commitment proceedings, it is important that authorities in charge of the proceedings are well informed on the relevant characteristics of the proposed patient.  See In re D.M.C., 331 N.W.2d 236, 238 (Minn. 1983) (stating that the greater the quantity of relevant, information an examiner in a commitment proceeding receives, the better the opportunity for a complete evaluation of the proposed patient).  The statute at issue here provides access to information necessary to ensure the integrity of the civil commitment process.  This purpose would be frustrated if the person subject to commitment was able to limit the county’s record-gathering efforts to include only those records that are neutral or that serve the person’s interest in avoiding commitment.  As such, the statute is narrowly tailored and does not violate Fugelseth’s substantive due process rights.

             Fugelseth also claims that his commitment pursuant to the SPP and SDP laws violates his substantive due process rights because commitment is clearly for punitive, rather than rehabilitative, reasons.  As evidence of this assertion he points out that (1) the state’s expert testified at his commitment hearing that there is little evidence suggesting that treatment has any impact on recidivism rates, and (2) in July 2003, Minnesota Governor Tim Pawlenty signed an executive order prohibiting the administrative release of any patients from MSOP.

            The supreme court rejected the argument that civil commitment is for punitive purposes in In re Blodgett, stating:

[I]t is not clear that treatment for the psychopathic personality never works… But even when treatment is problematic, and it often is, the state’s interest in the safety of others is no less legitimate and compelling. So long as civil commitment is programmed to provide treatment and periodic review, due process is provided.

                                                                                                                                   

In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994) cert. denied, 513 U.S. 849 (1994).  The governor’s executive order does not affect our rejection of Fugelseth’s argument.  The executive order does not state that no patient in the MSOP system may be released.  It states that no patient may be released unless the release is required under the law or ordered by a court.  The order does not announce a change in the law or a change in the purposes of the MSOP system. 

As his final constitutional challenge, Fugelseth claims that, because the MSOP system has ceased to be rehabilitative and instead has become punitive in nature, the civil commitment process amounts to a criminal proceeding and so he was entitled to all of the protections of the criminal justice system.  He asks that the case be remanded so that he can be tried with “all the criminal protections in place.”  As we have already rejected the proposition that the civil commitment statutes serve a punitive purpose, we find no merit in Fugelseth’s argument. 

III.

To commit a person as an SPP or as an SDP, the statutory requirements for commitment must be proved by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (2002); see Minn. Stat. § 253B.185, subd. 1 (2002) (provisions of section 253B.18 apply to commitments as sexual psychopathic personality and sexually dangerous person).  Clear and convincing evidence is 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).  Fugelseth claims that there was not clear and convincing evidence that he met the criteria for commitment under the SPP and SDP statutes and that commitment is the least-restrictive alternative.

A.        Sexual Psychopathic Personality

Commitment as an SPP requires a showing of a habitual course of misconduct in sexual matters and an utter lack of power to control sexual impulses so that  it is likely the person will attack or otherwise inflict injury on the objects of their uncontrollable desire.  Linehan I, 518 N.W.2d at 613.  Fugelseth argues that the evidence fails to show that he has an utter lack of power to control sexual impulses.  To determine whether a person lacks control over his sexual impulses, section 253B.02, subdivision 18b, requires a court to consider: (1) “the nature and frequency of the sexual assaults;” (2) “the degree of violence involved;” (3) “the relationship (or lack thereof) between the offender and the victims;” (4) “the offender’s attitude and mood;” (5) “the offender’s medical and family history;” (6) “the 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.”  Blodgett, 510 N.W.2d at 915. Expert testimony on the issue is also relevant.  See Linehan I, 518 N.W.2d at 613.

The district court applied the Blodgett factors in reaching its conclusion that Fugelseth has an utter lack of power to control his sexual impulses and meets the criteria of an SPP.  The district court noted that Fugelseth had committed approximately 200 acts of sexual misconduct, ranging from indecent exposure to oral and anal intercourse, against a large number of male and female victims ranging in age from three to 14; that he facilitated much of the abuse through grooming behavior and much of the misconduct occurred when he was in a position of trust or authority over the victims; that psychological evaluations indicate that Fugelseth’s attitude toward his misconduct has been characterized by feelings of entitlement, lack of remorse, minimization and denial; that he continued to offend while he was subject to therapeutic and punitive consequences of previous convictions for sexual misconduct; that he continued to place himself in situations where sexual misconduct could occur; that he has never exhibited a period of real control over his behavior; and that he continues to experience deviant arousal.  The testimony of the experts supports the court’s conclusion.  Thus, we conclude that there is clear and convincing evidence to support the district court’s conclusion that Fugelseth has an utter lack of power to control his sexual impulses and that the district court did not err in committing Fugelseth as a person having a sexually psychopathic personality.

B.        Sexually Dangerous Person

Under Minnesota law, an SDP is “a person who: (1) has engaged in a course of harmful sexual conduct as defined in [Minn. Stat. § 253B.02, subd. 7a]; (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).  Fugelseth argues that, because both Dr. Riedel and Dr. Hoberman testified that there is nothing in his sexual disorder of pedophilia that indicates a lack of ability to control oneself, the district court erred in committing him as an SDP because the evidence does not indicate that his present disorder makes him likely to engage in harmful sexual conduct.  But Fugelseth’s argument ignores the fact that both experts diagnosed him as having a mental or personality disorder in addition to his pedophilia. Dr. Hoberman testified that, as a result of this other mental disorder, Fugelseth has difficulty controlling his behavior and that his mental abnormalities predispose him to difficulty controlling his behavior.  The district court concluded from this evidence that Fugelseth’s “sexual and personality disorders render it difficult” for him to control his sexual urges.  We conclude that there is clear and convincing evidence to support the district court’s conclusion and that the court did not err in committing Fugelseth as a sexually dangerous person.

C.        Least-Restrictive Alternative

Finally, Fugelseth argues that the district court erred in determining that he had not met his burden of establishing that a less-restrictive treatment option than commitment to MSOP was available.  Minn. Stat. § 253B.185, subd. 1, provides that “[i]n commitments under this section, the court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient’s treatment needs and the requirements of public safety.”  Minn. Stat. § 253B.185, subd. 1 (2002). 

Fugelseth proposed that, rather than being committed to MSOP, he be allowed to enroll in the Damascus Way Reentry Center in Golden Valley.  As evidence that this was a suitable alternative, Fugelseth cites his success at the FCI-Butner treatment program, the recommendation of an FCI-Butner staff psychologist that he be transferred into the community under strict supervision, and the fact that the results of a Sex Offender Need Assessment Rating (“SONAR”) conducted by Dr. Riedel indicated that he was a low risk to re-offend.  But Dr. Hoberman and Dr. Riedel both testified that Fugelseth requires intensive, structured therapy.  Such therapy is not offered at Damascus Way.  Additionally, Dr. Hoberman testified that Fugelseth poses a danger to public safety if released into the community.  Damascus Way is not a secure facility.  Dr. Hoberman also testified that the programs available in the community would not be as effective as the MSOP program, and pointed out that Fugelseth’s treatment in community-based programs in the past has been unsuccessful.  Fugelseth did not present clear and convincing evidence that an adequate less-restrictive treatment program was available.

Fugelseth has also asked that we strike three documents from the appendix of the state’s appellate brief because they are not part of the record in this case and has asked that we sanction the state by awarding him attorney’s fees for the costs of preparing the motion to strike the documents.  The questioned documents are a copy of Governor Pawlenty’s executive order of July 2003, an Associated Press news article concerning a patient who was released from MSOP, and a “Consent for Release of Information” form granting permission for officials at FCI-Butner to release treatment records to the Minnesota Attorney General’s office. 

The executive order is a public record that we could have referred to in the course of our own research.  SeeState v. Rewitzer, 617 N.W.2d 407, 411 (Minn. 2000) (refusing to strike documents introduced on appeal when documents were matters of public record and court was free to refer to them in the course of its own research).  The Associated Press article concerned facts that were introduced by Fugelseth in his brief and was not offered either as evidence or to establish facts outside of the record and we see no reason why it should be stricken.  See State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001).  And, contrary to Fugelseth’s assertion, the consent form was included in the substantial district court record for this case.  Fugelseth’s motion to strike and motion for attorney’s fees are denied.

Affirmed; motions denied.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.