This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






James R. Simpson, II,





Kevin Goodno,

Commissioner of Human Services,



Filed ­­­August 31, 2004


Minge, Judge


Judicial Appeals Panel

File No. 242


Ross A. Phelps, Law Offices of Ross A. Phelps, 106 South Walnut, La Crescent, MN 55947 (for appellant)


Mike Hatch, Attorney General, Michael E. Burns, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2109; and


Charles E. MacLean, Winona County Attorney, 171 West Third Street, Winona, MN 55987 (for respondent)


            Considered and decided by Minge, Presiding Judge, Stoneburner, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


MINGE, Judge


Appellant challenges a Supreme Court Appeal Panel’s denial of his petition for a provisional discharge from his commitment to the Minnesota Sex Offender Program.   Because substantial evidence supports the panel’s findings, we affirm.



Appellant James Simpson, II, 30, was sentenced to 52 months in prison for the abduction and rape of an 18-year-old girl.  Appellant’s extensive history of sexual offenses and inappropriate conduct began in his childhood and continued to his incarceration for the abduction/rape offense.  In prison, appellant participated in sex-offender treatment, but his sentence expired before treatment was completed. 

At the time appellant completed his prison sentence, the state petitioned for his civil commitment as a sexually dangerous person and a sexual-psychopathic personality (SDP/SPP).  Appellant stipulated to the commitment.  He was a patient first at the Minnesota Security Hospital and then at the Minnesota Sex Offender Program (MSOP) at Moose Lake.  In July 2002, appellant petitioned for full or provisional discharge from commitment.  A special review board considered the petition and recommended its denial.  A designee of respondent Commissioner of Human Services accepted the board’s recommendation and denied appellant’s petition.

In December 2002, appellant filed a petition for rehearing and reconsideration before a Supreme Court Appeal Panel (SCAP).  A SCAP is a special judicial panel composed of three district court judges.  Minn. Stat. § 253B.19 (2002).  A consulting psychologist was appointed by the panel to examine appellant and prepare a report.  In October 2003, the SCAP held a hearing and found that appellant made a prima facie case that he was appropriate for discharge.  Later in October, the SCAP reconvened and the parties presented evidence.  At these hearings, the court-appointed psychologist and two MSOP staff psychologists testified, and appellant presented a provisional discharge plan.  In December 2003, the SCAP issued an order denying appellant’s petition.  Appellant challenges that order.




            In reviewing a SCAP decision, this court does not weigh the evidence de novo but determines whether there is substantial evidence in the record as a whole that sustains the appeal panel’s findings.  Piotter v. Steffen, 490 N.W. 2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992).  “[I]t is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary.”  Id. (quotation omitted).  For a provisional discharge petition to be granted, evidence must show that the petitioner is capable of making an acceptable adjustment to open society.  Minn. Stat. § 253B.18, subd. 7 (2002).  In determining whether a provisional discharge shall be recommended, the special review board is required to consider (1) whether the petitioner no longer needs the treatment and supervision available in the current setting, and (2) whether the petitioner’s provisional discharge plan will provide a reasonable degree of protection to the public and will enable the petitioner to adjust successfully to the community.   Id.[1]  The SCAP denied appellant’s petition, concluding that he did not meet any of these criteria. 

            At the outset of our analysis, we acknowledge that appellant appears to have made important progress in dealing with the conditions that led to his institutionalization.  We also acknowledge that appellant took the positive step of stipulating to his civil commitment at the time he was released from prison, and we note his claim that he is discouraged from completing all aspects of the treatment program because of his belief that he will never be released.  However, this apprehension is neither an excuse for failure to complete a treatment plan nor a basis for release. 

            Given our limited scope of review, we restrict our discussion to an analysis of the weight of the evidence supporting the findings of the SCAP that appellant did not meet the criteria for release.  The underlying requisite is that appellant be able to adjust to life in open society.  A fundamental part of living in open society is the ability to be self-supporting.  The SCAP found that

[Appellant] has been employed and scheduled to work approximately 45 hours per month.  He has been reprimanded for missing work or arriving late.  When he was last in the community, [he] had difficulty maintaining employment and stole money and supplies from an employer. 


Appellant’s own testimony confirms his poor work habits.  Concerning his employment history in MSOP, where he worked between 10 and 15 hours a week, appellant said, 

There was one time [in MSOP] I took off work for like a year straight, maybe a little over a year consecutively.  Then other than that I attempted to quit, but then something happened, talked to a support person, or whatever, and they talked me into it . . . .


Appellant answered, “That’s correct” when asked if he had been sanctioned for showing up for work late and for not showing up for work at all.  Concerning his employment prior to incarceration, he said:

[I]t just happened a few times, that I’d steal the money, quit for a while and then they’d ask me back, or something, and I would reluctantly do it.  I felt like I deserved the money and I’d take a little extra, or whatever, for my belief he wasn’t paying me what I thought I deserved . . . .


Failure to work more than 10 to 15 hours per week in a structured institution setting indicates a high risk of unemployment in the broader community.  The SCAP findings as to appellant’s inability to maintain employment and to successfully adjust to open society are supported by the record.

            The second question is whether appellant no longer needs the treatment and supervision of the institutional setting.  Concerning appellant’s treatment history, the SCAP found that

Appellant has been enrolled in sex offender treatment off and on since his incarceration and commitment.  When he is enrolled in treatment he is able to make satisfactory progress.  He has most recently progressed to phase two of the four-phase program at MSOP. . . .  [but] he has not shown a commitment to work through the treatment program for any sustained period of time.  He failed to participate in any treatment from August 2000 to September 2001.  He needs to consistently participate in treatment for an unbroken period of time before he can be released safely into the community.

. . . .

[Appellant] acknowledges that he needs more sex offender treatment to adequately protect the public and has expressed a willingness to participate in outpatient treatment in the community.  His lack of motivation to complete inpatient treatment belies his assurance that he will pursue treatment in the community.


A treating psychologist who had been working with appellant for six months at MSOP testified:

[Appellant] participated in [sex offender treatment] the first several trimesters, then he chose not to participate for a time[.]  . . . [t]here were a number of trimesters in which he chose not to participate at all. 

. . . .

When [appellant] was actively participating in treatment and also participating in module groups and . . . was also medication compliant, his participation was positive.


The treating psychologist described appellant’s adjustment since May 2003 as “poor” because

He participates very minimally.  He has had unexcused absences this trimester.  He missed the first three groups.  He was placed on probation and failed probation for his non-attendance.  . . . I spoke to him and encouraged him to return to treatment and he has subsequently participated. He spoke on the first session that he had returned briefly and spoke briefly on one other occasion.  Other than that, he has not participated. 


When asked, “So basically, [appellant has] identified what his issues are, but he hasn’t learned what to do with them yet?” the psychologist answered, “Correct.”  Appellant did not claim that he had completed treatment.  He responded, “That’s correct,” to the statement “[E]ven though you haven’t completed the phases of treatment and what you need to do to get out of the program, . . . you feel like you deserve to get out . . . .” 

Appellant did not explain why he would participate in outpatient sex-offender treatment if he were released, when he had not participated consistently in inpatient sex-offender treatment.  The SCAP findings that appellant had not availed himself of further chemical-dependency treatment at MSOP and had voluntarily discontinued his medication were supported by the testimony of the MSOP psychologist.  Appellant’s discharge plan called for independent participation in chemical-dependency treatment and taking medication.  His history indicates a significant risk of non-compliance.

            Appellant relies heavily on the report and testimony of the consulting psychologist who was the court-appointed examiner and challenges the credentials of the MSOP psychologist and the lack of contact that either of these psychologists had with him.  We acknowledge that the consulting psychologist, who had also examined appellant in 1999, provided testimony that was supportive of release in five particulars: (1) while at MSOP appellant had significantly reduced his risk of future sexual acting out; (2) appellant was capable of making the adjustment to life in an open society; (3) further treatment could be provided to appellant in an outpatient setting; (4) appellant could be financially self-supporting; and (5) appellant could be successfully released to a community-based treatment program.  The consulting psychologist also stated that

[Appellant’s] antisocial personality qualities lead him to resist the pressure from authorities to do things that he may not completely endorse if . . . he has the sense that he is in charge of it . . . .  I think it is more likely that he will do that [engage in treatment] on his own choosing than do it because authority figures tell him he has to.


However, when asked, “Would you agree that based on [appellant’s] current personality makeup, that it is possible that when he is released or if he is released, he could just decide that he doesn’t want to do any of what he said he is going to do, and go on his merry way?” the consulting psychologist answered, “That certainly is possible.”  Finally, the consulting psychologist observed that “we simply do not know at this point whether [appellant’s] improvement is sufficient to eliminate his sexual dangerousness.” 

Appellant urges that we recognize the relative credentials of the expert witnesses and weigh their testimony accordingly.  We acknowledge that the court-appointed examiner is eminently qualified, has no reason to be biased, and was generally supportive of appellant’s release.  However, we also note that both MSOP psychologists are experienced and that one was the treating staff psychologist with extensive contact with appellant.  The SCAP is responsible for weighing conflicting testimony.  The SCAP did not find the positive conclusions of the court-appointed psychologist to be persuasive.  As long as the SCAP’s decision is supported by substantial evidence on the record as a whole, we defer to its assessment of the credibility of expert witnesses.  See Minn. R. Civ. P. 52.01.

            Based on our review of the record and the SCAP decision, we conclude that substantial evidence supports its findings.


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

[1] Appellant argues that the standard of review is whether he is still mentally ill and dangerous, but he provides no statutory or other basis for this standard.