This opinion will be unpublished and

may not be cited except as provided by

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






In the Matter of the Civil Commitment of:

Kevin Johnson.


Filed January 18, 2005


Huspeni, Judge*



Hennepin County District Court

File No. P4-02-60508



David L. Kraker, Peter Michael Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN  55408 (for appellant Kevin Johnson)


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



            Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            In challenging his commitment as a sexually dangerous person, appellant argues that (1) the district court abused its discretion in denying a jury trial, (2) there is not clear and convincing evidence supporting the commitment, (3) a less restrictive alternative to commitment exists, and (4) the lack-of-control standard applied by the district court is unconstitutional.  Because we find no abuse of discretion in denying a jury trial, no lack of clear and convincing evidence, no less restrictive alternative to commitment, and no unconstitutionality in the lack-of-control standard, we affirm. 


            Appellant was born in 1963, and has had a number of complaints of sexual misconduct.[1]  In late 1982 and early 1983, appellant, aged 19, had two sexual encounters with E.L.B., a 15-year-old girl.  On one of the occasions, E.L.B. met appellant, who was known to her, in a high school hallway.  Appellant told E.L.B. that he wanted to talk to her and as a result of some verbal urging E.L.B. left with appellant.  Appellant drove to his parents’ home and subsequently had a forced sexual encounter with E.L.B.  After this incident, E.L.B. went to Hennepin County Medical Center for treatment.  The second incident occurred at appellant’s home in a less forceful manner.  This incident was not reported to police.  Appellant, although initially claiming that he never had sexual relations with E.L.B., later admitted to consensual sexual contact. 

            In July 1983, appellant had a sexual encounter with T.L.T.  On this occasion, appellant, then aged 20, approached T.L.T., aged 16, on a north Minneapolis street.  After demanding money from T.L.T., appellant brought her to an apartment house basement and sexually assaulted her.  T.L.T. contacted the police that day, and showed them a mattress and other physical evidence pertaining to the assault.  She also told police that appellant threatened to beat her up if she did not give him money.  T.L.T. had known appellant for three years, and had been forced to prostitute herself in the past and pay him money under the threat of violence if she refused.  Appellant was charged with criminal sexual conduct in the third degree as a result of the incident involving T.L.T.

            On December 12, 1983, appellant pleaded guilty to one count of criminal sexual conduct in the third degree for his assault against E.L.B.[2]  A sentence of 18 months was stayed, and appellant was placed on probation for two years conditioned upon serving one year in the workhouse. 

            In February 1996, appellant, aged 33, met S.A.L., aged 17, in downtown Minneapolis.  S.A.L. went with appellant to an apartment in north Minneapolis.  After learning that S.A.L. was a volunteer sex educator, appellant asked to speak with her in the bedroom of the apartment.  Appellant then took a condom that S.A.L. had given him while talking about her volunteer position and sexually assaulted her.  S.A.L. went to a hospital to be examined, but did not complete the examination because she did not want to file a police report. 

            In August 1997, appellant met T.S., who was working in Minnesota for the summer.  She continued to correspond with appellant by mail after she returned to her home in Wisconsin, and in the fall of 1997 she returned to Minneapolis to visit a friend.  During that visit, T.S. met with appellant, and they visited the home of a man named Mike.  Appellant told T.S. that he wanted to offer her to Mike as a prostitute, but only to trick Mike out of money.  Appellant determined that Mike did not have money, however, and appellant and T.S. left Mike’s house. 

            Appellant and T.S. then met an acquaintance of appellant’s, named “Moleek.”  Moleek joined appellant and T.S. in the car and appellant drove to an alley behind his parents’ house.  Appellant told Moleek that T.S. would perform sexual favors for money.  T.S. protested and, as a result, appellant told T.S. to get out of the car.  When she did, he pulled her into his parents’ garage.  After telling T.S. that Moleek had money and that she needed to help him get it, T.S. was then forced to perform oral sex on appellant.  Moleek did not want to purchase sex from T.S. and left. 

            Appellant and T.S. returned to the car and sometime thereafter, appellant stated that he wanted to have sex with T.S.  After T.S. refused, offering a number of excuses in order to escape, appellant stated he was not stupid and that he would kill her if she tried anything stupid.  Appellant threatened T.S. with a carjack and a sexual encounter followed.  Afterward, T.S. stated, “You just raped me.”  Appellant replied, “No I didn’t, I hope we can still be friends.”  T.S. reported the incident to the police.

            Appellant was charged with one count of criminal sexual conduct in the first degree and one count of criminal sexual conduct in the third degree for the assault of T.S.  He subsequently pleaded guilty to a lesser charge of promotion of prostitution, and as a condition of probation he was directed to attend a sexual offender treatment program.  He did not complete that program, nor has he ever completed a sexual offender program.[3]  Appellant’s initial guilty plea to the charge of promotion of prostitution was set aside, but in December 2000 he again entered a guilty plea for promotion of prostitution in the matter involving T.S.  He was sentenced to 60 months, to be served concurrently with the November 2000 conviction addressed below.

In November 2000, appellant pleaded guilty to criminal sexual conduct in the first degree as a result of an incident occurring in 1992.  On September 21 of that year, the victim, N.B., was approached on the street and sexually assaulted at knifepoint.  She was unable to identify her assailant and no criminal charges were brought at that time.  The Bureau of Criminal Apprehension (BCA) placed in its database a DNA profile from a vaginal swab taken from N.B.  On April 19, 1999, the BCA linked the DNA sample to appellant.  The DNA sample linking appellant to the sexual assault of N.B. was taken from him in 1998 as part of a court order issued as a condition of probation for appellant’s involvement in the 1997 offense against T.S.  Appellant was given a 146-month executed sentence as a result of his conviction of the offense against N.B.[4] 

On October 15, 2002, a petition was filed seeking appellant’s commitment as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP).   

            Two SDP examiners evaluated appellant during the commitment proceeding.  One of the examiners concluded that appellant had more than a 50% chance of re-offending over the next 15 years, that it was likely that appellant would engage in acts of harmful sexual conduct in the future, and the likelihood would be enhanced if drugs and alcohol were present.  The second examiner concluded that appellant could not control his sexual impulses, was dangerous to others, and had a high likelihood to engage in future acts of sexual violence.  At the conclusion of the hearing, the district court committed appellant as a sexually dangerous person.   


            We address initially appellant’s claim that Minnesota law, which denies a jury trial in matters involving civil commitment, is unconstitutional.  With respect to constitutional challenges, the standard of review is well established:

            Whether a statute is constitutional is a question of law subject to de novo review.  When considering the constitutionality of a statute, we are mindful that laws come to this court with a presumption of validity and may be declared unconstitutional only with great caution and if absolutely necessary.  A person challenging the constitutionality of a statute has the burden of establishing beyond a reasonable doubt that the statute violates a claimed right.


In re Kindschy, 634 N.W.2d 723, 729 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001) (citations omitted).

            Appellant first argues that the Minnesota Constitution guarantees a jury trial in civil commitment proceedings.[5]  We disagree.  A party is not entitled to a jury trial under the state constitution if “that same type of action did not entitle a party to a jury trial at the time the Minnesota Constitution was adopted.”  Olson v. Synergistic Tech. Bus. Sys., Inc., 628 N.W.2d 142, 149 (Minn. 2001). 

            Appellant’s claim that he is entitled to a jury trial in this matter is foreclosed by decisions from the Minnesota Supreme Court, which have recognized that a proceeding such as that involving appellant here did not entitle a party to a jury trial at the time the Minnesota Constitution was adopted, and, therefore, the Minnesota Constitution does not guarantee a right to a jury trial in a civil commitment proceeding at present.  See, e.g., State ex rel. Anderson v. U.S. Veterans Hosp., 268 Minn. 213, 221 n.16, 128 N.W.2d 710, 716 n.16 (1964); State ex rel. Pearson v. Probate Ct., 205 Minn. 545, 556-57, 287 N.W. 297, 303 (1939); Vinstad v. State Bd. of Cont., 169 Minn. 264, 266, 211 N.W. 12, 13 (1926).  This court has followed Pearson in Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999), review denied (Minn. July 28, 1999). 

            Further, this court, in several recent unpublished decisions, has refused to reexamine the jury-trial issue, noting that “Pearson and the principle of stare decisis prevent us from re-examining this issue” and have concluded that “[i]t is the province of the supreme court to make new law on this issue, if a change in the existing law is required.”  In re Larsen, No. A03-1410, 2004 WL 1049844, at *5 (Minn. App. May 11, 2004), review denied (Minn. July 20, 2004); McDeid v. Mooney, No. A04-36, 2004 WL 728133, at *3 (Minn. App. Apr. 6, 2004), review denied (Minn. May 26, 2004).  This court, as an intermediate appellate court, is “not in [a] position to overturn established supreme court precedent.”  State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998).  In light of clearly established precedent, we decline to reexamine this issue.

            Appellant next argues that he is entitled to a jury trial under the United States Constitution.  Recently, in Poole v. Goodno, 335 F.3d 705, 710-11 (8th Cir. 2003), the Eighth Circuit held that federal due process does not require a jury trial before a person is committed as an SDP under Minnesota law.  Moreover, the Seventh Amendment right to a jury trial does not apply to state court proceedings.  See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 719, 119 S. Ct. 1624, 1643 (1999) (stating that it is settled law that the Seventh Amendment does not apply to suits brought in state court); Genzel v. Halvorson, 248 Minn. 527, 531, 80 N.W.2d 854, 857-58 (1957) (stating that Seventh Amendment does not apply to the states); see also United States v. Sahhar, 917 F.2d 1197, 1206-07 (9th Cir. 1990) (rejecting claim that due process provides right to jury trial in civil commitment proceedings). 

            As a result of this clearly established law, this court has reiterated in a number of recent published and unpublished opinions that there is no federal constitutional right to a jury trial in civil commitment proceedings.  See, e.g., Joelson, 594 N.W.2d at 910; In re Larsen, 2004 WL 1049844, at *5; McDeid, 2004 WL 728133, at *2; Brown v. Anderson, No. A03-744, 2003 WL 22890425, at *2 (Minn. App. Dec. 9, 2003), review denied (Minn. Feb. 17, 2004).  As such, this court is bound by clear precedent with regard to the right to a jury trial in civil commitment matters.  We affirm the district court’s denial of a jury trial. 

            Appellant next challenges the sufficiency of the evidence to support his commitment as an SDP.  An appellate court’s review of a judicial commitment is limited to determining whether the district court complied with the Civil Commitment Act and whether the commitment is “justified by findings based upon evidence” submitted at the hearing.  In re Shaefer, 498 N.W.2d 298, 300 (Minn. App. 1993).  The district court’s findings will not be overturned unless they are found to be clearly erroneous and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witness.”  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  This court reviews the record in the light most favorable to the district court’s decision, but whether the evidence is sufficient to warrant commitment is a question of law, which is reviewed de novo.  Id.

            To commit a person as an SDP, the statutory requirements for commitment must be proved by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1 (2002).  Minn. Stat. § 253B.02, subd. 18c(a) (2002), defines an SDP:

                                    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.


The term “harmful sexual conduct” used in the SDP definition is also defined in the statute:

                                    (a)       “Harmful sexual conduct” means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.


                                    (b)       There is a rebuttable presumption that conduct described in the [specified statutory provisions including criminal sexual conduct in the first to fourth degrees] creates a substantial likelihood that a victim will suffer serious physical or emotional harm . . . .


Minn. Stat. § 253B.02, subd. 7a (2002) (emphasis added).  The statute does not require convictions, but instead refers to conduct, described as criminal sexual conduct in the first to fourth degrees.  Id.  Nonviolent but sexually harmful acts are within the reach of the SDP law.  In re Linehan, 557 N.W.2d 171, 190 (Minn. 1996), vacated & remanded, 522 U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999) (Linehan IV).  Once the petitioner satisfies this burden, the burden then shifts to the person sought to be committed to rebut the presumption of harm.  Kindschy, 634 N.W.2d at 730.

            Appellant maintains that the district court erred because there was insufficient evidence presented of a diagnosis of a mental abnormality or personality disorder to satisfy the second prong of the statute.  We disagree.  “Where the findings of fact rest almost entirely on expert testimony,” as here, the district court’s “evaluation of credibility is of particular significance.”  Knops, 536 N.W.2d at 620.

            Both SDP examiners provided diagnoses of disorders related to appellant’s sexual misconduct.  Based on these expert evaluations, the district court expressly found that the examiners reviewed appellant’s medical, psychological, correctional, and legal records, which resulted in a combined diagnosis of:  sexual paraphilia, sexual sadism, polydrug dependence, alcohol dependency, antisocial personality disorder, and personality disorder not otherwise specified (antisocial and narcissistic features).  The district court also concluded that “[appellant] showed a high profile definition consistent with the diagnosis of a personality disorder and psychopathic deviance,” and that he had high recidivism likelihood. 

            The district court also found that appellant had not completed any form of sex offender treatment and, although he had only one conviction for criminal sexual conduct, he had committed at least four acts of sexual misconduct, each of which was coerced.  The court stated that “[h]e has groomed some of his victims and has randomly attacked others,” and “[e]ach victim reasonably concluded that substantial physical harm to her was imminent unless she complied with [his] demands.” 

            Applying the SDP statute, the district court concluded that appellant had engaged in a course of harmful sexual conduct with E.L.B., T.L.T., S.A.L., and T.S., had manifested a disorder or dysfunction as determined by the expert testimony, and, as a result, is likely to engage in future harmful sexual conduct against other victims.  Our review of the record convinces us that there is sufficient clear and convincing evidence to support the decision to commit appellant as an SDP, and that the district court did not abuse its discretion when it relied on expert testimony, along with other corroborating evidence, in reaching its decision.

            Appellant next argues that a less restrictive alternative to civil commitment exists.  An appellate court’s review of a challenge such as appellant makes on this issue is limited to ascertaining whether the district court complied with the civil commitment act and whether the commitment was “justified by findings based upon evidence” submitted at the hearing.  Knops, 536 N.W.2d at 620.   

            Minn. Stat. § 253B.185, subd. 1 (2002), 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.”  Clear and convincing evidence means that the party’s evidence should be unequivocal and uncontradicted, and intrinsically probable and credible.  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).  “Under the current statute, patients have the opportunity to prove that a less-restrictive treatment program is available, but they do not have the right to be assigned to it.”  Kindschy, 634 N.W.2d at 731.   

            Appellant relies heavily on an argument that he should be allowed to serve his correctional sentence and to engage in the sexual offender treatment offered by the prison.  Specifically, appellant argues that:  (1) the district court knew he had three to four additional years to serve on his prison sentence, (2) the Minnesota Sex Offender Program at Moose Lake included the same phases of treatment as the Department of Human Services (DHS) and actually provided five or ten more hours than DHS, and (3) the Department of Corrections’ policy and governing statute require entry into a sex offender program while in prison.  None of these circumstances, however, compel a clear and convincing conclusion that appellant should not be committed as an SDP. 

            The state responds to appellant’s argument that he should be permitted to complete his prison sentence by noting correctly that commitment of a person under the SDP statute while the person has a substantial amount of prison time remaining is permissible.  See In re Martenies, 350 N.W.2d 470, 473 (Minn. App. 1984) (stating that confinement under the civil commitment statute is not criminal in nature and is used for treatment and not for punishment, therefore dual commitments did not violate defendant’s rights), review denied (Minn. Sept. 12, 1984).  We conclude that appellant has not met the burden placed upon him under the statute to show by clear and convincing evidence that a less restrictive alternative to commitment exists.

            Appellant also claims that this court should take judicial notice that although the burden is placed on him under the statute to prove by clear and convincing evidence that a less restrictive program is available, prior state and federal precedent hold that this burden should have been on the state.  Appellant has provided no analysis or argument in support of this claim, however.  An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.  Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971).  Appellant’s claim is waived for failure to provide any supporting argument.  

            Finally, appellant argues that the Linehan IV “lack of adequate control” standard, which is used in defining the SDP statute, is unconstitutionally arbitrary and discriminatory.  Whether a statute is constitutional is a question of law subject to de novo review.  In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).  When considering the constitutionality of a statute, we are mindful that laws come to this court with a presumption of validity and may be declared unconstitutional only with great caution and if absolutely necessary.  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  A person challenging the constitutionality of a statute has the burden of establishing beyond a reasonable doubt that the statute violates a claimed right.  In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn. 1996).

            Appellant argues that the Minnesota Supreme Court’s lack-of-adequate-control standard articulated in Linehan IV does not fit within the new “inability to control behavior” standard as set forth in the recent Supreme Court decision Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002).  We disagree.  The question of whether the standard articulated in Linehan IV satisfies the constitutional standard established in Crane has been addressed by this court recently in In re Martinelli, 649 N.W.2d 886, 889-90 (Minn. App. 2002), review denied (Minn. Oct. 29, 2002), cert. denied, 123 S. Ct. 1583 (2003), and In re Ramey, 648 N.W.2d 260, 266-67 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).  In Martinelli, this court held that “the lack of adequate control standard . . . satisfies the constitutional standard set by Crane.”  649 N.W.2d at 890 (quotation omitted).  Similarly, in Ramey, this court concluded that “the requirement of an inability to control behavior to some degree, as required by Crane, is satisfied by the interpretation of the [Minnesota Sexually Dangerous Person Act, Minn. Stat. § 253B.02, subd. 18c (1998)] as set forth in Linehan IV.”  Ramsey, 648 N.W.2d at 267.  Thus, this court has previously determined that Crane does not create a new standard in which those civilly committed under the lack-of-adequate-control standard of Linehan IV may seek redress.  Thus, appellant’s attack on the Linehan IV standard fails.


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

[1] Appellant has, in addition to his sex offenses, a long criminal history, including approximately 40 domestic assaults, as well as a number of drug offenses, convictions, and involvement in treatment programs.

[2] One count of criminal sexual conduct in the third degree for his assault of E.L.B. and one count of criminal sexual conduct in the third degree for his assault of T.L.T. were dismissed.

[3]  Appellant testified at his commitment proceeding hearing that his attorney advised him not to attend a treatment program.

[4]  This conviction was later set aside in a postconviction hearing.  The state’s appeal in that matter was pending at the time of appellant’s commitment proceeding hearing.  The district court, in its commitment order, indicated that it did not consider the assault of N.B. in reaching its conclusions regarding commitment.  After the commitment order was issued, the Minnesota Supreme Court reversed the lower courts’ determinations and appellant’s plea and conviction in the matter involving N.B. were reinstated.  Johnson v. State, 673 N.W. 2d 144 (Minn. 2004).

[5] Appellant relies heavily on a recent law review article that challenges the supreme court’s holdings that the state constitution does not guarantee a right to a jury trial in civil commitment proceedings.  See C. Peter Erlinder, Essay:  Of Rights Lost and Rights Found:  The Coming Restoration of the Right to a Jury Trial in Minnesota Civil Commitment Proceedings, 29 Wm. Mitchell L. Rev. 1269 (2003).