This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Civil Commitment
of: Christopher Loyd Ivey.
Filed April 12, 2005
Carlton County District Court
File No. P2-03-1548
Keith M. Carlson,
Mike Hatch, Attorney General,
Angela M. Helseth, Assistant Attorney General, 1800
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his indeterminate commitment as a sexually dangerous person and a sexual psychopathic personality, arguing that he is not highly likely of reoffending and that he can control his sexual impulses. Because the record supports by clear and convincing evidence appellant’s commitment as a sexually dangerous person and a sexual psychopathic personality, we affirm.
Appellant Christopher Ivey is currently 34 years old and has been in custody since 1993 for sexually assaulting a number of women and for murdering one woman. After Ivey completed his prison sentences, the Minnesota Department of Corrections referred Ivey for civil commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). The district court determined that commitment was necessary because Ivey’s background, the nature of his crimes, his treatment history, and his psychological profile, inter alia, indicate that Ivey is highly likely to reoffend and that he exhibits an utter lack of power to control his sexual impulses.
The record shows the following:
Ivey spent a significant part of his childhood in a
children’s home in
lived at the children’s home until he was 15 years old and then moved with his
Ivey demonstrated an interest in sexual behavior at
an early age. He admits that when he was
12 years old, he began to think about touching his sister and other women while
they slept. Ivey began window peeping
when he was 13 years old. At the
children’s home, Ivey was caught and punished for sexually touching sleeping
girls. He admits that when he was 14
years old, he began fantasizing about raping women and that when he was 16
years old, he began fantasizing about killing a woman “for the purpose of
sex.” When Ivey was 16 years old and
December 1988, while Ivey was living in
Approximately six months later, Ivey entered the dwelling of another sleeping German woman, 21-year-old A.H., whom he had also spied on previously while window peeping. Ivey forced open a locked bedroom and woke A.H. up. When she tried to flee, Ivey pushed her back into the room and up against the wall. He touched her breasts, put his hand between her legs, and tore off her underwear. A.H. struggled with Ivey, ending up on the floor as Ivey continued to fondle her. Ivey panicked when he realized that A.H. would be able to recognize him. He then put his hands around her neck and choked her for seven or more minutes, killing her.
deviant sexual behavior continued after he left
behavior continued after he was married.
Ivey and his wife moved to
Ivey admitted that in April 1992, he entered a woman’s home and touched her buttocks while she was sleeping. He was charged with first-degree burglary and fourth-degree criminal sexual conduct for this incident and pleaded guilty to second-degree burglary.
Ivey committed three sexual assaults in August 1992: first, Ivey admitted entering a woman’s apartment and fondling her while she slept; he was not prosecuted for this offense.
Second, on August 15, 1992, Ivey entered a trailer home where a 13-year-old girl was babysitting. Ivey fondled the girl by putting his hands on her buttocks. The girl yelled, “Don’t!” and attempted to leave, but Ivey blocked her exit. She eventually escaped and called her mother. Ivey was gone when they returned to the home. Ivey pleaded guilty to first-degree burglary and fourth-degree criminal sexual conduct for this incident.
Third, on August 16, 1992, Ivey entered another home and sexually assaulted a 14-year-old girl. She had been sleeping on the couch and woke up to find Ivey standing over her. Ivey told her that he would leave if she performed oral sex. The girl struggled with Ivey and reported that Ivey grabbed her arms and held her to the couch. She reported that Ivey slapped her in the face, tore off her underpants, reached under her shirt and tore off her bra, and placed a pillow over her head and pressed down to keep her from screaming. Ivey grabbed her breasts and her genital area. He then left. Ivey pleaded guilty to first-degree burglary and to second-degree criminal sexual conduct for this incident.
On March 31, 1993, Ivey was sentenced to 165 months
for the crimes committed in
continued to act out sexually while he was imprisoned in
When Ivey was to return to the
psychologists testified regarding the factors that indicate Ivey’s likelihood
of reoffending. Gilbertson reported that
Ivey’s age and gender both indicate an increased risk of reoffending. Both Gilbertson and Alsdurf opined that
Ivey’s history of violent behavior made it more likely that he would reoffend,
and Alsdurf noted “particular concern” for the sexually motivated murder that
Ivey committed. Both psychologists also
reported that base-rate statistics predict that Ivey is highly likely to
reoffend. Gilbertson noted that Ivey’s
predicted likelihood of committing new sexual offenses is approximately one and
one-half to two and one-half times greater than the expected recidivism rate
for the average released
Neither psychologist believes that Ivey has adequately completed sexual-offender treatment. Alsdurf expressed concern regarding Ivey’s understanding of his offenses. He noted that “Ivey stated that he now understands that his past sexual behavior was a manifestation of his ‘looking for love.’ How he could conceptualize his sexual behavior as having any dimension of love or appropriate sexual pursuit seems absurd and another example of his cognitive distortions that continue.” Gilbertson asserted that “Ivey has rather limited tools and treatment construct with which to develop better control regarding his behavior and sexual acting out. It is my opinion his paraphilic behaviors are highly engrained and would demand a very positive discharge prognosis before placement into the community.”
Both Gilbertson and Alsdurf also provided opinions regarding the legal factors relevant to whether Ivey has an utter inability to control his sexual impulses. Both Gilbertson and Alsdurf agree that Ivey has exhibited emotional instability in the past, but they disagree regarding whether Ivey continues to exhibit emotional instability. Both psychologists agree that Ivey exhibits impulsive behavior, that he evidences a lack of customary standards of good judgment, and that he evidences a failure to appreciate the consequences of his personal acts. And Alsdurf pointed out that the lack of a relationship between Ivey and his victims means that he has an extremely large potential-victim pool.
Alsdurf’s report notes that Ivey asserts that he is not a violent person and committed the murder out of fear and that while Ivey “mostly just feels regret” about the murder in Germany, because Ivey did not know the victim, his regret is directed to himself. Alsdurf’s report also states that when Ivey was asked about his motivation for entering homes and touching women while they are sleeping, Ivey responded that it was due to his being “weird, sick . . . I don’t know, that was my social life, that was my hobby, my way of interacting with other people without having to interact.” Alsdurf noted that Ivey “believed at the time that his ‘window peeping, sneaking in and touching women when they were asleep had some component of affection, romance, passion, love to it. It’s as if that was a relationship.’”
Gilbertson reported that “[p]revious psychological evaluators have determined that [Ivey’s] self concept may be indeed quite frail and therefore he may be more prone to respond negatively to rejection and isolation, real or imagined.” Gilbertson also opined that Ivey’s mood disruption appears to be an important precursor to his sexual acting out.
Both Gilbertson and Alsdurf prepared written reports for the district court and testified at the civil commitment hearing in March 2004. On May 4, 2004, the district court filed an order for Ivey’s commitment. In making its decision, the district court relied on Gilbertson’s and Alsdurf’s reports and testimonies and on the facts described above. Ivey filed a notice of appeal of this commitment order on May 14, 2004. In August 2004, the 60-day review hearing was held, and the district court filed an order for Ivey’s indeterminate commitment. Ivey appeals from that order.
Ivey challenges his indeterminate commitment as a sexually dangerous person and as a sexual psychopathic personality, arguing that he is not highly likely to reoffend and that he can control his sexual impulses. Ivey also raises a number of evidentiary issues, which we address first.
first argues that the district court erred by adopting the state’s proposed
findings of fact in their entirety.
“Findings of fact . . . shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.”
Here, the district court adopted the state’s proposed findings of fact in their entirety. Ivey does not assert that the district court’s findings were clearly erroneous; instead, he challenges the district court’s ability to “take the necessary time to carefully review all of the testimony and exhibits” before adopting the proposed findings. After reviewing the record, we conclude that the district court’s findings of fact are supported by the evidence and are not clearly erroneous.
Ivey also argues that the district court erred by allowing testimony from a woman who administered a psychological test to Ivey. This woman testified regarding her observations of Ivey as he took the test that she proctored.
rulings rest within the sound discretion of the district court and they will
not be reversed unless there was a clear abuse of discretion. State v. Ashby, 567 N.W.2d 21, 25 (
The district court accurately described the proctor’s testimony in its findings of fact. When Ivey’s attorney asked that her testimony be stricken as irrelevant, the district court denied the motion because the proctor was a fact witness testifying to her observations. The proctor’s testimony was relevant to whether Ivey can control his sexual urges because she thought that she saw him engage in inappropriate sexual behavior during the test. The district court did not clearly abuse its discretion by allowing this testimony or by describing the testimony in its findings of fact.
argues that the district court erred by denying his motion to translate the
forensic psychiatric report written by a German psychiatrist. Ivey asserts that the report could have
documented whether he was involved in any sexual misconduct while he was
Again, evidentiary rulings are reviewed for a clear abuse of discretion. Ashby, 567 N.W.2d at 25. Here, the district court questioned whether the German report would add any relevant new information because Ivey was extensively examined by Gilbertson and Alsdurf. The German report is dated October 24, 1997, and the German court relied on the report in its judgment of November 21, 1997, imposing a juvenile sentence on Ivey rather than an adult sentence.
The district court found that because two fully
qualified experts examined Ivey in
Ivey also argues that the district court erred by rejecting Ivey’s testimony in its entirety. But Ivey fails to explain this assertion; he merely describes his testimony that he believes that he can recognize problematic thought patterns and stop them before he acts on them. Ivey’s contention that the district court rejected his testimony in its entirety is not supported by the district court’s findings of fact. The district court mentions and credits Ivey’s testimony repeatedly in its findings.
regard is given to the opportunity of the district court to judge the
credibility of the witnesses, and this court does not disturb findings of fact
unless they are clearly erroneous.
Ivey argues that the district court erred by committing him as a sexually
dangerous person after concluding that he does not have the ability to control
his sexual behavior and is highly likely to commit future acts of harmful
sexual conduct. “A district court’s
conclusions regarding whether the record supports, by clear and convincing
evidence, the requirements of the SDP statute are questions of law that we
review de novo.” In re Civil
Commitment of Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review
sexually dangerous person is one 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). The Minnesota Supreme Court
clarified that the act allows the civil commitment of persons who, because of
their disorder or dysfunction, cannot adequately control their sexual impulses
and are highly likely to engage in harmful sexual acts in the future. In re Linehan, 594 N.W.2d 867, 876 (
Ivey disputes the finding that he is highly likely to engage in future acts of harmful sexual conduct. The Minnesota Supreme Court describes six factors in Linehan I to help predict whether a person poses future serious danger to the public:
(a) the person’s relevant demographic characteristics (e.g., age, education, etc.); (b) the person’s history of violent behavior (paying particular attention to recency, severity, and frequency of violent acts); (c) the base rate statistics for violent behavior among individuals of this person’s background (e.g., data showing the rate at which rapists recidivate, the correlation between age and criminal sexual activity, etc.); (d) the sources of stress in the environment (cognitive and affective factors which indicate that the person may be predisposed to cope with stress in a violent or nonviolent manner); (e) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (f) the person’s record with respect to sex therapy programs.
In re Linehan, 518
N.W.2d 609, 614 (
1. Ivey’s relevant demographic characteristics
Both Gilbertson and Alsdurf opined that Ivey’s age and gender increase his likelihood to reoffend. Gilbertson stated that “Ivey’s current age would not cause one to expect a significant drop in sexual arousal and/or interest.” Gilbertson testified that being male increased Ivey’s risk factor and that Ivey’s age would not “deter or reduce or modify the prediction of highly likely in any way.”
2. Ivey’s history of violent behavior
Ivey does not contest the fact that he has a history of violent behavior. Gilbertson asserted that “this factor is great when the sheer number of opportunities and the times he’s actually entered homes is considered.” Alsdurf maintained that Ivey’s history of violent behavior must have been in the moderate to high level when Ivey was living in the community, and he noted “particular concern” for the sexually motivated murder that Ivey committed.
3. Base-rate statistics
Alsdurf and Gilbertson testified that base-rate statistics indicate that Ivey
presents a heightened risk of committing future sexual offenses. Alsdurf’s report states that “base rate
statistics would predict a high likelihood of [Ivey] reoffending, particularly
in light of his sexual deviancy.” Both
psychologists testified that they considered a variety of actuarial measures
that indicate that recidivism for an individual like Ivey is substantially
higher than base rate statistics. And
Gilbertson reported that “Ivey’s predicted sexual offense is close to 1½ to 2½
times greater than the expected recidivism rate for the average released
4. Sources of stress in Ivey’s environment
Both Alsdurf and Gilbertson opined that the potential sources of stress in Ivey’s environment also indicate a high risk of reoffense. Both psychologists believe that Ivey would face significant stress if he reenters the community. Gilbertson stated that if Ivey is released as a Level III sex offender, he will experience an increased “sense of being different, labeled and isolated—the very feelings that have so troubled him in times past.”
5. Similarity of present or future context to those in which offender has used violence in the past
Alsdurf asserted that Ivey “has a very established pattern of offending which has included the use of extreme violence[,] but more importantly, his behavior is highly reckless and the community at large is always a potential victim for Mr. Ivey.” The record substantially supports the district court’s conclusions that, if released into the community, Ivey would be placed in circumstances similar to those in which he has used violence in the past; that Ivey reoffended after committing the murder in Germany, after being approached by law enforcement for his behavior, and after being discharged from the military due to inappropriate sexual behavior; and that nothing indicates that Ivey would not commit similar acts of violence if he were released into the community.
6. Ivey’s record with respect to sex-therapy programs
Both Alsdurf and Gilbertson noted that Ivey has not yet completed sexual-offender therapy. Both psychologists also expressed concern regarding Ivey’s insight into his condition. Alsdurf stated, “How [Ivey] could conceptualize his sexual behavior as having any dimension of love or appropriate sexual pursuit seems absurd and another example of his cognitive distortions that continue.” Gilbertson opined that “Ivey has rather limited tools and treatment construct with which to develop better control regarding his behavior and sexual acting out. It is my opinion his paraphilic behaviors are highly engrained and would demand a very positive discharge prognosis before placement into the community.”
Ivey offers positive snippets from Gilbertson’s and Alsdurf’s reports and testimonies to argue that the district court erred by determining that he was highly likely to reoffend. But a district court’s evaluation of expert testimony is of particular significance. In re Pirkl, 531 N.W.2d 902, 908 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995). The record here, especially the written reports and testimonies of Gilbertson and Alsdurf, offers substantial support for the district court’s factual findings. These findings support by clear and convincing evidence the conclusion that Ivey is highly likely to reoffend and has an inability to control his sexual impulses and that he is, therefore, a sexually dangerous person as defined by Minn. Stat. § 253B.02, subd. 18c.
Ivey also challenges his commitment as a sexual psychopathic personality under Minn. Stat. § 253B.02, subd. 18b (2002). A 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.
Ivey concedes that his past actions indicate a habitual course of misconduct in sexual matters and were dangerous to other persons. Gilbertson and Alsdurf opined that Ivey exhibits emotional instability and impulsive behavior, lacks customary standards of good judgment, and fails to appreciate the consequences of his personal acts.
But Ivey argues that the district court erred by concluding that he presently exhibits an utter lack of power to control his sexual impulses. Ivey bases his argument on the alleged facts that he has not engaged in sexual misconduct since August of 1996 and that he “understands his condition, understands his past propensity of sexual misconduct, admits his wrong-doing, and has the current ability to control his sexual impulses.” Again, the district court’s evaluation of expert testimony is of “particular significance” and this court will not disturb this evaluation unless it is clearly erroneous. See Pirkl, 531 N.W.2d at 908.
determine whether a person has an utter lack of power to control his or her
sexual impulses, Minnesota courts consider the factors described in In re
Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).
These factors include (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) other factors
that bear on the predatory sexual impulse and the lack of power to control
1. The nature and frequency of Ivey’s sexual assaults
Ivey sexually assaulted at least seven victims over the four-year period before his incarceration, and he killed one victim. He entered homes and committed sexual offenses against adolescent and adult strangers. Further, Ivey admits to window peeping perhaps thousands of times. Gilbertson’s report notes that from the formal records and Ivey’s statements, it appears that there may have been as many as 30 to 50 separate incidents of burglary or home invasion.
2. The degree of violence involved
Ivey has demonstrated a willingness to utilize force and has killed one victim.
3. The relationship (or lack thereof) between the offender and the victims
The lack of relationship between Ivey and his victims also indicates an utter lack of power to control his sexual impulses. Alsdurf testified that this also means that Ivey has an extremely large potential-victim pool.
4. The offender’s attitude and mood
The district court found that Ivey’s mood and attitude show that he lacks insight into why he committed his offenses. Ivey disputes this finding. But Gilbertson opined that Ivey’s “current and positive presentation that all the difficulties of the past are behind him . . . is a rather simplistic and a premature assessment of his emotional stability and his current risk level.” Ivey asserts that he is not a violent person and that the murder he committed was out of fear, but Alsdurf noted that the regret Ivey feels about the murder is directed to himself. Ivey’s explanation of his motivation for entering homes and touching women when they are sleeping is that it was his social life, his hobby, his way of interacting with other people. Ivey also stated that he knows that his past sexual behavior was a manifestation of his “looking for love.”
5. Ivey’s medical and family history
record also supports the district court’s finding that Ivey’s medical and
family history appear to have contributed to his sexual offenses. Gilbertson reported that Ivey views himself
as a person who was abandoned by his family at an early age and that he has
continuing resentments about his family history. The district court also noted that Ivey
watched pornographic movies with his parents and siblings while the family
6. Results of psychological testing and evaluation
Ivey’s past psychological tests indicate that he is unable to control his sexual behavior. Gilbertson claimed that “[p]revious psychological evaluators have determined that [Ivey’s] self concept may be indeed quite frail and therefore he may be more prone to respond negatively to rejection and isolation, real or imagined.” Gilbertson also opined that Ivey’s mood disruption appears to be an important precursor to his sexual acting out.
The sex-offender treatment report mentioned above also states that persons with Ivey’s profile are “poor candidates for insight-oriented psychotherapy” and have “a low capacity for self-change.”
7. Other factors
The district court also noted other factors suggesting that Ivey exhibits an utter lack of control of his sexual impulses. These factors are supported by the record and include (1) the fact that Ivey continued to illegally enter others’ homes, the activity that triggered his sexual acting out, even after he committed murder and after he experienced significant changes in life circumstances; (2) the fact that Ivey lacks insight into his offenses and minimizes his behavior; and (3) the fact that Ivey does not have an adequate relapse plan.
Again, the evidence as a whole substantially supports the district court’s factual findings, and the findings support by clear and convincing evidence the legal conclusion that Ivey exhibits an utter inability to control his sexual impulses and is an SPP under Minn. Stat. § 253B.02, subd. 18b.