This opinion will be unpublished and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
James Allen Barber
Rice County District Court
File No. P4-03-1752
Mike Hatch, Attorney General, Angela M. Helseth, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for appellant State of Minnesota)
Lance R. Heisler, Lampe, Swanson, Morisette & Heisler, LLP, 105 East Fifth Street, P.O. Box 240, Northfield, MN 55057 (for respondent Barber)
Considered and decided by Minge, Presiding Judge; Randall, Judge; and Wright, Judge.
Appellant challenges the order indeterminately committing him as a sexually dangerous person pursuant to Minn. Stat. § 253B.02, subd. 18c (2004) and a sexual psychopathic personality pursuant to Minn. Stat. § 253B.02, subd. 18b (2004). Appellant argues that he should be released because there is no clear and convincing evidence supporting the commitment and he was denied meaningful treatment between his initial commitment and the final review hearing. Because the record supports appellant’s commitment as a sexually dangerous person and a sexual psychopathic personality by clear and convincing evidence, because appellant received sufficient treatment to satisfy substantive due process requirements, and because allegations of denial of meaningful treatment are not properly before us, we affirm.
Appellant James Allen Barber was born on August 13, 1964. In 1982, appellant sexually assaulted a 10-year-old girl. The sexual abuse occurred twice during a one-week period. Appellant was found guilty of second-degree criminal sexual conduct, and placed on probation, which he successfully completed. In 1986, appellant sexually abused an eight-year-old niece and threatened to kill her and her family if she told anyone. Appellant was not charged for this offense, but admitted to it during a pre-sentence investigation.
In the spring of 1988, appellant sexually abused an eight-year-old nephew while he was babysitting him. Appellant stuck a knife in the bathroom door to lock it, got into the bathtub with his nephew, and sexually assaulted him. In July 1988, appellant was admitted to the hospital for depression and suicidal statements. While at the hospital, appellant became sexually involved with a female patient who he ultimately married.
In November 1988, appellant was charged and ultimately found guilty of second-degree criminal sexual for the sexual abuse of his nephew. The court stayed imposition of the sentence, placed appellant on five years probation, and ordered appellant to serve one year in jail with 10 months suspended for treatment. Appellant was admitted into an intensive sex offender treatment program, but was discharged because he had no interest in treatment and the staff reported that he was controlling and manipulative. The court then executed a 21-month sentence and appellant was released from prison in June 1991, under conditions of supervised release.
Within two months of his release, appellant was charged with two counts of first-degree criminal sexual conduct relating to his sexual abuse of his seven-year-old daughter. Appellant removed the daughter’s swimming suit, digitally penetrated her, and threatened to hurt her and her sister if she told anyone. Appellant denied the charges but was convicted following a jury trial and sentenced to 220 months after the court determined that appellant was a patterned sex offender. State v. Barber, 494 N.W.2d 497, 502-03 (Minn. App. 1993), review denied (Minn. Feb. 25, 1993). Appellant appealed the conviction, which was affirmed by this court. Id. During the course of his prison term, appellant attempted suicide by hanging and by drug overdose. While in prison, appellant was repeatedly encouraged to participate in sex offender treatment, but was denied admission because of his refusal to admit to the offense.
On October 22, 2003, a petition was filed seeking appellant’s commitment as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP). Two court-appointed licensed psychologists evaluated appellant and discussed their evaluations during the commitment proceeding. One of the examiners diagnosed appellant with pedophilia and a personality disorder with antisocial, dependent and narcissistic traits. The examiner concluded that it was highly likely that appellant would engage in acts of harmful sexual conduct in the future. The second examiner concluded that appellant could not control his sexual impulses, was dangerous to others, and had a high likelihood of engaging in future acts of sexual violence. Both examiners opined that appellant is in a pattern of denial and met the statutory elements of both an SDP as well as an SPP.
On May 5, 2004, the district court issued an interim order committing appellant as an SDP and an SPP. As part of this interim commitment the district court directed the Minnesota Sex Offender Program (MSOP) to file a treatment report within 60 days. The treatment report opined that appellant needed sex offender treatment in a residential setting and was a high risk for re-offense. The MSOP also stated that there was no change in appellant’s condition since the time of his initial commitment that would alter the district court’s earlier findings. A review hearing was held on September 13, 2004, and the district court concluded that the requirements for appellant’s commitment as an SDP and an SPP were met, and that there was no evidence to suggest that appellant was any less of a risk than he was at the initial commitment hearing. As a result, the district court ordered appellant indeterminately committed as an SDP and an SPP. This appeal followed.
The first issue is whether there is sufficient evidence to support appellant’s commitment as an SDP and an SPP. Findings of fact will not be set aside unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). The record is viewed in the light most favorable to the decision, but whether the evidence is sufficient to meet the standards for commitment is a question of law reviewed de novo. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995); In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994), rehearing denied (Minn. Aug. 15, 1994) (Linehan I). To commit a person as an SDP or an SPP, the statutory requirements for commitment must be proved by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (2004); see Minn. Stat. § 253B.185, subd. 1 (2004) (provisions of section 253B.18 apply to a person committed as an SDP and an SPP).
Minn. Stat. § 253B.02, subd. 18c (2004), defines an SDP:
(a) 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 (2004).
The district court found that appellant had sexually abused four children between the ages of 7 and 10. This evidence of repeated abuse and the effects it had on the victims met the definition of harmful sexual conduct in the SDP statute and the presumption then turned to appellant to rebut. Appellant presented no evidence to rebut the presumption. The district court also found that appellant has manifested a personality disorder, which results in his difficulty in avoiding his sexually harmful behavior, and appellant is therefore likely to engage in further harmful sexual conduct. The two examiners testified in favor of commitment, stating that appellant manifests a personality disorder with antisocial and narcissistic traits, is a pedophile, and fits the clinical definition of a psychopath.
Appellant acknowledges that he had some personality disorder and had engaged in bad conduct in the past but argues that he no longer exhibits those symptoms or behaviors. Appellant bases his argument on his relatively clean prison record for the last ten years and points to his regular meetings with mentors and completion of horticulture training as proof that he is able to control his personality disorder and will not commit harmful sexual acts in the future. But, the court appointed examiners testified that appellant is likely to engage in future harmful conduct because his behavioral history is marked by instability, self-centeredness and lack of insight into the impact of his sexual misconduct. There is clear and convincing evidence to support the district court’s conclusion that appellant is an SDP.
Commitment as an SPP requires showing of a habitual course of misconduct in sexual matters and an utter lack of power to control sexual impulses. The statute defines SPP as:
“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 (2004). Appellant argues that he has the power to control his sexual impulses and is not dangerous as defined by the SPP statute. The Minnesota Supreme Court in In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994) outlined several factors used for determining whether a person lacks utter control over his impulses, including: (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.”
The district court applied the Blodgett factors in reaching its conclusion that appellant has an utter lack of power to control his sexual impulses and meets the criteria of an SPP. The district court found that appellant met the Blodgett factors because of the following: he has a varied victim pool involving both male and female victims and has assaulted at least four victims over an 11-year period; he has demonstrated a willingness to utilize both direct and implicit physical coercion and has threatened victims; he abused people who were close to him such as his niece, nephew, and daughter; his attitude is one of continual denial and minimization of abuse; he has no insight into why he committed these offenses; abuse is present in his family history and he was abused by his sisters; and his current psychological evaluations are consistent with earlier testing and indicate that he is self-centered and non-empathic, continued to place himself in situations where he has contact with minors, minimizes his behavior, and does not have a relapse prevention plan.
Appellant argues that the testimony of his mentors who he has been meeting with for several years supports his assertion that he has control and is unlikely to re-offend. The mentors testified that appellant has matured over the course of his prison term and has thought a lot about his future and possible employment when he gets out. But, the mentors recognize that appellant refuses to admit to his latest offense and both conceded that they have no experience in treating sex offenders or assessing the likelihood of re-offense. Based on the record and testimony from the trained psychologists, we conclude that there is clear and convincing evidence to support the district court’s determination that appellant has an utter lack of power to control his sexual impulses and that the district court did not err in committing appellant as an SPP.
The second issue is whether appellant should be discharged on the grounds that he did not receive any meaningful treatment between his initial commitment and indeterminate commitment hearing. The statutory provisions involving an indeterminate civil commitment require the court to hold a final determination hearing in which the district court reviews a written treatment report filed by the treatment facility and determines whether the person should remain committed as mentally ill and dangerous. Minn. Stat. § 253B.18, subds. 2, 3 (2004). The Minnesota Supreme Court has held that the evidence considered at the review hearing is limited to: “(1) the statutorily required treatment report; (2) evidence of changes in the patient’s condition since the initial commitment hearing;” and (3) such other evidence as the district court deems is necessary to make the proper assessment. In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996) (Linehan III), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999). In Linehan III, the patient argued that the district court improperly limited the scope of the review hearing when it did not consider testimony from a doctor who attacked the validity of the SDP Act. Id. at 170. The court affirmed the district court and agreed with the state that the purpose of the review hearing is to “allow the district court to consider the views of the treatment facility before issuing a final commitment order” and “allow the district court to consider whether changes in the patient’s condition render further commitment” inappropriate. Id.
Linehan III is instructive on this issue because here, like in Linehan III,appellant attempted to introduce evidence regarding the quality of the treatment facility in an attempt to challenge his commitment. The district court properly limited its review to the treatment report, which stated that there was no evidence to suggest that there has been any change since the time of his initial commitment in the criteria for an SDP and an SPP commitment. Appellant offered no evidence that his condition changed since the initial commitment or that the treatment facility failed to provide a treatment report.
Appellant argues that he did not receive any meaningful treatment in between his initial commitment and the review hearing, that the report of the treatment facility was useless, and that he should be discharged. The right to treatment is not just a formality; it is mandated under the civil commitment statute, which states, “[o]nce a patient is admitted to a treatment facility pursuant to a commitment under this subdivision, treatment must begin regardless of whether a review hearing will be held under subdivision 2.” Minn. Stat. § 253B.18, subd. 1(b). But the final commitment hearing and appellate review of that hearing is the wrong setting in which to raise the issue of improper treatment. See In re Wicks, 364 N.W.2d 844, 847 (Minn. App. 1985) (“Generally, the right to treatment issue is not reviewed on appeal from a commitment order”), review denied (Minn. May 31, 1985); In re Pope, 351 N.W.2d 682, 683 (Minn. App. 1984) (noting that whether patient is receiving proper treatment should be raised before a hospital review board and not before the committing court). The issue of whether appellant failed to receive proper treatment is premature.
Appellant also argues that the absence of meaningful treatment between his initial commitment and the review hearing violated his constitutional due process rights. Civil commitment without treatment is a violation of one’s constitutional due process rights. Blodgett, 510 N.W.2d at 916 (“So long as civil commitment is programmed to provide treatment and periodic review, due process is provided”). In In re Joelson, 385 N.W.2d 810 (Minn. 1986), the Minnesota Supreme Court addressed the level of treatment constitutionally required in a civil commitment. In Joelson, the patient was diagnosed with pedophilia and was committed as a psychopathic personality. Id. at 810. The patient claimed that his constitutional rights were being violated because he was receiving treatment in a program that was not designed to treat pedophilia directly, but rather addressed the patient’s poor social skills. Id. at 810-11. The court held that this treatment program did not violate his constitutional rights stating “[w]hile it is apparent that the [treatment] program will not ‘cure’ Joelson so that he can fully function in society, it is treatment which satisfies his statutory right to treatment and any constitutional right he may have to adequate treatment.” Id. at 811.
Here appellant argues that he did not receive any meaningful treatment because his treatment consisted of one interview. But, according to the treatment facility reports, appellant was interviewed on June 18, 2004, as part of an initial psychological assessment and again on June 21, 2004, as part of a social history assessment. Additionally, appellant was attending education classes, and a recreational therapist was occasionally available. Although these activities may not have directly addressed his sex offender issues, they nonetheless satisfy the constitutional requirements for the shorter timeframe under consideration.
 Appellant also appealed the denial of his postconviction petition involving multiple claims of ineffective assistance of counsel. This court affirmed the district court’s order denying relief. State v. Barber, No. C1-95-867 (Minn. App. Feb. 20, 1996), review denied (Minn. April 16, 1996).