This opinion will be unpublished and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
Matter of the Civil Commitment of:
Thomas Gabrieal White.
Filed August 2, 2005
Hubbard County District Court
File No. P204524
Robert D. Tiffany, Wallace & Tiffany Law Office, 201 East First Street, P.O. Box 27, Park Rapids, MN 56470 (for appellant)
Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from the order committing him as a sexually dangerous person, appellant argues that (1) the evidence is insufficient to support his commitment; (2) the Sexually Dangerous Person Act violates due process and the prohibitions against double jeopardy and ex post facto laws; (3) the district court erred in denying his motion to suppress records that were provided to the court-appointed examiners; and (4) the district court failed to review treatment alternatives less restrictive than the Minnesota Sex Offender Program and failed to find why such less-restrictive alternatives would not provide appropriate and necessary treatment for appellant. We affirm.
Appellant Thomas Gabrieal White was born in 1974 and has a history of sexual assaults that began when he was 19 years old. His victims were young women between 14 and 17 years old. Four of these assaults resulted in criminal prosecutions. Appellant twice pleaded guilty to fifth-degree criminal-sexual-conduct charges and once pleaded guilty to a third-degree criminal-sexual-conduct charge. The fourth prosecution ended when the court dismissed the complaint with prejudice on speedy-trial grounds.
In April 1994, after appellant pleaded guilty to a third-degree criminal-sexual-conduct charge, he received a stayed sentence and was placed on up to five years’ probation and ordered to complete a sex-offender evaluation and follow the recommendations. Appellant violated his probation by failing to complete the recommended sex-offender treatment and was ordered to serve 120 days in jail, with work-release privileges. In March 1995, following another incident, the district court revoked appellant’s stayed sentence, in part because appellant failed to attend sex-offender treatment, and appellant was committed to prison for 26 months. In April 2002, appellant pleaded guilty to a fifth-degree criminal-sexual-conduct charge. He was sentenced to one year in jail and ordered to complete a sex-offender assessment and follow the recommendations of the assessment. In November 2002, appellant pleaded guilty to a fifth-degree criminal-sexual-conduct charge. He was sentenced to one year in jail and ordered to complete a sex-offender evaluation and follow the recommendations of the evaluation. Appellant has never completed a sex-offender treatment program. Appellant has been convicted of driving under the influence, and alcohol has been involved in several of his offenses.
In June 2004, the Hubbard County Attorney filed a petition to commit appellant pursuant to Minn. Stat. §§ 253B.18 and .185 (2002), as a “sexual psychopathic personality” (SPP) under Minn. Stat. § 253B.02, subd. 18b (2002), and as a “sexually dangerous person” (SDP) under Minn. Stat. § 253.02, subd. 18c (2002). The district court ordered that appellant be held until the court made a determination on the commitment petition. The district court appointed two psychologists, Mary Kenning, Ph.D., and Thomas Alberg, Ph.D, to serve as examiners.
The parties entered into a written stipulation under which appellant agreed to an initial commitment as an SDP. The stipulation also provided that if the court accepted the stipulation, the portion of the commitment petition seeking commitment as an SPP would be dismissed. The stipulation was presented to the district court, and the district court issued an initial commitment order committing appellant to the Minnesota Sex Offender Program (MSOP) as an SDP. Following a 60-day review hearing, the district court issued an order indeterminately committing appellant as an SDP. This appeal follows.
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 on evidence submitted at the
hearing. In re Shaefer, 498 N.W.2d 298, 300 (
1. Sufficiency of the Evidence
Appellant argues that the evidence is insufficient to meet the standards for committing him as an SDP. Appellant contends that he resided in the community for a significant period of time while knowing that a commitment petition was being considered, and during that time, he established a long-term relationship with his fiancé, obtained a number of jobs, and resided in the community without incident. Appellant argues that the fact that he did not absent himself from the community is significant, but it is not reflected in the district court’s findings of fact. Appellant contends that the district court’s verbatim adoption of the findings of fact prepared by the Attorney General suggests a failure by the district court to scrutinize the record and determine whether the stipulated facts meet the standards for commitment.
To commit a person as an SDP, the statutory requirements for commitment must be proved by clear and convincing evidence. Minn. Stat. §§ 253B.09, subd. 1(a), and .18, subd. 1 (2002); see Minn. Stat. § 253B.185, subd. 1 (2002) (provisions of section 253B.18 apply to a person committed as an SDP and an SPP).
An SDP is
a person who:
(1) has engaged in a course of harmful sexual conduct as defined in [Minn. Stat. § 253B.02,] 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 [Minn. Stat. § 253B.02,] subdivision 7a.
Minn. Stat. § 253B.02, subd. 18c(a) (2002).
“‘Harmful sexual conduct’ means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Minn. Stat. § 253B.02, subd. 7a(a) (2002). To prove that a person is an SDP, “it is not necessary to prove that the person has an inability to control the person’s sexual impulses.” Minn. Stat. § 253B.02, subd. 18c(b) (2002).
Appellant stipulated that he is an SDP. In his stipulation, appellant stated that he does not claim that he is innocent of the crimes of which he has been convicted or that he did not commit the other acts of sexual misconduct described in the findings of fact submitted in support of the petition for commitment. The district court found that appellant “entered the stipulation freely, voluntarily, and intelligently and after having been fully and adequately advised by counsel.”
In addition, both court-appointed examiners reviewed the records in this case and interviewed appellant, and both concluded that appellant meets the criteria for commitment as an SDP. In her report, Dr. Kenning stated that appellant’s “victims reported trauma as a result of his actions.” Kenning diagnosed appellant as having an antisocial personality disorder with narcissistic features, which “does not allow him to adequately control his sexual impulses.” Kenning noted that appellant “does not perceive having sexual contact with underage girls to be a serious problem…[and] cannot account for his behavior other than to suggest that it was ‘stupid’ and that he ‘didn’t have anything going for (him)’ at the time of the offenses.” Finally, based on actuarial data and appellant’s pattern of sexual conduct over the past ten years, Kenning opined that as a result of his antisocial personality disorder, appellant is likely to engage in harmful sexual conduct in the future. Kenning also stated that the period before the commitment proceeding when appellant had no offenses does not indicate a lower likelihood of re-offense, because appellant has had other periods in the past when he did not commit any offenses, but he eventually committed additional offenses.
Dr. Alberg concluded that appellant meets the criteria to be considered an SDP, but not an SPP. Alberg reported that appellant meets the criteria to be considered a clinical psychopath and that because of his high score on instruments used to determine the likelihood of re-offending, he is highly likely to commit sexual offenses in the future. Alberg concluded that appellant is an untreated sex offender and that because he did not complete the sex-offender programs he enrolled in, he is at a higher risk of re-offending than people who have not been treated at all.
In the 60-day treatment report required under Minn. Stat. § 253B.18, subd. 2 (2002), MSOP staff reported that “[t]here is no new evidence to suggest previous assessments of [appellant’s] history of sexual offenses were inaccurate . . . [t]here is no new evidence to suggest that [appellant] has the ability to adequately control his sexual impulses . . . [and] [t]here is no new evidence to suggest that he has lessened the risk he presents to society since the time of his initial commitment.” The report also stated that studies that compare sex offenders who have re-offended with sex offenders who have not re-offended suggest that there are several factors associated with re-offense, and appellant
presents with a number of those factors including three sex-related charges/convictions, lengthy sexual offending history, force was used in at least one offense, at least one offense involved multiple sex acts on the same victim, offended against at least three 13 to 15-year olds when he was more than five years older than the victim, at least three victims were strangers, there is a pattern of adolescent antisocial behavior, and there is a pattern of drug or alcohol abuse. Combined, these factors suggest that [appellant] falls within a group that presents a high risk for re-offending.
Appellant’s stipulation and the documents submitted to the district court with the stipulation, along with the court-appointed examiners’ reports and the 60-day review report, provide a sufficient factual basis to support the district court’s conclusion that appellant meets the statutory requirements for commitment as an SDP. When the record is viewed in the light most favorable to the district court’s decision, the evidence that appellant resided in the community for a significant period of time without incident is not sufficient to refute the evidence that appellant is likely to engage in acts of harmful sexual conduct. Dr. Kenning specifically stated in her examiner’s report that the period when appellant had no offenses does not indicate a lower likelihood of re-offense because appellant has had other periods in the past when he did not commit any offenses, but he eventually committed additional offenses.
The verbatim adoption of a party’s proposed findings and conclusions, while not encouraged, is not reversible error per se. Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987); accord Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). Appellant’s argument that the district court’s verbatim adoption of the findings of fact prepared by the Attorney General suggests a failure by the district court to scrutinize the record and determine whether the stipulated facts meet the standards for commitment is without merit because, in his stipulation, appellant agreed to “the entry of the attached Findings of Fact, Conclusions of Law, and Order for Commitment.” The attached findings of fact were the findings prepared by the Attorney General.
2. Double Jeopardy and Ex Post Facto Laws
challenges the constitutionality of the Sexually Dangerous Person Act on the
grounds that it violates due process and the prohibitions against double
jeopardy and ex post facto laws.
Appellant acknowledges that he is aware that
Appellant argues that the district court erred in denying his motion to suppress records that were provided to the court-appointed examiners.
This court has recognized
that the Minnesota Supreme Court has “stressed the value of permitting court-appointed examiners . . . full access
to all available information.” In re Morton, 386 N.W.2d 832, 835 (
4. Less-Restrictive Alternative
Appellant argues that the district court failed to review treatment alternatives less restrictive than the MSOP and failed to find why such less-restrictive alternatives would not provide appropriate and necessary treatment for appellant.
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.” (Emphasis added.)
Appellant argued that the district court should consider a less-restrictive alternative to the MSOP, but, as the district court found, appellant “produced no evidence at the review hearing concerning the current appropriateness and availability of placement other than MSOP.” Because appellant did not establish that a less-restrictive treatment program is available, the district court did not err in ordering appellant committed to the MSOP.