This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In the Matter of the Civil Commitment of: 

Kermit Lorenzo Deloach.


Filed October 11, 2005


Stoneburner, Judge


Hennepin County District Court

File No. MH-PR-04-584



Stephen D. Radtke, 10800 Lyndale Avenue South, Suite 263, Bloomington, Minnesota, 55420 (for appellant)


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


            Considered and decided by Toussaint, Chief Judge; Peterson, 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 commitment as a sexually dangerous person (SDP), asserting constitutional challenges, arguing that the record does not support the finding that he is highly likely to reoffend, and contending that the district court erred in determining that commitment is the least-restrictive alternative.  Because appellant’s constitutional arguments have been previously rejected, there is clear and convincing evidence that appellant is highly likely to reoffend, and appellant did not present clear and convincing evidence of a less-restrictive available treatment option that would meet his treatment needs and the needs of public safety, we affirm.  



Anoka County Human Services petitioned for appellant’s involuntary commitment as a sexual psychopathic personality and a sexually dangerous person.  The district court appointed James Alsdurf, Ph.D., and Thomas Alberg, Ph.D., as examiners.  Both experts submitted written opinions and testified in detail at appellant’s two-day commitment trial.  Dr. Alsdurf testified that appellant’s scores on various risk-assessment instruments, as well as other factors, place appellant in the “highly likely” to reoffend range and that appellant meets the sexually dangerous person criteria.  Dr. Alberg also testified that appellant meets the criteria to be considered a sexually dangerous person, but qualified his conclusion by opining that appellant is “more likely than not,” rather than “highly likely,” to reoffend.

Appellant presented testimony from his parole officer, his girlfriend, and his mother.  The parole officer, who had been providing intensive supervision to appellant at the time he last violated parole, testified about a plan developed for appellant’s prior parole, which involved appellant being on “intensive supervised release,” living at a halfway house, attending outpatient sex-offender treatment at Alpha Services, and additional weekly treatment groups for sex offenders and the chemically dependent.  The parole officer proposed this plan, with the addition of GPS monitoring, as a viable alternative to commitment.  He testified that if appellant absconded from any of the groups or programs or had contact with minors, his probation would likely be revoked and he would be returned to prison.  The parole officer and the director of Alpha Services both testified that appellant would not be able to obtain residential treatment from Alpha Services under a civil commitment.  

Appellant’s girlfriend and mother expressed doubt about whether appellant committed the sex offenses for which he was convicted and whether he is a danger to children.  They testified that they would provide support for appellant in the community and would report any probation violations, despite their failure to report past violations of which they were aware.  Both also testified that they believed appellant would not use drugs again, his girlfriend testifying that he had “been through enough” and his mother stating that he “went through so much.”

The district court dismissed the allegation that appellant is a sexual psychopathic personality but committed appellant as a sexually dangerous person, concluding that the evidence was clear and convincing that appellant is “highly likely to engage in harmful sexual conduct in the future due to [appellant’s] history of violent behavior, base rate statistics, similarity of present and future contexts to past, and record of sex therapy,” and his lack of remorse and lack of truth regarding sexual matters.  The court also found no suitable less-restrictive alternative to commitment and treatment at the Minnesota Sex Offender Program. 

As required by law, the court conducted a 60-day review hearing after receiving the report of a court-appointed examiner, Dr. James Gilbertson, and the report of appellant’s evaluation by a treatment team at the Minnesota Sex Offender Program that included a psychological assessment and social history.  The treatment team concluded there was no change in the conditions that led to the initial commitment, appellant would benefit from sex-offender treatment, and he is in the category of offenders who present a high risk for reoffense.  Dr. Gilbertson also concluded that there was no change in the conditions that led to the finding of SDP, that appellant is highly likely to reoffend without inpatient, residential sex-offender treatment, and that the outpatient program proposed by appellant would not be adequate.  The district court concluded that appellant continued to be a sexually dangerous person in need of inpatient sex-offender treatment and ordered appellant’s indefinite commitment as an SPD.  This appeal of both the interim and indeterminate commitment orders followed.



I.                   Standard of review

            When reviewing a commitment, this court is limited to an examination of whether the district court complied with the requirements of the commitment act.  In re Janckila, 657 N.W.2d 899, 902 (Minn. App. 2003).  An appellate court will uphold the district court’s findings if they are not clearly erroneous.  See, e.g., In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re Preston, 629 N.W.2d 104, 110 (Minn. App. 2001).  The reviewing court will not defer to the district court if it has erred as a matter of law.  In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).  Whether the record contains clear and convincing evidence of the statutory elements for commitment is a question of law, which this court reviews de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).  An appellate court will not reverse a district court’s findings as to the least-restrictive treatment program that can meet the patient’s needs unless clearly erroneous.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003);  In re Kellor, 520 N.W.2d 9, 12 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994).

II.                The SDP Commitment Law

            A “sexually dangerous person” (SPD) is defined as a person who:

            (1)  has engaged in a course of harmful sexual conduct as defined in [Minn. Stat. § 253B.02, subd. 7a (2004)];

            (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) (2004).  The statute also provides that, “[f]or purposes of this provision, it is not necessary to prove that the person has an inability to control the person’s sexual impulses.”  Id.,subd. 18c(b).  But the supreme court has held that the statute must be interpreted to require a showing that the person’s disorder “does not allow [him] to adequately control [his] impulses.”  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV), cert. denied, 528 U.S. 1049 (1999).  And the supreme court has held that the statutory phrase “likely to engage in acts of harmful sexual conduct” must be interpreted to mean that the person is “highly likely” to engage in such conduct.  In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (Linehan III), vacated and remanded on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999), cert. denied, 528 U.S. 1049 (1999).  The elements for commitment must be proved by clear and convincing evidence.  Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd. 1 (2004).

III.             Constitutional challenges to Minn. Stat. § 253B.02 (2004)

Appellant argues that his commitment under the SDP law[1] violates substantive due process and the Double Jeopardy and Equal Protection clauses under the United States Constitution, and his right to a jury trial under the Minnesota Constitution.  At oral argument, appellant’s counsel candidly conceded that each of these challenges to the SDP law has been rejected by this court and the supreme court in previous decisions and acknowledged that this court is bound by precedent on these issues.  See State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998) (stating that as an intermediate appellate court, this court is “not in [a] position to overturn established supreme court precedent.”).  Based on this binding precedent, we reject appellant’s constitutional challenges to his commitment.[2]

IV.              The record supports the district court’s finding that appellant is highly likely to reoffend

Appellant does not challenge the district court’s finding that he is a person who has engaged in a course of harmful sexual conduct as defined in the statute or the finding that he has manifested a sexual, personality, or other mental disorder or dysfunction.  But appellant argues that there is not clear and convincing evidence in the record that demonstrates he is highly likely to engage in harmful sexual conduct.

In Linehan III, the supreme court held that the six Linehan I factors for predicting future dangerousness in a SPP commitment are used to determine the likelihood of future harm in a SDP commitment.  557 N.W.2d at 189.  The factors are: (1) relevant demographic characteristics; (2) history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the environment; (5) similarity of present and future contexts to past contexts in which violence was used; and (6) the record with regard to sex-therapy programs.  Linehan I,518 N.W.2d at 614.  In detailed findings, the district court reviewed appellant’s history of sexual assaults on children, his unsuccessful attempts at sex-offender treatment, his failure to complete chemical-dependency treatment, his past assessments and current diagnoses, including his scores on various risk-assessment instruments, and the similarity of present and future contexts to past contexts in which he offended.

This court must view the record as a whole and in a light favorable to the district court’s decision.  See Linehan III, 557 N.W.2d at 189 (noting that an appellate court does not reweigh the evidence on appeal, but determines whether the evidence as a whole presents substantial support for district court’s conclusion); Pirkl, 531 N.W.2d at 910 (noting that Linehan I factors and varying opinions by experts are matters for the district court to weigh).  And this court grants deference to the district court’s role as fact-finder and ability to judge the credibility of witnesses.  In re Ramey, 648 N.W.2d 260, 269 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).

            Appellant recites the evidence in the record that is most favorable to his position, but does not negate or refute the existence of expert testimony that he is highly likely to reoffend.  Appellant relies on his scores on some of the actuarial tools, such as the Static-99 tool, which rated him at only a 19% risk of reoffense or recidivating in 15 years, as support for his argument that the evidence is not clear and convincing in support of a high likelihood to reoffend.  But appellant’s argument ignores the testimony that the Static-99 is likely to underestimate actual recidivism.  More importantly, his citation of the actuarial tools fails to recognize that the statistical information is only one of the factors relevant to predicting likelihood of reoffense.  See Linehan III, 557 N.W.2d at 189 (noting that the appellant in that case had offered “no statutory or precedential support for the argument that actuarial methods or base rates are the sole permissible basis for prediction.”). 

Appellant argues that there is no clear and convincing evidence on the “highly likely” element because Dr. Alberg only rated him as “more likely than not” to reoffend.  Appellant further argues that Dr. Alsdurf’s opinion is flawed because he stated that appellant’s 59% likelihood of reoffense as predicted by one of the actuarial tools put him in the “highly likely” category for reoffending.  Appellant contends that 59% represents only “more likely than not.”  But Dr. Alsdurf’s ultimate conclusion that appellant is highly likely to reoffend was based on more than this particular score.  Dr. Alsdurf also relied on appellant’s sexual deviance, his failure to complete treatment, and his lack of truthfulness regarding sexual matters. 

Appellant also seems to rely on the fact that the scores Dr. Alberg gave him on the actuarial tools were often slightly lower than the scores given by Dr. Alsdurf.  But the evidence indicates that overall, the scores Dr. Alberg and Dr. Alsdurf gave him were very similar and Dr. Alberg gave appellant’s highest actuarial-tool score (76% on the SORAG).  To the extent that the district court relied on Dr. Alsdurf’s and Dr. Gilbertson’s opinions rather than Dr. Alberg’s opinion, the court made credibility determinations that this court will not disturb.  See Joelson, 385 N.W.2d at 811 (stating that in a review of commitment proceedings in which findings rest on expert opinion testimony, the court’s evaluation of credibility is of “particular significance”).  The district court’s detailed findings on the “highly likely” element demonstrate that it considered and weighed all of the relevant Linehan I factors used to determine the likelihood of future offenses.  The district court relied most heavily on its findings on appellant’s lack of remorse, lack of truthfulness regarding sexual matters, failure to complete sex-offender and chemical-dependency treatment,[3] and the similarity of his present situation to the situations in which appellant offended.  The factors the court relied on are all relevant to the determination of likelihood to reoffend, and none of the court’s findings on these factors is clearly erroneous.  See Linehan III, 557 N.W.2d at 178, 189 (recounting the district court’s reliance on lack of truthfulness regarding sexual matters and lack of remorse in concluding clear and convincing evidence supported commitment as a SDP, and stating “it was not error to consider evidence not specifically listed in Linehan I,” and Linehan I “did not foreclose good faith attempts by the courts to isolate the most important factors in predicting harmful sexual conduct”).  We

conclude there is clear and convincing evidence in the record to support the district court’s finding that appellant is highly likely to reoffend sexually and therefore meets the criteria for SPD commitment.

V.                 Appellant did not establish by clear and convincing evidence that a less-restrictive treatment program exists that is consistent with his treatment needs and requirements of public safety


Appellant argues that the district court erred in ordering indefinite commitment to the Minnesota Sex Offender Program because, he asserts, the record contains clear and convincing evidence that a less-restrictive treatment option is available.  In proceedings for commitment of sexually dangerous persons, “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.”  Minn. Stat. § 253B.185, subd. 1 (2004).

All of the experts who participated in this case, including Dr. Alberg, testified that appellant needs inpatient treatment and that appellant’s proposed plan for treatment was not consistent with his treatment needs.  Based on the expert testimony, the district court found that appellant requires inpatient treatment.  And the evidence established that there is no less-restrictive inpatient treatment program that would accept appellant as a civilly committed SDP.  Appellant also argued that he should not be committed and should be permitted to enter Alpha Services inpatient program.  But even if the statute permitted the district court to decline to commit despite clear and convincing record evidence establishing that appellant is a SDP,[4] appellant did not show by clear and convincing evidence that voluntary inpatient treatment at Alpha Serviceswould satisfypublic safety needs, as required by the statute.  Testimony established that Alpha Services is not a secure facility.  In determining that appellant needs to be in a secure facility while completing treatment, the district court property relied on evidence of appellant’s history of failing to comply with conditions of intensive supervision.  Appellant therefore did not present clear and convincing evidence of a less-restrictive treatment option that would meet his needs as found by the district court.  See In re Robb, 622 N.W.2d 564, 574 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001) (concluding appellant had offered no clear and convincing evidence that a less-restrictive treatment program was available when he had presented no evidence of any other program willing to accept him under a judicial commitment for sex-offender treatment and citing expert’s opinions that appellant needed to be strictly supervised and that his suggested alternative was “inadequate.”).


[1] Appellant’s brief refers repeatedly to the “SPP law” (Sexual Psychopathic Personality) (Minn. Stat. § 253B.02, subd. 18b (2004)), despite the fact that he was committed under the SDP law (Sexually Dangerous Persons) (Minn. Stat. § 253B.02, subd. 18c (2004)).  It appears this is merely a typographic oversight.

[2] On the double jeopardy issue, see Linehan III, 557 N.W.2d at 188 (rejecting argument that SDP statute violates double jeopardy); In re Martin, 661 N.W.2d 632, 641 (Minn. App. 2003) (holding statute does not violate double jeopardy), review denied (Minn. Aug. 5, 2003); Joelson v. O’Keefe, 594 N.W.2d 905, 911-12 (Minn. App. 1999) (rejecting double jeopardy arguments identical to appellant’s), review denied (Minn. July 28, 1999).  On the equal protection issues, see In re Blodgett, 510 N.W.2d 910, 916-17 (Minn. 1994) (holding SPP statute does not violate equal protection), cert. denied, 513 U.S. 849 (1994); Linehan III, 557 N.W.2d at 186-87 (relying on Blodgett and rejecting an argument that the SDP law violates equal protection).  On substantive due process, see Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995) (holding that it is not necessary for state to establish a continuing “utter lack of control” over sexual impulses when sexually psychopathic person seeks discharge, and that standards for discharge of a person committed as mentally ill and dangerous shall apply); In re Martinelli, 649 N.W.2d 886, 890 (Minn. App. 2002) (holding that the “‘lack of adequate control’ standard . . . satisfies the constitutional standard set by Crane.”), review denied (Minn. Oct. 29, 2002), cert. denied, 538 U.S. 933 (2003); In re Ramey, 648 N.W.2d 260, 267 (Minn. App. 2002) (concluding that “the requirement of an inability to control behavior to some degree, as required by Crane, is satisfied by the interpretation of the SDP act as set forth in Linehan IV.”), review denied (Minn. Sept. 17, 2002); Joelson, 594 N.W.2d at 910 (rejecting challenge based on failure to provide same procedural protections as Kansas statute examined in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997), and stating that “the United States Supreme Court did not mandate adoption of these procedures to maintain the constitutionality of a sexual predator commitment law.”); Caprice v. Gomez, 552 N.W.2d 753, 758 (Minn. App. 1996) (holding that a person committed as a psychopathic personality may constitutionally be required to initially show that he meets the standards for discharge and noting Call’s rejection of the argument that the discharge statute and procedures violated substantive due process by permitting continued commitment of patients who may no longer meet the commitment criteria), review denied (Minn. Oct. 29, 1996).  Regarding the right to a jury trial in a commitment proceeding under the Minnesota constitution, see State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 557, 287 N.W. 297, 303 (1939), aff’d, 309 U.S. 270 (1940) (holding that there is no right under state constitution to a jury trial in a civil commitment proceeding); Joelson, 594 N.W.2d at 910 (following Pearson on jury-trial issue in SPP proceedings). 

[3] The court clearly did not find credible appellant’s witnesses’ testimony with regard to whether appellant would relapse with regard to his use of chemicals.

[4]  A different subsection of the Minnesota Commitment and Treatment Act, Minn. Stat.   § 253B.09, subd. 1 (2004), provides that if a person is found mentally ill, mentally retarded or chemically dependent, the court should first consider “reasonable alternative dispositions,” including dismissal of the petition for commitment.  We note that the legislature could have similarly expressly provided that the district court should consider dismissing the commitment petition before ordering disposition in a sexually dangerous person’s case, but it did not do so.