This opinion will be unpublished and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 re: Russell Lynn Norton
St. Louis County District Court
File No. P6-04-600334
Patricia I. Shaffer, 403
Government Services Center, 320 West Second Street,
Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On appeal from an order for indeterminate commitment as a sexually dangerous person, appellant argues that the trial court erred in determining that his conduct creates a substantial likelihood of serious physical or emotional harm to others and that he is highly likely to engage in future acts of harmful sexual conduct. Because appellant’s exhibitionist conduct raised the rebuttable presumption that a victim will suffer serious physical or emotional harm and the evidence as a whole substantially supports the district court’s conclusions, we affirm.
Appellant Russell Lynn
Norton (DOB 5/11/68) is a 37-year-old inmate of the Minnesota Correctional
Appellant’s early history of sexual misconduct began with his admission that he, at age 12 or 13, exposed himself to two young girls he was babysitting. At age 15, he was charged with second-degree criminal sexual conduct against a four-year-old who he was babysitting, but the charge was dismissed when the victim’s family moved and could not be located. Between the ages of 18 and 19, appellant had two convictions of trespass, one of unauthorized use of a motor vehicle, one of possession of stolen property, and one of theft. Twice, at age 21, appellant was seen naked in public areas: once in the laundry room of an apartment complex and once in a women’s restroom at a local bar.
Appellant’s adult criminal sexual history began in 1991 when he was 22 and convicted of first-degree burglary. He had entered the victim’s home during the night while she was sleeping, reached under her blankets, rubbed her leg, and then masturbated in her face. One year later, appellant was convicted of first-degree burglary-criminal sexual conduct and fourth-degree criminal sexual conduct. He had entered a woman’s home while she was sleeping, got in her bed naked, and lay against her back until she jumped from the bed and threw off the covers revealing appellant with an erection. The next year, appellant was convicted of first-degree burglary-indecent exposure. He had entered a woman’s home and stood on her basement stairs, naked and with an erection.
Appellant also had two convictions of escape, one in 1991 and one in 1992. Also in 1992, when he was 24 years old, there were five reports of appellant exposing himself: once in a woman’s garage, once on a woman’s front porch, and three times in laundromats. Between 1992 and 1997, while appellant was in the custody of the Department of Corrections, he was observed and disciplined for four incidents of exposing himself, during two of which he was masturbating. While in treatment, he also admitted that he had exposed himself to 14- and 15-year-old girls between 30 and 50 times.
In 1998, appellant was
arrested and charged with second-degree invasion of privacy and second-degree
trespass for peeping in the windows of a woman’s residence. He had in his possession a videotape showing
several women in different houses and himself masturbating in different
locations, both public and private.
While charges were pending, he absconded and was later arrested in
While incarcerated in 2000 and 2001, appellant incurred two disciplinary charges for exposing himself. He was released in 2001 and then arrested and convicted for standing in an outside doorway masturbating. The following year, he was arrested and his sentence was executed when he was found with his shirt off and on a ladder beneath a second floor window of a house occupied by three women. He was later convicted of violating the predatory offender registration provisions. When released on GPS tracking in May 2004, he was arrested and his probation revoked for taking off his monitor for over an hour.
On September 2, 2004, appellant’s former intensive supervised release probation officer filed a petition to have him committed as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP). On September 9, the court appointed Dr. Gerald Henkel-Johnson as the first court-appointed examiner and, per appellant’s request, Dr. James Gilbertson as the second court-appointed examiner. Each examiner conducted a three-hour interview, reviewed the extensive records, and testified at the court trial.
On December 9, 2004, the trial court issued an order concluding that appellant is a SDP, but, absent a history of physical violence, is not a SPP. On December 30, after hearing appellant’s arguments for a less-restrictive treatment option, the court concluded that appellant was unable to establish an alternative treatment option. Following a hearing for final determination of commitment, the court filed the March 14, 2005 final commitment order, from which this appeal was taken.
D E C I S I O N
To commit a person as
an SDP, the petitioner must prove the requirements for commitment by clear and
convincing evidence. Minn. Stat. § 253B.18,
subd. 1 (2004); see Minn. Stat. §
235B.185, subd. 1 (2004) (providing that section 253B.18 applies to SPP and SDP
commitments). On review, findings of
fact shall not be set aside unless they are clearly erroneous. In re
Monson, 478 N.W.2d 785, 788 (
Minnesota law defines
an SDP as an individual who “(1) has engaged in a course of harmful sexual
conduct . . .; (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.” Minn. Stat. § 253B.02,
subd. 18c (2004). The term “harmful
sexual conduct” is conduct that “creates a substantial likelihood of serious
physical or emotional harm to another.”
Minn. Stat. § 253B.02, subd. 7a(a) (2004). There is a rebuttable presumption that
conduct falling within certain specified statutory provisions, including fourth-degree
criminal sexual conduct and sexually motivated burglary, is harmful sexual
Conduct Creating a Substantial Likelihood of Serious Physical or Emotional Harm to Another
that the trial court erred in finding that he is an SDP because he rebutted the
presumption by demonstrating that the record contains no evidence that any
serious physical or emotional harm came to any of his victims. Appellant incorrectly frames the issue under
SDP law. The “presumption is not that a
victim actually suffers serious emotional harm as a result of a defendant’s
conduct; it is that the conduct creates a substantial likelihood of serious
emotional harm.” In re Civil Commitment of Martin, 661 N.W.2d 632, 639 (Minn. App.
2003) (finding actual and substantial likelihood of serious emotional harm from
sexually motivated stalking behavior), review
The reports and testimony of the two examiners indicate that appellant’s conduct created a substantial likelihood of serious emotional harm to others. Although Dr. Henkel-Johnson noted in his report that appellant’s conduct is to a degree “less than typically seen in such commitment petitions,” he also reported that appellant’s “offending has been very frequent and has resulted in psychological, though not physical, trauma to his victims.” For example, a victim of his peeping was “very upset and shaken” when speaking to officers. Appellant “persistently and compulsively violate[d] the privacy of others, even though they [were] quite traumatized by his intrusions.” Dr. Henkel-Johnson concluded that appellant’s crimes involved “significant psychological trauma” based on the “highly intrusive” acts of entering the victims’ apartment buildings, apartments, bedrooms, and, in one case, bed. The record also reflects that one victim’s impact statement indicated that she does not feel secure in her own home even using extra precautions. Another victim said she was quite “traumatized” in discovering that appellant was peeping at her through her window. Dr. Gilbertson stated that appellant’s “break-ins and confrontation of women who are incapacitated by surprise, sleep, or other reasons, represent higher risk behavior and, arguably, emotionally harmful sexual conduct.”
At trial, Dr. Gilbertson elaborated more on the potential victim impact in cases where a person’s privacy is invaded. He opined that the fear engendered by appellant’s conduct could “give rise to a whole host of psychological issues,” which could be long-term. “[I]t would create significant emotional harm, secondary to surprise being asleep, having the safety or sanctity of your bedroom being invaded, not knowing who the individual is, not knowing their intents, all the fear and terror that goes with that kind of surprise . . . .” Similarly, Dr. Henkel-Johnson testified that the damage to the victim’s sense of security and trust “could be of a long-lasting variety.” He noted that the degree of harm would depend on the particular conduct and the particular victim, with appellant approaching a victim in bed causing “significant emotional harm.” Even videotaping a victim in her home, would leave her “feeling pretty traumatized.”
The evidence as a whole presents substantial support for the trial court’s conclusion that appellant’s conduct created a substantial likelihood of serious emotional harm. There was clear and convincing evidence that appellant caused actual emotional harm in some victims and that appellant’s conduct created a substantial likelihood of serious emotional harm to others.
Highly Likely to Engage in Future Acts of Harmful Sexual Conduct
Appellant argues that the trial court erred in its determination that he is likely to engage in a course of harmful sexual conduct.
The Minnesota Supreme Court has described six factors 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.
Linehan I, 518 N.W.2d at 614. In Linehan III, the supreme court specifically held that the six Linehan I factors for predicting danger in an SPP commitment may also be used to determine the likelihood of future harm in an SDP commitment. Linehan III, 557 N.W.2d at 189.
Appellant first argues
that the record is devoid of acts of violence, use of weapons, and sexual
penetration. As noted in In re Robb, however, “[u]nlike the
sexual-psychopathic-personality statute,” the SDP statute “does not require a showing
of violence.” 622 N.W.2d 564, 573 (Minn. App. 2001), review denied (
Appellant also argues that the base-rate statistics “clearly indicate that [a]ppellant is not highly likely to engage in future acts of harmful sexual conduct.” Overemphasis on one of the Linehan factors is misplaced: “Statistical evidence of recidivism is only one of the six factors.” Linehan III, 557 N.W.2d at 189. Dr. Henkel-Johnson also noted that he was reluctant to use the available actuarials because many of those available are based on pedophile and rapist categories, which do not fit appellant’s case. Examiners must judge whether a tool is valid for the particular individual. Dr. Gilbertson concurred, stating that “they help sort out these offenders of the various risk tiers, and then from there you can begin your clinical study of other factors to assist your ability to predict.”
Dr. Gilbertson noted in his report that the actuarial instruments suggest that appellant “falls within a moderate to moderately high risk tier,” but stated that “[a] further analysis of those dynamic factors that may be reasonably seen as modifying his instant risk level are not encouraging.” Dr. Gilbertson testified that the base-rate statistics showed mixed percentage risks of reoffending from 38% to 80% over ten years.
Dr. Henkel-Johnson included in his report evaluations of appellant from 1997 to 2004 showing wide variations in scores, including several assigning appellant a Level-3 sex-offender status. He also testified that there is not any conclusive empirical evidence regarding recidivism in exhibitionists, but that the percentages appear to be higher than for general sex offenders.
The examiners and the trial court evaluated appellant under all of the Linehan factors. Their findings support the conclusion that appellant has a high probability of reoffending. Appellant’s age suggests that he is still in “a period of sexual vigor.” He has not completed sexual-offender therapy despite various opportunities to do so. He might have less stability and more stressors as a single rather than a married person. He will also have to face the stressors of being a Level-3 sex offender and resisting drugs and alcohol. He has “an entrenched deviant sexual arousal and a fairly long history of patterned exhibitionism. Managing the temptations associated with that arousal will constitute a sizable stressor.” Dr. Henkel-Johnson opined that “[h]istory is among the best predictors, and [appellant] has a history of offending with a high degree of sexual deviance and compulsivity. He has not been successfully through treatment, which would have statistically reduced his recidivism risk.”
Based on all of the Linehan factors, Dr. Gilbertson concluded that “it’s arguable that he’s highly likely to reoffend,” and Dr. Henkel-Johnson concluded that appellant “is highly likely to engage in acts of harmful sexual misconduct.” The trial court, noting the examiners’ reports and the facts indicating appellant’s habitual course of misconduct and his lack of power to control his sexual impulses, determined “[t]here is clear and convincing evidence that, as a result of his past course of harmful sexual conduct, his mental disorders, and his utter lack of power to control his sexual impulses, it is highly likely that [appellant] will engage in further harmful sexual conduct.” The evidence as a whole substantially supports the district court's conclusion on appellant’s likelihood to reoffend.