This opinion will be unpublished and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:

James Victor Burnham.



Filed November 8, 2005


Toussaint, Chief Judge



Steele County District Court

File No. PX-04-811



Warren Maas, 7964 Brooklyn Boulevard, Suite 107, Brooklyn Park, MN  55445 (for appellant Burnham)


Mike Hatch, Attorney General, Matthew Frank, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent petitioner)


            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

TOUSSAINT, Chief Judge

            On appeal from his initial and indeterminate commitment as a sexually dangerous person (SDP), appellant contends that (a) the district court did not have clear and convincing evidence that he was highly likely to engage in acts of harmful sexual conduct in the future; (b) the SDP law is void for vagueness; and (c) he was not committed to the least restrictive alternative.  Because (a) the record supports appellant’s indeterminate commitment as an SDP; (b) appellant did not raise the constitutional challenge below and it will not be addressed for the first time on appeal; and (c) appellant was committed to the least restrictive alternative, we affirm.



            An appellate court will review challenged findings to determine whether they are clearly erroneous.  Minn. R. Civ. P. 52.01; In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).  The appellate court will not weigh the evidence, but “will determine if the evidence as a whole presents substantial support for the district court’s conclusions.”  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d, 594 N.W.2d 867 (Minn. 1999).  Whether the record shows that the statutory requirements are met is a question of law reviewed de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

            A petitioner must prove that the standards for commitment as an SDP are met by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1(a) (2004); see Minn. Stat. § 253B.185, subd. 1 (2004) (providing that Minn. Stat. § 253B.18 applies to SDP commitments).  An SDP is defined as 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.


 Minn. Stat. § 253B.02, subd. 18c(a) (2004).  The supreme court has ruled that the SDP law “allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.”  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999).

            The district court found that based on Burnham’s past criminal behavior, specifically his multiple convictions for criminal sexual conduct in which many of his victims were minors, the first factor was met.  Burnham pleaded guilty to first-degree criminal sexual conduct after he sexually assaulted eleven-year-old and twelve-year-old sisters at knifepoint in their home in 1981.  He also pleaded guilty to first-degree criminal sexual assault for sexually abusing his three-year-old daughter in 1993.  As to the second factor, the district court found that Burnham suffered from numerous mental illnesses, including depression, suicidal impulses, and bipolar disorder.  Burnham does not dispute that the first two factors were met.

            Finally, the district court found that the third factor as to the likelihood of future harm was met.  Burnham argues that there was insufficient evidence to show that this factor was met.  He cites the fact that he has lived in the community since his supervised release from prison in 1999 without sexually offending.  He acknowledges that he violated the terms of release by consuming alcohol and collecting pornography, leading to reincarceration for 150 days.  But he contends that while this conduct may have been a precursor to possible dangerous behavior, it did not in itself justify indeterminate commitment as an SDP.

            The supreme court has set out factors to be considered when, as here, there is a period of time between the last offense and the time of commitment to aid the courts in predicting the likelihood of future harm.  Linehan, 518 N.W.2d at 614; see Linehan, 557 N.W.2d at 189 (applying test to SDP commitment).   These include (a) relevant demographic characteristics; (b) history of violent behavior; (c) base rate statistics; (d) sources of stress in the environment; (e) the similarity of the present or future context to those in which the person has used violence in the past; and (f) the record with respect to sex therapy programs.  Linehan, 518 N.W.2d at 614.

             The court-appointed examiners addressed these factors in detail to support their opinions that Burnham was highly likely to engage in the acts of harmful sexual conduct.  While the district court questioned the objectivity of one of the examiners, it expressed no such concern as to the other, and they provided very similar opinions.  Demographic facts showing that Burnham was at increased risk to reoffend include his two convictions; the lack of a stable work history; his history of untreated alcohol and drug abuse; the fact that he is male; his lack of social support; and his history of unstable marital relations.  His 1980 offense was violent, involving direct and specific threats to his victims.

            Both experts testified at length as to various assessment tools that they used to address the base-rate statistics showing Burnham’s likelihood to reoffend.  As to the source of stress in the environment, both cited Burnham’s isolation and lack of support, leading to increased drug use, and to use of pornography.  Burnham has not changed the context in which his offenses occurred, and he has an extremely poor record in sex-offender treatment over the years.

            The district court indicated that it also relied on several exhibits in which similar opinions were addressed.  In a 1999 civil commitment review assessment, a psychologist opined that Burnham’s denial of his lengthy pattern of sexually assaultive behavior raised serious concerns about his ability to control his sexual impulses.  The psychologist concluded that Burnham was a recidivistic sex offender who preyed on young girls; appeared to demonstrate little, if any, control over his sexual desires and wants; remained untreated for both chemical dependency and sexual-offense behavior and remained at risk for sexual reoffense.  Nonetheless, he did not refer Burnham for civil commitment.

            Another exhibit the court relied on was an end-of-confinement review committee conducted by a psychologist from the sexual offender/chemical dependency services unit.  This psychologist assigned Burnham a risk level of 3, reflecting a high risk to reoffend sexually.  He noted Burnham was highly unstable emotionally and had acknowledged a strong sexual attraction to underage females.  He concluded that these factors, combined with Burnham’s offenses, suggested that he was at significant risk to reoffend sexually.  Of special concern was that Burnham had no history of sustained sobriety following release, as demonstrated by repeated chemical-dependency treatments; he had a history of observable behavior and diagnosis of destabilizing mental illness, and he displayed deviant orientation, including minimization and denial.

            The district court had clear and convincing evidence from which to conclude that Burnham met the standards for commitment as an SDP.


            Burnham next argues that the SDP statute is void for vagueness.   Burnham did not, however, raise this issue to the district court.  An appellate court will not consider issues that were not raised and decided by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).


            Finally, Burnham argues that he was not committed to the least restrictive alternative.  He asserts that several times, funding problems or certain policies prevented him from obtaining a polygraph, participating in an outpatient psycho-educational program, or being placed in a residential-treatment program at Alpha House.

            Under the SDP law, “the court shall commit the patient to a secure treatment facility unless the patient establish 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.   A decision as to the least restrictive alternative will not be reversed unless clearly erroneous.  One court appointed examiner testified that Burnham could not live safely in the community and was not capable of integrating treatment concepts while in the community, and that the only program in which Burnham could receive the necessary treatment was the Minnesota Sex Offender Program (MSOP).  The other examiner reached the same conclusion.  Burnham did not present clear and convincing evidence to show that he should be committed to the Alpha program or that the district court was clearly erroneous in committing him to MSOP.

            The district court did not err in committing Burnham as an SDP for an indeterminate period to the MSOP.