This opinion will be unpublished and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 Commitment of:
Filed January 10, 2006
Otter Tail County District Court
File No. P7-04-1142
Considered and decided by Willis, Presiding Judge, Worke, Judge, and Crippen, Judge.
Appellant challenges the
constitutionality of applying
On September 11, 1985, appellant was charged with six counts of knowingly taking immodest, immoral, or indecent liberties for his offenses against the four children listed above and against two other children, ages seven and eight; appellant still denies abusing the latter children, but he was convicted on four of six counts stated against him, including those based on these two children. Appellant was sentenced to serve three to five years at the Wyoming State Penitentiary and was released from prison in 1989.
In 1993, appellant sexually abused the four-year-old child of a woman he began dating after release from imprisonment; this abuse occurred over a three-month period and included oral sex on the child, holding the child on top of him while masturbating, and, according to the child, placing his penis in the child’s mouth. Appellant states that he does not remember placing his penis in the child’s mouth, but that he may have blacked out from alcohol use.
Appellant later pleaded guilty to one count of second-degree criminal sexual conduct for the 1993 abuse. He was to serve a year in jail and be placed on probation, with a condition of his probation being the completion of the St. Peter Intensive Treatment Program for Sexual Aggressives. Appellant participated in the program from June 1994 to October 1995, when his participation was terminated. Appellant’s probation was then revoked, and he was sentenced to 65 months in prison. The district court ordered that appellant be placed on conditional release for ten years following his sentence.
was released from prison in April 1998.
He began outpatient treatment at the
A petition for appellant’s civil commitment was filed in June 2004, and he was ordered held in custody pending a decision on the petition. A trial was held in September 2004, and the district court made an initial order of civil commitment two months later. A review hearing was held in April 2005, and the district court subsequently ordered appellant’s indeterminate civil commitment.
challenges his commitment as a sexual psychopathic personality and a sexually
dangerous person under Minn. Stat. §§ 253B.01-.23 (2004). The district court’s findings of fact will
not be reversed unless they are clearly erroneous. In re Robb,
622 N.W.2d 564, 568 (Minn. App. 2001), review
first asserts that due process demands a recent overt act in order to apply
either of the sexual psychopathic personality or sexually dangerous person
statutes and that because he lived in the community from 1998 to 2004 without
committing any sexual offenses, there is no recent overt act to justify his
commitment. Appellant cites In re Young, 857 P.2d 989, 1008-09 (
Young and other non-Minnesota cases
requiring a recent overt act do so “primarily to enhance the reliability and
acceptability of dangerousness predictions.”
record also does not support appellant’s assertion of long presence in the
community without a recent overt act.
Appellant acknowledges but attempts to minimize his 2004 violations of
conditional release. The experts
specifically found that appellant’s marijuana use was a precursor to further
unlawful behavior. Although appellant’s
contact with minors in his friends’ home was “supervised,” he also made
unsolicited, suggestive comments to a minor working in a grocery store. The occurrence of these circumstances makes
appellant’s case unlike Young and
other cases examining the need for recent overt conduct. In addition, appellant was involved in treatment
from 1998 to 2001; although appellant’s completion of treatment is a
consideration against findings of risk of future harmful conduct, the
occurrence also lessens the impact of the lack of convictions for sexual
offenses during that period because the treatment created an “artificial
environment.” In re Bobo, 376 N.W.2d 429, 432 (
With similar reference to his absence of convictions for sexual misconduct since 1998, appellant disputes the district court’s findings under the sexual psychopathic personality and sexually dangerous person statutes. Specifically, appellant argues that he cannot possess “an utter lack of power to control [his] sexual impulses,” as required by Minn. Stat. § 253B.02, subd. 18b, in light of the absence of evidence of more recent sexual misconduct. Similarly, appellant argues that he cannot be “highly likely” to reoffend, as required by Minn. Stat. § 253B.02, subd. 18c, under Linehan IV, 594 N.W.2d at 876, because of his offense-free period.
Appellant’s conditional release violations support the expert testimony and the district court’s findings, detailed later in this opinion. And no caselaw indicates that a period of time between convictions for sexual offenses compels a finding of an ability to control sexual impulses or a finding that appellant is not highly likely to reoffend. Appellant’s argument that there is insufficient evidence of his future dangerousness fails.
Appellant also challenges his commitment as a psychopathic personality on the grounds that his sexual offenses were not violent. Caselaw does not support appellant’s argument. See In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (holding that a sex offender’s behavior must cause “a substantial likelihood of serious physical or mental harm” in order to affirm a commitment); In re Preston, 629 N.W.2d 104, 113 (Minn. App. 2001) (upholding a commitment on the grounds that the appellant’s behavior was “so egregious so as to create the substantial likelihood of physical or mental harm”) (quotation omitted). Appellant’s arguments overlook the evidence of prolonged suffering experienced by children who are victims of sexual offenses like his. The experts testified about the substantial harm appellant’s victims are likely to experience. Appellant’s argument fails.
Appellant makes no other particular objections to the sufficiency of the district court’s findings or the evidence to support them. Overall, the record supports the district court’s determinations that appellant is both a sexually dangerous person and a psychopathic personality. All three experts offered testimony supporting the district court’s finding that appellant has “an utter lack of power to control” his sexual impulses. Experts Dr. Linda Marshall and Dr. Rosemary Linderman offered testimony supporting the district court’s finding that appellant is “highly likely” to commit harmful sexual acts in the future.
A third expert,
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.