This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the
Civil Commitment of
Filed March 14, 2006
Sherburne County District Court
File No. P5-04-2228
Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Hudson, Judge.
Appellant Daniel Carl Paulsen challenges the district court’s order indeterminately committing him as a sexual psychopathic personality (SPP) and sexually dangerous person (SDP) under Minn. Stat. §§ 253B.02, subds. 18b, 18c; 253B.18; 253B.185 (2004). He argues that (1) the psychological evidence, based on actuarial and psychological testing and evaluation, fails to support a finding that he is SDP or SPP by clear and convincing evidence; and (2) evidence was presented to show that less-restrictive treatment programs are available to meet his needs. Because clear and convincing evidence supports the district court’s determination that appellant meets the criteria for commitment as SDP and SPP, we affirm.
Appellant was 32 years old when this petition for civil commitment was filed. His history of sexual misconduct began in 1989 when he admitted in a statement to police that he had had sexual contact over a period of time with several boys, ranging in age from 10 to 15 years old. Appellant, who was 17 years old at the time, was charged with first-degree criminal sexual conduct and adjudicated delinquent for his conduct with one of the boys.
In 1993, while he was extremely intoxicated, appellant threatened and terrorized two girls, who were 10 and 14 years old. He pleaded guilty to kidnapping and solicitation of sex with a minor.
In 1996, while he was still on probation for his previous offenses, appellant and another man gave alcohol to a 15-year-old girl. They then proceeded to sexually assault her over a period of several hours. Appellant pleaded guilty to third-degree criminal sexual assault, was sentenced to 30 months, and given 10 years of conditional release.
Since then, appellant has been in and out of jail, treatment programs, and halfway houses. His IQ of 72 places him in the mild mental retardation range, and he has been diagnosed with several mental disorders, including paraphilia and antisocial personality disorder. Appellant has been transferred to different facilities within the correctional system due to incompatibility, treatment, and discipline issues. He has failed to complete any sex offender treatment program, generally because he lacks the ability or willingness to honestly assess his behavior, blames others for his bad behavior, and violates program rules. He has been terminated from halfway houses and group homes for violating rules and failing to maintain employment. While he has not been criminally charged, appellant has maintained unhealthy relationships with younger women, which have included inappropriate displays of affection in public and harassment of the women when they have terminated the relationships. In October 2004, this petition was filed to civilly commit appellant as SDP and SPP.
Our review of a civil commitment
order is limited to determining whether the district court complied with the
requirements of the commitment statutes.
In re Knops, 536 N.W.2d 616,
To civilly commit an individual as
SDP or SPP, the petitioner must prove the requirements for commitment by clear
and convincing evidence. Minn. Stat. §§
253B.18, subd. 1, 253B.185, subd. 1 (2004).
“Clear and convincing” requires more than a preponderance of the
evidence but less than proof beyond a reasonable doubt. State
SPP is defined as follows:
[T]he existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.
Minn. Stat. § 253B.02, subd. 18b (2004). SDP is defined as a person who “has engaged in a course of harmful sexual conduct,” has “manifested a sexual, personality, or other mental disorder or dysfunction,” and “as a result, is likely to engage in acts of harmful sexual conduct.” Minn. Stat. § 253B.02, subd. 18c (2004).
Appellant argues that the
psychological evidence, based on actuarial and psychological testing, fails to
support a finding that he is SDP and SPP by clear and convincing evidence. In particular, he argues that the opinions of
the court-appointed examiners,
Appellant’s argument, however,
assumes that the district court merely adopted the opinions of the
examiners. While the determination of
whether an individual meets the criteria for civil commitment requires the
assistance of an expert, the district court, and not the expert, makes the
ultimate determination. See In re Moll, 347 N.W.2d 67, 70 (
Appellant’s argument further assumes
that the ultimate opinions of the examiners are based solely on psychological
and actuarial testing. While Drs.
Gilbertson and Meyers cited appellant’s scores on actuarial and psychological
tests, their opinions that appellant is highly likely to engage in acts of harmful
sexual conduct in the future and that he is dangerous to others because he has
an utter lack of power to control his sexual impulses, which are required for
SDP and SPP commitments, are based on many other risk factors exhibited by
appellant. See, e.g., Linehan I, 518 N.W.2d at 613-14; In re Blodgett, 510 N.W.2d 910, 915 (
In particular, the examiners considered appellant’s choice of victims, undiminished deviant sexual behavior over time, treatment failures, behavioral problems, history of alcohol dependency, low behavioral self-regulation, and anti-social orientation. Gilbertson further discussed the six factors deemed relevant to the likelihood to re-offend set out in Linehan I, 518 N.W.2d at 614, only one of which considers base rate statistics. Gilbertson testified that consideration of the other factors, which include relevant demographic characteristics, history of violent behavior, sources of stress in the environment, similarity of present or future contexts to those in which violence was used in past, and the record with respect to sex-offender treatment, further indicates an increased likelihood to reoffend. Finally, both examiners considered the various factors set out in Blodgett, 510 N.W.2d at 915, only one of which involves the results of psychological testing, and opined that appellant exhibits an utter lack of power to control his sexual impulses. We therefore conclude that clear and convincing evidence supports finding that appellant is SDP and SPP.
Appellant mischaracterizes the
opinions and testimony of both
The district court found the
 For the first time on appeal, appellant also
argues that these statutes, which require him to prove by clear and convincing
evidence that a less restrictive treatment is available, violate due process by
placing the burden of proof on him. See Minn. Stat. §§ 253B.18, subd. 18,
253B.185, subd. 1 (2002). Issues raised
for the first time on appeal generally are not considered by this court. See
Thiele v. Stich, 425 N.W.2d 580, 582 (