This opinion will be unpublished and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
Gene Kay Markham.
Filed March 21, 2006
Faribault County District Court
File No. 22-P2-04-000378
Charles K. Frundt, 117 West Fifth Street, P.O. Box 95, Blue Earth, MN 56013 (for appellant)
Mike Hatch, Attorney General, Noah A. Cashman, Assistant
Attorney General, 1800
Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.
Appellant challenges the district court’s orders and judgment for commitment, arguing that the district court erred in finding by clear and convincing evidence that: (1) appellant is a sexually dangerous person (SDP), under Minn. Stat. § 253B.02, subd. 18c (2004); (2) appellant is a sexually psychopathic personality (SPP), under Minn. Stat. § 253B.02, subd. 18b (2004); (3) there was not a less-restrictive treatment program available that is consistent with appellant’s treatment needs and requirements of public safety; and (4) appellant was denied his constitutional right to a jury trial. Because we conclude that the district court properly applied the law, that the record supports by clear and convincing evidence that appellant meets the statutory and legal requirements of an SDP and SPP, that there is not a less-restrictive treatment program available for appellant, and that appellant is not entitled to a jury trial on those determinations, we affirm.
Gene Markham is approximately 73 years old.
He graduated from high school in
On August 9, 2004, a petition for civil commitment was filed under Minn. Stat. §§ 253B.18 and 253B.185, requesting that the district court commit appellant as an SDP, under Minn. Stat. § 253B.02, subd. 18c (2004), and as an SPP, under Minn. Stat. § 253B.02, subd. 18b (2004).
Appellant’s Criminal and Incarceration History
Appellant became impotent in his forties and separated from his wife in 1974. In 1987, appellant was convicted of contributing to the delinquency of a minor stemming from an investigation into the presence of juveniles in appellant’s home.
In January 1992, appellant was sentenced to a total of 156 months in prison. The combined sentences resulted from separate convictions involving K.G.N., A.L.S., and R.C.A. On September 25, 1991, an amended complaint was filed that charged appellant with one count of fourth-degree criminal sexual conduct based on appellant’s sexual conduct with K.G.N. Appellant pleaded guilty and admitted to touching K.G.N.’s genitals inside of K.G.N.’s pants. The district court sentenced appellant to 26 months in prison for the conviction involving K.G.N., concurrent with the other sentences imposed that day.
In January or February 1991, when appellant was 58 years old, he sexually assaulted A.L.S., who was about 14 years old. A.L.S. knew appellant for approximately three-and-a-half years and came to appellant’s house to drink alcohol. Appellant performed oral sex on A.L.S. The amended criminal complaint charged appellant with one count of third-degree criminal sexual conduct based on his sexual assault of A.L.S. Appellant pleaded guilty and was sentenced to prison for 156 months, concurrent with the other sentences imposed that day.
In July 1989, R.C.A. was sleeping in appellant’s house when he woke up and found appellant performing oral sex on him. The amended criminal complaint charged appellant with one count of third-degree criminal sexual conduct for his sexual assault of R.C.A. Appellant pleaded guilty as part of a plea agreement covering five separate charges.
In January 1992, appellant
was admitted to the Minnesota Correctional Facility at
In April 1999, at appellant’s annual review, appellant asked for treatment. The Department of Corrections (MDOC) psychologist did not recommend appellant for commitment at that time but strongly recommended that appellant complete sex-offender and chemical-dependency treatment, have no contact with males under the age of 18, and abstain from drugs and alcohol.
In April 2000,
appellant was released to live with his brother in
In September 2001,
appellant began participating in sex-offender treatment. In early 2002, appellant wrote victim reports
that minimized his crimes and admitted that he was sexually aroused writing the
reports. That summer, appellant was
discharged from treatment. The therapist
indicated that appellant should be screened for civil commitment. In August 2002, appellant was arrested and
In September 2002,
appellant returned to
The Commitment Trial
Trial was held on November 17-18, 2004. Appellant acknowledged that he had pleaded guilty to criminal offenses; and that he was involved in criminal sexual conduct with at least 38 young men, most of whom were minors, and with three females. Appellant was able to recall the ages of his victims, his own age when he committed the offenses, and the types of misconduct that occurred. He stated that his home became the center of social activity for the young men. He would offer them beer, food, and allow them to “sleep off” any intoxication at his home, and he had board and other games for them to play. In essence, he admitted to “grooming” or cultivating relationships with them through the use of drugs, alcohol, and the viewing of pornographic materials.
testified that he made significant progress in his treatment and that he is in
need of further sex-offender treatment, which he would seek on an out-patient basis
Dr. Linda Marshall
has been a licensed psychologist since 1994 and testified as the court-appointed
examiner. She has served as a
court-appointed examiner in approximately 17 SDP/SPP cases in
Dr. James Gilbertson, a licensed
psychologist since 1974, also testified.
Gilbertson has been a civil commitment examiner with
Both Marshall and Gilbertson testified that appellant meets the requirements for commitment as an SDP and as an SPP. Both experts also testified that appellant is in need of further treatment.
Pamela Stanchfield testified as appellant’s sex-offender therapist in prison. Stanchfield testified that appellant initially made slow progress, but in the last three to four months of treatment, he made significant progress. Stanchfield also believed that appellant’s release plan was “viable” with some revisions, but his proposal for out-patient sex-offender treatment was not what she recommended. Stanchfield testified that if appellant had successfully completed Track 3 of the treatment program in December, he would need six more months of treatment in Track 4 to complete sex-offender treatment. Stanchfield was asked by appellant’s attorney to opine whether appellant’s treatment needed to be at a secured, locked facility. Respondent objected, and that objection was sustained.
Following trial, the district court issued its findings of fact, conclusions of law, and order of initial commitment consisting of approximately 72 pages, which included 286 findings of fact and conclusions of law. The district court concluded that appellant satisfies the requirements for commitment as a “sexually dangerous person” and a “sexual psychopathic personality” by clear and convincing evidence, under Minn. Stat. § 253B.02, subds. 18b, 18c (2004).
The district court initially committed appellant under section 253B.18, subdivision 1. Following the review mandated in section 253B.18, subdivision 2, appellant moved for a continuance, which was granted. On September 9, 2005, the district court committed appellant for indeterminate commitment under section 253B.18, subdivision 3. Appellant challenges the indeterminate commitment order but only challenges the findings of the initial commitment order.
D E C I S I O N
raises four issues on appeal. First, appellant
argues that the record does not establish by clear and convincing evidence that
he is a SDP as defined by statute. The district
trial court’s factual findings must be affirmed if they are not clearly
commit an individual as a SDP, the petitioner must prove the requirements for
commitment by clear and convincing evidence.
The supreme court
has required that for an SDP commitment, the person must lack adequate control
of his sexual impulses. In re Linehan, 544 N.W.2d 308, 311 (
Both Marshall and
Gilbertson testified that appellant meets the requirements for commitment as an
SDP. With regard to the first element for
an SDP, that the person has en
The second element
for an SDP, that the person manifest a sexual personality, or other mental
disorder dysfunction, was also met according to both experts. With regard to the third element,
Based on actuarial-risk instruments, Gilbertson concluded that appellant falls at a moderate to moderately high tier to re-offend sexually, depending on a consideration of years at risk. And although appellant has agreed that he needs treatment, he has yet to complete a full sex-offender therapy program. Gilbertson concluded that appellant appears one to two times more likely to re-offend than the average released sex offender.
It is in the
province of the district court to weigh the expert opinions of Marshall and
Gilbertson. See Linehan III, 557 N.W.2d at 189.
On this record, we conclude that respondent showed that appellant was
highly “likely to en
also argues that the record does not establish by clear and convincing evidence
a conclusion that appellant is a sexually psychopathic personality (SPP) as
defined by statute. When the evidence is
in conflict, the question is one of fact to be determined by the district court
upon all the evidence. In re Pirkl, 531 N.W.2d 902, 907 (
the 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.
Appellant argues that he does not satisfy the criteria for an SPP because he did not use violence while committing his crimes, and he has made significant progress in his treatment. As a result, appellant argues that respondent did not establish that he has an “utter lack of control” under the SPP statute.
Courts consider a number of factors to determine whether an individual exhibits “utter lack of control” over his sexual impulses, including
the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender’s attitude and mood, the offender’s medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it.
re Blodgett, 510 N.W.2d 910, 915 (
Both Marshall and
Gilbertson reviewed the Blodgett
factors and many other factors, and concluded that appellant meets the
requirements for an SPP. Marshall found
it significant that: appellant’s assault of his victims occurred over 13 years,
during which he consistently sexually assaulted pubescent boys; although he did
not use direct violence, he did use both direct and implicit coercion through
drugs, alcohol, and pornography; and appellant took advantage of his relationships
with his victims to offend sexually against them. Consequently,
Gilbertson found it significant that appellant had at least a two- to three-year history of sexual offending involving young pubescent males ages 14 and above; that his victims were known to him and that he “groomed” them to satisfy his deviant sexual desires; and that appellant admits that he has a problem with his sexual desires in the offending cycle and is in need of further sex-offender treatment. Gilbertson opined that appellant does not have the ability to control his sexual impulses when there is an available victim and circumstances conducive to sexual assault.
experts concluded that appellant is highly likely to en
Based on the record, the district court did not abuse its discretion by finding that appellant was a SPP by clear and convincing evidence.
contends that he has established by clear and convincing evidence that a less-restrictive
treatment program is available that meets the requirements of public safety. An appellate court will not reverse a
district court’s findings of the least restrictive treatment program that will
meet the patient’s needs, unless the findings are clearly erroneous. In re
Thulin, 660 N.W.2d 140, 144 (
argues that the district court erred by not allowing his prison therapist, Stanchfield,
to give an opinion on his treatment needs.
The district court sustained respondent’s objection based on lack of
foundation. A decision on the
sufficiency of the foundation for evidence is within the discretion of the
trial court. McKay’s Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (
experts testified that appellant needs intensive, structured, in-patient
treatment. Appellant has the burden to
show by clear and convincing evidence a less-restrictive alternative exists
that meets his treatment needs and is consistent with public safety. See
that he is entitled to have a jury to determine whether he should be
committed. Appellant bears the burden of
proving beyond a reasonable doubt that a statute violates a claimed right. In re
Conservatorship of Foster, 547 N.W.2d 81, 85 (