This opinion will be unpublished and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:
Kevin Andreas Olson.
Filed April 25, 2006
Pennington County District Court
File No. P9-04-468
Richard N. Sather, II, Sather Law Office, 311 Main Avenue, P.O. Box 381, Thief River Falls, MN 56701 (for appellant Olson)
Attorney General, Noah A. Cashman, Assistant Attorney General, 1800
Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant was civilly committed as a sexually dangerous person and a sexual-psychopathic personality. On appeal, appellant argues that the district court erred by finding that he is highly likely to engage in future acts of harmful sexual conduct, that he has an utter lack of power to control his sexual impulses, and that no lesser-restrictive alternative than indefinite commitment exists. Because the district court’s findings are supported by the record, we affirm.
Kevin Olson is 44 years old and has been indeterminately committed as a
sexually dangerous person (SDP) and a sexual-psychopathic personality
(SPP). As a juvenile, he compiled a
lengthy criminal record, including burglary, disorderly conduct, motor-vehicle
theft, minor consumption, criminal damage to property, robbery, and
larceny. He spent time on probation and
was committed to the commissioner of corrections. He had several alcohol- and drug-related
offenses, as well as probation violations.
In 1978, while intoxicated, he threatened his father with a butcher
knife. His crimes continued as an adult:
motor-vehicle theft, forgery, disorderly conduct, driving while intoxicated,
careless driving, and marijuana possession.
He also has a lengthy history of treatment and other placements. Throughout the period from 1976 through 1983,
he spent time in the
Olson’s first sexual
assault occurred in 1982 with his aunt.
At the time, Olson was extremely intoxicated. He went to his aunt’s apartment, where he
suggested that they “fool around and have sex.”
She said no, but he removed her clothes and placed his finger in her
vagina. She was able to escape only when
he stopped to remove his clothes. Olson
was charged with third-degree criminal sexual conduct and was admitted to FFRTC
for a rule 20 mental evaluation. In a
progress report dated two weeks after his admission, staff noted that Olson
showed no remorse for sexually assaulting his aunt and that he denied any need
for chemical-dependency treatment. He
was found competent to stand trial and was referred back to court. The charges, however, were dismissed after he
was diagnosed with antisocial-personality disorder and borderline intellectual
functioning, and he was readmitted to FFRTC.
At FFRTC, Olson cornered a female patient and attempted to kiss
her. He was also observed engaging in a
sexual act with another male patient. He
did not recall that act when he testified at his commitment trial. Olson sexually harassed female patients and
asked one for sexual favors. In 1983,
Olson was discharged to Riverview Home in
From 1983 to 1991, Olson
resided in or around
In 1994, a 24-year-old female secured a restraining order against Olson, prohibiting him from having contact with her or her minor child. The female alleged that Olson had arrived intoxicated at her place late in the evening and would not leave. She also alleged that he had previously made unwanted sexual advances toward her at his residence.
Olson’s second sexual assault occurred in 1995 and involved a three-year-old girl. Olson was again extremely intoxicated. The minor child’s mother found Olson sitting next to the minor on the steps of her home. Olson had his hands between the minor’s thighs and was rubbing them up and down. At the civil-commitment trial, Olson testified that he digitally penetrated the minor, that he decided to “try it and . . . see what would happen,” and that the act was impulsive. He was arrested, taken to jail, and placed in a holding cell, where he removed his clothes and fondled his genitals. He was charged with second-degree criminal sexual conduct for touching the minor. After being found competent to stand trial, Olson pleaded guilty. The court stayed execution of a 26-month sentence, placed him on probation for 25 years, and directed him to serve 12 months in jail. He was also ordered to complete sex-offender treatment, abstain from alcohol and drugs, and undergo a psychiatric evaluation.
From 1996 to 1999, Olson was placed at the Center for Human Environment. A physician found that he continued to intermittently use drugs and suffered from chronic schizophrenia aggravated by mental illness. Olson’s third sexual assault took place at the center in 1999. Olson asked a vulnerable, 43-year-old female to go for a walk to an abandoned trailer. He grabbed her arm and took her inside the trailer, where he began kissing and sexually touching her. He forcibly removed her clothes and penetrated her with his penis. He later forced her to have oral sex. Olson admitted to having sex with her against her will and that he was extremely intoxicated. He was charged with third-degree criminal sexual conduct and entered an Alford plea. He was sentenced to 74 months in prison, to be served concurrently with his conviction of criminal sexual conduct with the minor child.
Olson was committed to the
In April 2003, Olson began treatment at
In August 2004, the state filed a petition to have Olson
civilly committed as a SPP and a SDP.
The district court appointed Dr. Robert Riedel as the first
court-appointed examiner and, at Olson’s request, Dr. John Austin as the second
court-appointed examiner. Both Dr.
Riedel and Dr. Austin testified at the commitment trial, as did Helen Barba,
the primary therapist and director of clinical operations at
D E C I S I O N
argues that the district court erred by finding that he is highly likely to
engage in future acts of harmful sexual conduct. Our review is limited to ascertaining whether
the district court complied with the requirements of the commitment
statutes. In re Knops, 536 N.W.2d 616, 620 (
primary argument is that the testing results calculated by Dr. Riedel do not
clearly place him in a high-risk category.
He contends that the district court clearly erred by disregarding his
positive life changes and Dr. Austin’s testimony, and by relying instead on
past records to support the commitment.
The resolution of conflicting evidence is a fact question to be
determined by the district court. In re Martenies, 350 N.W.2d 470, 472
(Minn. App. 1984), review denied
(Minn. Sept. 12, 1984). “Findings of
fact . . . shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.”
Exercising its ability to judge the credibility of a witness, the district court found much of Dr. Austin’s testimony not credible. For example, Dr. Austin noted that the “most significant factor for increased risk [of future harmful sexual conduct] is deviant sexual interest. [Olson’s] abuse of the 3-year old [girl], who was a stranger to him and significantly younger, is an example of this.” Yet, the district court found that Dr. Austin ignored Olson’s sexual deviations and the opinion of Olson’s treatment provider that Olson had a “deviant sexual interest in adolescent females.” The district court determined that Dr. Austin’s opinion is “not credible given his statement that deviant sexual interest is the most significant factor, and his decision to ignore the facts on record in this case.” Dr. Austin also offered an opinion that the “likelihood of someone similar to Mr. Olson being arrested for a sexual crime over the next 10 years is between 45-78%.” He then noted that the “empirical question . . . is whether Mr. Olson belongs to the group of 20-45% of prior sex offenders who will sexually reoffend or whether he belongs to the group of 55-80% who will not.” He concluded that “[s]imply on the basis of the actuarial measures, taking into account their limitations, it is my opinion that the odds of [Olson] falling into either group are 50-50.” The district court found that this was a “leap of logic that has no basis in the facts” and that Dr. Austin’s “testimony regarding the likelihood of future reoffense is completely unreliable, not credible, and not persuasive.” The district court’s findings regarding Dr. Austin’s credibility are supported by the record and are not clearly erroneous.
Olson next challenges the opinion of Dr. Riedel and contends that the district court’s interpretation of Dr. Riedel’s testimony was clearly erroneous. For example, Olson argues that “Dr. Riedel likely erroneously arrived at a score of 30” on the PCL-R actuarial measure. But Dr. Riedel in fact calculated a score of 30 on this test, and he concluded that “[t]his would most likely meet the standard of ‘highly likely.’” Olson likewise argues that Dr. Riedel erroneously interpreted several other actuarial measures to conclude that Olson was highly likely to sexually reoffend. But the district court’s findings accurately reflect the testimony and conclusions of Dr. Riedel. The district court properly found Dr. Riedel’s testimony to be credible, and the record supports the court’s reliance on his opinions.
Lastly, Olson challenges the district court’s findings regarding the specific Linehan factors. Olson challenges the district court’s finding that his sexual acts were all violent, forced rapes. But the record supports the district court’s finding. The complaint for Olson’s first sexual assault against his aunt alleges that Olson used “force to accomplish penetration . . . by pulling her hair, tearing her clothes off and dragging her into the bedroom.” In a statement made to police on the day of this assault, Olson stated that he “kind of went wild.” Olson’s second sexual assault involved his digital penetration of a three-year-old victim, which Dr. Riedel testified could have caused significant physical harm to her anatomy and psychological problems relating to males and strangers. His third sexual assault involved Olson forcing the victim into a bedroom, where she hit her head against the wall, and raping her. The district court’s finding that Olson’s sexual assaults were violent, forced rapes is not clearly erroneous.
Olson disputes the district court’s finding concerning
the fourth Linehan factor, the
sources of stress in his environment.
But Dr. Riedel testified that several sources of stress still exist in
Olson’s environment: (1) Olson’s “lack of employment, lack of income, being
identified as a level three [sex offender], lack of support group, lack of
friends”; (2) Olson’s sexual fantasies about minor girls; (3) Olson’s sessions
at Safety Center that routinely spoke of his desire to become intoxicated and
look for sex; and (4) Olson’s status as an untreated sex offender who has never
completed treatment. The 60-day report by
the Minnesota Sex Offender Program after Olson’s initial commitment in April
2005 states that “Olson indicated that he is not interested in participating in
sex offender treatment at this time.” Olson
also ignores the fact that between February 1999 and March 2003, he was
incarcerated in various
Finally, Olson argues that the district erred in applying
the fifth Linehan factor, the similarity
of present and future contexts in which violence was used. Olson contends that
Appellant argues that the district court erred by finding that Olson has an utter lack of power to control his sexual impulses. Commitment as a SPP requires proof that a person (1) engaged in an habitual course of misconduct in sexual matters; (2) has an utter lack of power to control the person’s sexual impulses; and (3) is therefore dangerous to others. Minn. Stat. § 253B.02, subd. 18b (2004). In determining whether a person has an utter lack of power to control his sexual impulses, we consider
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.
In re Blodgett, 510 N.W.2d 910,
Olson argues that the frequency of his sexual assaults does not compare with that in Blodgett. Dr. Riedel testified, however, that Olson met the frequency factor because of the different types and increased escalation of his victims and because his incarceration prevented him from sexually assaulting others. Moreover, while Olson’s first sexual assault occurred in 1982, a harassment restraining order was issued against him in 1994, and he sexually assaulted victims in 1995 and 1999.
Olson also contends that the district court’s finding that Olson met the second Blodgett factor—the degree of violence—was clearly erroneous. But the record shows that Olson forcibly dragged his aunt by her hair to a bedroom, removed her clothes, and penetrated her. He also forced his third victim into a bedroom, where she hit her head against a wall; pushed her onto the bed; removed her clothes; and raped her. Dr. Riedel testified that Olson “used what force was necessary in each situation.”
Challenging the third Blodgett factor, Olson argues that the district court erred by finding that the relationship between Olson and his victims was indicative of his utter lack of power to control. But Olson sexually assaulted females of varying relations and ages—his aunt, a three-year-old girl who was a complete stranger, and an acquaintance who was vulnerable. According to Dr. Riedel, Olson’s victim pool is “unlimited” and “he’s unselective and therefore, in one sense, more dangerous because of the breadth, and in another sense more difficult to supervise because it’s opportunistic rather than targeted.”
Olson also contends that the district court erred by relying on Dr. Reidel’s testimony over Barba’s when it considered the fourth Blodgett factor of mood and attitude. But when findings rest on expert opinion, the district court’s determination of credibility is given great weight. In re Joelson, 385 N.W.2d at 811. Dr. Riedel testified that Olson exhibited a “shallow affect” with “periods of anger” and that he did not “see much remorse or any remorse that . . . rings true . . . in any type of clinical sense.” He concluded that “there is definitely a mood problem” with Olson. The district court’s reliance on Dr. Riedel’s testimony and its finding that Barba’s testimony was not credible were credibility issues that the court properly resolved against Olson.
Olson claims that the district court erred in applying the fifth Blodgett factor—his medical and family history—because the record contains no clear and convincing evidence regarding his family history. But Dr. Riedel testified about a history of alcoholism and violence in Olson’s family. And Olson’s lengthy history of mental illness is also supported by the record.
Finally, Olson argues that the district court made erroneous findings regarding the results of the actuarial measures, the sixth Blodgett factor. But, as discussed above, the district court did not clearly err in its findings of the actuarial measures used by Dr. Riedel or by relying on the opinions of Dr. Riedel. The district court did not clearly err in applying the Blodgett factors and finding that Olson was a SPP.
3. Lesser-Restrictive Alternative
Olson argues that the
district court’s finding that no lesser-restrictive alternative than indefinite
commitment existed is clearly erroneous.
Before committing a person, the court must consider reasonable
alternative dispositions, including voluntary outpatient care. Minn. Stat. § 253B.09, subd. 1(a) (2004). The court shall commit the person only if “it
finds that there is no suitable alternative to judicial commitment.”
Dr. Riedel testified that Olson requires a secure
treatment program. He recommended the
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.