This opinion will be unpublished and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

A05-2453

 

In the Matter of the Civil Commitment of

Robert Joseph Markey

 

 

Filed May 9, 2006

Affirmed

Worke, Judge

 

Martin County District Court

File No. PR-04-894

 

 

Ryan Blair Magnus, 219 W. Nassau Street, P.O. Box 57, St. Peter, MN 56082 (for appellant)

 

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

 

            Considered and decided by Worke, Presiding Judge; Dietzen, Judge; and Collins, Judge.[*]

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from an order for indeterminate commitment as a sexually dangerous person and a sexual-psychopathic personality, appellant argues that the commitment order must be reversed because (1) commitment in the absence of a recent overt act of sexual misconduct between his release from prison and the filing of the petition for indeterminate commitment violates his due-process rights; and (2) the evidence is insufficient to support a finding that he meets the criteria for commitment either as a sexual-psychopathic personality or a sexually dangerous person.  Because no recent overt act is required for commitment as a sexual-psychopathic personality or a sexually dangerous person and the evidence was sufficient to meet the criteria for commitment, we affirm.

FACTS

            Appellant Robert Joseph Markey began engaging in sexual behaviors when he was approximately four years old.  For the next 14 years, appellant sexually abused numerous cousins and his younger half-sister.  Appellant was admitted to a treatment center at the age of 15, where he remained until he was 18.  Upon release from treatment, appellant went to live with his grandmother.  In October 1998, while residing with his grandmother, appellant began sexually assaulting his 11-year old male cousin.  Appellant was charged with criminal sexual conduct in the first degree, in violation of Minn. Stat. § 609.342, subd. 1(a) (1998).  In February 1999, appellant pleaded guilty, and in April 1999, was sentenced to 48 months in prison.  The district court also imposed the mandatory 5-year conditional-release period and ordered appellant to register as a sex offender. 

            Appellant was released from prison in July 2001 and placed on Intensive Supervised Release (ISR).  In September 2001, appellant tested positive for illegal substances at a therapy session.  Appellant was returned to prison in March 2003, after having contact with his girlfriend’s one-year-old daughter, a violation of his ISR.  In July 2003, appellant was again released from prison and placed on ISR.  Following appellant’s release, the county attorney retained two psychologists to review appellant’s records and offer an opinion as to whether appellant met the criteria for commitment as a sexually dangerous person or as a sexual-psychopathic personality.  One expert opined that appellant met the criteria for both statutes. 

            In November 2004, a petition for civil commitment was filed.  Appellant was held at the Minnesota Security Hospital while the petition was pending.  A hearing on the petition was held on March 24, 25, and 30, 2005.  At the hearing, both court-appointed examiners testified that they had reviewed appellant’s records, interviewed appellant, and prepared written reports.  Both experts reached the conclusion that appellant meets the criteria for commitment as a sexually dangerous person and as a sexual-psychopathic personality.  The district court filed an order for initial commitment on August 10, 2005.  In October 2005, appellant waived the 60-day review hearing, and, on November 1, 2005, the district court filed an order for indeterminate commitment.  This appeal follows.

D E C I S I O N

            Appellant challenges his commitment as a sexual-psychopathic personality and as a sexually dangerous person under Minn. Stat. §§ 253B.01-.23 (2004).  “The [district court’s] findings of fact will not be reversed unless clearly erroneous.”  In re Robb, 622 N.W.2d 564, 568 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  A district court’s conclusion that the record supports a commitment is a question of law, which we review de novo.  In re Civil Commitment of Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  This court will not reweigh the evidence.  In re Linehan (Linehan I), 557 N.W.2d 171, 189 (Minn. 1996), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).  Instead, “[w]e will determine if the evidence as a whole presents substantial support for the district court’s conclusions.”  Id.

            Overt Act

            Appellant argues that due process demands a recent overt act in order to apply either the sexual-psychopathic-personality or the sexually-dangerous-person statute and that because he lived in the community for one and one-half years following his release from prison until the filing of the petition without committing sexual offenses, there is no recent overt act to justify his commitment.  Appellant did not raise this issue in district court.  Generally, this court will not consider matters not argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  It should be noted, however, that there is no Minnesota precedent requiring the commission of a recent overt act for commitment.  To be considered a “person who is mentally ill and dangerous to the public” for purposes of a general civil commitment, a person must have “engaged in an overt act causing or attempting to cause serious physical harm to another[.]”  Minn. Stat. § 253B.02, subd. 17 (2004).  Neither legislation nor caselaw requires a recent overt act for commitment as a sexual-psychopathic personality or as a sexually-dangerous person.  See Minn. Stat. § 253B.02, subds. 18b, 18c (2004); In re Linehan (Linehan III), 594 N.W.2d 867, 876 (Minn. 1999) (holding that the sexually dangerous person statute satisfies due process by requiring a finding that it is “highly likely” that an individual will commit additional harmful sexual acts).  Further, appellant’s history consists of years of unsuccessful treatment.  The district court found that appellant “remains an untreated recidivist sex offender.” 

Sufficiency of Evidence

            Appellant also argues that the district court erred in finding that appellant demonstrated an “utter lack of power to control [his] sexual impulses” as required by Minn. Stat.  § 253B.02, subd. 18b.  Appellant contends that this finding is erroneous because of the fact that he had not committed any sexual offenses in six years, coupled with the fact that he was attempting to correct his sexual fantasies.  Both experts testified that appellant was “highly likely” to reoffend and that appellant has sexual and personality disorders that affect his sexual behaviors.  In addition, appellant attempts to downplay his conditional-release violations—specifically, the use of illegal substances and having contact with a minor child—which support the expert testimony and the district court findings.  Further, there is no caselaw to support appellant’s argument 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.  The record supports the district court’s determinations that appellant is both a sexual-psychopathic personality and a sexually dangerous person. 

            Affirmed.



[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.