This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Luis Antonio Serna,





Kevin Goodno,

Commissioner of Human Services,




Filed July 18, 2006


Worke, Judge


Supreme Court Appeal Panel

File No. AP049032


David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, Minnesota 55408 (for appellant)


Mike Hatch, Attorney General, Kerri Stahlecker Hermann, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2127; and


Amy Klobuchar, Hennepin County Attorney, Theresa Couri, Assistant County Attorney, C-2000 Hennepin County Government Center, 300 South Sixth Street, Minneapolis, Minnesota 55487 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from the denial of his request for discharge from commitment as a sexually dangerous person, appellant argues that the denial should be reversed because he showed that the discharge conditions provide a reasonable degree of protection to the public and will enable him to successfully adjust to the community.  We affirm.


Appellant Luis Antonio Serna challenges the Supreme Court Appeal Panel’s (SCAP) denial of his petition seeking discharge from commitment.  “In reviewing a decision of the appeal panel, the appellate court: is not to weigh the evidence as if trying the matter de novo, but [is] to determine from an examination of the record if the evidence as a whole sustains the appeal panel’s findings.”  Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992).  We will reverse the decision of the appeal panel only if that decision is clearly erroneous.  Jarvis v. Levine, 364 N.W.2d 473, 474 (Minn. App. 1985).

            A person committed as a sexually dangerous person may petition the Commissioner of Human Services for discharge. See Minn. Stat. § 253B.18, subd. 5 (2004) (providing that persons committed as mentally ill and dangerous to the public may petition for discharge); Minn. Stat. § 253B.185, subd. 1 (2004) (stating that unless otherwise specified, provisions pertaining to persons committed as mentally ill and dangerous to the public apply to commitments of sexually dangerous persons).  If the commissioner denies the request, the committed person may petition the SCAP for a rehearing and reconsideration.  Minn. Stat. § 253B.19, subd. 2 (2004).  The petitioner bears the burden of going forward with the evidence.  Id.  A patient “shall not be discharged unless it appears to the satisfaction of the commissioner . . . that the patient is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.”  Minn. Stat. § 253B.18, subd. 15 (2004).  The SCAP also considers “whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the patient in adjusting to the community.”  Id.

In January 2000, appellant was committed as a sexually dangerous person for an indeterminate period.  Appellant petitioned for discharge, and the commissioner denied appellant’s request.  Appellant then petitioned the SCAP for a rehearing and reconsideration; the SCAP affirmed the commissioner’s decision, concluding that appellant failed to make a prima facie showing that he should be discharged.  The record supports the SCAP’s decision. 

            Appellant’s history is not disputed and includes sexual abuse of a 15-year-old girl in 1972, an 11-year-old girl in 1978, and a 9-year-old girl in 1996.  In 1970, he was charged with rape, and in 1974, he was charged with aggravated sodomy and indecent liberties involving a 13-year-old girl.  Appellant has been charged with and convicted of numerous crimes, including aggravated robbery, third-degree assault, and numerous alcohol-related driving offenses.  Appellant has maintained that he committed crimes when he was intoxicated.  Appellant has been involved in at least five chemical-dependency treatment programs, but has consistently relapsed.  Appellant was the only witness who testified at the hearing before the SCAP.  The record indicates that appellant was fairly cooperative and had made some progress in treatment; he regularly attended groups, and he believed that his behavior and his empathy for his victims had changed dramatically. Appellant presented the SCAP with what they termed a “fairly comprehensive” relapse-prevention plan.  Appellant claimed that his plan had been reviewed and approved by the treatment staff at Moose Lake, but he failed to present proof to the SCAP.  Appellant admitted that he was only in level 2 of phase 2 in a multi-level, four-phase program.  Appellant further admitted that he had started a treatment program concerning victim impact and empathy, but “it was cut off and [he had] to take it again.”  Appellant failed to explain why he was no longer in need of in-patient treatment and supervision when he had not completed the sex-offender program.

Appellant testified that, if discharged, he could live with his son, who recently became a police officer.  But appellant’s son did not attend the hearing, and appellant failed to provide evidence that his son agreed to the living arrangement.  Appellant admitted that he had not had contact with his son in many months and did not know his son’s address.  Further, since appellant’s commitment, his contact with family members has been minimal.  Additionally, while appellant expressed a desire to become involved in a sex-offender program if he was released and was aware of sexual-abuse and alcohol-abuse programs in the Twin Cities, he admitted that he had not made any specific contacts with any organizations.  Appellant failed to identify any specific programs, clinics, or doctors that he would work with in the community and he failed to present any evidence that any community-based programs would be willing and able to accept him.  Finally, appellant admitted that he had been in a physical altercation with another patient in March 2005, because the other patient was making homosexual advances to him.  Appellant failed to adequately explain why this behavior should not be considered by the panel in0020determining whether he is a danger to the public.

Appellant is correct in his assertion that the SCAP’s finding—that appellant stated that he would only fully participate in sex-offender treatment “when someone gets out”—is not a part of the record on appeal.  In addition, respondent’s brief contains references to documents that were not a part of the record.  We have not considered this finding or these references when reviewing the SCAP’s decision.  See Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992) (stating that this court will strike documents that are not part of the appellate record), aff’d, 504 N.W.2d 758 (Minn. 1993).  However, the record shows that appellant failed to meet his burden in establishing that specific conditions existed to provide a reasonable degree of protection to the public and that he was no longer a danger to the community.  Thus, the SCAP did not clearly err in its decision that appellant’s petition for discharge from commitment should be denied.