This opinion will be unpublished and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
Brian Peter Braaten.
Filed August 29, 2006
Steele County District Court
File No. P5-05-824
Jennifer Dunn-Foster, Dow, Einhaus, Mattison & Carver, P.A., 202 North Cedar, P.O. Box 545, Owatonna, MN 55060 (for appellant)
Mike Hatch, Attorney General, Allen Louie, Assistant Attorney General,
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from an order for indeterminate civil commitment as a sexually dangerous person and sexual psychopathic personality, Brian Braaten contends that, because he completed a sex-offender treatment program while incarcerated, commitment to the Minnesota Sex Offender Treatment Program violates his substantive due process rights and constitutes double jeopardy. Because clear and convincing evidence supports the district court’s determination that Braaten satisfies the statutory criteria for commitment, that Braaten did not meet his burden of showing that a feasible less-restrictive-placement alternative exists, and that commitment is neither arbitrary nor for punitive purposes, we affirm.
F A C T S
Steele County filed a petition on behalf of the state in June 2005 for the civil commitment of Brian Braaten as a sexually dangerous person (SDP) and sexual psychopathic personality (SPP), based on Braaten’s history of sexual misconduct against women in North Dakota and Minnesota. The district court found that Braaten satisfied the statutory criteria for both an SDP and an SPP and granted the petition.
Braaten’s history of sexual misconduct and inappropriate behavior spans more than twenty years. At age sixteen, he began to consume alcohol and peep into windows of strangers’ homes approximately three to four times a week. Braaten testified at his commitment hearing that he used a random method in which he would drive through residential areas at night and, if he saw a light on in what he thought was a bedroom, he would park his vehicle and walk toward the house. Braaten continued to peep into windows after he graduated from high school, but he testified that he decreased his activity to one night a week. Although several residents saw Braaten and chased him away, he was generally undetected. Before these incidents, when Braaten was eight or nine years old, he had repeatedly and surreptitiously watched his sisters when they were in their bathroom or in their bedroom changing their clothes.
Braaten was first arrested at age sixteen when he broke into the home of a pageant winner in an attempt to see her naked. In July 1984, when he was seventeen, Braaten was caught window-peeping and convicted of disorderly conduct. In January 1985 he was caught on a balcony trying to enter a woman’s apartment. He pleaded guilty to criminal trespass and having an open container of alcohol and received a two-year suspended sentence.
Braaten was on probation for this offense, his behavior escalated. In December 1985 Braaten observed LB start her
vehicle and reenter her apartment building.
Anticipating that she would return, he parked his car next to hers. As LB approached her vehicle, Braaten grabbed
her from behind and pushed her to the ground.
He placed his hand beneath her skirt and touched her vaginal area. He then dragged her to the back of his car to
put her in his trunk. In response to
LB’s struggles, Braaten punched her and slapped her several times. LB was able to escape after someone began yelling
at him from inside LB’s apartment complex.
Braaten testified that his intent had been to drive LB somewhere and
sexually assault her. He later pleaded
guilty to sexual imposition and felonious restraint. A
Braaten was released from prison in January 1989. He testified that he resumed drinking alcohol on a regular basis soon after his release and began window-peeping “almost nightly” about one month later. Braaten also began watching pornographic videos on a near-daily basis.
Braaten broke into the home of LL in April 1989. He found her asleep on her sofa and began touching her beneath her nightgown. He retrieved a knife from her kitchen and pulled her into her bedroom. Braaten testified that he had planned to sexually assault her, but LL pleaded with him to leave because she had recently given birth to a child. Braaten left, but took LL’s keys and some money from her purse on his way out. He testified that he took her keys so he could see her again. LL asserted that Braaten forced her to perform oral sex before he left, a claim that Braaten denies. A few days later Braaten left a note on LL’s door instructing her to meet him at a restaurant if she wanted her keys back. LL went to the restaurant, but Braaten left when she arrived with a man.
Braaten returned to LL’s apartment in July 1989, and LL awakened to Braaten standing over her with a knife. Braaten told her that he would kill her baby if she did not cooperate and then forced her into the bedroom where he sexually assaulted her. Braaten acknowledged that his acts against LL were similar to a scene he had viewed in a pornographic video. Braaten pleaded guilty to two counts of gross sexual imposition, and a North Dakota district court sentenced him to twenty years in prison, seven of which were suspended on the condition that he complete sex-offender treatment in prison.
Braaten engaged in further sexual misconduct between his assaults on LL. In May 1989 Braaten was driving by a retail store when he spotted CAB walking alone. He parked his car in the area toward which she was walking and hid behind a sign. He then grabbed CAB and wrestled her to the ground. He told her that he had a knife and dragged her into a grassy area, put his hand beneath her skirt, and touched her vaginal area. CAB screamed and kicked at Braaten, and he eventually stood up and let her leave. Braaten pleaded guilty to attempted gross sexual imposition and was sentenced in November 1989 to five years in prison, to run concurrently with the sentence for his offenses against LL.
Braaten was released from prison in April 1998. He began drinking about three months after his release and resumed window-peeping about six months later. Braaten testified that at first he window-peeped “a couple of” times a week but eventually increased to five or six nights a week. He attributed his peeping behavior to feeling rejected.
In the fall of 1998 Braaten began peeping outside the bedroom window of TMT and masturbating while he watched her. He was caught in March 1999 and later pleaded guilty to surreptitious intrusion and fleeing a police officer.
Braaten also acknowledged an incident in November 1998 for which he was never arrested or charged. He testified that he was angry and frustrated “with the way things were going in [his] life” and that he had been rejected by several women he had asked out. Becausehe was “angry at pretty much all women at that time,” he broke into a woman’s home with the intent of sexually assaulting her. He accidentally entered her daughter’s bedroom. The daughter awakened, and Braaten covered her mouth. She was able to escape from him, and he ran out of the home.
June 1999, while on probation for his offenses against LL and free on bond for charges
pending for his offenses against TMT, Braaten received permission to leave
North Dakota and enter Minnesota for three days to deliver a shipment as part
of his employment with a moving company.
Braaten testified that, while he was in
completed two separate sex-offender treatment programs while incarcerated, but he
also continued to exhibit inappropriate sexual behavior in prison. During his first incarceration in
The county filed a petition for civil commitment in June 2005, shortly before Braaten’s scheduled release date. The court appointed two medical examiners, Dr. Linda Marshall and Dr. Roger Sweet. Both doctors testified to their opinion that Braaten is an SDP, and Dr. Sweet further testified to his opinion that Braaten is an SPP. After hearing testimony from Braaten, three experts, and two additional witnesses, the court granted the petition and committed Braaten to the Minnesota Sex Offender Treatment Program as an SDP and SPP. Following the court’s initial commitment order, the program submitted a treatment report to the court, stating that Braaten’s prognosis remains guarded and he continues to need comprehensive sex-offender treatment. The district court subsequently entered an order forindeterminate commitment.
appeals the district court’s commitment order, arguing that, because he
completed a sex-offender treatment program while incarcerated in
D E C I S I O N
The Minnesota Commitment and Treatment Act permits civil commitment when
clear and convincing evidence demonstrates that a person is either a sexually
dangerous person or a sexual psychopathic personality. Minn. Stat. §§ 253B.02, subd. 17, .18,
subd. 1(a) (2004). Substantive due
process protects individuals from arbitrary and wrongful restraints on freedom
by the government. Zinermon v. Burch, 494
To show that a statute comports with
substantive due process rights, the state must demonstrate that the law is
narrowly tailored to serve a compelling state interest. Linehan
IV, 594 N.W.2d at 872.
substantive due process challenge rests on the proposition that, because he
completed a sex-offender treatment program while incarcerated, further
commitment is arbitrary and for punitive purposes. A person’s treatment history is a factor
considered when assessing whether the SDP and SPP criteria for commitment are
satisfied. In re
Linehan, 557 N.W.2d 171, 189 (
A sexually dangerous person
is 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(a) (2004). The
state is not required to prove an inability to control sexual impulses but must
show that the person has an existing disorder or dysfunction that results in
inadequate impulse control, making it highly likely that the person will
and convincing evidence supports the district court’s determination that
Braaten engaged in a course of harmful sexual conduct. Harmful sexual conduct is
“sexual conduct that creates a substantial likelihood of serious physical or
emotional harm to another.” Minn. Stat.
§ 253B.02, subd. 7a(a) (2004). A course
of harmful sexual conduct is a sequence of harmful sexual conduct occurring
over a period of time. In re Civil Commitment of Stone, 711
N.W.2d 831, 837 (Minn. App. 2006), review
Dr. Sweet and Dr. Marshall each testified that Braaten engaged in a course of harmful sexual conduct. Braaten’s history of sexual misconduct dates to his adolescence. His behavior escalated from window-peeping to sexual assaults, and each expert testified that several of the women Braaten offended against incurred physical injuries and all of the women were likely to have emotionally based injuries such as posttraumatic stress. Dr. Sweet testified that LL and SKP likely endured significant trauma from waking to a stranger forcing them to perform a sexual act. Dr. Marshall noted that TMT likely had significant trust issues and that persons who experienced the harm inflicted on SKP and LL are likely to have intrusive thoughts, startle easily, and become hypervigilant. In a victim-impact statement, SKP stated that she had nightmares and panic attacks and that she no longer felt safe in her home.
Clear and convincing evidence also supports the district court’s finding that Braaten manifested a sexual, personality, or other mental disorder or dysfunction. The medical experts testified that Braaten is a voyeur, is dependent on alcohol, and has a personality disorder with avoidant and antisocial features. Each also noted that Braaten has a fragile self-concept and reacts strongly to rejection.
Finally, clear and convincing
evidence supports the district court’s determination that Braaten is highly
likely to engage in future harmful sexual conduct. Six factors are considered when examining
whether an offender is highly likely to recidivate. Linehan
I, 518 N.W.2d at 614. The court must
consider: (1) the offender’s demographic
characteristics; (2) the offender’s history of violent behavior; (3) the
base-rate statistics for violent behavior among individuals with the offender’s
background; (4) the sources of stress in the offender’s environment; (5) the
similarity of the present or future context to those contexts in which the
offender used violence in the past; and (6) the offender’s record of
participation in sex-therapy programs.
expert testified to his or her opinion that, based on these factors, Braaten is
highly likely to engage in harmful sexual conduct in the future. Braaten’s history indicates an early onset of
sexual misconduct, and his sex and current age do not suggest a lower risk of
recidivism. He committed offenses with a
high frequency, and base-rate statistics suggest his risk of recidivism is high,
both independently and relative to other sex offenders. Dr. Sweet noted that alcohol and Braaten’s
fragile ego are sources of stress, that he has a history of making excuses for
relapses, and that his last release from prison suggested that his present circumstances
would not lower his chances of reoffending.
Dr. Sweet pointed to what should have been confidence-building events
while Braaten was incarcerated in
Each expert acknowledged Braaten’s completion of a second sex-offender treatment program and credited Braaten’s stated motivation and sincerity in his commitment to change. Despite Braaten’s knowledge of treatment principles, both experts were skeptical about his ability to internalize and implement these principles. Neither expert gave great weight to Braaten’s completion of role-playing exercises in the transition phase of the prison’s treatment program because they occurred within a controlled and confined environment. Further, in Braaten’s last quarterly treatment evaluation during his Minnesota incarceration, for the period from April to June 2005, the therapist wrote that “when presented with various scenarios of possible situations he may experience in the community, Mr. Braaten frequently became flustered and had difficulty identifying the most appropriate intervention in a timely fashion.”
Braaten offered the testimony of Kimberly Krebsbach, a psychotherapist who worked with Braaten primarily in the third phase of the prison’s four-phase treatment program. Krebsbach testified in her capacity as an expert on whether Braaten was a successful treatment participant and not on whether he satisfied the statutory criteria for commitment. She testified that Braaten was an active participant in the treatment program and that he appeared sincere in his commitment to change. She stated that she did not have an opinion on whether Braaten would be successful if released into the community but noted that being honest and not isolating himself would be central to his chances of success.
of the evidence that Braaten points to as indicative of his ability to control his
sexual impulses mirrors the reasons that he gave during the
Braaten testified that, when he was released in 1998, he felt good and was committed to not reoffending. But he also testified that after his release, he attended only one AA meeting, and that, although he went to SAA meetings, he went to bars afterward and tried to meet women. He withdrew from his family and others he currently lists as persons he would rely on for support if released. Despite completing a four-year sex-offender program in which therapists deemed him an active and sincere participant who developed an understanding of his offense cycle, Braaten isolated himself when he was released and later reoffended when he felt rejected.
experts and the district court took into account that Braaten completed a
sex-offender program while incarcerated in
Clear and convincing evidence supports the district court’s findings that Braaten does not have adequate control over his sexual impulses, he is highly likely to reoffend, and he satisfies the statutory definition of a sexually dangerous person. Commitment as an SDP does not violate Braaten’s substantive due process rights.
To classify a person as a sexual psychopathic personality requires clear and convincing evidence of three criteria: (1) the existence of emotional instability, impulsive behavior, a lack of customary standards of good judgment, or a failure to appreciate the consequences of personal acts; (2) a habitual course of sexual misconduct that results from the presence of a condition in the first criterion; and (3) an utter lack of power to control sexual impulses such that the person is dangerous to others. Minn. Stat. § 253B.02, subd. 18b (2004).
Clear and convincing evidence supports the district court’s finding that the first criterion is satisfied. Dr. Marshall testified to her opinion that Braaten exhibited emotional instability in the form of anger and hostility. Dr. Sweet labeled impulsivity as the cornerstone of Braaten’s personality, commenting that “[w]hen he sees an opportunity, he goes for it.” Dr. Sweet also indicated that Braaten’s history demonstrates a lack of good judgment and that, although he has started to understand the consequences of his acts to his victims, he does not yet fully understand the consequences to himself.
Clear and convincing evidence also supports the district court’s determination that Braaten engaged in a habitual course of sexual misconduct. A habitual course of sexual misconduct requires similar incidents of misconduct or incidents that form a pattern. See In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn. App. 1994) (considering similarities between incidents and pattern of conduct), review denied (Minn. Oct. 27, 1994). Braaten’s history of sexual misconduct illustrates a pattern of conduct that escalated from window-peeping to breaking into homes and sexually assaulting women. Braaten frequently used a knife when he committed his offenses, used clothing or other items in attempts to conceal his face, and threatened the children of two women in trying to force the women to cooperate.
considering an offender’s utter inability to control his sexual impulses, the
court again examines the Linehan
factors addressed in an SDP analysis. Linehan III, 557 N.W.2d at 189.
Other factors are also considered when examining a person’s ability to
control sexual impulses, including the nature and frequency of assaults, the
degree of violence, the offender’s relationship to the victims, the offender’s
attitude and mood, the offender’s medical and family history, the results of
evaluations of the offender, the offender’s refusal of treatment opportunities,
the lack of a relapse-prevention plan, the presence of grooming behavior, the
failure of the offender to remove himself from similar situations, and relapse
after a period in which the offender controlled his sexual behavior. In re
Blodgett, 510 N.W.2d 910, 915 (
The medical experts disagreed on whether Braaten has an utter inability to control his sexual impulses, but the district court found that the element was satisfied and clear and convincing evidence supports this determination. See Joelson, 385 N.W.2d at 811 (giving particular weight to district court’s credibility determinations). Dr. Sweet testified that, although his decision on this factor was close, his opinion is that Braaten has an utter inability to control his sexual impulses. In forming this opinion, Dr. Sweet relied on Braaten’s history of continued harmful sexual conduct without regard to consequences. Braaten offended with high frequency, used violence, and assaulted strangers, which Dr. Sweet noted demonstrated a higher degree of callousness. Although Dr. Sweet considered Braaten’s present attitude and mood “good,” he pointed to Braaten’s history of appearing to be sincere and then relapsing; he commented that Braaten’s strategy appears to be telling the truth only “when all else fails.” Psychological testing indicates that Braaten has a history of distorted thinking. Dr. Marshall testified that she ultimately determined that this criterion of the SPP definition was not satisfied because she believed that Braaten had made some progress in treatment.
Braaten has a relapse-prevention plan, but, in the past, he failed to remove himself from situations that triggered misconduct, and he has not demonstrated that he has control over his behavior. His prevention plan lists a broad range of triggers, including feeling rejected, receiving money, receiving compliments, seeing a loving couple, seeing a bedroom light on, seeing a woman walking alone, dealing with pressure or conflict, and hearing high heels or a woman’s voice. Braaten also testified that driving a car and being around alcohol are other high-risk situations for him. Braaten’s proposed intensive-supervised-release agent arranged housing for him, but the apartment is above a bar, which Braaten testified will create a difficult situation.
Dr. Sweet also voiced
concerns about the people Braaten listed as his support structure in his relapse-prevention
plan. Of the sixteen names
Braaten listed as persons who would support him after release, only four live
Braaten has a long history of impulsive sexual misconduct. His continued offending despite previous treatment diminishes his credibility and casts doubt on his claimed ability to control his sexual impulses if released. He has a significant and broad list of triggering circumstances, reacts harshly to rejection, and lacks a strong support network. Clear and convincing evidence supports the district court’s determination that Braaten satisfies the statutory SPP criteria for commitment.
the district court determines that a person is an SDP or an SPP, the court must
commit the person to a secure treatment facility, unless the person establishes
by clear and convincing evidence that a less-restrictive-treatment program that
meets the offender’s treatment needs and the needs of public safety is
available. Minn. Stat. § 253B.185,
subd. 1 (2004). We will not reverse a
district court’s findings on the appropriateness of a treatment program unless
its findings are clearly erroneous. In re Thulin, 660 N.W.2d 140, 144 (
The district court found that civil commitment to the Minnesota Sex Offender Treatment Program was the only available option that is appropriate for Braaten’s treatment needs and serves the interests of public safety. The record supports this determination. Dr. Marshall and Dr. Sweet both testified to the opinion that Braaten is in need of intensive treatment in the secure setting that is available in the Minnesota Sex Offender Treatment Program.
did not satisfy his burden of proving a less-restrictive-placement alternative
exists. Braaten suggested two other treatment
centers as alternative placements, Alpha House and Pathfinders Project. Dr. Marshall and Dr. Sweet testified that
Alpha House’s inpatient program would not accept Braaten because he had used a
weapon during several of his offenses.
They further testified that an outpatient program would not provide the
type of intensive supervision Braaten needs.
Psychotherapist Krebsbach, who now works at Pathfinders, testified to
her opinion that Braaten needs more treatment, but the treatment should focus
on transitioning into the community. She
noted that it would be wise to gradually test Braaten in the community, but
admitted that Pathfinders was only in the process of developing such a program
and would not have one for several months.
Furthermore, Pathfinders is located in
Dr. Marshall and Dr. Sweet emphasized that, while at the Minnesota Sex Offender Treatment Program, Braaten will not be redoing the treatment work he completed while incarcerated and noted that the treatment modalities differ. Braaten will continue to build on the treatment he has received and he will likely start in the third treatment phase of the program. Unlike the prison program, which operates only within the correctional facility, this program has the capacity to gradually transition Braaten back into the community, progressing from supervised time on the grounds of the treatment center, to unsupervised on-grounds privileges, to supervised community outings, to unsupervised community trips. He will be closely supervised by treatment professionals rather than a probation officer. Whereas the transition phase of the prison’s treatment program presents only hypothetical situations within a controlled and confined environment, the transitions phase of the Minnesota Sex Offender Treatment Program can gradually reintroduce Braaten to the community and will allow him to demonstrate application of the treatment principles he has learned.
Braaten did not meet his burden of proving that a less-restrictive placement could meet his treatment needs and the needs of public safety. Overall, the record demonstrates that, although Braaten appears to have made important progress through his participation in the prison’s treatment program, he is in need of further treatment, and his commitment to the Minnesota Sex Offender Treatment Program is neither arbitrary nor for punitive purposes.
also suggests that his commitment constitutes double jeopardy because he has
already served a criminal sentence for his offenses. But because
civil commitment is rehabilitative and focuses on treatment rather than
punishment, civil commitment after incarceration does not constitute double
jeopardy. Call v. Gomez, 535 N.W.2d 312, 319-20 (