This opinion will be unpublished and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
In the Matter of the Civil Commitment of:
Todd Anthony Fernandes
Filed October 17, 2006
Hennepin County District Court
File No. 27-MH-PR-04-1257
Roderick N. Hale,
Carolyn A. Peterson, C-2000 Government Center,
Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.[*]
U N P U B L I S H E D O P I N I O N
On appeal from an order for indeterminate commitment as
a sexually dangerous person, under Minn. Stat. §
253B.02, subd. 18c (2004), appellant
argues that the commitment order must be reversed because (1) the evidence is
insufficient to support a
finding that he meets the criteria for commitment as a sexually dangerous person; and (2) his commitment violates his double-jeopardy, due-process, and equal-protection rights. We affirm.
D E C I S I O N
Sufficiency of the Evidence
Anthony Fernandez argues that the evidence was insufficient to support the district
court’s determination that he should be committed as a sexually dangerous
person who is likely to engage in acts of harmful sexual conduct. Whether the evidence was sufficient to
demonstrate the standards for civil commitment are met is a question of law
reviewed de novo. In re Linehan (Linehan
I), 518 N.W.2d 609, 613 (
sexually dangerous person is a person who “(1) has engaged in a course of
harmful sexual conduct . . . ; (2) has manifested a sexual,
personality, or other mental disorder or dysfunction; and (3) as a result, is
likely to engage in acts of harmful sexual conduct[.]” Minn. Stat. § 253B.02, subd. 18c (2004).
“’Harmful sexual conduct’ means sexual
conduct that creates a substantial likelihood of serious physical or emotional
harm to another.”
Appellant argues that the district court erred in determining that he was a sexually dangerous person because the opinions of the two psychological examiners, Drs. James Alsdurf and Thomas Alberg, failed to establish by clear and convincing evidence that appellant was “highly likely” to engage in further harmful sexual conduct. Based on their examination of the Linehan factors, however, both doctors concluded that appellant poses a significant risk of re-offending. Dr. Alsdurf concluded that appellant was “highly likely” to reoffend because appellant had not successfully completed sex-offender treatment, had “no real insight” into his treatment needs, and “[was] unable to provide a rational understanding of the facts around his past offenses or to communicate a serious regard for the injury he caused others.” Likewise, Dr. Alberg concluded that appellant meets the criteria of a sexually dangerous person because he “ha[d] not received sex offender treatment programming in prison[,]” had “only participated in a brief outpatient program in the community[,]” and had “very little insight into his sexual offending.” Therefore, the reports of Drs. Alsdurf and Alberg support the district court’s conclusion that appellant is a sexually dangerous person.
But appellant argues that the methodology used by Drs.
Alsdurf and Alberg cannot show that he is “highly likely” to reoffend because
the psychological “tools” they used are used for purposes other than sexually
dangerous person commitment and their methods have error rates insufficient to
meet the required clear-and-convincing standard of proof. This court defers to the fact-finder’s
determination of weight and credibility of expert witnesses. State v. Triplett, 435 N.W.2d 38, 44 (
Appellant also argues that he does not satisfy the Linehan factors because the record does not show that he has committed “recent acts of sexual impulsivity,” he has not been accused of concealing his misconduct, he was not diagnosed with an antisocial personality disorder, and his offenses have not increased in severity over time. These are not factors to be considered under Linehan. See Linehan I, 518 N.W.2d at 614. Appellant provides no authority that, given his history as a sex offender and record of avoidance of treatment, these factors would weigh against the district court’s conclusion that he is a sexually dangerous person. Therefore, appellant’s argument lacks merit.
Finally, appellant argues that the district court’s findings of fact were insufficient because they were largely adopted from the proposed findings drafted by the county attorney’s office. The verbatim adoption of one party’s proposed findings is not per se reversible error. Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). Because appellant fails to identify specific findings of fact that are incorrect or were misrepresented by the district court, the argument fails.
Appellant argues that his indefinite civil commitment to
the Minnesota Sex Offender Treatment Program, which he contends has not released a graduate in ten years, constitutes incarceration,
violating his double-jeopardy, due-process, and equal-protection rights under
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.