This opinion will be unpublished and

may not be cited except as provided by

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






In re the Civil Commitment of

Cary Allen Leas


Filed October 31, 2006


Worke, Judge


Pennington County District Court

File No. P9-05-206


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


Mike Hatch, Attorney General, Angela M. Helseth Kiese, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Worke, Presiding Judge; Shumaker, Judge; and Stoneburner, 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 use of evidence of his alleged history of sexual acts, obtained through his disclosure in a mandatory outpatient sex-offender program, violated his substantive due-process rights.  We affirm.


In May 1998, appellant Cary Allen Leas was charged with three counts of first-degree criminal sexual conduct for sexually abusing A.L. since she was three or four years old.  Appellant pleaded guilty to one count of first-degree criminal sexual conduct, admitting that from 1993 to 1998 he committed multiple acts of sexual penetration on A.L.; he was sentenced to 86 months in prison.  The department of corrections (DOC) completed an assessment of appellant and recommended that appellant complete chemical-dependency treatment and sexual-offender treatment.  When appellant was admitted to treatment, he signed a disclosure form in which the DOC treatment staff required honest and full disclosure of uncharged sex offenses.  During treatment, appellant admitted to having fantasies about incest, and to using force and manipulation against A.L.; he did not admit to abusing any other victims.  Appellant disclosed an increase in sexual compulsion that paralleled his chemical abuse, and heightened arousal at watching his penis penetrate a partner, along with interests in and experiences with many forms of forceful sex.

In February 2003, appellant was released from prison and placed on intensive supervised release (ISR), which required his completion of sex-offender treatment at Upper Mississippi Mental Health Center (UMMHC) and drug testing.  Appellant’s initial assessment indicated that he displayed no remorse for sexually assaulting A.L.  Further, appellant disclosed in a sexual-history disclosure required for passage of a treatment program, an extensive history of sexual misconduct that he had not previously reported and for which he was not charged.  Appellant described abusing at least 36 victims from the time he was 10 years old until his mid-30s, including a 5-year-old male relative, several girls between the ages of 2 and 6, at least two boys between the ages of 1 and 2, and dozens of women, nearly all of whom were younger than appellant and many of whom were minors.  Appellant reported raping numerous girls and women, fondling and inappropriately touching his victims, and sexually penetrating very young minors.  Appellant also admitted that since his release from prison, he had sexually fantasized about A.L. and numerous other individuals as young as age 10.

In December 2004, appellant’s ISR was revoked after he tested positive for cocaine.   Appellant was retested for likeliness to reoffend due to his recent disclosures.  The reviewing psychologist recommended that appellant be assigned a risk level of 3, reflecting a “high risk” to re-offend sexually, noting appellant’s behavioral history, broad victim pool, and lack of rehabilitation from drug addiction. 

In April 2005, the state filed a petition for civil commitment, alleging that appellant is a sexual-psychopathic personality (SPP) and a sexually dangerous person (SDP), as defined by Minn. Stat. § 253B.02, subds. 18b-18c (2004).  By stipulation of the parties, the court admitted evidence that included appellant’s extensive past sexual history.  Appellant testified and corroborated his history given to UMMHC.   Two of three psychologists testified that appellant met all the requirements for civil commitment as an SPP and SDP.  The district court concluded that appellant satisfied the requirements for commitment as an SPP and SDP, and ordered appellant be indeterminately committed.  This appeal follows.


Appellant argues that the admission of evidence of his prior sexual acts obtained by the state in a mandatory outpatient sex-offender treatment program violated his substantive due-process rights.  “In determining whether a civil commitment law violates substantive due process, a court will subject the law to strict scrutiny, placing the burden on the state to show that the law is narrowly tailored to serve a compelling state interest.”  In re Linehan, 594 N.W.2d 867, 872 (Minn. 1999).  Here, the parties stipulated to the admission of evidence obtained from UMMHC.  Appellant did not object to the admission of this evidence at trial.  This court will generally not consider matters not raised and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Therefore, appellant has waived the right to have this issue considered on appeal.  But this court has discretion to review any issue as justice requires.  Minn. R. Civ. App. P. 103.04. 

Appellant argues that his substantive due-process rights were violated because the treatment program that he was required to participate in as a condition of his ISR from prison carried with it an assumption that whatever he disclosed would remain confidential and not be used against him in a civil-commitment proceeding.  The state argues that access to relevant records does not violate substantive due-process rights because a compelling interest is served by having well-informed examiners, attorneys, and courts involved in the civil-commitment process and access is narrowly tailored in that the records are only accessible as relevant to a potential civil commitment.

The United States and Minnesota Constitutions prohibit deprivation of “life, liberty or property without due process of law.”  U.S. Const., amend. XIV, § 1; Minn. Const., art. I, § 7.  Prior to filing a petition for civil commitment, a county attorney may move the court for access to relevant records pertaining to a proposed sexual-offender patient, including treatment records, to “determin[e] whether good cause exists to file a petition and, if a petition is filed, to support the allegations set forth in the petition.”  Minn. Stat.  §§ 253B.185, subd. 1b (2004); see also Minn. Stat. § 244.05, subd. 7 (2004) (stating that in determining whether civil commitment is appropriate, the Commissioner of Corrections shall have access to private medical data, confidential court-services data, confidential corrections data, and private criminal-history data).   

In order to assure that persons are not improperly subjected to involuntary civil-commitment proceedings, it is important that authorities in charge of the proceedings are well informed on the relevant characteristics of the proposed patient.  See In re D.M.C., 331 N.W.2d 236, 238 (Minn. 1983) (stating that the greater the quantity of relevant information an examiner in a commitment proceeding receives, the better the opportunity for a complete evaluation of the proposed patient).  Access to information is necessary to ensure the integrity of the civil-commitment process.  This purpose would be frustrated if the person subject to commitment was able to limit the county’s record-gathering efforts to include only those records that are neutral or that serve the person’s interest in avoiding commitment.  As such, the statutes are narrowly tailored and do not violate appellant’s substantive due-process rights.

In support of his argument, appellant relies on McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017 (2002).  The Court in McKune held that participation in the Kansas sexual-abuse treatment program did not violate McKune’s Fifth Amendment privilege against self-incrimination because the consequences the inmate faced if he did not participate, such as reduction in visitation rights, earnings, and work opportunities, did not rise to the level of an unconstitutional compulsion.  McKune, 536 U.S. at 48-49, 122 S. Ct. at 2032-33 (O’Connor, J., concurring).  But appellant’s reliance on McKune is misplaced, however,because McKune dealt with the Fifth Amendment, not substantive due process. 

Appellant further argues that his indefinite civil commitment is punitive in nature, and, therefore, implicates his right against compelled self-incrimination.  But Minnesota case law establishes that commitment under the civil-commitment statute is remedial because it is for treatment purposes and is not for purposes of preventive detention.  Call v. Gomez,535 N.W.2d 312, 319-20 (Minn. 1995); In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994).