This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In the Matter of the Civil Commitment of: James Edward Hilton.
Filed May 29, 2007
Olmsted County District Court
File No. P8-04-4347
Patrick J. Arendt, Arendt & Heim Law Office, 300 Third Avenue Southeast, Unit 402, Rochester, MN 55904 (for appellant James Edward Hilton)
Ostrem, Olmsted County Attorney, Geoffrey A. Hjerleid, Senior Assistant Olmsted
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Crippen, 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 granting a petition to indeterminately commit appellant James Edward Hilton as a sexual psychopathic personality and as a sexually dangerous person, Hilton argues that (1) the record does not support a finding that he is a sexual psychopathic personality or a sexually dangerous person; (2) the district court abused its discretion by admitting the report and testimony of a medical examiner who had not conducted a clinical interview; (3) a less-restrictive treatment program is available; and (4) his commitment constitutes double jeopardy. We affirm.
At the time of trial, Hilton was 39 years old. Hilton reported that he began using alcohol sometime between when he was seven and ten years old and began selling marijuana at age ten. Hilton engaged in other criminal activity as a juvenile and reported numerous gang-related acts, including selling narcotics and a shooting. Hilton did not finish high school, and he entered the Job Corps shortly after dropping out of school. In October 2001, Hilton completed his GED while incarcerated.
In October 1994, Hilton pleaded guilty in
In September 1996, Hilton and an accomplice kidnapped and raped an adult woman. At the time, Hilton reported that the sexual contact was consensual, but polygraph findings indicated deception. Hilton testified that on the night of the offense, he was angry with his wife and went to a nightclub where he drank alcohol and talked with a woman. At the end of the evening, Hilton and his accomplice agreed to give the woman a ride home. After stopping the car, Hilton and his accomplice got out of the car, and his accomplice got into the back seat, where he raped the woman. Hilton then got into the back seat and raped the woman. During the rape, he threatened to shoot her. After the second rape, the men threw the woman out of the car while it was moving. They then stopped the car, and both of them raped the woman again. Hilton again threatened to shoot the woman, and she believed that she saw a handgun. After the last assault, the men left the victim, and she walked to a residence where she called for help.
Hilton’s version of the events differed from the victim’s statement and the official reports. Hilton’s records from his various sex-offender treatment programs did not note him admitting to this sexual assault until he was interviewed during the commitment proceeding by Dr. Rosemary Linderman, the first independent court-appointed examiner. Hilton told the second court-appointed examiner, Dr. Peter Meyers, that the 1996 sexual contact was consensual.
At the commitment trial, Hilton admitted that when his accomplice raped the woman in the back seat of the car, he became angry. He testified that it was because he “thought that, ‘Whoa! I thought me and her was,’ – you know – ‘was going to do something. And how the hell did he jump in the picture?’” Hilton testified, “I was deeply upset. I was – I was angry. I was mad. I was – I felt rejected. And I thought that she owed me something. And – And so I raped her.”
Hilton was never charged for this offense because the victim feared for her safety and requested that no charges be filed. However, as a result of the assault and other violations related to his probation, he was apprehended and detained. He remained on probation and entered the Intensive Sex Offender Program (ISOP) in September 1996.
From May 1998 until he was discharged from probation in October 1999, Hilton reported that he continued to have fantasies about young girls he saw at stores and in the community, and that he had the desire to use chemicals.
On September 20, 1998, Hilton tested positive for marijuana. He was held for 72 hours in jail, paid an outstanding fine, and remained on supervised release. During the course of his supervised release, Hilton tested positive for marijuana twice. Hilton was discharged from probation on October 13, 1999. He had not completed the ISOP, but he voluntarily remained in the program. He was discharged from the ISOP when it became evident that he was not abiding by group rules and expectations regarding alcohol and drug use. He was also showing a pattern of interaction with young girls that suggested a high potential for reoffense.
On September 28, 2000, shortly after being discharged from the ISOP, Hilton kidnapped, assaulted, threatened, and attempted to sexually assault K.N., an adult female. Hilton met K.N. in a bar through mutual friends. After drinking and talking at the bar, Hilton took K.N. back to the motel where she and her daughter were staying. Hilton and K.N. sat in the motel room and drank, talked, and watched television. After a while, K.N. told Hilton that she was tired and wanted to go to sleep. Hilton started to leave after K.N. refused his request his request for a kiss, but then he turned on K.N., grabbed her in a bear hug, and forced her back into the motel room. K.N. began to scream and cry. Hilton squeezed her face, and K.N. could not breathe. Hilton threw K.N. on the floor and was on top of her. Hilton told K.N. not to make another sound or he would break her neck. K.N. mentioned her child who was asleep in the motel room, and Hilton threatened to break the child’s neck. Hilton ordered K.N. to shut up and remove her clothes. At that point, the motel manager responded to K.N.’s screams and knocked on the motel-room door. Hilton fled the motel and attempted to flee from police, first in a vehicle and then on foot. He struggled with police and resisted arrest. After he was arrested, Hilton submitted to a breathalyzer, and his alcohol-concentration level was .06. Pursuant to a plea agreement, Hilton pleaded guilty to attempted second-degree criminal sexual conduct, and other charges that had been brought against him were dismissed. He was sentenced to 36 months in prison.
On September 30, 2002, Hilton was released from prison under conditions of supervised release that included that he was to successfully complete sex-offender-specific treatment and programming, abstain from using alcohol and other mood-altering substances, and not have contact with minors. On June 21, 2004, Hilton’s probation was revoked for violating the condition that he have no contact with minors. Hilton reported that he violated his probation after helping his fiancée move, a situation where there were teenage females present. This violation led to his current confinement. Hilton admitted to having on-going contact with his fiancée’s two teenage daughters. Hilton and his fiancée testified that Hilton had only one contact with one girl, but their testimony contradicted statements they made in July 2004, and the district court found that their testimony was not credible and sentenced Hilton to serve 150 days.
Before Hilton was released,
D E C I S I O N
state must prove the need for commitment by clear and convincing evidence. Minn. Stat. §§ 253B.09, subd. 1(a), .18,
subd. 1(a) (2006); see Minn. Stat. §
253B.185, subd. 1 (2006) (stating provisions of chapter 253B pertaining to
persons who are mentally ill and dangerous to the public apply to SPP and SDP
commitments). On review, findings of
fact justifying commitment “shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the [district] court to
judge the credibility of the witnesses.”
1. Sexual Psychopathic Personality
Appellant argues that there is insufficient evidence to support a finding that he is an SPP.
“Sexual psychopathic personality” means the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.
A. Habitual Course of Sexual Misconduct
Hilton argues that there was insufficient evidence to demonstrate that he has engaged in a habitual course of misconduct in sexual matters. Hilton contends that (1) he has had only two offenses where he actually touched the victims sexually, and those offenses occurred in 1994 and 1996; (2) he has not touched any victims sexually since that time, and in 2000, he was only convicted of attempted criminal sexual conduct; and (3) there is no evidence that he engaged in any sexual improprieties during any of his periods of incarceration or while confined in a sex-offender program. Hilton concludes that given these facts, the district court erred in finding that he has engaged in a habitual course of misconduct in sexual matters because sexually touching two victims 13 and 11 years ago is not a course of misconduct.
SPP statute does not address convictions; it addresses behavior. In re
Monson, 478 N.W.2d 785, 789 (
habitual course of misconduct in sexual matters can be proved by showing
similar incidents of misconduct or incidents that form a pattern. See In
re Bieganowski, 520 N.W.2d 525, 529-30 (
B. Utter Lack of Control
Commitment as an
SPP requires a showing that the person has an utter lack of power to control
the person’s sexual impulses. Linehan, 518 N.W.2d at 613. The supreme court has set out factors for the
district court to consider when determining whether a person has exhibited an
utter lack of power to control sexual impulses.
In re Blodgett, 510 N.W.2d
910, 915 (
the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender’s attitude and mood, the offender’s medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it.
Hilton contends that he has control over his impulses because he has insight into his criminality. But Linderman’s evaluation report addresses all of the factors identified in Blodgett, and Linderman concluded that although Hilton can articulate the principles of sex-offender treatment, his history of behavior does not demonstrate that he has been able to incorporate these principles into his everyday life and the only evidence that he has changed is that he says he has. This is also evident in the fact that Hilton has spent a considerable amount of time in sex-offender treatment and has not successfully completed any of the treatment programs, and some of his offenses occurred either while he was in treatment or shortly after he was discharged from treatment. The record contains clear and convincing evidence that Hilton lacks the ability to control his sexual impulses and behavior.
C. Dangerous to other persons
Hilton argues that there is insufficient evidence to support a finding that he is dangerous to other persons.
Where utter uncontrollability of sexual impulses is found . . . the [district] court, in predicting serious danger to the public, should consider the following factors if such evidence is presented: (a) the person’s relevant demographic characteristics (e.g., age, education, etc.); (b) the person’s history of violent behavior (paying particular attention to recency, severity, and frequency of violent acts); (c) the base rate statistics for violent behavior among individuals of this person’s background (e.g., data showing the rate at which rapists recidivate, the correlations between age and criminal sexual activity, etc.); (d) the sources of stress in the environment (cognitive and affective factors which indicate that the person may be predisposed to cope with stress in a violent or nonviolent manner); (e) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (f) the person’s record with respect to sex therapy programs.
Linehan, 518 N.W.2d at 614.
Hilton contends that the fact that he has not sexually touched a victim since his offenses 11 and 13 years ago is a good indication that he is a low risk to reoffend. But this argument is based on Hilton’s failure to acknowledge that the offense for which he was convicted in 2000 was an attempted sexual offense that ended when the motel operator responded to the victim’s cries for help. Linderman evaluated the Linehan factors and concluded that Hilton meets the statutory criteria for commitment as an SPP. Based on Linderman’s evaluation, the district court found:
Because of [Hilton’s] Personality Disorder, impulsiveness, failure to appreciate the consequences of his actions, and the lack of customary standards of good judgment, he has an utter lack of power to control his sexual impulses, especially when he feels rejected and inadequate; and, as a result of this combination of factors, he is dangerous to others.
evaluation report, which thoroughly analyzes the circumstances of Hilton’s
earlier assaults and carefully explains why Linderman concluded that Hilton
remains essentially the same person he was when he committed the earlier
assaults, is clear and convincing evidence that supports the district court’s
finding that Hilton is dangerous to others.
See In re Thulin, 660 N.W.2d 140, 144 (
2. Sexually Dangerous Person
contends that there is insufficient evidence to support a finding that he is a
sexually dangerous person. “A ‘sexually
dangerous person’ means 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(a) (2006). “[I]t
is not necessary to prove that the person has an inability to control the
person’s sexual impulses.”
A. Course of Harmful Sexual Conduct
argues that the evidence does not show that he engaged in a course of harmful
sexual conduct. We disagree. “Harmful sexual conduct” is defined as
“sexual conduct that creates a substantial likelihood of serious physical or
emotional harm to another.” Minn. Stat.
§ 253B.02, subd. 7a(a) (2006). 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
is a rebuttable presumption that conduct that constitutes criminal sexual
conduct in the first through fourth degrees under Minn. Stat. §§ 609.342-.345
creates a substantial likelihood that a victim will suffer serious physical or
B. Sexual, Personality, or Other Mental Disorder or Dysfunction
Hilton argues that there is insufficient evidence to support a finding that he has manifested a sexual, personality, or other mental disorder or dysfunction that does not allow him to adequately control his impulses. Hilton contends that because four different psychologists produced four different diagnoses, there is not clear and convincing evidence that he has manifested a mental disorder or dysfunction. Hilton misstates the diagnoses from the various psychologists.
Linderman reported that Hilton has a history of chemical dependency and a personality disorder, not otherwise specified, with antisocial and narcissistic features, and shows evidence of sexual sadism. Charles Dawley, who completed a psychosexual evaluation of Hilton, also diagnosed Hilton with a personality disorder, not otherwise specified, and ruled out antisocial personality disorder. Dr. Paul Reitman made a report based solely upon a record review and diagnosed Hilton with antisocial personality disorder. Meyers reported that Hilton’s MSI-II responses indicate that he has a serious drug-and-alcohol-abuse problem but that Hilton’s test results do not currently reflect any specific personality disorders. The district court found Meyers’ opinion to be internally inconsistent and that his findings were not supported by clear and convincing evidence.
Consequently, the three experts whose opinions were not rejected by the district court determined that Hilton has a personality disorder, although they were not able to identify the specific disorder. Clear and convincing evidence supports the district court determination that Hilton “has manifested a sexual, personality, or other mental disorder or dysfunction” under Minn. Stat. § 253B.02, subd. 18c(a)(2).
C. Likelihood of Engaging in Acts of Harmful Sexual Conduct
Hilton argues that there is
insufficient evidence to support a finding that he is likely to engage in any
future acts of harmful sexual conduct. The
court must find a high likelihood that the person will engage in further
harmful sexual conduct. Linehan IV, 594 N.W.2d at 876. We have already discussed the likelihood of
future harm with respect to Hilton’s SPP commitment, and the same factors that
are considered when predicting whether future harm is likely in an SPP case
must be considered when evidence is presented in an SDP case. In re
Linehan, 557 N.W.2d 171, 189 (
The record supports the district court’s conclusion that, even after attending treatment and serving a significant amount of time in prison, Hilton’s “involvement in sex offender treatment programs has done little to reduce his risk of reoffending sexually and provide any mitigation of his dangerousness to the community.” Hilton participated off and on in several sex-offender treatment programs, but he failed to complete the programs, and he committed acts of sexual misconduct while in a program or soon after being released from a program. Hilton’s expected future circumstances are virtually identical to the circumstances under which he offended in the past, and statistical data and psychological evaluations indicate that Hilton is highly likely to engage in further sexual misconduct. Clear and convincing evidence supports the district court’s finding that Hilton is highly likely to engage in future acts of harmful sexual misconduct.
3. Admission of Evidence
argues that the district court erred in admitting Reitman’s report into
evidence and that as a result, his commitment should be discharged. “The Court may admit all relevant, reliable
evidence, including but not limited to the respondent’s medical records,
without requiring foundation witnesses.”
Hilton requested a second court-appointed expert, and the court appointed Reitman. Hilton objected and subsequently requested Meyers. By the time Hilton objected to Reitman, Reitman had already completed significant work in reviewing the record. The district court admitted Reitman’s report and testimony and noted in its findings that “Dr. Reitman’s report and testimony were allowed only in so far as they would assist the Court in understanding and analyzing the reports of Dr. Linderman and Dr. Meyers. Dr. Reitman’s evidence has not been weighed by the Court in making any determination of the ultimate question of [Hilton’s] justification for commitment.” The district court did not abuse its discretion in admitting Reitman’s report and testimony.
4. Least-restrictive treatment program
Hilton argues that he met his burden of establishing the
availability of a suitable, less-restrictive treatment program. If a person is committed as an SPP or an SDP,
“the court shall commit the patient to a secure treatment facility unless the
patient establishes by clear and convincing evidence that a less restrictive
treatment program is available that is consistent with the patient’s treatment
needs and the requirements of public safety.”
Hilton contends that he met his burden of proving that
a less-restrictive treatment program is available because from September 30, 2002, through July 17,
2004, he did not commit an offense while he lived in the community under
supervised release and attended the ISOP in
But this argument ignores the significance of the fact that Hilton was apprehended and taken into custody for violating the requirement of his supervised release that he not have contact with minors. This requirement is directly related to Hilton’s past sexual offenses. Hilton contends that he has “demonstrated that he currently has a firm grasp of his triggers, cycle of abuse, and relapse prevention plan, and that he has the ability to use this understanding along with other tools that he learned through sex offender treatment to prevent him from re-offending.” But his supervised-release violation refutes this contention. Furthermore, Hilton acknowledges that he must remain under some supervision, but he did not identify a treatment program that will provide adequate supervision while allowing him to remain in the community.
The district court found that Hilton “failed to show there is a less restrictive treatment program that would simultaneously meet his needs and protect public safety.” The record supports this finding. Hilton did not meet his burden of proving that a less-restrictive treatment program is available.
5. Double Jeopardy
Finally, Hilton argues that his commitment under the SPP statute and the SDP statute violates constitutional prohibitions against double jeopardy because the level of confinement at the Minnesota Sex Offender Program “is equivalent to that of incarceration.”
This court reviews
a constitutional challenge de novo. State v. Johnson, 689 N.W.2d 247, 253 (
an individual otherwise meets the requirements for involuntary civil
commitment, the State is under no obligation to release that individual simply
because the detention would follow a period of incarceration.”