This opinion will be unpublished and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:
Larry Allen Black.
Filed May 22, 2007
Olmsted County District Court
File No. 55-P4-05-4534
Mark A. Ostrem, Olmsted County
Attorney, Geoffrey A. Hjerleid, Assistant County Attorney,
Patrick J. Arendt,
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his indeterminate civil commitment as a sexually dangerous person, arguing that there is insufficient evidence to support a finding that he is a sexually dangerous person, that his civil commitment violates his constitutional right to adequate treatment, and that his civil commitment constitutes double jeopardy. We affirm.
Appellant Larry Allen Black appeals to this court from orders of the district court finding him to be a sexually dangerous person (SDP) under Minn. Stat. § 253B.02, subd. 18c (2006), and committing him to the Minnesota Sex Offender Program (MSOP) for an indeterminate period.
Black is 20 years old. He was raised with two younger sisters, a younger brother, and an older half-brother. There is evidence that Black was a victim of sexual abuse by more than one perpetrator by the age of five. He remembers his older female cousin sexually abusing him when he was about five years old approximately twice a week for a year. He was sexually abused by his father, as were his siblings. The abuse perpetrated by his father included inducing Black and his siblings to engage in sexual acts with each other, masturbating while the children engaged in sexual acts, and videotaping the children engaging in sexual acts. Black’s father was imprisoned when Black was about five years old for sexually abusing Black’s sisters, and it was suspected that Black’s father was abusing him as well, although he was never charged. When Black’s father was released from prison, he continued to sexually abuse his children. Black’s father also attempted to murder Black’s mother. He was returned to prison and is expected to be civilly committed following his incarceration.
After Black’s mother divorced his father, she married Black’s paternal uncle. The two divorced when it was discovered that Black’s uncle also was sexually abusing Black’s sisters, and possibly Black and his brother. The uncle was imprisoned for these offenses and appears thereafter to have been civilly committed. Black has reported that he started using alcohol at the age of five and marijuana at the age of seven and that his uncle injected him with “angel dust” on two occasions when he was nine years old. He also has a history of suicide attempts.
In September 1999, when Black was 12 years old, Black’s half-brother reported to a family-services therapist that Black and his other brother had had sex with their sisters. A delinquency petition was filed, alleging that Black had sexually assaulted his two younger sisters, then ages 10 and 11, against their will. The assaults involved vaginal penetration and also fondling of the breasts and genitals of both girls.
January 2000, Black was placed at
2000, Black’s mother moved with his siblings to
July 2001, Black was discharged from
In March 2003, Black was found to be in violation of the terms of his probation “by failure to remain abstinent [from smoking marijuana], possession of pornography and assaultive and threatening behavior.” And in June 2003, Black was again found to be in violation of the terms of his probation for being in possession of a pornographic magazine and pornographic computer images. Black was then placed in a juvenile-detention center, where he admitted that he had accessed pornography, including child pornography, almost every day since the Internet had become available to him in his foster home. Black was released from detention and began participating in outpatient after-care treatment at Project Pathfinder, but his after-care treatment was terminated because of probation violations and inappropriate behavior. He then began individual therapy at Project Pathfinder. At a detention hearing, Black was found to be in violation of the terms of his probation by “having assaultive and threatening behavior, failure to attend probation classes and having access to pornographic materials.” He was again placed in a juvenile-detention center but was released and placed in a different foster home in January 2004.
In his new foster home, Black began to urinate in cups and hide them in various places in his foster parents’ basement. In August 2004, Black was placed in a juvenile-detention center after it was discovered that he had stolen and hidden undergarments belonging to his foster parents’ 11-year-old granddaughters. Black’s foster parents later found a pornographic magazine and a “sex cube”—a die imprinted with sexual terms—in Black’s clothing.
On September 15, 2004, a district court revoked Black’s probation and committed him to the Minnesota Commissioner of Corrections for sex-offender treatment at the Minnesota Correctional Facility in Red Wing (MCF-Red Wing). The district court determined that the disposition was necessary because it had concerns about Black returning to his foster home, “especially as it relates to the young granddaughters of the foster parents”; Black had “exhausted treatment options in the community”; and court-services personnel had concluded that Black’s repeated probation violations illustrated his “failure to integrate tools he learned in sex offender treatment to help prevent him from sexually reoffending.”
While Black was in treatment at MCF-Red Wing, he further revealed his history of sexually offending. He admitted to sexually abusing approximately ten children, both males and females, and that the abuse included oral, anal, and vaginal penetration, digital penetration, and fondling. The abuse happened in many different settings, and Black reported that he bribed or manipulated his victims to accomplish the abuse. Black also reported that he fantasized about rape and bondage and that he often used females’ undergarments, voyeurism, phone-sex lines, and nonconsensual touching of both boys and girls for sexual arousal.
In November 2005, a petition for judicial commitment was filed, alleging that Black is a sexual psychopathic personality (SPP) and an SDP. Black was released from MCF-Red Wing in January 2006 but was then apprehended and transported to MSOP-St. Peter pending a hearing on the civil-commitment petition.
The district court appointed Dr. Rosemary Linderman to conduct a psychological evaluation of Black, and after Black requested that the district court appoint a second psychologist, Dr. Peter Meyers was also appointed to evaluate him. Dr. Linderman concluded that Black is an SDP. She diagnosed several disorders and dysfunctions, including pedophilia, paraphilia NOS, sexual abuse of a child, frotteurism, fetishism, a history of ADHD, conduct disorder, oppositional defiant disorder, and dysthemia. She concluded that Black has a “high likelihood” of sexually reoffending. Dr. Meyers agreed that Black is an SDP and diagnosed pedophilia, paraphilias NOS, and fetishism. Dr. Meyers concluded that Black was a moderate-to-high reoffense risk based on Black’s history, psychological test scores, and interview responses.
After a two-day hearing in February 2006, the district court found that the state had presented clear and convincing evidence that Black is an SDP. The district court concluded that there was not clear and convincing evidence that Black is an SPP, in part because Dr. Meyers disagreed with Dr. Linderman’s conclusion in that regard. The district court committed Black to MSOP for an indeterminate period. As required by Minn. Stat. § 253B.18, subd. 2 (2006), a review hearing was held, and the district court found that Black continues to be an SDP and should remain committed to MSOP for an indeterminate period.
D E C I S I O N
district court will civilly commit a person under the Minnesota Commitment and
Treatment Act if the state proves the need for commitment by clear and
Black argues that there is
insufficient evidence to support a finding that he is an SDP. An SDP is one 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). 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 reoffend.
Course of Harmful Sexual Conduct
“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
Black argues that the district court erred by finding that there is clear and convincing evidence that he engaged in a course of harmful sexual conduct. Black does not dispute the district court’s findings of fact regarding any of his conduct but argues, first, that he did not “knowingly” engage in an “intentional” course of harmful sexual conduct because all of his harmful sexual conduct took place when he was a juvenile—there is no evidence that he has engaged in any such conduct since he reached the age of majority. Second, Black argues that because he was reared in an environment of incest and forced sex, he did not know that his conduct was wrong. Therefore, he argues, because he did not know that his conduct was harmful, “it cannot be said that he was engaged in the type of intentional ‘harmful sexual conduct’ that is contemplated by the commitment statutes.”
provides no support for his implied assertion that conduct engaged in as a
juvenile is not “knowing” or “intentional.”
Based on the evidence in the record, particularly the number of child victims and the variety of acts involved, the district court properly concluded that there is clear and convincing evidence that Black engaged in a course of harmful sexual conduct.
Sexual, Personality, or Other Mental Disorder or Dysfunction
The second factor in an SDP
commitment is whether the individual “has manifested a sexual, personality, or
other mental disorder or dysfunction.”
Black’s suggestion that Drs.
Linderman and Meyers evaluated him based on reviews of past records is
inaccurate. Both doctors independently
interviewed Black and conducted a series of psychological tests before preparing
their reports. Their expert opinions are
that Black manifests a sexual, personality, or other mental disorder or
dysfunction, and those opinions are clear and convincing evidence of that
fact. The district court expressly
discredited the opinion of Dr. Hertog because it “determined that Dr. Hertog’s
findings are not well-grounded in fact or experience.” The district court was in a position to judge
the credibility of the three experts and, in its discretion, to credit the
opinions of two of the experts over the third.
Likelihood of Engaging in Acts of Harmful Sexual Conduct
third factor is whether, as a result of an individual’s course of misconduct
and mental disorders or dysfunctions, the individual is “likely to engage in
acts of harmful sexual conduct.”
Although Black fails to address any of the six factors, he claims that the district court erred by finding that there is clear and convincing evidence that he is likely to engage in acts of harmful sexual conduct. Black argues that all of his sexual offenses took place when he was a juvenile, that he has abstained from engaging in any harmful sexual conduct since he participated in sex-offender treatment at MCF-Red Wing, and that his most recent “offensive conduct” took place nearly two and a half years ago. Also, Black asserts that his “firm grasp” on his “triggers” and on his relapse-prevention plan, the fact that he completed one sex-offender treatment program when he was a juvenile and nearly completed another at MCF-Red Wing, his scores on the assessment tests that were administered to predict his risk for reoffense, and his past success and future aspirations all demonstrate that he is unlikely to engage in acts of harmful sexual conduct in the future.
The state argues that because Drs. Linderman and Meyers each addressed the six Linehan factors and because the district court relied on its assessment of the doctors’ expert testimony to find that Black is highly likely to engage in acts of harmful sexual conduct, the district court did not clearly err by so finding.
Black points to the fact that he has abstained from offensive conduct for two and a half years to argue that he is not likely to reoffend. But his abstinence may be largely attributable to the fact that he has been incarcerated for most of that time. And according to Dr. Linderman’s report, several of the six Linehan factors weigh in favor of the district court’s determination that Black is highly likely to reoffend: (1) Black’s young age places him at high risk, as do his abusive home environment and the offensive sexual conduct he engaged in early in his childhood; (2) Black has an extensive history of displaying both sexual and nonsexual violence; (3) Dr. Linderman addressed several studies and statistical factors relating to recidivism and noted that, most pertinently here, offenders who display deviant sexual preferences, who are younger, who have a high number of offenses, who failed to complete treatment, who have impaired intimate relationships, who have had male child victims, and who have an early history of sexual offenses are more likely to reoffend; (4) stresses in Black’s environment include his poor relationship skills, his unstable support system, his preoccupation with pornography, and his “inability or unwillingness to learn from past experiences/mistakes”; (5) Dr. Linderman noted that Black “reports resorting to sexual activity once he becomes frustrated with either relationships or other situations in his life” and concluded that the context in which Black has offended and is likely to reoffend will be “heavily influenced by his level of practiced insight,” so this factor does not conclusively point in either direction; and (6) although Black completed treatment at Mille Lacs Academy, he reoffended after doing so, he had difficulty participating in treatment at Project Pathfinder, and he has participated in treatment at MCF-Red Wing but failed three polygraph tests, apparently relating to his sexual history, during that time.
The expert-witness testimony provided clear and convincing evidence that Black is highly likely to reoffend. Dr. Linderman concluded that Black’s reoffense risk is “high,” and Dr. Meyers characterized it as “moderate to high.” The doctors reached these conclusions after conducting interviews and psychological testing and considering factors such as Black’s offense history and his victimization history, the types of offenses and victims involved, his past response to treatment, and his support system.
Because the evidence in the record sufficiently supports the conclusion that Black has engaged in a course of harmful sexual conduct, has manifested a sexual or mental disorder or dysfunction, and is likely to engage in acts of harmful sexual conduct, the district court did not improperly determine that there was clear and convincing evidence that Black satisfies the criteria for commitment as an SDP.
district court determines that a person is an SDP, 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 is available
that meets the offender’s treatment needs and does not threaten public safety.
Minn. Stat. § 253B.185, subd. 1.
This court 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 (
does not claim that a less-restrictive treatment program exists or dispute the
district court’s finding that Black failed to establish that one exists. Instead, Black argues that because the
district court expressly found that MSOP does not have a treatment program in
place for young offenders, and because his father and his uncle are committed
or are expected to be committed to MSOP, Black’s commitment to MSOP violates
his constitutional right to adequate treatment.
Black cites Bailey v. Noot,
324 N.W.2d 164 (
The state contends that Black’s argument here is similarly premature. The state also points out that Bailey’s right-to-treatment doctrine requires only that a patient receive treatment “minimally adequate to provide him a reasonable opportunity to be cured or to improve his mental condition,” not that he receive the “best” possible treatment. See id. We agree. The district court was requiredby statute to commit Black upon its finding that Black is an SDP, and Black failed to establish that a less-restrictive treatment program would meet his needs. The district court noted that MSOP claims that it can avoid placing Black in a position to encounter his father or his uncle. Although Black’s treatment at MSOP may not be the “best” treatment until MSOP puts in place a treatment program that addresses the needs of younger offenders, Black will receive treatment, and the SDP statute does not require that treatment be age-specific. Black fails to explain how the treatment he will receive, although targeted at adult offenders, will not be “minimally adequate” to meet his needs as a 20-year-old offender.
Black next argues that because he has already “served time involuntarily confined” for his two criminal-sexual-conduct convictions, the fact that he is now involuntarily confined at another institution based on those same convictions constitutes double jeopardy, particularly in light of the district court’s finding that MSOP does not offer a program that will provide Black with ideal treatment.
court reviews a constitutional challenge de novo. State
v. Johnson, 689 N.W.2d 247, 253 (Minn. App. 2004), review denied (
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.”
Our caselaw clearly provides that, as a general proposition, civil commitment is rehabilitative, not punitive, and therefore does not violate the double-jeopardy clauses. We therefore move on to address Black’s assertion that his commitment in particularviolates the double-jeopardy clauses because the district court concluded that Black’s “sex offender treatment needs are unlikely to be adequately addressed unless the Minnesota Sex Offender Program creates programming they claim they have been working on.”
Black will receive treatment at MSOP. We cannot conclude that the fact that MSOP does not yet have an ideal program in place makes Black’s commitment punitive rather than rehabilitative. Black has not proved beyond a reasonable doubt that his commitment violates the double-jeopardy clauses.