This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Civil Commitment of:
Leslie Lavern Tallman.
Filed May 15, 2007
Hennepin County District Court
File No. 27-MH-PR-05-1183
Kirwin, Assistant Hennepin County Attorney, Adult Services Section, A-2000
Considered and decided by Minge, Presiding Judge; Wright, Judge; and Harten, Judge.
Appellant challenges his indeterminate commitment as a sexually dangerous person, arguing that the evidence is insufficient to support the finding that he is highly likely to reoffend and that Minn. Stat. § 253B.02, subd. 18c (2004) is unconstitutional as applied to him. Because we conclude that evidence supports the finding that appellant is highly likely to reoffend and that the statute is not unconstitutional as applied to appellant, we affirm.
In 1996, appellant Leslie Tallman, now 38, broke into the home of an 82-year-old woman and raped her, by his own testimony, for half an hour, seriously injuring her. He was charged with criminal sexual conduct (CSC) and burglary; he pleaded guilty to CSC and was sentenced to 72 months’ incarceration.
Psychological tests administered while appellant was in prison indicated that he suffers from moderately severe mental disorder and episodic alcohol abuse; that he “breaks out of control”; that he has little insight into his behavior; that his profile indicates he is “impulsive and immature”; and that he would be likely to repeat his behavior. He was diagnosed with alcohol, cocaine, and cannabis dependence and completed chemical dependency treatment.
In June 2001, appellant was released from prison on intensive supervised release. Shortly afterwards, he violated a condition of release by using alcohol and drugs. In May 2002, appellant broke into a nursing home by cutting a window screen and sexually assaulted a disabled 71-year-old woman. As she struggled with appellant, who was threatening to kill her, she had her oxygen equipment pulled from her head so that she choked. Appellant was charged with CSC, attempted CSC, and burglary; he pleaded guilty to attempted CSC and was sentenced to 55 months’ incarceration.
In November 2005, a petition was filed to commit appellant as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP). In February 2006, a court-appointed examiner filed a report concluding that appellant fits the statutory definition of a SDP but not that of a SPP. In April 2006, a second court-appointed examiner filed a report reaching the same conclusion. The district court filed findings of fact, conclusions of law, and an order committing appellant to the Minnesota Sex Offender Program (MSOP) as a SDP.
In August 2006, MSOP reported that appellant’s condition and circumstances were unchanged and recommended indeterminate commitment. A third examiner, appointed by the district court at appellant’s request, also reported that appellant’s circumstances had not changed and recommended indeterminate commitment.
The district court issued an order committing appellant for an indeterminate period. He challenges that order, arguing that the evidence does not support the finding that he is highly likely to reoffend and that Minn. Stat. § 253B.02, subd. 18c (2004), is unconstitutional as applied to him.
D E C I S I O N
1. Commitment as a SDP.
In an appeal from a civil
commitment, this court is limited to determining whether the district court
complied with the statutory requirements.
In re Knops, 536 N.W.2d 616,
Appellant challenges his commitment
as a SDP, which is defined as 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 [further] acts of harmful sexual
Six factors are relevant to this
determination: (1) demographic characteristics such as age and education; (2)
history of violent behavior, particularly the recency, severity, and frequency
of violent acts; (3) statistical evidence of violent behavior among individuals
with the same background; (4) sources of stress in the environment, or factors
indicating whether stress will engender violent behavior; (5) similarity of the
present or future context to the context in which the harmful sexual conduct
occurred; and (6) completion of sex offender treatment. In re
Linehan, 518 N.W.2d 609, 614 (
Appellant argues that the first factor, demographic characteristics, favors him because he has matured, furthered his education, increased his religious participation, and completed programs for sex offenders and for chemical dependency. But these improvements occurred prior to appellant’s second offense; no evidence obtained since that time leads to a conclusion that appellant is not highly likely to reoffend.
As to the second factor, history of violent behavior or harmful sexual acts, appellant notes that he committed only two harmful sexual acts. This is true, but he committed the second act within a year of his release from prison while he was still under intensive supervision for the first incident. Moreover, both his victims were elderly, vulnerable women whom appellant used force to subdue.
As to the third factor, statistical evidence, appellant relies on the report of one psychologist on one test, the Static-99, indicating that appellant is only 52% likely to reoffend over ten years. But this statistic is taken out of context, and a thorough examination of the psychologists’ reports indicates a substantially higher risk.
In February 2006, the first psychologist to examine appellant reported on the results of six tests. Every test led to the conclusion that appellant is highly likely to reoffend; the psychologist’s report indicated that appellant’s score on the Static-99 “place[d] him in the highest risk category for committing another sexual offense.” The April 2006 report of the second psychologist, on which appellant relies, stated that appellant was placed in the high-risk category because of his score of 15 out of 20 variables on one assessment tool and also because of his score on the Static-99, which put him in the high-risk category. The November 2006 report of the third psychologist, who was asked to determine if appellant currently met the SDP requirements, states that appellant “continues to be at high risk for sexual re-offense” because of three factors: “a deviant sexual arousal of the non-consent form; a significant chemical health vulnerability . . . ; and an underlying personality disorder of the antisocial type.” Thus, the third factor supports appellant’s commitment.
As to the fourth factor, stress in the environment, appellant again relies on elements present before his second offense, which occurred when he was living with his family and after he had completed sex-offender treatment and chemical-dependency treatment. We note that appellant’s current classification as a Level 3 sex offender could be an additional source of stress.
As to the fifth factor, similarity of context, appellant’s context on his release from prison this time would be similar to his context when he was released the last time and reoffended both by using drugs and alcohol and by engaging in harmful sexual conduct. While it is true that appellant has not used chemicals in prison, it is also true that he began using them when he was released the last time.
Finally, as to the sixth factor, completion of sex-offender treatment, appellant had not completed the program by his release date. Although he had previously completed it, his subsequent offense put him once again in the untreated-offender category. See In re Civil Commitment of Stone, 711 N.W.2d 831, 840 (Minn. App. 2006) (holding that one who commits a sexual offense after treatment may be considered untreated), review denied (Minn. 20 June 2006).
Consistent testimony of all the experts supports the finding that appellant is highly likely to reoffend. One psychologist testified:
I think there is a combination of factors that go into his being highly likely to reoffend, not being able to control his behaviors, one is his chemical dependency. Certainly his antisocial personality disorder makes him a person who finds it very easy to exploit other people, to take things that he wants at the expense of other people, to be callous as to what the consequences to other people might be about his actions; basically, to be someone who has a disregard for other people’s rights and safety. He’s certainly shown over various other circumstances a willingness to engage in behaviors that put other people at risk. I think his paraphilia where he fantasizes about nonconsenting victims continues to be active and that it’s something that is going to be with him probably for the rest of his life and I think it makes him likely to offend.
Asked if it was his opinion that appellant was highly likely to reoffend, the evaluator said, “Yes.”
Another psychologist testified that:
[W]hen a person leaves a prison system who has this diagnosis [paraphilia], it is not all that atypical for them to have an immediate sexual encounter, deviant sexual encounter shortly after their departure from prison. It’s almost to say that the prison event itself really didn’t dissuade them from acting out on their impulse, and I think that’s very relevant in this particular case . . . you have an established pattern, you have a fixated sexual group that is I think still certainly at an arousable level for [appellant] and, therefore, that risk for him still remains quite high.
When asked if appellant’s dysfunction, i.e. arousal to behaviors inflicted on nonconsenting elderly women, did not allow appellant to adequately control his sexual impulses, the psychologist said, “I believe that is true.” He also said that he found appellant “highly likely” to reoffend and that commitment to MSOP was the least restrictive alternative available for meeting appellant’s treatment need that was consistent with public safety.
Expert testimony and evidence on the Linehan factors supports the finding that appellant is highly likely to reoffend.
2. Constitutionality of Minn. Stat. § 253B.02, subd. 18c (2004).
This court presumes that
a. Substantive Due Process.
Appellant contends that Minn. Stat.
§ 253B.02, subd. 18c, fails to distinguish between a recidivist, such as
himself, and dangerous sexual offenders.
But “[t]he [
b. Equal Protection.
Appellant argues that Minn. Stat. § 253B.02, subd. 18c, mandates that sex offenders be treated differently from other criminals. The supreme court has rejected this argument in the context of psychopathic personality commitments:
Nor do we think the psychopathic
personality statute violates equal protection under either the federal or state
constitution. . . . [T]he argument
ignores the fact that the sexual predator poses a danger that is unlike any
other. . . . [Minn.
ex. rel. Pearson v. Probate Court of Ramsey County, 205
re Blodgett, 510 N.W.2d 910, 916-17 (
c. Void for Vagueness.
Appellant argues that the “adequately control” language in Minn. Stat. § 253B.02, subd. 18c, renders the statute void for vagueness. We previously addressed that argument:
Any vagueness in the phrase “adequately control” comes from taking it out of the larger context. . . . Taken in the larger context of the holding of [In re Linehan, 594 N.W.2d 867], the meaning of the phrase “adequate control” is clear; an offender’s history of harmful sexual conduct and a high likelihood of future dangerousness, coupled with a mental illness or dysfunction, demonstrates that an offender will find it difficult to control behavior.
In re Civil Commitment of Ramey, 648
N.W.2d 260, 268 (
d. Double Jeopardy.
Appellant argues that his commitment
constitutes double jeopardy. But he must
prove that it is punishment, imposed in a separate proceeding, for the same
offense for which he was already in jeopardy.
See In re Linehan, 557 N.W.2d 171, 188 (
e. Jury Trial.
Finally, appellant argues that
The essence of federalism requires that states be free to develop a variety of solutions to problems and not be forced into a common, uniform mold. As the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum.
Poole v. Goodno, 335 F.3d 705, 709 (8th Cir. 2003) (quotation omitted). Appellant is not entitled to a jury trial.
We conclude that competent evidence supports the finding that appellant is highly likely to reoffend and that Minn. Stat. § 253B.02, subd. 18c, is not unconstitutional as applied to him. Accordingly, we affirm the district court’s judgment for the indeterminate commitment of appellant.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant concedes that “there is some established precedent for the [d]istrict [c]ourt’s decision” that Minn. Stat. § 253B.02, subd. 18c, is not unconstitutional, but he claims that “renewed scrutiny of this area of law is appropriate.” However, “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.” Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. 18 Dec. 1987).
 Appellant also argues that he “minimally qualifies” as a recidivist because he offended only twice, used no weapons, and inflicted no violence. But the record, including appellant’s own testimony, shows that he used violence to subdue both his victims.