This opinion will be unpublished and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
Filed September 25, 2007
Toussaint, Chief Judge
Lori Swanson, Attorney General, Willow J. Najjar, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jennifer J. Hasbargen, Koochiching County Attorney, Koochiching County Courthouse, 715 Fourth Street, International Falls, MN 56649 (for respondent State of Minnesota)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Adam Leroy Meyer challenges the order for his indeterminate commitment as a sexually dangerous person (SDP). Because the evidence supports his commitment, because we see no error in the finding that there is no less-restrictive alternative or in the adoption of the state’s findings of fact and conclusions of law, and because we see no abuse of discretion in the denial of appellant’s motion to sequester witnesses or in reopening the trial to take additional evidence, we affirm.
Appellant was born in 1981; he is now 25. In 1998, he sexually abused an eight-year-old female cousin. He was adjudicated delinquent of criminal sexual conduct in the fifth degree, placed in residential treatment, and ordered to remain on supervised probation.
In 2003, appellant had consensual intercourse and oral sex with a 14-year-old girl. He pled guilty to criminal sexual conduct in the third degree and received a stay of imposition of sentence for 15 years and supervised probation for 15 years.
In 2004, he dated and had a sexual relationship with a 15-year-old girl, thus violating his probation. Probation was revoked for this and for his failures to abstain from using illegal drugs, to abstain from contact with females under 18, and to complete sex offender treatment.
In 2006, while in the security hospital, appellant began correspondence with a 15-year-old girl. The relationship continued during the hearing on the petition for appellant’s commitment, and the district court granted the state’s motion to reopen the matter to take additional evidence on this relationship.
Appellant now challenges his commitment on the ground that the evidence does not support it. He also claims that the district court erred in finding that there is no less-restrictive alternative and in adopting the state’s findings of fact and conclusions of law and abused its discretion in denying appellant’s motion to sequester witnesses and in reopening the trial to take additional evidence.
1. SDP Commitment
court reviews de novo whether the evidence as a whole
provides sufficient support for the district court’s legal conclusions that the
statutory grounds for commitment as an SDP have been met. In re
Linehan, 518 N.W.2d 609, 613 (
a person as an SDP, the petitioner must show by clear and convincing evidence
that the person: (1) has engaged in a course of harmful sexual conduct; (2) has
manifested a sexual, personality or other mental disorder or dysfunction, and (3)
is therefore likely to engage in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18c (2006); see also In re Linehan, 557 N.W.2d 171, 180
A. Course of harmful sexual conduct
argues first that the evidence does not show he engaged in a course of harmful
sexual conduct. He relies on the
testimony of a court-appointed examiner for this argument. But that examiner answered, “Yes,” when asked
if the three acts to which appellant admitted, i.e., criminal sexual conduct
against his eight-year-old cousin, stranger penetration of a 14-year-old girl
also argues that his victims were not harmed and that no one testified to
having been harmed by his acts. But
“harmful sexual conduct” means conduct that “creates a substantial likelihood
of serious physical or emotional harm to another.”
The evidence supports the conclusion that appellant engaged in a course of harmful sexual conduct within the meaning of Minn. Stat. § 253B.02, subd. 18c.
B. Sexual, personality or other mental disorder or dysfunction
Appellant contends that the state failed to show he has the sexual, personality, or other mental disorder or dysfunction required for commitment as an SDP by Minn. Stat. § 253B.02, subd. 18c(a). Both examiners diagnosed appellant with, among other things, antisocial personality disorder. Appellant claims this diagnosis is irrelevant because any sex offender would have it and not all sex offenders are subject to commitment as SDPs, but he offers no support for the view that a diagnosis likely to be common among sex offenders is irrelevant to commitment as an SDP.
examiners testified extensively as to appellant’s diagnoses and the tests on
which they were based. The district
court said it “finds the opinions and testimony of [the experts] regarding
[appellant’s] mental disorders to be credible and persuasive.” On review, “due
regard shall be given to the opportunity of the [district] court to judge the
credibility of the witnesses.”
C. High likelihood of appellant engaging in harmful sexual conduct
The experts also testified that, in their opinions based on actuarial tools, appellant is highly likely to engage in harmful sexual conduct in the future. Appellant brought in his own expert witness to show that these actuarial tools were themselves flawed. This expert’s testimony was based on his unpublished manuscripts concerning the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), which he believes is defective. But he also testified that the MnSOST-R is “accepted for use by practitioners who are performing these evaluations.” This witness had not interviewed, treated, or tested appellant, had not heard appellant’s testimony, and was not prepared to offer an opinion as to whether appellant met the requirements for commitment as an SDP. The district court’s implicit reliance on examiners who had assessed appellant and failure to rely on an expert who had not assessed him is justified by the evidence.
also argues that the six factors set out in Linehan
I do not indicate that he is highly likely to engage in harmful sexual
conduct. 518 N.W.2d at 614. The first factor is demographic
second factor is a history of violent behavior.
factor is base rate statistics.
fourth factor is sources of stress in appellant’s environment.
factor is the similarity of present or future contexts to those in which the
individual used violence in the past.
factor is the therapy record.
The six Linehan factors indicate that appellant is highly likely to engage in harmful sexual conduct.
D. Adequate Control of Sexual Impulses
Appellant claims that the state failed to present evidence to support the determination that he cannot adequately control his sexual impulses and that he himself presented witnesses “who have known [him] for an extended period of time [and] who testified that he has changed for the better and is a better person with future plans and goals.” But none of these witnesses’ testimony pertained to whether appellant has adequate control of his sexual impulses. The state presented evidence that, while at the security hospital, appellant began correspondence with a 15-year-old girl, and both examiners asserted that, because of his diagnoses, appellant does not have adequate control of his sexual impulses. Again, this court does not reweigh evidence. Salkin, 430 N.W.2d at 16. The evidence supports the conclusion that appellant does not have adequate control of his sexual impulses.
Appellant meets the four criteria for commitment as an SDP.
2. Less-restrictive alternative
appellate court will not reverse a district court’s finding as to the least-restrictive
treatment program that can meet the patient’s needs unless it is clearly
erroneous. In re Thulin, 660 N.W.2d 140, 144 (
district court, in accord with the testimony of both examiners, determined that
the Minnesota Sex Offender Treatment Program at St. Peter and
A less-restrictive alternative does not provide a basis for reversal.
3. Adoption of the state’s findings of fact and conclusions of law
A district court’s adoption of
one party’s findings of fact and conclusions of law is reviewed under a clearly
erroneous standard. Sigurdson v.
district court denied appellant’s motion to sequester one of the examiners
during the testimony of the other.
Appellant claims he was prejudiced because the two examiners were able
to harmonize their testimony. This court
reviews a district court’s decision on sequestration for an abuse of
discretion. State v. Blom, 682 N.W.2d 578, 607 (
Prior to trial, both examiners submitted reports unambiguously concluding that appellant meets the standard for commitment as an SDP. Because the evidence clearly shows that the examiners were of the same opinion prior to trial, the similarity of their testimony was not a result of the failure to sequester. There was no prejudice from the denial of appellant’s motion.
5. Taking additional evidence
may be reopened to admit “[m]aterial evidence newly discovered, which with
reasonable diligence could not have been found and produced at the trial. .
argues that reopening the trial was not warranted because the evidence was not
material and was available at the time of the hearing. Both arguments fail. The evidence was correspondence between
appellant, while being held at the Minnesota Security Hospital prior to and
during his commitment trial and while under a court order to refrain from all
contact with underage girls, and a 15-year-old telling her of his love for her
and desire for a relationship with her.
The evidence was material to deciding whether appellant, twice convicted
of sexual activity with underage girls, was amenable to therapy and had his
sexual impulses under control. Several
of the letters were not written until after the trial, and the existence of the
letters did not become known until a week after trial, when the recipient’s
mother contacted the state to say that her daughter was receiving love letters
from a patient at the
The district court did not abuse its discretion in reopening the trial to admit newly discovered evidence.
 Appellant relies on the other examiner’s statement that she had “a hard time” with the term “violent,” but her statement was made in the context of admitting that she would consider any sex offense to fall on the continuum of violent offenses. Her testimony does not support appellant’s conclusion.