This opinion will be unpublished and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
Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (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
On appeal from an order for indeterminate commitment as a sexually dangerous person and a sexual psychopathic personality, Willie Arthur Mosby, Jr., argues that the evidence does not establish the standards for commitment and that the commitment statutes are unconstitutional as applied to him. Because clear and convincing evidence supports the district court’s order for indeterminate commitment and the statutes were constitutionally applied to appellant, we affirm.
To commit an
individual as a sexually dangerous person, the petitioning party must prove the
statutory requirements by clear and convincing evidence.
court defers to the district court’s role as factfinder and its ability to
judge the credibility of witnesses. In re Ramey, 648 N.W.2d 260, 269 (Minn.
App. 2002), review denied (
Appellant argues that “[g]iven the failure of the actuarials to yield a clear and convincing risk assessment supporting commitment, the court’s consideration of the six [Linehan] factors . . . should have resulted in an order denying the petition.” Appellant argues that the examiners relied primarily on the static base rate statistics and “did not satisfactorily address dynamic factors [under Linehan].” In short, appellant contends that he is not psychopathic and is not highly likely to reoffend.
This court examines whether clear and convincing evidence supports the district court’s determination that appellant was highly likely to engage in further harmful sexual conduct. The Minnesota Supreme Court has set out six factors to be considered in examining the likelihood of reoffense: (1) the offender’s demographic characteristics; (2) the offender’s history of violent behavior; (3) base-rate statistics for violent behavior among persons with the offender’s background; (4) sources of stress in the offender’s environment; (5) the similarity of present or future environment to the environment in which the offender used violence in the past; and (6) the offender’s record of treatment in sex-therapy programs. Linehan I, 518 N.W.2d at 614.
The district court made findings on the court-appointed examiners’ opinions that reflect their detailed reports. Contrary to appellant’s argument, the examiners did not rely primarily on statistics; their reports indicate that all Linehan factors were addressed and were part of their analyses.
One actuarial tool, the Sex Offense Risk Assessment Guide (SORAG) indicated an 80% reoffense rate for appellant. Appellant argues that a second tool, the Static-99 is “the only genuine recidivism actuarial employed” and that, on it, two of his three scores were under 50% and the third was 52% over a 15-year period. One examiner explained that this test does “not directly measure deviant sexual practices/preferences, which has been previously shown . . . to be the strongest recidivism predictor.” Neither examiner agreed with appellant’s claim that the STATIC-99 was the only “genuine recidivism actuarial” and both agreed that it significantly underreports actual recidivism.
On assessment tools, appellant scored 34 and 35 on the Psychopathic Checklist-Revised (PCL-R:II) and 14 and 17 on the Sexual Violence Risk-20. One examiner stated that appellant’s score on the PCL-R:II was “clear evidence” that appellant is a psychopath. The other examiner elaborated that this level of psychopathy “reflects a condition noted to be at a higher risk for re-offense, that is associated with increased treatment resistance and, where violence has been characteristic of their offense style, a continuing risk of violent acts even in spite of advancing age.” Both scores placed appellant in the “high” category of risk of further sexual violence. One examiner noted that two items present, sexual deviance and psychopathy “can stand alone as items, which, if strongly present, would in and of themselves serve as strong predictors of future recidivism.” Both examiners determined that these items were present.
The examiners viewed all of the psychological testing and risk assessments and concluded that appellant poses a high risk to reoffend.
In addition to the actuarials and tests, the examiners considered appellant’s demographic factors, extensive history of sexual misconduct, diagnoses, and lack of successful treatment. Although appellant’s history of sexual misconduct is not directly reflected in his convictions, he admitted to five sexual assaults involving manipulation and violence. The assaults, some under the influence of drugs, some not, were characterized by gratuitous violence and humiliation of the victims. One examiner noted that appellant’s “entrenched pattern of sexual deviance . . . most likely continues to date.” Appellant continues to be an untreated sex offender; he has progressed in treatment at “a fairly delayed rate,” “has limited insight into his sexual pathology,” and his age does not mitigate the high likelihood that he will reoffend due to his history and psychopathy.
We conclude that the district court had clear and convincing evidence supporting its determination that appellant is highly likely to reoffend and should be committed as a sexually dangerous person.
Status as a sexual
psychopathic personality requires clear and convincing proof of three criteria:
(1) the existence of emotional instability, impulsive behavior, a lack of
customary standards of good judgment, or a failure to appreciate the
consequences of personal acts; (2) a habitual course of sexual misconduct that
results from the presence of a condition in the first criterion; and (3) an
utter lack of power to control sexual impulses such that the person is
dangerous to others.
As noted above, both examiners concluded that appellant is a psychopath. The examinations of appellant took place in late 2005; they included extensive clinical interviews and psychological tests. One examiner reported that appellant “is a talker . . . accustomed to convincing others of things that are either not true or which distort the truth,” while the other examiner concluded that appellant presents himself in a superficially charming way, using justifications and excuses to avoid accepting full accountability. Nevertheless, appellant argues that his current circumstances and his “different context of life” were disregarded by the examiners.
It is clear from the examiners’ reports that they considered appellant’s current status, including his most recent November 2003 probation violation in which he brought three minor females to his place of employment for a photo shoot. Appellant knew this was a direct violation of his probation. Appellant’s claim that he knows “what to avoid and what relapse strategies to apply” was contradicted by his failure to learn from experience and legal consequences. With regard to his latest probation violation, one examiner remarked that appellant “is unable to explain away his having failed supervision, which led to his current incarceration, and his explanation that it was a ‘simple misunderstanding’ between him and his parole agent is simply untrue.” Also, the examiner noted that appellant “continues to assert his original story, which the facts do not prove and for which his continuing presentation of those facts reveals his ongoing psychopathy.”
The record does
not support appellant’s position that the examiners failed to consider his
present circumstances. Insofar as
appellant claims that his recent good behavior negates the other evidence, good
behavior in a prison or hospital is not conclusive on the issue of dangerousness. See In
re Beard, 391 N.W.2d 29, 31 (Minn. App. 1986), review denied (Minn. Sept. 24, 1986) (citing In re Bobo, 376 N.W.2d 429, 432 (
The district court based its determination on clear and convincing evidence that appellant is a sexual psychopathic personality requiring commitment for sex offender treatment.
Substantive Due Process. Appellant claims that the existing process allows an “indeterminate life term” in a setting that will protect the public but will only “repeat treatment already received or available elsewhere.”
Supreme Court has rejected a due process challenge to the sexual psychopathic
personality statute. In re Blodgett, 510 N.W.2d 910, 916 (
Here, the district court found clear and convincing evidence that appellant is a psychopath and the record supports that finding. This diagnosis, along with the diagnosis of sexual sadism and personality disorder, places appellant in the small portion of sex offenders who are too dangerous to release without satisfactory completion of treatment. Both examiners and the district court concluded that appellant requires the treatment available in the Minnesota Sex Offender Program (MSOP).
Equal Protection. Because appellant
fails to provide legal authority for this constitutional claim, this court may
decline to consider that argument. See Ganguli v.
Insofar as appellant argues that he
is “a minimally recidivist offender in the sex offender category,” that he is not
“truly in need of treatment for a mental disorder causing their unique
dangerousness,” and that he is not highly likely to reoffend, the examiners and
the district court disagreed, and the record supports their opinions and
conclusions. Furthermore, the United
States Supreme Court has stated that civil commitment does not violate an
individual’s right to equal protection of the law so long as the state has a
rational basis for selection of the group to be committed.
Void for Vagueness. Appellant argues that the term “adequate control” in the sexually dangerous person statute is unconstitutionally vague.
The Minnesota Supreme Court has
clarified that the sexually dangerous person statute allows the civil
commitment of persons who, because of their disorder or dysfunction, cannot
adequately control their sexual impulses and are highly likely to engage in
harmful sexual acts in the future. In re Linehan, 594 N.W.2d 867, 876 (
Appellant’s argument that the district court disregarded the threat to the public and his need for treatment also lacks merit. The examiners focused on these factors in their analyses of whether appellant should be civilly committed for treatment and determined that appellant’s mental disorder made him unable to exercise adequate control. Both examiners considered appellant a high threat to the public, requiring treatment at the MSOP.
Double Jeopardy. Appellant argues that he was “retried on the crimes for which he was convicted in criminal court.”
The Minnesota Supreme Court has
rejected the argument that commitment under either the sexually dangerous
person or the sexual psychopathic personality acts violates double
jeopardy. Linehan IV, 594 N.W.2d at 871-72 (addressing double jeopardy
challenge to sexually dangerous person statute); Joelson v. O’Keefe, 594 N.W.2d 905, 911 (
Jury Trial. Appellant argues
that “the effect of indefinite commitment as a loss of liberty is equally or
more severe than all criminal sentences in