This opinion will be unpublished and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

A07-805

 

In the Matter of the Civil Commitment of:

Isaiah Charles Swedeen.

 

Filed September 25, 2007

Affirmed

Halbrooks, Judge

 

Pine County District Court

File No. PR-05-0019

 

Daniel Robert Bina, Bina & Guptil, 1639 Main Street North, Pine City, MN 55063 (for appellant Isaiah Swedeen)

 

Lori Swanson, Attorney General, Angela Helseth Kiese, Noah A. Cashman, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent State of Minnesota)

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant challenges his civil commitment as a sexually dangerous person (SDP), arguing that (1) the evidence is insufficient to support the commitment and (2) the district court erred by applying an incorrect standard for the SDP commitment.  We affirm.

FACTS

            Appellant Isaiah Charles Swedeen was born in Houston, Texas in February 1986.  He has two sisters, M.S., who was born in 1987, and C.S., who was born in 1989.  Appellant’s parents were alcoholics and drug abusers, and appellant’s mother left the family before C.S. was one year old.  All three children were sexually abused by their father, who also made the children available to other males for sexual favors.  In addition, the children were forced, as toddlers, to have sex with one another.

            When M.S. was three years old, she received medical care for a tonsillectomy.  A nurse noted a vaginal discharge that later testing showed to be gonorrhea.  A report to child protection resulted in the children’s removal from their father’s care and placement in foster care.  One-year-old C.S. was also found to have gonorrhea, and all three children, including then four-year-old appellant, were determined to have been severely sexually abused.  

The foster mother subsequently complained to social services about sexual activity occurring between appellant and his younger sisters.  While in foster care, the children received mental-health therapy.

            The children were adopted by the Swedeens when appellant was six years old, and the family moved from Washington to Minnesota when appellant was ten.  Appellant, whose school performance was adversely affected by the effects of his earlier diagnoses of Fetal Alcohol Syndrome and Attention Deficit/Hyperactive Disorder (ADHD), became more aggressive when he reached puberty.  He began to threaten to hurt his sisters, including threatening to slash M.S.’s throat, and once stated that he would rather spend his life in solitary confinement in a high-security prison for killing his family than continue living in the family home.  As a result, from December 2000 through May 2001, appellant attended weekly therapy sessions with William Fritsche, Ph.D.

            On May 15, 2001, appellant’s parents brought him to the emergency room at the Fairview-University Medical Center in Minneapolis after appellant threw a metal screw at his sister and threatened to “snap [her] neck.”  He was admitted to the adolescent psychiatric unit for eight days and diagnosed with ADHD; mood disorder not otherwise specified; and fetal-alcohol effects.

            After two days at home, appellant was readmitted in an “enraged” state after expressing thoughts about hurting himself or family members.  The second hospitalization lasted 15 days.  In addition to the former diagnoses, appellant was diagnosed with an organic personality disorder.

            Two days after his discharge, appellant began a series of placements in treatment facilities that lasted almost continuously from June 14, 2001, to July 12, 2002.  In the course of therapy with Thomas Micka, M.D., at the Catholic Charities Intensive Treatment Unit, where appellant was treated from June 27, 2001, to June 28, 2002, appellant admitted that his sexual abuse of his sisters “included everything,” on a monthly basis, beginning when he was six years old.

            On June 28, 2002, appellant was admitted to the inpatient psychiatric unit at Prairie at St. John’s in Fargo for suicidal ideation after an attempt to strangle himself.  Appellant was discharged on July 12, 2002, into the custody of the Pine County Sheriff’s Department to be transported to the Central Minnesota Regional Juvenile Center (CMRJC) for a hearing in a juvenile-delinquency proceeding.     

            Appellant was charged with four counts of felony criminal sexual conduct in the first degree.  Against his attorney’s advice, appellant pleaded guilty to two counts; the other two counts were dismissed.  A pre-disposition and psycho-sexual evaluation was ordered.  Michael O’Brien, M.Eq., L.P., noted in the psycho-sexual evaluation report that appellant was a “seriously disturbed young man” who expressed almost no empathy for his sisters and what they suffered as a result of his abuse of them.  O’Brien placed appellant in a “very high risk” category of adolescent sex offenders and recommended a secure long-term residential sex-offender-treatment program.

            The district court adjudicated appellant to be delinquent and placed him on indefinite supervised probation by Pine County Court Services.  He was also ordered to register as a sex offender, be fingerprinted, and provide a DNA specimen.  There were many conditions imposed on appellant’s probation, including successful completion of a residential sex-offender-treatment program.

            Appellant subsequently started treatment at the Anoka County Juvenile Sex Offender Treatment Program on September 3, 2002.  But by October 2, 2002, his probation officer reported to the district court that appellant’s mental-health issues precluded effective treatment there.  A hearing was held to amend the juvenile-delinquency disposition, and the district court ordered that appellant be transferred to the Minnesota Correctional Facility-Red Wing (MCF-RW), not committed to the commissioner of corrections but remaining in the control of Pine County.

            In March 2003, appellant disclosed that he had been engaging in sexual contact with a peer for the past month.

            Sixteen months after appellant was placed at MCF-RW, he reached 18 years of age.  His classroom behavior had deteriorated, and his academic performance regressed.  After 19 months, appellant was discharged from the program on July 21, 2004, to a community placement at Residential Services Inc. (RSI), a group home in Pine City.  

            Appellant was returned to MCF-RW on October 10, 2004, at the direction of his probation officer.  On January 14, 2005, appellant’s caseworker petitioned for appellant’s civil commitment as mentally ill and developmentally delayed.  Kenneth Dennis, Ph.D., was court-appointed to examine appellant.  Dr. Dennis diagnosed appellant with posttraumatic stress disorder; schizoaffective disorder, bipolar type; and borderline personality disorder.  Dr. Dennis recommended that appellant be committed to a residential facility to effectively treat his sexual offending behavior and mental illness.  Following other expert evaluations, a combined Jarvis and commitment hearing was held.  The district court ordered a six-month commitment to the Brainerd Regional Human Services Center (BRHSC) and granted the request for an order permitting the forced administration of neuroleptic medications.

            Patricia Scott, M.A., L.P., conducted appellant’s first post-commitment psychological assessment at BRHSC.  She determined that appellant was “at continued risk for initiating sex with vulnerable females and threatening them if they do not comply.”  In February 2005, Vicky LaPlant, a nurse practitioner who treated appellant with an administration of his medications after a clinical emergency, recommended that he be placed in a different facility with no access to female patients.  Appellant’s treatment plan addressed three issues:  mania or hypomania; anger management; and inappropriate sexual behavior history.  In May 2005, appellant reported taking more than 10 Ephedrine tablets.  On May 31, 2005, he twice left the campus without staff escort and, in an unrelated incident, threw a stick of deodorant that struck his roommate.

            The county petitioned for appellant’s civil commitment as an SDP and/or sexual psychopathic personality (SPP) in August 2005.  But after evaluating appellant, the court-appointed experts, James Alsdurf, Ph.D., and Mary Kenning, Ph.D., did not support commitment, instead recommending additional services and treatment.  The parties subsequently stipulated to a two-year continuance for dismissal, which the district court ordered on December 5, 2005.

            As a condition of the continuance for dismissal, appellant entered the inpatient treatment program at the Alpha House.  By January 2006, the Alpha House staff had prepared a letter to be sent to appellant’s mental-health worker, discharging appellant for his failure to comply with rules.  But before that was sent, appellant absconded from Alpha House on January 25, 2006.  He was found trying to buy a bus ticket to Wisconsin.

            Following a hearing before the district court, appellant was taken to BRHSC for a period of not more than 30 days, with a planned return to Alpha House for continued sex-offender treatment.  But appellant’s time at Alpha House was brief.  He was often angry, disruptive, and uncooperative.  After one outburst, appellant crushed his eyeglasses and tried to use some of the pieces as an instrument to cut his wrist.  Razorblades were also found in his possession. 

As part of his treatment at Alpha House, appellant was required to complete a written history of his sexual experiences, assaults, criminal behavior, and chemical use.  Alpha House records contain the following summary of appellant’s response:

Sexual History: [current sexual offense] I performed oral and vaginal intercourse on my 2 sisters.  The one was 5-15, and the other was 11-13.  I did this over 500 times on both sisters.  [other abuse or attempted rape] one other time, fondling, the penis of a 15 year old, [other sexually inappropriate or deviant behavior] Before 18, having a 16 year old suck me off, one time when I was 17 years old, After 18, having a 19 year old performed me off, I performed oral him off, I was 19 [sexual fantasies currently masturbating to] Seeing my fiancée, [when first raped or attempted rape] when I was six, [how many attempted rapes have you engaged in] 4, when my sisters said no I stopped [have you ever engaged in any sexual behavior with an adult male] yes, with a 19 year old.

 

            A hearing on the commitment file occurred on April 7, 2006.  The district court ordered that appellant be held at the Pine County Detention Center until arrangements could be made for placement at a mental-health facility.  Appellant was subsequently readmitted to the Minnesota Sex Offender Treatment Program – St. Peter (MSOP-SP) on April 10, 2006. 

            At trial, three experts offered their opinions regarding whether appellant meets the criteria of an SDP.  Dr. Alsdurf, who had not supported appellant’s civil commitment in 2005, testified that appellant now meets the criteria.  Specifically, Dr. Alsdurf stated that appellant is so “characteralogically” damaged, with “such deficient care qualities and such limited ability to regulate his self-behaviors” that he now sees appellant in a different way.  One development of significance to Dr. Alsdurf was the fact that although appellant had been given an opportunity to avoid commitment by going to Alpha House on a voluntary basis, he had not been successful.

            Dr. Kenning was called by appellant’s attorney.  Like Dr. Alsdurf, and contrary to her previous opinion, Dr. Kenning testified that it is now her opinion that appellant meets the SDP criteria.  Dr. Kenning stated that she changed her opinion because of the nature and content of appellant’s trial testimony, the information she had collected about community-placement options, and because of appellant’s behavior at Alpha House.  In Dr. Kenning’s opinion, appellant is highly likely to reoffend, mostly with family members but perhaps with others, and cannot be released into the community until treatment is completed.

            James Gilbertson, Ph.D., was also called by appellant’s attorney.  Dr. Gilbertson opined that appellant’s bipolar disorder fuels his “hypersexuality” and compromises his control and inhibitions in sexual and behavioral matters.  Dr. Gilbertson testified that appellant needs to be in a residentially based, 24-hour treatment facility and that there is only one facility that offers the features necessary to cover appellant’s needs—MSOP-SP.

            In an 89-page order, the district court made extensive, detailed factual findings and reached the conclusion that, based on clear and convincing evidence, appellant meets the statutory criteria for commitment as an SDP.  The district court ordered appellant’s interim commitment at MSOP-SP.  Following a 60-day review hearing, the district court concluded that the requirements of Minn. Stat. § 253B.02, subd. 18c (2006), continue to be met and ordered that appellant be indeterminately committed as an SDP. 

This appeal follows.

D E C I S I O N

The district court may civilly commit a person under the Minnesota Commitment and Treatment Act if the state proves the need for commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1(a) (2006).  Findings of fact by the district court will not be reversed unless clearly erroneous.  Minn. R. Civ. P. 52.01; In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  Due regard must be given to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01; Knops, 536 N.W.2d at 620.  “Where the findings of fact rest almost entirely on expert testimony, the [district] court’s evaluation of credibility is of particular significance.”  Knops, 536 N.W.2d at 620.  This court will not reweigh the evidence.  In re Linehan (Linehan III), 557 N.W.2d 171, 189 (Minn. 1996), vacated on other grounds, 552 U.S. 1011, 118 S. Ct. 596 (1997), aff’d on remand, 594 N.W.2d 867 (Minn. 1999).  But “[w]e review de novo whether there is clear and convincing evidence in the record to support the district court’s conclusion that appellant meets the standards for commitment.”  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).

I.

Appellant contends that the evidence is insufficient to support the district court’s determination that he should be committed as an SDP.  An SDP is 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).  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.  Id., subd. 18c(b) (2006) (stating that inability to control impulses is not required); In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999) (requiring high likelihood of recidivism). 

A.        Course of harmful sexual conduct

 

Appellant first argues that the evidence does not show that he engaged in a 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 denied (Minn. June 20, 2006).  The incidents establishing a course of conduct may extend over a long period, and the district court is not limited to considering only conduct that resulted in a criminal conviction.  See In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002) (stating that court may consider conduct not resulting in conviction); In re Irwin, 529 N.W.2d 366, 374 (Minn. App. 1995) (stating that conduct need not be recent).

The course-of-conduct standard does not require that the conduct actually create physical or emotional harm, but there must be a substantial likelihood of causing physical or emotional harm.  Ramey, 648 N.W.2d at 269.  In addition, there is a rebuttable presumption that conduct constituting criminal sexual conduct in the first through fourth degrees under Minn. Stat. §§ 609.342-.345 (2006) creates a substantial likelihood that a victim will suffer serious physical or emotional harm.  Minn. Stat. § 253B.02, subd. 7a(b). 

Appellant contends that his actions were not likely harmful to his sisters because they had been previously abused by their biological parents.  In support of this argument, appellant cites Dr. Kenning’s report, which refers to a psychological theory that young siblings who experience sexual abuse together and are emotionally neglected may later engage in sexual abuse with each other as a way to experience emotional closeness.  But Dr. Kenning clearly concludes that appellant’s abuse of his sisters did not serve such a purpose for them.  And at trial, all three experts testified that appellant’s actions created a substantial likelihood of serious emotional harm to his sisters. 

Appellant further argues that the district court erred in determining that appellant engaged in a course of harmful sexual conduct, in part, because Dr. Gilbertson used the SVR-20 psychological-examination tool to assess appellant’s risk of recidivism without interviewing appellant.  First, we note that Dr. Gilbertson was one of appellant’s choices of experts.  It is not clear from the record why Dr. Gilbertson did not interview appellant.  But to the extent that appellant’s argument has any merit, we also note that in determining that appellant meets the criteria of the SDP statute, the district court relied heavily on the opinions of Dr. Alsdurf and Dr. Kenning, as well as Dr. Gilbertson. 

Appellant also argues that the district court erred in relying on the statements provided by appellant and his sisters during the investigation of this matter because this evidence “is merely opinion testimony” that is unreliable.  But credibility determinations are left to the district court.  State v. Miller, 659 N.W.2d 275, 279 (Minn. App. 2003).  The district court recognized the concerns about the clarity of the statements from appellant and his sisters and the potential for outside influence.  Despite its concerns, the district court concluded that appellant “sexually assaulted his victims.”  This conclusion as well as the district court’s conclusion that appellant’s sexual abuse of his sisters had a substantial likelihood of causing physical and emotional harm to them is well supported by the record.

B.        Sexual, personality, or other mental disorder or dysfunction

Appellant concedes that this element is satisfied because he has a mental disorder. 

C.        Likelihood of engaging in acts of harmful sexual conduct

Appellant argues that there is insufficient evidence to support a finding that he is likely to engage in future acts of harmful sexual conduct.  The district court must find a high likelihood that the person will engage in further harmful sexual conduct.  Linehan IV, 594 N.W.2d at 876.  In making this determination, the district court should consider, among other things, the following factors:

(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 correlation 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.

 

In re Linehan (Linehan I), 518 N.W.2d 609, 614 (Minn. 1994). 

Appellant contends that the district court did not properly consider appellant’s ability to control his sexual impulses under Linehan IV.  In support of his argument, appellant cites the opinions that Dr. Alsdurf and Dr. Kenning reached in preparation for the December 2005 trial that did not support commitment. 

But after observing and reviewing appellant’s behavior while in treatment, the experts changed their opinions regarding the elements of the SDP statute at the June 2006 trial.  For example, Dr. Alsdurf testified that appellant has been repeatedly unable to complete treatment and that he is “unable to exhibit self control in the manner that would assure people that he’s not at risk to act out aggressively, whether that’s sexual or not sexual.”  And Dr. Kenning testified that appellant would have difficulty controlling harmful sexual behavior because of his disorders and that appellant is likely to engage in harmful conduct in the future.  Therefore, the record created at the June 2006 trial provides ample support for the district court’s determination that appellant’s disorders made it difficult for him to adequately control his sexual impulses.

            Appellant argues that the district erred in finding that he met the Linehan I factors.  Specifically, appellant contends that he has not acted out sexually in the last four years and is not at risk to reoffend because testing shows that he is not psychopathic, and he is attracted to non-coerced females.  But appellant sexually abused his sisters, who were non-consenting, coerced females, from the age of six.  Appellant admitted to his counselors that the abuse only stopped when he entered treatment.  And he has spent most of the last four years in inpatient treatment programs and has not had the opportunity to commit harmful sexual conduct against his sisters during that time. And even though he has been in treatment, appellant has acted in an inappropriate sexual manner toward female residents and nonresidents on several occasions. 

All three experts testified that they now believe that appellant is highly likely to commit future sexual offenses, but appellant argues that the district court erred in crediting this testimony.  At trial, appellant presented a challenge to the experts’ credibility on cross-examination.  For example, appellant questioned the methods and actuarial tools upon which the experts relied.  And appellant argued that Dr. Kenning and Dr. Alsdurf did not provide reliable recommendations because they relied, in part, on an incident of alleged sexual misconduct between appellant and another male, D.N.  But the district court considered these arguments and credited the expert testimony.  We defer to a district court’s ability to evaluate expert witness credibility.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  We will not disturb this credibility determination on appeal.

II.

Appellant contends that the district court erred by applying an incorrect legal standard in reaching its commitment decision.  First, appellant argues that the district court erred in relying on the rebuttable presumption that his sisters suffered serious physical or emotional harm because of appellant’s actions.  See Minn. Stat. § 253B.02, subd. 7a(b) (indicating that there is a rebuttable presumption that certain acts, including first-degree criminal sexual conduct, will cause a victim “to suffer serious physical or emotional harm”).  Appellant argues that the rebuttable presumption does not apply because he was not convicted as an adult and because Minn. Stat. § 253B.02, subd. 7a(b) says nothing about juvenile offenses. 

But appellant’s argument fails to recognize that the statutory presumption applies if a person commits conduct that is described in the criminal statutes; it does not matter if the person is actually convicted of such conduct.  See In re Monson, 478 N.W.2d 785, 789 (Minn. App. 1991) (stating that the “statute does not address convictions; it addresses behavior”).  The district court was clearly aware of this distinction and indicated that this case does not involve a dispute over the juvenile adjudication but instead a determination of whether appellant is a “sexually ill” individual.  The district court also stated that it was “convinced that [appellant] sexually assaulted the victims.”  Thus, the district court properly focused its analysis on appellant’s conduct in determining that the presumption applied.  Regardless of the statutory presumption, the district court also analyzed the facts of this case in great detail before determining that clear and convincing evidence showed that appellant engaged in a course of conduct that had a substantial likelihood of causing serious physical or emotional harm to his sisters.

Second, appellant argues that the district court erred when it conducted an analysis of the Linehan I factors, which are normally used in sexual-psychopathic-personality (SPP) cases to determine whether a person has an utter inability to control sexual impulses.  518 N.W.2d at 613.  The SDP statute does not require the state to prove that a person is utterly unable to control sexual impulses.  Linehan IV, 594 N.W.2d at 875.  Rather, the SDP statute requires something less: “a finding of future dangerousness, and then link[ing] that finding to the existence of a mental abnormality or personality disorder that makes it difficult, if not impossible, for the person to control his dangerous behavior.”  Id. (quotation omitted). 

Although the Linehan I factors are typically considered in SPP cases, the district court analyzed them here as a part of its overall determination of appellant’s likelihood of engaging in future harmful sexual conduct.  The district court repeatedly acknowledged that these factors are not required as a part of the SDP analysis.

After conducting its analysis, the district court determined that appellant not only lacks the ability to adequately control his sexual impulses but has an “utter lack of power to control his sexual impulses.”  In doing so, the district court found that appellant meets a higher legal standard than that required for commitment under the SDP statute.  Therefore, the district court did not err in applying the Linehan I factors to help determine that appellant would not be able to adequately control his sexual behavior.

Finally, appellant argues that even if the district court did not err in considering the Linehan I factors, the factors support a determination that appellant is not highly likely to reoffend.  In support of his argument, appellant again cites the expert reports that were submitted in preparation for the December 2005 trial.  But as respondent indicates, the district court considered the record as developed as of the June 2006 trial, and that record supports its determination that appellant is highly likely to reoffend. 

            Because the record demonstrates by clear and convincing evidence that appellant has engaged in a course of harmful sexual conduct, has manifested sexual or mental disorder or dysfunction, and is likely to engage in acts of harmful sexual conduct, we conclude that the district court properly determined that appellant satisfies the criteria for commitment as an SDP. 

Affirmed.

 



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.