This opinion will be unpublished and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
Ronald Lee Harrison
Filed December 11, 2007
Meeker County District Court
File No. 47-PR-06-1130
James S. Dahlquist, 270 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)
Lori Swanson, Attorney General, Angela Helseth Kiese, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent state)
Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.
In this appeal challenging his indeterminate commitment as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP), appellant argues that (1) the evidence is insufficient to support the district court’s findings that he is an SDP and an SPP, and (2) the indeterminate commitment statutes violate the constitutional right to due process. We affirm.
The civil commitment of appellant Ronald Harrisonfollowed a prison term for sexual abuse of two young children. In 1994, Harrison was convicted of eight counts of criminal sexual conduct for sexually abusing his nephew, J.L.K. This sexual abuse began in 1979 when J.L.K. was seven, and it occurred as often as two to three times per week for a period of 11 years. In a separate trial in 1994, Harrison was convicted of three counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct for sexually abusing D.W.M., the son of Harrison’s friends. Harrison’s sexual abuse of D.W.M. began in 1992 when D.W.M. was seven years old, and it occurred on approximately ten separate occasions.
During the sexual-abuse proceedings relating to J.L.K. and D.W.M., seven additional victims were documented through evidence admitted under Minn. R. Evid. 404(b) (Spreigl evidence), victim-impact statements, and other evidence. See State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965) (allowing other-crimes evidence for limited purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). R.E.A., Harrison’s stepson, testified that Harrison sexually abused him approximately twice per week for a period of two years, beginning in the early 1970s when R.E.A. was five years old. C.S.S., Harrison’s daughter, testified that Harrison sexually abused her on a daily basis between two and three years, beginning in 1976 when C.S.S. was five years old. P.R.S., Harrison’s neighbor and a friend of Harrison’s daughter, testified that Harrison sexually abused him between three and four times per month for two years, beginning in 1977 when P.R.S. was four years old. The state also presented evidence that Harrison sexually abused his niece, D.M.P., beginning in 1978 when she was seven years old. D.D.J., Harrison’s nephew, testified that Harrison sexually abused him several times, beginning in 1980 when D.D.J. was nine years old. Harrison’s stepdaughter, M.M.T., testified that Harrison sexually abused her every other weekend for one and one-half years, beginning in 1981 when she was eleven years old. And A.A.J., Harrison’s niece, testified that Harrison sexually abused her for several years, beginning in 1984 when she was five years old.
Harrison was sentenced to 180 months in prison for his abuse of D.W.M. and 120 months in prison for his abuse of J.L.K. During his incarceration, Harrison refused to participate in sex-offender treatment.
In August 2006, the state commenced civil-commitment proceedings. The district court appointed Dr. Peter Marston to examine Harrison. And at Harrison’s request, Dr. Thomas Alberg was appointed as the second examiner. During the civil-commitment hearing, J.L.K., C.S.S., M.M.T., A.A.J., and R.E.A. testified regarding sexual abuse by Harrison. Although Harrison denied sexually abusing anyone other than J.L.K. and D.W.M., the victims of the offenses of conviction, the district court found that the other victims’ accounts were credible and that Harrison’s denials were not. Drs. Marston and Alberg both opined that Harrison satisfied the criteria for civil commitment as an SDP and an SPP. And the district court found their opinions credible.
When ordering Harrison’s initial civil commitment as an SDP and an SPP, the district court found that clear and convincing evidence establishes the following: that Harrison engaged in a course of harmful and habitual sexual misconduct; that he suffers from sexual or personality disorders that cause him to lack adequate control over his sexually harmful behavior; and that he is emotionally unstable, engages in impulsive behavior, lacks customary standards of good judgment, and fails to appreciate the consequences of personal acts, which preclude him from being responsible for his personal conduct with respect to sexual matters. The district court also determined that, because it is highly likely that Harrison will engage in further harmful sexual conduct and has an utter lack of power to control his impulses to engage in harmful sexual conduct, he is dangerous to others and in need of treatment.
After Harrison’s 60-day evaluation, the district court ordered Harrison’s indeterminate commitment pursuant to Minn. Stat. § 253B.02, subd. 18b, c (2006). In doing so, the district court concluded that the statutory requirements for civil commitment as an SDP and an SPP continue to be met. This appeal followed.
Harrison argues that the
evidence is insufficient to support the district court’s conclusion that he
satisfies the requirements for commitment as an SDP and an SPP. We review the district court’s
civil-commitment decision to determine whether the district court complied with
the statutory prerequisites for civil commitment and whether the evidence
supports the district court’s findings regarding the commitment decision. In re Schaefer,
498 N.W.2d 298, 300 (Minn. App. 1993). Whether
there is sufficient evidence to satisfy the standard for civil commitment is a
question of law, which we review de novo.
In re Knops, 536 N.W.2d 616,
620 (Minn. 1995); In re Linehan, 518
N.W.2d 609, 613 (Minn. 1994) (Linehan I). But the district court’s findings of fact will
not be disturbed unless they are clearly erroneous. In re
McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). When reviewing the findings of fact, we do
not reweigh the evidence. In re Salkin, 430 N.W.2d 13, 16 (
For civil commitment as a “sexually dangerous person,” the petitioner must prove by clear and convincing evidence that the person:
(1) has engaged in a course of harmful sexual conduct . . . ;
Minn. Stat. § 253B.02, subd. 18c(a) (2006); see Minn. Stat. §§ 253B.02, subd. 17, and 253B.18, subd. 1(a) (2006) (standard of proof). The petitioner need not prove an inability to control sexual impulses. Minn. Stat. § 253B.02, subd. 18c(b) (2006). Rather, a sexually dangerous person is subject to civil commitment if his or her disorder or dysfunction prevents adequate control over sexual impulses and makes it highly likely that the person will reoffend. In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV); In re Civil Commitment of Stone, 711 N.W.2d 831, 836 (Minn. App. 2006), review denied (Minn. June 20, 2006).
Harrison maintains that he does not satisfy any of the elements for commitment as an SDP. In doing so, he “vehemently denies that he ever assaulted the Spreigl witnesses.” From his arguments, we glean that Harrison challenges the first statutory element, that he has “engaged in a course of harmful sexual conduct.” Minn. Stat. § 253B.02, subd. 18c(a)(1).
The district court found “Harrison’s testimony as a whole, including his statement regarding his offense history[,] . . . to be entirely inconsistent and incredible.” Such credibility determinations are within the district court’s discretion and will not be disturbed on appeal. See Minn. R. Civ. P. 52.01 (stating that reviewing court must give “due regard” to district court’s evaluation of witness credibility). Moreover, ample evidence exists in the record to support the district court’s conclusion that Harrison engaged in a course of harmful sexual conduct even without relying on the testimony of the seven Spreigl witnesses.
Harmful sexual conduct is conduct that “creates a substantial likelihood of serious physical or emotional harm to another.” Minn. Stat. § 253B.02, subd. 7a(a) (2006). Such conduct may be based on incidents occurring over a period of time. Stone, 711 N.W.2d at 837. These incidents need not be recent or have resulted in criminal convictions. Id.; In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002). To satisfy this element, it is sufficient that such conduct poses a substantial likelihood of causing physical or emotional harm. Ramey, 648 N.W.2d at 269. Harrison admits that he sexually abused J.L.K. and D.W.M. And even if we confine our analysis to these two victims, their testimony and the testimony of Drs. Marston and Alberg establish that Harrison’s repeated abuse of these victims constitutes a habitual course of harmful sexual conduct.
Notwithstanding his claim to dispute all elements of the SDP statute, Harrison does not specifically address the second element, which requires manifestation of a “sexual, personality, or other mental disorder or dysfunction.” Minn. Stat. § 253B.02, subd. 18c(a)(2). The district court’s findings as to this element, nevertheless, are supported by substantial evidence. Dr. Marston diagnosed Harrison’s conditions as pedophilia, with sexual attraction to both male and female children, and antisocial personality disorder. Similarly, Dr. Alberg diagnosed Harrison’s conditions as pedophilia and personality disorder, with antisocial features. The district court found both doctors’ testimony “credible and persuasive,” concluding that there was clear and convincing evidence that Harrison suffered from sexual or personality disorders. When “the findings of fact rest almost entirely on expert testimony, the [district] court’s evaluation of credibility is of particular significance.” In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003). Our review of the record establishes that the district court’s determination as to this element is well-founded.
Harrison also disputes that he is likely to engage in acts of harmful sexual contact, Minn. Stat. § 253B.02, subd. 18c(a)(3). When evaluating a person’s likelihood of engaging in additional dangerous behavior, the following six factors are considered:
(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.
Linehan I, 518 N.W.2d at 614 (examining likelihood of engaging in harmful sexual conduct under earlier civil-commitment statute).
Because there is no evidence of recent displays of sexual impulsivity or aggression during his confinement, Harrison argues, this statutory requirement has not been satisfied. But “recency” is only one aspect of the assessment of whether a person’s history of violent behavior suggests a likelihood of future harmful sexual contact. Id. During Harrison’s incarceration he has not had access to children, his target victim demographic group. Thus, his contention that the lack of recent abuse implies that he will not offend again is wholly unpersuasive. Moreover, severity and frequency also are relevant factors. Id. That Harrison sexually abused some of his victims as often as daily during the periods when he had access to them further undermines his argument.
Harrison also argues that, because he “has a very narrow victim pool” comprised “almost entirely from his and his second wife’s family,” he is not highly likely to engage in harmful acts of sexual conduct in the future. This argument is without evidentiary support. As the district court found, not only did Harrison sexually abuse family members, he also sexually abused a neighbor and the child of his friends. Moreover, Harrison’s diagnosed attraction to male and female children is broader than the victims that he preyed on as a result of the convenience presented by his access to them.
Our review establishes that there is strong, persuasive evidence supporting the district court’s determination that Harrison is highly likely to reoffend. Both Drs. Marston and Alberg testified that, based on their evaluations of the Linehan factors and various actuarial tools, Harrison is highly likely to engage in acts of harmful sexual conduct in the future. In addition, Harrison’s rejection of the opportunity to participate in sex-offender treatment during his incarceration further supports the district court’s finding that Harrison lacks insight into his offense behavior as well as the tools to prevent himself from reoffending. Accordingly, the district court’s findings regarding this element of the SDP statute are not clearly erroneous. Because there is more than sufficient evidence to satisfy the standard for civil commitment as an SDP, we affirm the district court’s commitment of Harrison as an SDP.
A “sexual psychopathic personality” is defined by statute as:
[T]he existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.
Minn. Stat. § 253B.02, subd. 18b (2006).
Civil commitment based on having an SPP requires a finding that at least one of the four statutorily-identified conditions exists “which render the person irresponsible for personal conduct with respect to sexual matters.” Id. The district court’s findings regarding this requirement rest on a sound evidentiary record. Dr. Marston opined that Harrison possesses all four conditions, and Dr. Alberg opined that Harrison “clearly possesses” more than one of the conditions. Finding this expert testimony credible, the district court determined that Harrison “exhibits conditions of emotional instability, impulsive behavior, a lack of customary standards of good judgment, and a failure to appreciate the consequences of his personal acts, thereby rendering him irresponsible for personal conduct with respect to sexual matters.”
The district court analyzed the SPP element relating to “a habitual course of misconduct in sexual matters,” Minn. Stat. § 253B.02, subd. 18b, in conjunction with the similar SDP requirement of a “course of harmful sexual conduct” required under Minn. Stat. § 253B.02, subd. 18c(a)(1). Incidents of sexual misconduct that are the same or similar satisfy this aspect of the SPP statute. Stone, 711 N.W.2d at 837. In light of the testimony establishing that Harrison sexually abused nine children over a period of more than 20 years in addition to the frequency of each child’s abuse, there is overwhelming evidentiary support for the district court’s determination that Harrison engaged in a habitual course of sexual misconduct.
To sustain Harrison’s commitment under the SPP statute, the record also must establish that he has “an utter lack of power to control [his] sexual impulses.” Minn. Stat. § 253B.02, subd. 18b. Factors that are probative of this element include the nature and frequency of the sexual assaults, the degree of violence involved in the sexual assaults, the relationship, if any, between the offender and the victims, the offender’s attitude and mood, the offender’s medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sexual impulse and the lack of power to control it. In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1992). In support of their opinions that Harrison lacked the ability to control his sexual impulses, Drs. Marston and Alberg relied on Harrison’s 20-year history of sexual abuse of children, his minimization of the offenses, his failure to take responsibility for sexually abusing J.L.K. and D.W.M. despite admitting the abuse, psychological test results that indicate a high risk of sexually reoffending in the future, his failure to participate in sex-offender treatment, and his lack of empathy or insight. In light of this evidentiary record, Harrison’s challenge to the district court’s determination that he lacks the power to control his sexual impulses is unavailing.
The district court also determined that Harrison presents a danger to others. Minn. Stat. § 253B.02, subd. 18b. This fourth element required for SPP commitment often is addressed by considering whether the past behavior was harmful and is likely to continue. See, e.g., In re Preston, 629 N.W.2d 104, 112 (Minn. App. 2001). The Linehan factors addressed above in section I.A. frequently are considered when “predicting serious danger to the public.” See id. (applying Linehan I, 518 N.W.2d at 614). As discussed in our analysis of the dangerousness element of the SDP commitment, the district court’s determination that Harrison is highly likely to reoffend is founded on substantial evidentiary support. Because each element for commitment as an SPP is supported by ample evidence, Harrison’s challenge to his commitment on this basis fails.
Harrison also contends that commitment as an SDP and an SPP violates his substantive due process rights. Because Harrison’s due-process arguments are minimally briefed and lack legal analysis, we need not address them. See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegation of violation of due process unsupported by constitutional analysis or citation). But we do so in the interest of justice. Minn. R. Civ. App. P. 103.04.
The constitutionality of the civil-commitment statutes presents a question of law, which we review de novo. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). Minnesota statutes are presumed constitutional. Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 299 (Minn. 2000). Harrison, therefore, has the burden of demonstrating beyond a reasonable doubt the alleged constitutional violation. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).
“[S]ubstantive due process protects individuals from ‘certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.’” Linehan IV, 594 N.W.2d at 872 (quoting Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990)). Minnesota’s SDP and SPP statutes “are the product of a delicate balancing between the legitimate public concern over the danger posed by predatory sex offenders and the fundamental right of those persons committed to live their lives free of physical restraint by the state.” Hince v. O’Keefe, 632 N.W.2d 577, 580 (Minn. 2001) (quotation omitted). When considering a similar challenge to the constitutionality of the SDP and SPP statutes, the Minnesota Supreme Court held that, “[s]o long as civil commitment is programmed to provide treatment and periodic review, due process is provided.” Blodgett, 510 N.W.2d at 916 (rejecting constitutional challenge to SPP statute); see also Linehan IV, 594 N.W.2d at 876 (rejecting constitutional challenge to SDP statute). As the Blodgett court observed, “even when treatment is problematic, and it often is, the state’s interest in the safety of others is no less legitimate and compelling.” 510 N.W.2d at 916.
Harrison argues that, because “the treatment program offered at [the Minnesota Sex Offender Program] has been either unwilling or unable to provide treatment which will return a committed person to the community,” his civil commitment as an SDP and an SPP violates constitutional guarantees of substantive due process. But Harrison may not assert a cognizable claim based on the denial of treatment until the right to treatment actually is denied. In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). To the extent that Harrison claims that treatment he has not yet undertaken will be ineffective, his challenge is premature. See In re Wicks, 364 N.W.2d 844, 847 (Minn. App. 1985) (“Generally, the right to treatment issue is not reviewed on appeal from a commitment order.”), review denied (Minn. May 31, 1985). Moreover, the Minnesota Supreme Court has concluded that the unlikelihood that treatment will successfully cure a committed person does not render the civil commitment unconstitutional. Blodgett, 510 N.W.2d at 916; see also In re Joelson,385 N.W.2d 810, 811 (Minn. 1986) (analyzing earlier version of commitment statute and concluding that although treatment was unlikely to “cure” appellant’s pedophilia, it “satisfies his statutory right to treatment and any constitutional right he may have to adequate treatment”). The absence of a guaranteed success rate in treatment at the Minnesota Sex Offender Program does not establish that civil commitment as an SDP or an SPP violates substantive due process. Therefore, Harrison has not demonstrated that his commitment as an SDP and an SPP is an unconstitutional denial of substantive due process.