This opinion will be unpublished and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

A07-1290

 

In the Matter of the Civil Commitment of:
Donald Dean Christiansen, Appellant.

 

Filed December 11, 2007

Affirmed

Hudson, Judge

 

St. Louis County District Court

File No. 69DU-PR-06-451

 

Charles F. Clippert, 2677 County Road 10, Mounds View, Minnesota 55112 (for appellant Christiansen)

Melanie S. Ford, St. Louis County Attorney, Patricia Shaffer, Assistant County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, Minnesota 55802 (for respondent county)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            On appeal from an order for indeterminate commitment as a sexually dangerous person and as a sexual psychopathic personality, appellant argues that (1) there was not clear and convincing evidence that he met the statutory definitions of a sexually dangerous person or sexual psychopathic personality; and (2) his indeterminate commitment violated the double jeopardy and ex post facto clauses.  Because there was clear and convincing evidence that appellant met the definitions of a sexually dangerous person and a sexual psychopathic personality, and his commitment does not violate his constitutional rights, we affirm.  

FACTS

            Appellant was born in and grew up in California, lived in Arkansas for a number of years, and eventually moved to Minnesota in the mid-1990s.  Appellant contends that his aunt sexually abused him once when he was eight years old and his father physically abused him.  Appellant married twice and has three children.  Appellant reported that in both marriages he abused his wives, broke household items while angry, and had extramarital affairs.  The district court found that “[o]ver the years, [appellant] has consistently and repeatedly reported an extensive history of violence” and that appellant “has a history of use and abuse of alcohol and drugs since early adolescence.” 

Sexual Criminal History

            In 1979, while babysitting his three-year-old cousin, appellant orally penetrated her and digitally penetrated her vagina.  Appellant gained his victim’s compliance to perform the act by telling her that his penis was candy.  Appellant used drugs and alcohol at the time of the offense.  Appellant was convicted of first-degree carnal knowledge and served two years of a five-year sentence in the custody of the Arkansas Department of Corrections.  Appellant later confessed to the 1979 crime during sex-offender treatment but now denies the offense, asserting that his 1979 confession was coerced.  Appellant now contends that he only masturbated in front of the victim. 

            In 1995, appellant forced a 15-year-old girl, whom he met earlier that day, to have sexual intercourse with him in order for his victim to receive a ride home from a rural road on a stormy night.  Appellant admits to committing this crime.  After pleading guilty, appellant was convicted of third-degree criminal sexual conduct and sentenced to the custody of the Minnesota Department of Corrections for 36 months. 

            In 2001, appellant sexually abused his 13-year-old niece by penetrating her digitally and with his penis, once in the evening and once the next morning.  In the evening, appellant brought his niece to his apartment after telling her he had a gift for her and gained her compliance for the sexual assault by giving her drugs and cigarettes.  The following morning, appellant took his niece home and sexually assaulted her again while her family members slept.  Appellant told his niece that he would buy her marijuana if she would not tell anyone about the sexual assault.  Appellant admits to committing the offense.  Appellant was convicted of third-degree criminal sexual conduct and sentenced to the Minnesota Department of Corrections for 78 months.  At the time of the offense, appellant had just been released from his work-release program, was placed on parole, and registered as a sex offender.

Other Criminal History and Misconduct

            In 1981, appellant pleaded guilty to interfering with law enforcement.  In 1989, appellant was convicted of third-degree assault for choking his mother with a broom handle and kicking and threatening to kill his sister.

            After his release as a Level 1 sex offender in 1997, appellant absconded from the Mesabi Work Release program, where his release was revoked and he received 60 days’ accountability time.  After being released again later in 1997, appellant was convicted of driving while intoxicated, driving after cancellation, and driving with no insurance, and was sentenced to 90 days.  In 2000, appellant was convicted of misdemeanor driving while intoxicated and received a sentence of 60 days’ incarceration. 

            Appellant was released again as a Level 1 sex offender in July 2000, but his release was revoked in January 2001 “for use or possession of mood altering chemicals (marijuana), being in possession of a firearm or dangerous weapon (3-inch jagged blade knife and a pellet gun) and failing to follow instructions of agent and failing to keep agent informed.”  Thereafter, appellant received 180 days’ accountability time when an adult female reported that appellant threatened to stab her.  The adult woman later declined to cooperate with prosecution of the charges.  Appellant was released again to Bethel Work Release Center in July 2001 and was successfully discharged in September 2001.  Appellant also received several disciplinary violations while incarcerated.  These violations included sending a threatening letter to the mother of the 1979 sexual-assault victim.

Treatment History

            Appellant first received psychiatric treatment as an adolescent after he sliced his sister’s shoulder with a razor.  Appellant also received treatment or hospitalization for chemical dependency in 1986 and each year from 1992 to 1995. 

            In 1995, as part of a pre-sentencing investigation report, a psychologist diagnosed appellant as having dysthymia, polysubstance dependence, and anti-social personality disorder.  In addition, a November 1995 sex-offender assessment identified appellant as recidivistic and at high risk for acting out sexually, and recommended appellant for sex-offender programming. 

            Appellant participated in the Sexual Education and Evaluation Center at Stillwater from January 1996 to March 1996.  Appellant’s participation in the program was terminated after his involvement in a physical altercation with another inmate.  The discharge summary reported that appellant admitted to forcing his ex-wife and girlfriends to have sex with him in the past, and that he was physically abusive with them at other times as well.  Appellant successfully completed the program later in 1997.

            In 1997, appellant completed a 90-day Atlantis program at Stillwater.  Later in 1997, a licensed psychologist reported that the appellant’s “original MNSOST [was] significantly underscored, [with] failure to take into account sexual abusiveness towards ex-wives, threat of a weapon in the 1995 sexual offense, transporting the victim under duress and assault of an inmate in April 1996.”  Appellant also participated in the Institute for Sexual Health After Care Program from December 1997 until 1998, when he successfully completed the program.  In 1999, appellant participated in an aftercare program following an alcohol relapse and completed the Mesabi Work Release Chemical Dependency Program.  But thereafter, appellant was discharged from the Mesabi Work Release Aftercare Chemical Dependency Program for failing to maintain contact with the program. 

            In 2000, an initial psychiatric evaluation diagnosed appellant with “depressive disorder not otherwise specified, rule out generalized anxiety disorder, alcohol dependence, methamphetamine dependence, polysubstance abuse and paranoid personality disorder.”  Appellant completed the Medium Term Substance Abuse Program in 2000 and the Triad Chemical Dependency Program in 2001. 

            Appellant was referred to a Minnesota Sex Offender Program (MSOP) site in January 2003.  In June 2003, the MSOP completed an Initial Psychological Assessment of appellant.  The assessment noted that appellant stated that while sober he is most attracted to women his own age, but when he uses methamphetamine his “‘desires change’ and he becomes attracted to younger females around sixteen and seventeen years of age.”  Appellant was diagnosed with depression; paraphilia, not otherwise specified; alcohol dependence in a controlled environment; amphetamine dependence in a controlled environment; cannabis abuse in a controlled setting; and antisocial personality disorder. 

            In July 2003, the Sex Offender/Chemical Dependency Services Unit filed an amended/updated report regarding appellant.  The report indicated that based on two of appellant’s actuarial test scores, the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) and the Static-99, appellant had a moderate risk for sexual reoffending. 

            Appellant participated in the MSOP-DOC at Moose Lake, from May 2004 to January 2005.  Appellant was discharged from the program in January 2005 because he sent a threatening letter to his aunt, the mother of his 1979 victim.  Appellant received 30 days’ extended incarceration, had his custody status elevated, was discharged from the program, and received 360 days’ extended incarceration for failing to complete mandated treatment.   

Pre-petition Examinations

            In November 2004, the Sexual Psychopathic Person (SPP)/Sexually Dangerous Person (SDP) Review Team reviewed appellant’s Predatory Offender Report and forwarded the report to the St. Louis County Attorney’s Office to review for a possible civil-commitment petition.  In the report, the review team elevated appellant’s MnSOST‑R score to a +13, which indicated a high risk for sexual recidivism.  The report commented on appellant’s “broad victim pool,” the 21-year span of offense history, his high MnSOST-R score, and his untreated chemical dependence as reasons in favor of civil commitment.  The report diagnosed appellant with depression, NOS; rule-out dysthymia, chronic versus major depressive disorder versus adjustment disorder; pedophilia; methamphetamine dependence, forced remission; and antisocial personality disorder.  As part of the pre-petition civil-commitment screening process, St. Louis County retained the services of two independent experts, Dr. James Gilbertson, Ph.D., L.P., and Dr. Mary Kenning, Ph.D, L.P.  The experts recommended that appellant be considered for civil commitment as an SDP and an SPP. 

Commitment Hearing and Initial Order for Commitment

            At his commitment hearing on January 3 and 4, 2007, appellant provided extensive testimony.  Appellant denied his 1979 confession, alleging that the Arkansas police coerced him to confess to the crime after physically abusing him.  Appellant denied sexually abusing his ex-wives but admitted that there were arguments that “got loud at times and . . . out of hand.”   

            Appellant acknowledged that he is chemically dependent and has had significant problems with alcohol, methamphetamines, and amphetamines.  He admitted that his methamphetamine use causes him problems with controlling his sexual impulses.  He also admitted that his risk factors consist of adolescent girls, drugs, depression, being off his medication, and anger management, as well as the lack of a support system of people he can talk with.  But appellant also stated that he stopped taking his medications, including medication for depression and high blood pressure, and he started fasting by eating only one meal every two days.  In addition, appellant acknowledged that he “constantly” thinks about revenge or hurting people. 

            Appellant also testified as to the pain his offenses have caused his victims and his family: “Yes, I committed [the 1995 and 2001] offenses.  And it didn’t just hurt the people that I committed the offenses against – which that’s the ones it hurt the most.  But the families, it’s just tragic and it hurt a lot of people.”  He specifically acknowledged that he harmed his niece in 2001, causing her “serious emotional harm,” and that his acts led to her abusing drugs. 

            Appellant admitted that he needs “intense treatment” in a residential setting for his chemical-dependency and sexual-misconduct issues, but contended that the level of treatment he needs is offered at facilities other than the MSOP Department of Health and Services (DHS) site.  But he also stated that because he needs treatment, he asked to have his incarceration extended to the full 12 years, and he has thought about committing a crime in prison to keep from being released so that he can get treatment.   

            Sarah Herrick, a psychology supervisor/program lead at the Moose Lake MSOP-DOC, testified at the commitment hearing regarding appellant’s participation in the sexual-offender treatment program.  Ms. Herrick testified that appellant had “sporadic progress” in the MSOP program and explained that appellant “became very passive/aggressive,” “intimidating” to the staff, and “hostile.”  Ms. Herrick testified that appellant left the MSOP half completed as an “untreated sex offender.”      

            Two independent experts, Dr. Gerald Henkel-Johnson, Psy.D., L.P., and Dr. Paul Reitman, Ph.D., L.P., F.A.C.F.E., provided civil-commitment evaluations of appellant and testified at the commitment hearing.  Both experts concluded, based on their review of appellant’s file, an interview with appellant, test results, and actuarial tools, that appellant met the statutory criteria for civil commitment as an SDP and an SPP.  Both doctors diagnosed appellant with alcohol and amphetamine dependence, paraphilia, and antisocial-personality disorder.  In addition, Dr. Reitman diagnosed appellant with cannabis abuse and “R/O Pedophilia” and Dr. Henkel-Johnson diagnosed appellant with depression and “Rule Out Paranoid Personality Disorder.” 

            The experts both concluded that appellant portrayed a habitual course of harmful sexual conduct because he committed three sexual offenses over twenty years and continued to recommit “despite having consequences,” which indicated that his conduct is “resistant to change” and enduring.  Both experts found that appellant is impulsive.  Dr. Henkel-Johnson noted that appellant’s use of methamphetamine to “accelerate his sexual appetite . . . certainly increases the chances of one . . . engaging in a dangerous act of sexual behavior.” 

            The experts agreed that appellant sexually offended in a way that was psychologically harmful to his victims.  The experts also agreed that the victims likely had to undergo treatment for depression and stress as well as other psychological problems.  The experts reasoned that appellant’s niece likely suffered significant emotional harm; and Dr. Henkel-Johnson noted that because appellant’s latest victim was a relative, it would increase the level of harm because it was a “major trust violation, and that individual would feel more of an intrusion.” 

            In addition, both experts concluded that appellant is highly likely to reoffend sexually and is a danger to others.  The experts based their conclusion on appellant’s number of sexual assaults, the enduring length of his misconduct, substance abuse, wide victim pool, and his untreated sex-offender status.  Dr. Henkel-Johnson explained that appellant’s “fairly wide victim pool,” consisting of girls in the pre-pubescent, and post-pubescent age groups, increased his likelihood of reoffending. 

            The district court concluded that appellant meets the definitions of an SDP and an SPP under Minn. Stat. § 253B.02, subds. 18b-18c (2006), as shown by clear and convincing evidence.  The district court concluded that there was clear and convincing evidence that: (1) appellant engaged in a habitual course of sexual misconduct and a course of harmful sexual misconduct; (2) appellant’s sexual conduct creates a substantial likelihood of serious physical or emotional harm to others; (3) appellant is emotionally unstable, impulsive, lacks customary standards of good judgment, and fails to appreciate the consequences of his actions so that he has an utter lack of control over his sexual impulses; (4) as a result of his past course of harmful sexual conduct, his sexual, mental, and/or personality disorder, and his inadequate control over his sexual impulses, appellant is likely to reoffend in the future; and (5) appellant is a danger to society and needs intensive treatment in a residential secure program and there are no less-restrictive alternative treatments available to appellant.  The district court committed appellant to the MSOP in St. Peter and Moose Lake. 

60-Day Review Hearing and Order for Indeterminate Commitment

            For the 60-day review hearing, Dr. Penny Zwecker, Ph.D., L.P., filed a treatment report with the court.  The report concluded that there was no new evidence suggesting either that the previous assessment of appellant’s sexual offenses was inaccurate, that appellant has the ability to adequately control his sexual impulses, or that there is less of a risk to society since the time of his initial commitment.  The report further concluded that appellant’s needs would best be met in a residential setting and that the only Minnesota residential sex-offender programs available to him were with the MSOP in St. Peter and Moose Lake. 

            At the hearing, Dr. Amber Lindeman-Elderdge, a psychologist with the MSOP-DHS, testified that there was no evidence to suggest that appellant does not meet the SDP or SPP criteria.  Dr. Lindeman-Elderdge also testified that since his commitment appellant has displayed problematic behavior, including self-isolation, inappropriate comments to staff, and suspicious and mistrusting behavior towards staff and other patients.  In response, appellant explained that he isolated himself to avoid a security guard’s “dirty looks” and because of the “negative illegal behavior” that occurs at the facility.   

            Following the review hearing, the district court took judicial notice of its prior order and concluded that appellant continued to meet the statutory criteria for civil commitment as an SDP and an SPP by clear and convincing evidence.  The district court also concluded that involuntary commitment was necessary for the protection of appellant and others and that there was no alternative to involuntary commitment.  This appeal follows.

D E C I S I O N

I

            Under the civil-commitment statutes, a district court shall commit a patient to a secure treatment facility if there is “clear and convincing evidence” that the person is a sexually dangerous person or a person with a sexual psychopathic personality.  Minn. Stat. §§ 253B.18, subd. 1(a), 253B.185, subd. 1 (2006).  A district court’s determination that there is clear and convincing evidence to satisfy the statutory definition for an SDP or SPP is a question of law subject to de novo review.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I); In re Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  An appellate court will uphold the district court’s findings if they are not clearly erroneous.  Minn. R. Civ. P. 52.01; see, e.g., In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re Preston, 629 N.W.2d 104, 110 (Minn. App. 2001).

Commitment as an SDP

            Appellant challenges the district court’s determination that there was clear and convincing evidence that appellant committed a course of harmful sexual conduct so as to be committed as an SDP.  An SDP is a person who: “(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a; (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 as defined in subdivision 7a.”  Minn. Stat. § 253B.02, subd. 18c (2006).  The statute also defines “harmful sexual conduct” as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.”  Id., subd. 7a(a) (2006).  Appellant acknowledges that because he was convicted of third-degree criminal sexual conduct, there is a rebuttable presumption that his conduct meets the definition for “harmful sexual conduct.”  Id., subd. 7a(b) (2006).  

            Appellant argues that his sexual misconduct did not constitute a “course” because his offenses occurred over a 20-year period and he lived in the community without reoffending between acts.  A “course,” by its ordinary definition, is “a systematic or orderly succession; a sequence.”  In re Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002) (quotation omitted), review denied (Minn. Sept. 17, 2002).  To determine whether a course of harmful sexual conduct occurred, a court first compares the facts of each incident to the SDP definition in the light most favorable to the district court’s conclusions and then considers whether the incidents together created a course of harmful sexual conduct.  In re Stone, 711 N.W.2d 831, 838 (Minn. App. 2006), review denied (Minn. Jun. 20, 2006).  To establish a course of conduct, however, the incidents of harmful sexual conduct do not have to be the same or similar type, recent, or consist only of convictions, and “the existence of a period in which a person has not committed sex offenses does not preclude a determination that he engaged in a course of sexual misconduct.”  Id. at 837–38; see also In re Robb, 622 N.W.2d 564 (Minn. App. 2001) (affirming district court’s determination appellant was an SDP based, in part, on several years of sexual misconduct and several adolescent victims), review denied (Minn. Apr. 17, 2001).

            Here, the court found that appellant engaged in three sexual offenses from 1979 to 2001 with female victims aged three to fifteen, two of whom were his relatives.  The court found that appellant sexually offended against his 2001 victim twice in the same day and that his sexual offenses “involved multiple acts of sexual contact and/or penetration.”  In addition, the court found that appellant offended despite periods of incarceration and treatment interventions and while on probation and parole, and noted that in 2001 he sexually assaulted his niece hours after his release from a work-release program.  The court credited both experts’ testimony that appellant’s sexual offenses have been resistant to change and that because he reoffended after receiving prior punishment for his actions, his behavior is enduring.  The district court’s findings are supported by the record and are largely based on the testimony of two expert witnesses who determined that appellant engaged in a course of harmful sexual conduct.  Therefore, the district court did not err in concluding that appellant’s sexual misconduct constituted a course of harmful sexual misconduct sufficient to meet the definition of an SDP.  

            Appellant also argues that because his sexual misconduct was not as egregious as other committed persons, the district court erred in concluding that he was an SDP.  But the district court concluded that appellant’s pattern of behavior was egregious.  The district court noted that appellant sexually assaulted family members, which would result in serious emotional harm to his victims.  The district court also found that his offenses “involved multiple acts of sexual contact and/or penetration.”  In fact, appellant admitted that he committed these acts and admitted to the harm he caused.  Further, the court noted that appellant used force, manipulation, threats of harm, and grooming behavior by offering cigarettes and drugs to his victims to achieve compliance from his victims.  The record supports these findings, and therefore the district court did not err in concluding that appellant’s conduct was sufficiently egregious to constitute a course of harmful sexual conduct.  

            Therefore, the district court did not err in concluding that there was clear and convincing evidence that appellant engaged in a course of harmful sexual misconduct so as to meet the statutory definition of an SDP.   

Commitment as an SPP

 

            Appellant argues that the district court erred when it committed appellant as a sexual psychopathic personality (SPP) because he did not meet the dangerous-to-other-persons requirement in the statutory definition of an SPP.  An SPP is defined 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). 

            Appellant argues that behavior makes a person “dangerous to other persons” when it consists of violent sexual assaults that are likely to create a substantial likelihood of physical or mental harm.  And he argues that because he did not commit violence when he sexually offended, he does not meet the dangerous-to-others element of the SPP definition.  Appellant relies on Robb for this proposition. 622 N.W.2d at 571 (holding that there is “a need to show that a person is likely to commit violent sexual assaults,” meaning that the harm must be greater than the harm expected from a sexual assault, to show that the person is dangerous to others).

When assessing whether a person is dangerous to others, the court should consider: (1) the offender’s relevant demographic characteristics; (2) offender’s history of violence, including the “recency, severity, and frequency” of the violence; (3) “the base rate statistics for violent behavior among individuals of this person’s background”; (4) the offender’s predisposition to cope with stress with or without violence; (5) how similar the present or future context is to the past contexts in which the offender used violence in the past; and (6) the offender’s sex-therapy program record.  Linehan I, 518 N.W.2d at 614; see also In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan III), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d on remand, In re Linehan, 594 N.W.2d 867 (Minn. 1999) (Linehan IV). 

            Here, the district court properly considered and made detailed findings regarding the six Linehan factors outlined above when concluding that appellant is likely to reoffend.  The district court found that appellant is highly likely to reoffend based on his history of violent behavior, base-rate statistics, inability to handle stress, and lack of an adequate support system.  The district court specifically found that appellant has a history of non-sexual violence and has “engaged in assaultive, aggressive and threatening behavior” while incarcerated.  The district court noted that appellant’s non-sexual violence evidences appellant’s difficulty regulating and controlling his impulses, which are increased risk factors for sexual violence.  In addition, the court concluded that appellant’s sex-therapy record is “poor” and that he is an “untreated sex offender.”  The district court’s findings are well supported in the record.

            Furthermore, appellant’s reliance on Robb for the proposition that the sexual offenses must be violent in nature is misplaced.  We note that the standard for harmfulness for an SPP commitment was announced in In re Rickmeyer, 519 N.W.2d 188, 190 (Minn. 1994) (holding that sexual touches and spankings did not constitute the requisite type of injury or pain to meet SPP definition).  The standard, rather, is “sexual misconduct . . . of such an egregious nature that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims.”  Id. at 190.  Thus, egregious sexual misconduct, by the nature of the sexual acts themselves, can be considered violent and can provide evidence that a substantial likelihood of physical and mental harm occurred.  See Preston, 629 N.W.2d at 112 (holding that appellant used the amount of force necessary to sexually assault children and therefore met the dangerous requirement of the SPP definition); see also In re Kindschy, 634 N.W.2d 723, 732 (Minn. App. 2001) (holding that appellant was dangerous to others because he had repeated oral and anal sex with children, accompanied by threats of violence), review denied (Minn. Dec. 19, 2001).

            Here, both experts testified, and the district court found, that due to the nature of appellant’s sexual assaults, he likely inflicted serious mental harm on his victims.  In fact, both experts agreed that because appellant sexually assaulted his niece, she likely experienced substantial mental and emotional harm.  Further, in all three sexual assaults, there was evidence that appellant vaginally penetrated his victims, including the digital penetration of his 3-year-old cousin, the sexual assault of his 13-year-old niece, and the rape of a 15-year-old girl.  The district court found that appellant “used force, manipulation and threat of harm to achieve his sexual offenses . . . to establish control and domination.”  In addition, appellant admitted at the hearing that he likely caused severe mental and emotional harm to his victims.  Thus, the nature of appellant’s sexual offenses was such that they likely caused substantial mental harm to his victims, and as a result, they were sufficiently egregious and violent in their nature to meet the dangerous-to-others requirement of the SPP definition. 

            Based on the foregoing analysis, the district court’s findings are supported by the record and are not clearly erroneous.  Therefore, the district court did not err in concluding that there was clear and convincing evidence that appellant is dangerous to other persons and therefore satisfies the SPP definition. 

II

 

            Appellant argues that because there is no evidence that the Minnesota civil-commitment program is successful in rehabilitating patients, his indefinite commitment violates the double jeopardy and ex post facto clauses of the United States Constitution.  We review constitutional challenges to statutes de novo, and the challenging party must show beyond a reasonable doubt that the statute violates a claimed right.  Kindschy, 634 N.W.2d at 729.  Appellant concedes that the Minnesota Supreme Court has determined that the civil-commitment statutes for SDPs and SPPs do not violate the double jeopardy and ex post facto clauses.  Linehan IV, 594 N.W.2d at 872; Linehan III, 557 N.W.2d at 187–190. 

            Appellant argues that the civil-commitment statutes were validated “only because of the promise that a treatment benefit would be made available to the committed party.”  When validating the civil-commitment statutes, however, the court did not discuss a “promise” of treatment.  Instead, the supreme court held that the purpose of the civil-commitment statute was to treat and rehabilitate, and because its purpose was not “preventive detention,” the civil-commitment statute did not violate the double jeopardy or ex post facto clauses.  Linehan III, 557 N.W.2d at 187–89 (concluding because Linehan did not provide evidence that his treatment scheme was a “sham” or “ineffective,” the civil-commitment act was not “so punitive” as to trigger the ex post facto and double jeopardy clauses of the federal constitution).  Further, to be constitutional the treatment must satisfy the individual’s statutory right to treatment, but need not provide a cure to allow the individual to fully function in society.  Joelson, 385 N.W.2d at 811. 

            Appellant further contends that the district court failed to consider Dr. Reitman’s testimony regarding the ineffectiveness of the civil-commitment-sexual-offender treatment program and contends that because no committed persons are ever released, the program is not rehabilitative.  While Dr. Reitman noted that no one has been released into the sex-offender transitional treatment facility for civilly committed persons, he also testified that many individuals who are not amenable to treatment are civilly committed, and as a result, will likely never be rehabilitated.  Dr. Reitman did not testify that the committed-sex-offender treatment program was ineffective or that it would be ineffective for appellant.  In fact, Dr. Reitman contended that appellant seemed to be amenable to treatment and that indeterminate commitment for appellant would be helpful because he could receive individualized treatment for his various diagnoses.  See In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994) (“[E]ven when treatment is problematic, and it often is, the state’s interest in the safety of others is no less legitimate and compelling.”).  Further, this court will not review premature treatment claims.  In re Kennedy, 350 N.W.2d 484, 485 (Minn. App. 1984).  Because appellant does not provide any evidence indicating that his civil commitment, even if ineffective, constitutes preventive detention, appellant has not met his burden to show that his indeterminate commitment is unconstitutional.

            Appellant also asserts that the civil-commitment statute has become unconstitutional by its administration because it uses criminal convictions to commit its patients and is largely ineffective.  Appellant’s arguments were rejected in Linehan IV, where the court held that the statute is a civil statute and that because the state must prove some disorder or lack of control on behalf of the person committed, the statutes do not contain a deterrence element.  594 N.W.2d at 871–72.  While appellant makes general arguments about how the administration of the indeterminate-commitment statutes are unconstitutional, appellant does not cite to any legal authority for this proposition.  Moreover, appellant does not provide any evidence other than Dr. Reitman’s generalized statements regarding the treatment program to establish his claims.  Thus, appellant has not met his burden to establish that the indeterminate-civil-commitment statute is unconstitutional based on its administration.

Therefore, appellant has not met his burden to show that his civil commitment violated the double jeopardy or ex post facto clauses, and as a result, the district court did not err in committing appellant indefinitely as an SDP and an SPP.

Affirmed.