This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-79

Michael Benson,

Appellant,

vs.

Maria Gomez, Commissioner of Human Services,

Respondent.

Filed June 4, 1996

Affirmed, Motion to Strike Granted

Kalitowski, Judge

Judicial Appeal Panel

File No. 143

James S. Dahlquist, 301 Fourth Avenue South, #270, Minneapolis, MN 55415 (for Appellant)

Hubert H. Humphrey III, Attorney General, Kathy Meade Hebert, Julie K. Harris, Assistant Attorneys General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for Respondent Commissioner of Human Services)

Ann L. Carrott, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for Respondent Douglas County)

Considered and decided by Short, Presiding Judge, Norton, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

In this psychopathic personality commitment matter, Michael Benson appeals from an order of a judicial appeal panel denying his petition for discharge from the commitment. We affirm.

D E C I S I O N

In October 1989, appellant Michael Benson pleaded guilty and was convicted of first-degree criminal sexual conduct under Minn. Stat.  609.342, subd 1(c) (1988) for a brutal rape. During court-ordered psychological testing at the Minnesota Security Hospital (MSH), Benson admitted to voyeurism, sadomasochism, fetishes (bondage and discipline), rape fantasies, and at least five other rapes. While incarcerated, Benson refused to participate in treatment programs for sex offenders.

In May 1993, at the conclusion of his sentence, the district court adjudicated Benson to have a psychopathic personality as defined by Minn. Stat.  526.09 (1992) (amended and recodified at Minn. Stat.  253B.02, subd. 18a (1994)). After a review hearing, the district court ordered Benson's commitment to MSH for an indeterminate period.

Benson appealed from this commitment, and this court affirmed in 1993, holding that the evidence supported both the district court's findings

that Benson has no control over his violent and abusive sexual impulses and is likely to reoffend and seriously harm others

and the district court's conclusion "that Benson should be committed as a psychopathic personality for an indeterminate period." In re Benson, No. C0-93-1357, unpub. op. at 2 (Minn. App. Nov. 9, 1993).

Pursuant to Minn. Stat.  253B.18, subd. 5, Benson petitioned respondent Commissioner of Human Services for discharge. The Commissioner referred the matter to a special review board and, on its recommendation, denied Benson's petition. Pursuant to Minn. Stat.  253B.19, subd. 2 (1994), Benson then filed a petition for rehearing and reconsideration of the Commissioner's decision. A three-member judicial appeal panel heard the matter de novo and affirmed the Commissioner's denial of Benson's discharge petition.

I.

Benson challenges his original commitment as a psychopathic personality, claiming there was insufficient evidence to show he had an utter lack of control over his sexual impulses. The same issue was addressed on direct appeal to this court in 1993. Benson, No. C0-93-1357, unpub. op. at 2.

An issue decided on direct appeal from a patient's original commitment cannot be reasserted. Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995); see also Ellis v. Minneapolis Comm'n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982) (holding "[c]ollateral estoppel precludes the relitigation of issues which are both identical to those issues already litigated by the parties in a prior action and necessary and essential to the resulting judgment"). Thus, Benson is collaterally estopped from challenging his original commitment.

II.

On appeal from a decision of a judicial appeal panel concerning whether a person adjudicated to have a psychopathic personality is entitled to discharge, the reviewing court must determine whether the evidence as a whole sustains the appeal panel's findings. Enebak v. Noot, 353 N.W.2d 544, 548 (Minn. 1984).

Benson contends he is entitled to discharge because the state failed to produce evidence that (1) he now has an "utter lack of control" over his sexual impulses and, therefore, remains a danger to the public, (2) he is unable to adjust to open society, or (3) he remains in need of inpatient treatment an supervision. We disagree.

The discharge procedure set forth in Minn. Stat.  253B.18 (1994), pertaining to persons committed as mentally ill and dangerous to the public, applies to persons with a psychopathic personality. Minn. Stat.  253B.185, subd. 1 (1994); see also Call, 535 N.W.2d at 318 (noting legislative intent that discharge criteria of section 253B.18 apply to persons committed as psychopathic personalities). Discharge is not appropriate unless the patient

is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.

Minn. Stat.  253B.18, subd. 15 (1994).

As long as the statutory discharge criteria are applied so that the person with a psychopathic personality is confined

for only so long as he or she continues both to need further inpatient treatment and supervision for his [or her] sexual disorder and to pose a danger to the public

the nature of the continued commitment is deemed to bear some reasonable relation to the purpose for which the patient was originally committed and is, therefore, justified. Call, 535 N.W.2d at 319. However, the mere showing that a person with a psychopathic personality no longer evinces an utter lack of control over his sexual impulses is not sufficient to justify discharge. Id. Utter lack of control is simply part of the threshold showing used to justify the original commitment. Id.

Benson argues there was unrefuted evidence that he met the criteria for discharge. We disagree.

1. Ability to adjust to open society

James Jacobson, Ph.D, a psychologist with experience in evaluating sex offenders, testified that Benson could not make an acceptable adjustment to open society and that, without treatment, Benson was "highly likely" to rape again. Likewise, Thomas Gratzer, M.D., a forensic psychiatrist at MSH, testified that Benson was likely to commit another sexual assault. The testimony of both experts provided sufficient evidence to support the finding that Benson is unable to adjust to open society.

2. Danger to the public

Benson argues he no longer poses a danger to society because he is now in control of his sexual impulses and has been convicted of only one rape. We disagree.

"[A] slight change or improvement in the person's condition is not sufficient to justify discharge" even when that change involves the ability to control one's impulses. Call, 535 N.W.2d at 319. Additionally, "good behavior in the artificial environment of a hospital is not determinative on the issue of dangerous to the public" especially where medical experts testify based on their own observations that the patient remains dangerous. In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985) (mentally ill and dangerous commitment) (citing State v. Ward, 369 N.W.2d 293, 296-97 (Minn. 1985)).

Although Benson's violent acts against MSH staff members did not involve sexual behavior, Benson has had no opportunity to act out sexually at MSH. Jacobson described Benson as a person typical of the "power sadistic rapist." Gratzer also testified that Benson was likely to rape again. Finally, John V. Austin, Ph.D., a court-appointed examiner and the only expert to recommend Benson's discharge, acknowledged the possibility that Benson would sexually assault in the future. We conclude the expert testimony provided sufficient evidence to support the appeal panel's finding that Benson remains a danger to the public.

3. Need for inpatient treatment and supervision

Jacobson testified that Benson needed continued inpatient treatment and supervision for help with his sexuality, anger, and sadistic tendencies. This testimony--especially when it is combined with evidence of Benson's assaultive behavior, his danger to the public, and his inability to adjust to life outside the protective environment of MSH--provided sufficient evidence to support the finding that Benson needs further inpatient treatment and supervision.

Because there was sufficient evidence under each of the criteria in Minn. Stat.  253B.18, subd. 15 to support Benson's continued commitment, we conclude that discharge is inappropriate.

III.

Benson contends that because he has the power to control his sexual impulses, his continued confinement is a pretext for punitive incarceration and, therefore, violates his Sixth Amendment rights by placing him in double jeopardy. We disagree. The Minnesota Supreme Court has rejected this argument stating that

commitment under the psychopathic personality statute is remedial and does not constitute double jeopardy because it is for treatment purposes and is not for purposes of preventive detention.

Call, 535 N.W.2d at 319-20.

IV.

Finally, the Commissioner moves to strike from Benson's appendix a 1993 psychological report which she claims is not part of the record on appeal. This court "will strike documents included in a party's brief that are not part of the appellate record." Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd 504 N.W.2d 758 (Minn. 1993). Because the report was not filed with the appeal panel, offered as an exhibit, or received into evidence, we grant the Commissioner's motion.

Affirmed, motion to strike granted.