This opinion will be unpublished and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
C7-96-155

William C. Beals,
Appellant,

vs.

Maria Gomez, Commissioner of Human Services,
Respondent.

Filed July 2, 1996

Affirmed in part, reversed in part
Amundson, Judge

St. Louis County District Court
File No. SCAP158

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

Hubert H. Humphrey, III, Attorney General, Allison M. Dibley, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for Respondent)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.

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

AMUNDSON, Judge

Appellant William Beals challenges the sufficiency of the evidence to support his continued commitment as a psychopathic personality and argues that his confinement constitutes double jeopardy. Respondent Commissioner of Human Services cross appeals, claiming that the appeal panel erred by denying the Commissioner's motion to dismiss. We affirm the appeal panel's denial of Beals's discharge petition and reverse the appeal panel's denial of the Commissioner's motion to dismiss.

FACTS

In 1992, Beals was committed to the Minnesota Security Hospital as a psychopathic personality. Prior to his commitment, Beals had pleaded guilty to first-degree criminal sexual conduct, third-degree assault, third-degree criminal sexual conduct, murder, and simple assault.

In 1995, Beals petitioned for a full discharge from his commitment. After a hearing, the special review board recommended against full discharge, and the Commissioner of Human Services denied the discharge petition. Beals then petitioned the judicial appeal panel and received a de novo evidentiary hearing.

At the hearing, Beals presented one witness, Dr. Ray Conroe, who is a psychologist. Dr. Conroe diagnosed Beals with (1) personality disorder not otherwise specified, with antisocial and passive/aggressive features; (2) alcohol dependence in remission; and (3) rule out post-traumatic stress disorder. He testified that Beals's continued treatment could not be achieved in an outpatient setting. Dr. Conroe concluded that he could not support Beals's petition because Beals continues to need inpatient treatment and supervision and because Beals would be a danger to society if he were released. Following Dr. Conroe's testimony, Beals rested.

The Commissioner then made a motion to dismiss, which the appeal panel denied. The Commissioner presented the testimony of Dr. Knutson, a psychologist employed by the Minnesota Security Hospital. Dr. Knutson agreed with Dr. Conroe's diagnoses of Beals. He believed that Beals did not sufficiently understand the effects that his behavior had on his victims and that Beals had not adequately addressed his responsibility for his past criminal behavior. Dr. Knutson concluded that Beals is not capable of making an acceptable adjustment to open society and that Beals would be a danger to society if he were released.

The appeal panel denied Beals's petition for discharge. This appeal followed.

D E C I S I O N

I. Sufficiency of the evidence

Beals contends the evidence was insufficient to support the appeal panel's finding that he is dangerous to the public and continues to require treatment as a psychopathic personality.

In determining whether a petitioner should be discharged, the appeal panel must consider whether 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); see also Call v. Gomez, 535 N.W.2d 312, 318 (Minn. 1995). On review of the appeal panel's denial of a discharge petition, this court must determine, after examining the record, whether the evidence as a whole sustains the appeal panel's findings. Enebak v. Noot, 353 N.W.2d 544, 548 (Minn. 1984).

Here, the appeal panel found that the Commissioner had proved by clear and convincing evidence that Beals

is not capable of making an acceptable adjustment to open society, continues to be dangerous to the public, and continues to need inpatient treatment and supervision in a secure facility.

Evidence supporting this decision includes: (1) Drs. Conroe and Knutson testified that Beals continues to need inpatient treatment and supervision; (2) both doctors testified that if Beals were released from his commitment, he would be a danger to society; (3) Dr. Knutson testified that Beals is not capable of making an acceptable adjustment to open society; (4) Beals did not participate in recreational activities in spite of the treatment staff's persistent recommendations that he do so; (5) Beals is argumentative, exhibits a high degree of immaturity when responding to others, and struggles with hostility; and (6) Beals plays the role of the victim and has poor social interaction skills.

We conclude the evidence supports the appeal panel's decision that Beals is not entitled to discharge.

II. Double jeopardy

Beals argues that his continued confinement places him in double jeopardy. The Minnesota Supreme Court held that "commitment under the psychopathic personality statutes is remedial and does not constitute double jeopardy." Call, 535 N.W.2d at 320. Thus, Beals's commitment does not constitute double jeopardy.

III. Motion to dismiss

The Commissioner contends the appeal panel erred by denying the Commissioner's motion to dismiss. The Commissioner's motion to dismiss is best characterized as a motion for involuntary dismissal pursuant to Minnesota Rule of Civil Procedure 41.02(b). This rule states:

After the plaintiff has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief. In an action tried by the court without a jury, the court as trier of the fact may then determine the facts and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

Minn. R. Civ. P. 41.02(b). The standard of review that is used in determining the propriety of directing a verdict is also applicable to motions for involuntary dismissal. Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980). Thus, this court reviews "whether the evidence and its inferences could have reasonably sustained a contrary verdict." Woodrow v. Tobler, 269 N.W.2d 910, 917 (Minn. 1978).

Here, Beals had the burden of going forward with the evidence. Minn. Stat. ' 253B.19, subd. 2 (1994). Beals, however, did not present any evidence supporting his petition. The only evidence that Beals presented was the testimony of Dr. Conroe, who testified that he could not support Beals's petition because Beals continues to need inpatient treatment and because Beals would be a danger to society if he were released. Because Beals failed to present any evidence supporting his discharge petition, we conclude that Beals failed to meet his burden of going forward with the evidence and that the appeal panel erred by denying the Commissioner's motion to dismiss. See Kranz v. Commissioner of Public Safety, 539 N.W.2d 420, 422 (Minn. App. 1995) (district court erred by denying appellant's motion for involuntary dismissal because the Commissioner did not present any evidence that the seizure of appellant was constitutional).

Affirmed in part, reversed in part.