This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).


In the Matter of:
Michael Allen Meyer.

Filed September 24, 1996
Klaphake, Judge

McLeod County District Court
File No. P1952

Michele Barley, 105 Second Avenue Southwest, Hutchinson, MN 55350 (for Appellant Michael Allen Meyer)

Michael Junge, McLeod County Attorney, Jody Winters, Assistant County Attorney, 830 East 11th Street, Glencoe, MN 55336 (for Respondent Petitioner)

Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Thoreen, Judge 1


Appellant Michael Meyer challenges his initial and indeterminate commitment as a psychopathic personality. Because we conclude that the trial court had clear and convincing evidence that Meyer should be committed indeterminately as a psychopathic personality, we affirm.

A sexual psychopathic personality 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. 18a (1994) (emphasis added). Proof of the need for commitment must be by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (1994); see Minn. Stat. § 253B.185, subd. 1 (1994) (providing generally that portions of chapter 253B relating to commitment as mentally ill and dangerous apply to sexual psychopathic personality commitment). Whether the record supports the trial court's conclusion that a person requires civil commitment is a question of law that is reviewed de novo. In re Linehan , 518 N.W.2d 609, 613 (Minn. 1994).
Meyer argues the trial court did not find specifically that he had engaged in a habitual course of misconduct. Minn. Stat. § 253B.02, subd. 18a. While he acknowledges the court found that he had inappropriate sexual contact with approximately 36 minors, he characterizes this contact as mainly innocent "tickling" and "wrestling." He further claims that he has not engaged in any sexual conduct in the past four or five years, except for one incident at a treatment center with another consenting adult.
The trial court specifically found that "Meyer's sexually inappropriate and violent conduct is habitual in the true meaning and sense of that statutory requirement." Meyer's sexual acts included fondling, masturbation, digital vaginal and anal penetration, and oral sex. Meyer himself acknowledged that "significant abuse" occurred with perhaps 14 of his victims. The incident with the allegedly consenting adult involved expressly prohibited sexual activity with another inmate who was of diminished intellectual capacity, and resulted in Meyer's discharge from a sex offender treatment program. Experts considered Meyer's sexual offending habitual based on the number of victims, the number of years he had been offending, the significant period of incarceration, and his relatively young age. The passage of four or five years, during which Meyer was confined, does not preclude the court from considering his earlier habitual behavior, especially where he engaged in prohibited sexual behavior during that time. See In re Buckhalton , 503 N.W.2d 148, 153 (Minn. App. 1993), aff'd , 518 N.W.2d 531 (Minn. 1994). The trial court had clear and convincing evidence to conclude Meyer engaged in a habitual course of misconduct in sexual matters.
Meyer argues that the utter lack of power to control his sexual impulses was not proven. Minn. Stat. § 253B.02, subd. 18a. He asserts Dr. Robert Beal, one of the court-appointed examiners, was admittedly unfamiliar with State ex rel. Pearson v. Probate Court of Ramsey County , 205 Minn. 545, 287 N.W. 297 (1939), aff'd , 309 U.S. 270, 60 S. Ct. 523 (1940), and did not make a distinction between uncontrolled and uncontrollable behavior. Under Linehan , 518 N.W.2d 613-14, Meyer contends Dr. Beal's testimony should be discounted. He cites Dr. John Austin's testimony that he did not exhibit an utter lack of power to control his sexual impulses.
Dr. Beal was familiar with Minn. Stat. § 253B.02, subd. 18a, the definition of a sexual psychopathic personality, and Linehan , one of the current cases interpreting the utter lack of control element of Pearson . Linehan , 518 N.W.2d at 614. He particularly cited the facts that Meyer discontinued treatment, and while in treatment he was so overwhelmed by his sexual urges that he still engaged in inappropriate sexual behavior, as the "supreme index" of being out of control. Other witnesses extensively addressed the issue as well, supporting the trial court findings as to utter lack of control. See In re Blodgett , 510 N.W.2d 910, 915 (Minn.) (factors to consider bearing on lack of power to control predatory sex impulse), cert. denied , 115 S. Ct. 146 (1994). Dr. Austin's definition was not consistent with that of the supreme court in Blodgett . The record supported the trial court's decision.
Meyer argues it is not likely that he will engage in future serious physical harm. Minn. Stat. § 253B.02, subd. 18a. Meyer cites Dr. Austin's testimony that it was unlikely he would commit another sexual offense within three years and that Meyer's continued participation in outpatient treatment and aftercare services would further decrease the risk. Meyer also notes that the county failed to produce any evidence regarding base rate statistics and concluded that he is at high risk to reoffend merely because he is an untreated sex offender.
The trial court heard from witnesses who testified as to factors relevant to a determination of future harm. See Linehan , 518 N.W.2d at 614. Dr. Beal specifically testified that male-preferred pedophiles, such as Meyer, have the highest recidivism rate, as opposed to persons with no preference for males or females. Further, lack of base rate statistics is not determinative where evidence as to other factors is presented. In re Bieganowski , 520 N.W.2d 525, 530-31 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Based on testimony by Dr. Beal and other witnesses, the court found Meyer exhibits high levels of most indicators of recidivism. He was young when he offended and is presently a young adult; he is a male-oriented pedophile, a group that has a high recidivism rate; he suffers from anxiety and depression; under his proposed release plan, he would live within a block of a rural school, an environment similar to when he was offending; he is emotionally immature and has never established an adult sexual relationship; and he has unsuccessfully participated in two treatment programs. These factors provide clear and convincing evidence as to the likelihood of future harm. See Linehan , 518 N.W.2d at 614.
Meyer argues that the evidence does not reflect that he is a violent offender, and he has not inflicted and is not likely to inflict serious physical harm on his victims. The evidence of Meyer's perpetration of fondling, masturbation, digital vaginal and anal penetration, and oral sex on his young victims, after grooming them and often while they were sleeping, is much more serious than the "spanking" and "touchings" that the supreme court found insufficient in In re Rickmyer , 519 N.W.2d 188, 190 (Minn. 1994), or the fondling, exposure, and oral sex in which lack of control was not demonstrated in In re Schweninger , 520 N.W.2d 446, 447, 450 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). The evidence showed, and the trial court found, Meyer met the standard.
Meyer next challenges his indeterminate commitment. At the review hearing, if the court finds the patient continues to be a sexual psychopathic personality, the court shall commit the patient for an indeterminate period. Minn. Stat. § 253B.18, subd. 3 (1994); see In re Verhelst , 350 N.W.2d 494, 496 (Minn. App. 1984) (improper to commit patient indeterminately when no longer mentally ill and dangerous).
The trial court incorporated the record and file from the first hearing. See Minn. R. Civ. Commitment 12.06. Dr. Thomas Gratzer, the security hospital psychiatrist, testified and concluded Meyer met the standard of the sexual psychopathic personality statute. Psychologist Thomas Langsjeen agreed and offered similar testimony. Based on the facts from the initial hearing and the final hearing, the trial court had clear and convincing evidence to conclude Meyer should be indeterminately committed.
Finally, Meyer raises constitutional claims. Although the county argues Meyer failed to raise this issue to the trial court, these arguments can be found in Meyer's brief to the trial court. In any event, the Minnesota Supreme Court has recently upheld the psychopathic personality statute against the constitutional challenges Meyer raises. See Blodgett , 510 N.W.2d at 916.

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