This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1941

Marvin L. Breland,

Appellant,

vs.

David Doth, Commissioner of Human Services,

Respondent.

Filed January 14, 1997

Affirmed

Huspeni, Judge

Judicial Appeal Panel

File No. 166

Gregory R. Solum, 5275 Edina Industrial Boulevard, Suite 105, Edina, MN 55439 (for Appellant)

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

Michael O. Freeman, Hennepin County Attorney, Karen Ann Roesler, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.

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

HUSPENI, Judge

This is an appeal from a decision of the judicial appeal panel affirming the order of the Commissioner of Human Services, which denied appellant Marvin L. Breland's petition for discharge from indeterminate commitment as a psychopathic personality. We affirm.

FACTS

Breland has a long history of criminal sexual assaults. He was committed for an indeterminate period as a psychopathic personality, and his commitment was upheld on appeal. In re Breland, No. C1-92-2491 (Minn. App. Mar. 30, 1993), aff'd (Minn. Feb. 4, 1994).

In 1995 Breland petitioned for discharge from his commitment.[1] The special review board recommended denying the petition, and the Commissioner of Human Services did so. Breland then petitioned the judicial appeal panel for rehearing and reconsideration.

At the hearing before the judicial appeal panel, Dr. Thomas Alberg, a licensed psychologist who interviewed Breland and reviewed his records, testified. Breland admitted his crimes to Dr. Alberg and did not blame his victims. Breland explained his belief that he was amenable to living in open society because he no longer thought the way he did in the past. If he were released, he planned to move to Minneapolis, obtain a job in business, and live at his mother's home.

Dr. Alberg described Breland's participation in treatment as minimal. While Breland cooperated initially, he stopped participating because he did not like the way he was treated and he felt betrayed because information from his group therapy sessions was used in his commitment case. Further, Breland had difficulties because of his limited academic skills. He received extra assistance and is enrolled in remedial academic classes.

Dr. Alberg diagnosed Breland as fitting the diagnosis of an antisocial personality disorder. He found Breland's condition had not changed substantially since his commitment, although he now has perhaps "a small understanding" of how his offenses affected others, and also realizes that if he reoffends he would likely be apprehended and incarcerated. Breland has made no progress in recognizing his sexual thoughts and how they affect him, he cannot identify his risk factors, and his only intervention strategy to prevent reoffending is his fear of incarceration.

Dr. Alberg concluded Breland was still a danger to society, continues to need inpatient sex offender treatment as well as remedial academic work, and cannot make an acceptable adjustment to society. The program at Moose Lake is able to meet his needs and is the best setting for him at this time.

After the close of Breland's case, the Commissioner of Human Services and Hennepin County moved to dismiss, contending Breland did not meet his initial burden of showing he met the standards for discharge. The appeal panel held Breland failed to establish a prima facie case for discharge and concluded he continued to need treatment for his sexual disorder and to pose a danger to the public.

D E C I S I O N

We view the appeal panel's dismissal of Breland's petition as a motion for involuntary dismissal pursuant to Minn. R. Civ. P. 41.02(b). On review, we consider whether the evidence and inferences, considered in the light most favorable to the adverse party, are sufficient to present a fact question. Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980).

A petition for discharge from commitment as a psychopathic personality will be granted only if 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); Call v. Gomez, 535 N.W.2d 312, 318 (Minn. 1995) (statutory discharge criteria in Minn. Stat. § 253B.18, subd. 15, apply to petition for discharge from psychopathic personality commitment).

After the Commissioner denied his petition for discharge, Breland sought review from the judicial appeal panel. See Minn. Stat. § 253B.19, subd. 2 (1994). In this proceeding, the petitioning party bears the initial burden of going forward with the evidence and the party opposing discharge then bears the burden of proof by clear and convincing evidence that the patient is in need of commitment. Id.; see Caprice v. Gomez, 552 N.W.2d 753, 757-58 (Minn. App. 1996) (upholding constitutionality of burden of proof provision), review denied (Minn. Oct. 29, 1996).

Breland first claims that the appeal panel improperly placed the burden of persuasion on him by requiring him to establish a "prima facie" case to avoid dismissal. A prima facie case consists of evidence that is sufficient "to get plaintiff past * * * a motion to dismiss * * *." Black's Law Dictionary, 1190 (6th ed. 1990). We interpret this merely to mean that the appeal panel concluded Breland did not meet his burden of going forward with the evidence to show he was entitled to discharge. See Minn. Stat. § 253B.19, subd. 2; Caprice, 552 N.W.2d at 757-58.

Breland also contends he met his burden of proof by presenting sworn competent evidence from Dr. Alberg, and argues that the panel may not engage in weighing of that evidence in deciding whether to grant a motion to dismiss. We disagree. Breland did not meet his burden of going forward by merely presenting evidence; the appeal panel must determine whether the evidence is sufficient to present a fact question. See Paradise, 297 N.W.2d at 155.

Finally, Breland argues that he did meet his burden of going forward with the evidence as to his discharge. He cites facts which he argues show he is capable of making an acceptable adjustment to society, that he is no longer a danger to society, and that he is no longer in need of inpatient supervision and treatment. These include his plans upon his release, his problem-free behavior while hospitalized, his acknowledgement of wrongdoing, and his lack of current inappropriate sexual thoughts. He believes that his fear of incarceration will prevent him from relapsing, and contends Dr. Alberg agreed. He also cites his lack of need for chemical dependency treatment or medication.

Good behavior while hospitalized is not definitive. In re Hofmaster, 434 N.W.2d 279, 281 (Minn. 1989). As to the determinative issues, Dr. Alberg testified Breland had not changed substantially since his incarceration, still needed sex offender treatment, still represented a danger to the public, and cannot make an acceptable adjustment to society. See Call, 535 N.W.2d at 319. He discussed the basis for his opinion, including Breland's lack of participation in treatment, his lack of progress in recognizing his sexual thoughts and how they affect him, his inability to identify his risk factors, and his lack of an appropriate intervention strategy.

Breland had a duty to go forward as to the statutory criteria and he did not do so. The appeal panel in upholding the Commissioner's denial of the petition for discharge properly determined that Breland failed to make the necessary showing.

Affirmed.

[ ]1 Breland also petitioned for transfer to a regional treatment center or provisional discharge, but only raises issues as to his petition for discharge on appeal.