This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of:

Howard Thorvald Krueger.

Filed April 29, 1997


Willis, Judge

Concurring Specially, Randall, Judge

Wright County District Court

File No. P0961114

Richard D. Clough, 116 Central Avenue, Buffalo, MN 55313 (for Appellant Krueger)

Hubert H. Humphrey III, Attorney General, Steven J. Lokensgard, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for Respondent)

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Willis, Judge.



Appellant was committed indeterminately as a sexual psychopathic personality and a sexually dangerous person. He appeals both commitments. We affirm.


Appellant, who was born in 1927, has a lengthy history of sexual misconduct. In 1953, he admitted to molesting a six-year-old girl in St. Paul. In 1955, he was convicted of felony lewd and lascivious conduct for fondling a six-year-old girl in California. This led to his initial commitment to a California state hospital for observation to determine whether he was a sexual psychopath. Although he was diagnosed with sociopathic personality disorder and alcoholism, he was not committed based on a determination that the incident was related more to alcoholism than a deviant sexual impulse. Appellant was returned to criminal court for further proceedings and was put on probation.

In 1959, appellant was convicted of contributing to the delinquency of a minor and in 1960 he was convicted of carnal knowledge, both as results of his relationship with a 17-year-old girl whom he took on overnight trips and whom he impregnated.

Between 1982 and 1988, appellant sexually abused a young daughter of friends, beginning when she was about seven years old. The abuse included fondling, digital penetration, and sexual intercourse, and he threatened to kill her if she reported the abuse. Appellant pleaded guilty to one count of first-degree criminal sexual conduct in September 1991.

Between about 1988 and 1990, appellant abused his daughter-in-law's younger sister, who was about 11 years old when the abuse began. The abuse involved various forms of fondling and resulted in appellant's February 1992 guilty plea to second-degree criminal sexual conduct. Appellant also fondled and sexually abused his six-year-old granddaughter between 1989 and 1991. He threatened that if she told anyone, she would no longer be able to live with her mother. He pleaded guilty to one count of second-degree criminal sexual conduct in March 1992 for that behavior.

In January 1991, appellant was arrested for criminal sexual conduct in the fifth degree. The victim testified at the commitment hearing that appellant had touched her sexually on a number of occasions, culminating in an incident when she was 19 years old in which appellant grabbed her breasts from behind hard enough to cause massive pain. The charges were not pursued, apparently because they led to an investigation of the sexual abuse of another victim.

Appellant also has a long history of a variety of other criminal charges, including drunk driving, nonsupport, grand larceny, writing bad checks, and assaults. He received an undesirable discharge from the United States Marine Corps Reserve for unfitness in 1956. He drank heavily in the 1960s and received treatment several times, but he did not stop drinking until about 1971, when he was hospitalized for high blood pressure caused by his drinking.

Appellant's criminal sentence expires in August 1998, and his supervised release date was in June 1996. A petition for his commitment as a sexual psychopathic personality and as a sexually dangerous person was filed in May 1996.

At the commitment hearing, two expert witnesses testified. Dr. James Alsdurf, the first court-appointed examiner, believed appellant had met all the criteria for commitment under the sexually dangerous person statute, but not the sexual psychopathic personality statute, based on Alsdurf's understanding of the requirement of an utter lack of control over sexual impulse. Dr. Harry Hoberman, a psychologist retained as an expert witness by appellant, believed that appellant met all of the criteria for commitment under both the sexually dangerous person and sexual psychopathic personality statutes. After this initial hearing, the district court committed appellant as a sexual psychopathic personality and as a sexually dangerous person.

A review hearing was held. At the hearing, Dr. Anita Schlank, the clinical director of the Minnesota Sexual Psychopathic Personality Treatment Center at Moose Lake, testified as to her conclusion that appellant engaged in a course of harmful sexual conduct. She believed that the Moose Lake facility could provide treatment for appellant. Dr. Hoberman reviewed appellant's records from Moose Lake as well as Dr. Schlank's 60-day report. Dr. Hoberman explained that this information did not cause him to change his opinions from those expressed at the initial commitment hearing. Finally, Dr. Michael Millard testified he did not believe that appellant should be committed as a psychopathic personality because he did not exhibit an utter lack of power to control his sexual impulses. However, Millard believed that appellant met the standards for a commitment as a sexually dangerous person.

The district court indeterminately committed appellant as a sexual psychopathic personality and as a sexually dangerous person, and he appeals.


This court will not reverse findings of fact unless they are clearly erroneous. In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991). Where expert testimony provides conflicting evidence as to the existence of a psychopathic personality, the district court must resolve the question of fact. In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). This court need not defer to the district court on a matter of law. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992). The question of whether clear and convincing evidence supports the district court's conclusions that the appellant meets the elements of the commitment statute is a question of law that will be reviewed de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

1. Appellant challenges his commitment as a sexual psychopathic personality pursuant to Minn. Stat. § 253B.02, subd. 18a (1996). A commitment requires "an identifiable and documentable violent sexually deviant condition or disorder." In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 513 U.S. 849 (1994). Usually there is a pattern of sexual assaults creating a danger of infliction of serious physical harm. In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994).

There may be instances where a pedophile's pattern of sexual misconduct is of such an egregious nature that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims such as to meet the requirements for commitment as a psychopathic personality.

Id. (emphasis added).

We first address appellant's claim that his "physical acts of penetration, and his squeezings, although painful, do not rise to the level of severe violence necessary for commitment" under the sexual psychopathic personality statute. See id. (unauthorized touchings and spankings by pedophile did not meet standard of harm necessary for commitment).

The district court here found "no question" that the conduct appellant engaged in was of the type likely to cause serious physical or emotional harm to the victims. It found that one victim in fact suffered serious emotional problems, experiencing flashbacks, nightmares, troubles with her relationships with men, thoughts about committing suicide, and the need for counseling. In addition to the emotional harm, the victims claimed appellant hurt them physically. The court specifically cited the serious physical harm suffered by the six year old when appellant inserted his fingers or penis into her small vaginal opening. The experts testified these victims had suffered significantly, and one explained that children who suffer abuse exhibit more psychological and behavioral problems than those not abused. In light of the expert testimony, evidence as to sexual misconduct, and the district court's findings, appellant's argument on this issue has no merit.

The next issue is whether there was clear and convincing evidence appellant exhibited an utter lack of power to control his sexual impulses, as required by Minn. Stat. § 253B.02, subd. 18a. The impulse must be "'uncontrolled and uncontrollable.'" Linehan I, 518 N.W.2d at 613 (quoting Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 274, 60 S. Ct. 523, 526 (1940), aff'g, 205 Minn. 545, 287 N.W. 297 (1939)). The supreme court has set out a number of factors to consider in determining whether an utter lack of control exists. See Blodgett, 510 N.W.2d at 915 (listing considerations that bear on individual's lack of power to control predatory sexual impulses, including nature and frequency of sexual assaults, relationship between offender and victims, offender's attitude, offender's family and medical history, and results of psychological testing).

Appellant argues as a matter of law that the evidence does not support the determination that he had an "utter" lack of power to control his sexual impulses, defining utter as meaning absolute or total and citing "any" dictionary. He contends that Dr. Hoberman did not use the correct definition of "utter," meaning absolute or total, because Dr. Hoberman qualified the amount of control appellant showed, and appellant relies on the testimony of the experts who concluded he did not meet the standard. Appellant cites his 20-year hiatus from sexual offending. He contends that the testimony of all the witnesses shows that he retained control over his impulses because he groomed his victims, planned his assaults, and, on occasion, stopped his sexual advances.

In considering this issue, the district court addressed the testimony of the experts as to their opinions about appellant's utter lack of control, as well as the Blodgett factors. Dr. Hoberman explained that given an available victim, available means, and available circumstances, appellant is utterly unable to control his sexual behaviors. Other experts also described appellant's lack of control. The district court extensively addressed the Blodgett factors. As to the nature and frequency of the sexual assaults, the court cited the evidence showing the number of actual sexual assaults on seven victims over four decades approached 100. The court cited the many types of sexual acts perpetrated on young girls, with severity suggested by the pattern that began with attempted intercourse with a six-year-old girl in the 1953 incident. As to the degree of violence, the court cited the young age of most victims, coupled with the intimidation exercised by appellant because of his size, age, relationship to them, adult position of authority, and threats. As to the relationship between offender and victims, the court noted appellant's victims have generally been young or adolescent girls who were within appellant's social sphere of control, and it cited an incestuous quality existing by the fact the victims included his granddaughter, the younger sister of his daughter-in-law, and young daughters of his friends. As to appellant's attitude and mood, the court noted that appellant adamantly denies almost all of his sexual misconduct, although at selected times he has admitted his offenses. Appellant claims the victims were lying at the initial commitment hearing. The court cited appellant's apparent lack of concern about consequences, lack of empathy for his victims, lack of remorse for his sexual misconduct, and lack of insight into his disorders, and the fact he cannot be believed. As to the offender's family and medical history, the court noted that although appellant has medical problems, they are not disabling and do not make him incapable of or unlikely to assault young girls sexually if the opportunity presents itself. The court noted appellant's history of disregard for his family's welfare, as shown by his failure to support his first two children, and his recent animosity toward his victims and his own family members, other than his wife. As to the results of testing and evaluation, the court found psychological testing consistently demonstrates appellant's impulsivity as a prominent personality characteristic. The district court was presented with clear and convincing evidence from which it could conclude appellant has an utter lack of power to control his sexual impulses.

The next issue is whether the district court properly found there was clear and convincing evidence appellant is highly likely to engage in harmful sexual conduct in the future. See Minn. Stat. § 253B.02, subd. 18a; see also Linehan I, 518 N.W.2d at 614 (listing factors to consider in predicting serious danger to the public). Appellant challenges the experts' use of base rate studies and statistics to predict his future dangerousness because the experts provided insufficient information as to their validity or accuracy.

In Linehan I, the supreme court stated that base rate statistics may be considered as one of several factors in determining the likelihood of future harm. 518 N.W.2d at 614. In a sexually dangerous person commitment case, the supreme court expanded on its view of the use of these factors in predicting future dangerousness. In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan II). It noted that the prediction of dangerousness requires a multi-factor analysis that is complex and contested, but rejected the argument that base rates are the sole basis for prediction. Id.

The district court extensively discussed the Linehan I factors, as well as expert opinions. It noted that Drs. Hoberman and Alsdurf both opined that appellant would be highly likely to reoffend if not confined in a secure environment, and Dr. Millard seemed to concur. Dr. Hoberman based his opinion on base rate statistics for rates of recidivism of individuals who committed crimes similar to appellant's, as well as on appellant's individual traits. Dr. Hoberman cited appellant's inability to recognize reality or to tell the truth, refusal to participate in any sex offender treatment program, denial of most of his offenses, lack of victim empathy, lack of insight into his disorders, lack of any remorse for his actions, his diagnosis of pedophilia and personality disorder, the test results of screening tests for psychopathic personalities, the similarity of appellant's recent sexual assaults to his sexual assaults in 1953 and 1955, his access to a large victim pool of female children of varying ages, and his plan to return to the same environment and location in which he committed his most recent sexual assaults.

The district court found that although appellant is 68 years old, his advancing years and medical condition do not eliminate the likelihood of future sexual assaults. The court noted that appellant has demonstrated a lifetime of pedophilic behavior toward young, vulnerable girls, and no demographic evidence exists suggesting the passage of time will affect this propensity. The court found that 40 years of sexually violent behavior with girls as young as six years old, five felony convictions of criminal sexual conduct, multiple arrests for simple assault, and appellant's history of physically abusing his wife and children clearly present a disturbing trend of continued sexual violent behavior. The court found appellant's threats to kill the young daughter of his friends and his threats to his six-year-old granddaughter as recently as 1991 that she would never see her mother again if she revealed appellant's abuse indicate his continuing and recent pattern of violent behavior within the meaning of the statute. The district court noted that appellant refuses to consider he even needs treatment and remains a basically untreated and dangerous pedophile and sex offender who has no significant insight into his behavior and no true remorse or empathy for his victims.

In the review order, the district court found that Dr. Schlank opined that appellant continued to meet criteria for commitment as a sexual psychopathic personality and a sexually dangerous person and that he presented a high risk for reoffending. Dr. Hoberman indicated his opinion has not changed and that appellant continues to be highly likely to reoffend. Dr. Millard found only a 60% chance appellant would reoffend, but the district court found the opinions of Drs. Hoberman and Schlank to be more credible than those of Dr. Millard.

We conclude that the district court properly considered all of the evidence, including the challenged base rate statistics. See Linehan II, 557 N.W.2d at 189. The record contains clear and convincing evidence to support the district court's decision. See Linehan I, 518 N.W.2d at 618.

2. We next address appellant's challenge to his commitment under the sexually dangerous person statute, Minn. Stat. § 253B.02, subd. 18b (1996). He briefly challenges the merits of his commitment and then focuses on constitutional claims.

The sexually dangerous person statute requires that the person

(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.

Id., subd. 18b(a). For purposes of subdivision 18b, it is not necessary to prove that the person has an inability to control his or her sexual impulses. Id., subd. 18b(b).

Appellant, however, argues that the definition of sexually dangerous person must be interpreted to require an utter inability to control sexual impulses for the statute to be constitutional. See Pearson, 205 Minn. at 555, 287 N.W. at 302 (upholding constitutionality of psychopathic personality commitment law based on requiring use of narrowing utter lack of control language). Appellant, however, acknowledges this court is bound by the supreme court's recent decision that rejected this argument. See Linehan II, 557 N.W.2d at 180-84 (rejecting argument that civil commitment under sexually dangerous person statute violates substantive due process). Thus, appellant's argument has no merit.

Next, appellant contends that the real purpose for his confinement is to warehouse and punish him, rather than treat him. He contends that the treatment program is "ineffective and a sham," citing testimony that no patients committed as psychopathic personalities have recently been released. Consequently, he contends his commitment violates substantive due process.

The district court made extensive findings as to the sex offender treatment program at the security hospital and Moose Lake. While programs for sex offenders have been offered at the security hospital since 1972, the current program was implemented in fall of 1993 and takes a minimum of 32 months to complete. The current program offers a comprehensive, cognitive, and behavioral treatment program with relapse prevention strategies providing the guiding therapies. Psycho-educational services are presented in a humane and nonpunitive manner within a secure environment. In addition to sex-offender-specific programming, other supporting services include medical, psychiatric, chemical dependency, educational, vocational, and recreational and leisure services. The evidence shows that this treatment program is available for appellant, should he choose to participate. See Call v. Gomez, 535 N.W.2d 312, 318 n.5 (Minn. 1995) (describing nature of program). Treatment is, therefore, available to appellant.

Finally, appellant very briefly asserts that his arguments as to the future likelihood of harm and utter inability to control his sexual impulses raised in his challenge to his psychopathic personality commitment apply to his sexually dangerous person commitment. We reject the argument as to likelihood of harm for the reasons discussed in the sexual psychopathic personality analysis. As discussed above, the utter lack of power to control sexual impulses is not an element of commitment as a sexually dangerous person. See Minn. Stat. § 253B.02, subd. 18b(b).


RANDALL, Judge (concurring specially).

I concur in the result.