This opinion will be unpublished and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

C6-96-1703

In the Matter of:

Edward Leon Howard, Sr.

Filed May 6, 1997

Affirmed

Harten, Judge

Olmsted County District Court

File No. P5-94-3220

William L. French, P.O. Box 6323, Rochester, MN 55903 (for Appellant)

Hubert H. Humphrey, III, Attorney General, John L. Kirwin, Sherry A. Enzler, Assistant Attorneys General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Raymond F. Schmitz, Olmsted County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904 (for Respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.

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

HARTEN, Judge

Edward Leon Howard appeals his commitment as a sexual psychopathic personality and a sexually dangerous person. We affirm.

FACTS

On November 30, 1994, a petition was filed seeking to commit appellant Edward Leon Howard as a sexual psychopathic personality (SPP) and as a sexually dangerous person (SDP). In October 1995, the Olmsted County District Court held an initial commitment hearing. The district court received exhibits, criminal and investigative records, evaluations, materials regarding sex offenders and victims, and testimony relating to appellant's condition.

Howard has a long history of sexual misconduct. During a 36 year period from 1951 through 1987, Howard molested at least 16 young females. While Howard was age 19 and serving in the armed forces in Korea, he went AWOL and had sexual intercourse with an 11-year-old Korean girl. At age 26, Howard had sexual intercourse with his 14-year-old sister and two younger girls she was baby-sitting. While married to his third wife, Howard sexually molested a seven-year-old girl while he simultaneously had sexual intercourse with his wife. Howard also prostituted his third wife to raise money; he masturbated while he watched her have sex with the men he brought home. While still married to his third wife, he married his fourth wife with whom he lived in a bigamous relationship for a number of years. Prior to 1979, Howard sexually molested the 13-year-old daughter of his fourth wife, and he admitted to Mayo Clinic psychiatrists that he had purportedly consensual sexual relations with the girl approximately twice a month for about a year.

On October 13, 1979, Howard was found guilty of criminal sexual conduct in the first degree for vaginally penetrating a nine-year-old child. After being released from prison for this conviction, he entered inpatient chemical treatment at Fountain Lake Treatment Center, which he completed on May 21, 1982. Within four to six months thereafter, however, Howard resumed drinking.

Between 1982 and 1987, Howard sexually abused a number of young girls. On August 10, 1987, at the age of 56, Howard pleaded guilty to three counts of criminal sexual conduct in the first degree and four counts of criminal sexual conduct in the second degree involving seven minor female children. As a result of Howard's guilty pleas, he was sentenced to 135 months in prison.

In November 1987, the corrections facility screened Howard for sexual offender treatment. The screening indicated that Howard was in great need of treatment and recommended placement in the treatment unit at MCF-Oak Park Heights. After Howard received chemical dependency therapy from July 1989 until July 1990, he completed the sex offender program in December 1991. In June 1992, Howard was transferred to MCF-Lino Lakes where he entered into a transitional sex offender program. Prison therapists James Berg and Kathleen Vetter testified at the commitment hearing regarding his therapy progress.

Three of Howard's victims also testified at the commitment hearing. C.G., Howard's step-granddaughter, testified that he sexually assaulted her on two separate occasions. The first incident occurred when C.G. was age seven. Howard organized a game of strip poker involving her; T.E. and B.E., two sisters; and S.E., the sisters' mother. During the game, Howard fondled C.G.'s breast and digitally penetrated her vagina. He also told the girls that he was going to give them a lesson in sex education, which consisted of his having sexual intercourse with S.E. while the girls were forced to watch. Howard sexually assaulted C.G. when she was eight years old by fondling her breast and vaginal area. C.G. also testified about an incident when she was age 11 or 12 and attended a slumber party at Howard's farmhouse, where T.E. and B.E. lived. Howard gave the girls alcohol to drink and forced them to watch sadistic and pornographic movies. C.G. testified about how Howard's sexual abuse affected her. She does not trust men, especially older men, and she has difficulty maintaining consensual sexual relationships. She also feels abandoned by her grandmother, who allowed Howard to abuse her, yet she feels guilty because her testimony could help to commit Howard, thereby rendering him unable to care for her grandmother.

T.E. and B.E. testified that they were sexually assaulted by Howard about every other day (sometimes multiple times in one day) over a period of three to four years when the girls and their mother lived in a farmhouse with Howard. T.E. testified to the effect of the abuse on her life. She has ongoing problems with alcohol and continuing nightmares, sleeps fully clothed, wears a coat at all times, and suffers from guilt and depression. B.E. testified that she has recurring nightmares involving Howard, difficulty in relationships with men, problems with alcohol and low self-esteem, and she feels extreme guilt because she knew about the abuse of her younger sister, which she was unable to stop.

In his testimony at the commitment hearing, Dr. Richard Friberg, a psychologist employed at MCF-Lino Lakes, diagnosed Howard as a pedophile and a chronic alcoholic, with a mixed personality disorder; he is narcissistic and has an antisocial and passive aggressive personality. Dr. Friberg performed a number of psychological tests on Howard as part of his evaluation. He testified that Howard has elevated scores on the psychopathic deviant scale and high scores for hypomania on the MMPI; both of these scores indicate a high likelihood of reoffending. Dr. Friberg also testified that of the 400 inmates he has evaluated for possible commitment, respondent is in the upper 10 percent in terms of his recidivism risk. Although Howard had some success with individual therapy, Dr. Friberg opined that Howard requires inpatient treatment.

In preparing to testify at the commitment hearing, psychologist Dr. James Jacobson, a court appointed examiner, reviewed documents, interviewed Howard, and conducted a series of psychological tests. Dr. Jacobson testified that Howard met both the SPP and SDP commitment criteria. He testified that Howard demonstrated no empathy for his victims, that he is a high risk for recidivism, and that he needs lifelong treatment to avoid reoffending.

Psychologist Dr. James Austin, another court-appointed examiner, evaluated Howard and testified that although Howard is likely to reoffend, that likelihood is not substantial. He opined that the court should take a chance and release Howard.

Finally, psychologist Dr. Harry Hoberman testified that he diagnosed Howard as a pedophile and a narcissist and that Howard meets the statutory criteria for commitment as both a SPP and SDP. Additionally, Dr. Hoberman testified that due to Howard's lack of victim empathy and dishonesty in self-reporting, he is at a very high risk for reoffending and needs in-patient treatment at the Moose Lake MSPPTC.

On January 19, 1996, the district court dually committed Howard as a SPP and SDP to the dual custody of the Minnesota Security Hospital at St. Peter and the Moose Lake MSPPTC.

On April 25, 1996, the district court held a final review hearing on Howard's commitment. As required by law, Dr. Schlank, Clinical Director of the MSPPTC, filed a treatment report with the district court. The report indicated that Howard's psychological test scores were still elevated and diagnosed Howard with pedophilia, alcohol dependency, and an antisocial personality disorder. Dr. Schlank also testified that Howard presents a high risk of future acts of harmful sexual conduct, is likely to reoffend, and continues to meet the criteria for both SPP and SDP. On June 14, 1996, the district court indeterminately committed Howard as a SPP and a SDP. The district court also found that the least restrictive available and appropriate treatment alternative was the MSPPTC treatment program. Howard appeals.

D E C I S I O N

Howard contends that there was insufficient evidence to support a finding that he is a SPP or a SDP. The petitioner must prove that a person is a SPP or a SDP by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (1996); Minn. Stat. § 253B.185, subd. 1 (1996) (procedures in section 253B.18 apply generally to SPP and SDP commitments). Factual findings will not be reversed unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). The appellate court will not reweigh the evidence. In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan II). Whether the record supports the district court's conclusions that the evidence establishes the necessary elements for commitment is a question of law that we review de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

Commitment as a SPP requires proof that a person: (1) has engaged in a habitual course of misconduct in sexual matters; (2) has an utter lack of power to control the person's sexual impulses; and (3) is therefore dangerous to others. Minn. Stat. § 253B.02, subd. 18a (1996). Commitment as a SDP requires proof that a person: (1) has engaged in a course of harmful sexual conduct; (2) manifests a sexual, personality, or other mental disorder or dysfunction; and (3) is therefore likely to engage in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18b (1996).

Howard argues that the evidence fails to support a determination that he is likely to inflict serious physical or mental harm on others because he did not inflict physical injury on his victims, and he only abused persons whom he knew. See In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (holding that defendant's history of unauthorized sexual "touchings" and "spankings" did not satisfy statutory requirements for commitment). In Rickmyer, the supreme court held that a pedophile's unauthorized sexual "touchings" and "spankings" did not constitute the kind of injury, pain, or other evil contemplated by the SPP statute. 519 N.W.2d at 190; see also In re Schweninger, 520 N.W.2d 446, 450 (Minn. App. 1994) (absent showing of violence, repetitive pedophile who was nonviolent does not meet standard for commitment), review denied (Minn. Oct. 27, 1994). Rickmyer further explained that:

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.

Rickmyer, 519 N.W.2d at 190.

The evidence of Howard's sexual abuse of his victims and its effect on them is obviously more serious than the "spanking" and "touchings" that the supreme court found insufficient in Rickmyer. The district court made specific findings concerning the number of Howard's victims, the frequency and extent of their victimization, and also found that they "were seriously and permanently harmed * * * physically, psychologically, and mentally" by Howard's abuse. These findings are supported by the evidence.

Moreover, concerning commitment as a SDP, there is a rebuttable presumption that criminal sexual conduct in the first, second, or third degree creates a substantial likelihood that the victim will suffer serious physical or emotional harm. Minn. Stat. § 253B.02, subd. 7a(b) (1996). The district court found that Howard pleaded "guilty to seven counts of criminal sexual conduct (three counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct) involving seven different young girls" and found that Howard's conduct "is presumed to create a substantial likelihood that the victim will suffer serious physical or emotional harm." Howard does not assert that he presented evidence to rebut this presumption. We conclude that the district court properly determined that Howard's conduct met the requisite standard of harm for commitment as both a SPP and as a SDP.

Howard also claims that there was insufficient evidence for the district court to conclude that he is highly likely to engage in future harmful sexual conduct. Howard argues that there has been no finding that it is "highly probable" that he will sexually harm others in the future. See Linehan II, 557 N.W.2d at 180 ("the due process clauses of both the federal and state constitutions require that future harmful sexual conduct must be highly likely in order to commit a proposed patient * * *.") (emphasis added); Minn. Stat. § 253B.02, subd. 18b(a)(3) (for SDP commitment, person must be "likely to engage in acts of harmful sexual conduct" in the future); Minn. Stat. § 253B.02, subd. 18a (for SPP commitment, requiring that person must be "dangerous to other persons"). The district court found "clear and convincing evidence that [Howard] is substantially likely to engage in acts of harmful sexual conduct" and "that he still presents a great risk to reoffend and to cause further harm." (Emphasis added). The district court's finding that Howard is "substantially likely" to engage in future acts of harmful sexual conduct was made before the supreme court in Linehan II required a finding that it is highly likely that the person will reoffend. We conclude that the district court's finding that Howard is "substantially likely" to reoffend is supported by substantial evidence and equivalent to a finding that Howard is "highly likely" to reoffend.

Howard's brief also challenges his commitment to MSPPTC as the least restrictive alternative and argues that he should be committed to Alpha House, a private treatment center. At oral argument, however, the parties agreed that this issue is now moot because Alpha House will no longer accept sex offenders under civil commitment. Therefore, we need not address this issue. See Weber v. Albrecht, 437 N.W.2d 77, 80 (Minn. App. 1989) (case will be dismissed as moot when there is an occurrence which makes a decision on the merits unnecessary or effective relief impossible).

Affirmed.