This opinion will be unpublished and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

C9-96-1940

In the Matter of: Robert D. Hall.

Filed May 6, 1997

Affirmed

Schumacher, Judge

Hennepin County District Court

File No. P59560187

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

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Jay L. Arneson, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.

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

SCHUMACHER, Judge

Robert D. Hall appeals from his indeterminate commitment to the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC) as a sexually dangerous person and a sexual psychopathic personality, arguing the trial court did not have jurisdiction to order the commitment, there was not clear and convincing evidence to support the commitment, the commitment violated his constitutional rights, and the trial court erred in finding there was no appropriate less restrictive alternative to indeterminate commitment. We affirm.

FACTS

Hall is a 47-year-old man with a long history of assaults and sexually deviant behavior. Hall has been incarcerated for sexual assaults for most of his adult life.

Hall's deviant and dangerous behavior started when he was a juvenile. At age six or seven, Hall was reprimanded at school for choking little girls. At age 12 or 13, Hall started flashing and did some window peeping around age 14. Hall began stalking people and having fantasies of choking women during this time. At age 16, Hall began attacking women. Hall was subsequently arrested for five assaults, adjudicated delinquent, and placed on probation for one year. Those assaults included choking four of the victims and sexually fondling three of them.

At age 19, Hall was convicted for choking and sexually assaulting a woman. In 1970, after three weeks on parole, Hall was again arrested for choking a woman. In 1975, Hall transferred to a halfway house for sexual offenders. Hall participated in sex offender treatment until 1977, when in the final phase of treatment, Hall assaulted and raped a girl using a knife. Hall was sentenced for up to 20 years.

In 1990, Hall successfully completed a transitional sex offender program. Hall was released in May 1991, whereupon he completed an intensive two-month sex offender program. Hall participated in some sex offender programs for about 15 months after his release.

On July 4, 1992, however, Hall reoffended. Hall grabbed a woman by the neck, placed a knife at her throat, and said, "[D]on't scream or I'll cut your throat." Hall told the victim to expose her breasts. The victim struggled, and Hall was scared off. Two and a half hours later, Hall grabbed another woman around the neck and held a knife to her throat saying, "[D]on't say anything or I'll kill you." The victim struggled and Hall fled. Hall was arrested soon after. Hall was convicted of second-degree assault and attempted second-degree criminal sexual conduct. Hall was sentenced to 62 months and has been incarcerated ever since.

A petition for commitment was filed on May 4, 1995. On October 26, 1995, the trial court committed Hall as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP) to the MSPPTC. On August 9, 1996, the trial court indeterminately committed Hall as an SPP and an SDP. Hall appeals.

D E C I S I O N

1. Hall argues the trial court did not have jurisdiction to order commitment because the trial did not start within 44 days after the filing of the petition as required by Minn. Stat. § 253B.08, subd. 1 (1996). The record shows trial was initially scheduled for May 22, 1995. The trial court asked when both parties would be ready for trial, and they stated the second or third week in June. The trial court responded that it had a conflict and suggested the first week in July. Both parties agreed to the July trial date. Hall did not object to the postponement during the hearing or afterwards. Because neither Hall nor his counsel objected to the postponement of the trial, we conclude that Hall waived his statutory right. See In re May, 477 N.W.2d 913, 915 (Minn. App. 1991) (section 253B.08 conveys right that can be waived like any other right).

2. Hall argues there was not clear and convincing evidence to support the indeterminate commitment as both an SPP and an SDP. The trial court's findings will not be set aside unless they are clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).

Sexual Psychopathic Personality:

An SPP is a 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 (1996) (emphasis added).

Hall does not dispute that his past actions show a habitual course of misconduct. An utter lack of control over sexual matters can be demonstrated by

nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victim, offender's attitude and mood, the offender's medical and family history, [and] the results of * * * testing and evaluations * * *.

In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 513 U.S. 849 (1994).

The trial court found that Hall admitted to assaulting more than 40 women and raping eight. Hall has reoffended each time he was released. The trial court found that Hall choked most of his victims, but that his last three assaults were done with a knife. Hall threatened to kill his victims and has left them bruised. The trial court found Hall chooses his victims at random with no thought of the consequences. Hall does not empathize with his victims and continues to use pornography and have rape fantasies. Hall has been diagnosed with a number of disorders, including paraphilia and sexual sadism. The trial court extensively addressed and weighed the evidence and the relevant factors, and its finding on Hall's utter lack of control over sexual matters is not clearly erroneous.

Finally, the likelihood of danger to other persons element can be demonstrated by the (1) offender's demographic character; (2) offender's history of violence; (3) statistics of violence in offender's demographic; (4) sources of stress in offender's environment; (5) possibility of same contexts arising that trigger offender's dangerous behavior; (6) offender's record in sex therapy programs. In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (Linehan I).

The trial court addressed these factors. The trial court found Hall did not empathize with his victims and focused only on the effects his actions had on his life. Hall has admitted to more than 40 assaults and 8 rapes, including three attacks with a knife. The trial court found that Hall continues to use pornography and have sexual rape fantasies. Pornography stimulates Hall's fantasies, which trigger his behavior. The trial court found that Hall has had minimal success living in the community, his support network is too limited, and he chooses his victims entirely at random with no thought of the consequences or the location of the attack. Hall has not progressed since his initial commitment and has talked about suicide. The trial court properly addressed the factors to conclude Hall remained a danger to others. There was clear and convincing evidence from which to conclude Hall was an SPP and that indeterminate commitment was appropriate.

Sexually Dangerous Person:

A person is an SDP when he or she has: (1) engaged in a course of harmful sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another; (2) manifested a sexual, personality, or other mental disorder/dysfunction; and (3) as a result, is likely to engage in harmful sexual acts with a substantial likelihood of causing serious physical or emotional harm to another. Minn. Stat. § 253B.02, subd. 18b(a) (1996).

Hall does not dispute that his past convictions show he has engaged in a course of sexual conduct that harmed others. The second factor is also not disputed. Hall has been diagnosed with various disorders, including paraphilia and sexual sadism. The third factor is very similar to the SPP standard that the trial court found was satisfied. See In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan III) (applying Linehan I factors to SDP commitment). The trial court had clear and convincing evidence from which to conclude Hall was an SDP and that indeterminate commitment was appropriate.

3. Hall argues the indeterminate commitment as an SPP and an SDP violated his constitutional rights of substantive due process and equal protection. The Minnesota Supreme Court has upheld the constitutionality of the SPP and SDP statutes and both initial and indeterminate commitments. In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996) (Linehan II) (upholding indeterminate commitment); Linehan III, 557 N.W.2d at 182, 187 (upholding constitutionality of SDP statute and initial commitment); Blodgett, 510 N.W.2d at 916-17 (upholding constitutionality of SPP statute); State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 557, 287 N.W. 297, 303 (1939), aff'd., 309 U.S. 270 (1940) (same).

4. Hall argues the trial court erred in concluding there was no appropriate less restrictive alternative than indeterminate commitment.

The proponent of indeterminate commitment must prove by clear and convincing evidence that there is no appropriate less restrictive alternative. Minn. R. Civ. Commitment 12.06. The trial court is required to examine less restrictive alternatives once the decision to indeterminately commit is made. In re Schauer, 450 N.W.2d 194, 197-98 (Minn. App. 1990). This applies equally to commitment as an SPP and an SDP. See In re Pirkl, 531 N.W.2d 902, 906 (Minn. App. 1995) (SPP).

Hall suggested a less restrictive alternative would be release to a community program with intense supervision. Dr. Harry Hoberman, an independent psychologist; Dr. Sharon Satterfield, a court-appointed psychologist; Dr. Thomas Gratzer, a psychiatrist at the Minnesota Security Hospital; Dr. Raymond Knutson, psychologist at the Minnesota Security Hospital; and Dr. Anita Schlank, a psychologist at the MSPPTC; all stated that the Minnesota Security Hospital or the MSPPTC were the least restrictive alternatives. These professionals agreed that community-based programs either did not exist or were inadequate to treat Hall.

The trial court may commit the person to a more restrictive alternative where a less restrictive alternative does not exist, and the trial court cannot order a community to create a community placement. In re McPherson, 476 N.W.2d 520, 522 (Minn. App. 1991), review denied (Minn. Dec. 13, 1991). The trial court had clear and convincing evidence from which to conclude that indeterminate commitment to the MSPPTC was the least restrictive alternative.

Affirmed.