This opinion will be unpublished and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

C3-96-1366

In the Matter of:

Wallace James Beaulieu.

Filed June 3, 1997

Affirmed

Davies, Judge

St. Louis County District Court

File No. P596600035

Hubert H. Humphrey III, Attorney General, Marsha Eldot Devine, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2128 (for appellant petitioner)

Michael W. Lien, Stauber & Lien, 1011 E. Central Entrance, Duluth, MN 55811 (for respondent Beaulieu)

Considered and decided by Davies, Presiding Judge, Norton, Judge, and Mulally, Judge.[*]

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

DAVIES, Judge

Appellant petitioner challenges the district court's dismissal of the petition for commitment of respondent Beaulieu as a sexually dangerous person. We affirm.

FACTS

Petitioner Patricia Adair, Warden at the Minnesota Correctional Facility, St. Cloud, filed a petition to commit Wallace Beaulieu as a sexually dangerous person shortly before the scheduled date for his supervised release from prison. Petitioner also moved to have Beaulieu held pending the hearing on the merits. The district court found probable cause to proceed, but declined to confine Beaulieu pending the hearing on the merits. Pursuant to his supervised release plan, Beaulieu was released from prison to a halfway house in Duluth.

At the hearing, Beaulieu stipulated that he had engaged in a past course of harmful sexual conduct. Specifically, Beaulieu had pleaded guilty to third-degree criminal sexual conduct, kidnapping, and third-degree assault for a 1990 incident that involved repeated rapes and assaults on the same victim. He had also pleaded guilty to criminal sexual conduct in the third degree for an assault in which he penetrated a 13-year-old girl vaginally, anally, and orally. The assault had started when he found her passed out on a bathroom floor during a party.

While in prison, Beaulieu participated in some sex offender and chemical dependency treatment. He was terminated from sex offender treatment and, although he completed chemical dependency treatment, his performance in that program was so poor that he was not accepted back into sex offender treatment.

At the hearing, the factors for commitment were addressed by James Gilbertson, Ph.D., the first court-appointed examiner, and Stephen Olmsted, Ph.D., the second court-appointed examiner. They testified Beaulieu had engaged in a past course of harmful sexual conduct and diagnosed Beaulieu with an antisocial personality disorder and alcohol dependency syndrome, chronic and continuous, in partial remission.

As to the likelihood of engaging in harmful sexual conduct in the future, Dr. Gilbertson found commitment appropriate, although he believed that Beaulieu presented a "mild to moderate risk," and recommended treatment in a residential setting. Dr. Olmsted believed that Beaulieu would have a "high risk for reoffending if he were to relapse in chemical use" and would have a "possible risk of reoffending even without [relapse] because of his lack of insight."

Dr. Richard Friberg, a psychologist, testified at the commitment hearing as petitioner's expert. His evaluation was based on a review of Beaulieu's records because Beaulieu's attorney refused to permit an interview. Dr. Friberg testified that Beaulieu had engaged in harmful sexual conduct and also diagnosed him with an antisocial personality disorder and chemical dependency. Dr. Friberg viewed Beaulieu as posing a significant risk to reoffend in the future.

Richard Lindberg testified that he had been Beaulieu's case manager for three weeks. According to Lindberg, Beaulieu had attended aftercare or Alcoholics Anonymous once a week, went to a Native American drop-in center several times, and received an initial intake evaluation by the Spectra program. Lindberg also testified that Beaulieu has a part-time job and that he has not violated any rules or conditions of his supervised release plan.

Dr. Jeff Ballou, also a psychologist, testified that the Spectra program provides outpatient treatment for sex offenders. According to Ballou, Beaulieu can receive individual therapy paid for by the Department of Corrections, but the department will not fund the outpatient group treatment while he is on work release. Once work release is completed, he can attend outpatient treatment funded by medical assistance.

The district court found that the factors for commitment as a sexually dangerous person had not been proved by clear and convincing evidence and dismissed the petition. The petitioner appeals.

D E C I S I O N

I.

Petitioner first contends that the district court erred when it concluded that Beaulieu did not need to be confined after the date for his supervised release from prison pending decision on the merits of the commitment petition. The court may order a proposed patient to be held "if it finds, by a preponderance of the evidence, that serious imminent physical harm to the patient or others is likely if the proposed patient is not confined." Minn. Stat. § 253B.07, subd. 7(d) (1996). The district court findings on this issue will not be reversed unless clearly erroneous. In re Galusha, 372 N.W.2d 843, 847 (Minn. App. 1985) (preliminary hearing in commitment as chemically dependent).

The district court held it would be "sheer speculation" to find serious imminent harm where Beaulieu had been imprisoned without mental illness and where he had committed no violent acts (except for a mutual fistfight three to four years ago). The court further noted that Beaulieu was subject to the provisions of his supervised release, violation of which would result in a return to prison, and that he would be residing in a halfway house and receiving sex offender treatment as well as electronic monitoring. On this record, we do not find the district court's decision against interim confinement to be clearly erroneous.

II.

In addressing the issue as to whether Beaulieu was likely to commit harmful acts in the future, the district court first noted generally that "the psychologists were not all that consistent to be of great aid." Further, the court noted that Dr. Friberg had never met Beaulieu and based his opinion only on the file.

Petitioner contends the district court erred when it discounted Dr. Friberg's testimony because a committing court may consider testimony from experts who have not interviewed a proposed patient. See In re Linehan, 557 N.W.2d 171, 176 (Minn. 1996) (Linehan II) (psychologist who did not examine Linehan concluded from written records that Linehan met criteria for various diagnoses and predicted that he was dangerous), pet. for cert. filed, ___ U.S.L.W. ___ (U.S. May 2, 1997) (No. 96-8876). But due regard must be given to the district court's assessment of the credibility of the witnesses. Minn. R. Civ. P. 52.01. A district court's assessment of the expert testimony is of particular significance when its findings are derived primarily from their testimony. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). Under these circumstances, we do not find error on this issue.

We caution that a proposed patient should not benefit from refusing to participate in an interview. In this case, however, the district court merely noted that Dr. Friberg had not interviewed Beaulieu.

III.

Petitioner challenges the district court's interpretation of the requirement in the sexually dangerous person commitment law that the proposed patient must have a sexual, personality, or other mental disorder or dysfunction. Minn. Stat. § 253B.02, subd. 18b(2) (1996). As petitioner acknowledges, the district court did find Beaulieu has a personality disorder, meeting this factor. We find it unnecessary to address the district court's reasoning further, except to note that the supreme court has extensively discussed and upheld the constitutionality of this requirement. Linehan II, 557 N.W.2d at 180-87.

IV.

The final issue is whether the district court committed clear error when it determined it was not "highly probable" that Beaulieu would engage in harmful sexual conduct in the future and that he should not be committed as a sexually dangerous person.

To commit a person as a sexually dangerous person, the petitioner is required to prove by clear and convincing evidence that, as a result of the proposed patient's course of harmful sexual conduct and the person's sexual, personality, or other mental disorder or dysfunction, it is likely that the person will engage in acts of harmful sexual conduct in the future. Minn. Stat. § 253B.02, subd. 18b; Linehan II, 557 N.W.2d at 179. The supreme court has required that the future harmful sexual conduct must be "highly likely" in order to commit a proposed patient under the sexually dangerous person statute. Linehan II, 557 N.W.2d at 179-80.

The supreme court has listed six factors that the district court should consider, if such evidence is presented, to predict whether a proposed patient poses a serious danger to the public in the future for purposes of a psychopathic personality commitment. In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (Linehan I). The supreme court later determined that these guidelines for the dangerousness prediction also applied to the sexually dangerous person commitment. Linehan II, 557 N.W.2d at 189. In this case, the district court found that there was insufficient evidence to show that it was "highly likely" that Beaulieu would commit dangerous acts in the future. The experts offered differing opinions as to the degree of Beaulieu's future dangerousness based on the relevant factors. On this record, we cannot say the district court clearly erred.

Affirmed.

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