This opinion will be unpublished and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:

Willard John Hince.

Filed June 10, 1997


Peterson, Judge

Pennington County District Court

File No. P39522

Thomas Bennett Wilson, III, Gayle Gaumer, 4933 France Ave. So., Suite 220, Edina, MN 55410 (for Appellant Hince)

Hubert H. Humphrey, III, Attorney General, Paul Landskroener, Assistant Attorney General, 445 Minnesota St., Suite 900, St. Paul, MN 55101 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.



In this appeal from an indeterminate commitment as a sexually dangerous person, appellant Willard John Hince argues that (1) the district court determination that he is highly likely to engage in harmful sexual conduct is not supported by the record, (2) the district court failed to commit him to the least restrictive alternative, (3) he was entitled to a jury trial because the court found he committed fourth-degree criminal sexual conduct, a crime for which he had not been convicted, and (4) the court made an erroneous evidentiary ruling. We affirm.


At the initial commitment hearing, Hince stipulated to having engaged in a course of harmful sexual conduct. See Minn. Stat. § 253B.02, subd. 18b(a)(1) (1996) ("_sexually dangerous person_ means a person who * * * has engaged in a course of harmful sexual conduct as defined in subdivision 7a"). In an August 1982 assault, while on probation for a drug-related conviction, Hince vaginally and anally raped an acquaintance in her apartment and forced her to perform oral sex. He was convicted of first-degree criminal sexual conduct and incarcerated until his November 1987 supervised release date. In a June 1988 incident, Hince attempted to rape an acquaintance, again in her apartment, but she was able to free herself and lock him out. He was charged with fourth-degree criminal sexual conduct, but the charge was dismissed pursuant to a plea agreement leading to a conviction for his next offense. In that August 1988 assault, Hince kidnapped a victim he had met that day. He forced her to disrobe and perform oral sex, choked her, and raped her vaginally. He drove around with her most of the night until she was able to escape. He pleaded guilty to first-degree criminal sexual conduct.

The first court-appointed examiner, James Jacobson, Ph.D., diagnosed Hince with alcohol and cannabis dependency and an antisocial personality disorder. Dr. Jacobson concluded Hince is at high risk to engage in further sexual crimes.

Dr. Thomas Alberg, the second court-appointed examiner, testified that Hince was chemically dependent and has an antisocial personality disorder. He initially predicted Hince was "pretty likely" to commit some type of crime and without treatment, the likelihood was substantial. When he learned Hince had committed the two sexual assaults during the short time he was on supervised release, Dr. Alberg then found that without treatment, it was "certainly likely" Hince would commit another sex crime. Dr. Alberg felt that the least restrictive alternative treatment setting would be an inpatient chemical dependency program, coupled with inpatient sex offender programming, electronic monitoring, and mandatory drug and alcohol analysis.

Dr. Richard Friberg, Ph.D., an expert retained by respondent, described Hince as having a characteristic sociopathic personality. He concluded there was a high probability Hince would commit future sex offenses if not committed. Dr. Michael Farnsworth, the clinical director of the Minnesota Security Hospital, diagnosed Hince with alcohol/substance abuse with antisocial personality traits. Hince's criminal history and lack of sex offender treatment make him a higher risk to commit another sexual crime in the future. He is most likely to offend in the absence of chemical dependency treatment.

Bruce Clendenen, who directs programs for Reentry Services, Inc., testified that while there was a proposed plan for Hince to be admitted to Reentry House in 1993, this is no longer an option due to a lack of funding and Reentry's recommendation that Hince needs inpatient, long-term sex offender treatment. Lloyd Rath, Director of Court Services for Tri-County Community Corrections, testified that if Hince were not committed, he would be placed in the intensive supervision program. His placement would be problematical because he would have difficulty finding an appropriate place to reside. He would probably have to complete an inpatient sex offender treatment program before entering their sex offender outpatient program, which, in any event, may not be available due to funding cuts.

The trial court committed Hince for an initial period as a sexually dangerous person. A review hearing was then held. Dr. Anita Schlank, Clinical Director at the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC) at Moose Lake where Hince was held, testified that Hince was in a group of offenders who present a high risk of being highly probable to commit sexual offenses. She recommended he receive long-term intensive sex offender treatment in a secure facility.

Dr. Friberg testified Hince continues to be a sexually dangerous person in need of long-term residential sex offender treatment. Dr. Alberg testified that since being initially committed, Hince has gained some insight into and understanding of his history of sexual offending, but still needs a highly structured environment and further long-term intensive sex offender treatment.

Hince testified he now recognizes his need for treatment, but does not wish to receive it in a residential secure setting. Instead, he would like to move to Montana where his fiance lives and seek outpatient treatment there.


An appellate court will not weigh the evidence but "will determine if the evidence as a whole presents substantial support for the district court's conclusions." In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan II). Whether the record supports by clear and convincing evidence the district court's conclusion that the standards for commitment are met is a question of law to be reviewed de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

The trial court committed Hince as a sexually dangerous person. Minn. Stat. § 253B.02, subd. 18b(a) (1996); see Linehan II, 557 N.W.2d at 179 (explaining Sexually Dangerous Persons Act). On appeal, the only factor Hince contests is whether the evidence was sufficient for the district court to conclude that he was highly likely to engage in acts of harmful sexual misconduct in the future. See Minn. Stat. § 253B.02, subd. 18b(a)(3) (requiring that proposed patient be "likely" to engage in harmful sexual conduct in future); Linehan II, 557 N.W.2d at 180 (demanding that harmful sexual conduct be "highly likely").

The supreme court has cited six factors to consider in predicting whether a proposed sexually dangerous person poses a threat of harm, particularly if there is a large gap of time between the petition for commitment and the proposed patient's last sexual misconduct. Linehan I, 518 N.W.2d at 614 (setting out factors as applied to psychopathic personality commitment); Linehan II, 557 N.W.2d at 189 (applying same factors to prediction of harm for sexually dangerous person commitment).

Hince first contends the district court failed to apply the Linehan I factors. To the contrary, the district court made findings regarding expert testimony and other evidence that addressed the factors the supreme court set forth in Linehan I for courts to consider in predicting the likelihood of future harm. These included demographic information as well as evidence regarding the recency, severity, and frequency of Hince's violent acts, base rate statistics in predicting future harm, sources of stress, similarity of contexts in which Hince committed offenses to future contexts, and sex therapy treatment records.

Hince also contends that the district court's conclusions are not supported by the record. He contends the statistics do not show he is "highly likely" to offend. Citing his own testimony as to his crimes, his remorse, the benefits of treatment, and his intent to continue treatment if released, Hince argues the district court failed to make findings on some relevant factors, and the findings it did make do not show how Hince differs from the general criminal population.

The district court considered a variety of the factors that the supreme court stated in Linehan I were relevant to whether Hince was highly likely to commit future harm. Base rate statistics are not the sole factor upon which the district court must base its decision. Linehan II, 557 N.W.2d at 189. The "dangerousness prediction methodology is complex and contested." Id. The district court was not required to place a numerical probability on the likelihood of reoffending. Nor was the court required to average the experts' numerical predictions of harm. The district court had clear and convincing evidence from which to conclude Hince was "highly likely" to commit future harm.

Hince next contends that the district court erred in failing to commit him to the least restrictive program available. After committing a person indeterminately, the person must be placed in the least restrictive treatment program that can meet the person's needs. In re Pirkl, 531 N.W.2d 902, 910 (Minn. App. 1995) (least restrictive alternative for person committed as psychopathic personality was security hospital, review denied (Minn. Aug. 30, 1995)). The district court found the least restrictive alternative that meets Hince's treatment needs and provides adequate protection for society is indeterminate commitment to the MSPPTC at Moose Lake.

Hince contends that the least restrictive alternative would be a supervised release program through the Department of Corrections with community placement and close monitoring. The alternative Hince proposed was not available or appropriate. Several experts testified the MSPPTC was the least restrictive placement that could meet his needs. The district court had clear and convincing evidence from which to conclude that Hince should be committed there.

Hince next argues that he was entitled to a jury trial because the district court determined that he had committed fourth-degree criminal sexual conduct. He contends further that Dr. Friberg erroneously relied on the determination that he had a third criminal sexual conduct conviction. The district court, however, did not convict Hince of fourth-degree criminal sexual conduct; instead, it found by clear and convincing evidence he had committed the act. A district court may properly consider sexual assaults by a proposed patient that have not resulted in conviction. See Linehan II, 557 N.W.2d at 190 (statutory definition of "harmful sexual conduct" encompasses "[n]onviolent but sexually harmful acts"). The record shows that although the court indicated this was not a conviction, Dr. Friberg may have incorrectly considered it as a conviction for purposes of a sex offender screening tool at the hearing. Dr. Friberg also testified, however, that Hince's score was so high that an additional several points did not matter. In any event, Hince acknowledged his conduct constituted harmful sexual conduct within the meaning of the statute. Minn. Stat. § 253B.02, subd. 18b(a)(1).

Hince next challenges the district court's exclusion of evidence that Hince asserts shows the treatment program to which he was committed is a sham. Hince offered evidence that a particular committed person who successfully completed all phases of treatment and was pass-eligible nonetheless could not receive passes and enter the community. The district court sustained an objection to the evidence on relevancy grounds because the issue was whether Hince should be committed on an indeterminate basis, not whether, after commitment, passes are ultimately allowed.

A trial court's ruling on the admissibility of evidence will not be reversed absent a clear abuse of discretion. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994). Hince offered no substantive evidence that the treatment program was a sham, but instead offered evidence regarding one other patient. The district court had extensive evidence before it as to the nature of the treatment program. The district court did not abuse its discretion in finding the evidence Hince offered was irrelevant to the issue of whether Hince should be committed.