This opinion will be unpublished and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: Earl William Crocker.

Filed August 19, 1997


Schumacher, Judge

Winona County District Court

File No. P895242

Ross A. Phelps, 106 South Walnut Street, La Crescent, MN 55947 (for appellant Crocker)

Hubert H. Humphrey III, Attorney General, Alan Held, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Holtan, Judge.[*]



Appellant Earl William Crocker was initially committed as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP) and this court affirmed. The supreme court granted his petition for review and stayed the matter pending its resolution of related appeals. After those decisions were issued, the supreme court affirmed Crocker's appeal from his initial commitment. Meanwhile, a review hearing was held and the district court committed Crocker indeterminately as an SDP and SPP. Crocker now appeals from his indeterminate commitment. We affirm.


Crocker, born on March 24, 1928, has a lengthy history of rapes and other sexual assaults. Most recently, in 1986, he was found guilty of third-degree criminal sexual conduct and kidnapping. In 1992, Crocker pleaded guilty to second-degree assault for hitting a woman in the face with a snow shovel. The petition for commitment was filed before his scheduled release date from prison for his latest conviction. After a hearing, the district court committed Crocker to the Minnesota Security Hospital as a sexual psychopathic personality and a sexually dangerous person, and this court and the supreme court affirmed. In re Crocker, No. C0-95-2500 (Minn. App. Apr. 23, 1996), aff'd (Minn. Jan. 21, 1997).

A review hearing was held to determine whether Crocker's commitment should be made indeterminate. While at the security hospital and the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC), Crocker demonstrated his difficulty in following rules and authority, his rationalizations for his behavior, and his extreme negativity and hostility to the treatment program. Crocker refused to participate in treatment, contending he has no sexual problems, and would be in his mid-seventies when he completed the program. If discharged, Crocker planned to live with a 68-year-old female friend or return to Missouri where he was raised. Although denying any plans to drink upon release, he agreed to participate in Alcoholics Anonymous.

Crocker complained of chest pains and asserted his physical condition would prevent him from reoffending. Two physicians examined him: Dr. Gregory Peterson, who examined Crocker in accordance with the court's order, and Dr. James Epperson, who was Crocker's court-appointed medical doctor.

Dr. Peterson found Crocker's physical systems were normal, although Crocker refused examination of his genitalia and rectal areas. Crocker also refused a test that would have been conclusive as to the source of his chest pain, but other tests and the examination revealed his symptomatology was consistent with esophagitis and esophageal spasm rather than cardiac-based chest pain. Dr. Peterson concluded there was no evidence of a medical disorder of a sufficient degree to prevent him from reoffending or prevent him from participating in the treatment program.

Dr. Epperson agreed with Dr. Peterson that Crocker's descriptions were not consistent with a cardiac-based source of chest pain. Crocker told Dr. Epperson he was impotent and lacks libido and Dr. Epperson concluded he had organic impotence. Despite Crocker's physical problems, including impotence, Dr. Epperson believed he was capable of reoffending sexually.

Evidence as to the factors for commitment as an SPP and SDP were also received. Crocker stipulated that he had engaged in a past course of misconduct in sexual matters, establishing the first element for indeterminate commitment as an SPP and SDP.

At the review hearing, as at the initial hearing, the experts disagreed as to whether Crocker had an utter lack of power to control his sexual impulses and whether he was likely to be dangerous to others. Dr. Douglas Fox, respondent's expert, concluded Crocker met these standards, based on his history and lack of change since his initial commitment. Dr. John Austin, the second court-appointed examiner, disagreed, citing Crocker's age as well as his improved ways of thinking and handling problems since his commitment.

The experts agreed that Crocker manifested a sexual, personality, or other mental disorder or dysfunction. Dr. Thomas Gratzer, a psychiatrist at the Minnesota Security Hospital, and Dr. Fox diagnosed Crocker with paraphilia not otherwise specified, alcohol dependency in a controlled environment, antisocial personality disorder, and, possibly, borderline intellectual functioning. Dr. Austin diagnosed him with alcohol dependency in a controlled environment, personality disorder not otherwise specified, and adult antisocial behavior.

Testimony was also presented as to the least restrictive alternative. Crocker's 68-year-old female friend offered to allow Crocker to reside in her home. Dr. Gratzer and Dr. Fox recommended treatment in a secure inpatient treatment setting.

The district court committed Crocker for an indeterminate period of time to the Minnesota Sexual Psychopathic Personality Treatment Center as a sexual psychopathic personality and a sexually dangerous person, and he appeals.


This court will not reverse findings of fact unless clearly erroneous. In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991). The question of whether the record provides clear and convincing evidence to support the district court's conclusion that Crocker meets the standards for commitment is a question of law that will be reviewed de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

Evidence considered at the review hearing is properly limited to

(1) the statutorily required treatment report; (2) evidence of changes in the patient's condition since the initial commitment hearing; and (3) such other evidence as in the district court's discretion enhances its assessment of whether the patient continues to meet statutory criteria for commitment.

In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996) (Linehan III), pet. for cert. filed ____ U.S.L.W. ____ (U.S. May 2, 1997) (No. 96-8876).

1. Crocker challenges his indeterminate commitment as a sexual psychopathic personality.

"Sexual psychopathic personality" means the existence in any 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). These factors must be shown by clear and convincing evidence. Linehan I, 518 N.W.2d at 610. Crocker stipulated that he evidenced a "habitual course of misconduct in sexual matters," but challenges the other factors.

The supreme court has set out a number of factors to consider in determining whether an utter lack of power to control exists. In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 513 U.S. 849 (1994). Expert testimony on the issue is also relevant. See Linehan I, 518 N.W.2d at 613.

In the initial commitment, the district court, after making extensive findings of the relevant factors, concluded Crocker exhibited an utter lack of power to control his sexual impulses. The decision was affirmed. In re Crocker, No. C0-95-2500 (Minn. App. Apr. 23, 1996), aff'd (Minn. Jan. 21, 1997).

After the review hearing, the district court concluded that Crocker continued to meet this factor and that Crocker had not changed. Instead, he continued to be highly impulsive, was unable to control his anger, rejected authority and norms, minimized his offenses, believed he committed no wrong and is himself the victim, and obstinately refused to participate in treatment, claiming he will not benefit. The court again addressed the Blodgett factors, most of which relied on historical facts and had not changed. The court concluded that Crocker remained an untreated sex offender who had not developed any ability to control his sexual impulses, and continues to manifest an utter lack of ability to control his sexual impulses.

Crocker contends his condition has improved, he does not meet the statutory criteria, and the evidence does not support the district court's finding of an utter lack of power to control. Crocker cites Dr. Austin's opinion that he does not exhibit the requisite utter lack of control, the same opinion Dr. Austin had at the initial hearing. Dr. Austin also noted the positive changes that occurred since the initial commitment.

The district court was not compelled to accept Dr. Austin's opinion. See In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984) (holding district court is to resolve conflicting expert testimony on existence of psychopathic personality), review denied (Minn. Sept. 12, 1984). The court properly applied the relevant law and its findings of fact are not clearly erroneous.

Crocker also contests the district court finding that he continues to be dangerous to others. In determining the issue of future dangerousness, the supreme court has set out a number of relevant factors for the district court to assess. Linehan I, 518 N.W.2d at 614. These are particularly useful when there is a large gap of time between the date of the last act of sexual misconduct and the petition for commitment. Id.

Again, the district court, in its initial commitment, made extensive findings in support of its conclusion, which was affirmed. In the indeterminate commitment, the court found Crocker continued to demonstrate his dangerousness, and cited the testimony by Drs. Gratzer and Fox that he is highly likely to sexually offend unless confined, given his persistent and chronic history of sexually offending against various age groups. The court found he continues to present a high likelihood of reoffending because the bases for its initial conclusions were either historical or relating to his conduct since the initial commitment.

Crocker, however, claims that because he has not engaged in any sexual conduct since his initial commitment and because his last known sexual offense occurred over 11 years ago, he does not present a high likelihood of reoffending. The absence of sexual offenses while institutionalized does not necessarily demonstrate a lack of dangerousness. See In re Pirkl, 531 N.W.2d 902, 909-10 (Minn. App. 1995) (court rejected claim of lack of sexual assault, reasoning respondent had been in prison for nine years and had not had opportunity to commit assaults), review denied (Minn. Aug. 30, 1995). Further, the Linehan factors are to be considered in assessing dangerousness, particularly when there is a time lag between the last offense and the petition for commitment. 518 N.W.2d at 614.

Crocker also cites his physical condition, age, and other evidence to show his lack of dangerousness. He cites the facts that Dr. Epperson concluded he exhibited classic symptoms of organic impotence, Dr. Austin found it unlikely 68-year-old Crocker could abduct and rape, and his relationship with his 68-year-old woman friend was nonsexual. Finally, he argues that by the time he would complete treatment, he would not benefit because he would be in his mid-seventies.

Crocker's arguments presented questions of fact for the district court. Both medical doctors testified his condition would not prevent him from reoffending. Further, Crocker is still vigorous. In several incidents following his initial commitment, he was threatening and assaultive, and in one incident five or six staff members were needed to bring him under control and prevent him from assaulting others. Further, the experts recommended treatment for Crocker. The district court was not clearly erroneous in determining Crocker was highly likely to sexually reoffend if not confined.

2. Crocker next challenges his indeterminate commitment as a sexually dangerous person. The sexually dangerous person act requires the state to prove a 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.

Minn. Stat. § 253B.02, subd. 18b(a) (1996). The future harmful sexual conduct must be "highly likely." In re Linehan, 557 N.W.2d 171, 176 (Minn. 1996), pet. for cert. filed, ___ U.S.L.W. ___ (U.S. May 2, 1997) (No. 96-8876) (Linehan II). Crocker stipulated that he exhibited the requisite course of harmful sexual misconduct. On appeal for purposes of this argument, Crocker also acknowledges that he had a sexual, personality, or other mental disorder or dysfunction, which diagnosis is supported by expert testimony.

Crocker applies his argument as to his lack of future dangerousness for the SPP commitment to his SDP commitment. See Linehan II, 557 N.W.2d at 189 (applying Linehan I factors to determine likelihood of future harm applicable to determination of future harm as to SDP commitment). For the same reasons discussed above, we also reject his argument as to the SDP commitment.


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