This opinion will be unpublished and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

C3-96-766

In the Matter of:

Dwayne W. Becker.

Filed August 19, 1997

Affirmed

Amundson, Judge

Mille Lacs County District Court

File No. P994833

Cynthia J. Vermeulen, 115 Second Avenue Southwest, P.O. Box 126, Milaca, MN 56353 (for Appellant Becker)

Jennifer Fahey, Mille Lacs County Attorney, Courthouse Annex, Milaca, MN 56353 (for Respondent Mille Lacs County)

Hubert H. Humphrey III, Attorney General, Theresa M. Couri, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent Commissioner of Human Services)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.

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

AMUNDSON, Judge

In this appeal from an indeterminate commitment as a sexual psychopathic personality (SPP) and sexually dangerous person (SDP), appellant Dwayne Becker contends that: (1) his commitment was unconstitutional; (2) he was not found mentally ill, as allegedly required by statute; and (3) he was not committed to the least restrictive alternative. We affirm.

FACTS

Appellant Dwayne W. Becker sexually abused four young girls. He was convicted for his actions against two of his victims, including two counts of felonious assault on a child in 1960 and first-degree criminal sexual conduct in 1990. The abuse included masturbation, intercourse, digital penetration, fellatio, and cunnilingus, as well as more bizarre sexual practices. The victims were ages 8, 9, 10, and 14 when the abuse began. For one victim, the abuse occurred from 1966 to 1972 and ended only when she attempted to commit suicide. Another victim was abused from 1985 to 1990.

Becker was diagnosed with pedophilia, other paraphilias, and a personality disorder not otherwise specified. Two of the three experts concluded Becker met the standards for commitment as a sexual psychopathic person (SPP) and as a sexually dangerous person (SDP). The district court found Becker was a basically untreated and dangerous pedophile and sexual offender with almost no significant insight into his behavior and no demonstrated remorse or empathy for his victims.

The district court concluded Becker met the standards for commitment as a SPP and a SDP and committed him to the Minnesota Security Hospital. After a 60-day report was filed with the court, a hearing was held on his indeterminate commitment. The court committed Becker indeterminately as a SPP and a SDP and determined that the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC) was the least restrictive alternative that could meet Becker's treatment and security needs.

D E C I S I O N

I. Constitutional Issues

Becker raised constitutional issues before the district court, arguing that the SPP and SDP laws violated substantive due process and the prohibitions against double jeopardy and ex post facto laws. Because the district court did not address these arguments, Becker contends that this court should remand for the district court to make these rulings. Constitutional issues are questions of law on which this court need not defer to the district court. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993). In any event, this appeal was stayed until the supreme court resolved the constitutionality of the SDP act. In re Linehan, 557 N.W.2d 171, 171-72 (Minn. 1996), petition for cert. filed, ___ U.S.L.W. ___ (U.S. May 2, 1997) (No. 96-8876). It is appropriate for this court to address these issues now.

Becker argues that his commitment under the SPP and SDP statutes violates his due process right to liberty. The supreme court has explicitly rejected these arguments. Linehan, 557 N.W.2d at 184-86 (upholding SDP commitment against substantive due process challenge); In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994), cert. denied, 513 U.S. 849 (1994) (upholding psychopathic personality commitment against substantive due process challenge); see Kansas v. Hendricks, 65 U.S.L.W. 4564, 4567-68 (U.S. June 23, 1997) (upholding constitutionality of similar sexual predator law against substantive due process challenge).

Becker next argues that his commitment pursuant to the SDP and SPP statutes violates constitutional prohibitions against double jeopardy. These arguments have been considered and rejected by the Minnesota Supreme Court and the United States Supreme Court. See Linehan, 557 N.W.2d at 187-89 (upholding SDP commitment against double jeopardy claim); see also Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn. 1995) (upholding psychopathic personality commitment against double jeopardy challenge), cert. denied, 117 S. Ct. 772 (1997); see Hendricks, 65 U.S.L.W. at 4568-71 (upholding similar sexual predator law against double jeopardy challenge).

Becker claims, only as to the SDP statute, that the law violates the ban against ex post facto laws because it is criminal in nature. In Linehan, the supreme court rejected the ex post facto argument. 557 N.W.2d at 187-88. See Hendricks, 65 S.L.W. at 4571 (upholding similar sexual predator law against ex post facto challenge).

Becker also raises several constitutional arguments that do not appear to have been raised below. Generally, appellate courts will decline to address issues not raised before the district court. St. Paul Citizens for Human Rights v. City Council of St. Paul, 289 N.W.2d 402, 407 (Minn. 1979). In any event, Becker's claims lack merit.

II. Statutory Challenge

Becker argues that a finding of mental illness is required for the SPP and SDP commitments pursuant to the state statutory scheme. Absent such a finding, he claims the standards for commitment were not proven by clear and convincing evidence.

The construction of a statute is a question of law. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). The provisions of Minn. Stat. 253B.18 pertaining to the commitment of mentally ill and dangerous persons generally apply to persons alleged or found to be a SPP or a SDP. Minn. Stat. § 253B. 185, subd. 1 (1996). Once a petition for commitment is filed, the court shall hear the petition as provided in section 253B.18. Minn. Stat. § 253B.185, subd. 1 (1996). A mentally ill and dangerous person, a sexual psychopathic personality, and a sexually dangerous person are each defined, and the latter two do not require a showing of "mental illness." See Minn. Stat. § 253B.02, subd. 17 (1996) (definition of person mentally ill and dangerous to the public), subd. 18a (definition of sexual psychopathic personality), subd. 18b (definition of sexually dangerous person). We note that the indeterminate nature of all three commitments is the apparent reason for requiring that SPP and SDP commitments follow the procedure for commitment as mentally ill and dangerous. Becker's claim that there must be a finding of mental illness has no merit.

Becker also contends that under Foucha v. Louisiana, 504 U.S. 71, 82, 112 S. Ct. 1780, 1786-87 (1992), there must be a finding of mental illness. This relates to the substantive due process argument. Id. As discussed above, the supreme court has rejected this argument and held that these commitments do not violate substantive due process. Linehan, 557 N.W.2d at 182; Blodgett, 510 N.W.2d at 914-15.

III. Least Restrictive Alternative

Becker next argues that although he offered evidence of less restrictive alternatives, there was no evidence that they had been considered and rejected, and the experts at the review hearing made conclusory statements that indefinite commitment to the MSPPTC was the least restrictive alternative. A district court's decision on the least restrictive alternative must be based on clear and convincing evidence and will not be reversed unless clearly erroneous. See In re Bieganowski, 520 N.W.2d 525, 531-32 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).

MSPPTC is a secure treatment facility run by experienced personnel, which can meet Becker's needs for chemical dependency treatment and intensive, long-term sex offender treatment. The district court found no appropriate less restrictive alternative. Its determination was based on clear and convincing evidence and is not clearly erroneous.

Affirmed.