This opinion will be unpublished and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

Wayne Kenneth Muller.

Filed September 30, 1997


Norton, Judge

Hennepin County District Court

File No. P795210

William L.H. Lubov, 2445 Park Avenue, Minneapolis, MN 55404 (for appellant Muller)

Hubert H. Humphrey, III, Attorney General, Kristin Jones Pierre, John Kirwin, Assistant Attorneys General, 110 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)

Considered and decided by Short, Presiding Judge, Norton, Judge, and Willis, Judge.



Appellant Wayne Kenneth Muller seeks review of the judgment committing him as a sexually dangerous person. He argues that the trial court did not have clear and convincing evidence to commit him, and that the sexually dangerous person statute is unconstitutional. The record shows the trial court's findings were based on clear and convincing evidence. Appellant's constitutional claim fails. We affirm.


After this case was briefed and argued, the supreme court stayed the appeal until it decided pending sexually dangerous person appeals. The supreme court issued its decisions affirming the merits and upholding the constitutionality of the sexually dangerous person law. In re Linehan, 557 N.W.2d 171, 174-75 (Minn. 1996), pet. for cert. filed (U.S. May 2, 1997) (No. 96-8876); In re Linehan, 557 N.W.2d 167, 169 (Minn. 1996), pet. for cert. filed (U.S. May 2, 1997) (No. 96-8876). This court then dissolved the stay and allowed the parties to file supplemental memoranda to make further arguments in light of the Linehan decisions.

In June 1989, appellant offered a ride to a 13-year-old girl riding her bicycle. He then raped her, forced her to perform oral sodomy, beat her, choked her with a rope until she was unconscious, and left her for dead. Appellant pleaded guilty to second-degree attempted murder, first-degree criminal sexual conduct, and kidnapping. While in prison, he participated in various treatment programs. During the course of treatment, he admitted molesting six children who attended day care in his mother's home. He also discussed other instances of inappropriate sexual conduct with children, molestation of unconscious, intoxicated women, the attempted rape of a woman in her sixties, sexual conduct with animals, and other sexual misconduct.

In anticipation of his release from prison, appellant and treatment staff developed a supervised release plan. Immediately prior to his release, however, a petition for his commitment as a sexually dangerous person was filed.

At the hearing, appellant testified to the sexual assaults and misconduct that he had disclosed in treatment. Appellant described himself as a sex addict and acknowledged his potential to harm or kill a victim in the future if he reoffended. Nonetheless, appellant asserted he could be released to the community safely pursuant to his release plan, which included treatment and participation in sex addicts anonymous.

Experts provided their opinion as to appellant's condition, concurring that he met the standards for commitment as an SDP. Dr. Owen Nelson, the court-appointed examiner, Dr. Harry Hoberman, respondent's privately-retained expert, and Dr. Richard Friberg, who had assessed appellant while he was incarcerated, all concluded appellant engaged in a course of harmful sexual conduct. Dr. Nelson diagnosed appellant with depression and anti-social personality disorder. Dr. Hoberman diagnosed appellant with multiple paraphilias, with his primary paraphilia being sexual sadism, as well as dysthymia and antisocial personality disorder with elements of schizoid, avoidant, and narcissistic personality disorders. Dr. Friberg diagnosed appellant with sexual sadism and mixed personality disorder with narcissistic, schizoid, and antisocial features. All of the experts agreed appellant was likely to reoffend and, if he did so, would likely kill or seriously harm the victim.

The trial court committed appellant as an SDP and he appeals.


An appellate court will not reverse a trial court's findings of fact unless they are clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). This court will not defer to the trial court on matters of law. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992).

Appellant challenges the merits of his commitment. A sexually dangerous person is defined as one who

engages in a course of harmful sexual conduct as defined in subdivision 7a;

manifests a sexual, personality, or other mental disorder or dysfunction; and

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 proponent of the commitment must establish the statutory elements by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (1996); see Minn. Stat. § 253B.185, subd. 1 (1996) (court shall hear petition for commitment as sexually dangerous person as provided in Minn. Stat. § 253B.18).


Appellant first contends respondent failed to demonstrate by clear and convincing evidence that he exhibited a harmful course of sexual conduct. Minn. Stat. § 253B.02, subd. 18b(a)(1). He contends that the acts he self-disclosed in treatment should not be considered, and, absent those disclosures, there is insufficient evidence of a "course" of sexual misconduct.

Appellant claims there is a risk in allowing the course of harmful sexual conduct to be proved by his self-disclosures in treatment. However, appellant not only disclosed his sexual misconduct in treatment, he discussed it in interviews with the experts and testified to these facts at the hearing. The trial court found no evidence to show that this conduct did not occur, and appellant does not challenge this determination. The trial court findings were based on clear and convincing evidence in the record.

Appellant also criticizes the use of this evidence, claiming he never received a warning that his treatment disclosures might have been used against him, although he acknowledged he knew this could occur and proceeded anyhow because of his genuine desire to receive treatment. Appellant did not raise this issue or object to the evidence below, and he cannot raise it for the first time on appeal. Gruenhagen v. Larson, 310 Minn. 454, 457, 246 N.W.2d 565, 568 (1976) (holding errors alleged for the first time on appeal will not be considered).

Appellant raises a new statutory argument concerning the alleged lack of warning in his supplemental memo to this court after the stay was dissolved. This court, however, authorized further argument only as "necessary in light of the supreme court Linehan decisions." Further, this argument is being raised for the first time on appeal. Gruenhagen, 310 Minn. at 457, 246 N.W.2d at 568. We decline to consider it.

Appellant also contends that it is unfair to use disclosures made during treatment because the honest and open patients are penalized, while the deceptive patients who avoid treatment are rewarded. He further argues this violates due process because once the pattern of harmful conduct is established, the commitment is nearly assured because the statutory threshold requirement of a mental disorder or dysfunction is "virtually non-existent."

The supreme court has upheld the constitutionality of the SDP commitment statute against a substantive due process claim. In re Linehan, 557 N.W.2d 171, 180-86 (Minn. 1996), pet. for cert. filed (U.S. May 2, 1997) (No. 96-8876). Further, appellant has not identified any privilege that would be applicable to his self-disclosures. The trial court had clear and convincing evidence from which to find appellant had engaged in the requisite course of harmful sexual conduct.

Appellant next argues there was insufficient evidence showing that he is highly likely to engage in future acts of harmful sexual conduct. See Minn. Stat. § 253B.02, subd. 18b(a)(3); Linehan, 557 N.W.2d at 180 (adding requirement that likelihood of future harm be high). Factors to be considered include demographics, history of violent behavior, base rate statistics, sources of stress in the environment, similarity of contexts in which a person has used violence in the past to present or future contexts, and sex therapy treatment success. In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (setting out factors for use in psychopathic personality commitment); Linehan, 557 N.W.2d at 189 (adopting factors for use in predicting future harm in SDP commitment).

Appellant claims that the testimony from the experts, at best, predicted that he was "likely" to reoffend, and not that he was "highly likely" to do so. He contends the experts ignored his good behavior while imprisoned and his treatment efforts, while failing to establish that he would reoffend.

The court found that, although appellant's behavior as a model prisoner and his enrollment in sex offender treatment programs were mitigating factors, he had not yet incorporated the knowledge into his behavioral control system and showed little remorse. The court credited the testimony by the experts as to appellant's future dangerousness. The experts, who testified extensively as to the Linehan factors, concluded he was highly likely to reoffend without further treatment. Dr. Friberg found him "a very significant risk to reoffend," and "among the most likely to reoffend and the most dangerous" person he had seen in the last several years. Dr. Friberg predicted that if appellant did reoffend, he would kill the victim. Dr. Hoberman concluded that he was "highly likely" to reoffend and would kill the victim to avoid being identified. Dr. Nelson also concluded that appellant was likely to reoffend and if he did so, had a higher likelihood of causing grave damage and possibly death. Appellant himself recognized the possibility he could cause great harm if he reoffended.

We note that the trial court's decision, which was issued before Linihan, 557 N.W.2d at 180, did not refer to the "high" likelihood of harm. We find this standard was met because, as discussed above, the trial court relied on the experts who did make that prediction. The facts are supported by the evidence, and the trial court properly applied the facts to the law in determining appellant's future dangerousness.


Appellant also argued that his civil commitment was unconstitutional. His arguments as to substantive due process, double jeopardy, and the prohibition against ex post facto laws have been rejected by the supreme court in its decision upholding the constitutionality of the SDP law. Linehan, 557 N.W.2d at 174-75.