This opinion will be unpublished and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:

Gary Allan Coleman.

Filed September 23, 1997


Willis, Judge

Hennepin County District Court

File No. P7-95-60403

Michael J. Biglow, 839 Midland Bank Building, 401 Second Avenue South, Minneapolis, MN 55401 (for Appellant Coleman)

Michael O. Freeman, Hennepin County Attorney, Jay L. Arneson, Carolyn A. Peterson, Assistant County Attorneys, A-2000 Government Center, Minneapolis, MN 55487 (for Respondent County)

Hubert H. Humphrey, III, Attorney General, John L. Kirwin, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Intervenor State of Minnesota)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Foley,[*] Judge.



Gary Coleman was committed as a sexually dangerous person (SDP), and he appealed. The state of Minnesota intervened to defend the constitutionality of the SDP statute. After briefing and oral argument in this court, the supreme court stayed the appeal pending its decision in other appeals challenging the constitutionality and merits of SDP commitments. Meanwhile, the district court conducted a review hearing and made Coleman's SDP commitment indeterminate. Coleman appealed his indeterminate commitment, and this court stayed the appeal.

The supreme court then released its decisions upholding the constitutionality of the SDP law and the merits of the initial and indeterminate SDP commitments in the cases responsible for the stays of Coleman's appeals. In re Linehan, 557 N.W.2d 171 (Minn. 1996), petition for cert. filed (U.S. May 2, 1997) (No. 96-8876); In re Linehan, 557 N.W.2d 167 (Minn. 1996), petition for cert. filed (U.S. May 2, 1997) (No. 96-8876). The stays were dissolved, and this court consolidated Coleman's appeals and ordered additional briefing.


Coleman has been incarcerated for much of his adult life as a result of convictions based on his criminal sexual conduct. In 1974, he was found guilty of two counts of aggravated assault, one count of sodomy, two counts of kidnapping, and one count of the unauthorized use of a motor vehicle. Coleman, while holding a knife to the throat of one of his victims, ordered her to give him her car keys and then ordered her into his house. She escaped, but he caught up with her, grabbed her around her neck and dragged her back into the house. Again holding a knife to her throat, he forced her to perform oral sodomy and tried to tie her up with a rope. He cut the second victim with his knife, and he told his victims that they would not leave the house alive. When his mother unexpectedly arrived home, Coleman drove the victims back to the first victim's house while holding a knife to her throat. There, he threatened to "have" her 11-year-old daughter. The victims escaped and contacted the police.

In November 1986, approximately two years after being released on parole, Coleman committed offenses leading to convictions for first- and second-degree criminal sexual conduct. Coleman molested nine-year-old R.H. and her four-year-old sister, N.H., when he was a guest in their mother's home. He touched R.H.'s pubic area over her clothes and digitally penetrated N.H., causing pain and redness around her vagina. This court affirmed the convictions. State v. Coleman, 426 N.W.2d 889, 890-891 (Minn. App. 1988), review denied (Minn. Aug. 11, 1988).

While incarcerated after the 1974 convictions, Coleman completed a sex offender treatment program and was paroled to a halfway house. He left without permission and was returned to prison. He started another program, but failed to finish it.

During his second period of incarceration, Coleman initially refused sex offender treatment. From 1988 to 1991, he received a number of disciplinary reports for use, possession, or smuggling of drugs and intoxicants. In 1992, during a review, staff reminded him that he met the public risk monitoring criteria and told him that a psychopathic personality commitment was possible. In 1993, Coleman expressed interest in treatment. He completed an Alcoholics Anonymous 12-step program in 1994 and a sex offender program in 1995, and he participated in other related group therapies.

At the commitment hearing, psychologists gave very similar diagnoses of Coleman's condition. Based on this testimony, the district court found that Coleman suffered from alcohol dependence and polysubstance abuse, as well as from antisocial personality disorder and narcissistic personality disorder. He also met some of the criteria for a borderline personality disorder.

The district court also received testimony as to the serious emotional harm Coleman's sexual assaults caused. The mother of the two sisters who had been abused and the older sister testified as to the damage the sisters had suffered, including inability to develop close relationships with males and belief the incident was their fault. The younger sister had night terrors and was paranoid about being alone. Coleman himself testified that he harmed the sisters emotionally and had harmed the younger sister physically. Psychologists also addressed the serious physical or emotional harm Coleman caused these victims.

Finally, the psychologists addressed the likelihood that Coleman would commit harmful acts in the future. They concurred this was highly likely, citing Coleman's minimization of his behavior and its impact on his victims, his extreme lack of good judgment, his self-defeating behaviors, his history of violent behavior, and his reoffenses after treatment.

The district court committed Coleman as a sexually dangerous person. A review hearing was held to determine whether Coleman's commitment should be made indeterminate. Dr. Anita Schlank, clinical director of the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC) and a psychologist, diagnosed Coleman with alcohol abuse by history and an antisocial personality. She testified that further assessments were necessary to determine whether a diagnosis of paraphilia was appropriate.

Dr. Schlank testified that Coleman met the criteria for commitment as an SDP because his history of offenses showed that he engaged in a course of harmful sexual conduct; he was diagnosed with an antisocial personality disorder; and his history contains factors making him a high risk to reoffend, including his use of violence, the variety of his victims (including both adults and children), his history of alcohol abuse, and his history of property crimes. There had been no significant change in his condition since his admission to MSPPTC.

Dr. Schlank recommended that Coleman complete the sex offender program at the MSPPTC, as well as chemical dependency treatment. She believed that MSPPTC facility would be appropriate because Coleman needs an intense residential setting for treatment, as well as a secure facility to prevent access to potential victims. Dr. Schlank testified that the most intensive community-based program is not secure enough and cannot meet his need for a focus on victim empathy or personal victimization.

Coleman testified regarding the sex offender and chemical dependency treatment he received before and since his commitment. While his release from prison was pending in 1995, he had planned to receive out-patient treatment at Alpha House and reside at the 180deg. Halfway House, which provides intensive monitoring. He would still be willing to follow this plan, but he did not know if that was a possibility. Coleman also testified that if discharged, he planned to reside with the woman with whom he had lived at the time he molested the two sisters in 1986 and to get a job from her son. He planned to control his chemical dependency by utilizing his support group when he has an urge to drink. To address his loneliness, he proposed meeting people through newspaper advertisements, churches, and social events, such as bowling.

Coleman discussed his crimes again. While he acknowledged hurting his victims, he also explained that as to the 1974 incident, he did not understand the victims' claims that they felt their lives were in danger.

The district court committed Coleman for an indeterminate period as a sexually dangerous person.



Coleman challenges his commitment as a sexually dangerous person. A sexually dangerous person is defined as one who:

(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 state must establish these 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). The district court's findings of fact will not be reversed unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). The issue of whether the record supports the district court's conclusion that the person met 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).

While Coleman argues that he is challenging every element of his sexually dangerous person commitment, we address only his specific arguments that his conduct did not create a sufficiently severe likelihood of serious physical or emotional harm and that he is not highly likely to cause such harm in the future. See Lener v. St. Paul Fire & Marine Ins. Co., 263 N.W.2d 389, 390 (Minn. 1978) (holding assertion of error waived where party failed to brief it).

Coleman first claims that his conduct did not cause a substantial likelihood of serious physical or emotional harm to his victims. He contends the 1974 crimes did not meet the standard because the cuts he made with his knife drew very little blood and the victims were not hospitalized for physical injuries. While he acknowledges the victims were scared, he contends there was no evidence they needed counseling or suffered ill effects as a result. Coleman admits that in the 1986 crimes he hurt both of the two sisters emotionally and one of them physically, but he contends this harm also was not serious.

A sexually dangerous person is one who "has engaged in a course of harmful sexual conduct as defined in subdivision 7a." Minn. Stat. § 253B.02, subd. 18b(a)(1) (1996). Harmful sexual conduct is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a (1996).

The district court took a view of the crimes different from Coleman's and found clear and convincing evidence that Coleman had engaged in a course of harmful sexual conduct that created a substantial likelihood of serious physical or emotional harm. The court found this was exemplified by the events underlying the 1974 conviction, which involved the act of coerced sodomy and the use of force and a knife. In addition, the court relied on the 1986 incidents, which involved fondling, digital penetration, and use of force and caused the victims to be unable to develop and maintain relationships with males and caused one victim to suffer from paranoia and night terrors. The court in its findings referred to the opinions of the expert witnesses, who discussed the harm that had occurred to all of his victims, as well as psychological harm they were likely to suffer in the future. The district court had clear and convincing evidence to support its decision.

Coleman next argues that there was insufficient evidence regarding future harm. Under the statute, the individual must be highly likely to engage in future acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18(b)(a)(3); In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (adding requirement that likelihood of future harm be high), petition for cert. filed (U.S. May 2, 1997) (No. 96-8876). In determining the likelihood of future harm, factors a court must consider include demographics, the person's history of violent behavior, base rate statistics, sources of stress in the person's environment, the similarity of the present or future context to those in which the person has used violence in the past, and sex therapy treatment success. Linehan, 518 N.W.2d at 614 (setting out factors for use in psychopathic personality commitment); Linehan, 557 N.W.2d at 189 (adopting factors for use in SDP commitment).

Coleman argues there was insufficient evidence to support the district court's determination, faulting the psychologists' testimony and citing the progress he has made. The court found a high likelihood Coleman would engage in acts of harmful sexual conduct based on the concurring expert opinions, as well as on Coleman's lack of judgment and impulse control, which is exacerbated by his use of alcohol and other mood-altering drugs, his history of self-defeating behavior, his prior sexual misconduct and the resulting serious emotional and physical harm to his victims, the short time he spent out of prison before reoffending, his minimal participation in treatment, and his continued minimization of his behavior and the impact of his offenses on his victims. The district court had clear and convincing evidence from which to conclude it was highly likely Coleman would reoffend.


Coleman next challenges his indeterminate commitment as an SDP. He first argues that he cannot be indeterminately committed if the initial commitment is reversed. Because this court affirms Coleman's initial commitment as a sexually dangerous person, this argument fails.

Coleman contends the record fails to support his continued commitment. At a review hearing, the court may consider the treatment report, evidence of the patient's change of condition since the initial commitment hearing, and any other evidence the court considers relevant. In re Linehan, 557 N.W.2d 171 (Minn. 1996), petition for cert. filed (U.S. May 2, 1997) (No. 96-8876).

In support of his argument, Coleman cites Dr. Schlank's testimony that he had not exhibited symptoms of his antisocial personality disorder in the previous two months while at the facility, he had cooperated with others, he had benefitted from prior sex offender treatment, and he had good communication skills. He cites his own testimony that he participated and progressed in treatment. Consequently, he contends the record does not support the district court's finding that he continues to meet the standards for commitment as an SDP.

But the district court had other testimony to consider. At the review hearing, Dr. Schlank testified that Coleman met the standards for commitment as a SDP. She further explained that while he had not displayed symptoms of his antisocial personality disorder in several months, he had been in a structured facility, and it is not a disorder that is expressed every day, so the lack of symptoms was not necessarily significant. She also explained that the fact he has had incident-free conduct and progressed in treatment while at the MSPPTC indicates a favorable prognosis if it continues. She did not testify that these favorable signs showed that he no longer met the standards for commitment, but instead testified that if released, Coleman would pose a risk of harm to children and women.

The district court's conclusion that Coleman continues to meet the standards for an SDP commitment is supported by clear and convincing evidence.


Coleman challenges the SDP statute as unconstitutional. As noted above, after Coleman filed his appeals, the supreme court upheld the SDP law against various constitutional arguments. Linehan, 557 N.W.2d at 174-75. The United States Supreme Court's recent decision in Kansas v. Hendricks, 117 S. Ct. 2072 (1997), upholding the constitutionality of Kansas's similar sexually violent predator act, also supports the constitutionality of Minnesota's SDP law.

Coleman first contends the SDP statute violates substantive due process. The supreme court has extensively discussed this argument and has held that the law does not violate substantive due process. Linehan, 557 N.W.2d at 180-86.

Next, Coleman claims the SDP law violates his right to equal protection because it impermissibly discriminates between sex offenders who have the requisite mental disorder and those who do not. The supreme court has rejected this argument and has held that the law does not violate equal protection. Id. at 186-87.

Coleman also argues that his right to equal protection was violated because the commitment act impermissibly makes the standards for commitment as a sexually dangerous person more lenient than commitment as a mentally ill and dangerous person. However, comparison of the two subdivisions shows both require a harmful act or acts, a mental illness or mental disorder, and a prediction of future harm. Minn. Stat. § 253B.02, subd. 17 (definition of mentally ill and dangerous person); Minn. Stat. § 253B.02, subd. 18b(a) (definition of sexually dangerous person). Coleman's argument fails.

Coleman also contends that the criteria for discharge from a commitment as mentally ill and dangerous are more lenient than those for discharge from commitment as a sexually dangerous person. This argument is premature because Coleman has not filed a petition for discharge. In any event, in Call v. Gomez, 535 N.W.2d 312, 318-19 (Minn. 1995), cert. denied, 117 S. Ct. 772 (1997), the supreme court held that the discharge standard applicable to mentally ill and dangerous persons, Minn. Stat. § 253B.18, subd. 15, also applies to persons committed under the psychopathic personality statute. This holding likewise applies to the sexually dangerous person statute. See Minn. Stat. § 253B.185, subd. 1 (stating that provisions of mentally ill and dangerous law apply to commitment as sexually dangerous person).

Coleman argues that the definition of a sexually dangerous person promotes arbitrary and capricious application of the law because the meanings of "mental disorder or dysfunction" and "the future likelihood of dangerous behavior" are unclear. See Minn. Stat. § 253B.02, subd. 18b(a)(2), (3) (defining SDP). He contends, therefore, that the SDP law is unconstitutionally void for vagueness.

A civil statute is void for vagueness when its terms are so uncertain and indefinite that it is impossible to determine the legislature's intent. Getter v. Travel Lodge, 260 N.W.2d 177, 180 (Minn. 1977). The supreme court avoided a finding that the psychopathic personality law was void by narrowly construing the statutory language. State ex rel. Pearson v. Probate Court, 205 Minn. 545, 555-56, 287 N.W. 297, 302-03 (1939), aff'd, 309 U.S. 270, 60 S. Ct. 523 (1940). The legislature subsequently incorporated the narrowing language into the statute. 1994 Minn. Laws 1st Spec. Sess. ch. 1, art. I, § 2 (codified at Minn. Stat. § 253B.02, subd. 18a). The SDP law is similar to the current sexual psychopathic personality law. Minn. Stat. § 253B.02, subd. 18a (defining sexual psychopathic personality); Minn. Stat. § 253B.02, subd. 18b(a) (defining sexually dangerous person). The supreme court has examined and interpreted the language of the SDP law. In Linehan, 557 N.W.2d at 185, the supreme court discussed the meaning of "mental disorder" in the context of its analysis of substantive due process. Further, the supreme court has required that the likelihood of future harm be high and has adopted a multi-factor test to aid courts in predicting future dangerous behavior. Id. at 180, 189. Coleman cannot prevail on his claim that the law is void for vagueness.

Coleman next claims that the SDP law is a criminal law and thereby violates the constitutional protections against double jeopardy and ex post facto laws. The supreme court has held the SDP law does not violate constitutional protections against double jeopardy and ex post facto laws. Id. at 187-89.

Finally, Coleman contends that the rebuttable presumption in Minn. Stat. § 253B.02, subd. 7a(b), is unconstitutional. The district court in this case did not rely on the presumption, and the issue is not properly before the court.


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