This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Matter of:

Thomas Patrick Weiss.

Filed October 28, 1997


Crippen, Judge

Ramsey County District Court

File No. P896273

David Essling, 1217 West Seventh Street, St. Paul, MN 55102 (for appellant Thomas Patrick Weiss)

Susan Gaertner, Ramsey County Attorney, Patrick M. Hest, Assistant County Attorney, 315 Ramsey County Government Center West, 50 West Kellogg Boulevard, St. Paul, MN 55102-1657 (for respondent)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.



The trial court ordered indeterminate commitment of appellant Thomas Weiss after determining that appellant was a sexual psychopathic personality and a sexually dangerous person. Appellant challenges these decisions, the sufficiency of the evidence for the findings that underlie them, and compliance of the trial court with other constitutional and statutory requirements. We affirm.


At the commitment hearing, appellant admitted he sexually molested between eight and twelve children. In 1984, he was charged with three counts of sexual misconduct and pleaded guilty to intrafamilial sexual abuse in the second degree. In 1990, he pleaded guilty to criminal sexual conduct in the first degree and in the second degree.

Appellant met his young victims while visiting parks or driving an ice cream truck, as well as through befriending and helping their mothers. He used bribes and force to gain their compliance.

Appellant has made several attempts at treatment, but is still considered a danger without further treatment. He is diagnosed with an antisocial personality disorder and pedophilia. Expert witnesses agreed that appellant needs treatment and has a high likelihood of reoffending if not treated. They recommend commitment to the Minnesota Sexual Psychopathic Personality Treatment Center. The trial court committed appellant to the center and the Minnesota Security Hospital for psychopathic personality and sexual dangerousness evaluations.

At the review hearing, the treatment center staff presented reports and testimony diagnosing appellant with pedophilia, antisocial personality disorder and borderline intellectual functioning. They recommended treatment at the facility and reported that appellant was in a group presenting a high risk of reoffending. Two court examiners also provided testimony. The trial court made appellant's commitment to the center indeterminate, concluding this was the least restrictive alternative.


Trial court findings of fact will not be reversed unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). We review de novo the question of whether the record supports by clear and convincing evidence the trial court's conclusions that appellant met the standards for commitment. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994). And an appellate court need not defer to the trial court on matters of law. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992) (citation omitted).

Appellant first argues he has not caused the type of harm to which the two pertinent statutes apply. For a sexual psychopathic personality commitment, the supreme court has required a showing of serious physical or mental harm to the victims. In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994). Likewise, harmful sexual conduct for purposes of the sexual dangerousness law, Minn. Stat. § 253B.02, subd. 18b(a), means "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a) (1996). For purposes of this case, there is no distinction between the type of harm necessary.

The trial court found appellant engaged in very predatory behavior with vulnerable children. He threatened to spank them if they did not comply and admitted spanking some of the children and holding their arms and legs down if they tried to resist his assaults. He also bribed and cajoled them by offering gifts of candy, ice cream, and toys. The trial court found his victims suffered serious physical or emotional harm.

Appellant contends that the evidence does not show any serious physical or mental harm to the victims. He discounts testimony by victim K.A., the only victim who testified, claiming that he did not suffer any physical harm and did not show he suffered serious emotional harm.

The trial court heard the extensive descriptions of the actions appellant took to sexually abuse the young children, including his own testimony on his use of force. Victim K.A., 12 years old at the time of the hearing, testified appellant held him down and threatened to kill him when abusing him; as a result of the abuse, he is unable to be alone and cannot trust anyone.

In addition, an expert testified that another victim, W.H., experienced emotional harm. This was evidenced by the fact that at the mention of appellant's name, W.H. began crying and ran to tear his clothes out of his drawers, explaining he had to leave because appellant had threatened to kill him or his mother if W.H. reported the abuse. Another expert also testified that the degree of force appellant used to accomplish his goals of sexual molestation definitely inflicted a great deal of pain on his victims. Based on the testimony, the trial court had clear and convincing evidence to conclude appellant caused the necessary degree of harm, and its findings are not clearly erroneous.

Appellant next disputes whether he is highly likely to be dangerous to others in the future. The sexual psychopathic personality law requires that as a result of the person's habitual course of misconduct in sexual matters, and an utter lack of power to control the person's sexual impulses, he will be dangerous to other persons. Minn. Stat. § 253B.02, subd. 18a. Similarly, under the sexually dangerous person law, the proposed patient must be highly likely to engage in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18b(a)(3). In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (requiring likelihood be high), pet. for cert. filed (U.S. May 2, 1997) (No. 96-8876).

The supreme court has specified a multi-factor test that should be considered in predicting serious danger to the public in a sexual psychopathic personality commitment. Linehan, 518 N.W.2d at 614. The supreme court has since adopted this test for a sexual dangerousness commitment. Linehan, 557 N.W.2d at 189.

The dangerousness prediction methodology is "complex and contested." Linehan, 557 N.W.2d at 189. These predictive factors are particularly useful where there is a large gap of time between the petition for commitment and the person's last sexual misconduct. Linehan, 518 N.W.2d at 614. Actuarial methods or base rates are not the sole permissible bases for prediction, and instead the multifactor analysis must be used. Linehan, 557 N.W.2d at 189. The appellate court will not weigh the evidence but instead will determine if the evidence as a whole provides substantial support for the trial court's conclusions. Id.

There were extensive findings and evidence presented on these factors. Appellant began offending at an early age, lacks education and employment skills, and has borderline intelligence. He admitted that he committed numerous predatory sexual acts on children, which caused serious physical or emotional harm. While base rate statistics were not a prominent factor, the court found that they indicated a significant probability of recidivism for a child molester with appellant's history. The court found appellant coped with the stress of his own sexual abuse by acting in a similar way to others. The court determined that appellant's environment was not significantly different than it was in the past, citing his failure to improve his employment possibilities, lack of support system, and unrealistic view of himself. While appellant had participated in treatment and completed a program, the experts concluded he was not sufficiently treated to be released.

Appellant argues a more favorable view of the facts than the trial court took. He also claims that the actuarial predictions based on statistical data are a necessary objective consideration, that they are probably superior to experts' clinical conclusions, and that they were not sufficiently presented. The supreme court declined to use this data to reject the trial court determination on future harm, holding instead that all the factors should be considered. Linehan, 557 N.W.2d at 189. The trial court considered the extensive evidence as to the Linehan factors and its subsequent findings of fact are supported by clear and convincing evidence and are not clearly erroneous.

Appellant next argues that he was not committed to the least restrictive alternative program. If a court finds that a person should be indeterminately committed under these statutes, "the court must find that there is no appropriate less restrictive alternative available." In re Pirkl, 531 N.W.2d 902, 910 (Minn. App. 1995) (citing Minn. R. Civ. Commitment 12.06, which provides that the proponent of commitment has the burden of proving that "there is no appropriate less restrictive alternative available").

Appellant offered alternatives, including his supervised release plan and supervision by the Salvation Army. But the expert witnesses agreed that commitment to the state psychopathic personality treatment center was the least restrictive alternative because appellant needs an extended treatment program. The trial court determined that appellant's proposals did not present sufficient security or treatment and found that appellant required individualized treatment at the center. These findings are supported by the record and not clearly erroneous.

Appellant next questions whether the rebuttable presumption found in the sexually dangerous person statute is lawful. Harmful sexual conduct, for purposes of the law, means "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a). The statute provides a rebuttable presumption that certain conduct, defined in the criminal statutes on criminal sexual conduct in the first to fourth degrees and in other related statutes, creates a substantial likelihood the victim will suffer serious physical or emotional harm. Id., subd. 7a(b).

Appellant argues that applying the rebuttable presumption of harmful sexual conduct to acts occurring before the passage of the law violates the constitution, depriving him of due process and subjecting him to an ex post facto law.

There is no evidence that the trial court employed the presumption. Its harmful sexual conduct determination was based on the evidence that victim K.A. and others actually suffered the required degree of harm. In addition, appellant's legal arguments have no merit. Applying the presumption to acts arising only after the passage of the law would lead to the absurd result that for the most part the statute would be unusable. See 1994 Minn. Laws 1st Spec. Sess. ch. 1, art. I (enactment of SDP and related laws). Further, although appellant acknowledges the process in these cases is classified as civil, he contends that criminal standards should be applied to analyze the constitutionality of the presumption. The supreme court has held criminal protections do not apply because the sexually dangerous person commitment law is civil. Linehan, 557 N.W.2d at 189.