This opinion will be unpublished and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: Daryl Roy Dunlavey,

a/k/a Dub Dunlavey.

Filed January 20, 1998


Toussaint, Chief Judge

Special Concurrence

Randall, Judge

Jackson County District Court

File No. C296900002

Warren J. Maas, 7964 Brooklyn Boulevard, Suite 107, Brooklyn Park, MN 55445 (for appellant)

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

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Norton, Judge.**

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


TOUSSAINT, Chief Judge

Daryl Dunlavey appeals from his indeterminate commitment as a sexually dangerous person, arguing (1) the district court did not have clear and convincing evidence to show he met the standards for commitment; and (2) commitment to the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC) was not the least restrictive alternative. Because we find there is clear and convincing evidence to support the district court findings that (1) the standards for commitment were met; and (2) commitment to the MSPPTC was the least restrictive alternative, we affirm.



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) (Linehan I). The court must determine if the evidence as a whole presents substantial support for the district court's conclusions. In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), pet. for cert. filed (U.S. May 2, 1997) (No. 96-8876) (Linehan II).

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 district court dismissed with prejudice the allegation that Dunlavey was a sexual psychopathic personality and committed him for an initial period as a sexually dangerous person pursuant to stipulated facts. Minn. Stat. § 253B.18, subd. 1 (1996) (initial commitment); Minn. Stat. § 253B.185, subd. 1 (1996) (providing procedures in section 253B.18 apply to SDP commitments). After the review report was filed, the district court held a review hearing. Minn. Stat. § 253B.18, subd. 2 (1996).

Dunlavey first argues that because of his age, 74, and his medical condition, he poses a reduced threat of harm. This argument addresses the third requirement for an SDP commitment, whether the person is "likely to engage in acts of harmful sexual conduct." Minn. Stat. § 253B.02, subd. 18b(a)(3).

Dr. Gregory Peterson, Dunlavey's physician, testified that when Dunlavey arrived at MSPPTC, he had significant problems with ambulation, shortness of breath, difficulty sleeping at night, congestive heart failure, adult onset diabetes, and an underactive thyroid gland. By the time of the review hearing, Dr. Peterson had treated his thyroid condition and heart disease, and Dunlavey's condition improved and stabilized. Because Dunlavey refused to take insulin shots his diabetic condition was poor. Dr. Peterson testified that if Dunlavey were transferred to a nursing home, which was not warranted by his medical condition, he could pose a threat to the safety of vulnerable nursing home residents and visiting children.

The psychologists also addressed Dunlavey's dangerousness. See Linehan II, 557 N.W.2d at 189 (adopting multi-factor analysis for predicting dangerousness in an SDP commitment outlined in Linehan I, 518 N.W.2d at 614). Dr. Anita Schlank, clinical director of MSPPTC, testified Dunlavey belonged to a group of individuals presenting a high risk for reoffending, based on Dunlavey's range of victims, history of violence, genital-to-genital contact, history of substance abuse, failure to complete successfully sex offender treatment, and denial of his offenses.

Dr. James Gilbertson, a psychologist, acknowledged that while age is generally an inhibitor for sex offenses, in Dunlavey's case this was not true. Instead, he acted out sexually while in prison in 1995 and he approached someone sexually while at MSPPTC. Dr. Gilbertson described Dunlavey as a large, powerful, man, despite his age and infirmities, who is untreated, lacks remorse, and denies his offenses. Dr. Peterson found it highly likely Dunlavey would act out sexually toward vulnerable adults or children.

Thus, while Dunlavey claims his medical condition and age made him less likely to cause harm, evidence at the hearing indicated he was physically able to harm others and was highly likely to do so. The district court had clear and convincing evidence to conclude that it was highly likely Dunlavey would engage in acts of harmful sexual conduct in the future.


Dunlavey argues that his commitment to the MSPPTC was not the least restrictive alternative. If a court commits a person indeterminately as an SDP, "[t]he court must find there is no appropriate less restrictive alternative available." See In re Pirkl, 531 N.W.2d 902, 910 (Minn. App. 1995) (citing Minn. R. Civ. Commitment 12.06), review denied (Minn. Aug. 30, 1995).

The experts recommended commitment to the MSPPTC for sex offender treatment as the least restrictive alternative. They concluded a nursing home setting was inappropriate because Dunlavey could prey on vulnerable adults and children, and because he would not receive sex offender treatment.

Dunlavey, proposed a less restrictive alternative. At the hearing, pursuant to Dunlavey's questions, Dr. Gilbertson discussed a scenario in which Dunlavey could live outside MSPPTC with two guards 24 hours a day. But Dr. Gilbertson testified that this would be unsatisfactory because Dunlavey would not receive treatment.

Dunlavey claims the district court erroneously failed to consider his proposal based on financial considerations. While the district court did cite this concern, there was no evidence before the court that such a program existed, that it was funded, or that Dunlavey would be accepted, and the district court properly declined to consider it. See In re McPherson, 476 N.W.2d 520, 522 (Minn. App. 1991) (holding commitment to more restrictive regional treatment center appropriate where no community facility available to treat patient's condition), review denied (Minn. Dec. 13, 1991).

Dunlavey next argues that because he is impaired cognitively, he is not treatable. While initial treatment reports indicated possible problems, Dr. Schlank testified Dunlavey was in fact participating in treatment and did not appear to need additional assistance. Dr. Gilbertson explained that despite an initial question as to whether Dunlavey would be able to participate in the program from a cognitive perspective, staff has advised Dr. Gilbertson that he is now participating. Dr. Gilbertson has already noticed a slight improvement in Dunlavey's condition.

The district court weighed this testimony and concluded the treatment center could meet Dunlavey's treatment needs and that he had the cognitive intellectual ability to make use of the sex offender treatment program. This finding is supported by the expert testimony and is not clearly erroneous.

Finally, Dunlavey asserts that his commitment is de facto preventive detention because, of the length of the treatment program, his age, cognitive deficits, and infirmities, he is not likely to complete the program and gain his freedom.

The supreme court has discussed the treatment program and concluded that the "purpose and effect of the SDP Act is * * * predominantly remedial, not punitive." Linehan II, 557 N.W.2d at 188. The experts testified Dunlavey is capable of participating in the program, even given his age, medical problems, and mild cognitive deficits. His commitment was not de facto preventive detention.



RANDALL, Judge (concurring specially)

I concur in the result.