This opinion will be unpublished and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:

Joseph Daniel Kubec.

Filed January 27, 1998


Klaphake, Judge

Hennepin County District Court

File No. P09660561

Lisbeth J. Nudell, 3228 Holmes Avenue South, Minneapolis, MN 55408 (For Appellant Kubec)

Michael O. Freeman, Hennepin County Attorney, Peter J. Stiehm, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (For Respondent)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.



Appellant Joseph Kubec's juvenile probation/parole officer filed a petition to commitment him as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP) less than two months before his nineteenth birthday. After a hearing, the district court concluded Kubec should be committed as an SPP and SDP based on his acts of sexual conduct with underage victims, his diagnoses of paraphilia and several personality disorders, and his high likelihood of engaging in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subds. 18a, 18b(a) (Minn. 1996) (definitions of SPP and SDP). Kubec appeals. We affirm.



Kubec first argues that the district court gave the two court-appointed examiners an incorrect standard to use in determining whether he exhibited the utter lack of power to control his sexual impulses as required for an SPP commitment. Minn. Stat. § 253B.02, subd. 18a; see State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939) (setting forth utter lack of power to control language), aff'd, 309 U.S. 270, 60 S. Ct. 523 (1940).

The Minnesota Supreme Court addressed the Pearson language in an opinion upholding the constitutionality of the psychopathic personality statute.

In applying the Pearson test, the court considers the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender's attitude and mood, the offender's medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it.

In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 513 U.S. 849 (1994).

Kubec argues that the district court should not have used the Blodgett factors, contending they were mere dicta because the issue of the utter lack of power to control sexual impulses was not before the court in Blodgett. We disagree. Although the supreme court addressed this issue in the context of a substantive due process discussion, it specifically noted that the factors are to be used in applying the Pearson test. Blodgett, 510 N.W.2d at 915.

Kubec also contends that the Blodgett court failed to specify the factors that apply to the individual requirements of the predatory sex impulse and those that apply to the lack of power to control it. See id. He argues that some of the factors have no bearing on the inability to control the sexual impulse, specifically citing testimony referring to the factors in support of his argument.

The predatory sex impulse and lack of power to control it are related concepts. The factors cited by the supreme court provide guidelines to assist the district court in making the necessary determinations and the district court itself may decide, based on the evidence, which factors are relevant in the particular case.

Here, the first court-appointed examiner, psychologist Dr. Harry Hoberman, opined that Kubec had an utter inability to control his sexual impulses. His opinion was based on the results of testing and evaluation, indicating a high degree of impulsivity and inability to delay gratification, as well as some of the Blodgett factors.

The testimony of the second court-appointed examiner, Dr. Thomas Alberg, was equivocal. At the start of his testimony, he stated that Kubec did not necessarily meet all of the criteria for commitment as an SPP. After the court questioned him on the lack of power to control, specifically citing the Blodgett factors as well as other relevant factors, Dr. Alberg stated that given these criteria, "there is more weight saying he doesn't have the power to control than to say he does." When asked whether he was convinced by clear and convincing evidence, he stated:

My answer would be I think he has a power to control his sexual impulses. The question is whether he chooses to use it or not is probably more of an issue. So I think he can control his sexual behavior; I'm not sure he always chooses to.

We are troubled by the fact that although Dr. Alberg appeared to believe Kubec could control his impulses, he nonetheless agreed that, based on the criteria for commitment set out in case law, Kubec met the statutory standards for commitment as an SPP. The Blodgett factors are not a checklist, and each factor should not be used in the manner Dr. Alberg was directed to use them. Instead, the factors and all the evidence should be considered as a whole. However, as Dr. Hoberman's testimony provided clear and convincing evidence that Kubec exhibited an utter lack of control, we uphold the district court's finding. See In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (appellate court reviews de novo whether record supports conclusion that individual met standards for commitment by clear and convincing evidence); In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986) (appellate court will not reverse district court's commitment findings unless clearly erroneous).


Kubec next contends that the sexually dangerous person statute, Minn. Stat. § 253B.02, subd. 18b, is unconstitutional. The constitutional issues he raises were upheld by the supreme court in a sexually dangerous person commitment case, but the United States Supreme Court recently vacated and remanded the decision back to our supreme court. In re Linehan, 557 N.W.2d 171 (Minn. 1996), vacated and remanded, ___ U.S.L.W. ___ (U.S. Jan. 8, 1998). Pending decision by our supreme court, we continue to reject the argument that the statute is unconstitutional.


Kubec also challenges his commitment as an SDP, focusing on the requirement of future dangerousness. Minn. Stat. §§ 253B.02, subd. 18a (requiring that the person's habitual course of misconduct in sexual matters and utter lack of power to control result in the person being dangerous to other persons); see 253B.02, subd. 18b(a)(3) (requiring for commitment as sexually dangerous person that the person who has engaged in the harmful sexual conduct and manifested the requisite disorder or dysfunction must be likely to engage in acts of harmful sexual conduct as defined in subdivision 7(a).

The constitutional arguments were discussed above and we address Kubec's arguments on the merits. Kubec contends his behavior in the past was "non-violent sexual behavior as a juvenile with other juveniles." He also claims that although some of his victims were significantly younger than he was, he has never looked his age and the record is replete with descriptions of his look of immaturity.

Dr. Hoberman testified unequivocally, however, that Kubec is dangerous to others and would be highly likely to reoffend, citing his diagnosis as a pedophile, his failure to complete previous sex offender treatment, his personality characteristics reflecting lack of internal controls and insensitivity to external controls, the existence of multiple risk factors associated with sexual offending, and the breadth of his victim pool. While Kubec did not use "force," he nonetheless committed serious sexual abuse that emotionally scarred his victims. Thus, the district court had clear and convincing evidence from which to conclude Kubec posed a future danger to others. Minn. Stat. § 253B.02, subds. 18a, 18b(a)(3).


Finally, Kubec contends the district court improperly assumed the burden of proving the petition by conducting an examination of the court-appointed examiners. Kubec, however, cites no authority to demonstrate that this was improper. Further, both attorneys had an opportunity to cross-examine the examiners. We find no error.

Kubec also faults respondent for presenting as its only witness Kubec's parole/probation officer, who never met Kubec due to her maternity leave. He claims she had no knowledge about the records and was ill-prepared to testify, requiring the court to elicit the evidence. Respondent contends she was a necessary witness to shepherd the court through the voluminous exhibits, which provided information regarding various facilities to which Kubec had been committed, records and test results, and evidence as to his victims. The fact that much of the evidence that supported his commitment was presented to the court through written records does not in itself constitute error. See Minn. R. Evid. 402 ("All relevant evidence is admissible"); Minn. R. Civ. P. 52.01 ("whether based on oral or documentary evidence," court's findings not set aside unless clearly erroneous).