This opinion will be unpublished and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:

Robert Gilmore Swan.

Filed May 5, 1998


Huspeni, Judge

Lyon County District Court

File No. P697430

Rachel B. Rosen, Maury D. Beaulier, Brehmer & Rosen, P.L.L.P., 5001 West 80th Street, Suite 745, Bloomington, MN 55437 (for appellant Swan)

Hubert H. Humphrey III, Attorney General, Steven J. Lokensgard, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent state)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.



Appellant seeks reversal of his commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). He contends the trial court abused its discretion in several procedural and evidentiary rulings, that the court had insufficient evidence to commit him, and that the SDP act is unconstitutional. Because we uphold the trial court rulings, find clear and convincing evidence in the record to support the trial court decision, and continue to uphold the constitutionality of the SDP act, we affirm.[1]


Appellant, born in 1929, and his wife, Mary Jane Bird Swan, M.D. (Dr. Bird), have lived in several small communities since they moved to Minnesota in 1971. Appellant at various times held himself out to be a doctor, a judge, a green beret, a police officer, or a Ph.D. holder. Appellant worked as a physician's assistant at his wife's clinic and knew the youngsters who became his victims through his medical exams and through their parents. He often showed them pornography, gave them alcohol, provided them rides or jobs, or arranged for them to stay overnight at his house.

Appellant engaged in oral and anal intercourse with some of his male victims over a period of several years. He sexually assaulted or fondled other young victims while he was examining them at the clinic or when he had them stay overnight at his house.

Appellant was arrested in July 1991, and in January 1992 he pleaded guilty to two counts of first-degree criminal sexual conduct, four counts of fourth-degree criminal sexual conduct, and one count of attempted fourth-degree criminal sexual conduct. The court sentenced him to prison, with a scheduled release date of July 10, 1997.

While in prison, appellant admittedly did not participate in any sexual offender treatment program, explaining that it was dangerous to identify himself as a sexual offender in prison. For the most part, he cooperated in prison and received only a few minor disciplinary actions. Prior to his release, the warden filed a petition for commitment as a SPP and SDP.

At the hearing, eight victims testified in graphic detail describing the sexual abuse appellant inflicted on them and the extensive emotional harm they suffered as a result. Appellant admitted only some of the behavior, and continued to deny or minimize parts of the incidents that led to his convictions.

Three expert witnesses testified as well. Dr. Sharon Satterfield, the court-appointed examiner, testified that appellant met the standards for commitment as a SPP and SDP. Dr. Douglas Fox, retained as a private evaluator by respondent, also recommended commitment as a SPP and SDP. Dr. Paul Reitman, the second court examiner, testified appellant did not meet all of the criteria for commitment as a SPP or a SDP.

The trial court concluded that appellant met the standards for commitment as a SPP and SDP.



Appellant first challenges the denial of his motion for a change of venue.[2] A petition for commitment as a SPP or SDP is to be "filed with the committing court of the county in which the patient has a settlement or is present." Minn. Stat. § 253B.185, subd. 1 (1996). A trial court may change venue when "an impartial trial cannot be had in the county wherein the action is pending," or when "the convenience of witnesses and the ends of justice would be promoted by the change." Minn. Stat. § 542.11(3), (4) (1996). The party seeking a change of venue must identify the prejudice that could otherwise result, and the decision of whether to change venue is within the trial court's discretion. Minnesota Personal Injury Asbestos Cases v. Keene Corp., 481 N.W.2d 24, 27 (Minn. 1992).

Appellant first contends that the extensive publicity about his convictions and commitment and local political pressures rendered the trial court unable to conduct an impartial hearing. Concerns as to prejudice from publicity usually arise when a jury, not a judge, is the factfinder. Where the court held a bench trial and appellant's affidavit as to his concerns about publicity did not show a real possibility of a biased decision by the judge, the trial court did not abuse its discretion in denying the motion. See State v. Salas, 306 N.W.2d 832, 835 (Minn. 1981) (requiring real possibility of prejudiced or biased jury verdict before reviewing court could find trial court abused its discretion in denying motion for change of venue). Finally, appellant asserted at oral argument that certain local witnesses were reluctant to testify for appellant because of their fear of retribution from community members. While we are not insensitive to these concerns, appellant did not raise this issue below and we cannot address it for the first time on appeal. Turner v. Alpha Phi Sorority, 276 N.W.2d 63, 68 n.2 (Minn. 1979).

Appellant also contends that the convenience of witnesses and the ends of justice would have been promoted by a change of venue to Hennepin County. Minn. Stat. § 542.11(4). The trial court's decision to deny the motion on this ground also was not an abuse of discretion.


At the July 2, 1997, hold hearing, appellant moved to continue the hearing on the merits for some three weeks, from August to early September 1997, to allow counsel sufficient time to prepare for trial.

The court ruled that it intended to use the August hearing date which it felt gave counsel sufficient time to prepare, but indicated if further developments arose it would consider setting the hearing for a later date. While appellant contends that he renewed the motion for a continuance at trial, he did not cite the portion of the record in which this occurred, and this court was unable to locate it. Appellant has failed to show he was prejudiced or that the trial court abused its discretion. State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984).


Appellant next challenges the trial court's rulings regarding witnesses. He first objects to the trial court's decision to deny his motion to limit testimony of the victims. He contends that because he was willing to stipulate to the harm and conduct at issue, it was unnecessary and prejudicial to allow the victims to testify. A trial court may exclude relevant evidence if the danger of unfair prejudice substantially outweighs its probative value. See Minn. R. Evid. 403. The trial court's discretion will not be reversed unless it is abused. State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993).

In his testimony, appellant denied or minimized the sexual misconduct that his victims testified he had inflicted on them, including those incidents that resulted in conviction, undercutting his claim that he was willing to stipulate to these facts. The court advised the experts not to allow sympathy, prejudice, or bias based on the witnesses' testimony to influence their opinion and indicated that this is the same instruction it tends to give to itself. Under these circumstances, appellant has not shown that the trial court abused its discretion under rule 403 in allowing the victims to testify.

Next, appellant contends that Dr. Satterfield, the court-appointed examiner, improperly reserved judgment as to whether appellant met all the criteria for the SPP commitment until she heard victim testimony. Claiming this was prejudicial he argues, without citing authority, that Dr. Satterfield's report should have been based solely on her interview of appellant and review of the records. We can determine no grounds for such a limitation. Further, appellant advised the court he had no objection to Dr. Satterfield's presence during the hearing. He did not object to her testimony that she relied on her observations of the victims' testimony to conclude appellant exhibited an utter lack of power to control his sexual impulses, and appellant conducted an extensive cross-examination of Dr. Satterfield. The trial court did not err in permitting Dr. Satterfield to assess the victims' testimony in connection with her ultimate assessment of appellant. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986) (court's evaluation of credibility of experts of particular significance where findings of fact rest on expert opinion).


Appellant next argues that respondent failed to establish by clear and convincing evidence that he met the criteria for commitment. To commit a person as a SPP or SDP, the petitioner must prove the requirements for commitment by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1; see Minn. Stat. § 253B.185, subd. 1 (providing provisions of section 253B.18 apply to SPP and SDP commitments); Minn. Stat. § 253B.02, subd. 18b (Supp. 1997) (definition of SPP); Minn. Stat. § 253B.02, subd. 18c(a) (Supp. 1997) (definition of SDP). Findings of fact will not be reversed unless clearly erroneous. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). Whether the trial court findings are sufficient to meet the commitment standards raises a question of law subject to de novo review. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

While both Dr. Satterfield and Dr. Fox concluded that appellant had an utter lack of power to control his sexual impulses and is highly likely to engage in acts of harmful sexual conduct in the future, Dr. Reitman disagreed. See Minn. Stat. § 253B.02, subd. 18b. Appellant contends that Dr. Reitman's testimony was very compelling, and the trial court should not have disregarded it.

The trial court made extensive findings on the experts' opinions and concluded that appellant had an utter lack of power to control his impulses to engage in harmful sexual conduct. The court also specifically explained why it did not credit Dr. Reitman's opinion. While Dr. Reitman testified that appellant admitted to his behaviors for which he was convicted, the court found this testimony contradictory because appellant did not admit or testify to all of the offenses for which he was convicted. At the hearing, appellant acknowledged several instances of abuse, but unequivocally denied that many of the incidents the victims testified to occurred. The court also found Dr. Reitman's conclusion that appellant acknowledged his offenses and was beginning to show insight not credible because appellant acknowledged his past misconduct and began to show insight only after conferring with his counsel following his first meeting with Dr. Reitman. While appellant asserts that reliance on this conference violates the attorney-client privilege, we disagree. The court's finding refers only to the timing of certain events, not the contents of appellant's meeting with counsel.

Dr. Fox and Dr. Satterfield also concluded that it was highly likely that appellant would engage in harmful sexual conduct in the future. See Minn. Stat. § 253B.02, subds. 18b, 18c(a)(3). Dr. Reitman, however, opined that appellant was not likely to reoffend if he was required to participate in outpatient sex offender treatment and was closely monitored. He also interviewed appellant's wife and believed she would be supportive. But a victim testified at trial that when she was nine years old, she stayed overnight at appellant's home and he raped her. She told him to stop loudly enough for his wife, who was in another bedroom, to hear, and she was convinced his wife was aware of appellant's abusive acts but did nothing to stop them.

The evaluation of expert testimony is most particularly within the province of the trial court. Joelson, 385 N.W.2d at 811. The trial court specifically explained why it did not credit Dr. Reitman's opinions. This decision is supported by the evidence and is not clearly erroneous.

Appellant raises additional challenges to the trial court findings. He first asserts they do not reflect the fact he had a good prison record. But the court cited Dr. Fox's opinion that appellant's good behavior in a controlled setting (prison) was not a good predictor of future dangerousness; instead, good behavior would be a significant factor had it occurred outside the controlled environment.

Next, appellant criticizes the fact that the court's findings were taken almost verbatim from respondent's proposed findings. Verbatim adoption of a party's proposed findings is not per se reversible; instead, the clearly erroneous standard of review remains applicable. Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). We have strongly cautioned, and do so again here, however, that verbatim adoption of one party's proposed findings and conclusions could raise questions as to whether the trial court properly made an independent evaluation of each party's testimony and evidence. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1993), review denied (Minn. Feb. 12, 1993). Because the findings are supported by the record and in turn support the conclusions, we see no error in their adoption.

Appellant next contends the court erroneously credited the testimony of a victim who testified appellant drugged her and then had intercourse with her, despite Dr. Satterfield's testimony that no drug would have this effect. There is no merit in this allegation. The trial court did not credit the victim's belief that she was drugged; instead, it recognized Dr. Satterfield's explanation that the victim felt "frozen" during the sexual assault and felt as if she were drugged. The trial court's finding is supported by the evidence and is not clearly erroneous.

Appellant also asserts that the trial court improperly found that he had repeatedly appealed his criminal convictions, when it had previously ruled that appellant had an "absolute right to appeal" and that it would not be held against him. While we agree that the trial court made a prior ruling as to this evidence, appellant does not cite to where in the findings or the record the trial court reneged on its promise. Neither does he indicate how in the presence of substantial evidence and some 40 pages of findings and conclusions based on that evidence, a mere reference to appeals would be prejudicial to him.


Appellant next contends that he was not committed to the least restrictive alternative setting. After ordering an initial commitment as a SPP or SDP, the court may commit the person to "a secure treatment facility or to a treatment facility willing to accept the patient under commitment." Minn. Stat. § 253B.18, subd. 1 (Supp. 1997). The court here found that the sex offender treatment programs at the Minnesota Security Hospital and the Minnesota Sexual Psychopathic Personality Treatment Center at Moose Lake were capable of meeting appellant's treatment needs and no less restrictive treatment program was available that could meet his needs.

Appellant contends Dr. Reitman's compelling recommendation for an alternative that he specifically "designed" for appellant with the University of Minnesota should have been adopted. This involved commitment to a halfway house and electronic home monitoring, in which he would receive treatment but safeguards would be provided to ensure public safety. In the event appellant appeared to be leaning towards his prior tendencies, he could be removed from the program and placed at a state hospital. He argues the trial court erred in dismissing this option without discussion.

The court was presented with the experts' opinions as to the least restrictive alternative, as well as other evidence relevant to the decision. Based on the record, it committed appellant to the security hospital or Moose Lake. Again, the assessment of Dr. Reitman's opinion and credibility is most particularly within the province of the court. Joelson, 385 N.W.2d at 811. The trial court exercised its discretion in refusing to accept Dr. Reitman's recommendation. This decision is not clearly erroneous and clear and convincing evidence supports it.


Appellant argues that his commitment under the SDP statute, Minn. Stat. § 253B.02, subd. 18c (Supp. 1997), violated substantive due process and the prohibitions against double jeopardy and ex post facto laws. Respondent contends that because appellant did not raise the ex post facto issue below, he may not raise it for the first time on appeal. In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981). In the interest of completeness, we shall address the ex post facto basis along with those properly raised before the trial court.

The Minnesota Supreme Court upheld the constitutionality of the SDP law against substantive due process, double jeopardy, and ex post facto challenges. In re Linehan, 557 N.W.2d 171, 174-75 (Minn. 1996), vacated & remanded, 66 U.S.L.W. 3398 (U.S. Dec. 8, 1997) (No. 96-8876). These issues are currently pending before the Minnesota Supreme Court on remand from the United States Supreme Court. This court will continue to rely on Linehan until further directions or decisions by the supreme court.


[1] The trial court ordered most of the documents in the trial court file sealed. See Minn. Stat. § 253B.23, subd. 9 (Supp. 1997). Consequently, this court will treat those documents as confidential.

[2] This court has reviewed the transcript of the July 2, 1997, hold hearing at which the parties argued the motions for a change of venue and continuance. Contrary to the beliefs of the parties, the trial court file contains this transcript.