Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of:
Steven David Larson.
Filed May 12, 1998
Hennepin County District Court
File No. PX8933638
Michael O. Freeman, Hennepin County Attorney, Karen Ann Roesler, Mary Johnson, Assistant County Attorneys, A-2000 Government Center, Minneapolis, MN 55487 (for respondent state)
Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.
Appellant seeks reversal of his commitment as a sexual psychopathic personality (SPP) and sexually dangerous person (SDP), challenging an evidentiary ruling, the sufficiency of the evidence to support his commitment as a SPP, the ability of the state to treat his condition, and whether his commitment was to the least restrictive alternative. We affirm, concluding the trial court made a correct evidentiary ruling and that clear and convincing evidence supports its decisions.
While at the St. Cloud correctional facility, appellant did not receive sex offender treatment. In October 1994, prison officials transferred him to the Moose Lake correctional facility for participation in sex offender treatment for individuals with lower intelligence. He was returned in less than two weeks due to his disruptive behavior. Appellant began counseling with a department of corrections psychologist. After receiving a warning as to the limited confidentiality available, he disclosed thoughts of accessing female victims and thereby gaining revenge on their parents.
A petition for commitment was filed. At the hearing, the court-appointed examiner diagnosed appellant with pedophilia (female-exclusive) and mild borderline mental retardation/antisocial, narcissistic traits. The examiner testified that appellant met the statutory criteria for a SPP and SDP and recommended commitment to the Minnesota Sexual Psychopathic Personality Treatment Center at Moose Lake.
At the review hearing, appellant's social worker at the Minnesota Security Hospital testified that appellant had declined to enter sex offender treatment and instead entered a pretreatment program. She testified that appellant's treatment plan will accommodate his borderline intellectual functioning.
The trial court made appellant's commitment to Moose Lake as a SPP and SDP indeterminate, and he appeals.
Prior to the testimony, the court addressed the admissibility of this evidence. Appellant contended that without a specific waiver of his medical privilege and absent a specific Tennessen warning cautioning him that this information could be used against him in a commitment hearing, the evidence was not admissible. The trial court found the evidence admissible under Minn. Stat. § 253B.23, subd. 4 (1996), providing for the waiver of medical privileges, and ruled that the law did not require a specific disclosure that statements made in treatment may be used against prisoners in a future commitment hearing.
Appellant does not dispute the applicability of Minn. Stat. § 253B.23, subd. 4, but argues to this court that his due process liberty rights were affected and that he was never advised that the information he voluntarily supplied in therapy would be used against him in commitment hearings. He asserts that the spirit and intent of the Tennessen warning, set out in Minn. Stat. § 13.04, subd. 2 (1996), require he be given such a warning.
We share appellant's concern about the gathering and use of information and agree that those in the system should be given the Tennessen warning when appropriate. But here, appellant signed such a Tennessen warning in 1991, during his imprisonment at St. Cloud. Further, appellant was not asked to supply the information he now challenges, but voluntarily sought therapy.
The psychologist testified that she discussed with appellant the limited confidentiality afforded their meetings, specifically warning that some of the information could be disclosed outside of the therapy sessions and addressing the possibility of commitment. She also showed appellant a copy of the policy, which she posted on her wall. Appellant began seeing her, but after one of the sessions expressed concerns about potential commitment. The psychologist testified that she again advised appellant that it was very possible she could be ordered to discuss the content of their sessions as part of the commitment process. Appellant then stopped seeing the psychologist for a two-month period out of concern that the visits could adversely affect him. When appellant later said he wanted to resume therapy, she cautioned him again to think about the decision carefully, but he decided to continue with the individual sessions. On cross-examination, the psychologist stated she did not recall that any of her comments to appellant regarding disclosure were included in her notes. While appellant disputes the psychologist's statements, the trial court apparently weighed the credibility of her testimony favorably. On the record before us, we see no error or abuse of its discretion in admitting this evidence.
The trial court concluded, based on the record, that there was clear and convincing evidence to find appellant had an utter lack of power to control himself. See In re Blodgett, 510 N.W.2d 910, 915 (Minn.) (listing factors relevant to determination), cert. denied, 513 U.S. 849 (1994). The evidence included appellant's impulsivity, desire for vengeance, denial of wrongdoing, lack of treatment, commission of offenses despite a high risk of being caught, the closeness in time of his offenses, and the young ages of his victims. The court-appointed examiner was of the opinion, based on all these facts, that appellant possessed an utter lack of power to control his sexual impulses.
Appellant contends the trial court did not have clear and convincing evidence to support its conclusions, and asserts the presence of certain flaws. Appellant cites to the lack of recent diagnostic testing to substantiate the experts' opinions. Id. (testing and evaluation may be relevant). The court found, however, that while the court-appointed examiner did not perform diagnostic tests on appellant, he reviewed the results of previously performed tests.
Regarding his two convictions, appellant first minimizes the conviction for solicitation of children to engage in sexual conduct, contending it does not constitute a conviction for "criminal sexual conduct." We note, however, that the commitment statute addresses behaviors, not convictions. In re Monson, 478 N.W.2d 785, 789 (Minn. App. 1991). Further, the incident leading to the solicitation conviction shows sexual misconduct. Appellant bribed a young boy to procure an even younger girl for sex. They went into his shed; when she started screaming after he began to pull up her dress, he lifted her out of the shed, fondling her in the process.
Appellant next contends that it is inconsistent to convict him of two offenses that require intent and then commit him because he allegedly had an utter lack of power to control his actions. There is no merit in this argument. The supreme court ruled that the SPP law was constitutional and did not adopt the dissent's theory on this point. Linehan, 518 N.W.2d at 615 (Gardebring, J., dissenting).
Appellant also asserts he has shown control because he has been around children many times but offended only twice. Respondent counters that few offenses occurred because throughout the years there were efforts to remove appellant's access to children. Further, the court-appointed examiner found the convictions significant in showing lack of control, citing the closeness in time in which these offenses occurred, the young age of the victims, and the presence of witnesses, showing appellant was at high risk to be caught.
Finally, appellant contends the experts and the trial court improperly relied on a 1988 offense even though the parties and court agreed not to consider it. We see no error. At trial, respondent cautioned that even though the record was purged of statements and investigative materials regarding this incident, there were scattered references to the incident as well as to the fact that it did not result in a conviction in other parts of the record. During the hearing, the court-appointed examiner referred to the 1988 incident, but only indicated the charges were dismissed for lack of evidence. There was no objection from appellant to this testimony, and he has not shown that any prejudice resulted from this statement.
The trial court had clear and convincing evidence from which to conclude appellant exhibited an utter lack of power to control his sexual impulses.
Next, appellant contends his borderline intellectual functioning will prevent him from ever receiving appropriate sex offender treatment. We disagree. Appellant's social worker at the security hospital testified that appellant is now participating in a pretreatment group to ready him for treatment. She explained that individuals with similar difficulties have entered treatment. Special teachers are available to help individuals who have difficulty reading and writing, and to assist staff in adapting their methods to ensure comprehension by these patients. The social worker testified as to various strengths appellant has that will help him in treatment. He has a level 12.9 general fund of knowledge despite his low reading level, demonstrating real ability to comprehend and integrate information. He shows good capacity to respond to his caregivers, has been virtually incident-free, and has adjusted well to work. In light of these facts, appellant's claim that he cannot receive appropriate treatment fails.
Appellant contends that the trial court erred in determining that the Moose Lake SPPTC was the least restrictive alternative, and seeks placement at a community facility geared toward mentally retarded sex offenders. He cites the opinion of the director of the St. Cloud Correctional Facility's psychological services that the community facility or the Moose Lake SPPTC facility could treat his condition, and the opinion of his psychologist that in assisting appellant with his release planning from prison, the community facility was the best option. The court-appointed examiner, however, testified at the initial hearing that appellant needs a locked, highly supervised environment. He has no control over his behavior, which could lead to more sex offenses in the community and an inability to get along with others in a group home. The court-appointed examiner was uniformly opposed to treatment at the community facility and recommended Moose Lake. At the review hearing, the social worker also testified that appellant needed residential treatment in a structured, supervised facility, and recommended placement in the sex offender program. The trial court was not clearly erroneous in committing appellant to Moose Lake based on appellant's need for security and treatment at a highly structured, supervised residential treatment facility.
 The "Tennessen Warning" as set forth in the Minnesota Data Practices Act provides:
An individual asked to supply private or confidential data concerning the individual shall be informed of: (a) the purpose and intended use of the requested data within the collecting state agency, political subdivision, or statewide system; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data.
Minn. Stat. § 13.04, subd. 2 (1996).
 The trial court broadly construed the provisions of Minn. Stat. § 253B.23, subd. 4 (1996), which on their face apply to privileges between physicians, examiners, and social workers and their patients, to include privileges for any form of therapy. The current version of the statute specifically includes the psychologist-patient privilege. Minn. Stat. § 253B.02, subd. 4 (Supp. 1997).