This opinion will be unpublished and

may not be cited except as provided by

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




Timothy W. Nygaard,



David Doth,

Commissioner of Human Services,


Filed May 19, 1998


Harten, Judge

Otter Tail County District Court

File No. 182

James W. Brandt, 219 West Nassau, P.O. Box 57, St. Peter, MN 56082 (for appellant)

Hubert H. Humphrey III, Attorney General, LauraSue Schlatter, Christine S. May, Assistant Attorneys General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (for respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.



Timothy Nygaard contends that the judicial appeal panel (1) abused its discretion when it admitted into evidence hearsay statements; (2) erroneously placed the burden of proof on him; and (3) erred in failing to grant his petition for discharge or provisional discharge. We affirm.


Appellant is a 34-year-old man who was committed as a psychopathic personality in 1982 at age 18, based on his convictions for criminal sexual conduct and for indecent exposure after his sexual contacts with young children.

Appellant received sex offender treatment at the Minnesota Security Hospital, but his progress was impeded due to his verbal limitations and incidents of sexual activity with other patients. In 1987, after his fantasies about children increased, he was transferred to the mental health program at the hospital.

In July 1990, appellant was provisionally discharged to the Nexus halfway house. About a year later, he returned to the security hospital on a voluntary revocation of his provisional discharge. His revocation was not based on the usual ground of dangerous behavior. Instead, according to the head of the hospital, appellant was unwilling to talk about certain issues and apparently believed he would receive more freedom at the hospital. He was advised to cooperate and work towards discharge.

From 1991 to 1996, appellant resided in an open unit at the St. Peter Regional Treatment Center (SPRTC). In 1995, Dr. William Erickson, SPRTC medical director, concluded that because appellant's pedophiliac behavior had not recurred during a 10-year period in which he had been allowed to enter the community, there was no longer evidence to support a diagnosis of pedophilia. But in 1996, appellant began to engage in sexually inappropriate behavior with adults.

On February 3, 1997, appellant petitioned the special review board for full discharge, or, in the alternative, for a provisional discharge. The commissioner adopted the board's recommendation to deny the petition. Appellant then petitioned for a rehearing and reconsideration; a hearing was held before the judicial appeal panel.

At the hearing, the court-appointed examiner, psychologist Thomas Alberg, diagnosed appellant with a mixed personality disorder. He characterized appellant's sexually inappropriate behavior as being in the nature of an adolescent attempt to learn appropriate sexual behavior from those of his own age. He believed that appellant still needed to learn about empathy and understand the effects of his own sexual abuse. Alberg recommended a provisional discharge to a halfway house that would include sexual behavior programming. He did not support full discharge.

Glen Peterson, appellant's behavioral analyst, testified that because of appellant's recent inappropriate sexual behavior, he did not support appellant's petition for a provisional discharge to a halfway house. Such a facility would not provide sufficient structure for appellant or protection for the community. He recommended inpatient treatment and supervision.

Dr. Lorri Sills, a unit psychiatrist at the SPRTC, testified that appellant still engaged in nonconsensual sexual behavior with vulnerable victims. She did not support provisional discharge because appellant needs further treatment to learn more appropriate sexual expression and still needs supervision. The halfway house does not provide programming that would allow appellant to learn social interaction skills.

Appellant testified that if he were provisionally discharged, he would live in a halfway house and attend outpatient treatment. If given a full discharge, he planned to reside with his girlfriend's father.

The appeal panel affirmed the commissioner's order denying the petition for full or provisional discharge. Nygaard appeals.


1. Hearsay. Appellant claims that the judicial appeal panel erred in admitting and considering various hearsay statements regarding his sexually inappropriate behavior. This court will not disturb rulings on the admissibility of evidence unless an abuse of discretion or an error of law occurs. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Even then, the error must be prejudicial before a new trial will be ordered. Id.

The rules of evidence apply to commitment proceedings. Minn. Stat. § 253B.08, subd. 7 (1996). "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Minn. R. Evid. 801(c). Unless subject to an exception, hearsay statements are not admissible. Minn. R. Evid. 802. But an admission offered against a party-opponent is not hearsay. Minn. R. Evid. 801(d)(2).

Appellant challenges the appeal panel's decision to admit into evidence the hearsay statements about his recent sexually inappropriate behavior. Because appellant admitted to three of the incidents and part of the fourth, we find it unnecessary to address the claimed hearsay exceptions as to the two remaining incidents. The admitted behavior alone was sufficient to support the panel's consideration of appellant's sexually inappropriate behavior.

2. Burden of Proof. Appellant contends that the judicial appeal panel erred because it placed the burden of proving the sufficiency of the evidence to support discharge on appellant and not on the commissioner. The panel stated that appellant did not submit evidence sufficient to meet the standards for discharge.

The party seeking discharge bears the initial burden of going forward. Minn. Stat. § 253B.19, subd. 2 (Supp. 1997). But the party opposed to discharge bears the ultimate burden of persuasion to show the person is still in need of commitment. Id.; Caprice v. Gomez, 552 N.W.2d 753, 758 (Minn. App. 1996) (concluding these statutory provisions did not violate due process), review denied (Minn. Oct. 29, 1996). The appeal panel properly applied the law.

3. Application of Basis for Original Commitment. Appellant next argues that the commissioner failed to prove that a reasonable relation exists between the original reason for appellant's commitment and his continued commitment.

Even if the threshold requirements for an initial commitment are no longer met, the constitution requires that the nature of commitment "must bear some reasonable relation to the purpose for" the original commitment. Call v. Gomez, 535 N.W.2d 312, 318-19 (Minn. 1995) (citing Foucha v. Louisiana, 504 U.S. 71, 79, 112 S. Ct. 1780, 1785 (1992)). Discharge is appropriate when this reasonable relation no longer exists, as shown by the application of the discharge criteria in Minn. Stat. § 253B.18, subd. 15 (Supp. 1997). Call, 535 N.W.2d at 319; see Minn. Stat. § 253B.185, subd. 1 (1996) (provisions of section 253B.18 apply to commitments as sexual psychopathic personalities).

Appellant argues that because the original basis for his commitment--a diagnosis of pedophilia and improper sexual contact with children--is no longer present, there is no reasonable relation between the reason for his commitment and his continued confinement (we note that another psychiatrist indicated in July 1997 that he would like to reconsider the diagnosis). In any event, to address this issue, we must consider the merits of the petition for discharge. Call, 535 N.W.2d at 319.

The appeal panel's decision must be affirmed if the evidence supports its findings. Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992). Findings will not be reversed unless clearly erroneous. See Minn. R. Civ. P. 52.01.

Minn. Stat. § 253B.18, subd. 15, specifies three factors to be considered in determining whether a petition for discharge should be granted. The supreme court summarized these factors as follows:

[The patient's] commitment and treatment should continue if the state proves by clear and convincing evidence that he does not meet the statutory discharge criteria because he continues to need inpatient treatment and supervision for his sexual disorder and continues to be a danger to the public.

Call, 535 N.W.2d at 319.

The mental health professionals differed as to appellants' need for inpatient treatment and supervision. Psychologist-examiner Alberg recommended an outpatient treatment program to help appellant with his remaining sexual issues, noting that appellant has not received extensive sex offender treatment recently. Dr. Sills recommended inpatient treatment that would include aggressive group therapy to teach appellant how to interact and work through his sexual expressions. She opined that a halfway house would not provide him with the structure he needs. The behavioral analyst believed appellant still needs inpatient supervision and treatment in his current setting. Because of his recent misconduct, a halfway house with less structure and monitoring would be inappropriate.

As to appellant's dangerousness, the appeal panel cited appellant's recent sexually inappropriate behavior. We consider only the incidents admitted by appellant. In October 1996, appellant told a female co-worker at his work site that he wanted to digitally penetrate her. He acknowledged that in May 1997, he climbed into the bed of a female SPRTC resident, but denied at the hearing that he fondled her. Appellant, however, admitted to staff on June 20, 1997, that he engaged in sexual touching on May 28, 1997. Appellant also admitted entering the administration buildings after hours via a fire escape thereby frightening a staff person who was inside.

Appellant criticizes the appeal panel's reliance on these facts. First, he contends that the commissioner did not call any witness who could establish a therapeutic relationship with appellant at the hearing. But the staff psychiatrist and the behavioral analyst testified appellant declined to establish such a relationship.

Next, appellant argues that even assuming that the commissioner's allegations as to his inappropriate behavior were true, such behavior would not meet the standard for commitment as a psychopathic personality. We are not addressing the standard for initial commitment, but whether the confinement still bears a reasonable relation to the original reason for commitment (sexually inappropriate behavior), as shown by applying the statutory discharge criteria. Call, 535 N.W.2d at 319.

The appeal panel's decision is supported by the evidence and is not clearly erroneous.

4. Provisional Discharge. Although appellant's argument focuses on the discharge, the denial of the provisional discharge issue will be addressed. In determining whether to grant a petition for provisional discharge, the appeal panel must consider

(a) whether the patient's course of hospitalization and present mental status indicate there is no longer a need for treatment and supervision in the patient's current treatment setting; and (b) whether the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the patient to adjust successfully to the community.

Minn. Stat. § 253B.18, subd. 7 (Supp. 1997).

Psychologist-examiner Alberg believed that appellant was not dangerous and no longer needed inpatient treatment and supervision. He recommended provisional discharge to a halfway house with outpatient therapy twice a week. But the behavioral analyst testified that appellant's ongoing behaviors require the structuring and monitoring that could only be provided in an inpatient setting, and provisional discharge would not provide reasonable protection to the public. Dr. Sills also opposed provisional discharge because appellant would not receive the degree of supervision he needed at a halfway house to prevent further sexually inappropriate behaviors and he required additional treatment. Dr. Sills testified that the facility appellant sought discharge to did not have sexually-oriented programming and would not accept appellant because he lacked one year of "clean" time with no allegations of misbehavior.

The appeal panel denied the petition for provisional discharge based on the lack of a provisional discharge plan that would provide the structure and treatment appellant needs. The decision is supported by the evidence and is not clearly erroneous.