This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-98-118

In the Matter of:

Henry Woodruff.

Filed June 30, 1998

Affirmed

Klaphake, Judge

Hennepin County District Court

File No. P7-97-60079

Gregory R. Solum, 5275 Edina Industrial Blvd., Ste. 105, Edina, MN 55439 (for appellant Woodruff)

Michael O. Freeman, Hennepin County Attorney, Thomas G. LaVelle, Assistant County Attorney, Hennepin County Government Ctr., A-2000 Government Ctr., Minneapolis, MN 55487 (for respondent petitioner)

Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Norton, Judge.*

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant challenges his commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). Because (1) any evidentiary error was not

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

prejudicial; (2) appellant's Fifth Amendment rights were not violated; (3) the petition for commitment met the statutory requirements; (4) the court committed appellant to the least restrictive alternative; and (5) appellant's right to substantial due process was not violated, we affirm.

D E C I S I O N

I.

Appellant challenged the admissibility on hearsay grounds of 1971 and 1975 police records from Missouri. See Minn. R. Evid. 802 (hearsay inadmissible); City of Fairmont v. Sjostrom, 280 Minn. 87, 91-93, 157 N.W.2d 849, 853 (1968) (hearsay statements included in public record not admissible unless based on entrant's own observation). These records contained rape charges that did not result in convictions, although appellant pleaded guilty to a theft from person charge arising from the 1971 charges.

Appellant argues that the trial court improperly used these records as proof that he engaged in a habitual course of sexual misconduct and a course of harmful sexual conduct. Minn. Stat. 253B.02, subds. 18b (SPP), 18c(a)(SDP) (Supp. 1997). The court's findings not only refer to the "numerous untried allegations of misconduct with a high degree of behavioral similarity," but also cite appellant's prior criminal history (including the 1971 theft from person conviction, three convictions for sexual misconduct, and a third-degree murder conviction) and the recent allegations made by E.J. (which included an attempt to kill her, severe beatings, and forced sex). Even without considering the challenged allegations from the Missouri police records,[1] appellant's prior convictions and E.J.'s testimony support finding that appellant engaged in the requisite course of misconduct to meet the first factor for commitment as an SPP and SDP. Minn. Stat. 253B.02, subds. 18b, 18c(a)(1). Thus, no prejudicial error occurred. See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (even if evidentiary error occurs, appellate court will not order new trial unless prejudice is shown).

Appellant argues that because the expert witnesses were repeatedly questioned about the allegations, the court gave its imprimatur to the use of the allegations as historical data. While an expert may use reliable, otherwise inadmissible hearsay to form the basis for an opinion, there was no showing the allegations met this standard. See Minn. R. Evid. 703(a) 1989 comm. cmt. (rule aimed at allowing experts to base opinions on reliable hearsay). Again, however, an evidentiary error requires a new trial only if prejudicial, and we find no prejudice here. See Uselman, 464 N.W.2d at 138.

Appellant contends that the experts were confused by the constant references to the allegations. We disagree. The experts were asked to give their opinions based not only on the allegations, but also on appellant's prior convictions and the recent allegations by E.J. Dr. Hoberman opined that, based solely on appellant's prior convictions, appellant exhibited an utter lack of power to control his sexual impulses. Minn. Stat. 253B.02, subd. 18b (requiring showing of utter lack of power to control sexual impulses for SPP commitment); see, e.g., In re Blodgett, 510 N.W.2d 910, 915 (Minn.) (listing factors relevant to utter lack of control), cert. denied, 513 U.S. 849 (1994).[2] Dr. Reitman rendered a similar opinion and cited E.J.'s testimony as further support for his opinion.

The experts further offered opinions on appellant's diagnosis, required for commitment as an SDP. Minn. Stat. 253B.02, subd. 18c(2). Dr. Hoberman diagnosed appellant as having impulse control disorder with narcissistic traits and anti-social personality disorder. Dr. Reitman diagnosed him with pervasive dysthymic disorder and anti-social personality disorder, with a further diagnosis of sadistic personality disorder, sexually aggressive type, based on E.J.'s testimony.

Finally, these experts addressed whether appellant was highly likely to reoffend. See Minn. Stat. 253B.02, subds. 18b (SPP), 18c(3)(SDP); In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (citing factors to consider in determining likelihood of future harm); see also In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (adopting SPP factors to determine whether high likelihood of harm present in SDP commitment), vacated & remanded, 118 S. Ct. 596 (1997). With respect to the SPP commitment, Dr. Hoberman concluded that appellant was "seriously dangerous" because he had committed a murder and was more likely than not a violent recidivist who will commit sexually dangerous acts.

As to the SDP commitment, Dr. Hoberman testified that the sexual convictions, the murder conviction, and appellant's lack of treatment were critical factors in concluding that appellant was highly likely to reoffend. Dr. Reitman expressed the opinion that, as to the SPP commitment, appellant was dangerous to others based on the criminal convictions alone. As to the SDP commitment, Dr. Reitman testified that appellant was likely to engage in harmful sexual conduct considering his prior convictions and the clinical interview alone, that appellant was highly likely considering other allegations of sexual assaults, and that appellant was extremely highly likely considering the truth of E.J's testimony.

Appellant claims that the numerous factors and massive record led the trial court to omit many of the relevant factors from its findings. In particular, he argues that the "base rate factors" and factors involving his medical and family history were not considered by the trial court. See Linehan, 518 N.W.2d at 614 (relevant to likelihood of future harm); Blodgett, 510 N.W.2d at 915 (relevant to utter lack of control). The trial court made extensive findings and considered many relevant factors. A review of these findings demonstrates that the trial court had clear and convincing evidence from which to conclude that the standards for commitment were met.

II.

Appellant contends that his Fifth Amendment rights against self-incrimination were violated because he was forced to testify at the commitment hearing. The Fifth Amendment protects witnesses from testifying in civil actions if their answers "would enhance the threat of criminal prosecution such that reasonable grounds exist to apprehend its danger." In re Bobo, 376 N.W.2d 429, 433 (Minn. App. 1985) (quoting Parker v. Hennepin County Dist. Ct., 285 N.W.2d 81, 82-83 (Minn. 1979)). However, Bobo does not limit questioning of the proposed committed person to the topic of mental illness; rather, the court must determine the likelihood of criminal prosecution. Id. at 433-34 (no violation of right against self-incrimination where patient not questioned about matters which would subject him to criminal penalty). The trial court here properly restricted the questioning to those crimes for which appellant had already been convicted or on which the statute of limitations had run, and precluded any questions regarding E.J.'s testimony. Consequently, there was no violation of appellant's right against self-incrimination.

III.

Appellant raises several procedural issues regarding his petition for commitment. First, he challenges the fact that the petition was not accompanied by an examiner's statement. See Minn. Stat. 253B.07, subd. 2(c) (Supp. 1997) (requiring examiner's statement). The statutory provisions specific to SPP and SDP commitments, however, do not require an examiner's report. Minn. Stat. 253B.185, subd. 1 (1996).

Appellant next contends that the petition was flawed because it was not verified by an interested person with actual knowledge of the facts involved. See Minn. Stat. 253B.185, subd. 1 (providing petition to be executed by person having knowledge of facts); Minn. R. Civ. Commitment 1.01 (providing petition shall be verified and allege facts sufficient to support relief prayed for). We disagree. Although the corrections psychologist who verified the petition did not interview appellant, the psychologist's review of the files meets the statutory requirement that the person have knowledge of the facts involved.

Appellant further complains that the psychologist did not initially support the commitment and signed the petition only after it was prepared by the county attorney's office. He contends that during his stint in prison, the corrections department classified him as a criminal rather than a sex abuser. The record shows that the psychologist explained he considered this a difficult case and that an experienced psychologist suggested that he refer the matter to the county attorney's office. The fact that the psychologist who verified the petition did not recommend commitment initially is not fatal to the petition.

IV.

Appellant contends he was denied the right to adequate treatment at the least restrictive alternative. Committed persons have the right "to receive proper care and treatment, best adapted * * * to rendering further court supervision unnecessary." Minn. Stat. 253B.03, subd. 7 (Supp. 1997). As long as the state continues to provide treatment and periodic reviews, due process requirements are met. Blodgett, 510 N.W.2d at 916. Based on the experts' recommendations, the trial court committed appellant to the Moose Lake Sexual Psychopathic Personality Treatment Center as the least restrictive placement available to meet appellant's treatment and security needs.

Appellant notes that Dr. Reitman testified that even treatment at Moose Lake would be inadequate and that a more effective program would provide for gradually less restrictive phases over a shorter period of time, with intensive psychological treatment. However, as Dr. Reitman recognized, such a program or facility was not available. Thus, the trial court could conclude that it had clear and convincing evidence that placement at the security hospital or at Moose Lake was the least restrictive presently available alternative for appellant.

V.

Appellant contends that involuntary commitment proceedings based on predictions of future criminal behavior deprive him of his constitutional right to substantive due process. The Minnesota Supreme Court has upheld the constitutionality of the SPP law and the SDP act against substantive due process challenges. Linehan, 557 N.W.2d at 180-84 (SDP); Blodgett, 510 N.W.2d at 916 (SPP). Although the constitutionality of the SDP act is currently pending before the Minnesota Supreme Court on remand from the United States Supreme Court, we continue to follow Linehan pending further decision by our supreme court. Linehan, 118 S. Ct. at 596 (remanded to Minnesota Supreme Court for further consideration in light of Kansas v. Hendricks, 117 S. Ct. 2072 (1997)).

Affirmed.

[1] While the trial court made findings as to other "allegations" of sexual misconduct, appellant's hearsay arguments are limited to the 1971 and 1975 police records.

[2] Appellant challenges Dr. Hoberman's reliance on factors set out in case law as the basis for his opinion regarding lack of control. These factors, however, are relevant in making this determination. Blodgett, 510 N.W.2d at 915.