This opinion will be unpublished and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:
Bert Ernest Daby.

Filed July 28, 1998
Schultz, Judge*

Hennepin County District Court
File No. P29660545

Gregory R. Solum, 5275 Edina Industrial Boulevard, Suite 105, Edina, MN 55439 (for appellant Daby)

Michael O. Freeman, Hennepin County Attorney, Rebecca S. Rognrud, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent petitioner)

Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Schultz, Judge.*

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

U N P U B L I S H E D   O P I N I O N


Bert Daby appeals from his indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), raising evidentiary issues, challenging the adequacy of the review hearing, contending he was not committed to the least restrictive alternative, and arguing that his constitutional rights were violated. We affirm, holding the court did not abuse its discretion or commit clear error as to its evidentiary decisions, the review hearing was adequate, there was clear and convincing evidence to show appellant was committed to the least restrictive alternative, and appellant's constitutional rights were vindicated.


In 1969, appellant Bert Daby was convicted of aggravated rape after he grabbed a 12-year-old girl off her bicycle while brandishing a knife, threatened to kill her, dragged her to a secluded area, and forced her to engage in repeated oral, digital, and vaginal intercourse. He was paroled about five years later in April 1974.

In July 1974, while still on parole, appellant approached a 10-year-old girl and an 11-year-old girl who were on a riverbank. Wielding a fishing knife, he forced them to remove their clothes and orally and digitally penetrated both girls. Appellant was convicted of two counts of indecent liberties and sentenced to a maximum of seven years, concurrent with his parole violation.

In November 1978, appellant was paroled to a halfway house. He absconded after a few days. About a year later, he was apprehended in California, his parole was revoked, and he was returned to a correctional facility where he remained until August 1984. After completing a sex offender program in prison and a residential sex offender program, appellant was released in February 1985, but remained under parole supervision.

In August 1985, appellant, while "helping" a nine-year-old girl and her two companions look for their bikes, separated the girl from the others, took out a knife and threatened to kill her, and then repeatedly orally, digitally, and vaginally raped her and attempted to anally rape her. The attack occurred while appellant was on parole. He was convicted of indecent liberties and sentenced to 202 months is prison. While in prison for this crime, he refused to participate in treatment from 1986 to 1993. In 1994, he agreed to enter a treatment program. Shortly before his scheduled release date in November 1996, a petition for commitment was filed.

At the initial hearing, Dr. Richard Friberg, a psychologist at Lino Lakes Correctional Facility, and Dr. Paul Reitman, Ph.D., a psychologist and the court-appointed examiner, offered their opinions on appellant's condition. Dr. Reitman testified appellant met the standards for commitment, while Dr. Friberg believed he did not. The district court, relying on Dr. Reitman's expert opinion, concluded that petitioner proved by clear and convincing evidence that appellant met the standards for commitment as an SPP and SDP.

At the subsequent review hearing, Ronda Heskin, a psychologist and member of appellant's treatment team at the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC) at Moose Lake, testified appellant had made no significant improvement since his admission and continued to need care and treatment at the facility. The court found that commitment to MSPPTC was the least restrictive alternative that would provide appropriate long-term sex offender treatment in a secure facility and would adequately protect the public. It made appellant's commitment as an SPP and SDP indeterminate. Bert Daby appeals.



District court findings of fact will not be reversed unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). This court will review the record de novo to determine whether there is clear and convincing evidence to support the trial court's conclusion that appellant meets the standards for commitment. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994). This court will not defer to the trial court on issues of law. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992).

Appellant raises a number of evidentiary challenges. He contends that the evidence received at trial was presented in such an "amorphous manner" that he had no effective defense, and that exculpatory evidence was used to justify his commitment. Appellant first challenges what he believes to be differing opinions by experts as to "grooming" behavior. But the opinions were not inconsistent; instead, the witnesses focused on different aspects of grooming behavior.

Appellant also cites what he claims are exculpatory facts and expert opinions relating to his deviant fantasies and to the fact he sought assistance from an attorney relating to a treatment program. A district court has "broad discretion in assessing the credibility of witnesses and the weight to be given their testimony." Park-Lake Car Wash, Inc. v. Springer, 394 N.W.2d 505, 514 (Minn. App. 1986). We decline to second-guess the district court's evaluation of this evidence.

Appellant next complains of a videotape that the court received into evidence over his foundation, relevancy, and hearsay objections. A decision whether to admit evidence is within the broad discretion of a district court and will not be reversed absent an erroneous view of law or an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). A new trial will be awarded only if the complaining party can demonstrate the district court committed prejudicial error. Id.

Appellant primarily complains of a statement he made on the videotape, challenging the significance the examiner placed on it. But appellant does not dispute he made the statement and thus its admittance was not prejudicial. Further, he offered his own explanation of the meaning of the statement to the court. The weight given to the statement, and the examiner's interpretation of its significance, was for the district court to assess. Springer, 394 N.W.2d at 414; Joelson, 385 N.W.2d at 811.

Appellant also complains of the significance placed on his failure to admit to the label of "pedophile." He notes that, regardless of this diagnostic label, he has never denied violently raping the child victims. Dr. Reitman, however, explained that although appellant acknowledged his offenses, he did not recognize he was a pedophile or truly understand the problems with his core beliefs, the effect of his conduct on his victims, or his need for victim empathy.

Finally, appellant argues that through the sheer volume of documentary exhibits, including criminal and police records and oral testimony, he was characterized as a criminal actor. But this evidence was necessary and relevant to prove the requisite elements for commitment. Appellant has not demonstrated error.

The district court was faced with conflicting testimony by the experts as to whether appellant met all the standards for commitment as an SPP and SDP. The court, after assessing and weighing the evidence, concluded there was clear and convincing evidence to support both commitments. The court's decision is supported by the record and is not clearly erroneous.


After a person is initially committed as an SPP or SDP, the district court must hold a review hearing to decide whether the commitment should be made indeterminate. Minn. Stat. § 253B.18, subds. 2, 3 (Supp. 1997). Appellant contends that the right to a review hearing in an SPP/SDP case is "illusory." He notes that in a commitment as mentally ill and dangerous, the committing court may drop the "dangerous" label after the review hearing and commit the patient as only mentally ill. Minn. Stat. § 253B.18, subd. 2 (Supp. 1997). But as appellant notes, no such provision is available for one committed as an SDP or SPP. Appellant asserts that in any event, significant improvement is unlikely in the short period between the initial commitment and the review hearing.

In In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996), vacated & remanded, 118 S. Ct. 596 (1997), the supreme court addressed the scope of the review hearing in an SDP commitment case. Because of the significant liberty interests at stake, the court declined to confer res judicata status on the initial commitment order. Instead, it held that at the review hearing the district court had discretion to consider "new and helpful" evidence. Id. But the court limited the new evidence that could be considered to the statutorily required treatment report, evidence of changes in the patient's condition since the initial commitment, and such other evidence regarding whether the patient continued to meet the statutory criteria for commitment. Id. This language addresses the significance and scope of the review hearing, answering appellant's complaints, and we will continue to follow it pending further direction by the supreme court upon resolution of Linehan.

Appellant also argues that even if he had been "cured" or became "symptom-free," the treatment professionals would not have changed their recommendation and the court still would have ordered indeterminate commitment. These facts are not present in this case and it is unnecessary to address this argument.


In SDP and SPP indeterminate commitments, the court must find there is no appropriate less restrictive alternative available for placement of an individual. Minn. R. Civ. Commitment 12.06; see also In re Bieganowski, 520 N.W.2d 525, 531 (Minn. App. 1994) (Minn. R. Civ. Commitment 12.06 applicable to indeterminate psychopathic personality commitment), review denied (Minn. Oct. 27, 1994). The district court here found that commitment to the MSPPTC was the least restrictive available placement presently meeting appellant's treatment needs while providing sufficient protection to society.

Appellant contends there were no specific findings of fact outlining the trial court's reasons for rejecting the supervised release plan. But the factual specificity required for other commitment hearings is not included in the SPP or SDP acts. Linehan, 557 N.W.2d at 190.

Appellant next argues that as a practical matter, any alternative to the MSPPTC was illusory because the only proposed alternative placement did not accept individuals who had been committed. The district court heard testimony of recommended treatment options from the expert witnesses, which provided clear and convincing evidence from which it could conclude appellant should be indeterminately committed to the MSPPTC. We find no error.


Appellant contends that his commitment hearing was conducted in a quasi-criminal manner and that consequently he should have been given the constitutional and procedural safeguards available in criminal proceedings.

In determining whether a proceeding is criminal or civil in nature, the courts will first look to the legislature's categorization of the statute as civil. Kansas v. Hendricks, 117 S. Ct. 2072, 2081-82 (1997). A label of civil, as indicated by the description of the act, shows its intent to create a civil proceeding. Id. While this label is not necessarily dispositive, a court will reject a legislature's "manifest intent" only when a party challenging the statute

provides "the clearest proof" that "the statutory scheme [is] so punitive either in purpose or effect as to negate [the state's] intention" to deem it "civil."

Id. at 2082 (citation omitted).

Minn. Stat. ch. 253B (1996 & Supp. 1997) is entitled "Civil Commitment Act," leading to the presumption that the act is civil. Hendricks, 117 S. Ct. at 2082. Our supreme court has ruled that the psychopathic personality commitment act is for remedial treatment purposes, not for preventive detention. Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn. 1995) (holding law does not violate double jeopardy); see Linehan, 557 N.W.2d at 189 (concluding "SDP Act is facially civil and is not so punitive in purpose or effect to trigger the federal constitutional prohibitions against ex post facto laws and double jeopardy"). Under this analysis, appellant has failed to show that the act is so punitive as to render it criminal in nature.

Finally, appellant claims that the commitment proceedings impinged on his constitutional right to substantive due process. The Minnesota Supreme Court has upheld the SPP and SDP statutes against substantive due process claims. In re Blodgett, 510 N.W.2d 910, 916 (Minn.) (SPP), cert. denied, 513 U.S. 849 (1994); Linehan, 557 N.W.2d at 180-81 (SDP). Pending a decision by our supreme court on remand in the Linehan case, this court will continue to follow the case.