This opinion will be unpublished and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
C1-98-284

In the Matter of:
Brian Lee Buse.

Filed July 28, 1998
Affirmed
Schultz, Judge*

Douglas County District Court
File No. P6-96-845

James S. Dahlquist, 270 Grain Exchange North Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant Buse)

Hubert H. Humphrey III, Attorney General, John L. Kirwin, Steven J. Lokensgard, Assistant Attorneys General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127; and

Allen Senstad, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)

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

SCHULTZ, Judge

Appellant Brian Lee Buse challenges his indeterminate commitment as a sexual psychopathic personality (SPP), arguing there was insufficient evidence to show he exhibited an utter lack of power to control his sexual impulses. He also disputes his commitment as a sexually dangerous person (SDP), arguing there was insufficient evidence to show he engaged in the necessary harmful sexual conduct that created a high likelihood of serious physical or emotional harm. Finally, he contends his SDP commitment violated due process. We affirm, holding that the court had clear and convincing evidence to support the commitments and that Buse's due process rights were not violated.

FACTS

Appellant Brian Lee Buse has an extensive history of sexual misconduct. While in high school, he was adjudicated delinquent twice for fourth-degree criminal sexual conduct after he sexually assaulted several female students in 1983. He twice threatened to rape another student. During this period, he sexually assaulted his sister on three occasions, but was interrupted twice by his parents. Buse was committed to a treatment center for juveniles and resided there between March 1984 and February 1985. While there, he admitted to additional acts of sexual abuse with younger children. After discharge, Buse returned to his parents' home. While babysitting a four-year-old girl, he engaged in oral sex with her twice and exposed himself once.

In March 1990, Buse sexually assaulted a 17-year-old girl by digitally penetrating her. Buse pleaded guilty to criminal sexual conduct in the fourth degree. During the summer of 1990, Buse sexually assaulted a number of young girls at a beach. Following his release from prison in May 1992, Buse again sexually assaulted children at the beach. He pleaded guilty to criminal sexual conduct in the fifth degree and returned to prison.

Buse was released from prison in April 1993. In September 1993, he broke into the apartment of an 18-year-old woman and threatened to rape her, and later threatened to kill her. Several days later, she found him holding a gun while in a vehicle in her parking lot. He pleaded guilty to terroristic threats.

Even when in jail, Buse continued his pattern of sexual misconduct. In November 1993, Buse and another inmate attempted to sexually assault a 19-year-old inmate; Buse later beat him so severely he required hospitalization. Buse pleaded guilty to fifth degree assault. A few days later, Buse attempted to force anal sex on a 20-year-old male inmate and later pleaded guilty to attempted criminal sexual conduct in the third degree for the incident. While in prison, Buse participated in sex offender treatment but was terminated for failing to progress.

In September 1996, shortly before Buse was scheduled for release from prison, a petition for commitment was filed. At the hearing, three experts testified as to Buse's condition. Dr. Robert G. Riedel, the first court-appointed examiner and a licensed psychologist, concluded that Buse met all of the criteria for commitment as an SPP and an SDP and recommended treatment at the Moose Lake Sexual Psychopathic Personality Treatment Center (SPPTC). Dr. Harry Hoberman, a psychologist and the court's second appointed examiner, agreed that Buse met all of the criteria for commitment as an SDP, but he testified that Buse did not have an utter lack of power to control his sexual impulses as required by the SPP statute. Dr. Richard Friberg, a licensed psychologist and consultant for the Department of Corrections, opined that Buse met the criteria for commitment under both the SPP and SPD statutes.

The district court concluded there was clear and convincing evidence to commit Buse as an SPP and SDP. After a review hearing, the district court made Buse's commitment indeterminate. Buse appeals.

D E C I S I O N

District court findings of fact will not be reversed unless clearly erroneous. Minn. R. Civ. P. 52.01. An appellate court will review de novo whether there is clear and convincing evidence in the record to support the district court's conclusions that appellant meets the standards for commitment. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

I.

Buse first contends the evidence did not show he exhibited "an utter lack of power to control [his] sexual impulses," required for commitment as an SPP. Minn. Stat. 253B.02, subd. 18b (Supp. 1997). The supreme court has set out certain factors for the district court to consider in determining whether the person exhibited this predatory sexual impulse and the lack of power to control it. In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 115 U.S. 146 (1994).

The expert witnesses were questioned extensively as to Buse's condition and the factors relevant to a determination of whether Buse exhibited an utter lack of power to control his sexual impulses. Dr. Riedel and Dr. Friberg concluded that Buse lacked the power to control his sexual impulses, while Dr. Hoberman concluded Buse did not meet this standard.

The evaluation of expert testimony by the district court is of particular significance when the court's factual findings rest primarily on that testimony. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). The district court found that all of the experts testified Buse satisfied the Blodgett factors and agreed he had an utter lack of power to stop himself from engaging in acts of sexual misconduct. As to Dr. Hoberman's conclusion that Buse exhibited some control because he desisted from engaging in further acts of harmful sexual conduct, the court found that Buse was interrupted by external forces or the victims successfully resisted his attempted misconduct. The court concluded there was "no evidence that Buse has the internal controls which would have stopped him from pursuing his sexual misconduct further, if that was his desire." In any event, the court found in these instances Buse had already engaged in conduct constituting criminal sexual conduct. The court's conclusion that Buse showed an utter lack of power to control his sexual impulses is supported by clear and convincing evidence and is not clearly erroneous.

II.

Buse next challenges his commitment as a sexually dangerous person under Minn. Stat.  253B.02, subd. 18c (Supp. 1997). He contends there was insufficient evidence to show he "engaged in a course of harmful sexual conduct." Id. "Harmful sexual conduct" is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Id., subd. 7a(a) (1996). The statute also creates a rebuttable presumption that the standard is met if the person engages in certain acts of criminal sexual conduct or other criminal acts. Id., subd. 7a(b).

Buse first argues that he presented evidence to show he overcame the rebuttable presumption. But the district court did not rely on the presumption because it found clear and convincing evidence from which to conclude that Buse's conduct met the standards under Minn. Stat.  253B.02, subd. 7a(a). Therefore, we decline to address it.

Buse next claims that his conduct was not sufficiently serious to constitute "harmful sexual conduct. He attempts to minimize the seriousness of his conduct, contending he never committed a "rape," did not physically harm his victims, did not use a weapon, and committed most of his offenses in public. Buse contends that his most grievous crime was attempted sexual conduct in the third degree, to which he pleaded guilty in 1994. Cf. In re Linehan, 518 N.W.2d 609, 611 (Minn. 1994) (patient kidnapped and killed a 14-year-old girl, molested 11 and 12-year-old girls, and attempted to rape a 12-year-old girl after escaping from prison). He also argues that his victims' testimony showed they had not experienced serious physical or emotional harm.

The district court made findings as to the experts' opinions on this issue. Dr. Hoberman reported that the "large number of victims, their variability in gender and age, and the types of sexual offenses perpetrated over an 18-year period clearly constitutes a course of harmful sexual assaults." Dr. Hoberman stated there was a substantial likelihood that this type of conduct would cause cause severe emotional harm to Buse's victims. Contrary to Buse's argument, Dr. Hoberman believed some of Buse's victims who testified had suffered severe emotional harm. Further, Dr. Hoberman noted that Buse's increasing willingness to use physical aggression showed an escalating pattern of sexual aggression. The court found the testimony of Dr. Reidel and Dr. Friberg to be consistent with the testimony of Dr. Hoberman on this issue.

The district court had clear and convincing evidence to support its determination that Buse should be committed as an SDP and its decision was not clearly erroneous.

III.

Finally, Buse claims that under recent supreme court decisions, his commitment under the SPP and SDP laws violated his right to substantial due process. The Minnesota Supreme Court has upheld both the SPP and the SDP statutes against substantive due process challenges. Blodgett, 510 N.W.2d at 916 (SPP); In re Linehan, 557 N.W.2d 171, 180-81 (Minn. 1996) (SDP), vacated and remanded, 118 S.Ct. 596 (1997). Pending decision by our supreme court on remand in the Linehan SDP case, this court will continue to uphold the constitutionality of the SDP law.

Affirmed.