This opinion will be unpublished and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

C9-98-520

In Re the Matter of:

Joseph Daniel Kubec.

Filed September 8, 1998

Affirmed

Toussaint, Chief Judge

Hennepin County District Court

File No. P0-96-60561

Lisbeth J. Nudell, 3228 Holmes Avenue South, Minneapolis, MN 55408 (for appellant Kubec)

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

Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Holtan, Judge.*

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

TOUSSAINT, Chief Judge

Appellant Joseph Kubec challenges the district court's decision to commit him indeterminately as a sexual psychopathic personality and a sexually dangerous person. He raises issues already decided in his appeal from his initial commitment, contends that the district court did not have clear and convincing evidence to conclude he continued to meet the standards for commitment and challenges the constitutionality of the sexually dangerous person statute. We decline to readdress issues decided in the appeal from the initial commitment, conclude that the district court had clear and convincing evidence to determine Kubec met the standards for indeterminate commitment and decline to address further, the constitutionality of the sexually dangerous person statute while the issue is pending before the supreme court.

D E C I S I O N

An appellate court will not reverse findings of fact made by the district court unless clearly erroneous. Minn. R. Civ. P. 52.01. On appeal we review de novo the question of whether the record supports the district court's conclusion that a patient meets the standards for commitment by clear and convincing evidence. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

I.

Kubec raises issues he asserted in his appeal from his initial commitment, and contends that the district court erroneously relied on its incorrect determinations in making his commitment indeterminate. This court affirmed Kubec's commitment in his first appeal. In re Kubec, No. C9-97-1673 (Minn. App. Jan. 27, 1998).

In considering challenges to an indeterminate commitment, the initial commitment is not given res judicata status because of the liberty interests at stake. In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996), vacated & remanded, 118 S. Ct. 596 (1997). Nonetheless, the review hearing is of limited scope. The district court need not reconsider the patient's arguments as to the initial basis for commitment. Id. at 171. Instead, the district court may consider the statutorily required report, evidence of changes in the patient's condition since commitment, and other evidence that assists the court in determining whether the patient continues to meet the criteria for commitment. Id. Because this court has already reviewed and affirmed the initial commitment, we will address only the propriety of the indeterminate commitment considering the limited scope of the review hearing.

II.

The district court concluded that Kubec met the standards for commitment as an SPP and an SDP. See Minn. Stat. § 253B.02, subds. 18b, 18c (Supp. 1997). Kubec first challenges whether the evidence supported the determination that he exhibited an "utter lack of power to control" his sexual impulses, a required showing for an SPP commitment. Minn. Stat. § 253B.02, subd. 18b. He relies on the testimony of the second court-appointed expert who believed Kubec could control his sexual behavior, despite his opinion that Kubec met the statutory and case law standards for commitment as an SPP. See Minn. Stat. § 253B.02, subd. 18b (requiring utter lack of control); In re Blodgett, 510 N.W.2d 910, 915 (Minn.) (listing factors to consider in deciding whether person has "predatory sex impulse" and "lack of power to control it"), cert. denied 513 U.S. 849 (1994).

The district court was not required to accept the examiner's opinion, and we defer to the district court's assessment of his testimony. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). Instead, the district court considered testimony from a treatment center psychologist that Kubec had not changed or significantly improved, and the report that the treatment center continued to support his commitment. The district court had clear and convincing evidence to support its decision.

Next, Kubec challenges the determination that he has manifested a sexual and personality disorder, required for an SDP commitment. Minn. Stat. § 253B.02, subd. 18c(a)(2). The district court's determination as to credibility is afforded deference. Joelson, 385 N.W.2d at 811. The district court was presented with the undisputed fact that Kubec has a personality disorder and a history of pedophilia. The director of the sex offender program diagnosed Kubec with pedophilia. An examiner concluded that a pedophilia diagnosis might be appropriate if there was evidence Kubec was still sexually attracted to children. The district court received evidence that Kubec had recently discussed his arousal by children and that he had recently received pornographic videotapes, including a tape that contained explicit sexual conduct between prepubescent males. The district court was not clearly erroneous in determining Kubec had a diagnosis of a sexual and personality disorder.

Finally, Kubec disputes the determination in his SDP commitment that he is likely to commit sexual offenses in the future. Minn. Stat. § 253B.02, subd. 18c(a)(3). Kubec relies on his assertion that he is not a pedophile, citing evidence from several experts that without a diagnosis of pedophilia, it would be difficult to predict that he would cause harm in the future. Both experts acknowledged that if Kubec were diagnosed with pedophilia, there would be a danger that he would act on his urges. Based on the district court determination that appellant's diagnosis of pedophilia continued and the prediction from the sex offender program psychologist that Kubec would pose a danger if untreated, the district court had clear and convincing evidence from which to conclude Kubec continued to pose a danger to others in the future.

III.

Kubec contends that the SDP law is unconstitutional because it violates due process and violates the prohibition against double jeopardy. These issues are before the Minnesota Supreme Court on remand from the United States Supreme Court. Linehan v. Minnesota, 118 S. Ct. 596 (1997) (vacating and remanding to supreme court). This court will continue to follow Linehan, and we decline to address further the constitutionality of the SDP law pending final determination by the supreme court.

Affirmed.

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