may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Matter of:
Joseph Daniel Kubec.
Filed September 8, 1998
Toussaint, Chief Judge
Hennepin County District Court
File No. P0-96-60561
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.*
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.
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.
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.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.