may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of:
Alexander Mark Martinelli.
Filed September 15, 1998
Hennepin County District Court
File No. P89660565
Michael O. Freeman, Hennepin County Attorney, Peter J. Stiehm, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Holtan, Judge.[*]
On appeal from an initial commitment as a sexually dangerous person (SDP), appellant Alexander Mark Martinelli challenges the constitutionality of the SDP Act. He also argues that the district court erred in making evidentiary rulings and in failing to commit him to the least restrictive alternative. We affirm.
When Martinelli was 13 years old, he was judged delinquent and sent to a boarding school. At age 14, he left the boarding school and went to live with his mother in Florida. Martinelli admitted that while attending school in Florida, he manipulated others into having sex with him. At age 17, Martinelli worked for an escort service and regularly engaged in sexual activity with customers. He also reported dating older men in Florida.
In the spring of 1993, when Martinelli was 19, he moved to Minnesota and enrolled in high school. While a high school student, Martinelli engaged in sexual relations with other students. Martinelli pleaded guilty to third-degree criminal sexual conduct for performing oral sex on a 14-year-old boy, T.F.W., in October 1993. Martinelli also pleaded guilty to third-degree criminal sexual conduct for performing oral sex on a 15-year-old boy, M.B., during the same month.
Martinelli also engaged in sexual relations with two young boys that he met at a youth center. Martinelli pleaded guilty to third-degree criminal sexual conduct for performing oral and anal sex on a 13-year-old boy, J.S., in December 1993. The district court found proof by clear and convincing evidence that Martinelli committed third-degree and attempted third-degree criminal sexual conduct offenses against a 14-year-old boy, C.R., in November 1993. On one occasion, Martinelli performed oral sex on C.R. On another occasion, Martinelli attempted to have anal sex with C.R.
In July 1994, Martinelli was admitted to ReEntry West halfway house under Ramsey County's intensive supervised probation program. In August 1994, Martinelli was admitted to a sex offender outpatient program at Project Pathfinder. In November 1994, Martinelli was terminated from the program at ReEntry West for manipulating his medication and because another resident alleged that Martinelli had been viewing pornography on a laptop computer.
In December 1994, Martinelli fled from Minnesota and traveled to Halifax, Nova Scotia. The district court found proof by clear and convincing evidence that Martinelli committed second-degree criminal sexual conduct against a 12-year-old girl, A.A., in Halifax. The court found that Martinelli grabbed the girl's breasts and crotch, pushed her onto his bed, and struck her in the face with his fists.
In January 1995, a probation violation proceeding was conducted, and the district court executed Martinelli's sentence for the offenses he committed against M.B. and T.F.W. Martinelli was admitted to the Minnesota Correctional Facility in Stillwater and later transferred to the Minnesota Correctional Facility in St. Cloud. While at St. Cloud, Martinelli refused to attend sex offender treatment. He maintained that he did not believe he had done anything wrong.
In May 1996, Martinelli was transferred to the Hennepin County Adult Corrections Facility. The district court found that while at the Hennepin County jail, "Martinelli solicited and received mail containing and advertising child pornography, some of which contained violent themes." From August to November 1996, Martinelli attended nine sessions of sex offender treatment at the University of Minnesota program in human sexuality. Additional sessions had been scheduled but were cancelled because program staff and Martinelli's probation officer were concerned that Martinelli would flee.
Four licensed psychologists testified as to whether Martinelli met the statutory requirements for commitment as a sexually dangerous person (SDP). Douglas Leo Fox, Ph.D., and Thomas Alberg, Ph.D., testified that Martinelli met the statutory criteria. Roger C. Sweet, Ph.D., and Richard Friberg, Ph.D., testified that Martinelli did not meet the statutory criteria.
1. Citing Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997), Martinelli argues that the SDP Act violates substantive due process guarantees because it does not require a showing of utter lack of control of sexual impulses for commitment. The Minnesota Supreme Court rejected that argument and upheld the constitutionality of the SDP Act; however, the United States Supreme court vacated that decision and remanded the case for reconsideration in light of Hendricks. In re Linehan, 557 N.W.2d 171 (Minn. 1996) (Linehan II), vacated & remanded, 118 S. Ct. 596 (1997). Pending further direction from the Minnesota Supreme Court, this court will continue to find the SDP Act constitutional pursuant to Linehan II.
2. Martinelli argues that the evidence was insufficient to support his commitment. To support a commitment under the SDP Act, the petitioner must establish the statutory elements by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (1996); see Minn. Stat. § 253B.185, subd. 1 (Supp. 1997) (provisions of Minn. Stat. § 253B.18 apply to SDP commitments). This court will not reverse the district court's findings of fact unless they are clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). But this court reviews de novo whether there is clear and convincing evidence in the record to prove the elements required to commit an individual under the SDP Act. See In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I addressing Psychopathic Personality Act).
Minn. Stat. § 253B.02, subd. 18c(a) (Supp. 1997) provides:
A "sexually dangerous person" means a person who:
(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;
(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.
"`Harmful sexual conduct' means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Id., subd. 7a(a) (1996).
Martinelli argues that the evidence was insufficient to show that he caused serious physical or emotional harm to his victims and, therefore, insufficient to show that he engaged in a course of harmful sexual conduct or that he is likely to engage in such conduct in the future. The district court made detailed findings addressing emotional harm to Martinelli's victims. With regard to emotional harm to A.A., the district court found:
[A.A.] testified that she has since begun dating and that the incident with [Martinelli] made her "jumpy" about physical contact (e.g. hugging and kissing). She also testified that she had frequent nightmares involving [Martinelli] for close to a year, but that they had largely ceased by the time of trial.
With regard to emotional harm to T.F.W., the district court found:
[T.F.W.] testified that his grades declined after the incident and that he became paranoid at school. He had to transfer to a different school, one where the other students would not know what had happened to him. He testified that he lost faith in society, does not give people the benefit of the doubt anymore, and has bad mood swings. In the summer of 1994, he was sent to live with relatives on the advice of a mental health professional because he was on the verge of a mental breakdown. He has had bad temper tantrums; he has also kicked and punched three holes in the walls of his parents' house.
The experience with [Martinelli] left [T.F.W.] feeling weak and small. He fears his younger brothers will lose respect for him if they find out what happened to him. He testified that he has begun lifting weights so that he will not be seen as a vulnerable target in the future. He further testified that the incident with [Martinelli] was his only sexual experience. He has since been afraid of intimate physical contact. He testified that he has had girlfriends since the incident, but he can do nothing more than kiss them. He still has difficulty talking about the incident and also had trouble looking at [Martinelli], whom he had not seen since the incident in 1993.
* * * [T.F.W.'s] mother testified that [T.F.W.] became very angry after the assault. He began taking out his anger out on his younger brothers. T.F.W.'s anger also had an adverse impact on his father's impaired medical condition. She testified that she suggested to T.F.W.'s therapist that they send T.F.W. to her parents' home in Milwaukee. The therapist responded that the only alternative would be to have T.F.W. hospitalized as a danger to himself and others. When the time came to put T.F.W. on a plane to Milwaukee, T.F.W. was unwilling to go and disappeared, only to return two hours later. The next day, he left for Milwaukee to stay with her parents. She testified that T.F.W. is extremely bright but is still struggling in school as a result of [Martinelli's] assault.
With regard to emotional harm to J.S., the district court found:
J.S. testified that the experience with [Martinelli] has made it difficult for him to be friendly with other boys. He also is suspicious that other people, both males and females, have ulterior motives when doing anything sexual. He also testified that he was worried that [Martinelli] would visit him at work and at school, and was worried because he knew [Martinelli] would be angry about going to jail. He also began receiving therapy. While his therapy was for depression and was not entirely related to his experience with [Martinelli], J.S. testified that his experience with [Martinelli] was related to his problems. He testified that [Martinelli] no longer has an effect on him, and he no longer has problems touching other men. J.S., now 16 years old, has had sex with other men that he has known for a long time and he said he has not let his past become a problem for him. He also testified that he is working but not going to school.
With regard to emotional harm to C.R., the district court found:
C.R. testified about problems that his relationship with [Martinelli] caused him. He went into counseling as a result of his contact with [Martinelli]. His performance in school declined and C.R. eventually dropped out. He also testified that he was a runaway for awhile.
C.R. became suicidal and he had to be hospitalized in January, 1994. He testified that, while his suicidal thoughts were not caused entirely by his relationship with [Martinelli], his relationship with [Martinelli] did have a lot to do with his condition. He has since gone back to high school and is doing "fairly well." The incident with [Martinelli] made him feel silly and stupid because [Martinelli] was just trying to use him for sex. To accomplish this, he testified that [Martinelli] bought him food and cigarettes. He also testified that [Martinelli] talked to him about witchcraft. This made C.R. nervous for a long time after his relationship with [Martinelli]. [Martinelli] had told him that he could use witchcraft to watch him and C.R. often felt like he was being watched. This experience made C.R. skeptical of most religions, including witchcraft. He testified that he found [Martinelli] to be an evil person with bad intentions and he was glad that he did not see him at the trial.
The testimony of A.A., T.F.W., T.F.W.'s mother, J.S., and C.R., which the district court specifically found credible, was sufficient to establish by clear and convincing evidence that Martinelli's victims suffered serious emotional harm. Cf. State v. Williams, 451 N.W.2d 886, 890-91 (Minn. App. 1990) (in prosecution for malicious punishment of a child, trial court properly instructed jury that in determining whether children suffered substantial emotional harm, jury could consider behavior by children of a type not normally expected of this child or children and which would and had interfered with the child's normal growth and development and that jury should use its common sense to determine whether any emotional harm was substantial). The serious emotional harm suffered by Martinelli's victims together with Fox's and Alberg's testimony regarding Martinelli's personality disorders and likely future conduct proved by clear and convincing evidence that Martinelli engaged in a course of harmful sexual conduct and was likely to engage in such conduct in the future.
Because there was clear and convincing evidence that Martinelli caused serious emotional harm to victims, we need not address the argument that the rebuttable presumption set forth in Minn. Stat. § 253B.02, subd. 7a(b), is unconstitutional.
3. The question of whether to admit or exclude evidence rests within the broad discretion of the [district court] and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error.
Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (citations omitted).
Martinelli argues that the district court erred by admitting into evidence two unsigned police reports from the investigation of offenses committed against J.S. and C.R. The first report contained statements by an adult male regarding his knowledge of the sexual assaults Martinelli committed on J.S. and C.R. The second report contained a narrative of the investigating officer's work, an inventory of property seized pursuant to a search warrant executed in connection with the investigation, and a copy of the search warrant receipt, inventory, and return left at the residence that was searched.
The confrontation clauses of the federal and state constitutions do not apply to civil commitment proceedings. In re Irwin, 529 N.W.2d 366, 373 (Minn. App. 1995), review denied (Minn. May 16, 1995). Moreover, the investigating officer who prepared both reports testified at trial and was subject to cross-examination. Regarding the hearsay statements in the first report, the district court found that respondent had shown that the declarant was unavailable and that the criteria for admission under Minn. R. Evid. 804(b)(5) had been satisfied. The district court did not err in admitting the police reports into evidence.
Even if the district court erred in admitting the police reports into evidence, any error was not prejudicial to Martinelli. See Uselman, 464 N.W. 2d at 138 (complaining party must show that evidentiary error was prejudicial). Martinelli asserts that based on the police reports, the district court found he had committed fifth- and sixth-degree criminal sexual conduct. But these findings were not based on the police reports. The district court's finding that Martinelli committed criminal sexual conduct against J.S. was based on Martinelli's criminal conviction for committing third-degree criminal sexual conduct against J.S. The district court's finding that Martinelli committed third-degree criminal sexual conduct offenses against C.R. was based on C.R.'s testimony.
Martinelli also argues that in finding he had committed criminal sexual conduct offenses for which he had not been criminally convicted, the district court improperly convicted him of those offenses without following required procedures for a criminal prosecution. The district court, however, did not convict Martinelli of any criminal offenses. The district court found clear and convincing evidence that Martinelli had committed the offenses. In a commitment proceeding, proof by clear and convincing evidence satisfies due process requirements. State v. Ward, 369 N.W.2d 293, 296 (Minn. 1985)
4. Martinelli argues that the district court erred by failing to commit him to the least restrictive alternative. When a person is committed as an SDP, "there is no requirement for commitment to the least restrictive alternative. In re Senty-Haugen, ___ N.W. 2d ___, ___, 1998 WL 493521, at *4 (Minn. Aug. 20, 1998).
5. Martinelli argues that the district court erred by finding Fox qualified to testify as an expert under the SDP Act. To be qualified to testify as an expert in an SDP commitment proceeding, a licensed consulting psychologist must be "knowledgeable, trained, and practicing in the diagnosis and treatment of the alleged impairment." Minn. Stat. § 253B.02, subd. 7 (1996). "The sufficiency of the foundation to qualify a witness as an expert is almost entirely within the trial court's discretion." In re Miner, 424 N.W.2d 810, 813 (Minn. App. 1988), review denied (Minn. Jul. 28, 1988).
Fox, a licensed consulting psychologist, worked at the Minnesota Security Hospital in St. Peter from 1982 to 1992. At St. Peter, his primary job duty was conducting initial psychological assessments on men who had been committed as psychopathic personalities. He was also involved in a pilot project that conducted intensive group therapy for individuals who had been committed as psychopathic personalities. He also treated sex offenders through the Leeway Hoffman Center. At Leeway Hoffman, Fox performed initial assessments, formulated treatment plans, and performed ongoing therapy. Fox also testified that he participated in seminars and workshops on diagnosing and treating sexual offenders, including SDP's.
Fox's work experience and training were sufficient to support the district court's findings that Fox was qualified to testify as an expert and that Martinelli's objections went to the weight of his testimony, not its admissibility. See id. (trial court did not err in finding retired psychiatrist qualified to testify as an expert in commitment proceeding when she remained involved in the evaluation, assessment and formulation of treatment plans of patients who are mentally ill and dangerous; objections to testimony went to its weight, not admissibility).
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Martinelli does not specify the findings to which he objects. The district court did not find that Martinelli had committed any fifth- or sixth-degree criminal sexual conduct offenses. Because the police reports contained information regarding sexual assaults committed against J.S. and C.R., we assume Martinelli's objection is to the findings on the offenses committed against J.S. and C.R.
 In 1994, the civil commitment statute was amended from the Psychopathic Personality Act to the SDP Act. 1994 Minn. Laws 1st Spec. Sess. ch. 1, art. 1, §§ 1-3, 6: see also Linehan II, 557 N.W.2d at 179 (discussing differences between two acts).