may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of: Christopher Welin.
Filed June 22, 1999
Anoka County District Court
File No. P29710260
Robert M.A. Johnson, Anoka County Attorney, Janice M. Allen, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.
Christopher Welin appeals his indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), contending the district court did not have clear and convincing evidence to support its decision. He also challenges the constitutionality of the SPP and SDP laws. We affirm.
Welin, who turned 19 on February 5, 1998, has an extensive history of aggressive behavior and sexual misconduct. When he was 12, he engaged in sexual activities ranging from exhibitionism to anal and vaginal intercourse with boys and girls from ages 5 to 15, sometimes using threats or coercion. This led to his adjudication as delinquent on two charges of felony criminal sexual conduct.
The court placed Welin in various facilities for sex-offender treatment. He did not successfully complete any of the programs and instead continued his aggressive and sexually inappropriate behavior. This conduct continued even after the petition for commitment was filed.
Dr. James Gilbertson, the court-appointed examiner, Dr. Paul Reitman, the second examiner, and petitioner's expert, Dr. Richard Friberg, testified Welin met the statutory criteria for commitment as an SPP and SDP. The court committed Welin to the Minnesota Security Hospital as an SPP and SDP. While at the security hospital, Welin engaged in threatening conduct and sexual behavior with other patients. Nonetheless, Dr. Eli Coleman, the second court-appointed examiner at the review hearing, indicated in a report that he found Welin's progress "remarkable" and believed he was no longer at high risk to reoffend. He did not recommend commitment. Dr. Anita Schlank, director of the Minnesota Sex Offender program, found no evidence that Welin's condition had changed since the initial commitment.
The district court committed Welin for an indeterminate period to the Minnesota Sex Offender Program as an SPP and SDP. Welin appeals.
This court will uphold findings of fact if not clearly erroneous. In re Kunshier, 521 N.W.2d 880, 884 (Minn. App. 1994). But whether the record shows that the person meets the standards for commitment by clear and convincing evidence is a question of law. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).
Welin argues that the district court did not have sufficient evidence from which to conclude he met the standards for commitment as either an SPP or SDP. Commitment as an SPP requires a "habitual course of misconduct in sexual matters." Minn. Stat. § 253B.02, subd. 18b (1998). Similarly, for an SDP commitment, there must be a showing that the person "engaged in a course of harmful sexual conduct." Minn. Stat. § 253B.02, subd. 18c(a) (1998). In concluding this factor was met, the district court specifically cited Welin's sexual assaults on his brother, which occurred about 60 times in the summer of 1992, as well as his frequent sexual activity with a mildly retarded 15-year-old girl and her 12-year-old brother.
While not challenging the court's findings as to his sexual misconduct, Welin contends it was improper to base his commitment on his conduct as a juvenile. But there is no authority for this proposition. Welin further argues that since being placed in juvenile facilities, he has not displayed the same kind of sexual misconduct and instead exhibited only immaturity and lack of discipline. To the contrary, Dr. Gilbertson described Welin's conduct while at the treatment center - where individuals are usually on their best behavior or respond favorably to the structure and treatment - as "highly irregular." Further, the court found that even after Welin turned 18, he engaged in sexual misconduct.
Welin also challenges whether there was sufficient evidence that his victims were likely to suffer emotional harm. Conduct supporting an SPP commitment must be "of such an egregious nature that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims." In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994). Likewise, for an SDP commitment, "harmful sexual conduct" is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a) (1998).
Welin contends that the emotional harm suffered by the brother and sister could be caused by factors other than his conduct. The district court made findings to that effect, but also found Welin's behavior contributed to their emotional disturbances. And the court found that Welin's brother experienced emotional disturbances as a result of Welin's sexual assaults. In addition, all three experts at the initial hearing testified as to the serious emotional harm that is likely to occur to child sex-abuse victims. The district court had clear and convincing evidence from which to conclude that emotional harm was likely.
Welin does not dispute that the court had clear and convincing evidence from which to conclude he met the second SPP requirement that he exhibit an utter lack of power to control his sexual impulses. See Minn. Stat. § 253.02, subd. 18b (requiring utter lack of power to control sexual impulses for SPP commitment). Instead, he challenges the second requirement for commitment as an SDP that he have "manifested a sexual, personality, or other mental disorder or dysfunction." Minn. Stat. § 253B.02, subd. 18c(a)(2). Dr. Schlank, director of the MSOP program, diagnosed Welin with pedophilia, attracted to both genders, nonexclusive type, attention deficit hyperactivity disorder by history, obsessive-compulsive disorder, borderline personality disorder, and personality disorder not otherwise specified, with histrionic and antisocial features. The experts at the initial hearing offered similar diagnoses. But Dr. Coleman, the second examiner for the review hearing, cautioned that evaluators should take care in diagnosing pedophilia in an adolescent who has not continued to commit sex crimes in recent years, noting that adolescents often commit "sex offenses" but do not become dangerous adult sex offenders.
When a finding of fact rests almost entirely on expert testimony, the district court's credibility evaluation is of particular significance. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). The district court was not compelled to accept Dr. Coleman's testimony, particularly in light of the testimony to the contrary. Here, the district court had clear and convincing evidence from which to conclude Welin suffered from pedophilia, as well as the other disorders.
Welin also challenges the district court determination that he is likely to cause harm in the future. See Minn. Stat. §§ 253B.02, subd. 18b (requiring showing that person "is dangerous to other persons" in SPP commitment); 253B.02, subd. 18c(a)(3) (requiring showing that person "is likely to engage in acts of harmful sexual conduct" for SDP commitment). For the SDP commitment, the supreme court specified the likelihood of future harm must be high. In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996), vacated & remanded, 118 S. Ct. 596 (1997).
Welin challenges this determination based on one of the expert's discussion of statistics. But statistical information is only one factor of several to consider in determining a person's likelihood of reoffense. In re Linehan, 518 N.W.2d at 614 (listing six factors to be considered in predicting whether future harm is likely in SPP commitment); see Linehan, 557 N.W.2d at 189 (applying factors to SDP commitment). All three experts from the initial hearing concluded the risk of reoffense was high or very high. At the review hearing, there was no evidence Welin's condition had changed. Consequently, the district court had clear and convincing evidence from which to conclude that Welin was highly likely to reoffend if not committed.
Welin next contends that he was not committed to the least-restrictive alternative. The supreme court has recently ruled that this determination is not required in an SPP or SDP commitment. In re Senty-Haugen, 583 N.W.2d 266, 269-70 (Minn. 1998). In any event, there was extensive evidence supporting the district court determination that treatment at the MSOP program at Moose Lake and St. Peter was the least restrictive alternative.
Finally, Welin challenges the constitutionality of the SPP and SDP acts based on Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997). But he did not raise the issue of the constitutionality of the SPP act below, which usually precludes consideration on appeal. In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981). In any event, the Minnesota Supreme Court has already upheld the constitutionality of the psychopathic personality act. In re Blodgett, 510 N.W.2d 910 (Minn. 1994), cert. denied, 513 U.S. 849 (1994); State ex rel. Pearson v. Probate Court, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939), aff'd, 309 U.S. 270 (1940). Moreover, this court has recently rejected challenges to the SPP law based on Hendricks. Joelson v. Commissioner of Human Servs., ____ N.W.2d ____ (Minn. App. May 18, 1999).
As to the SDP act, the Minnesota Supreme Court very recently upheld its constitutionality under Hendricks. In re Linehan, ____ N.W.2d ____, ____, No. C1-95-2022, slip op. at 6, 19 (Minn. May 27, 1999). In doing so, it clarified that the act applied to those "whose present disorder or dysfunction does not allow them to adequately control their sexual impulses." Id. at 15.
The district court here made extensive findings showing Welin lacked the requisite control, including that he was driven by his personality disorder and had an utter inability to control his sexual impulses. As in Linehan, the district court findings provide clear and convincing evidence to support Welin's commitment as an SDP. See id. at 16.
 The district court also ordered an initial commitment as mentally ill and dangerous, but did not make this commitment indeterminate.