This opinion will be unpublished and
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:
Larry Glenn Schultz.
Filed November 30, 1999
Steele County District Court
File No. P8-98-988
Neil W. Simonson, Attorney at Law, 106 Cedar Avenue North, Owatonna, MN 55060 (for appellant Schultz)
Mike Hatch, Attorney General, Steven J. Lokensgard, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Larry Glenn Schultz challenges his indeterminate commitment as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP) pursuant to Minn. Stat. 253B.02 subds. 18b,-18c (1998). He argues that (1) the commitment petition should have been dismissed because the commissioner of corrections did not give timely notice before appellant’s release date, (2) assessments of appellant by prison officials should not have been admitted into evidence under the business or public records exceptions to the hearsay rule, (3) the district court erred as a matter of law by relying on a rebuttable presumption of harm in committing appellant as a SDP, (4) the evidence was insufficient to support a finding that criminal sexual conduct was the goal of appellant’s 1969 and 1977 assaults, (5) the evidence was insufficient to support a finding that appellant engaged in a habitual course of misconduct in sexual matters and in a course of harmful sexual conduct, (6) the district court abused its discretion by admitting expert testimony, and (7) the SPP and SDP statutes are unconstitutional as violative of due process and equal protection. Because we see neither error of law nor abuse of discretion, we affirm.
On July 11, 1969, appellant, brandishing a knife, forced his way into a parked car occupied by a 29-year-old woman. As he started driving, the woman jumped from the car and summoned help. Appellant pleaded guilty to aggravated assault and was placed on probation. Appellant told Department of Corrections (DOC) psychologists that if the woman had not jumped out of the car, he "probably would have had sex with her."
The district court revoked appellant’s probation on September 1, 1972, because appellant engaged in indecent liberties with a 17-year-old girl. He gave the girl beer and, despite her objection, fondled her breasts and touched her vaginal area. Appellant was not charged in this incident. On August 6, 1976, a jury found him guilty of aggravated rape and indecent liberties in another incident.
On August 5, 1977, appellant again forced his way into a parked vehicle occupied by a woman. Again, he used a knife. He pleaded guilty to aggravated assault and was sentenced to five years in prison. Appellant told a court-appointed examiner that "raping her was the purpose for me getting in the van."
On April 22, 1982, appellant was paroled from prison to attend a chemical dependency program. He left the program without permission. While a fugitive, he and an accomplice picked up a female hitchhiker. Appellant forced her to disrobe, masturbate herself, and perform oral sex on him. Appellant subsequently pleaded guilty to first-degree criminal sexual conduct.
On November 18, 1998, respondent Steele County filed a petition for commitment of appellant as an SPP and an SDP as defined in Minn. Stat. 253B.02 subds. 18b, 18c (1998). The district court appointed two examiners; both found that appellant suffers from an anti-social disorder and determined that he is an SDP and an SPP. Appellant was indeterminately committed both as SDP and SPP. This appeal followed.
D E C I S I O N
1. Timeliness of Commitment Determination
Minn. Stat. § 244.05, subd. 7 (1998) provides:
If the commissioner determines that a [commitment] petition may be appropriate, the commissioner shall forward this determination, along with a summary of the reasons for the determination, to the county attorney * * * no later than 12 months before the inmate’s release date. * * * [I]f the commissioner receives additional information less than 12 months before release which makes the inmate’s case appropriate for referral, the commissioner shall forward the determination as soon as practicable.
Appellant argues that the 12-month requirement is mandatory rather than directory and that the commitment is invalid because the DOC did not bring his case to the attention of the county attorney at least 12 months before his scheduled release date. The construction of a statute is a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).
The interpretation of Minn. Stat. § 244.05, subd. 7, is guided by the principle that
provisions defining the time and mode in which public officials shall discharge their duties, and which are obviously designed merely to secure order, uniformity, system and dispatch in public business are generally deemed directory.
State v. Thomas, 467 N.W.2d 324, 326 (Minn. App. 1991) (quoting Wenger v. Wenger, 200 Minn. 436, 438, 274 N.W. 517, 518 (1937)). The 12-month requirement, which includes an exception for the receipt of new information, is plainly designed to aid county attorneys in preparing commitment petitions, not to give inmates an absolute right to one year’s notice. Moreover, where the provision limiting time to act does not specify any sanction for its violation, as with Minn. Stat. § 244.05, subd. 7, "failure to act within the time specified does not deprive the court of the power to act afterward and render a valid decision." Thomas, 467 N.W.2d at 326 (quoting Wenger, 200 Minn. at 440, 274 N.W. at 519.).
Moreover, we will not reverse an order on a technical error unless the accused has been "prejudiced through the impairment of substantial rights essential to a fair [hearing]." Id. (quoting State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 393 (1954)). Appellant does not argue that he was prejudiced—only that he anticipated release and could either "have prepared for the commitment or sought treatment for his perceived problem."
We conclude that appellant’s commitment is not invalid because the DOC failed to refer his case to the county attorney at least 12 months before his scheduled release date.
2. Admission of Hearsay Evidence
Appellant argues the district court abused its discretion in admitting DOC assessment reports under the "public records and reports" exception to the hearsay rule, Minn. R. Evid. 803(8). Rulings on the admission of evidence rest within the sound discretion of the district court and will not be reversed absent a clear abuse of that discretion. State v. Ashby, 567 N.W.2d 21, 25 (Minn. 1997). A presumption in favor of admissibility applies to all commitment cases. In re Morton, 386 N.W.2d 832, 835 (Minn. App. 1986).
The court shall admit all relevant evidence at the hearing. The court shall make its determination upon the entire record pursuant to the rules of evidence.
Id. (citing Minn. Stat. § 253B.08, subd. 7) (emphasis added in original). Reports compiled by an agency concerning observations made pursuant to law "as to which matters there was a duty to report" are not excluded by the hearsay rule, "unless the sources of information or other circumstances indicate lack of trustworthiness." Id. (citing Minn. R. Evid. 803(8)).
Appellant argues that the reports should not have been admitted because they contained opinions in addition to facts. But public records are not inadmissible simply because they contain opinions. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162-63, 109 S. Ct. 439, 446-47 (1988); see also Minn. R. Evid. 803(8) 1989 comm. cmt.
Appellant also argues that one DOC psychologist’s report is not trustworthy because of factual inaccuracies. Whether hearsay statements possess particular guarantees of trustworthiness is a question of law, which we review de novo. State v. Salazar, 504 N.W.2d 774, 776-77 (Minn. 1993) (citing Idaho v. Wright, 497 U.S. 805, 814-17, 110 S. Ct. 3139, 3145-48 (1990)).
Appellant fails to specify any district court finding based on an untrustworthy report. The only district court reference to the allegedly untrustworthy report concerns appellant’s admission that "he ‘probably’ would have had sex with these victims if he had been successful in leaving the areas of initial contact." The district court used the report (which was corroborated by another expert’s statement) to conclude that appellant’s conduct was sexually motivated and had criminal sexual conduct as a goal. Because there is no evidence that the district court specifically relied on the psychologist’s recommendation to satisfy any of the commitment criteria, there is no error.
3. Rebuttable Presumption
A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984). Minn. Stat. § 253B.02, subd. 7a(b) (1998) provides that
[t]here is a rebuttable presumption that conduct described in the following provisions creates a substantial likelihood that a victim will suffer serious physical or emotional harm***
Appellant argues that the district court erred as a matter of law by relying on rebuttable presumption of harm in committing appellant as a SDP.
The district court noted that appellant engaged in four crimes falling within the presumption and admitted to other conduct that would give rise to the presumption. But the court did not rely on the presumption; rather, it concluded that
[c]lear and convincing evidence has been presented proving that Schultz’s pattern of behavior and resulting misconduct is of the type which "creates a substantial likelihood of serious physical or emotional harm" to victims, within the meaning of Minn. Stat. § 253B.02, subd.7(a).
The district court also found that appellant’s victims of these five incidents "are likely to suffer serious physical and psychological harm from [appellant’s] conduct." Because the district court found that respondent met its burden by clear and convincing evidence, there was no reliance on the presumption. We find no error here.
4. Criminal Sexual Conduct
Appellant argues that there was insufficient evidence for the district court to find that criminal sexual conduct was the goal of assaults committed in 1969 and in 1977. Factual findings will not be reversed unless clearly erroneous. See In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). On appeal, we will not weigh the evidence; we will determine if the evidence as a whole presents substantial support for the district court’s conclusions. Johnson v. Noot, 323 N.W.2d 724, 728 (Minn. 1982).
Appellant claims that the motive for both incidents was robbery, not sexual conduct. But with respect to the 1969 incident, appellant told an examiner that if the woman had not jumped out of the car, he "probably would have had sex with her." And with respect to the 1977 incident, appellant told an examiner that "raping her was the purpose for me getting in the van," and told a DOC psychologist that "he was likely going to rape her." Additionally, both court-appointed examiners testified that appellant was motivated by his sexual impulses when he forced his way into the cars. We conclude that this evidence is sufficient for the district court to determine that criminal sexual conduct was the goal of the assaults committed in 1969 and in 1977.
5. Habitual Course of Misconduct/Harmful Sexual Conduct
Appellant argues that there was insufficient evidence for the district court to find that he engaged in a habitual course of misconduct in sexual matters and in a course of harmful sexual conduct. Again, factual findings will not be reversed unless clearly erroneous and we will not reweigh the evidence. Id.
The first commitment criterion under the SPP and SDP statutes require (respectively) evidence of a habitual course of misconduct, or a course of harmful sexual misconduct. Minn. Stat. § 253B.02, subds. 18b and 18c(a)(1) (1998). Appellant engaged in five incidents over a 13-year period. He urges that we disregard the 1969 and 1977 incidents. Additionally, appellant states that the acts as a whole were committed over the "last quarter century," thus mitigating the "habitual course of conduct" standard. The district court found that
[appellant] is likely to re-offend. This is based upon the frequency, and severity of the five proven instances of violent sexual aggression. The Court recognizes that the most recent offense is 1982. The Court also recognizes that [appellant] has been in prison for all but four months during this time period.
Considering the totality of the evidence, we conclude that the district court did not err in finding that appellant had engaged in a habitual course of misconduct in sexual matters and in a course of harmful sexual conduct.
6. Admission of Expert Testimony
Appellant argues that the district court abused its discretion by admitting the report and testimony of an examiner "based on flawed facts and a public interview." Specifically, he claims the evidence should not have been admitted because the examiner interviewed him in an area that made him "uneasy about the answers he supplied." Again, rulings on admission of evidence rest within the sound discretion of the district court and will not be reversed absent a clear abuse of that discretion. Ashby, 567 N.W.2d at 25.
Appellant alleges that "[the examiner’s] testimony and report is littered with defects" and states that his "dispute lies with the shoddiness of the facts [on] which the expert relied to base her opinion." He then outlines several purported factual inconsistencies. Because appellant does not challenge the foundation of the reports, the real issue is not the admissibility of the examiner’s testimony and report, but the evidentiary weight they should receive. Weight and credibility of the evidence are for the trier of fact to decide. See, e.g., Alstores Realty v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970). The district court did not abuse its discretion by admitting the examiner’s report and testimony.
7. Constitutionality of SPP and SDP Statutes
Appellant argues that the SPP and SDP statutes are unconstitutional under four separate theories, to wit, substantive due process, equal protection, ex poste facto prohibitions, and double jeopardy. All have been rejected by the Minnesota Supreme Court. Call v. Gomez, 535 N.W.2d 312 (Minn. 1995); In re Blodgett, 510 N.W.2d 910 (Minn. 1994). Appellant acknowledges this, but indicates his intent to "preserve the issues for possible Federal appeal." His constitutional challenges fail.