This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




In the Matter of:


Filed March 31, 1998


Randall, Judge

Steele County District Court

File No. PX96955

Ann B. Barker, Barker Law Office, Ltd., 204 East Pearl Street, P.O. Box 709, Owatonna, MN 55060 (for appellant)

Hubert H. Humphrey III, Attorney General, John L. Kirwin, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Appellant J.L.D.[1] challenges his indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). He argues that

respondent failed to prove he met the standards for commitment and contends the laws under which he was committed are unconstitutional. We affirm.


From the late 1960s until 1975, appellant sexually abused his oldest daughter by fondling her and engaging in oral and anal sex and intercourse. Similar abuse of his next two oldest daughters followed. He also had sexual intercourse with one daughter's friend. After his then-wife left the home in 1975, he engaged in daily intercourse with his eldest daughter. She ran away and appellant was arrested and pleaded guilty to incest. The trial court committed appellant to the Commissioner of Public Welfare under a now-repealed statute. He was discharged in 1982.

In 1984, appellant sexually molested his youngest daughter. He then moved to the East Coast in 1984 but nonetheless had intercourse with this daughter on a visit in 1986. After returning to Minnesota in 1989, he sexually abused his granddaughter. He was charged with the 1986 and 1989 crimes and pleaded guilty to one count of first-degree criminal sexual conduct. He served time in prison until June 1994 when he was placed on probation. He violated the conditions of probation on several occasions by being in the presence of his granddaughters. In early December 1996, a corrections agent petitioned for appellant's commitment as an SPP and SDP.

At the hearing, experts presented conflicting testimony as to whether appellant met all of the standards for commitment as an SPP and SDP. After committing appellant for an initial term, a review hearing was held. The court then committed appellant to the Minnesota Sexual Psychopathic Personality Treatment Center and the Minnesota Security Hospital for an indeterminate period as an SPP and SDP.


Whether facts found by the trial court satisfy the commitment requirements is a question of law that appellate courts will review de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994). On issues of law, the appellate court will not defer to the district court. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992).


Respondent had to prove by clear and convincing evidence that appellant met the standards for commitment. Minn. Stat. § 253B.18, subd. 1 (1996); see Minn. Stat. § 253B.185, subd. 1 (1996) (providing provisions of section 253B.18 apply to SPP and SDP commitments). The statute sets out the relevant definitions. Minn. Stat. § 253B.02, subd. 18a (1996) (sexual psychopathic personality); Minn. Stat. § 253B.02, subd. 18b(a) (1996) (sexually dangerous person).

Appellant contends respondent failed to show that he engaged in a habitual course of misconduct in sexual matters required for an SPP commitment. See Minn. Stat. § 253B.12, subd. 18a. He contends that his sexual conduct is too remote in time to be considered. However, a large gap of time between the most recent offense and the petition for commitment, while evidentiary and in appellant's favor, does not necessarily preclude a determination that the actions were habitual. See Linehan, 518 N.W.2d at 613-14 (habitual course of misconduct factor met even though

last sexual offense occurred in 1975 and psychopathic personality petition filed in 1992; gap of time relevant factor in determining likelihood of future harm).

Appellant cites periods of time during which there was no evidence of misconduct. We note that during most of this time, he was confined to the security hospital or prison or was on supervised release. When not in confinement, the record indicates that appellant, while residing on the East Coast, had intercourse with his youngest daughter during a visit to Minnesota.

Appellant also contends that the trial court failed to make findings as to when the instances of abuse began. Where it is undisputed that the abuse of his daughters occurred over more than a five-year period, uncertainty as to whether his abuse of one daughter began when she was 7 or when she was 10 or 11, or the precise dates the abuse of the other daughters began, has little material significance for our issue.

Appellant compares his history of sexual assaults to that of those committed as psychopathic personalities, contending his conduct was much less harmful and did not cause the type of harm the statute is intended to address. We disagree. Appellant engaged in serious repeated sexual assaults against his vulnerable daughters and others. The experts and the trial court found that appellant's conduct caused severe emotional harm. See In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (court must determine whether nature of conduct is of such egregious nature that it is likely to cause serious physical or mental harm).

We conclude that the trial court had clear and convincing evidence from which to conclude appellant had engaged in a habitual course of sexual misconduct under Minn. Stat. § 253B.02, subd. 18a.


The next issue is whether the district court had clear and convincing evidence from which to conclude that appellant had an utter lack of power to control his sexual impulses as required for commitment as a sexual psychopathic personality. Minn. Stat. § 253B.02, subd. 18a; see In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994). Appellant cites facts in support of his argument and contends the testimony of one expert was tainted because she based her opinion on an unproven allegation of recent sexual misconduct. He relies on the testimony of another expert who believed he was presently able to control his sexual impulses. The trial court credited the opinions of the experts who testified appellant could not control his sexual impulses. Based on its assessment of the evidence, the court concluded appellant had an utter inability to control his sexual impulses. Despite the total subjectivity of the phrase, "utter inability to control," it is the law. The record supports the trial court's findings of fact and conclusions of law on this issue.


Next, appellant contends that respondent did not prove by clear and convincing evidence that he engaged in acts of harmful sexual conduct under the sexually dangerous person law. Minn. Stat. § 253B.02, subd. 18b(a)(3); see Minn. Stat. § 253B.02, subd. 7a (defining harmful sexual conduct in the context of an SDP commitment as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another"). The definition is similar to the definition of the physical or mental harm required for an SPP commitment. See Rickmyer, 519 N.W.2d at 190. For the same reasons that we held the standard of harm requirement for the SPP commitment was met, we hold that the similar standard for the SDP commitment was met as well.


Appellant also challenges the trial court's determination that there is a high likelihood he will engage in such harmful conduct in the future under the SDP law. Minn. Stat. § 253B.02, subd. 18b(a)(3); see In re Linehan, 557 N.W.2d 171, 180, 190 (Minn. 1996) (requiring harm be highly likely and applying multi-factor test), vacated and remanded, 66 U.S.L.W. 3398 (U.S. Dec. 8, 1997). Appellant again extensively reviews the facts and contends they do not support the trial court determinations. The trial court made extensive findings of facts and considered expert testimony that addressed the relevant factors. We decline to reverse the trial court's assessment of expert and other testimony or its determination that appellant was highly likely to be dangerous in the future.


Appellant next raises constitutional challenges, contending that both the sexually dangerous person act and the sexual psychopathic personality act deprive him of his

right to due process, violate constitutional prohibitions against double jeopardy, and violate his right to equal protection.

First, as J.L.D. acknowledged, he did not raise these arguments in the lower court. See In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981) (appellant may not raise constitutional issues for first time on appeal). So far, the Minnesota Supreme Court has upheld the constitutionality of the SPP law. Blodgett, 510 N.W.2d at 911. As to the SDP law, the Minnesota Supreme Court upheld its constitutionality, but the United States Supreme Court recently vacated and remanded the decision to our supreme court. Linehan, 557 N.W.2d at 191, vacated and remanded, 66 U.S.L.W. at 3398. Pending decision by the Minnesota Supreme Court, we are constrained to find the SDP statute constitutional.

The trial court's decision to commit appellant for an indeterminate period as a sexual psychopathic personality and a sexually dangerous person is affirmed.


[1] The trial court ordered this file sealed on February 3, 1997. Consequently, this court will treat the file as confidential. Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 1(f).