This opinion will be unpublished and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: Donald Lee McClure.

Filed August 4, 1998


Schumacher, Judge

Concurring specially, Randall, Judge

Hennepin County District Court

File No. P39660487

Brian C. Southwell, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for appellant McClure)

Michael O. Freeman, Hennepin County Attorney, Thomas G. Lavelle, Rebecca S. Rognrud, Assistant County Attorneys, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.



Appellant Donald Lee McClure challenges his commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), arguing the trial court's findings fail to meet the clear and convincing standard and are clearly erroneous, and his commitment under the SDP act violates his constitutional rights. We affirm.


McClure has an extensive history of sexual and assaultive behavior dating back to his juvenile years. McClure's criminal history includes charges of first-, second-, and third-degree criminal sexual conduct, as well as, first- and third-degree assault. As a result of McClure's sexual and assaultive behavior, he has participated in a number of treatment programs.

In 1986, McClure was involved in the University of Minnesota program in Human Sexuality, but was discharged based on his failure to keep scheduled appointments. In 1988, McClure was terminated from the PHASE program based on a delinquency adjudication. In 1991, McClure was terminated from the sex offender treatment program at 180 Degrees for violating the rules. In 1996, McClure was suspended from Lino Lakes Sexual Offender Treatment Program for having intercourse with another program participant.

Based on McClure's prior history and his attitude towards treatment programs, a petition was filed to commit him as a SPP and/or a SDP. A commitment trial was held to determine whether McClure met the statutory definition of SPP and/or SDP. The trial court heard testimony from John Newman, McClure's probation officer, and two court-appointed examiners. Dr. Harry Hoberman, the first court-appointed psychologist, testified that McClure met the statutory definition for SPP and SDP. Hoberman also recommended that McClure be placed at the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC). Dr. Roger Sweet, the second court-appointed examiner, concurred.

The court found, by clear and convincing evidence, that McClure met the statutory definition of SPP and SDP. McClure was committed to the MSPPTC, subject to a final determination on whether commitment should be made indeterminate. At McClure's commitment hearing the trial court heard testimony from Ronda Heskin, a psychologist at the MSPPTC, who testified that McClure has not had enough treatment to bypass the criteria for SDP and/or SPP and, therefore, needed to remain at the secure facility for further treatment. Based on Heskin's recommendation, and the findings contained in the record, the court ordered McClure committed for an indefinite period to the MSPPTC. McClure appeals his commitment.


1. The standard used to prove that an individual meets the criteria for a Sexual Psychopathic Personality (SPP) or a Sexually Dangerous Person (SDP) is clear and convincing. Minn. Stat. § § 253B.185, subd. 1; 253B.18, subd. 1 (1996).

McClure claims that the trial court's finding that he exhibits an utter lack of power to control his sexual impulses fails to meet the clear and convincing standard. Under Minnesota law, one of the criteria for a SPP is that the individual exhibit an "utter lack of power" to control his sexual impulses. Minn. Stat. § 253B.02, subd. 18a (1996). In assessing whether an individual has the ability to control his sexual impulses the court evaluates

the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender's attitude and mood, the offender's medical and family history, the results of psychological and psychiatric testing and evaluation.

In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994), cert. denied, 513 U.S. 849 (1994). One of the more important factors to consider is the trial court's evaluation of expert testimony. In re Pirkl, 531 N.W.2d 902, 908 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).

Here, the trial court found McClure exhibited an utter lack of control as illustrated by the nature and frequency of his sexual offenses, the degree of violence used, the failure to successfully complete treatment programs, and the fact that some of the offenses took place while in custody. The trial court credited Dr. Hoberman's testimony that McClure's lack of empathy towards his victims is an indication that he lacks the power to control his actions. Dr. Hoberman also noted that McClure's victim pool was quite diverse because it included relatives, friends, and strangers of all ages.

Next, McClure argues that the trial court erred in finding clear and convincing evidence that he possesses a future danger to the public. Minn. Stat. § 253B.02, subd. 18b (a)(3) (defining SDP as one "likely to engage in acts of harmful sexual conduct"); Minn. Stat. § 253B.02, subd. 18a (describing SPP as dangerous to others). In predicting whether an individual is a serious danger to the public, courts consider factors such as history of violent behavior, success rate in sex therapy programs, base rate statistics, and similarity of offenses. In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994).

The trial court found that McClure is a future danger to other persons, both adults and children, as evidenced by his criminal history. McClure has exhibited a continued pattern of sexual aggressive behavior over the past ten years that treatment programs have not been able to curb. Dr. Hoberman classified McClure's conduct as "habitual" because of McClure's willingness to reoffend while in custody and after being released. Dr. Sweet testified that McClure presented a future danger to others based on his raw score of 33 on the HARE checklist, his failure to assume responsibility for his actions, and the fact that he committed three "power rapes." Based on this evidence, the trial court's findings meet the clear and convincing standard.

2. This court, giving due regard to the clear and convincing standard, accepts the trial court's findings if they are reasonable in light of the evidence presented. In re Leebl, 352 N.W.2d 135, 137 (Minn. App. 1984). In fact, a trial court's findings of fact will not be reversed unless clearly erroneous. In re Bieganowski, 520 N.W.2d 525, 529 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).

McClure challenges the findings because the trial court failed to include a list of the least restrictive alternatives and the specific reasons for rejecting each alternative. Trial courts, however, are not under an obligation to make such specific findings because the factual specificity requirements found in Minn. Stat. § 253B.09, subd. 2, were not adopted by the SDP act. In re Ayers, 570 N.W.2d 21, 25 (Minn. App. 1997). The trial court's decision to commit McClure to the MSPPTC as the least restrictive alternative was based, in part, on the recommendations of Drs. Hoberman, Sweet, and Heskin. The trial court, therefore, did not clearly err in finding that MSPPTC was the least restrictive alternative available to meet McClure's needs. Id. (holding trial court's reliance on recommendations of experts is sufficient to support its findings.)

Similarly, McClure claims that the trial court made only conclusory findings that he is a future danger to others. Once again, since specificity requirements were not adopted by the SDP or SPP statutes, case law does not require the trial court to make such specific findings. Id.

3. Finally, McClure argues that the SDP law is unconstitutional, citing Kansas v. Hendricks, 117 S. Ct. 2072 (1997). The Minnesota Supreme Court upheld the constitutionality of the SDP law against substantive due process and double jeopardy challenges, but the United States Supreme Court has vacated that decision and remanded the case for reconsideration in light of Hendricks. In re Linehan, 557 N.W.2d 171, 174-75 (Minn. 1996), vacated & remanded, 118 S. Ct. 596 (1997). The issues are currently pending before the Minnesota Supreme Court on remand. Until a decision by the supreme court, this court has decided not to rule further on the constitutionality of the SDP law.


RANDALL, Judge (concurring specially).

I concur in the result.