This opinion will be unpublished and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: Mark Matthew Prather.

Filed December 22, 1998


Kalitowski, Judge

Hennepin County District Court

File No. P69660208

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

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

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



Appellant Mark Prather challenges his indeterminate commitment as a sexually dangerous person. He contends: (1) his behavior did not constitute "harmful sexual conduct"; (2) the district court's finding as to the likelihood he would engage in such conduct in the future was insufficient and without support in the record; and (3) the district court erred by denying his motions for either appointment of an expert to assist him or suppression of the testimony of respondent's expert. He also challenges the constitutionality of the sexually dangerous person act. We affirm.



District court findings of fact will not be reversed unless clearly erroneous. Minn. R. Civ. P. 52.01. An appellate court will review de novo whether there is clear and convincing evidence in the record to support the district court's conclusion that an appellant meets the standards for commitment. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

Appellant challenges his commitment as a sexually dangerous person (SDP), first contending his actions did not constitute harmful sexual conduct. An SDP commitment requires a finding that the person "has engaged in a course of harmful sexual conduct as defined in subdivision 7a." Minn. Stat. § 253B.02, subd. 18c(a)(1) (Supp. 1997). 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) (1996).

Appellant contends that there was insufficient evidence to show he engaged in harmful sexual conduct because he did not cause physical harm, use force, or have sexual intercourse with his victims. See In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994). We disagree. The lack of physical harm is not determinative where the statute allows commitment based on either "a substantial likelihood of serious physical or emotional harm." Minn. Stat. § 253B.02, subd. 7a (emphasis added). "Nonviolent but sexually harmful acts are included in [the SDP law's] reach." In re Linehan, 557 N.W.2d 171, 190 (Minn. 1996), vacated and remanded, 118 S. Ct. 596 (1997). Unlike Rickmyer, in this case there was extensive testimony as to the likelihood of emotional harm to the victims.

Appellant argues that without testimony by the victims, the testimony by the experts and the mother and foster mother of two victims was insufficient to show the likelihood of emotional harm. We disagree. The testimony by four experts established the extreme harm that will likely be caused by an adult's sexual contact with children, regardless of whether it is violent or nonviolent. The mother and foster mother of two victims testified as to the serious emotional harm appellant's sexual contact caused their daughters. The district court's determinations that appellant engaged in a course of harmful sexual conduct and perpetrated serious emotional or mental harm on his victims are supported by the evidence and are not clearly erroneous.


Appellant contends the district court did not make the specific findings needed to support its determination that he was highly likely to cause harm in the future. See Minn. Stat. § 253B.09, subd. 2 (Supp. 1997) (providing in commitment cases that court shall find facts specifically). The SDP statute requires that as a result of the harmful sexual conduct and mental disorder, the person must be "likely to engage in acts of harmful sexual conduct." Minn. Stat. § 253B.02, subd. 18c(a)(3) (Supp. 1997). The likelihood must be "high." Linehan, 557 N.W.2d at 180.

As appellant acknowledges, the supreme court explained that the district court's consideration of relevant factors for predicting dangerousness satisfies the statute. Linehan, 557 N.W.2d at 190. "[T]he factual specificity requirements for other civil commitment findings were not adopted in the SDP Act." Id. Here, the district court had clear and convincing evidence in the record and made sufficient findings to support its decision.

Finally, appellant contends the district court erred because it initially found him only "likely" to reoffend, but in the indeterminate commitment, found him "highly likely" to do so. We disagree. The district court made this finding in the initial commitment only weeks after the Linehan opinion was issued requiring a "high" likelihood of future harm. 557 N.W.2d at 180. We see no error under the circumstances where the district court used the proper standard in the indeterminate commitment.


Appellant next challenges the district court's denial of his motions regarding experts. Questions of law are reviewed de novo. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992). Decisions of whether to admit or exclude evidence will not be reversed unless based on an erroneous view of law or an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

Appellant sought appointment of a psychologist to assist him in trial preparation and to testify on his behalf on the topic of emotional harm caused by sexual misconduct. He argues that the district court's denial of his motion for appointment of an expert for him violated his right to equal protection and due process. Appellant also challenges the district court's denial of his corresponding motion to suppress testimony of the petitioner's expert witness who testified on the same topic.

Persons facing commitment proceedings are afforded a variety of rights. In civil commitment cases, the district court must appoint an examiner to report on the person's diagnosis and treatment. Minn. Stat. § 253B.07, subd. 3 (Supp. 1997). If requested, the court must appoint a second examiner of the person's choosing, paid for by the county. Id. Here, appellant sought and received a second court-appointed examiner of his own choosing. Persons facing commitment also have the right to counsel. Minn. Stat. § 253B.07, subd. 2c (Supp. 1997). On an appeal, they may receive transcripts at no expense. Minn. Stat. § 253B.23, subd. 8 (1996). There is, however, no statutory provision for the court's appointment of an independent expert for the patient at the county's expense. We conclude appellant has not shown that in a civil commitment proceeding he is entitled to the appointment of an independent expert. The district court did not abuse its discretion in denying appellant's motions.


Finally, appellant contends the SDP act is unconstitutional because it violates due process, does not have sufficient procedural safeguards, and violates the prohibition against double jeopardy and ex post facto laws. The Minnesota Supreme Court has upheld the SDP law against constitutional challenges. Linehan, 557 N.W.2d at 191. The United States Supreme Court recently vacated and remanded this decision to the Minnesota Supreme Court "for further consideration" in light of Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997). Linehan v. Minnesota, 118 S. Ct. 596 (1997). This court, however, will not address this issue further and will continue to treat the statute as constitutional pending final decision on Linehan.