This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-1102

 

In the Matter of

the Civil Commitment of:

Aldridge Michael Taylor,

d.o.b. 4-19-1958.

 

Filed December 31, 2002

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. P30160358

 

Gregory R. Solum, Suite 140, 7625 Metro Boulevard, Edina, Minnesota 55439 (for appellant)

 

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Hennepin County Government Center, 300 South Sixth Street, Minneapolis, Minnesota 55487 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant challenges his indeterminate commitment as a sexually dangerous person pursuant to Minn. Stat. § 253B.02, subd. 18c(a).  Specifically, appellant challenges the constitutionality of the statute on the grounds that (1) the “lack of adequate control” commitment standard violates substantive due process because it is overly broad, (2) the “course of harmful sexual conduct” requirement is unconstitutionally vague and inapplicable to him because two convictions are insufficient to establish a course of conduct, and (3) the statute improperly shifts the burden of demonstrating a less-restrictive alternative than commitment from the state to the committee.  Because we conclude the statute as applied to this appellant is constitutional, we affirm.

FACTS

            Appellant Aldridge Michael Taylor (Taylor), is a 44-year-old male and twice-convicted rapist civilly committed as a sexually dangerous person (SDP) pursuant to Minn. Stat. § 253B.02, subd. 18c(a) (2002).  Taylor’s two sexual assaults shared striking similarities: (1) late-adolescent, female victims previously unknown to Taylor; (2) use of force and violence to accomplish the sexual assaults; (3) violent restraint of victims (one kidnapped, one handcuffed); and (4) multiple penetrations. 

In October 1982, Taylor kidnapped 18-year-old C.F., forced her into his car and drove her to an apartment where he raped, punched, kicked, choked, and threatened to kill her.  Taylor pleaded guilty to one count of first-degree criminal sexual conduct and one count of kidnapping, and served a 76-month sentence.  While he was in prison from 1983 through 1987 for raping C.F., Taylor briefly participated in a sex offender treatment program.  Prison records indicate that he was a negative influence on other participants and his treatment team eventually recommended that he be dropped from treatment as a “program failure.” 

Fourteen months later, while on supervised release, Taylor raped 17-year-old M.S.  Taylor gained entry to her apartment by asking to use the phone.  Taylor left, but returned a short time later asking to use her phone again.  Once inside, Taylor handcuffed M.S., led her into the bedroom and made her lay facedown while he undressed her.  When M.S. screamed, Taylor grabbed her by the hair, yanked her head back, and put a knife in her face.  Taylor brought M.S.’s crying infant in from another room, put him on the bed next to her and ordered her to make the baby stop crying.  Taylor raped M.S. while she was trying to calm the child.  He then forced her to perform fellatio.  A jury found Taylor guilty of two counts of first-degree criminal sexual conduct.  Taylor served an executed 240 months—two and one-half times the presumptive guidelines sentence.  Taylor refused chemical dependency and sex offender treatment numerous times during this term of incarceration. 

Prior to Taylor’s release, Minnesota Department of Corrections psychologist Scott Johnson (Johnson) conducted a forensic evaluation to determine whether commitment proceedings should be initiated.  During this interview, Taylor denied raping either of the women, but smiled when Johnson brought up details of the two crimes.  Taylor said he did not need treatment because he did not consider his sexual behaviors problematic.  Johnson concluded that Taylor met the sexual psychopathic personality (SPP) and SDP statutory specifications, basing his conclusion on several factors. 

First, Taylor showed a progressive decline in cognitive and social functioning as indicated by numerous prison discipline reports, refusal to comply with treatment programs, and the “lack of any meaningful therapeutic intervention.”  Next, Taylor’s second offense demonstrated increased forethought and an escalating pattern of violence.  Johnson diagnosed Taylor with antisocial personality disorder and paraphilia with features of force, nonconsent, and sadism.  Further, Johnson opined that Taylor’s behavioral disturbances and disorders prevented him from adequately controlling his sexual impulses and that Taylor was very likely to engage in future acts of harmful sexual conduct.  Finally, Johnson found that Taylor lacked customary standards of good judgment in sexual matters and altogether failed to appreciate the consequences of his actions.  Based on Johnson’s review of Taylor’s history, as well as his forensic interview, Johnson concluded that involuntary commitment to a secure treatment facility was the only viable option for meeting Taylor’s treatment needs while preserving public safety.

Two other experts also interviewed Taylor.  Both concluded that Taylor satisfied the statutory requirements of an SDP, but not an SPP.  Court-appointed examiner Dr. James Alsdurf (Alsdurf) stated that Taylor had engaged in serious sexual misconduct, more than just the fact of two first-degree criminal-sexual-conduct convictions.  Alsdurf considered the relation in time important—Taylor committed his second, more serious offense, just 14 months after his release from prison for the same substantive offense.  Alsdurf testified that the offenses were quite similar and that “these were not just two anomalous events but in fact related more to what had emerged by the second time into a “course of sexual conduct.”

Alsdurf diagnosed Taylor as suffering from antisocial personality disorder as well as paraphilia.  The diagnostic criteria for antisocial personality disorder requires that the person exhibit three of seven features listed in the DSM-IV.  Both examiners testified that Taylor satisfied all seven of the diagnostic features.  In Alsdurf’s opinion, Taylor was very likely to reoffend as he consistently refused to take responsibility for either of his rapes and exhibited no empathy for his victims or remorse for his actions.  Alsdurf further opined that Taylor’s mental disorders rendered him unable to adequately control his sexual impulses and urges, and recommended commitment in a secure facility as the only appropriate treatment option.

            Taylor’s expert, Dr. Roger Sweet (Sweet), concurred that Taylor met the statutory requirements of an SDP.  Sweet opined that commitment in a secure facility was the only appropriate course of treatment for Taylor that still preserved public safety.  Like Alsdurf, Sweet testified that Taylor has shown no remorse for his offenses and actually vacillates between admitting and denying that he did anything wrong.  Both Sweet and Alsdurf testified that releasing Taylor from prison on intensive supervised release, as Taylor suggested, would not sufficiently protect the community.  Similarly, Taylor’s parole officer testified intensive supervised release would be inappropriate because Taylor had not completed sex offender or chemical dependency treatment.

            At the commitment hearing, Taylor argued that the SDP “lack of adequate control” commitment standard violates substantive due process because it is overly broad and does not comport with the dictates of the United States Supreme Court’s decisions in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002), and Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997).  Taylor also argued that the “course of harmful sexual conduct” requirement was unconstitutionally vague and inapplicable to him because two convictions are insufficient to establish a “course of conduct.”

            In its initial commitment order, the trial court concluded there was sufficient evidence to support commitment of Taylor as an SDP, but not an SPP.  The trial court rejected Taylor’s contention that two offenses were insufficient as a matter of law to constitute a “harmful course of sexual conduct.”  The trial court also rejected Taylor’s constitutional vagueness claim, instead treating the issue as fact-specific, and concluded that Taylor’s two convictions were sufficient to form a “course of harmful sexual conduct.”  The court also found that Taylor “lacks the insight, remorse and empathic abilities to adequately control his sexual impulses.” 

Following the 60-day report and subsequent hearing, the trial court affirmed its original order and committed Taylor as an SDP for an indeterminate period. 

            This appeal of both commitment orders followed.

DECISION

I

 

            Taylor challenges the constitutionality of Minn. Stat. § 253B.02, subd. 18c(a) (2002) “lack of adequate control” standard, claiming this standard violates due process because it is overly broad and does not comport with the United States Supreme Court’s decisions in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002), and Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997).  We disagree. 

We interpret the Minnesota Commitment and Treatment Act de novo.  In re Brown, 640 N.W.2d 919, 922 (Minn. 2002) (citation omitted).  Similarly, we review a constitutional challenge to a statute de novo.  In re Kindschy, 634 N.W.2d 723, 729 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).  One raising a constitutional challenge to a statute must establish beyond a reasonable doubt that the statute violates a claimed right.  In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn. 1996).  Whether the record supports the standards for commitment by clear and convincing evidence is a question of law, which we review de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I) review denied (Minn. Aug. 15, 1994).

            To commit an individual as an SDP, the state must show by clear and convincing evidence that the person: (1) has engaged in a course of harmful conduct; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct.   Minn. Stat. § 253B.02, subd. 18c(a) (2002) (SDP Act).  The Minnesota Supreme Court has clarified that commitment as an SDP requires that the person’s present disorder “does not allow [offenders] to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.”  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV). 

This court recently analyzed the phrase “lack of adequate control” in terms of both substantive due process and vagueness.  In re Ramey, 648 N.W.2d 260 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).  We concluded that the SDP Act comports with the United States Supreme Court’s mandates in both Hendricks and Crane. 

Under Hendricks, civil commitment of dangerous sex offenders requires a showing that the offender cannot control his dangerousness because of a volitional impairment.  Hendricks, 521 U.S. at 358, 117 S. Ct. at 2080.  Crane refined Hendricks by setting the peripheral constitutional boundaries—that is, the state must make some showing of inability to control, but this need not be an absolute lack of control.  Crane, 534 U.S. at 411-12, 122 S. Ct. at 870-71.  Although Crane made it clear that the Constitution contains no requirement of total or complete lack of control, the Court rejected the state’s argument that no showing of inability to control is required.  Id. at 413, 122 S. Ct. at 870.  Instead, the Court held:

[W]e recognize that in cases where lack of control is at issue, “inability to control behavior” will not be demonstrable with mathematical precision.  It is enough to say that there must be proof of serious difficulty in controlling behavior.  And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.

 

Id. (emphasis added).

As a result, in Ramey, we observed that Crane added to the requirement for civil commitment as an SDP “the affirmative duty to make a lack of control determination, which is already a requirement of the Minnesota standard under Linehan IV.”  Ramey, 648 N.W.2d at 266-67.  We thus concluded in Ramey that “the requirement of an inability to control behavior to some degree, as required by Crane, is satisfied by the interpretation of the SDP Act as set forth in Linehan IV.”  Id. at 267.  See also In re Martinelli, 649 N.W.2d 886, 890 (Minn. App. 2002) (holding that the “lack of adequate control” standard applied by the district court, when read along with the language in Linehan IV requiring a “mental abnormality” or “personality disorder” making it “difficult, if not impossible” for that person to control his sexual conduct, satisfies the constitutional standard set by Crane).

Nevertheless, Taylor argues that Crane established a “special-and-serious” lack-of-control standard and that Ramey’s holding does not satisfy the constitutional mandates prescribed in Crane.  Taylor’s reliance on this purported “special-and-serious” standard in Crane is misplaced.  Contrary to Taylor’s assertion, Crane did not set forth a new “special-and-serious” standard.  Rather, Crane refused to set the constitutional threshold, articulating only the outer limits.  Furthermore, as respondent correctly states, while the phrase “special and serious” does appear once in the Crane opinion, it is used only to describe the subject of the previous case, Hendricks.  See Crane, 534 U.S. at 413, 122 S. Ct. at 870.  The actual holding in Crane states that “[i]t is enough to say that there must be proof of serious difficulty in controlling behavior.”  Id. (emphasis added).  The Linehan IV standard under which Taylor was committed complies fully with the requirements of Crane.

Taylor further argues that the “lack of adequate control” standard is unconstitutionally vague and insufficient to distinguish sex offenders who may constitutionally be committed from ordinary recidivist offenders.  It is essential, under Crane, that there be a judicial finding of “lack of control” based on expert testimony tying that “lack of control” to a properly diagnosed mental abnormality or personality disorder before civil commitment may occur.  Such a finding, if it establishes a “serious difficulty” in controlling behavior, adequately distinguishes the offender subject to commitment from the “typical recidivist” offender.

The constitutionally required finding has been made in this case.  The trial court specifically concluded that Taylor has an antisocial personality disorder, and that this mental impairment does not allow him to control his sexual impulses adequately.  In addition, the expert opinions from Alsdurf and Sweet on Taylor’s lack of ability to control his behavior, sufficiently distinguish Taylor from the “typical recidivist” offender, as required by Crane.

With respect to Taylor’s antisocial personality disorder diagnosis, the experts found that Taylor met all seven of the criteria for the diagnosis, rather than just three out of the seven required by the diagnostic manual.  In addition, Sweet designated Taylor a “clinical psychopath” and placed him in the top 18 percent of prisoners in terms of severity of psychopathy.  Further, Alsdurf, Sweet, and Johnson all diagnosed Taylor with paraphilia, and the trial court found Taylor had this disorder.  Alsdurf and Johnson noted that the disorder included “sexual sadism.”  In addition, Sweet and Johnson diagnosed Taylor with a disorder related to his chemical abuse.  Both rapes were committed when Taylor was intoxicated; yet he did not participate in chemical dependency treatment during his incarceration. 

Based on these mental disorders, all of the experts testified that Taylor had a significant impairment in his ability to control his sexual behavior.  This evidence, taken as a whole, adequately distinguishes Taylor from the “typical recidivist” sex offender who is properly dealt with through the criminal law.  See Crane, 534 U.S. at 412, 122 S. Ct. at 870.

The trial court made the “lack of adequate control” finding that is constitutionally required under Crane, Ramey,and Linehan IV.  This finding, supported by an expert diagnosis of mental abnormality or personality disorder tied to Taylor’s “lack of control,” establishes a “serious difficulty” in controlling behavior, as required by Crane.

 

II

Taylor next asserts that the SDP Act is unconstitutionally vague as applied to him because no Minnesota case has held that two convictions are sufficient to prove a “course of harmful sexual conduct.”  A party raising a constitutional challenge to a statute “must overcome every presumption in favor of its constitutionality.”  Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 564 (Minn. App. 1994) (citation omitted), review denied (Minn. Feb. 14, 1995).  We exercise “extreme caution” before declaring a statute unconstitutionally vague.  Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 (Minn. App. 2001).  Just because application of a law to marginal facts appears uncertain, that law is not void for vagueness.  Humenansky, 525 N.W.2d at 564.  Rather, we declare a statute void only where the law is “impermissibly vague in all of its applications.”  Ramey, 648 N.W.2d at 267 (citation omitted).

Taylor contends that at least several charged and/or uncharged incidents are required to meet the clear and convincing evidentiary standard of proof.  We disagree.  Similarity between, as well as the number of, incidents are two factors courts consider when determining whether a defendant’s behaviors demonstrate a “course of harmful sexual conduct.”  In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994); In re Monson, 478 N.W.2d 785, 789 (Minn. App. 1991).  But we need not set a numeric value to adequately define a “course of harmful sexual conduct.”  See Ramey, 648 N.W.2d at 267. 

A “course of harmful sexual conduct” is a fact-driven determination, and like the Ramey court, we decline to set a numerical limit on what constitutes a “course.”  Here, the experts testified that the frequency and similarity in Taylor’s two rapes formed a “course of harmful sexual conduct.”  Several factors support the trial court’s conclusion that the two criminal sexual conduct convictions here constituted a “course of harmful sexual conduct”: (1) the reckless, violent nature of Taylor’s acts; (2) the relatively short time span between Taylor’s supervised released and his second offense and the fact that the second offense was committed while Taylor was still on supervised release; (3) the similar methods in that each victim was a young, vulnerable female unknown to Taylor; and (4) the increase in sophistication, planning, and level of violence used.

 We conclude that these convictions sufficiently demonstrate a “course of harmful sexual conduct,” and that Taylor has not met his burden of showing that the phrase “course of harmful sexual conduct” is unconstitutionally vague as applied to him.

III

            Finally, Taylor contends that it is the state’s burden to prove the propriety of commitment, rather than his burden to prove the impropriety of a commitment.  Taylor did not raise this claim in the trial court and he has therefore waived his right to raise it here on appeal.  Thiele v. Stich, 425 N.W.2d 580, 592 (Minn. 1988).  But even if we were to consider the merits, Taylor’s claim fails.

Minn. Stat. § 253B.185, subd. 1 (2002) provides that “the court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available.”  At this stage in the proceedings, the state has demonstrated each of the statutory elements of SPP or SDP civil commitment.  Contrary to Taylor’s claim, Minn. Stat. § 253B.185, subd. 1 does not improperly shift the burden of proof from the state to the committed person because a committee does not enjoy a statutory right to a less restrictive form of treatment.  In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998); In re Kindschy, 634 N.W.2d 723, 731 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).  A person cannot avoid an SDP commitment just because an alternative-treatment option exists.  Rather, the person must show by clear and convincing evidence that the alternative treatment meets the committed person’s needs while preserving public safety.  Unlike commitment statutes for mentally ill, chemically dependent, or mentally-challenged persons, Minn. Stat. § 253B.185, subd. 1 does not mandate that the least-restrictive treatment be utilized; rather, it allows the committed party the opportunity to present evidence of an appropriate alternative form of treatment.  The district court then decides whether the proposed treatment is appropriate.  Kindschy, 634 N.W.2d at 731; Senty-Haugen, 583 N.W.2d at 269.  

The fact that the trial court rejected Taylor’s proposed treatment alternative does not mean Taylor was improperly saddled with the evidentiary burden of “prov[ing] a negative.”  The trial court concluded that Taylor did not establish by clear and convincing evidence the propriety and availability of a less-restrictive treatment option.  “‘Clear and convincing’ requires more than a preponderance of the evidence, but less than proof beyond a reasonable doubt.”  State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997) (citation omitted).  This court will not reverse a trial court’s findings of fact unless they are clearly erroneous.  In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  Here, the trial court’s determination is amply supported by the record.  All witnesses, including Taylor’s parole officer, testified that Taylor’s proffered treatment alternative, intensive supervised release, was wholly inappropriate because during his entire incarceration, Taylor repeatedly refused chemical dependency and sex offender treatment and therefore was a danger to the public.

We conclude that the SDP Act is not overly broad or vague as applied to Taylor, and that the trial court properly committed Taylor as a sexually dangerous person.

            Affirmed.