A05-221

In the Matter of the

Civil Commitment of:

Delbert E. Tucker

Filed July 26, 2005

Affirmed

Hudson, Judge

Hennepin County District Court

File No. MH-PR-04-252

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

Michael J. Biglow, 839 Wells Fargo Midland Bank Building, 401 Second Avenue South, Minneapolis, Minnesota 55401 (for appellant)

Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, 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 under Minn. Stat. § 253B.02, subd. 18c (2004), arguing that clear and convincing evidence does not support the commitment and that civil commitment is not the least-restrictive alternative for treatment that meets appellant’s needs. Because the record supports appellant’s commitment as a sexually dangerous person, we affirm.

FACTS

Appellant Delbert Tucker was born on April 30, 1953. Appellant has been convicted twice of sex crimes. In October 1982, appellant pleaded guilty to one count of second-degree criminal sexual conduct. Appellant approached a 12-year-old girl and offered her $20 to perform fellatio. When she refused, he forced her into the basement of her residence, beat her with his fists and a wooden handle, removed her clothes, touched her vagina with his penis, forced fellatio, and threatened to kill her. Appellant entered a guilty plea, claiming that he was too intoxicated to remember what happened. The district court sentenced appellant to 65 months in prison.

In October 1989, a jury convicted appellant of first-degree criminal sexual conduct. Appellant led his 17-year-old niece to a laundry room where he grabbed her from behind, choked her, removed her clothes, and forced vaginal intercourse. Appellant denied the charges, but he stated that he and his niece used to drink alcohol, smoke crack cocaine together, and engage in sexual activity. The district court sentenced appellant to 120 months in prison.

Appellant has also been convicted of attempted theft, petty theft, receiving and concealing stolen property, simple assault, criminal damage to property, disorderly conduct, possession of contraband drugs, possession of crack cocaine, failure to notify of change in predatory registration, and aggravated robbery. Additionally, in October 1980, appellant pleaded guilty to first-degree arson for setting three fires in a former girlfriend’s house.

Appellant participated in the sex-offender treatment program at the Moose Lake Correctional Facility from November 1994 through April 1996. But appellant failed to complete the Alpha Aftercare Sex Offender Program in 1996.

Appellant has completed two chemical-dependency treatment programs: a 30-day program at Anoka State Hospital in 1973 and the Triad Chemical Dependency Program in August of 1997. But appellant failed to complete chemical-dependency programs at Eden House, Pioneer House, Turning Point Chemical Dependency Program, and Eden Programs when he was not incarcerated.

The district court has revoked appellant’s parole numerous times as a result of his failure to report or complete treatment programs and commission of crimes. After serving time for arson, appellant was paroled in 1982 with instructions that he must enter the 180 Degrees Program (halfway house). But upon his release, appellant failed to report to the program.

After serving time for his first sex conviction, appellant was paroled in 1986 to Reentry halfway house. Appellant reported to Reentry but left within a few minutes against the staff’s instructions. Appellant was paroled again in April 1986 to Reentry. On April 22, 1986, appellant submitted urine samples that were positive for drugs. Appellant was referred to counseling, but on June 5, 1986, appellant failed to return to Reentry. Appellant’s parole was revoked. Appellant was again paroled October 27, 1986, and ordered to return to Turning Point. Appellant reported to the facility on October 27, but he left later that day and did not return. Appellant’s parole was revoked and restructured. On July 21, 1987, appellant was paroled and entered Eden House Program. On August 1, 1987, appellant left the program.

In March 1996, appellant was released to 180 Degrees. Appellant’s supervised release was revoked after he failed to complete a 16-week sex-offender outpatient aftercare program. Appellant’s supervised release was restructured and he was ordered to complete residential treatment at Eden House. In November 1996, appellant absconded two days after admission to Eden House and began using cocaine and alcohol frequently. Appellant’s supervised release was revoked, and he returned to Lino Lakes correctional facility.

In August 1997, appellant was released from prison on supervised release and ordered to complete the residential program at 180 Degrees halfway house. In April 1998, police officers arrested appellant for failing to maintain contact with his parole officer. Appellant admitted using cocaine. On July 9, 1998, the end-of-confinement review committee assessed appellant as a Level 3 sex offender.

In January 1999, appellant was released from Lino Lakes Correctional Facility to Damascus Way Reentry Center and completed the program on April 12, 1999. Appellant completed the mandatory post-release programming at Alpha on April 26, 1999. In June, appellant’s urine sample tested positive for cocaine. In July, he missed work and could not be found. When arrested, he had an alcohol concentration of .038. After his program was restructured, he was again missing on August 1, 1999. On July 30, 2002, police found appellant, and he was in possession of less than three grams of cocaine. Appellant was convicted of possession of cocaine and received a stay of execution. In April 2003, appellant was charged with failure to notify of changes in predatory-offender registration. Appellant’s stay was revoked and his sentence was executed.

On March 15, 2004, the Minnesota Department of Corrections petitioned the district court to commit appellant as a sexual psychopathic personality and sexually dangerous person. The district court ordered two psychologists, Drs. Lawrence Panciera and Thomas Alberg, to review the applicable documents and interview appellant. Both psychologists prepared written reports and testified at the commitment hearing.

Both psychologists diagnosed appellant with Axis I alcohol and cocaine dependence and Axis II antisocial personality disorder. Additionally, Alberg diagnosed appellant with Axis I marijuana dependence. Both psychologists testified that appellant meets the statutory criteria for a sexually dangerous person. The psychologists concluded that appellant (1) has a prior history of sexual offending based on the two incidents for which he was convicted; (2) has a mental disorder because he has chemical dependency as well as antisocial personality disorder; and (3) poses a high risk to reoffend based on the results of numerous actuarial instruments.

The psychologists testified that the diagnoses of both chemical dependency and antisocial personality disorder make it difficult for appellant to adequately control his sexual impulses. Appellant acknowledged to Panciera that all of his criminal offenses involved alcohol or other drugs. Panciera explained that people with antisocial personality disorder tend to be impulsive and show poor judgment. Neither psychologist was aware of any less-restrictive alternative that would meet appellant’s treatment needs other than commitment to the Minnesota Psychopathic Services Center in St. Peter, Minnesota. Both psychologists concluded that appellant does not meet the criteria of sexual psychopathic personality.

At the end of the hearing the district court granted appellant’s motion to dismiss the allegation that appellant is a sexual psychopathic personality. On September 4, 2004, the district court issued findings of fact, conclusions of law, and an order committing appellant to the St. Peter facility as a sexually dangerous person. On November 29, 2004, the district court held a review of appellant’s commitment. On December 13, 2004, the district court issued an order for indeterminate commitment as a sexually dangerous person. This appeal follows.

D E C I S I O N

Appellant challenges the district court’s finding that his present disorder does not allow him to adequately control his sexual impulses, making it highly likely that he will commit harmful sexual acts in the future.

Whether the record supports the standards for commitment is a question of law, which we review de novo. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). We will not reverse a district court’s findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).

To commit a person as a sexually dangerous person (SDP) under the statute, the petitioner must prove three elements: that the person (1) has engaged in a course of “harmful sexual conduct,” as defined in Minn. Stat. § 253B.02, subd. 7a (2004); (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) (2004). Under case law, the petitioner must also prove a fourth element: that the person has a “present disorder or dysfunction [that] does not allow them 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). These elements must be proven by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1(a) (2004).

Appellant argues that since his last release into the community in 1996 he has not been involved in any sexual or violent behavior, has received both sex-offender and chemical-dependency treatment, is aware of his “risk factors” that could lead to reoffending, and has prepared a relapse plan to be used upon his discharge.

Here, the record establishes by clear and convincing evidence that appellant lacks adequate control over his behavior and is highly likely to reoffend. Both psychologists concluded that appellant is highly likely to reoffend because he is unable to adequately control his impulses due to chemical dependency and antisocial personality disorder. The record establishes that appellant committed his sex offenses while under the influence of alcohol and/or illegal chemicals and that appellant has been unable to abstain from alcohol or illegal chemicals despite undergoing chemical-dependency treatment.

Although appellant has not been involved in any sexual or violent behavior since he was last released, appellant has been unable to refrain from using alcohol and/or illegal chemicals. Indeed, appellant admits that he is chemically dependent. Appellant’s history shows that the chemical-dependency treatment was unsuccessful and that appellant has not learned how to control his impulses despite having a supervised plan. Because appellant is chemically dependent and that dependency, coupled with antisocial personality disorder, led to his convictions for sex crimes, there is clear and convincing evidence that appellant is highly likely to engage in harmful sexual conduct in the future.

Appellant argues that there is clear and convincing evidence that a less-restrictive alternative to civil commitment would meet his needs.

“In commitments under [Minn. Stat. § 253B.02], 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 that is consistent with the patient’s treatment needs and the requirements of public safety.” Minn. Stat. § 253B.185, subd. 1 (2004).

The district court found that the only way to keep appellant from reoffending is to assure that he abstains from using alcohol and illegal drugs, which requires constant supervision and monitoring. But the district court also found that appellant’s history while under supervised release “exhibits a total rejection of that model.” The district court found, and the record reflects, that appellant has had various referrals to halfway houses and chemical-dependency programs since his first parole in 1980, but that appellant has never satisfactorily complied with parole-supervision requirements. The district court concluded that the less-restrictive plan for supervision (supervised release) is not a viable alternative to commitment given appellant’s failure to abide by these same requirements in the past.

Appellant argues that clear and convincing evidence establishes that a less-restrictive alternative than civil commitment would meet his needs because he testified that if he was released into the community to his parole officer, he would (1) arrange for housing at a halfway house such as 180 Degrees; (2) submit to electronic monitoring for up to the duration of the parole period; (3) engage in outpatient group sex-offender treatment at Alpha House; (4) continue chemical-dependency support groups in the community; and (5) submit to drug and alcohol testing. Appellant contends that the intensive supervision program proposed, along with outpatient sex-offender treatment, would meet his needs.

Here, appellant has not established by clear and convincing evidence that a less-restrictive alternative to civil commitment would meet his needs. Appellant’s past behavior compels the conclusion that he will neither refrain from using alcohol and illegal chemicals nor abide by the requirements of his release/relapse plan. Furthermore, both psychologists concluded that civil commitment is the least-restrictive alternative treatment option for appellant and asserted that appellant needs constant monitoring in order to abstain from using alcohol and drugs. Therefore, appellant has not met his burden of establishing a less-restrictive alternative to civil commitment by clear and convincing evidence. Thus, the district court did not err by concluding that no less-restrictive treatment program than civil commitment would meet appellant’s needs.

Affirmed.