This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1474

 

In the Matter of the

Civil Commitment of

Ryan James White.

 

Filed November 22, 2005

Affirmed in part and reversed in part
Klaphake, Judge

 

Marshall County District Court

File No. P5-04-238

 

David L. Kraker, David L. Kraker and Associates, 3109 Hennepin Avenue South, Minneapolis, MN  55408 (for appellant Ryan James White)

 

Mike Hatch, Attorney General, Matthew G. Frank, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent Marshall County)

 

            Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Ryan James White challenges the district court’s order indeterminately committing him as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP).  Appellant argues that the evidence produced at trial was insufficient to establish the criteria for civil commitment.  Because the evidence does not support the district court’s conclusion that appellant is a SPP, we reverse the district court’s order committing appellant on these grounds.  But because the evidence supports the district court’s conclusion that appellant is a SDP, we affirm appellant’s indeterminate commitment as a SDP.

D E C I S I O N

            Standard of Review

            The district court’s findings of fact are not set aside unless clearly erroneous; deference is paid the district court’s opportunity to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  Whether the district court properly concluded, based on the evidence, that commitment is justified is a question of law reviewed de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

            Sexually Dangerous Person (SDP)

            The statute defines a SDP as a person who

(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;

(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 as defined in subdivision 7a.

 

Minn. Stat. § 253B.02, subd. 18c (a) (2004).  Subdivision 7a defines harmful sexual conduct to include “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another[,]” and imposes a rebuttable presumption that acts constituting criminal sexual conduct in the first through fourth degree create a substantial likelihood that the victim will suffer serious physical or emotional harm.  Minn. Stat. § 253B.02, subd. 7a (a), (b) (2004).  There is no requirement that a victim suffer actual emotional or physical harm.  In re Civil Commitment of Martin, 661 N.W.2d 632, 639 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  Nor is there a requirement that the offender be convicted for the conduct.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).

            Further, the SDP statute does not require proof that the person to be committed completely lacks the ability to control his sexual impulses.  Minn. Stat. § 253B.02, subd. 18c(3)(b) (2004).  But the statute has been interpreted to require that the person must be “highly likely” to engage in future harmful sexual conduct.  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999), cert. denied, 528 U.S. 1049, 120 S. Ct. 587 (1999) (Linehan IV).  Although an “utter lack of control” is not required, there must be a finding that the person suffers from a mental abnormality or personality disorder that “makes it difficult, if not impossible, for the person to control his dangerous behavior.”  Id. at 875 (quotation omitted).

            Here, the expert witness psychiatrists, Dr. James Gilbertson and Dr. Gerald Henkel-Johnson, both testified that the type of sexual conduct engaged in by appellant is harmful because it creates a substantial likelihood of emotional and physical harm to his victims.  Dr. Henkel-Johnson stressed that the repetitive nature of appellant’s conduct toward his female victims could create long-term problems in their relationships with others and their self-esteem, and could cause them to suffer post-traumatic stress disorder, depression, or suicidal feelings, especially because of the intrafamilial nature of the contacts.  The psychiatrists concluded that appellant’s more limited contacts with male victims were harmful because the victims were in the formative years of their sexual identities.  Appellant himself admitted that his conduct toward his female relatives was harmful.  Given this evidence, we conclude that the record amply supports the district court’s finding of harmful sexual conduct within the meaning of the SDP statute.

            In order to be committed as a SDP, one must have an identifiable mental, sexual, or personality disorder that causes serious difficulty in controlling the individual’s sexual behavior.  In re Martinelli, 649 N.W.2d 886, 890 (Minn. App. 2002), review denied (Minn. Oct. 29, 2002).  The disorder must be one that distinguishes the committed individual from the ordinary recidivist offender.  Id.  The statute does not specify which disorders fit within this definition.  In discussing the question, the United States Supreme Court has acknowledged that the constitutionally required standard is less than mathematically precise, stating:

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.

 

Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002) (citations omitted).

            Here, both experts diagnosed appellant with a variety of mental disorders, including bipolar disorder, attention deficit hyperactivity disorder, impulse control disorder, emerging personality disorder, oppositional defiant disorder, unspecified sexual disorder, and “rule out” pedophilia.[1]  Both experts indicated that these disorders affect appellant’s ability to control his sexual conduct, particularly because they are related to emotions, mood, and impulsivity, which create the conditions for sexually abusive behavior.  Based on the experts’ opinions, we conclude that there is sufficient evidence to support the district court’s finding on the second SDP statutory requirement, that appellant suffered from a mental or emotional disorder that made it difficult for him to control his sexual behavior.

            The experts also agreed that because of his mental or emotional disorder, appellant was highly likely to reoffend within the meaning of the third requirement of the SDP statute.  Both the experts and the district court analyzed the evidence in light of the Linehan factors, which are a tool for predicting serious danger to the public.  See Linehan I, 518 N.W.2d at 614.  The factors and analysis are as follows:

            1.         Demographics:  Appellant’s age and gender put him at greater risk of reoffense because he is at the height of his sexual virility, he has no pattern of intimate relationships, and no employment history that would defuse this risk.

            2.         History of violent behavior:  Appellant’s sexually abusive conduct has continued over a period of several years; he has used coercion to accomplish some of the offenses; the most serious offense took place in front of another child; and the severity of the incidents was escalating.  The absence of offenses while appellant has been in custody may not be significant because his pool of weaker, more naive, or less sophisticated victims may not have been present at the juvenile center where he was incarcerated.

            3.         Base rate statistics:  Actuarial models suggest a heightened risk of reoffense. 

            4.         Sources of stress in his environment:   Appellant has no job skills, has had no intimate relationships, has mental disorders that require vigilant medication, and has a fairly small support network.  Appellant has some confusion about sexual identity issues, claiming to be both bisexual and heterosexual.

            5.         Similarity of present or future context to past context:  Appellant had no plan to create a different social context and would likely continue to be around younger family members.

            6.         Success of sexual offender treatment:  Appellant has a poor record with respect to sex-offender treatment and has not demonstrated that he has insight into his offense cycle, minimizes or denies his conduct, and fails to empathize with his victims.  Appellant made no significant progress in anger management; his problems with impulsivity are closely tied to his moods, and his sexual offenses appear to be triggered by his moods.

            Based on the experts’ opinions and the Linehan analysis, we conclude that there is sufficient evidence to sustain the district court’s finding that appellant is highly likely to reoffend.  The district court’s findings are not clearly erroneous and there is a sufficient legal basis for its determination that appellant should be committed as an SDP.

            Sexual Psychopathic Personality (SPP)

            A person is a SPP if, because of (1) conditions of emotional instability; (2) impulsiveness of behavior; (3) lack of customary standards of good judgment; or (4) failure to appreciate the consequences of personal acts; or a combination of the above, the person “has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control [his or her] sexual impulses and, as a result, is dangerous to other persons.”  Minn. Stat. § 253B.02, subd. 18b (2004). 

            Appellant disputes the district court’s finding that he meets the “dangerous to other persons” requirement of the statute.  In the past, appellate courts have rejected a SPP determination where the offender’s conduct does not include elements of violence.  See, e.g., In re Rickmyer, 519 N.W.2d 188, 189-90 (Minn. 1994) (finding no proof of dangerousness where offender spanked and fondled the buttocks of child victims; notes that sexual psychopathic personality includes element of violent sexual deviant condition); In re Robb, 622 N.W.2d 564, 571-72 (Minn. App. 2001), review denied (Apr. 17, 2001) (concluding that in order to commit as a SPP, proof that person is likely to commit violent sexual assaults is necessary; limited physical restraint is insufficient).

            The district court found that appellant’s conduct was “harmful,” but made no finding that it involved the degree of violence that renders appellant dangerous to others.  Although this court has concluded that the restraint of a young child involves the use of force, stating that “[i]t would be absurd to hold that because less force was needed to subdue an extremely young victim, the assault was non-violent,” the forceful conduct in that case went far beyond that acknowledged by appellant.  In re Preston, 629 N.W.2d 104, 112-13 (Minn. App. 2001).  We also note that the court-appointed experts agreed that appellant did not meet the criteria for civil commitment as a SSP.

            Because the evidence fails to establish the degree of violence required for civil commitment as a SSP, we reverse the district court’s order for commitment on those grounds but affirm the order for appellant’s commitment as a SDP.

            Affirmed in part and reversed in part.