This opinion will be unpublished and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

A05-1356

 

In the Matter of the Civil Commitment of:

Robert Earl Scott.

 

Filed December 20, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. MH-PR-04-0449

 

 

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

 

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

 

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

The district court ordered appellant’s commitment as a sexually dangerous person to Minnesota’s sex-offender program.  Appellant argues on appeal that the record does not show clearly and convincingly that he is a sexually dangerous person and that his commitment should be reversed.  We affirm.

FACTS

After a trial on a petition and amended petitions for the judicial commitment of appellant Robert Earl Scott, the district court determined that Scott is a sexually dangerous person and ordered his indefinite commitment to the Head of the Minnesota Sex Offender Program.

Scott does not dispute that he has engaged in various acts of criminal sexual conduct with women but argues that his motivation was financial gain and that the record does not show that he lacks adequate control over his sexual behavior.  Therefore, he contends, the district court improperly classified him as a sexually dangerous person subject to judicial commitment.

Scott accumulated a record of several nonsexual crimes as a juvenile in his birthplace of Kansas City, Missouri.  After he turned age 21, he decided to become a pimp.  From 1977 until 1993, Scott practiced a “turning out” process whereby he initiated women into the prostitution business.  He contends that this process included sexually, physically, and emotionally abusing women “to get control through fear or breaking them down.”  He believed that the process would prevent harm to the women or the loss of income when they were working as prostitutes.  He contends that all of his sexual conduct with women was consensual and for the ultimate purpose of making money through prostitution.

Scott’s history of alleged criminal sexual conduct involves eight women and three felony convictions.

In 1977, Scott met 16-year-old J.N. on the street, took her to a nearby apartment, and offered her sexual services to the occupant.  J.N. refused to perform, and Scott took her into the bathroom and forced her to perform oral sex and engage in vaginal and anal intercourse with him.  He was convicted of inducing a minor to practice prostitution.

After being paroled from prison in 1979 for that crime, Scott visited J.J., an adult female.  When she told him that she did not wish to be a prostitute, he forced her to have sex with him.  Two weeks later, he physically assaulted her and forced her to engage in oral and anal sex.  He also hit her with a walking stick, threatened to put it into her vagina, and forced her to masturbate with a bottle.  For these acts, Scott was convicted of criminal sexual conduct in the first degree and inducing another to practice prostitution and was returned to prison.

In 1982, G.S. visited Scott in prison and became enthralled with his discussions of prostitution.  He persuaded her to become a prostitute and to send the money to him.  She did so throughout the rest of his incarceration, which ended in 1988, and beyond.  A few months after his release, Scott moved in with G.S.  He repeatedly beat her and forced her to engage in degrading sexual acts.  He also had sexual intercourse with G.S.’s 13-year-old daughter who had come to visit for the summer, and he insisted that she be “turned out” for prostitution.

Scott violated his parole in September 1988 and moved with G.S. to Kansas City.  On November 8, 1988, G.S. reported to the Kansas City police that Scott had physically assaulted her.  On that same date, S.T., a female acquainted with Scott, told the police that she accepted a ride home with him but he instead drove to a motel.  In one of the rooms, Scott ordered S.T. to remove her clothes.  When she refused, he pointed a screwdriver at her neck and struck her several times.  The police arrested him, and he was brought back to prison in Minnesota.

After being paroled in 1990, Scott returned to Kansas City to live with his mother.  By 1992, he was sharing a home with several people, including an adult female named Janice.  She and Scott developed a sexual relationship.  One night Scott locked the bedroom door and announced that it was time for him to take control.  He then repeatedly engaged in forcible sex acts with Janice.  The next day, after Janice alleged that Scott had raped her, Scott beat her and threatened to kill her.  He pleaded guilty to assault for this incident.

In January 1993, M.S. was walking home from a grocery store in Kansas City when Scott forced her at knifepoint into an apartment.  Once inside, Scott smoked crack cocaine and told M.S. that he had been watching her for months with the intent to “make you mine.”  He ordered her to remove her clothes, struck her with a clothes hanger, and forced her to engage in various sex acts with him.

Finally, in February 1993, C.M. complained to the Kansas City police that Scott encountered her on the street, forced her at gunpoint into an abandoned building, and coerced her to engage in oral and vaginal sex with him.

At Scott’s civil-commitment trial in November 2004, a court-appointed psychologist, who had examined and interviewed him, concluded that Scott meets all diagnostic criteria of a sexually dangerous person and that he is unable to adequately control his sexual impulses.  She also stated that, considering Scott’s history of habitually violent sexual behavior, there is a substantial likelihood that he will inflict serious physical or mental harm on his victims.

A psychologist retained by the county attorney gave his opinion that Scott fits the criteria for a sexually dangerous person and that he is likely to engage in harmful sexual acts.

A psychologist who testified on behalf of Scott acknowledged Scott’s past sexual conduct but concluded that he does not meet the criteria for a sexually dangerous person because his disorder does not result in an inability to refrain from engaging in future acts of harmful sexual conduct.

D E C I S I ON

      Scott does not deny any of the sexual conduct of which he is accused but rather argues that the record does not clearly and convincingly show that he is a sexually dangerous person.  He claims his conduct was motivated by the desire for financial gain as a pimp and the acts were consensual.

Our review is limited to ascertaining whether the district court complied with the requirements of the commitment statutes.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  “Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  “Where the findings of fact rest almost entirely on expert opinion testimony, the [district court’s] evaluation of credibility is of particular significance.”  In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  The appellate court must determine whether the evidence as a whole presents substantial support for the district court’s conclusions.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), vacated on other ground, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d on remand, 594 N.W.2d 867 (Minn. 1999).

A “sexually dangerous person” (SDP) is one who (1) has engaged in a course of harmful sexual 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 (2004).  “Harmful sexual conduct” is “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.”  Id., subd. 7a(a) (2004).  Criminal sexual conduct of the first through fourth degrees creates a rebuttable presumption that the sexual conduct is harmful.  Id., subd. 7a(b).

To support a judicial commitment, future harmful sexual conduct must be “highly likely.”  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999).  Furthermore, a SDP commitment order must be based on a determination that the person lacks adequate self-control over his sexual impulses.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 266-67 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).

According to the evidence, virtually every encounter Scott has had with women or girls since 1977 has involved sexual conduct between them.  Nearly all of the sexual conduct has involved force of some sort, either to overcome resistance or in the performance of a variety of sex acts.  The force has been both physical and mental.  Although Scott contends that all sexual conduct was consensual, the record demonstrates otherwise.  Taking women at knifepoint or gunpoint or physically assaulting them to obtain compliance with orders regarding the performance of various sexual acts cannot reasonably be called consensual.

Much of Scott’s sexual conduct was accompanied by beating, bruising, and lacerating the women.  Some of it caused fear and anxiety.  Scott admitted that he needed to control his women through fear or by breaking them down.

The court-appointed psychologist also diagnosed Scott as having an antisocial personality disorder.  She concluded that this condition causes him to lack adequate self-control over his sexual impulses and results in the substantial likelihood that he will engage in harmful sexual conduct in the future.  The fact that engaging in sexual conduct is Scott’s ubiquitous response to women demonstrates his inadequate self-control.  Having sex with minors and capturing women from public streets to engage in sexual conduct with them clearly attests to Scott’s inability to control himself.

Despite Scott’s claim that he had sex with women solely to “turn them out” so that he could obtain money from their prostitution services, it is both a reasonable and a compelling inference that his own sexual gratification was at least one of his motives and that he utterly lacked an ability to refrain from harmful sexual conduct.  The district court drew that inference; it is amply supported by the record.

            Affirmed.