This opinion will be unpublished and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

A05-1633

 

 

In the Matter of the

Civil Commitment of:

Edward Everett Urbanek.

 

 

Filed January 10, 2006

Affirmed
Crippen, Judge*

 

Otter Tail County District Court

File No. P7-04-1142

 

Mike Hatch, Attorney General, Angela M. Helseth, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent State of Minnesota)

 

Ryan B. Magnus, 219 W. Nassau Street, P.O. Box 57, St. Peter, MN  56082 (for appellant Urbanek)

 

            Considered and decided by Willis, Presiding Judge, Worke, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant challenges the constitutionality of applying Minnesota’s sexual psychopathic personality and sexually dangerous person statutes in the absence of recent and overt evidence of the cause of his commitment.  Because this argument is not supported either by precedents or the facts in this case, and for the additional reason that we find no merit to the issues appellant raises as to the sufficiency of the evidence, we affirm. 

FACTS

            Appellant Edward Urbanek is 48 years old.  In 1985, he sexually abused a six-year-old child whom appellant and his wife babysat.  Over the course of several months, appellant sexually touched the child and performed oral sex on her.  In 1985, appellant also sexually abused appellant’s wife’s nephew, also age six, by twice performing oral sex on the child.  Appellant sexually abused another nephew and niece by marriage, ages nine and four, by fondling the children and performing oral sex on them.

            On September 11, 1985, appellant was charged with six counts of knowingly taking immodest, immoral, or indecent liberties for his offenses against the four children listed above and against two other children, ages seven and eight; appellant still denies abusing the latter children, but he was convicted on four of six counts stated against him, including those based on these two children.  Appellant was sentenced to serve three to five years at the Wyoming State Penitentiary and was released from prison in 1989.   

            In 1993, appellant sexually abused the four-year-old child of a woman he began dating after release from imprisonment; this abuse occurred over a three-month period and included oral sex on the child, holding the child on top of him while masturbating, and, according to the child, placing his penis in the child’s mouth.  Appellant states that he does not remember placing his penis in the child’s mouth, but that he may have blacked out from alcohol use.  

Appellant later pleaded guilty to one count of second-degree criminal sexual conduct for the 1993 abuse.  He was to serve a year in jail and be placed on probation, with a condition of his probation being the completion of the St. Peter Intensive Treatment Program for Sexual Aggressives.  Appellant participated in the program from June 1994 to October 1995, when his participation was terminated.  Appellant’s probation was then revoked, and he was sentenced to 65 months in prison.  The district court ordered that appellant be placed on conditional release for ten years following his sentence.   

            Appellant was released from prison in April 1998.  He began outpatient treatment at the Upper Mississippi Mental Health Center in May 1998 and completed that program in January 2001.  Appellant’s release agent filed a violation report in January 2004, alleging that appellant violated the conditions of his release by having contact with minors and using marijuana.  A hearings and release officer found appellant in violation of these conditions.  Appellant was returned to prison in January 2004.  In March, the district court reduced appellant’s conditional release period from ten years to five years.   Based on this reduction, appellant was released from prison in March 2004.

A petition for appellant’s civil commitment was filed in June 2004, and he was ordered held in custody pending a decision on the petition.  A trial was held in September 2004, and the district court made an initial order of civil commitment two months later.  A review hearing was held in April 2005, and the district court subsequently ordered appellant’s indeterminate civil commitment. 

D E C I S I O N

            Appellant challenges his commitment as a sexual psychopathic personality and a sexually dangerous person under Minn. Stat. §§ 253B.01-.23 (2004).  The district court’s findings of fact will not be reversed unless they are clearly erroneous.  In re Robb, 622 N.W.2d 564, 568 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  But a district court’s conclusion that the record supports a commitment is a question of law, which we review de novo.  In re Civil Commitment of Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  This court will not reweigh the evidence.  In re Linehan (Linehan I), 557 N.W.2d 171, 189 (Minn. 1996), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).  Instead, this court “will determine if the evidence as a whole presents substantial support for the district court’s conclusions.”  Id.    

1.

            Appellant first asserts that due process demands a recent overt act in order to apply either of the sexual psychopathic personality or sexually dangerous person statutes and that because he lived in the community from 1998 to 2004 without committing any sexual offenses, there is no recent overt act to justify his commitment.  Appellant cites In re Young, 857 P.2d 989, 1008-09 (Wash. 1993), superseded by statute on other grounds as stated in In re Detention of Ross, 6 P.3d 625 (Wash. App. 2000), in support of his argument. 

            No Minnesota precedent recognizes that due process requires commission of a recent overt act for commitment.  To be considered a “person who is mentally ill and dangerous to the public” for purposes of general civil commitment, a person must have engaged in an overt act causing or attempting to cause serious physical harm on another person.  Minn. Stat. § 253B.02, subd. 17 (2004).  Neither legislation nor supreme court cases require a recent overt act for commitment as a sexual psychopathic personality or sexually dangerous person.  See Minn. Stat. § 253B.02, subds. 18b, 18c (2004); In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999) (holding that the dangerous person statute satisfies due process by requiring a finding that it is “highly likely” that an individual will commit additional harmful sexual acts).   

            Young and other non-Minnesota cases requiring a recent overt act do so “primarily to enhance the reliability and acceptability of dangerousness predictions.”  John Kip Cornwell, Confining Mentally Disordered “Super Criminals”: A Realignment of Rights in the Nineties, 33 Hous. L. Rev. 651, 722-29 (1996) (summarizing decisions requiring or not requiring a recent overt act).  Minnesota’s sexually dangerous person and sexual psychopathic personality statutes specifically address these concerns in their requirements for civil commitment, and Minnesota’s approach has been constitutionally approved.  Minn. Stat. § 253B.02, subds. 18b, 18c; Linehan IV, 594 N.W.2d at 875-76.  And in this case, the overwhelming evidence shows that the reliability of the dangerousness prediction is not an issue. 

            The record also does not support appellant’s assertion of long presence in the community without a recent overt act.  Appellant acknowledges but attempts to minimize his 2004 violations of conditional release.  The experts specifically found that appellant’s marijuana use was a precursor to further unlawful behavior.  Although appellant’s contact with minors in his friends’ home was “supervised,” he also made unsolicited, suggestive comments to a minor working in a grocery store.  The occurrence of these circumstances makes appellant’s case unlike Young and other cases examining the need for recent overt conduct.  In addition, appellant was involved in treatment from 1998 to 2001; although appellant’s completion of treatment is a consideration against findings of risk of future harmful conduct, the occurrence also lessens the impact of the lack of convictions for sexual offenses during that period because the treatment created an “artificial environment.”  In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985).  Appellant’s commitment is not a violation of due process.         

2.

            With similar reference to his absence of convictions for sexual misconduct since 1998, appellant disputes the district court’s findings under the sexual psychopathic personality and sexually dangerous person statutes.  Specifically, appellant argues that he cannot possess “an utter lack of power to control [his] sexual impulses,” as required by Minn. Stat. § 253B.02, subd. 18b, in light of the absence of evidence of more recent sexual misconduct.  Similarly, appellant argues that he cannot be “highly likely” to reoffend, as required by Minn. Stat. § 253B.02, subd. 18c, under Linehan IV, 594 N.W.2d at 876, because of his offense-free period. 

            Appellant’s conditional release violations support the expert testimony and the district court’s findings, detailed later in this opinion.  And no caselaw indicates that a period of time between convictions for sexual offenses compels a finding of an ability to control sexual impulses or a finding that appellant is not highly likely to reoffend.  Appellant’s argument that there is insufficient evidence of his future dangerousness fails.     

3.

            Appellant also challenges his commitment as a psychopathic personality on the grounds that his sexual offenses were not violent.  Caselaw does not support appellant’s argument.  See In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (holding that a sex offender’s behavior must cause “a substantial likelihood of serious physical or mental harm” in order to affirm a commitment); In re Preston, 629 N.W.2d 104, 113 (Minn. App. 2001) (upholding a commitment on the grounds that the appellant’s behavior was “so egregious so as to create the substantial likelihood of physical or mental harm”) (quotation omitted).  Appellant’s arguments overlook the evidence of prolonged suffering experienced by children who are victims of sexual offenses like his.  The experts testified about the substantial harm appellant’s victims are likely to experience.  Appellant’s argument fails. 

4.

            Appellant makes no other particular objections to the sufficiency of the district court’s findings or the evidence to support them.  Overall, the record supports the district court’s determinations that appellant is both a sexually dangerous person and a psychopathic personality.  All three experts offered testimony supporting the district court’s finding that appellant has “an utter lack of power to control” his sexual impulses.  Experts Dr. Linda Marshall and Dr. Rosemary Linderman offered testimony supporting the district court’s finding that appellant is “highly likely” to commit harmful sexual acts in the future. 

A third expert, Dr. Harry Hoberman, disagreed with the others, but under circumstances that do not compel reversal of district court findings supporting appellant’s commitment.  Dr. Hoberman testified that appellant’s age reduces his risk of reoffending.  But Dr. Marshall testified that the typical reduction in risk based on age does not apply to extra-familial child molesters.  Dr. Linderman testified that Dr. Hoberman’s conclusion does not represent the psychological literature and that other factors negate whatever risk reduction age might bring.  Dr. Hoberman testified that appellant’s completion of treatment at Upper Mississippi Mental Health Center reduces his risk of reoffending.  But Dr. Marshall testified that appellant’s violations of his conditional release show that he did not internalize treatment concepts because he put himself in what he knew to be vulnerable situations by using marijuana and having contact with minors.  Dr. Linderman concurred that appellant’s violations of his release cast doubt on the positive effect of appellant’s treatment.  Finally, Dr. Hoberman testified that the period of time appellant spent in the community without offending reduces his risk of reoffending.  But Dr. Marshall and Dr. Linderman testified that appellant’s violations of his release indicate that he was falling into a pattern—his offenses being first steps, Dr. Linderman testified—that could lead to reoffending.

            Affirmed.