This opinion will be unpublished and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

A05-2221

 

In the Matter of the Civil Commitment of

Gene Kay Markham.

 

Filed ­­­March 21, 2006

Affirmed

Dietzen, Judge

 

Faribault County District Court

File No. 22-P2-04-000378

 

Charles K. Frundt, 117 West Fifth Street, P.O. Box 95, Blue Earth, MN 56013 (for appellant)

 

Mike Hatch, Attorney General, Noah A. Cashman, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court’s orders and judgment for commitment, arguing that the district court erred in finding by clear and convincing evidence that: (1) appellant is a sexually dangerous person (SDP), under Minn. Stat. § 253B.02, subd. 18c (2004); (2) appellant is a sexually psychopathic personality (SPP), under Minn. Stat. § 253B.02, subd. 18b (2004); (3) there was not a less-restrictive treatment program available that is consistent with appellant’s treatment needs and requirements of public safety; and (4) appellant was denied his constitutional right to a jury trial.  Because we conclude that the district court properly applied the law, that the record supports by clear and convincing evidence that appellant meets the statutory and legal requirements of an SDP and SPP, that there is not a less-restrictive treatment program available for appellant, and that appellant is not entitled to a jury trial on those determinations, we affirm.

FACTS

 

            Appellant Gene Markham is approximately 73 years old.  He graduated from high school in Missouri, spent one year in college, and was drafted into the Air Force, in which he spent 20 years.  Appellant married in 1956 and had two children. 

            On August 9, 2004, a petition for civil commitment was filed under Minn. Stat. §§ 253B.18 and 253B.185, requesting that the district court commit appellant as an SDP, under Minn. Stat. § 253B.02, subd. 18c (2004), and as an SPP, under Minn. Stat. § 253B.02, subd. 18b (2004).   

            Appellant’s Criminal and Incarceration History

            Appellant became impotent in his forties and separated from his wife in 1974.  In 1987, appellant was convicted of contributing to the delinquency of a minor stemming from an investigation into the presence of juveniles in appellant’s home.

            In January 1992, appellant was sentenced to a total of 156 months in prison.  The combined sentences resulted from separate convictions involving K.G.N., A.L.S., and R.C.A.  On September 25, 1991, an amended complaint was filed that charged appellant with one count of fourth-degree criminal sexual conduct based on appellant’s sexual conduct with K.G.N.  Appellant pleaded guilty and admitted to touching K.G.N.’s genitals inside of K.G.N.’s pants.  The district court sentenced appellant to 26 months in prison for the conviction involving K.G.N., concurrent with the other sentences imposed that day.

            In January or February 1991, when appellant was 58 years old, he sexually assaulted A.L.S., who was about 14 years old.  A.L.S. knew appellant for approximately three-and-a-half years and came to appellant’s house to drink alcohol.  Appellant performed oral sex on A.L.S.  The amended criminal complaint charged appellant with one count of third-degree criminal sexual conduct based on his sexual assault of A.L.S.  Appellant pleaded guilty and was sentenced to prison for 156 months, concurrent with the other sentences imposed that day.

In July 1989, R.C.A. was sleeping in appellant’s house when he woke up and found appellant performing oral sex on him.  The amended criminal complaint charged appellant with one count of third-degree criminal sexual conduct for his sexual assault of R.C.A.  Appellant pleaded guilty as part of a plea agreement covering five separate charges. 

In January 1992, appellant was admitted to the Minnesota Correctional Facility at Stillwater (MCF-STW) and indicated that he had a serious alcohol problem but said he was not interested in chemical-dependency treatment or sex-offender treatment, and in each annual review through April 1998, appellant declined treatment.  In May 1998, appellant was charged with criminal sexual behavior when an officer observed appellant performing oral sex on another inmate. 

In April 1999, at appellant’s annual review, appellant asked for treatment.  The Department of Corrections (MDOC) psychologist did not recommend appellant for commitment at that time but strongly recommended that appellant complete sex-offender and chemical-dependency treatment, have no contact with males under the age of 18, and abstain from drugs and alcohol. 

In April 2000, appellant was released to live with his brother in Missouri and entered sex-offender treatment in May 2000.  He was terminated in December 2000 without making any progress. 

In September 2001, appellant began participating in sex-offender treatment.  In early 2002, appellant wrote victim reports that minimized his crimes and admitted that he was sexually aroused writing the reports.  That summer, appellant was discharged from treatment.  The therapist indicated that appellant should be screened for civil commitment.  In August 2002, appellant was arrested and returned to Minnesota.

In September 2002, appellant returned to MCF-Lino Lakes.  Appellant was assessed for treatment, and in January 2003, he entered Track 3 of the program.  In four consecutive quarterly reviews, appellant’s progress was deemed marginal to satisfactory or less than satisfactory, and he was placed on probation from the program. 

The Commitment Trial

Trial was held on November 17-18, 2004.  Appellant acknowledged that he had pleaded guilty to criminal offenses; and that he was involved in criminal sexual conduct with at least 38 young men, most of whom were minors, and with three females.  Appellant was able to recall the ages of his victims, his own age when he committed the offenses, and the types of misconduct that occurred.  He stated that his home became the center of social activity for the young men.  He would offer them beer, food, and allow them to “sleep off” any intoxication at his home, and he had board and other games for them to play.  In essence, he admitted to “grooming” or cultivating relationships with them through the use of drugs, alcohol, and the viewing of pornographic materials. 

Appellant testified that he made significant progress in his treatment and that he is in need of further sex-offender treatment, which he would seek on an out-patient basis in Missouri.  He also testified that he has a relapse-prevention plan, and would avoid situations where he would have contact with potential victims.  But he admitted that he had a sexual relationship with one prior victim, S.A., while he was on supervised release.  Appellant’s brothers, Robert Markham and James Markham, also testified.  They were both supportive of appellant and his need for further treatment.

Dr. Linda Marshall has been a licensed psychologist since 1994 and testified as the court-appointed examiner.  She has served as a court-appointed examiner in approximately 17 SDP/SPP cases in Minnesota.  She reviewed appellant’s records and interviewed him.

            Dr. James Gilbertson, a licensed psychologist since 1974, also testified.  Gilbertson has been a civil commitment examiner with Anoka County since 1975.  He has served as a court examiner in approximately 37 SDP/SPP cases in Minnesota.  Gilbertson reviewed appellant’s records and interviewed appellant for about three hours. 

Both Marshall and Gilbertson testified that appellant meets the requirements for commitment as an SDP and as an SPP.  Both experts also testified that appellant is in need of further treatment.

Pamela Stanchfield testified as appellant’s sex-offender therapist in prison.   Stanchfield testified that appellant initially made slow progress, but in the last three to four months of treatment, he made significant progress.  Stanchfield also believed that appellant’s release plan was “viable” with some revisions, but his proposal for out-patient sex-offender treatment was not what she recommended.  Stanchfield testified that if appellant had successfully completed Track 3 of the treatment program in December, he would need six more months of treatment in Track 4 to complete sex-offender treatment.  Stanchfield was asked by appellant’s attorney to opine whether appellant’s treatment needed to be at a secured, locked facility.  Respondent objected, and that objection was sustained.

Following trial, the district court issued its findings of fact, conclusions of law, and order of initial commitment consisting of approximately 72 pages, which included 286 findings of fact and conclusions of law.  The district court concluded that appellant satisfies the requirements for commitment as a “sexually dangerous person” and a “sexual psychopathic personality” by clear and convincing evidence, under Minn. Stat. § 253B.02, subds. 18b, 18c (2004).

The district court initially committed appellant under section 253B.18, subdivision 1.  Following the review mandated in section 253B.18, subdivision 2, appellant moved for a continuance, which was granted.  On September 9, 2005, the district court committed appellant for indeterminate commitment under section 253B.18, subdivision 3.  Appellant challenges the indeterminate commitment order but only challenges the findings of the initial commitment order.

D E C I S I O N

I.

            Appellant raises four issues on appeal.  First, appellant argues that the record does not establish by clear and convincing evidence that he is a SDP as defined by statute.  The district trial court’s factual findings must be affirmed if they are not clearly erroneous.  Minn. R. Civ. P. 52.01; see also In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  Appellate courts will not re-weigh the evidence.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan III), vacated as remanded, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999), cert. denied, 120 S. Ct. 587 (1999).  “The reviewing court will not defer to the trial court if it has erred as a matter of law.”  In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).  Where the issue is whether the facts justify the commitment requirements as a legal matter, the issue is a matter of law, which the appellate court reviews de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

            To commit an individual as a SDP, the petitioner must prove the requirements for commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1, .185, subd. 1 (2004).  Minnesota law defines an SDP as “a person 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).  The statute creates a rebuttable presumption that “harmful sexual conduct” is shown where an offender committed certain crimes, including third- and fourth-degree criminal sexual conduct.  Minn. Stat. § 253B.02, subd. 7a(b) (2004). 

The supreme court has required that for an SDP commitment, the person must lack adequate control of his sexual impulses.  In re Linehan, 544 N.W.2d 308, 311 (Minn. App. 1996).  For purposes of the third factor, “likely” to engage in harmful sexual conduct means “highly likely.”  Linehan III, 557 N.W.2d at 180. 

Both Marshall and Gilbertson testified that appellant meets the requirements for commitment as an SDP.  With regard to the first element for an SDP, that the person has engaged in a course of harmful sexual conduct, Marshall testified that this element is satisfied by the number of appellant’s offenses, the years over which appellant sexually offended, and the method that he utilized in victimizing adolescent males.  Gilbertson also testified that appellant meets the first element, noting that appellant indicated in treatment that he had as many as one hundred victims, although he could only specifically recall 41.  Gilbertson noted that appellant has demonstrated a “pattern of grooming, persuasion, and subtle coercion to accomplish his sexual aim.”  He testified that appellant’s “paraphilia is the engine, the alcohol is the accelerant, and the personality disorder contributes to the chronicity.”

The second element for an SDP, that the person manifest a sexual personality, or other mental disorder dysfunction, was also met according to both experts.  With regard to the third element, Marshall concluded that appellant is highly likely to engage in acts of harmful sexual conduct.  Based on her analysis of several risk assessments, her own clinical interview, and her experience, Marshall concluded, “[i]t is my opinion based upon a reasonable amount of psychological certainty, that Gene Markham continues to pose a high risk for sexual violence relative to other sex offenders incarcerated.”

Based on actuarial-risk instruments, Gilbertson concluded that appellant falls at a moderate to moderately high tier to re-offend sexually, depending on a consideration of years at risk.  And although appellant has agreed that he needs treatment, he has yet to complete a full sex-offender therapy program.  Gilbertson concluded that appellant appears one to two times more likely to re-offend than the average released sex offender.

It is in the province of the district court to weigh the expert opinions of Marshall and Gilbertson.  See Linehan III, 557 N.W.2d at 189.  On this record, we conclude that respondent showed that appellant was highly “likely to engage in acts of harmful sexual conduct” and that he met the requirements of SDP by clear and convincing evidence.  The district court did not abuse its discretion by committing appellant as an SDP.

II.

            Appellant also argues that the record does not establish by clear and convincing evidence a conclusion that appellant is a sexually psychopathic personality (SPP) as defined by statute.  When the evidence is in conflict, the question is one of fact to be determined by the district court upon all the evidence.  In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).  Whether the evidence was sufficient to demonstrate the standards for commitment as a psychopathic personality is a question of law reviewed de novo.  Linehan I, 518 N.W.2d 609, 613 (Minn. 1994).

            Under Minnesota law, “sexual psychopathic personality” is defined as

the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons. 

 

Minn. Stat. § 253B.02, subd. 18b (2004).

Appellant argues that he does not satisfy the criteria for an SPP because he did not use violence while committing his crimes, and he has made significant progress in his treatment.  As a result, appellant argues that respondent did not establish that he has an “utter lack of control” under the SPP statute.

            Courts consider a number of factors to determine whether an individual exhibits “utter lack of control” over his sexual impulses, including

the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender’s attitude and mood, the offender’s medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it.

 

In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).  Proof of the requisite conditions must be by clear and convincing evidence.  Id.

Both Marshall and Gilbertson reviewed the Blodgett factors and many other factors, and concluded that appellant meets the requirements for an SPP.  Marshall found it significant that: appellant’s assault of his victims occurred over 13 years, during which he consistently sexually assaulted pubescent boys; although he did not use direct violence, he did use both direct and implicit coercion through drugs, alcohol, and pornography; and appellant took advantage of his relationships with his victims to offend sexually against them.  Consequently, Marshall opined that appellant had an utter lack of power to control his sexual impulses.

Gilbertson found it significant that appellant had at least a two- to three-year history of sexual offending involving young pubescent males ages 14 and above; that his victims were known to him and that he “groomed” them to satisfy his deviant sexual desires; and that appellant admits that he has a problem with his sexual desires in the offending cycle and is in need of further sex-offender treatment.  Gilbertson opined that appellant does not have the ability to control his sexual impulses when there is an available victim and circumstances conducive to sexual assault.

Finally, both experts concluded that appellant is highly likely to engage in acts of harmful conduct in the future and is dangerous.  In that regard, Marshall addressed the factors set forth in Linehan I, 518 N.W.2d 609 (Minn. 1994).  Marshall concluded that “[appellant] has a time span of several years in which he engaged in inappropriate sexual behavior with adolescent males.  His actions appear predatory in nature and opportunistic, and basically, we consider him to be an untreated sex offender, as his progress in treatment was marginal.”  Gilbertson opined that appellant is dangerous and cannot be safely released into the community. 

            Based on the record, the district court did not abuse its discretion by finding that appellant was a SPP by clear and convincing evidence. 

III.

            Appellant contends that he has established by clear and convincing evidence that a less-restrictive treatment program is available that meets the requirements of public safety.  An appellate court will not reverse a district court’s findings of the least restrictive treatment program that will meet the patient’s needs, unless the findings are clearly erroneous.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).

            Minnesota law 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 that is consistent with the patient’s treatment needs and the requirements of public safety.”  Minn. Stat. § 253B.185, subd. 1 (2004).  The burden is on the patient to establish that a less-restrictive alternative exists.  See id.

            Appellant argues that the district court erred by not allowing his prison therapist, Stanchfield, to give an opinion on his treatment needs.  The district court sustained respondent’s objection based on lack of foundation.  A decision on the sufficiency of the foundation for evidence is within the discretion of the trial court.  McKay’s Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992).  On this record, we cannot say the district court abused its discretion by sustaining respondent’s lack of foundation objection.

            Both experts testified that appellant needs intensive, structured, in-patient treatment.  Appellant has the burden to show by clear and convincing evidence a less-restrictive alternative exists that meets his treatment needs and is consistent with public safety.  See Minn. Stat. § 253B.185, subd. 1.  The district court found that appellant offered no evidence that he had applied for any treatment, that any appropriate treatment was available in either Minnesota or Missouri, or that appellant was accepted or considered for treatment.  Because appellant failed to meet his burden of showing a less-restrictive alternative, the district court did not err in concluding that appellant must be committed to the Minnesota Sex Offender Program.      

IV.

Appellant argues that he is entitled to have a jury to determine whether he should be committed.  Appellant bears the burden of proving beyond a reasonable doubt that a statute violates a claimed right.  In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn. 1996).  We conclude that appellant cannot meet this burden because the civil commitment statute provides that the district court, not a jury, will make a commitment determination.  See Minn. Stat. § 253B.185, subd. 1 (2004) (emphasis added).  The legislature could have provided a right to a jury trial, but it did not.  And Minnesota courts have long recognized that the state constitution does not guarantee a right to a jury trial in a civil commitment proceeding.  See State ex rel. Pearson, 205 Minn. 545, 556-57, 287 N.W. 297, 303 (Minn. 1939); see also Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999) (re-affirming the Pearson principle that the right to jury trial does not attach to a civil commitment hearing), review denied (Minn. Jul. 28, 1999).  Therefore, we conclude that appellant does not have a constitutional right to a jury trial.

Affirmed.