This opinion will be unpublished and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

A05-2274

 

In the Matter of the Civil Commitment of:

Kevin Andreas Olson.

 

Filed April 25, 2006

Affirmed

Shumaker, Judge

 

Pennington County District Court

File No. P9-04-468

 

Richard N. Sather, II, Sather Law Office, 311 Main Avenue, P.O. Box 381, Thief River Falls, MN 56701 (for appellant Olson)

 

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

 

 

            Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant was civilly committed as a sexually dangerous person and a sexual-psychopathic personality.  On appeal, appellant argues that the district court erred by finding that he is highly likely to engage in future acts of harmful sexual conduct, that he has an utter lack of power to control his sexual impulses, and that no lesser-restrictive alternative than indefinite commitment exists.  Because the district court’s findings are supported by the record, we affirm.

FACTS

            Appellant Kevin Olson is 44 years old and has been indeterminately committed as a sexually dangerous person (SDP) and a sexual-psychopathic personality (SPP).  As a juvenile, he compiled a lengthy criminal record, including burglary, disorderly conduct, motor-vehicle theft, minor consumption, criminal damage to property, robbery, and larceny.  He spent time on probation and was committed to the commissioner of corrections.  He had several alcohol- and drug-related offenses, as well as probation violations.  In 1978, while intoxicated, he threatened his father with a butcher knife.  His crimes continued as an adult: motor-vehicle theft, forgery, disorderly conduct, driving while intoxicated, careless driving, and marijuana possession.  He also has a lengthy history of treatment and other placements.  Throughout the period from 1976 through 1983, he spent time in the Minnesota corrections system, the Glenmore Recovery Center, and the Fergus Falls Regional Treatment Center (FFRTC).

            Olson’s first sexual assault occurred in 1982 with his aunt.  At the time, Olson was extremely intoxicated.  He went to his aunt’s apartment, where he suggested that they “fool around and have sex.”  She said no, but he removed her clothes and placed his finger in her vagina.  She was able to escape only when he stopped to remove his clothes.  Olson was charged with third-degree criminal sexual conduct and was admitted to FFRTC for a rule 20 mental evaluation.  In a progress report dated two weeks after his admission, staff noted that Olson showed no remorse for sexually assaulting his aunt and that he denied any need for chemical-dependency treatment.  He was found competent to stand trial and was referred back to court.  The charges, however, were dismissed after he was diagnosed with antisocial-personality disorder and borderline intellectual functioning, and he was readmitted to FFRTC.  At FFRTC, Olson cornered a female patient and attempted to kiss her.  He was also observed engaging in a sexual act with another male patient.  He did not recall that act when he testified at his commitment trial.  Olson sexually harassed female patients and asked one for sexual favors.  In 1983, Olson was discharged to Riverview Home in Brookston, Minnesota.

            From 1983 to 1991, Olson resided in or around Thief River Falls and committed numerous nonviolent crimes.  In 1991, Pennington County Human Services filed a petition requesting that Olson be civilly committed as mentally ill.  The district court stayed commitment for 60 days on the condition that Olson enter a board-and-care home.  The court later dismissed the petition.

            In 1994, a 24-year-old female secured a restraining order against Olson, prohibiting him from having contact with her or her minor child.  The female alleged that Olson had arrived intoxicated at her place late in the evening and would not leave.  She also alleged that he had previously made unwanted sexual advances toward her at his residence.

            Olson’s second sexual assault occurred in 1995 and involved a three-year-old girl.  Olson was again extremely intoxicated.  The minor child’s mother found Olson sitting next to the minor on the steps of her home.  Olson had his hands between the minor’s thighs and was rubbing them up and down.  At the civil-commitment trial, Olson testified that he digitally penetrated the minor, that he decided to “try it and . . . see what would happen,” and that the act was impulsive.  He was arrested, taken to jail, and placed in a holding cell, where he removed his clothes and fondled his genitals.  He was charged with second-degree criminal sexual conduct for touching the minor.  After being found competent to stand trial, Olson pleaded guilty.  The court stayed execution of a 26-month sentence, placed him on probation for 25 years, and directed him to serve 12 months in jail.  He was also ordered to complete sex-offender treatment, abstain from alcohol and drugs, and undergo a psychiatric evaluation.

From 1996 to 1999, Olson was placed at the Center for Human Environment.  A physician found that he continued to intermittently use drugs and suffered from chronic schizophrenia aggravated by mental illness.  Olson’s third sexual assault took place at the center in 1999.  Olson asked a vulnerable, 43-year-old female to go for a walk to an abandoned trailer.  He grabbed her arm and took her inside the trailer, where he began kissing and sexually touching her.  He forcibly removed her clothes and penetrated her with his penis.  He later forced her to have oral sex.  Olson admitted to having sex with her against her will and that he was extremely intoxicated.  He was charged with third-degree criminal sexual conduct and entered an Alford plea.  He was sentenced to 74 months in prison, to be served concurrently with his conviction of criminal sexual conduct with the minor child.

Olson was committed to the St. Cloud correctional facility.  An evaluator diagnosed Olson as alcohol dependent and recommended treatment.  He was transferred to the Lino Lakes correctional facility, where he was assessed as a high risk for sexual recidivism.  He was then transferred to the Moose Lake correctional facility to receive sex-offender treatment.  At Moose Lake, further assessments confirmed that Olson was a high risk for sexual recidivism.  Olson also signed an agreement for sex-offender treatment in the Minnesota Sex Offender Program.  A civil-commitment review committee attempted to assess whether Olson was a sexually dangerous person (SDP) or a sexual-psychopathic personality (SPP) for civil-commitment purposes, but Olson refused to participate.  The committee decided against a civil-commitment referral, but noted that his progress in the Minnesota Sex Offender Program was “minimal.”  He was released in 2003 under the intensive supervised release of Hennepin County and placed in a halfway house.

In April 2003, Olson began treatment at Safety Center, a program that treats male sex offenders who have special needs.  Safety Center has a five-step program, and Olson completed the first two phases.  At Safety Center, Olson was found to be in possession of a pornographic magazine.  His “journal content” also began mentioning “attraction to and masturbatory fantasies about teenagers and even elementary school age girls.”  He admitted at the civil-commitment trial to having sexual fantasies about elementary-school-aged girls and that he masturbated to these fantasies.  Olson also testified to having a dream about his niece in which she was “about 10 years old, maybe 12.”  He awoke from the dream sexually aroused and then masturbated.

In August 2004, the state filed a petition to have Olson civilly committed as a SPP and a SDP.  The district court appointed Dr. Robert Riedel as the first court-appointed examiner and, at Olson’s request, Dr. John Austin as the second court-appointed examiner.  Both Dr. Riedel and Dr. Austin testified at the commitment trial, as did Helen Barba, the primary therapist and director of clinical operations at Safety Center.  After a three-day trial, the district court concluded that Olson was a SPP and a SDP, and the court ordered his initial commitment to the Minnesota Sex Offender Program in April 2005.  In its findings, the district court consistently found Dr. Riedel to be more credible than either Dr. Austin or Barba.  After the Minnesota Sex Offender Program filed its treatment report, the district court concluded that the Program was the least-restrictive alternative for providing treatment and ordered Olson’s indeterminate commitment in September 2005.  This appeal followed.

D E C I S I O N

1.         SDP

Olson argues that the district court erred by finding that he is highly likely to engage in future acts of harmful sexual conduct.  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).  A 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).  To support a judicial commitment, future harmful sexual conduct must be “highly likely.”  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999).  To determine the likelihood of reoffending, courts consider (1) relevant demographic characteristics; (2) any history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the environment; (5) the similarity of present and future contexts in which violence was used; and (6) the record with regard to sex-therapy programs.  In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994).  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).  To commit a person as a SDP, the petitioner must prove the requirements for commitment by clear and convincing evidence.  Minn. Stat. §§ 253B.18, subd. 1, 253B.185, subd. 1 (2004) (providing that the provisions of section 253B.18 apply to SPP and SDP commitments).

Olson’s primary argument is that the testing results calculated by Dr. Riedel do not clearly place him in a high-risk category.  He contends that the district court clearly erred by disregarding his positive life changes and Dr. Austin’s testimony, and by relying instead on past records to support the commitment.  The resolution of conflicting evidence is a fact question to be determined by the district court.  In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984).  “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).

Exercising its ability to judge the credibility of a witness, the district court found much of Dr. Austin’s testimony not credible.  For example, Dr. Austin noted that the “most significant factor for increased risk [of future harmful sexual conduct] is deviant sexual interest.  [Olson’s] abuse of the 3-year old [girl], who was a stranger to him and significantly younger, is an example of this.”  Yet, the district court found that Dr. Austin ignored Olson’s sexual deviations and the opinion of Olson’s treatment provider that Olson had a “deviant sexual interest in adolescent females.”  The district court determined that Dr. Austin’s opinion is “not credible given his statement that deviant sexual interest is the most significant factor, and his decision to ignore the facts on record in this case.”  Dr. Austin also offered an opinion that the “likelihood of someone similar to Mr. Olson being arrested for a sexual crime over the next 10 years is between 45-78%.”  He then noted that the “empirical question . . . is whether Mr. Olson belongs to the group of 20-45% of prior sex offenders who will sexually reoffend or whether he belongs to the group of 55-80% who will not.”  He concluded that “[s]imply on the basis of the actuarial measures, taking into account their limitations, it is my opinion that the odds of [Olson] falling into either group are 50-50.”  The district court found that this was a “leap of logic that has no basis in the facts” and that Dr. Austin’s “testimony regarding the likelihood of future reoffense is completely unreliable, not credible, and not persuasive.”  The district court’s findings regarding Dr. Austin’s credibility are supported by the record and are not clearly erroneous.

Olson next challenges the opinion of Dr. Riedel and contends that the district court’s interpretation of Dr. Riedel’s testimony was clearly erroneous.  For example, Olson argues that “Dr. Riedel likely erroneously arrived at a score of 30” on the PCL-R actuarial measure.  But Dr. Riedel in fact calculated a score of 30 on this test, and he concluded that “[t]his would most likely meet the standard of ‘highly likely.’”  Olson likewise argues that Dr. Riedel erroneously interpreted several other actuarial measures to conclude that Olson was highly likely to sexually reoffend.  But the district court’s findings accurately reflect the testimony and conclusions of Dr. Riedel.  The district court properly found Dr. Riedel’s testimony to be credible, and the record supports the court’s reliance on his opinions.

            Lastly, Olson challenges the district court’s findings regarding the specific Linehan factors.  Olson challenges the district court’s finding that his sexual acts were all violent, forced rapes.  But the record supports the district court’s finding.  The complaint for Olson’s first sexual assault against his aunt alleges that Olson used “force to accomplish penetration . . . by pulling her hair, tearing her clothes off and dragging her into the bedroom.”  In a statement made to police on the day of this assault, Olson stated that he “kind of went wild.”  Olson’s second sexual assault involved his digital penetration of a three-year-old victim, which Dr. Riedel testified could have caused significant physical harm to her anatomy and psychological problems relating to males and strangers.  His third sexual assault involved Olson forcing the victim into a bedroom, where she hit her head against the wall, and raping her.  The district court’s finding that Olson’s sexual assaults were violent, forced rapes is not clearly erroneous.

            Olson disputes the district court’s finding concerning the fourth Linehan factor, the sources of stress in his environment.  But Dr. Riedel testified that several sources of stress still exist in Olson’s environment: (1) Olson’s “lack of employment, lack of income, being identified as a level three [sex offender], lack of support group, lack of friends”; (2) Olson’s sexual fantasies about minor girls; (3) Olson’s sessions at Safety Center that routinely spoke of his desire to become intoxicated and look for sex; and (4) Olson’s status as an untreated sex offender who has never completed treatment.  The 60-day report by the Minnesota Sex Offender Program after Olson’s initial commitment in April 2005 states that “Olson indicated that he is not interested in participating in sex offender treatment at this time.”  Olson also ignores the fact that between February 1999 and March 2003, he was incarcerated in various Minnesota correctional facilities that provided greater controls and restrictions on his opportunities for sexual misconduct than if he were not incarcerated.  And he ignores evidence that, during his time at Safety Center from March 2003 to April 2005, his “daily sexuality journals” mentioned an attraction to and masturbatory fantasies about teenage and elementary-school-age girls.  The district court did not clearly err by finding that the sources of stress in Olson’s environment contribute to a high risk of reoffending. 

Finally, Olson argues that the district erred in applying the fifth Linehan factor, the similarity of present and future contexts in which violence was used.  Olson contends that Safety Center and intensive supervised release “promise[] some likelihood of success.”  But Olson ignores the present environmental factors highlighted by Dr. Riedel.  He again ignores that he has been incarcerated in Minnesota correctional facilities for four years since 1999, providing a highly regulated setting to control Olson’s deviant behavior.  The record indicates that Olson frequently consumed alcohol while in previous treatment programs, and his last sexual assault occurred while he was admitted for treatment at the Center for Human Environment.  The district court did not clearly err in finding a similarity between present and future contexts.

2.         SPP

Appellant argues that the district court erred by finding that Olson has an utter lack of power to control his sexual impulses.  Commitment as a SPP requires proof that a person (1) engaged in an habitual course of misconduct in sexual matters; (2) has an utter lack of power to control the person’s sexual impulses; and (3) is therefore dangerous to others.  Minn. Stat. § 253B.02, subd. 18b (2004).  In determining whether a person has an utter lack of power to control his sexual impulses, we consider

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).  To commit a person as a SPP, the petitioner must prove the requirements for commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1 (2004); see Minn. Stat. § 253B.185, subd. 1 (2004) (providing that the provisions of section 253B.18 apply to SPP commitments).  Here, the record supports the district court’s conclusion that Olson is a SPP.

            Olson argues that the frequency of his sexual assaults does not compare with that in Blodgett.  Dr. Riedel testified, however, that Olson met the frequency factor because of the different types and increased escalation of his victims and because his incarceration prevented him from sexually assaulting others.  Moreover, while Olson’s first sexual assault occurred in 1982, a harassment restraining order was issued against him in 1994, and he sexually assaulted victims in 1995 and 1999.

            Olson also contends that the district court’s finding that Olson met the second Blodgett factor—the degree of violence—was clearly erroneous.  But the record shows that Olson forcibly dragged his aunt by her hair to a bedroom, removed her clothes, and penetrated her.  He also forced his third victim into a bedroom, where she hit her head against a wall; pushed her onto the bed; removed her clothes; and raped her.  Dr. Riedel testified that Olson “used what force was necessary in each situation.” 

Challenging the third Blodgett factor, Olson argues that the district court erred by finding that the relationship between Olson and his victims was indicative of his utter lack of power to control.  But Olson sexually assaulted females of varying relations and ages—his aunt, a three-year-old girl who was a complete stranger, and an acquaintance who was vulnerable.  According to Dr. Riedel, Olson’s victim pool is “unlimited” and “he’s unselective and therefore, in one sense, more dangerous because of the breadth, and in another sense more difficult to supervise because it’s opportunistic rather than targeted.” 

            Olson also contends that the district court erred by relying on Dr. Reidel’s testimony over Barba’s when it considered the fourth Blodgett factor of mood and attitude.  But when findings rest on expert opinion, the district court’s determination of credibility is given great weight.  In re Joelson, 385 N.W.2d at 811.  Dr. Riedel testified that Olson exhibited a “shallow affect” with “periods of anger”  and that he did not “see much remorse or any remorse that . . . rings true . . . in any type of clinical sense.”  He concluded that “there is definitely a mood problem” with Olson.  The district court’s reliance on Dr. Riedel’s testimony and its finding that Barba’s testimony was not credible were credibility issues that the court properly resolved against Olson.

            Olson claims that the district court erred in applying the fifth Blodgett factor—his medical and family history—because the record contains no clear and convincing evidence regarding his family history.  But Dr. Riedel testified about a history of alcoholism and violence in Olson’s family.  And Olson’s lengthy history of mental illness is also supported by the record.

            Finally, Olson argues that the district court made erroneous findings regarding the results of the actuarial measures, the sixth Blodgett factor.  But, as discussed above, the district court did not clearly err in its findings of the actuarial measures used by Dr. Riedel or by relying on the opinions of Dr. Riedel.  The district court did not clearly err in applying the Blodgett factors and finding that Olson was a SPP.

3.         Lesser-Restrictive Alternative

            Olson argues that the district court’s finding that no lesser-restrictive alternative than indefinite commitment existed is clearly erroneous.  Before committing a person, the court must consider reasonable alternative dispositions, including voluntary outpatient care.  Minn. Stat. § 253B.09, subd. 1(a) (2004).  The court shall commit the person only if “it finds that there is no suitable alternative to judicial commitment.”  Id.  The district court’s findings as to the least-restrictive treatment alternative will not be reversed unless clearly erroneous.  In re Dirks, 530 N.W.2d 207, 211 (Minn. App. 1995).

Dr. Riedel testified that Olson requires a secure treatment program.  He recommended the Moose Lake sex-offender treatment program because “it deals with severe recidivistic risk persons.  It deals with persons who are untreated.  It is secure.  It is structured.  It has a great deal of direction.  And it has all of the opportunities available for treatment that you could get anyplace.”  Additionally, Olson sexually assaulted his third victim while on probation and in treatment at the Center for Human Environment.  He drank excessively while in treatment at the Center.  In the past, he frequently drank while undergoing treatment.  He violated the terms of his intensive supervised release by possessing pornography.  The 60-day report following Olson’s initial commitment recommended that his “needs can best be met in a residential setting” and that the Minnesota Sex Offender Programs in St. Peter and Moose Lake were the only available programs for this type of treatment.  Moreover, Safety Center completed no psychological testing of Olson, had very few records regarding Olson or his prior behavior, and provided treatment to Olson for only three hours a day for three days each week.  The district court’s finding that a lesser-restrictive alternative did not exist is not clearly erroneous.

Affirmed.