This opinion will be unpublished and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

A06-3

 

In the Matter of the Civil Commitment of
Jeremy Rodel Hamann.

 

Filed May 23, 2006

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File Nos. 27-MH-PR-05-128 & 27-PR-CV-05-3

 

Warren Maas, 7964 Brooklyn Boulevard, Suite 107, Brooklyn Park, MN 55445 (for appellant)

 

Amy J. Klobuchar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his indeterminate commitment as a sexually dangerous person.  Because clear-and-convincing evidence exists in the record supporting commitment, and because appellant does not establish by clear-and-convincing evidence that a less-restrictive treatment program is available that is consistent with his treatment needs and the requirements of public safety, we affirm.

D E C I S I O N

 

            When reviewing a commitment order, this court is “limited to an examination of whether the district court complied with the requirements of the commitment act.”  In re Janckila, 657 N.W.2d 899, 902 (Minn. App. 2003).  An appellate court will uphold the district court’s findings if they are not clearly erroneous.  In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  The elements for commitment must be proven by clear and convincing evidence.  Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd. 1 (2004).  Whether the record contains clear-and-convincing evidence of the statutory requirements for a commitment is a question of law which this court reviews de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).  “Clear and convincing” evidence is evidence that is unequivocal, uncontradicted, and intrinsically probable and credible.  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).  The clear-and-convincing-evidence standard “requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.”  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).

Hamann first argues that he is not a sexually dangerous person (SDP) because “[t]here are no significant factors that would distinguish between [him] and a typical 19 year old recidivist.”  He challenges the district court’s conclusion that he is a SDP under the statute, not the district court’s findings, making this court’s review de novo.  See Linehan I, 518 N.W.2d at 613.

A SDP is a person who

(1)       has engaged in a course of harmful sexual conduct as defined in [Minn. Stat. § 253B.02, subd. 7a (2004)];

(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. § 253.02, subd. 18c(a) (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).  “For purposes of [determining a SDP], it is not necessary to prove that the person has an inability to control the person’s sexual impulses.”  Id., subd. 18c(b) (2004).  But the statute requires a showing that the person’s disorder “does not allow [him] to adequately control [his] impulses.”  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV), cert. denied, 528 U.S. 1049 (1999).  The statutory phrase “likely to engage in acts of harmful sexual conduct” means that the person is “highly likely” to engage in harmful sexual conduct.  In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (Linehan III), vacated and remanded on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999), cert. denied, 528 U.S. 1049 (1999). 

            The record contains clear-and-convincing evidence that Hamann has engaged in a course of harmful sexual conduct that creates a substantial likelihood of serious physical or emotional harm to his victims.  Hamann has pleaded guilty to attempted criminal sexual conduct and two offenses of first-degree criminal sexual conduct.  He admitted at trial that he has sexually assaulted, or attempted to sexually assault, 12 different victims, including six girls between the ages of three and 10 and four boys between the ages of eight and 11.  Hamann sexually assaulted a three-year-old girl six times.  He has sexually assaulted family members and strangers.  One of the sexual assaults occurred during Hamann’s placement at the Laurel Ridge Treatment Center in Texas.  A December 2004 progress report from Laurel Ridge recommending civil commitment stated that Hamann is a “high-risk for sexually offending . . . [and] should never be left alone, unsupervised, with children or younger people of any age or any gender.” 

            During treatment, Hamann continually acted out sexually and groomed his peers.  According to a counselor from the Benchmark Hospital Program in Utah, where Hamann was placed following treatment at the Hennepin County Home School Juvenile Sexual  Offender Program and before placement at Laurel Ridge, Hamann “appeared to be seeking out those who[m] he considered more vulnerable or susceptible to his advances.”  Hamann’s testimony at trial affirms that he routinely targeted younger victims: “I wanted to get [sex] the easiest way that I could, so I used the younger kids because that was the easiest way for me to get it . . . .”  Responding to questions by the district court, Hamann agreed that he victimized younger children because they were available and more convenient.  The court-appointed examiner, Dr. Thomas Alberg, testified to the numerous emotional harms that Hamann’s victims likely suffered. 

            Clear-and-convincing evidence also exists in the record supporting the conclusion that Hamann suffers from a sexual, personality, or other mental disorder or dysfunction.  Counselors at Laurel Ridge diagnosed Hamann with paraphilia, an attraction to inappropriate sexual objects.  Dr. Alberg diagnosed Hamann with nonexclusive pedophilia (an attraction to both male and female children) and bipolar disorder.  Testing of Hamann revealed that he has a “disordered arousal system” and a significant sexual attraction to young males and females. 

            Finally, the record contains clear-and-convincing evidence that Hamann is highly likely to engage in further harmful misconduct if he is not civilly committed.  The factors used to determine the likelihood of future harm are (1) relevant demographic characteristics; (2) history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the environment; (5) similarity of present and future contexts to past contexts in which violence was used; and (6) the record with regard to sex-therapy programs.  Linehan III, 557 N.W.2d at 189; Linehan I, 518 N.W.2d at 614.  Dr. Alberg noted that Hamann has offended against family members and strangers, that his victims include males, and that offenders with male victims are more likely to reoffend.  Hamann admitted to sexually assaulting 12 victims and to assaulting some of his victims multiple times.  Hamann identified sources of stress, or his “triggers” for offending, as pornography, “thinking about sex too much,” and boredom.  But his relapse-prevention plan only involved staying away from children and “find[ing] a way to get my mind off of [thinking about sex with children] completely by doing something else or . . . simply try[ing] to forget about it.”  Despite numerous placements in treatment facilities, Hamann has not successfully completed a sex-offender program.  Although Dr. Alberg did not perform any actuarial assessments on Hamann because the assessments are generally used only with adult felons, he concluded that Hamann was highly likely to engage in future harmful sexual conduct.  Examiners at the Home School, Benchmark, and Laurel Ridge all concluded that Hamann is at high risk to reoffend. 

            Hamann also argues that the state failed to pursue a less-restrictive treatment option.  In proceedings for commitment as a SDP, the district 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).  An appellate court will reverse a district court’s findings as to the least-restrictive treatment program that can meet a patient’s needs only if the findings are clearly erroneous.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).  Hamann contends that “[t]here were clearly other alternatives that in hind-sight could have been explored and implemented,” noting that (1) he expressed interest in remaining in Texas for college; (2) clinic notes from Laurel Ridge reflect serious consideration of releasing Hamann into the community; and (3) civil commitment could have been avoided by “structuring a plan whereby [Hamann] could remain in Texas under outpatient commitment.” 

            But Hamann does not present clear-and-convincing evidence that a less-restrictive option exists.  Hamann’s probation officer testified that Hamann has not been placed in a supervised community setting because he has not completed sex-offender treatment.  Dr. Alberg testified that (1) Hamann “needs continued sex offender treatment . . . [in] an inpatient setting”; (2) the Minnesota Sex Offender Program is the only available secure program; and (3) Hamann “needs more intensive treatment” than outpatient monitoring in the community.  Hamann’s therapist from Laurel Ridge testified that while Hamann expressed an interest in remaining in Texas to attend college, he was “[n]ot really” considered for civil commitment in Texas because he was not a resident of Texas and because Minnesota retained jurisdiction over him.  The district court’s finding that Hamann required commitment in a secured facility is not clearly erroneous, and Hamann presents no clear-and-convincing evidence that a less-restrictive program exists that would satisfy his treatment needs.

            Affirmed.