This opinion will be unpublished and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

A06-42

 

 

In the Matter of the

Civil Commitment of:
Lawrence Joseph Fisher.

 

 

Filed May 23, 2006

Affirmed
Crippen, Judge*

 

Itasca County District Court

File No. 31-P6-04-000892

 

James S. Dahlquist, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for appellant Lawrence Joseph Fisher)

 

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

 

            Considered and decided by Hudson, 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 Lawrence Fisher challenges his indeterminate commitment as a sexual psychopathic personality, arguing that the evidence is insufficient to sustain his commitment.  Because the evidence supports the district court’s determination that appellant’s condition has not changed since his initial commitment, we affirm.

FACTS

            In May 2004 Itasca County Human Services filed a petition for the civil commitment of appellant as a sexually dangerous person and a sexual psychopathic personality under Minn. Stat. §§ 253B.02, subds. 18b, 18c, .185 (2004).  The district court held a commitment hearing in late June 2004.  Following the hearing, the district court ordered appellant’s commitment to the Minnesota Sex Offender Program on both bases stated in the petition.

            On October 10, 2004, the program staff submitted a written treatment report to the district court, as required by Minn. Stat. § 253B.18, subd. 2 (2004), to assist the court in determining whether to commit appellant for an indeterminate period.  The report addressed dangerous-person commitment standards, but it did not discuss appellant’s indeterminate commitment as a psychopathic personality.

            On December 16, 2004, the district court held a review hearing.  The state offered the treatment report, but appellant’s counsel objected because it did not indicate whether appellant is a sexual psychopathic personality.  Nevertheless, appellant chose to proceed with the hearing.

            On January 13, 2005, the program staff filed an amendment to the treatment report.  That amendment addressed the criteria for civil commitment as a psychopathic personality and stated that “there is no new evidence to suggest that [appellant] has lessened the risk he presents to society since the time of his initial commitment.”  Appellant did not receive a copy of the amendment.

            On February 4, 2005, the district court considered the October 2004 report and the January 2005 amendment and determined that appellant shall be indeterminately committed both as a sexual psychopathic personality and a sexually dangerous person.  Appellant sought review of that order, arguing that the record lacked sufficient evidence to support his civil commitment and that the district court violated appellant’s right to due process by ordering an indeterminate commitment as a sexual psychopathic personality when appellant never received a copy of the January 2005 amendment.

            This court affirmed appellant’s initial commitment.  In re Civil Commitment of Fisher, No. A05-579, 2005 WL 2209079, at *10 (Minn. App. Sept. 13, 2005), review denied (Minn. Nov. 22, 2005).  But this court also concluded that due process requires that appellant have an opportunity to thoroughly review and challenge the January 2005 review-report amendment.  Id. at *13.  Thus, this court vacated appellant’s indeterminate commitment as a sexual psychopathic personality and remanded for a hearing to determine “whether changes in [appellant’s] condition render indeterminate commitment as a SPP inappropriate.”  Id. at *14.

            On remand, the district court found that no changes had occurred in appellant’s condition since his initial commitment, and it ordered appellant committed indeterminately as a sexual psychopathic personality. 

D E C I S I O N

            We will uphold the district court’s findings of fact 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 trial court’s conclusion that the record supports commitment is a question of law, which this court reviews de novo.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).  This court will not weigh the evidence.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), 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).  Rather, this court “will determine if the evidence as a whole presents substantial support for the district court’s conclusions.”  Id.

            Once an individual has been committed as mentally ill and dangerous to the public, the district court must hold a review “hearing to make a final determination as to whether the person should remain committed.”  Minn. Stat. § 253B.18, subd. 2(a) (2004).  At that hearing, the committed individual may not challenge every aspect of the initial commitment order.  Linehan, 557 N.W.2d at 170-71.  Instead, the district court may properly limit the evidence to: “(1) the statutorily required treatment report; (2) evidence of changes in the patient’s condition since the initial commitment hearing; and (3) such other evidence as in the district court’s discretion enhances its assessment of whether the patient continues to meet statutory criteria for commitment.”  Id. at 171.  Thus, the district court retains the discretion to consider other evidence which is “new and helpful.”  Id. “If the court finds . . . that the patient continues to be a person who is mentally ill and dangerous, then the court shall order commitment of the proposed patient for an indeterminate period of time.”  Minn. Stat. § 253B.18, subd. 3.

            Here, appellant argues that the evidence is insufficient to support his commitment as a sexual psychopathic personality.[1]  But appellant has already appealed his initial commitment, and this court upheld his commitment as a psychopathic personality.  In re Civil Commitment of Fisher, No. A05-579, 2005 WL 2209079, at *10 (Minn. App. Sept. 13, 2005), review denied (Minn. Nov. 22, 2005).  The only issue before the district court on remand was whether changes in appellant’s condition rendered indeterminate commitment inappropriate.  Id. at *14.  And the evidence as a whole supports the district court’s conclusion that appellant’s circumstances have not changed. 

            First, the treatment report states that appellant’s condition has not changed since his initial commitment.  The report also states that program staff has not received any new evidence regarding appellant’s sexual offending history that would contradict any of the district court’s original commitment findings.

            Second, the testimony of Dr. Alberg, a licensed psychologist, did not rebut evidence that appellant’s circumstances have remained the same since the initial commitment.  Dr. Alberg testified that in his opinion, appellant’s initial commitment was inappropriate.  But Dr. Alberg did not testify regarding whether appellant’s circumstances have changed since his initial commitment.  And as Dr. Alberg admitted, “[I]t’s kind of a moot point as to whether he should have been committed or not.”

            Finally, the district court’s finding that appellant did not offer credible testimony that his circumstances had changed has substantial support.  Appellant testified that he is participating in a sex offender treatment program.  But that program consists of several phases, each of which involves more than one step, and appellant testified that he is only in step two of the first phase of the treatment program.

            Based on this record, we conclude that the district court did not err in concluding that appellant’s condition has not changed since his initial commitment.  Therefore, there is substantial support in the record for indeterminate commitment as a sexual psychopathic personality.

            Affirmed.