This opinion will be unpublished and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

A05-2240

 

 

In the Matter of the Civil Commitment of

Michael Kenneth Stringer.

 

 

Filed August 1, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 27-MH-PR-04-497

 

Michael C. Hager, Charles A. Beckjord, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for appellant Michael Kenneth Stringer)

 

Amy Klobuchar, Hennepin County Attorney, Theresa Couri, John Kirwin, Assistant County Attorneys, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487

 

 

            Considered and decided by Minge, Presiding Judge; Halbrooks, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court’s indeterminate civil-commitment order on the grounds that (1) he does not meet the statutory criteria for civil commitment as a sexually dangerous person; (2) civil commitment violates his rights to due process, equal protection, and a jury trial, and his right against double jeopardy; and (3) the civil-commitment statute is unconstitutionally vague.  We affirm.

FACTS

            Appellant Michael Stringer was convicted of two sex offenses, one in 1997 and one in 2001.  In both instances, appellant was accused of forcibly raping minor females and charged with two counts of criminal sexual conduct.  Both times appellant pleaded guilty to the lesser charge of third-degree criminal sexual conduct.  After his first conviction, appellant received a 23-month executed sentence.  While on supervised release following that incarceration, appellant committed the second offense and, as a result, was sentenced to 39 months.  After appellant was released from prison following his second conviction, he violated his parole twice.  The first time, appellant was found with pornographic magazines in his room; but his parole was not revoked.  The second time, appellant attended an eight-year-old girl’s birthday party and allegedly hugged two young girls while at the party.  Following his violation of the condition not to have contact with minor females, appellant’s parole was revoked and he was incarcerated.

            As appellant’s prison term was coming to an end, the state sought to commit appellant as both a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP).  The district court held a trial on the commitment petition in October 2004.  Prior to trial, appellant was evaluated by two court-appointed psychologists—Roger C. Sweet, Ph.D. and Thomas L. Alberg, Ph.D.  Both experts reviewed appellant’s family history and his extensive medical and prison records, interviewed appellant, and administered actuarial tests to determine his state of mind and likelihood of re-offending.  As a result of their evaluations, both experts concluded that appellant is an SDP and that commitment is the least-restrictive means to treat him but that appellant does not qualify as an SPP.  In the experts’ opinion, appellant is highly likely to re-offend because he cannot adequately control his sexual impulses.

Following trial, the district court granted the petition, committing appellant as an SDP, but denied the petition to commit appellant as an SPP.  The Minnesota Sex Offender Program subsequently conducted an evaluation of appellant and recommended that he be commited indeterminately.  The district court granted the state’s petition for indeterminate commitment.  This appeal follows.

D E C I S I O N

I.

 

A “sexually dangerous person” means a person who: (1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a; (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. § 253B.02, subd. 18c(a) (2004).  

Subdivision 7a defines harmful sexual conduct as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another” and imposes a rebuttable presumption that acts constituting criminal sexual conduct in the first through fourth degrees create a substantial likelihood that the victim will suffer serious physical or emotional harm.  Minn. Stat. § 253B.02, subd. 7a(a), (b) (2004).  There is no requirement that a victim suffer actual emotional or physical harm.  See In re Martin, 661 N.W.2d 632, 639 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  Nor is there a requirement that the offender be convicted for the conduct.  In re Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).

We review the district court’s factual findings for clear error, deferring to the district court’s credibility determinations and its resolution of conflicting evidence.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re Preston, 629 N.W.2d 104, 110 (Minn. App. 2001).  The district court must be presented with clear and convincing evidence that the standards for commitment are met.  Minn. Stat. § 253B.18, subd. 1(a) (2004); see Minn. Stat. § 253B.185, subd. 1 (2004) (providing that Minn. Stat. § 253B.18 applies to SDP commitments).  We do not reweigh the evidence; rather, we review de novo whether the evidence as a whole provides substantial support for the district court’s legal conclusions that the statutory grounds for commitment as an SDP have been met.  In re Linehan (Linehan III), 557 N.W.2d 171, 189 (Minn. 1996), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 695 (1997); Martin, 661 N.W.2d at 638. 

Appellant does not challenge the first two statutory factors—that he has engaged in a course of harmful sexual conduct and has manifested a sexual, personality, or other mental disorder or dysfunction.  Instead, appellant focuses on whether there is sufficient evidence to prove by clear and convincing evidence that he is likely to engage in acts of harmful sexual conduct in the future.

When reviewing a determination that a person is likely to engage in acts of harmful sexual conduct, we consider whether the likelihood is high, In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999), utilizing the factors established in In re Linehan (Linehan I), 518 N.W.2d 609 (Minn. 1994).  These factors include (1) relevant demographic characteristics; (2) a history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the offender’s environment; (5) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (6) the person’s record with respect to treatment programs.  Linehan I, 518 N.W.2d at 614.

For commitment as an SDP, the statute states that “it is not necessary to prove that the person has an inability to control the person’s sexual impulses.”  Minn. Stat. § 253B.02, subd. 18c(b) (2004).  The supreme court has clarified

that the SDP Act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.

Linehan IV, 594 N.W.2d at 876.  This standard meets the constitutional requirements described most recently by the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002).  In re Martinelli, 649 N.W.2d 886, 890 (Minn. App. 2002), review denied (Minn. Oct. 29, 2002), cert. denied, 538 U.S. 933 (2003).  At a minimum, Crane “requires ‘serious difficulty in controlling behavior,’ and ties that requirement to a psychiatric diagnosis of a mental abnormality or personality disorder, as well as to the severity of the offender’s mental condition.”  Martinelli, 649 N.W.2d at 890 (citing Crane, 534 U.S. at 413-14, 122 S. Ct. at 870-71). 

Appellant argues that the district court clearly erred by finding that he is highly likely to re-offend and that the evidence is insufficient to sustain his commitment under the Linehan factors.  The first Linehan factor examines the relevant demographic characteristics.  Appellant was 25 years old when he was examined by Dr. Sweet and Dr. Alberg.  Both experts concluded that appellant’s young age may still contribute to his recidivism.  Dr. Alberg also opined that appellant’s poor work history and lack of education increase his chance of recidivism. 

            The district court found that the second Linehan factor, appellant’s history of violent behavior, including the recency, severity, and frequency of violent acts, supports a finding of high risk.  While appellant argues that his previous sexual assaults were nonviolent and that he used neither force nor coercion during the sexual assaults, the district court did not find persuasive appellant’s characterization of the sexual abuse as consensual.  The district court found, as did both experts, that appellant does not accept responsibility for the assaults, minimizes his behavior, sees himself as more of a victim than his victims, and lacks empathy and remorse.

            Under the third factor, the district court accepted and relied on the experts’ conclusions that appellant is in the high- or highest-risk categories for re-offending, both criminally and sexually.  Appellant contends that he only has 39, 45, and 52 percent chances of re-offending over five, seven, and ten years respectively.  But the actual findings from the diagnostic instruments consistently place appellant in the highest-risk categories. 

            Dr. Sweet found that appellant scored a 32 on the Hare PCL-R test, which is above the threshold standard of 30 for clinical psychopathology.  As a result, appellant poses a high risk of re-offending.  On the SORAG test, appellant scored a +32, placing him in Category 9, which correlates to a 100 percent risk of re-offending after seven to ten years.  On the MnSOST-R, appellant scored a +12, placing him in the high-risk category for re-offending.  Appellant scored a 7 on the STATIC-99 test, again scoring as high risk.  Finally, on the Sexual Violence Risk-20 Assessment, Dr. Sweet found that appellant was in the moderate- to high-risk category.  In sum, Dr. Sweet found that appellant “remains at a relatively high risk to reoffend.”

            Dr. Alberg found that appellant scored a 33 on the Hare PCL-R, placing him in the clinical-psychopath category.  On the SORAG test, appellant scored a +32 or Category 9, again with 100 percent risk of re-offending.  On the STATIC-99 test appellant scored a 7, also placing him in the high risk category.  On the VRAG test, Dr. Alberg found that appellant was a 24 or a category 8, with a 76 percent risk of re-offending after seven years and an 82 percent chance of re-offending after ten years.  Based on the assessment results, Dr. Alberg concluded that appellant is “highly likely to reoffend.”

The district court adopted the experts’ conclusions regarding the fourth Linehan factor.  Dr. Sweet determined that sources of stress in appellant’s environment have remained largely the same as when he committed the previous assaults.  Although appellant challenges this finding by projecting his life upon release from prison to include separation from a gang, a change in medical treatment, a stable relationship, and the desire to clean up his life, there is no evidence to demonstrate that these aspirations are realistic or likely to deter future sexual assaults.

Dr. Sweet stated in his report that appellant has consistently had difficulties obtaining and keeping employment or following through with his education.  Appellant blamed his inability to keep a job on not being able to wake up in the mornings due to lupus.  Dr. Sweet also noted that appellant told him that he quit working recently because “it wasn’t the right vocation for me.”  Additionally, Dr. Sweet observed that, at the time of appellant’s parole revocation, he still had not obtained steady employment.  As a result, Dr. Sweet testified that he was “not sure just how much real change in his environment had taken place.  Perhaps some but, again, . . . I didn’t get the flavor that . . . he had really changed all that . . . significantly.”

Dr. Alberg’s report recognizes appellant’s “spotty” employment history and that his support system consists of his “AA sponsor, his fiancée, his mother . . ., his brother and his sister.”  Additionally, appellant stated that he wants to get involved in church.  Appellant repeatedly insists that the fact that he is engaged to be married is evidence of his change in circumstances.  But Dr. Alberg noted that appellant was married at the time of the most recent sexual assault.

Appellant does not challenge any findings on the fifth Linehan factor, but asserts that his failure with regard to treatment programs—the sixth Linehan factor—does not weigh in favor of commitment.  The district court found thatappellant participated in two chemical-dependency treatment programs: TRIAD and Atlantis.  Appellant was terminated from TRIAD; and at the completion of Atlantis, appellant received a poor prognosis due to his unwillingness or inability to accept responsibility for his criminal behavior and based on his minimization of his drug and alcohol abuse. 

The district court also found thatappellant has never begun, let alone completed, a sex-offender treatment program.  (Appellant did complete the Alpha Psychoeducational Sex Offender Group following release from prison.)  Overall, the district court concluded thatappellant’s participation in treatment programs has been inconsistent and his prognoses have been poor.  Therefore, because appellant is highly likely to re-offend and the evidence is sufficient to sustain his commitment, the district court did not clearly err by civilly committing appellant indeterminately.

II.

 

Appellant argues that his commitment violates his right to due process in that he is a “minimal recidivist” and his two prior offenses do not qualify him as an offender who is highly likely to re-offend.  Thus, he asserts that the civil-commitment statute is not narrowly tailored to a compelling state interest.  Appellant concedes that the state has a compelling interest in protecting the public from the harm posed by sexually dangerous persons, but he claims that he is not an SDP.  Therefore, he argues that the fact that the statute was applied to him is evidence that it is overbroad.

This court reviews a constitutional challenge de novo.  State v. Johnson, 689 N.W.2d 247, 253 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  The state does have a compelling interest in committing SDPs, namely “the protection of members of the public from persons who have an uncontrollable impulse to sexually assault.”  In re Blodgett, 510 N.W.2d 910, 914 (Minn. 1994).  We must determine whether the statute was narrowly tailored to achieve that compelling interest in appellant’s case, as this is an “as-applied” challenge. 

In order for the commitment statute to be narrowly tailored, and not overbroad as appellant alleges, it must not reach more individuals than is necessary to serve the compelling state interest.  Despite appellant’s contention that he is a “minimal recidivist,” he clearly fits within the class of individuals that the commitment statute was meant to reach.  Both experts determined that appellant is in the highest-risk category to re-offend, all of the Linehan I factors were met, and both experts opined that appellant is unable to adequately control his sexual impulses.  Therefore, because appellant easily meets the statutory criteria for an SDP, appellant’s commitment does not violate his right to due process.

III.

 

Appellant further asserts that civil commitment violates his right to equal protection of the law, as other individuals with similar backgrounds and histories are not subject to civil commitment. 

The United States Supreme Court stated that civil commitment does not violate an individual’s right to equal protection of the law so long as the state has a rational basis for selection of a group, despite the fact that “the statute has selected a group which is a part of a larger class.”  Minnesota ex rel. Pearson v. Probate Court of Ramsey County (Pearson II), 309 U.S. 270, 274, 60 S. Ct. 523, 526 (1940).  The Court stated that “[t]he class it did select is identified by the state court in terms which clearly show that the persons within that class constitute a dangerous element in the community which the legislature in its discretion could put under appropriate control.”  Id. at 275, 60 S. Ct. at 526; see also Martin, 661 N.W.2d at 641 (stating that the SDP Act does not violate equal protection).

Here, the state has the discretion to create a class of persons, known as SDPs, out of the larger class of criminals or recidivists, based on the state’s discretion “to recognize degrees of harm, and . . . confine its restrictions to those classes of cases where the need is deemed to be the clearest.”  Pearson II, at 275, 60 S. Ct. at 526.  Furthermore, “[i]f the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.”  Id. (quotation omitted).  Because the civil-commitment statute properly delineates between offenders who are criminal recidivists and those who are SDPs and because the district court’s findings meet the statutory criteria, appellant’s commitment does not violate his right to equal protection of the law.

IV.

 

Appellant argues that the phrase “adequately control” is unconstitutionally vague and that the standard was “arbitrarily imposed” in his case.  But this court in Ramey rejected that argument.  648 N.W.2d at 267-68. 

Taken in the larger context of the holding in Linehan IV, the meaning of the phrase “adequate control” is clear; an offender’s history of harmful sexual conduct and a high likelihood of future dangerousness, coupled with a mental illness or dysfunction, demonstrates that an offender will find it difficult to control behavior.

 

Id. at 268.  We went on to analyze whether the district court’s findings were sufficiently specific as to Ramey’s past behavior and mental illness and whether he was highly likely to re-offend.  Id.  Because the findings were specific, we concluded that the phrase was not unconstitutionally vague as applied to Ramey.  Id.

            Here, the district court’s findings are extremely specific as to appellant’s personal, family, and criminal histories and his diagnoses.  Both Dr. Sweet and Dr. Alberg diagnosed appellant with anti-social personality disorder and narcissistic personality disorder.  In addition, both doctors rate appellant in the highest-risk category for re-offending, both for violent crimes and for sex crimes. 

Therefore, because the district court’s findings are specific regarding appellant’s past behaviors, appellant has been diagnosed with a personality disorder, and he is in the highest-risk categories for re-offending, the statute is not unconstitutionally vague as applied to appellant.

V.

 

Appellant argues that civil commitment violates the Double Jeopardy Clause of the federal constitution.  “If an individual otherwise meets the requirements for involuntary civil commitment, the State is under no obligation to release that individual simply because the detention would follow a period of incarceration.”  Kansas v. Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072, 2086 (1997).  Moreover, the Minnesota Supreme Court has held numerous times that civil commitment is a remedial, not a punitive, course of action.  See Blodgett, 510 N.W.2d at 916.  Therefore, it does not violate the constitutional protection against double jeopardy.  See also Call v. Gomez, 535 N.W.2d 312, 320 (Minn. 1995) (finding that the purpose of commitment statute is treatment, not preventive detention); State ex. rel. Pearson v. Probate Court of Ramsey County (Pearson I), 205 Minn. 545, 550, 287 N.W. 297, 300 (1939) (noting that a civilly committed individual receives treatment upon commitment and, therefore, the statute is not punitive but remedial), aff’d, Pearson II, 309 U.S. 270, 60 S. Ct. 523 (1940). 

The United States Supreme Court has similarly concluded that states have an interest in civilly committing those who present a danger to others.  Hendricks, 521 U.S. at 365-66, 117 S. Ct. at 2084; see also Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct. 1804, 1809 (1979) (recognizing the state’s legitimate interest in caring for those unable to care for themselves and protecting community from the dangerous behavior of mentally ill persons).  These authorities preclude appellant’s double-jeopardy claim.

VI.

 

The final issue is whether proceeding without a jury violated appellant’s right to a jury trial.  Appellant argues that the commitment petition should be dismissed because proceeding without a jury violated his constitutional rights, even though the statute does not require a hearing by a jury.  “A statute bears the presumption of validity, and the party challenging the constitutionality of the statute has the onus of establishing beyond a reasonable doubt that the statute violates a claimed right.”  In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn. 1996) (quotation omitted).

            The civil-commitment statute contemplates that the court, and not a jury, will make the commitment determination.  The statute expressly provides that, “[u]pon the filing of a petition alleging that a proposed patient is a sexually dangerous person or is a person with a sexual psychopathic personality, the court shall hear the petition as provided in section 253B.18.”  Minn. Stat. § 253B.185, subd. 1 (emphasis added).  It goes on to state that, “the court shall commit the patient to a secure treatment facility[.]”  Id. (emphasis added).  While the legislature could have provided a jury-trial right, it did not.

Further, Minnesota courts have long recognized that the state constitution does not guarantee a right to a jury trial in a civil-commitment proceeding.  Pearson I, 205 Minn. at 556-57, 287 N.W. at 303; see also Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999) (re-affirming the Pearson principle that the right to a jury trial does not attach to a civil-commitment hearing), review denied (Minn. July 28, 1999). 

            Affirmed.