This opinion will be unpublished and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

A06-1134

 

In the Matter of the Civil Commitment of:

Ronald Edward Conner

 

Filed December 12, 2006

Affirmed

Ross, Judge

 

Mower County District Court

File No. 50-P3-05-950

 

Evan H. Larson, 201 South Main Street, Austin, MN 55912 (for appellant)

 

Mike Hatch, Attorney General, Noah Cashman, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Kristen Nelsen, Mower County Attorney, Mower County Courthouse, 201 First Street Northeast, Austin, MN 55912 (for respondent)

 

            Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

Ronald Conner challenges his indeterminate civil commitment as a sexually dangerous person and a sexual psychopathic personality.  He argues that the state failed to establish by clear and convincing evidence that he meets the statutory criteria for commitment because it failed to show that he lacks adequate control over his behavior or sexual impulses and that he is highly likely to engage in acts of harmful sexual conduct.  Because the record amply supports the district court’s exceptionally detailed and thoroughly analyzed initial and secondary findings of fact that Conner meets the statutory criteria for commitment, we affirm.

F A C T S

Mower County filed a petition for the civil commitment of Ronald Conner as a sexually dangerous person and a sexual psychopathic personality in July 2005, based on his extensive criminal sexual behavior toward adolescent girls and adult women.  This behavior includes forcing prostitution, pimping, and committing sexual assaults and other sexual misconduct in at least seven states.

Conner, who is 50 years old, has an extensive history of physically and mentally coercing adolescent and adult females into sex and prostitution.  He claims to have begun as a pimp when he was 13 years old in Rhode Island.  Conner married in 1978.  Conner physically and mentally abused his wife and coerced her into prostitution from 1978 until their divorce in 1987.  Conner claimed that he lived with his wife and as many as nine other women, each of whom earned money as prostitutes for the “family account.”  Conner admitted that he often verbally and physically abused the women he prostituted and stated that his “line of work was manipulating females.”

In January 1985, while in New Mexico, Conner was charged with promoting prostitution and criminal sexual penetration after Conner had intercourse with two runaway girls, a 17-year-old and 14-year-old, and prostituted them.  In March 1988, Conner and one of his prostitutes approached two 17-year-old girls in a New Jersey shopping mall and invited them to lunch.  After they rejected the invitation, Conner gave them a phone number, which was traced to a motel room.  Conner was never charged for this event, but at the civil commitment hearing, he admitted that this behavior is consistent with prostitution recruitment. 

In 1991, police suspected Conner of running a juvenile prostitution ring out of his New Jersey apartment.  In February 1991, Conner was charged with kidnapping a 16-year-old girl from Oklahoma.  He allegedly drugged her, sexually assaulted her, and forced her into prostitution in New Jersey.  Conner handcuffed her and forced her to watch another 16-year-old perform oral sex on him.  He allegedly took girls to New York City every night to work as prostitutes and would physically assault them if they did not produce enough money.  Several of Conner’s prostitutes had young children, some fathered by Conner, that he watched to ensure their mothers’ cooperation and return from prostitution outings.  In October 1991, one of the women contacted New Jersey police and reported that she had prostituted for Conner for nine years and wanted their assistance to recover her child, who was being watched by one of Conner’s associates.  Police arrived at the hotel and found six children, ranging from several days to three years old, in a room registered to Conner.  Conner eventually pleaded guilty to fourth-degree criminal sexual contact and received five years’ probation, but he served five years in prison after violating the terms of his probation.  A New Jersey county attorney registered Conner as a sex offender under Megan’s Law.

In August 2001, Conner was arrested and charged with solicitation, inducement, and promotion of prostitution.  He bought clothes and shoes for a 19-year-old woman, and told her that he wanted to take her to Arizona, where he had connections to prostitution, so that she could earn money.  After she refused to have sex with him and left his apartment, Conner and several prostitutes found her and scolded her for leaving without his permission.  Conner threatened her after she gave the clothes back and told him she would not accompany him to Arizona.  A jury convicted Conner of the charged offense.

In November 2001, while the solicitation charge was pending, Conner was charged with third-degree criminal sexual conduct arising from the sexual assault of an 18-year-old woman who had been visiting another woman who was living with Conner.  Conner woke the woman at 3:00 a.m., fondled her, and told her that she “owed” him for allowing her to stay at his apartment.  Conner then sexually assaulted her.  He pleaded guilty to fourth-degree criminal sexual conduct and was sentenced to 58 months in prison.

In December 2001, officials charged Conner with fifth-degree assault for punching a woman in the face over $20, and in May 2002, he was again charged with fifth-degree assault for repeatedly punching his girlfriend in the face in a dispute about money.

The district court appointed psychologists Linda Marshall and, at Conner’s request, Harry Hoberman, to review Conner’s treatment and incarceration records, to examine and evaluate him, and to report whether his psychological condition meets the statutory requirements for commitment as a sexually dangerous person or sexual psychopathic personality.  Marshall and Hoberman both testified at trial that, in their expert opinion, Conner is a sexually dangerous person and has a sexual psychopathic personality.  Although Marshall initially opined in her report that Conner did not meet the threshold for commitment as a sexual psychopathic personality, she changed her expert opinion at trial after hearing Conner’s testimony and other evidence presented.  Marshall diagnosed Conner with alcohol dependence, polysubstance abuse, antisocial personality disorder, and a history of narcissistic personality disorder.  Hoberman diagnosed Conner with paraphilia not otherwise specified, antisocial personality disorder and narcissistic personality disorder.

Following the two-day civil commitment trial, the district court issued its order for initial commitment.  The 63-page order includes 311 detailed findings of fact derived from the testimony, more than 1,600 pages of exhibits, and two expert reports.  The court committed Conner to the Minnesota Sex Offender Program as both a sexually dangerous person and sexual psychopathic personality.  In its 60-day treatment report, the sex-offender program diagnosed Conner with antisocial and narcissistic personality disorders, paraphilia, and alcohol dependence.  The report concluded that Conner continued to meet the criteria for commitment as both a sexually dangerous person and sexual psychopathic personality, that his condition had not changed since the initial commitment, that Conner was in need of intensive, inpatient sex-offender treatment, and that a less restrictive program was not available.  At Conner’s request, the court appointed a licensed forensic psychologist as a second examiner to complete another 60-day report.  That report also concluded that there were no changes in Conner’s condition that would alter Conner’s initial commitment as a sexually dangerous person and sexual psychopathic personality.

The district court ordered Conner’s indeterminate commitment as a sexually dangerous person and sexual psychopathic personality, finding that the criteria for commitment continue to be met and that the sex offender program is the appropriate and least restrictive alternative available to provide confinement, care, and treatment to Conner.  Conner’s appeal follows.

D E C I S I O N

Conner challenges the district court’s order of civil commitment.  To successfully petition a district court for civil commitment under the Minnesota Commitment and Treatment Act, the state must prove by clear and convincing evidence that the statutory standards for commitment are met.  Minn. Stat. §  253B.18, subd. 1(a) (2004).  Reviewing a civil commitment on appeal, this court is limited to examining the district court’s compliance with the statute and whether its conclusions of law are justified by its findings.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  We review the record in the light most favorable to the district court’s decision, deferring to the district court’s credibility determinations and its resolution of conflicting evidence, and we will affirm the district court’s factual findings unless they are clearly erroneous.  Id.  Whether the factual findings and the record provide clear and convincing evidence to support the district court’s legal conclusion that the statutory requirements for commitment were and continue to be met is a question of law, which we review de novo.  In re Civil Commitment of Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).

Conner does not specifically assert that any particular finding by the district court is clearly erroneous.  Rather, he contends that “the record fails to establish that he lacks adequate control over his behavior and therefore is not highly likely to engage in acts of future harmful sexual conduct.”  Without citing the record or legal authority, Conner simply contradicts the findings of the district court (and some of his own testimony), declaring that his “position is that he never engaged in any sexual behavior by force.  It was all consensual behavior.”  The record belies Conner’s gross understatement of his extensive predatory sexual history and supports the district court’s analysis of the evidence bearing on its conclusion that he is a sexually dangerous person and a sexual psychopathic personality.

I

To support commitment of a sexually dangerous person, the state must show by clear and convincing evidence that the person:  (1) engaged in a prior course of harmful sexual conduct; (2) has a present sexual, personality, or other mental disorder or dysfunction that does not allow the person to adequately control his or her sexual impulses; and (3) as a result, is highly likely to engage in future harmful sexual conduct.  Minn. Stat. § 253B.02, subd. 18c(a) (2004) (defining “sexually dangerous person”); In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999).  Conner does not challenge the determination of his disorder or dysfunction.  He limits his challenge to the elements of harmful sexual conduct, inability to adequately control sexual impulses, and the resultant high likelihood of engaging in future harmful sexual acts.  Contrary to his contentions, the record supports the district court’s conclusion that the state proved each element by clear and convincing evidence.

1.         Course of Harmful Sexual Conduct

Conner challenges the district court’s determination that he engaged in a course of harmful sexual conduct, arguing that “his behavior was motivated not by sexual gratification, but by financial gain” in promoting prostitution.  We reject this argument for two reasons.  First, the finding does not depend on a sexual rather than financial motive.  And there is no prerequisite that a victim suffer physical or emotional harm.  See Martin,661 N.W.2d at 639 (emphasizing that likelihood of harm is appropriate focus).  Rather, “harmful sexual conduct” is “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.”  Minn. Stat. § 253B.02, subd. 7a(a) (2004).  A course of harmful sexual conduct is a sequence of conduct occurring over a period of time.  In re Civil Commitment of Stone, 711 N.W.2d 831, 837 (Minn. App. 2006), review denied (Minn. June 20, 2006).  Conner’s long history of physical and emotional coercing and grooming of adolescent girls into prostitution, combined with sexual abuse and sexual degradation, supports the district court’s finding.

Dr. Marshall noted Conner’s history of coercing and intimidating women for sexual favors, and highlighted several factors associated with a greater degree of harm, including penetration, force, duration and frequency of abuse, and a close relationship with some of his victims.  She supported her opinion by referring to Conner’s history of criminal sexual conduct, his antisocial behavior by treating women as property, and the substantial likelihood of emotional harm to Conner’s prostitutes and victims by his physical, emotional, and sexual abuse.  Dr. Hoberman’s report also concluded that Conner’s history as a perpetrator of sexual offenses demonstrates a course of harmful sexual conduct, relying on empirical research on the likelihood of harm.  Dr. Hoberman’s testimony was consistent with Dr. Marshall’s.

Second, no evidence in the record supports Conner’s claim that his sexual history includes “all consensual behavior.”  The record indicates that Conner was accused of sexually penetrating and prostituting a 14-year-old runaway, who was too young to consent.  He allegedly engaged in forced sex with a 16-year-old girl whom he was accused of kidnapping and prostituting.  He allegedly handcuffed her while another juvenile female performed oral sex on him.  Conner has admitted that he “touched [one girl] with a sexual purpose, against her will.”  One woman testified that she did not consent to Conner’s sexual penetration but surrendered because of his mental coercion, physical size, and threats to evict her from the apartment in the middle of the night.  The district court specifically found incredible Conner’s testimony at trial denying or minimizing the sexual assault of this woman.  The district court’s credibility determination, which receives our deference, was inevitable; Conner previously admitted that he “went downstairs . . . and had forcibl[e] sex with [this woman], a 19 year old.”

Conner offered no evidence to rebut the statutory presumption of a substantial likelihood of serious physical or emotional harm raised by his most recent conviction of fourth-degree criminal sexual conduct for the rape of this same woman.  See Minn. Stat. § 253B.02, subd. 7a(b) (2004) (creating rebuttable presumption of harm for fourth-degree criminal sexual conduct); Stone, 711 N.W.2d at 837 (discussing presumption of harm).  By contrast, the record suggests that Conner admitted that he had planned the sexual assault in advance, used alcohol to lessen his guilt, held the woman on the bed, used manipulation and coercion, and vaginally and orally penetrated her.  Clear and convincing evidence supports the district court’s determination that Conner engaged in a course of harmful sexual conduct.

2.         Inability to Adequately Control Sexual Impulses

Conner argues that the civil-commitment statutes require proof of the inability of sex offenders to adequately control behavior, so that “some lack of control determination must be made.”  Conner challenges whether the record establishes that he lacks adequate control over his behavior.  The challenge fails.  The record fully supports the district court’s determination that Conner cannot control his sexual impulses.  Conner crudely described his perfect sexual partner by writing, “[a]ll p---y is the same.”  Conner has also stated his belief that he did not see anything wrong with using coercion to obtain sex.  He admitted that he is a sex offender but denied that he is a predator, that he is dangerous, or that he is at risk to reoffend.  A July 2005 progress summary report from his prison’s sex-offender program indicated that Conner’s prognosis was poor and that he had “slipped through the cracks in therapy.”  He never completed the mandated sex-offender treatment.  Both experts testified that Conner’s diagnosed disorders caused his lack of adequate control over his sexual behavior.  Dr. Hoberman testified that Conner’s impulsivity and careless disregard of others also causes Conner serious difficulty in controlling his harmful sexual behavior.  Clear and convincing evidence supports the district court’s finding that Conner lacks adequate control of his sexual impulses and behavior.

3.         High Likelihood to Engage in Future Harmful Sexual Acts

Conner also argues that clear and convincing evidence does not establish that he is likely to engage in future acts of harmful sexual conduct.  The argument lacks merit.  In determining whether a person is highly likely to engage in future harmful sexual conduct, district courts are required to consider six factors.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), cert. granted, judgment vacated, and case remanded, 522 U.S. 1011, 119 S. Ct. 596 (1997), aff’d on remand 594 N.W.2d 867 (Minn. 1999).  Dr. Marshall’s report accounted for, and she testified to, each of the six Linehan factors in concluding that Conner is highly likely to sexually reoffend.  Based on psychological tests and statistical tools, Dr. Marshall determined that Conner presented a 39% risk of recidivism over five years, a 45% risk over ten years, and a 52% risk over fifteen years.  The score for a high risk of sexual reoffending is 6 out of a possible 10 on the Static-99 test.  Conner scored 8.  When evaluated with another tool focused on psychopathy, Conner scored 28; the score for clinical psychopathy is 30 or higher.  After hearing Conner’s testimony, Dr. Marshall opined that Conner is a psychopath.

Dr. Hoberman rated Conner high on the psychopathy scale, with a score of 34.  He noted that a person with Conner’s degree of psychopathy is more likely to commit a sexual offense.  Dr. Hoberman explained that within six years of release from prison, more than 80% of psychopaths violently recidivate, with many offenses sexual in nature, particularly if there were prior sexual offenses.  Dr. Hoberman opined that Conner lacks the ability to control his sexual impulses when a victim and opportunity are present, and that he is highly likely to engage in future sex offenses.  Dr. Hoberman also concluded Conner’s score on the Static-99 was 6.  Based on Conner’s results on two additional actuarial tools, Dr. Hoberman calculated that Conner presents a 57% risk of rearrest for a new sex offense within six years of release, and a 75% risk of committing a violent offense within seven years.  Dr. Hoberman also testified in support of commitment based on each of the six Linehan factors.

Clear and convincing evidence supports the district court’s determination that Conner is highly likely to engage in future harmful sexual conduct.  The district court’s order indeterminately committing Conner as a sexually dangerous person, therefore, is supported by clear and convincing evidence.

II

Commitment as a sexual psychopathic personality requires clear and convincing proof that a person:  (1) has either emotional instability, impulsive behavior, a lack of customary standards of good judgment, or a failure to appreciate the consequences of personal acts; (2) has, as a result, engaged in a habitual course of sexual misconduct; and (3) has an utter lack of power to control sexual impulses and, therefore, is dangerous to others.  Minn. Stat. § 253B.02, subd. 18b (2004).  Both court-appointed experts explained and testified in detail to how Conner meets each factor and element as a sexual psychopathic personality.

Conner argues that the record lacked clear and convincing evidence that he is a sexual psychopathic personality.  He does not challenge any specific element as unsupported.  He does not address or mention the elements or develop his argument.  We see sufficient support for the district court’s decision and reject Conner’s legally and factually unsupported challenge.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (holding that assignment of error in brief based on mere assertion unsupported by argument or authority is waived absent obvious prejudicial error); Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address issues unsupported by legal analysis or citation).

III

Finally, Conner challenges the district court’s decision to place him in the Minnesota Sex Offender Program.  In support of this challenge, Conner offers only a conclusory argument that his “willingness to enter and complete an in/out patient program for sex offenders represents a less restrictive alternative to the commitment process.”  We disagree.

This court will not reverse a district court’s findings as to the least restrictive treatment program that can meet the patient’s needs unless they are clearly erroneous.  Thulin, 660 N.W.2d at 144.  Here, relying on the sex-offender program’s 60-day treatment report and the expert opinion of the court-appointed psychologists, the district court found that the state’s sex offender program “is the appropriate and least restrictive alternative available to provide confinement, care, and treatment to [Conner].”  The patient bears the burden of proving by clear and convincing evidence that a less-restrictive program is available.  In re Robb, 622 N.W.2d 564, 574 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  Even if a patient proves that a less-restrictive treatment program is available, he has no right to be assigned to it.  In re Kindschy, 634 N.W.2d 723, 731 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).

The district court found that Conner “produced no evidence at the review hearing concerning the appropriateness and availability of placements other than [the state program].”  The record supports this finding.  We conclude that Conner did not meet his burden of showing a less restrictive alternative to commitment was available.

Because clear and convincing evidence supports the district court’s detailed findings of fact that Conner met the statutory criteria for commitment as a sexually dangerous person and as a sexual psychopathic personality, we affirm the district court’s order for indeterminate civil commitment of Conner.

Affirmed.