This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1452

 

In the Matter of the Civil Commitment of:

Daniel Harry Peria.

 

Filed January 30, 2007

Affirmed

Halbrooks, Judge

 

 

Anoka County District Court

File No. P9-03-738

 

 

Gregory R. Solum, 3300 Edinborough Way, Suite 550, Edina, MN 55435 (for appellant Peria)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Robert M. A. Johnson, Anoka County Attorney, Janice M. Allen, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent state)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from the district court’s order for indeterminate civil commitment, appellant claims that the district court erred in determining that he is a sexually dangerous person (SDP) and that he has a sexual psychopathic personality (SPP) and by denying appellant intensive supervised release (ISR) as a less-restrictive alternative.  We affirm.

FACTS

            In 1998 and 2000, appellant Daniel Harry Peria was convicted of three counts of second-degree criminal sexual conduct and one count of use of a minor in a sexual performance.  Appellant requested civil commitment to a sex-offender treatment program because he said that he fantasized constantly about reoffending.  After Anoka County Human Services petitioned the district court to commit appellant to the Minnesota Sex Offender Program (MSOP) as an SDP and SPP, appellant stipulated to civil commitment.  After appellant completed his prison sentences in March 2003, he entered the MSOP at the Minnesota Security Hospital (MSH) in St. Peter for initial civil commitment.

            The MSOP subsequently recommended that the district court commit appellant indeterminately as a person who is an SDP and an SPP.  The initially scheduled hearing was continued for one month at appellant’s request so that James Gilbertson, Ph.D., the court-appointed examiner, could examine appellant.  Ultimately, appellant requested 16 additional continuances over the course of approximately three years.  As the district court noted:

The purposes of the continuances were to await the report of the first examiner, to request appointment of a second examiner, to allow a resolution of [appellant’s] medical issues, to allow for [appellant’s] substituted counsel to have time to familiarize himself with the case, and finally on October 3, 2005 and three subsequent continuance dates, to allow the University of Minnesota Center for Sexual Health to evaluate the [appellant] to determine whether the [appellant] might appropriately be treated in their sex offender treatment program, and to prepare a report setting out its conclusions.

 

            In addition to receiving into evidence various treatment records, criminal records, and expert reports, the following experts testified at the hearing:  James H. Gilbertson, Ph.D., licensed psychologist, the initial court-appointed examiner; John Kluznik, M.D., psychiatrist, the second court-appointed examiner requested by [appellant]; Penny Zwecker, Minnesota Security Hospital staff psychologist; Ian Heath, M.D., Minnesota Security Hospital staff forensic psychiatrist; Richard Anderson, Anoka Corrections supervised release agent; and Jeffrey Cheyne, Anoka County mental health case manager.

            The district court found that appellant “is not credible, giving a different account of historical events, dependent on the audience, and dependent on the desired outcome at any given time.”  Based on expert testimony, the district court found “that neither the monitoring and supervision offered through the [ISR] agency or through Anoka County mental health case management provides anywhere near the level of supervision, assistance and monitoring that the [appellant] would require in a community setting.”  Furthermore, the district court found that appellant has not offered a viable alternative and that he lacks insight into the scope of his problem and the means of modifying his behavior.  Based on all of the evidence, the district court concluded that there was clear and convincing evidence that appellant continues to meet the statutory criteria as an SDP and an SPP, requiring indeterminate commitment to the MSOP and that appellant failed to meet his burden of presenting clear and convincing evidence that a less-restrictive alternative exists.  This appeal follows.

D E C I S I O N

On appeal in a civil-commitment case, 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 view the record in the light most favorable to the district court’s decision.  Id.  We defer 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.; see also Minn. R. Civ. P. 52.01.  The issues in this case are whether appellant continues to meet the legal requirements for indeterminate commitment as an SDP and SPP and whether he established by clear and convincing evidence that a less-restrictive treatment program that meets his treatment needs and protects public safety is available. 

A petitioner must prove that the standards for commitment as an SDP or SPP are met by clear and convincing evidence.  Minn. Stat. § 253B.185, subd. 1 (2004).  “Clear and convincing proof” 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).  “Where the findings of fact rest almost entirely on expert testimony, the trial court’s evaluation of credibility is of particular significance.”  Knops, 536 N.W.2d at 620.  But we review de novo 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 are met.  In re Civil Commitment of Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).

I.

 

An SDP is defined as “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).  “Harmful sexual conduct” is defined as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.”  Id., subd. 7a(a) (2004).  Such harm is rebuttably presumed for criminal sexual conduct in the first through fourth degrees.  Id., subd. 7a(b) (2004).  Under the SDP statute, a showing of violent behavior is not required to show that appellant will likely engage in harmful sexual acts in the future.  In re Robb, 622 N.W.2d 564, 573 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001). 

“[I]t 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).  But the district court needs to find that the disorder does not allow one to “adequately control” one’s sexual impulses, making it “highly likely that [one] will engage in harmful sexual acts in the future.”  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV).  A pattern of harmful sexual acts, not necessarily recent acts resulting in convictions, “clearly and convincingly establishes a course of harmful sexual conduct” necessary for commitment under the SDP statute.  In re Linehan, 544 N.W.2d 308, 312 (Minn. App. 1996), aff’d, 557 N.W.2d 171 (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) (Linehan IV). 

Here, appellant is not challenging the first two criteria of the SDP statute.  He concedes that the four offenses of which he was convicted constitute a course of harmful sexual conduct and that he has been diagnosed by several experts with pedophilia, major depressive disorder, and antisocial personality disorder.  We therefore focus on whether there is clear and convincing evidence of the third factor, i.e., that appellant is likely to engage in acts of harmful sexual conduct in the future.  Appellant argues that the district court erred in its determination that he should be civilly committed as an SDP because the monthly injections of Lupron that he has had at the MSH have resulted in chemical castration that has eliminated the feelings that caused him to offend. 

Six factors assist courts in predicting future dangerousness in SDP commitment cases.  Linehan III, 557 N.W.2d at 189.  Those six factors are: (1) relevant demographic characteristics; (2) history of violent behavior; (3) base-rate statistics for similar individuals; (4) sources of stress in the environment; (5) similarity of present or future contexts to the context in which violence was used in the past; and (6) the person’s record with sex-offender treatment.  In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (Linehan I). 

The artificial environment of a prison or hospital is not conclusive with respect to whether the individual would be safe if released, especially when experts testify to the individual’s continuing dangerousness.  In re Irwin, 529 N.W.2d 366, 374 (Minn. App. 1995), review denied (Minn. May 16, 1995).  Thus, the district court may consider whether the defendant will continue a treatment program outside of a structured environment.  In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985) (affirming district court’s civil-commitment decision based in part on psychologist who testified that appellant “recognized the need to take medications at the hospital, but would not take them if given a choice”).  Similarly, the degree to which the defendant appreciates the gravity of the condition weighs into the determination of dangerousness.  In re Preston, 629 N.W.2d 104, 114 (Minn. App. 2001).

Here, the district court’s findings supporting indeterminate civil commitment correlate with the Linehan factors for future dangerousness.  The district court relied, in part, on the conclusions of John Fabian, Ph.D., a forensic psychologist, whose treatment report from the MSOP was admitted into evidence.  Dr. Fabian opined that appellant presents a risk for sexual recidivism against others based on his diagnoses of appellant and the actuarial instructions that indicated that appellant has a medium-high and high level of risk for sexual recidivism. 

Furthermore, according to Dr. Gilbertson, appellant’s relief from deviant sexual thinking has occurred in a controlled environment where he does not have access to children or alcohol.  Dr. Gilbertson also indicated that absent a highly controlled environment, appellant would be at greatly increased risk of recidivism because he has not developed the psychological tools to reduce his risk to children.  Dr. Gilbertson further testified that, in the absence of such structure, appellant remains highly likely to engage in harmful sexual conduct if he is not committed on an indeterminate basis to the MSOP.

Lupron only suppresses appellant’s sexual drive, and Dr. Kluznik testified that because of Lupron’s limited treatment abilities, appellant remains dangerous to the public.  Dr. Kluznik also indicated that the medication can be overridden by counter-acting medication, and appellant’s sexual drive would return to prior levels.  Further, Dr. Kluznik stated that appellant’s sexual, psychological, and personality disorders continue to be present, notwithstanding the use of Lupron.  Similarly, the district court summarized Dr. Heath’s testimony and found that Lupron addresses

one facet of the factors that lead sex offenders to engage in deviant sexual behavior.  But to use the medication alone only treats part of the condition.  In addition to pharmacological treatment, patients must receive cognitive therapy, analyzing what led to prior offenses, and developing effective relapse prevention plans.  The personality characteristics of the patients that led to the offense history are not ameliorated by administration of an antiandrogen medication such as Lupron.

 

Dr. Gilbertson agreed in his testimony, indicating that appellant needs to address the psychological issues that contribute to his history of sexually deviant behavior, and he needs to understand his sex offense cycle, to learn relapse strategies, how to avoid temptation, and avoid getting into situations that can lead to re-offense.  Appellant has said that he had difficulty in group therapy because he did not like taking feedback, and that he would not do well in that type of setting.  Appellant has repeatedly stated that Lupron “freed him of the struggle.”

            Thus, the district court found that “[w]ith the exception of [appellant’s] self-reported decline in sexual arousal and self-reported absence of deviant sexual fantasies due to the treatment with Lupron, [MSH] staff report no change in the conditions that resulted in the initial determination by this [district] court that [appellant] is” an SDP and an SPP.  The district court also found that appellant “has not engaged in therapies that would address his underlying personality disorders.  [Appellant] has participated in sex offender treatment in the prison setting, . . . but he has never completed a sex offender treatment program and has not learned the principles necessary to avoid reoffense.”   

Appellant’s pattern of behavior demonstrates an inability to control sexual urges.  The district court’s findings are well supported by the record in this matter, and the record justifies the district court’s determination that appellant should be indeterminately committed as an SDP.

II.

 

Appellant also challenges the district court’s determination that he should be indeterminately committed as an SPP.  An SPP is defined as

the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.

 

Minn. Stat. § 253B.02, subd. 18b (2004).  Such individuals have a habitual course of sexual misconduct that evidences “an utter lack of power to control their sexual impulses and who as a result are likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of their uncontrolled and uncontrollable desire.”  In re Bieganowski, 520 N.W.2d 525, 529 (Minn. App. 1994) (quotation omitted), review denied (Minn. Aug. 23, 1994).  The harm must be “violent sexual assaults that create a substantial likelihood of serious physical or mental harm being inflicted on the person’s victims.”  Robb, 622 N.W.2d at 571.

            Factors for district courts to consider include “the nature and frequency of sexual assaults, degree of violence, relationship between the offender and victims, offender’s attitude, mood, medical history and testing results, and other factors which weigh on the predatory sex impulse and the lack of power to control it.”  Bieganowski, 520 N.W.2d at 529 (citing In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994)); see also In re Pirkl, 531 N.W.2d 902, 907-08 (Minn. App. 1995) (applying the factors), review denied (Minn. Aug. 30, 1995).  The refusal to seek treatment and the resulting lack of an internal mechanism to control relapse demonstrate an inability to control one’s sexual behavior.  Pirkl, 531 N.W.2d at 907.  As long as the individual continues to need treatment for a sexual disorder and is a danger to the public, regardless of minimal improvements to control impulses, commitment may be sustained.  Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995).  Behavior, not the number of convictions, is the statute’s focus.  In re Monson, 478 N.W.2d 785, 789 (Minn. App. 1991).

            According to Dr. Kluznik, even while on Lupron, appellant remains dangerous to the public because of the ability to counteract the medication and because the medication does not address appellant’s sexual, psychological, and personality disorders.  The district court summarized Dr. Kluznik’s testimony and found that

[i]f released, [appellant’s] schizotypal features would cause him to find importance in coincidental events, misinterpreting others’ actions as being desirous of a sexual relationship[.]  The narcissistic features of his personality would help him to rationalize his involvement with other boys.  He would continue to have poor impulse control, and poor judgment; he would likely desire to re-experience the sexual passion he has had in the past.

 

Furthermore, according to Dr. Gilbertson, appellant continues to be a pedophile with a fixed and entrenched pattern of deviant sexual arousal to children, and he continues to be antisocial, having poor impulse control, poor judgment, and power struggles with authority figures. 

            The district court found that appellant’s limitations “would clearly increase [appellant’s] risk of reoffending” because, if released into the community, appellant would confront “other dynamic variables” that appellant “has not had to deal with in the prison or hospital setting.”  Such variables, the district court noted, “include issues related to his ability to manage his time, his ability to find permanent housing, to find employment, and to secure funds to meet his personal and treatment needs, including funding of expensive treatment modalities such as Lupron.”

            Furthermore, multiple experts have concluded that appellant’s behavior demonstrates a habitual course of misconduct.  In her assessment and referral for appellant’s initial commitment, Dr. Zwecker concluded that appellant should be considered for civil commitment based upon a pattern of sex offenses that has continued for many years, upon his current deviant sexual fantasies, and upon his clear statement that he will otherwise re-offend sexually when he is released from prison.  This assessment, according to Dr. Anita Schlank, MSOP clinical director, remains valid for appellant’s indeterminate commitment because “[t]here is no evidence to suggest that there has been any change in the risk [appellant] presents to society since the time of his initial commitment.”  And, as Dr. Gilbertson noted in his testimony, appellant engaged in multiple incidents of harmful sexual conduct with some of the victims involved with the criminal convictions.  And even if his offense history were limited to those victims, he would still meet the standard for commitment as an SDP and an SPP.

            Appellant was sentenced for three counts of criminal sexual conduct in the second degree under Minn. Stat. § 609.343 (2004).  Minnesota law defines second-degree criminal sexual conduct as a “violent crime.”  Minn. Stat. § 609.1095, subd. 1(d) (2004).[1] In addition, appellant threatened to kill a victim and the victim’s parents if he told anyone about being photographed naked.  The multiple offenses, and digital penetration in one instance, increase the violent nature regardless of physical harm.  Such encounters enhanced the victims’ harm beyond that expected from a sexual assault.  Appellant’s actions, described above, may be considered a form of “other evil” that harmed the minor victims.

The district court’s findings are well supported by the record in this matter, and the record justifies the district court’s determination that appellant should be indeterminately committed as an SPP.

III.

 

Appellant contends that because his sexual impulses have been neutralized with chemical castration, the district court erred by concluding that there was no less-restrictive alternative to indeterminate commitment.  Individuals found to be SDPs or SPPs are required by Minnesota law to be committed to a “secure treatment facility” unless the patient establishes the existence of a less-restrictive alternative.  Minn. Stat. § 253B.185, subd. 1; see also In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984) (stating that finding of SPP supports a finding that the MSH is the least-restrictive environment), review denied (Minn. Sept. 12, 1984).

Appellant bears the burden of proving “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; see also In re Kindschy, 634 N.W.2d 723, 730 (Minn. App. 2001) (holding that appellant’s argument that Minn. Stat. § 253B.185, subd. 1 (2000), unconstitutionally shifts burden of proof to him that a less-restrictive treatment option is available is without merit), review denied (Minn. Dec. 19, 2001).  “[P]atients have the opportunity to prove that a less-restrictive treatment program is available, but they do not have the right to be assigned to it.”  Kindschy, 634 N.W.2d at 731; see also Robb, 622 N.W.2d at 574 (citing In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998)).  Meeting that burden includes showing that an alternative program exists that would be willing to accept the defendant for judicially committed sex-offender treatment.  Robb, 622 N.W.2d at 574.

Dr. Schlank stated that, in her opinion, appellant needs a residential treatment setting to allow for the intensity and level of observation and supervision required, and that the only available residential sex offender program is the MSOP.”  Similarly, Dr. Fabian stated that he did not believe outpatient commitment would be appropriate and that the least-restrictive treatment environment would be at MSOP.  Furthermore, Dr. Gilbertson concluded that if appellant has not been able to identify any alternative program to MSOP that would be available to him in the three years since his initial commitment, it is not very likely that he would be able to find one now.  Dr. Gilbertson was not aware of any appropriate and available outpatient alternatives.

Anderson testified that under ISR, appellant would remain on probation until 2013.  Initially, appellant would live in a half-way house, but after the first 60 days, appellant would be responsible for his own housing.  Appellant’s travel outside his residence would be limited during the first four months, monitored by an evening upload of a global-positioning-system monitoring bracelet limited in accuracy to a city block in area, but GPS monitoring does not prevent appellant from violating conditions of parole, or assure that he will not engage in dangerous behavior.  Unannounced visits by the supervisory-release agent four times per week would gradually be phased out for scheduled visits. 

Appellant argues that ISR is warranted because Lupron has cured him and his compliance is readily verifiable by a blood test.  But appellant faces many difficulties.  Anderson testified that as a level 3 sex offender, appellant’s housing options are greatly restricted.  His poor work history, felony record, poor health, and age, would also make it difficult for him to find employment, and with limited income, it would be difficult for appellant to pay for housing in a single family residence.  Similarly, although appellant would be required to attend outpatient sex offender treatment, the only available programming consists of group therapy two hours a week for up to 12 or 18 months.  Thus, Anderson testified that factors that would make appellant’s successful adjustment to living in the community difficult would include the difficulty in finding stable housing, the difficulty in avoiding contact with children, a past history of alcohol abuse, a history of mental health problems, and concerns about appellant’s ability to adequately provide financial support for his needs.

Cheyne testified that he could find only one program with housing that would even consider accepting a Level 3 sex offender, but Cheyne did not think it was likely that the program would accept appellant or that placement there would not satisfy the probation requirement that appellant not have access to children.  Cheyne also stated that although appellant would qualify for case management, case managers meet with their clients once a quarter, and the Anoka County human services department would not be able to pay for appellant’s sex offender treatment and monitoring in the community.  He further testified that appellant has personality problems that would cause him difficulty in adjusting to living in the community.  In fact, Dr. Heath testified that Lupron itself costs $5,000 to $6,000 a year for each patient, and he did not know whether Medical Assistance or another government program would pay for the drug for a patient living in the community. 

            Appellant did not indicate to the district court how he would overcome these problems.  As the appellant bears the burden of demonstrating a less-restrictive alternative but has no right to it, appellant failed to meet his burden before the district court.  Reviewing the district court’s decision in the most favorable light, the district court’s findings are well supported by the record and justify the determination that appellant should be indeterminately committed to the MSH.

            Affirmed.