This opinion will be unpublished and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

A06-1567

 

 

In the Matter of the Civil Commitment of:

Benjamin James Alverson.

 

 

Filed February 13, 2007

Affirmed

Halbrooks, Judge

 

 

Olmsted County District Court

File No. 55-P3-05-000409

 

 

Patrick J. Arendt, 300 3rd Avenue Southeast, Unit 402, Rochester, MN 55904 (for appellant Benjamin Alverson)

 

Raymond F. Schmitz, Olmsted County Attorney, Geoffrey A. Hjerleid, Senior Assistant County Attorney, Douglas Kim, Assistant County Attorney, Government Center 151 4th Street Southeast, Rochester, MN 55904 (for respondent Olmsted County)

 

 

            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

            Appellant challenges the district court’s judgment committing him as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP), arguing that (1) the evidence is insufficient to support a finding that he is an SDP or an SPP; (2) the district court is precluded from finding clear and convincing evidence to support a conclusion that appellant is either an SDP or an SPP when less than a year earlier the district court dismissed a civil-commitment petition related to appellant and when appellant has allegedly committed no new sex offenses since that time; and (3) the SDP and SPP statutes authorizing civil commitment violate the Double Jeopardy Clause of the federal Constitution.  Because clear and convincing evidence supports appellant’s commitment as an SDP and an SPP and because the applicable statutes are not unconstitutional, we affirm. 

FACTS

            Appellant is currently 31 years old.  After graduating from high school, appellant enrolled in college in Ohio.  Appellant completed just one year of college before dropping out due to poor grades.  After returning to Minnesota, appellant, then 20 years old, had intercourse with a girl who was 15 or 16.  The girl became pregnant and delivered the baby, but appellant has no relationship with either the child or the mother and has never paid child support. 

            In 1997, appellant, then 21 years old, began working as a teacher’s assistant at the Rochester Academy of Performing Arts.  During that time, appellant began grooming 13-year-old A.M.B.  He kissed her, fondled her breasts, digitally penetrated her, and ultimately had sexual intercourse with her after she had turned 14.  In addition, appellant admitted that when he was 22, he had sexual contact on one occasion with a girl whom he believed to be 16 or 17 years old. 

            In early 1998, appellant began grooming J.G., a 12-year-old girl who was introduced to appellant by a teenage boy that appellant met through an Internet chat room.  After initially meeting appellant at a party, J.G. frequently visited appellant at his home.  In March 1998, appellant had sexual intercourse with J.G., soon after she had turned 13.  At the time of appellant’s sexual contact with J.G., appellant was living with a married couple.  When the couple confronted appellant about his sexual conduct with teenage girls, appellant responded that he “liked young flesh” and was a “pedophile.” 

            Law-enforcement officers investigated appellant’s sexual assaults of A.M.B. and J.G., eventually charging him with two separate counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (1996).  Appellant pleaded guilty and was convicted of both crimes. 

The presentence investigation (PSI) of appellant concluded that appellant was a moderate to high risk to reoffend without proper supervision and recommended a guidelines stayed sentence with jail time and specific programming in connection with probation.  In addition, a chemical evaluation of appellant was conducted, which did not result in a recommendation for treatment, but did recommend that appellant abstain from using alcohol and other mood-altering substances, submit to random testing, and be subject to reevaluation if he tested positive.  Also as part of the PSI, Charles Dawley performed a psychosexual evaluation of appellant in October 1998, diagnosing appellant with paraphilia, not otherwise specified, and a personality disorder, not otherwise specified.  Based on the PSI, the district court sentenced appellant to nine months in an adult detention center.  Appellant was placed on probation and ordered to complete sex-offender treatment and to have no contact with children under the age of 18. 

On January 25, 1999, appellant violated several provisions of his probation including being suspended from sex-offender treatment; having contact with minors; leaving the state without permission; accessing computers; possessing computer disks, e‑mail addresses, and computer printouts; and contacting minors through the Internet.  After admitting to these probation violations, appellant received additional time in jail and continued probation.  The district court added a condition to appellant’s probation—that he could not access a computer without prior approval of his probation officer. 

Appellant began attending the Christian-based Midwest Challenge Program and outpatient sex-offender treatment at the Christian Recovery Center.  But two months later, appellant was terminated from the Midwest Challenge Program after he was discovered to be in the basement of the building using a telephone repairman’s phone to tap into telephone wires.  As a result of his termination from the Midwest Challenge Program and lying about the termination, appellant was terminated from the Christian Recovery Center.  Appellant’s probation officer subsequently reported him for three probation violations, which appellant admitted.  Appellant requested that his prison term be executed, and he was committed to the Department of Corrections (DOC) to serve concurrent terms of 12 and 23 months for the probation violations, with credit for 203 days served. 

As appellant’s release date neared, the DOC conducted a review that related, in part, to a possible referral for commitment.  The review did not result in a recommendation for commitment.  But appellant was described as a predatory sexual offender who targets girls between 12 and 16 and who appeared intent on reoffending.  The review recommended that appellant complete sex-offender treatment, have no contact with children under 18, and abstain from using alcohol and drugs.

            In February 2000, appellant was released from the DOC under supervised-release conditions.  At that time, appellant signed probation contracts with the DOC and court services that included the following provisions: (1) no contact with children under 18 and to avoid places where children congregate, (2) successful completion of sex-offender treatment, (3) abstention from using or possessing pornography, and (4) no access to computers without the consent of his probation officer.

            Within a few days of his release, appellant violated the terms of his supervised release when officers apprehending him for loitering at a Rochester parking ramp at approximately 11:30 p.m. found computer floppy disks in his possession.  As a result, the conditions of appellant’s supervised release were restructured with a specific reminder that he could not possess computers or related materials.  Appellant also began attending outpatient sex-offender treatment at Healing Tree Services in Rochester.  

            Seven months later, appellant was again determined to have violated the provisions of his supervised release by violating curfew, having contact with minors, using alcohol, using a computer, corresponding with a teenage girl in an Internet chat room, and failing to maintain employment.  In addition, appellant was terminated from the sex-offender treatment program at Healing Tree Services due to his “blatant dishonesty and disregard for treatment rules.”  A hearing was held by the Hearings and Release Unit (HRU) of the DOC, where it was decided that, due to these violations and appellant’s poor readjustment to the community, his supervised release would be revoked and he would be ordered to serve one additional year in prison.

            Appellant was recommended for an inpatient sex-offender treatment program, and he began to participate in sex-offender treatment at the Minnesota Correctional Facility-Lino Lakes in early August 2001.  But on October 26, 2001, appellant was terminated from the sex-offender treatment program after being caught with a pornographic magazine in his cell. 

            Appellant was again found in violation of prison rules in January 2002, when he was caught by corrections officers attempting to conceal a 14-ounce container of alcohol in his cell.  Appellant was punished with 30 days in segregation.  In February 2002, appellant revealed his intent to call two females whom he had met on the Internet.  The HRU reviewed appellant’s case to determine whether appellant should be released.  But final disposition was continued for 30 days so that appellant could complete an evaluation for readmission to the Sex Offender Treatment Program (SOTP).  Appellant began admission into the SOTP while still in prison, entering the program in June 2002.  He remained in the treatment program until his release from prison in May 2003.

At the time of his release, appellant had completed the primary track of the sex-offender treatment program, but had not successfully completed the program in its entirety.  The SOTP recommended that, following his release, appellant comply with all rules of supervised release, participate in and complete sex-offender treatment or aftercare, have no contact or exercise control or authority over minors, obtain and maintain employment or pursue his education, have no contact with his victims, and periodically review his reoffense-prevention plan with his probation agent. 

            But on September 4, 2003, it was discovered that appellant violated the terms of his supervised release by operating an Internet web page and by accessing pornography on the Internet.  Appellant’s supervised release was revoked, and appellant was sentenced to serve 120 days in prison.  But appellant’s release date was first continued for 30 days, because he lacked a plan for housing upon release, and further delayed because his case was under review for civil commitment and because of appellant’s high risk behavior while on supervised release.  

            On February 27, 2004, appellant’s release was extended for another 90 days after involuntary-civil-commitment proceedings were initiated to commit appellant as an SDP and an SPP.  But the petition was dismissed based on the report and opinion of Paul Reitman, Ph.D., the first court-appointed examiner.  After administering the Sex Offender Risk Appraisal Guide (SORAG), the Violence Risk Appraisal Guide (V-RAG), and the Hare Psychopathic Checklist-Revised (Hare PCL-R), Dr. Reitman opined that appellant did not meet the statutory criteria for involuntary civil commitment as either an SDP or an SPP.  Although Dr. Reitman described appellant as “an individual who . . . [was] narcissistic, ha[d] a sense of entitlement, and [was] making very poor judgments in regards to, particularly, his conditions of release,” Dr. Reitman suggested that appellant be required to complete outpatient sex-offender treatment rather than be indeterminately committed.  Based on Dr. Reitman’s assessment, the district court released appellant from confinement and continued supervised release. 

            Three days after his release, appellant had intentional contact with a female minor.  Although appellant denied the violation, following a hearing by the HRU, appellant was found in violation of his supervised-release conditions and assigned 60 days in prison.  Appellant was released from prison in July 2004, but again violated the conditions of his supervised release on October 17, 2004, when he was found by a security officer accessing pornography through the Internet at the Rochester Community and Technical College.  After a hearing, appellant’s release was revoked, and appellant was returned to the Commissioner of Corrections to serve the remainder of his sentence. 

            On January 6, 2005, the End of Confinement Review Committee assessed appellant as a Level 3 sex offender, and appellant was referred by the DOC to the county attorney for “review and consideration” of a civil commitment as an SDP and an SPP.  The county subsequently petitioned for appellant’s involuntary civil commitment as both an SDP and as an SPP.  Upon the district court’s determination that there was probable cause to believe appellant’s release from confinement might result in serious imminent physical harm to others, appellant was released from prison but then confined at the Minnesota Security Hospital in St. Peter. 

            The district court appointed Rosemary Linderman, Psy.D., as one of the two court-appointed examiners.  In addition to interviewing appellant, Dr. Linderman performed psychological testing, including administering the MMPI-2, Hare PCL-R (2d ed.), and Static-99.  Appellant’s MMPI-2 test revealed that appellant’s profile “was consistent with individuals who are impulsive, resentful, rebellious, and have difficulty following rules and complying with authority.”  Such individuals “have a low tolerance for frustration, an inability to delay gratification and a generally hedonistic approach to life.”  Appellant’s score on the Hare PCL-R placed appellant “in a category of individuals identified as having psychopathy.”  Finally, appellant’s score on the Static-99 revealed a moderate to high risk for sexual reoffense.  Based on her evaluation, Dr. Linderman determined that appellant met the diagnostic criteria for paraphilia NOS and narcissistic personality disorder, and also showed evidence of psychopathy.  Dr. Linderman concluded that appellant met the statutory criteria for commitment as both an SDP and an SPP. 

After Dr. Linderman’s report was received, appellant exercised his right to request an additional examination by Dr. Reitman.  Dr. Reitman again administered the Hare PCL-R, V-RAG, and SORAG tests and reviewed the testing completed by Dr. Linderman.  Dr. Reitman also spoke with Dr. Linderman after completing his own clinical examination.  Dr. Reitman subsequently opined that appellant “has engaged in a course of harmful sexual conduct, suffers from paraphilia and a Narcissistic Personality Disorder,” and is likely to engage in acts of further harmful sexual conduct.[1]  Underlying Dr. Reitman’s altered opinion from the one he reached in 2004 were appellant’s most recent violations, including having contact with a minor girl and accessing pornography on the Internet, and appellant’s lack of insight into his behavior and his inability to control his sexual impulses and behavior.  Thus, Dr. Reitman concluded that appellant met the statutory criteria for civil commitment as an SDP and an SPP. 

            The district court determined that the criteria necessary to commit appellant as an SDP and an SPP were met, and the court ordered appellant to be committed for an indeterminate period to the Minnesota Sex Offender Program at St. Peter/Moose Lake.  On January 17, 2006, the 60-day treatment report was filed pursuant to Minn. Stat. § 253B.18, subd. 2 (2006).  Because appellant requested an independent medical examiner as allowed by the Commitment and Treatment Act Rule 23(c), the district court appointed Dr. Reitman to review the 60-day report.  Based on the 60-day treatment report and Dr. Reitman’s opinion, the district court concluded that appellant “continues to meet the statutory criteria for involuntary civil commitment” as both an SDP and an SPP, and therefore “should be committed [for an indeterminate period] to a secure treatment facility.”  This appeal follows.   

D E C I S I O N

The district court may civilly commit a person under the Minnesota Commitment and Treatment Act if the state proves the need for commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1(a) (2006).  Findings of fact by the district court will not be reversed unless clearly erroneous.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  Due regard must be given to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01; In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  “Where the findings of fact rest almost entirely on expert testimony, the [district] court’s evaluation of credibility is of particular significance.”  Id.  This court will not reweigh the evidence.  In re Linehan (Linehan III), 557 N.W.2d 171, 189 (Minn. 1996), vacated on other grounds, 552 U.S. 1011, 118 S. Ct. 596 (1997), aff’d on remand, 594 N.W.2d 867 (Minn. 1999).  But “[w]e review de novo whether there is clear and convincing evidence in the record to support the district court’s conclusion that appellant meets the standards for commitment.”  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).

I.

A sexually dangerous person is a person who “(1) has engaged in a course of harmful sexual conduct . . . ; (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.”  Minn. Stat. § 253B.02, subd. 18c(a) (2006).  The state is not required to prove an inability to control sexual impulses but must show that the person has an existing disorder or dysfunction that results in inadequate impulse control, making it highly likely that the person will reoffend.  Id., subd. 18c(b) (2006) (stating that inability to control impulses is not required); In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999) (requiring high likelihood of recidivism). 

“Harmful sexual conduct” is defined as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.”  Minn. Stat. § 253B.02, subd. 7a(a) (2006).  A course of harmful sexual conduct is a sequence of harmful sexual 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).  The incidents establishing a course of conduct may extend over a long period of time, and the court is not limited to considering only conduct that resulted in a criminal conviction.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002) (stating that court may consider conduct not resulting in conviction), review denied (Minn. Sept. 17, 2002); In re Irwin, 529 N.W.2d 366, 374 (Minn. App. 1995) (stating that conduct need not be recent), review denied (Minn. May 16, 1995).  This standard does not require that the conduct actually create physical or emotional harm, but rather that there is a substantial likelihood of causing physical or emotional harm.  Ramey, 648 N.W.2d at 269.

Here, the record shows that appellant’s sexual course of conduct began when he was 20 years old and engaged in sexual intercourse with a 15- or 16-year-old girl, who later became pregnant and gave birth to appellant’s child.  Appellant has provided no support to either the mother or the child, and up until the time of the commitment hearing he refused to cooperate with the termination of his parental rights so as to allow the child to be adopted by its stepfather.  In addition, appellant self-reported having sexual contact with a 16- or 17-year-old girl when he was 22 years old.  Although these acts did not result in any criminal convictions, this court is not limited to considering only conduct that resulted in a criminal conviction when determining whether a course of harmful sexual conduct exists.  Ramey, 648 N.W.2d at 268. 

Appellant pleaded guilty to and was convicted of third-degree criminal sexual conduct on two separate occasions for the sexual acts with 14-year-old A.M.B. and 13-year-old J.G.  Under Minn. Stat. § 253B.02, subd. 7a(b) (2006), there is a rebuttable presumption that the conduct underlying these two convictions “creates a substantial likelihood that a victim will suffer serious physical or emotional harm.”  Appellant contends that it was improper for the district court to find that there was a substantial likelihood that his victims suffered serious harm because they were not threatened, forced, or physically harmed during the sexual assaults.  Specifically, appellant argues that J.G.’s testimony that she had intercourse with appellant willingly, that she did not suffer either emotional or physical harm, and that she has not sought counseling or treatment as a result of appellant’s sexual assault, served to rebut the presumption that his conduct created a “substantial likelihood” of “serious physical or emotional harm.”  But both Dr. Linderman and Dr. Reitman agreed that appellant’s victims were too young to consent to the sexual acts.  Further, both experts concluded that appellant’s victims are likely to suffer psychological and emotional harm as a result of the sexual acts, and while the effects might be delayed, they may eventually suffer from depression, posttraumatic stress, low self-esteem, borderline personality disorder, substance abuse and addiction problems, and relationship difficulties.  In fact, appellant himself agreed that both A.M.B. and J.G. were affected by his actions, that they had suffered, and that he had a significant impact on their lives by sexually assaulting them.  Thus, appellant failed to rebut the presumption that his sexual misconduct toward these victims qualifies as harmful sexual conduct. 

The district court also determined that appellant’s course of harmful conduct was evidenced by his numerous violations of probation and supervised release as a result of “returning to his cycle of offending behavior,” including: (1) several contacts with minors in person and in Internet chat rooms; (2) being caught attempting to tap into phone lines at Midwest Challenge Program; (3) the possession of computer disks containing information for use in computer hacking; (4) use of alcohol; (5) possession of pornography in jail while participating in a sex-offender treatment program; (6) operation of an Internet web page; and (7) viewing Internet pornography on a number of occasions.  Appellant is correct in pointing out that these were not completed acts of harmful sexual conduct.  But the district court properly noted that, as articulated by Dr. Linderman and Dr. Reitman, these behaviors were a part of appellant’s “course of harmful sexual conduct (his offense cycle),” which includes: fantasizing; the use of pornography; masturbation; and having contact with teenagers, especially in Internet chat rooms.  Again, this court is not limited to considering only conduct that resulted in a criminal conviction when determining whether a course of harmful sexual conduct exists.  Ramey, 648 N.W.2d at 268.  Accordingly, we conclude that clear and convincing evidence supports the district court’s determination that appellant engaged in a course of harmful sexual conduct.

The second factor for an SDP commitment is whether appellant “has manifested a sexual, personality, or other mental disorder or dysfunction.”  Minn. Stat. § 253B.02, subd. 18c(a)(2).  Both Dr. Linderman and Dr. Reitman diagnosed appellant with paraphilia, pedophilia, antisocial personality disorder, and narcissistic personality disorder.  Appellant does not argue that this element has not been satisfied.  Thus, clear and convincing evidence also supports the district court’s finding that appellant manifested a sexual, personality, or other mental disorder or dysfunction.    

The third factor is whether, as a result of appellant’s course of misconduct and mental disorders or dysfunctions, appellant is “likely to engage in acts of harmful sexual conduct.”  Minn. Stat. § 253B.02, subd. 18c(a)(3).  When reviewing this determination, an appellate court must find that it is “highly likely” that a person will engage in further harmful sexual conduct.  Linehan IV, 594 N.W.2d at 876.  Six factors are considered when examining whether an offender is highly likely to reoffend, including: (1) the offender’s demographic characteristics; (2) the offender’s history of violent behavior; (3) the base-rate statistics for violent behavior among individuals with the offender’s background; (4) the sources of stress in the offender’s environment; (5) the similarity of the present or future context to those contexts in which the offender used violence in the past; and (6) the offender’s record of participation in sex-therapy programs.  In re Linehan (Linehan I), 518 N.W.2d 609, 614 (Minn. 1994).

Appellant argues that there is insufficient evidence in the record to support a finding that he is likely to engage in any future acts of harmful sexual conduct.  Although appellant can point to his lack of violent behavior during the sexual assaults as a factor weighing against a finding that he is likely to engage in future acts of harmful sexual conduct, several other factors favor the district court’s conclusion that appellant is likely to engage in acts of harmful sexual conduct in the future. 

For example, although appellant participated in several sex-offender treatment programs, including the Midwest Challenge Program, the Christian Recovery Center, Healing Tree Services, and inpatient treatment at MCF, appellant was terminated from each of these programs after violating probation, supervised-release provisions, or program rules.  In addition, although appellant was eventually released from sex-offender treatment at MCF-Lino Lakes, appellant had not completed all phases of the program when released and, even after being released, proceeded to once again engage in his cycle of reoffending.

Furthermore, during periods of supervised release and even after the first petition for civil commitment was dismissed, appellant’s actions were consistent with his cycle of sexual offending.  He maintained contact with minors both in person and on the Internet, viewed pornography, used alcohol, and continually used computers and the Internet to facilitate his sexual behaviors.  The record also supports the district court’s conclusion that, even after attending treatment, serving a significant amount of time in prison, and having his first civil-commitment petition dismissed, appellant “continued to demonstrate that he cannot alter his behavior regarding sexual matters” and continues to lack empathy for his victims. 

            Finally, the district court’s determination that appellant is likely to engage in further acts of harmful sexual conduct is supported by the opinions of both Dr. Reitman and Dr. Linderman.  Dr. Reitman stated that appellant’s “behaviors demonstrate an inability to control his sexual impulses making it highly likely he would engage in harmful sexual conduct.”  Further, Dr. Linderman administered the Static-99 test, which showed that appellant has “a moderate to high risk of sexual reoffense” and the Sex Offender Need Assessment Rating (SONAR), which indicated a “high risk for sexual reoffense.”  As a result, Dr. Linderman concluded that appellant is “highly likely to engage in acts of harmful sexual conduct.”  Therefore, we conclude that clear and convincing evidence supports the district court’s determination that appellant is highly likely to engage in future harmful sexual conduct.    

            Because the record demonstrates by clear and convincing evidence that appellant has engaged in a course of harmful sexual conduct, has manifested sexual or mental disorder or dysfunction, and is likely to engage in acts of harmful sexual conduct, we conclude that the district court properly determined that appellant satisfies the criteria for commitment as an SDP. 

II.

            Commitment as an SPP requires clear and convincing proof of three criteria: (1) the existence of emotional instability, impulsive behavior, a lack of customary standards of good judgment, or a failure to appreciate the consequences of personal acts; (2) a habitual course of sexual misconduct that results from the presence of a condition in the first criterion; and (3) an utter lack of power to control sexual impulses such that the person is dangerous to others.  Minn. Stat. § 253B.02, subd. 18b (2006).

The district court concluded that appellant exhibited impulsive behavior, failed to appreciate the consequences of personal acts, and had a lack of customary standards of good judgment.  Dr. Reitman observed that appellant’s behavior showed impulsiveness because appellant “tended to act sexually without forethought and with an inability to delay gratification.”  Appellant’s impulsive behavior is evidenced by a number of facts in the record that have been previously noted.  For instance, on several occasions after being released subject to supervision, appellant initiated contact with minors, consumed alcohol, used a computer and the Internet, and viewed pornography, all the while knowing that such behavior violated his probation and supervised-release conditions. 

Evidence in the record is also indicative of appellant’s failure to appreciate the consequences of his personal acts, even when they would likely result in additional time in prison.  In addition, the district court concluded that appellant’s pattern of behavior with respect to the mother of his child and with his child demonstrate appellant’s “narcissistic pattern of thinking only of what he wants regardless of the consequences for others.”  Both Dr. Linderman and Dr. Reitman opined that appellant has no empathy for the victims of his sexual assaults, as evidenced by his assertions that the victims consented to the sexual abuse and that his sex-offending behavior was not harmful because none of the victims suffered actual physical injury.  Dr. Reitman further noted that appellant’s failure to appreciate the consequences of his actions is evidenced by appellant’s ability to “react to what was occurring in the present” while still acting “in a predatory fashion with children to gratify his own needs.”  Dr. Linderman similarly noted that appellant’s lack of customary standards of good judgment and failure to appreciate the consequences of his personal conduct with respect to sexual matters is demonstrated by appellant’s numerous probation violations, believing that he would not get caught; rationalization of his behavior by convincing himself that the behavior is acceptable as long as he is not physically hurting anyone; his inability to demonstrate meaningful remorse; and his inability to understand the consequences of his acts on his victims.

A habitual course of sexual misconduct requires similar incidents of misconduct or incidents that form a pattern.  See In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn. App. 1994) (considering similarities between incidents and pattern of conduct), review denied (Minn. Oct. 27, 1994).  Here, the district court looked to the same conduct discussed in Section I.A.—appellant’s criminal convictions of third-degree criminal sexual conduct, appellant’s additional misconduct that did not result in criminal convictions, and appellant’s offense cycle—in support of its conclusion that there was clear and convincing proof of a habitual course of misconduct.  The district court’s determination was further supported by the testimony of Dr. Linderman, who stated that appellant has engaged in a habitual course of misconduct in sexual matters and the observations of Dr. Reitman, who concluded that appellant’s behavior, “especially engaging in conduct that was part of his offending cycle, when considered together with offenses and his history constituted a habitual course of misconduct in sexual matters.”  We conclude that the record contains clear and convincing evidence to support the district court’s determination that appellant has engaged in a habitual course of sexual misconduct.

When considering an offender’s “utter lack of power to control his sexual impulses,” the court looks to the Linehan factors addressed in the context of an SDP analysis.  Linehan I, 518 N.W.2d at 614.  Additional factors are also considered when examining a person’s ability to control sexual impulses, including the nature and frequency of sexual assaults, the degree of violence involved, the offender’s relationship to the victims, the offender’s attitude and mood, the offender’s medical and family history, the results of psychological testing and evaluations of the offender, In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994), the offender’s refusal of treatment opportunities, the lack of a relapse-prevention plan, In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995), the presence of grooming behavior, and the failure of the offender to remove himself from similar situations.  Bieganowski, 520 N.W.2d at 530. 

Dr. Reitman concluded that appellant tends to act sexually without forethought and with an inability to delay gratification and that appellant’s behavior, “especially engaging in conduct that [is] part of his offending cycle, when considered together with offenses and his history constitute[s] a habitual course of misconduct in sexual matters and showed an utter lack of ability to control his sexual impulses.”  Dr. Linderman also concluded that appellant “has demonstrated an utter lack of power to control his sexual impulses, and is dangerous to other persons.” 

Appellant’s record of participation in sex-therapy programs could be characterized as sporadic at best, as appellant was either terminated from all of the programs because of a violation of probation or program rules or was released from the program prior to completion.  In addition, the record indicates that appellant retains a rather callous attitude with regard to his sexual assaults, maintaining that his sex-offending behavior was not harmful since no physical injury was suffered by the victims, and arguing that the victims were capable of consenting to the sexual assaults.  Further, the record reflects that appellant’s sexual assaults of both A.M.B. and J.G. began with “grooming” behavior.  Appellant began grooming A.M.B. in his office at work, with conduct before sexual intercourse that included kissing A.M.B., fondling her breasts, and digital vaginal penetration.  The record indicates that J.G. visited appellant at his home over a period of a month before having sexual intercourse. 

In support of his argument that the district court erred when it committed him as a sexual psychopathic personality because his offenses did not involve “violent” sexual behavior and thus he was not “dangerous to other persons” as required by the SPP statute, appellant relies on this court’s decision in In re Robb, 622 N.W.2d 564, 571 (Minn. App. 2001) (stating that “behavior that makes a person ‘dangerous to other persons’ as required by the [SPP] statute is limited to violent sexual assaults that create a substantial likelihood of serious physical or mental harm being inflicted on the person’s victims”), review denied (Minn. Apr. 17, 2001).  But at least one subsequent decision of this court has noted that while a perpetrator may not cause actual physical injury collateral to sexual assaults, that does not mean that the assaults are necessarily “non-violent within the meaning of the sexual psychopathic personality statute,” as perpetrators will “only engage[] in the amount of force necessary to accomplish [their] will on very young victims.”  In re Preston, 629 N.W.2d 104, 113 (Minn. App. 2001) (holding that “collateral physical force” used to restrain victims, combined with coercion, is sufficient to support a finding that sexual misconduct is violent in nature).  This court in Preston further stated that “[i]t would be absurd to hold that because less force was needed to subdue an extremely young victim, the assault was non-violent.”  Id.  Moreover, the supreme court has analyzed whether sexual assaults are violent in the context of whether they create “a substantial likelihood of serious physical or mental harm.”  In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994). 

We conclude that clear and convincing evidence supports the district court’s determination that appellant suffers from an utter lack of power to control sexual impulses, making him dangerous to others.  Therefore, the district court properly determined that appellant satisfied the criteria for commitment as an SPP. 

III.

            Appellant contends that the district court is precluded from finding clear and convincing evidence to support the conclusion that appellant is an SDP and/or an SPP when, less than one year earlier, the district court dismissed a civil-commitment petition regarding appellant and when allegedly no new sexual offenses occurred between the denial of the petition and the current order for commitment.  We disagree and, in fact, have previously addressed this argument.  See In re McPherson, 476 N.W.2d 520, 522 (Minn. App. 1991) (holding that the doctrine of collateral estoppel does not preclude commitment of a patient, even if an earlier petition for commitment was denied because “the patient’s condition or circumstances may change, making a new petition for commitment appropriate”), review denied (Minn. Dec. 13, 1991).

            The record shows that on February 27, 2004, involuntary-civil-commitment proceedings were initiated against appellant as an SDP and an SPP.  The record also indicates that the petition was dismissed on April 1, 2004, based on the report and opinion of Dr. Reitman, who determined that appellant did not meet the statutory criteria for commitment as an SDP or an SPP.  But on April 4, 2004, after being released from confinement, appellant had intentional contact with a female minor.  In addition, on October 17, 2004, appellant was discovered by a security officer accessing pornography through the Internet at the Rochester Community and Technical College.  These incidents both amounted to violations of the conditions of appellant’s supervised release and were consistent with appellant’s cycle of offending behavior.   

            Although the district court dismissed the first petition based on Dr. Reitman’s opinion that appellant did not then meet the statutory criteria for civil commitment, appellant does not cite any authority for the proposition that the district court (or Dr. Reitman) cannot find by clear and convincing evidence that circumstances have changed and that appellant now meets the statutory criteria.  At the hearing, Dr. Reitman explained his change of opinion, stating that appellant’s “failure to make good on the opportunity to undergo treatment and comply with supervision conditions is a stronger indicator of the need for commitment than any actuarial tool.”  As previously noted, this court must defer to the district court’s judgment regarding the credibility of witnesses, and it should not reweigh the evidence.  See Minn. R. Civ. P. 52.01; Knops, 536 N.W.2d at 620.  Therefore, we conclude that the district court is not precluded from re-examining the record and considering appellant’s subsequent conduct and finding clear and convincing evidence to support a determination that appellant meets the statutory criteria for commitment as an SDP and an SPP simply because of its dismissal of the earlier petition.   

IV.

Appellant argues that the SDP and SPP statutes violate the Double Jeopardy Clause of the federal Constitution.  Specifically, appellant contends that, because he has already served a criminal sentence for his offenses, his civil commitment for the same conduct constitutes double jeopardy.  Appellant acknowledges that Minnesota’s commitment procedures have previously withstood constitutional challenges asserting double-jeopardy protections but argues here that Minnesota’s sex-offender treatment programs located at St. Peter and Moose Lake have evolved into more preventive detention, in part due to the fact that “no” patient has ever graduated from the treatment program. 

Minnesota statutes are presumed constitutional and will not be declared unconstitutional unless absolutely necessary.  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  This court will review a constitutional challenge de novo.  State v. Johnson, 689 N.W.2d 247, 253 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  “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).  The Minnesota Supreme Court has held that civil commitment is a remedial, not a punitive, course of action.  Blodgett, 510 N.W.2d at 916.  As a result, the supreme court has rejected the argument that the SDP or SPP statutes violate the constitutional protection against double jeopardy.  Linehan III, 557 N.W.2d at 188-89 (SDP); Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn. 1995) (finding that the purpose of the SPP commitment statute is treatment, not preventive detention); Joelson v. O’Keefe, 594 N.W.2d 905, 911-12 (Minn. App. 1999) (holding that SPP law does not constitute double jeopardy), review denied (Minn. July 28, 1999); see also State ex. rel. Pearson v. Probate Court of Ramsey County, 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, 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). 

Because civil commitment is rehabilitative and focuses on treatment rather than punishment, civil commitment after incarceration does not constitute double jeopardy.  Therefore, appellant’s constitutional claim is without merit. 

            Affirmed.