This opinion will be unpublished and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

A06-1621

 

In the Matter of the Civil Commitment of:

Darrin Scott Rick.

 

Filed February 6, 2007

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File Nos. 27-MH-PR-03-60599; 27-C6-03-900007

 

 

David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant Rick)

 

Michael O. Freeman, Hennepin County Attorney, Theresa Couri, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant challenges the district court’s order committing him indeterminately to the Minnesota Sex Offender Program as a sexually dangerous person, arguing that the evidence is insufficient to find him to be a sexually dangerous person and that he proved a less-restrictive treatment alternative is available.  Because the evidence is sufficient to support the sexually dangerous person finding, and because appellant failed to prove a less-restrictive treatment alternative is available, we affirm.

FACTS

            Appellant Darrin Scott Rick has a history of sexually abusing male and female juveniles.  In 1993, Rick was charged with six counts of criminal sexual conduct and one count of attempted criminal sexual conduct, resulting from his sexual abuse of four mentally challenged female juveniles and one male juvenile. 

            Rick pleaded guilty to four counts and was sentenced to a 180-month prison term.  While incarcerated, Rick was assigned a Level III sex-offender status because of his pedophilia, the vulnerability of his victims, coercion involved in his offenses, and his failure to complete a sex-offender treatment program.

            Prior to his release, Hennepin County filed a petition for judicial commitment, arguing that Rick is a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP).  Various experts testified at the initial commitment hearing about Rick’s status and potential treatment options.  The district court found that Rick is an SDP, but not an SPP, and committed him to the Minnesota Sex Offender Program (MSOP).  The district court stayed the commitment provided that Rick complete the department of corrections’ conditional release program that included outpatient sex-offender treatment.

            Hennepin County appealed the stay.  This court reversed the stay and affirmed Rick’s commitment as an SDP, but remanded to determine the availability of the alternative-treatment program.  In re Rick, No. A04-1475 (Minn. App. Jan. 25, 2005) (order op.).

            On remand, the district court held the review hearing.  By that time Rick’s original alternative-treatment program was no longer available to him, but he introduced evidence regarding the availability of another alternative-treatment option.  Rick’s plan included living at a halfway house, electronic monitoring, intensive supervision, and outpatient sex-offender treatment at the University of Minnesota. 

            Evidence showed that, although the University’s sex-offender treatment program was available, the proposed halfway house was not.  Rick required at least a nine-month stay at a halfway house, but the proposed halfway house would only guarantee a 60-day accommodation.  Therefore, the district court held that Rick remains an SDP and that he failed to prove by clear and convincing evidence that a less-restrictive alternative to MSOP is available.  The court committed Rick indeterminately to MSOP.

            This appeal followed.

D E C I S I O N

1.         Sexually Dangerous Person          

Rick challenges the district court’s finding that he is an SDP.  This court reviews 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).  “Where the findings of fact rest almost entirely on expert testimony, the trial court's evaluation of credibility is of particular significance.”  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  This court does not reweigh the evidence; rather, it reviews 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); In re Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003). 

A petitioner must prove the criteria for commitment as an SDP by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1(a) (2004).  Minnesota law defines an SDP 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). 

Rick 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.  Rather, he 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, 614 (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 explained

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, 889-90 (Minn. App. 2002), review denied (Minn. Oct. 29, 2002), cert. denied, 538 U.S. 933, 123 S. Ct. 1593 (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.”  Id. at 890 (quotation omitted). 

            This court affirmed the district court’s initial SDP finding in a prior order, In re Rick, No. A04-1475 (Minn. App. Jan. 25, 2005) (order op.), and we hold that there is ample evidence to support the district court’s final determination that Rick is an SDP.  Rick’s argument focuses entirely on the actuarial data presented by the experts.  The data indicate that Rick poses between a low and a moderate risk of reoffending.  But the actuarial data are only one of several factors the district court should consider.  Linehan I, 518 N.W.2d at 614.  Additional evidence shows that Rick’s disordered arousal pattern, failure to complete two treatment programs, diversity of victims, and history of sexually deviant thinking make it highly likely that Rick will re-offend.  The experts also testified that Rick’s disorders prevent him from adequately controlling his sexual impulses.  Because this court will not reweigh the evidence on review, we hold that the record contains sufficient evidence to conclude that Rick is an SDP.  Linehan III, 557 N.W.2d at 189.

2.         Less-Restrictive Alternative.

            Rick also challenges the district court’s finding that he failed to prove that a less-restrictive alternative treatment program to MSOP is available. 

Upon finding a proposed patient to be an SDP, the district court must commit the patient to a secure treatment facility “unless the patient establishes 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 (2004).  This court will not reverse a district court’s findings as to availability of a less-restrictive alternative treatment program that can meet the patient’s needs unless clearly erroneous.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003); In re Kellor, 520 N.W.2d 9, 12 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994).

            Rick contends that he met his burden by proving that the University’s outpatient sex-offender treatment program was available.  But the treatment program that Rick proposed included other requirements beyond the outpatient treatment program.  In his brief to this court, Rick acknowledges that, in addition to the outpatient treatment program, his proposed treatment program “also included the Department of Corrections plan of conditional release . . . and placement into 180 Degrees Halfway House.”  Because placement at the halfway house is part of Rick’s proposed treatment program, it too must meet his treatment needs and the requirements of public safety.  Minn. Stat. § 253B.185, subd. 1.

            The record shows that, in order to meet Rick’s treatment needs and public-safety requirements, his proposed treatment program requires a nine-month stay in the halfway house.  But the halfway house would only accommodate Rick for 60 days, absent a funding extension granted by the department of corrections.  And approval for an extension, which is not guaranteed, could only be made after Rick successfully resided at the halfway house for 45 days.  Therefore, because Rick’s alternative treatment program requires a halfway-house stay substantially longer than he proved to be available, the district court correctly found that his proposed alternative treatment program is not available.   

            The record fully supports Rick’s indeterminate commitment to MSOP.

            Affirmed.