This opinion will be unpublished and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

A06-2008

 

In the Matter of the

Civil Commitment of:

Byron Kenneth Anderson.

 

Filed March 20, 2007

Affirmed
Crippen, Judge*

 

Douglas County District Court

File No. P5-05-375

 

James S. Dahlquist, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for appellant Byron Anderson)

 

Lori Swanson, Attorney General, Noah A. Cashman, Assistant Attorney General, 445 Minnesota Street, 1800 Bremer Building, St. Paul, MN 55101; and

 

Christopher D. Karpan, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondents)

 

            Considered and decided by Halbrooks, Presiding Judge, Ross, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant Byron Anderson challenges the district court’s commitment judgment, arguing that the evidence is insufficient to support a finding that he is a sexual psychopathic personality (SPP) or a sexually dangerous person (SDP); the district court was collaterally estopped from considering the petition; the district court erred by admitting exhibits containing a portion of a polygraph report and police records; and, as applied, the statutes authorizing civil commitment violate appellant’s right to due process and the prohibition against double jeopardy.  We affirm. 

FACTS

            In 2002, Stearns County filed a petition seeking to commit appellant as an SPP and an SDP.  Both examiners in that case, Dr. Paul Reitman and Dr. Thomas Alberg, opined against civil commitment of appellant, and the petition was dismissed.  Appellant was referred to a treatment program at Alpha Human Services as a condition of his supervised release. 

            By the time the 2002 petition was filed, appellant had been involved with three sexual offenses and convicted of two.  The first offense happened in early 1990, when E.A.W. was attacked as she was on her morning jog in Northfield.  She escaped after appellant chased her, pulled her to the ground, and attempted to remove her pants.  Appellant was charged with third-degree attempted criminal sexual conduct, but the charge was dismissed as part of a plea agreement in the later P.A.S. case. 

            Later in 1990, appellant raped 60-year-old J.M.J. at her home in Glenwood.  Appellant pleaded guilty to first-degree criminal sexual conduct.  In 2002, appellant told a version of this offense which was later determined to be false.

            In 1992, appellant sexually assaulted 21-year-old P.A.S.  Appellant pleaded guilty to one count of first-degree criminal sexual conduct.  At the time of the 2002 commitment petition, appellant denied having any other victims. 

            Appellant also has a history of engaging in window peeping.  He denied a 1987 report that identified him as the person who had tapped on an apartment window and then made provocative comments to the apartment’s occupant.  In 1988, he pleaded guilty to a misdemeanor interference-with-privacy charge after an Alexandria resident reported seeing appellant peek into windows.  In 1991, appellant was accused of window peeping by M.H., but he was later convicted of attempted theft on the same date.  In 2002, appellant claimed that he was looking in windows to steal things, and not for purposes of sexual gratification. 

            At the time of the 2002 petition, there were also allegations that appellant had publicly distributed lewd photographs of himself.  Although he denied these reports, his estranged wife identified the photographs as being of appellant.

            In late 2003, appellant completed the inpatient portion of his treatment at Alpha House and moved to a house in north Minneapolis to complete the outpatient portion of the program.  At that time, appellant was employed and making progress in the program.  But in early 2004, appellant expressed boredom with his job and stress about financial difficulties. 

            On April 7, 2004, H.B. called the Bloomington Police Department to report that a man was looking in her window.  The police stopped appellant in the area a few minutes later.  He told numerous versions of what he was doing in the neighborhood and furnished some information that proved to be false.  The Bloomington city attorney charged appellant with misdemeanor surreptitious intrusion, in violation of Minn. Stat. § 609.746, subd. 1 (2002), but the charges were eventually dismissed. 

            The Department of Corrections issued a warrant for appellant’s arrest, alleging that appellant had violated the terms and conditions of his release by failing to successfully complete sex offender treatment, by failing to follow his agent’s instructions, by becoming involved in criminal activities, and by engaging in assaultive, abusive, or violent behavior.  The department’s Hearings and Release Unit found that appellant had failed to complete sex offender treatment and failed to follow his agent’s directions.  The unit dismissed the violation because of the dismissal of criminal charges.  But appellant’s stay at Alpha House was terminated and his conditional release was revoked. 

            In 2005, Hennepin County filed a petition seeking to commit appellant as an SPP and SDP.  The matter was eventually transferred to Douglas County.  When the petition was filed, appellant was in prison because his conditional release had been revoked.  

            In addition to the offenses that were considered during appellant’s 2002 evaluation for civil commitment, appellant admitted to several additional, previously undisclosed instances of sexual misconduct during the 2005 commitment proceedings.  Appellant admitted sexually assaulting his wife’s aunt in 1989, while she was sleeping.  Appellant admitted that when he was 25, he sexually grabbed his sister-in-law.  He also admitted to sexually assaulting a woman in Douglas County in 1987, stating facts matching an assault report at the time by K.M.W. and leading the district court to conclude that appellant had committed the assault against K.M.W.  Appellant admitted to lying about this incident in 2002 because he feared commitment.  Appellant also admitted that he had previously lied about the facts surrounding the rape of J.M.J. and an attempted sexual assault of M.H.  He further admitted that he had peeped on M.H. and her boyfriend on previous occasions.

            To support its 2005 petition, the state relied on evidence of appellant’s sexual conduct and the evaluations and reports of court-appointed medical examiner, Dr. Harry Hoberman.  Appellant waived his right to be interviewed by Dr. Hoberman and to have a second court-appointed examiner.  Appellant retained Drs. Alberg and Reitman.  Dr. Hoberman testified that, based on his review of the records and the testimony at the commitment trial, appellant met the criteria for commitment as both a sexually dangerous person and a sexual psychopathic personality.  Drs. Alberg and Reitman also agreed that appellant should be committed as a sexually dangerous person.  Dr. Alberg testified that he was unsure whether appellant meets the “utter lack of control” element necessary for a sexual psychopathic personality commitment, and that he would leave this determination to the district court.  But Dr. Reitman opined that appellant meets the criteria for a sexual psychopathic personality commitment.

            On August 23, 2006, the district court filed an order committing appellant to the Minnesota Sex Offender Program as a sexual psychopathic personality and a sexually dangerous person.  This appeal followed.

D E C I S I O N

1.  Sufficiency of the Evidence

            When seeking a civil commitment, the state must prove the need for commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1(a) (2006).  Findings of fact justifying commitment “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01; In re Schaefer, 498 N.W.2d 298, 300 (Minn. App. 1993).  “Where the findings of fact rest almost entirely on expert testimony, the [district] court’s evaluation of credibility is of particular significance.”  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003) (quotation omitted).  Whether the evidence is sufficient to satisfy the statutory elements for civil commitment is a question of law subject to de novo review.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

            Commitment as a sexual psychopathic personality requires proof that a person has engaged in a habitual course of sexual misconduct and has an “utter lack of power to control . . . sexual impulses” such that the person sought to be committed is dangerous to others.  Minn. Stat. § 253B.02, subd. 18b (2006).  Here, testimony of all three expert witnesses provides sufficient clear and convincing evidence to support the district court’s conclusion that appellant has the necessary impairments for commitment as a sexual psychopathic personality, and the record contains adequate evidence, including expert opinions, to sustain the court’s finding that appellant’s condition produced a habitual course of sexual misconduct.  During his deposition, which was admitted as evidence at trial, Dr. Alberg noted that his opinion on appellant’s conduct had changed since 2002 because of “additional information about [appellant’s] sexual activities” revealed since the prior proceeding.  At trial, Dr. Hoberman cited the “compulsive and patterned” nature of appellant’s offenses, the 14-year time period that most of the offenses spanned, and the similarities among many of the offenses.

            The district court also found clear and convincing evidence that appellant has an utter lack of power to control his impulses to engage in harmful sexual conduct.  Factors considered to determine whether an offender lacks the ability to control his sexual impulses include demographic factors, history of violent behavior, base rates for recidivism, environmental stressors, similarities between offending contexts, and therapy participation.  Linehan I, 518 N.W.2d at 614.  Other factors to be considered include the nature and frequency of sexual assaults, the degree of violence involved, the offender’s relationship to the victims, the offender’s attitude, the offender’s family and medical history, the results of psychological testing and offender evaluations, In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994), the offender’s involvement in treatment, the presence of a relapse-prevention plan, In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995), the use of grooming tactics on victims, the offender’s ability to remove himself from particular situations, In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994), and the likelihood of future dangerous behavior, even after a period during which the offender effectively controlled his behavior, In re Irwin, 529 N.W.2d 366, 375 (Minn. App. 1995), review denied (Minn. May 16, 1995). 

            Although Dr. Alberg declined to render an opinion on the control factors, Dr. Reitman testified that appellant meets the criteria, citing appellant’s lies and stating that appellant “is a very smooth psychopath who simply cannot control himself.”  Dr. Hoberman agreed with Dr. Reitman, citing appellant’s “deviant sexual arousal,” “lack of cognitive inhibitions,” and repeated harmful sexual conduct despite his experience of negative consequences.  Addressing the Blodgett factors, Dr. Hoberman testified as to appellant’s variety of victims, stranger victims, aggressive nature of sexual misconduct, belief that the conduct is acceptable, and psychological testing results.  Dr. Hoberman also cited appellant’s failure to complete sex offender treatment while incarcerated, his lies, his failure to remove himself from stressful situations, and his continued assaultive behavior.  Dr. Hoberman concluded that appellant “has not exercised adequate control over his behavior and [has] serious volitional impairment.”  Thus, clear and convincing evidence supported the district court’s determination regarding this factor. 

            A sexually dangerous person is someone whose disorder and course of harmful sexual conduct makes it likely that he will 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.  Id., subd. 18c(b) (2006).  But the state must prove that the person has inadequate impulse control, “making it highly likely that [he] will engage in harmful sexual acts in the future.”  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV).

            In addition to the expert opinions regarding the sexual-psychopathic-personality factors, the record shows clear and convincing evidence to sustain the district court’s determinations on appellant’s course of harmful sexual conduct and the existence of sexual or personality disorders that constitute mental disorders.  As Dr. Alberg testified, appellant has a “long history of exposing himself and . . . voyeurism” that were not apparent in 2002.  Dr. Reitman also changed his opinion from 2002, citing appellant’s lack of credibility.  Dr. Hoberman opined that appellant has “a very patterned and predatory offense history,” including stalking, concealing his face during attacks, and penetration of his victims. 

            Also, appellant pleaded guilty to and was convicted twice of first-degree criminal sexual conduct.  Under Minn. Stat. § 253B.02, subd. 7a(b) (2006), these convictions create a rebuttable presumption that the “victim[s] will suffer serious physical or emotional harm.”  Appellant offered no evidence to rebut this presumption.  Further, all three experts opined that appellant’s actions create a risk of serious harm, and the record indicates that appellant’s sexual acts have in fact caused serious harm.

            All three experts also diagnosed appellant with sexual, personality, or other mental disorders.  Dr. Alberg diagnosed appellant with paraphilia, not otherwise specified, exhibitionism, voyeurism, and personality disorder, not otherwise specified with antisocial features.  Dr. Reitman diagnosed appellant with sexual abuse of adults, sexual abuse of a minor, paraphilia, provisional sexual sadism, exhibitionism, and adult antisocial personality disorder.  Dr. Hoberman diagnosed appellant with paraphilia not otherwise specified, and voyeurism.

            A sexually dangerous person commitment depends on district court findings of a high likelihood that the person will engage in further harmful sexual conduct.  Linehan IV, 594 N.W.2d at 876-77.  Six factors are relevant to this determination:  (1) the offender’s demographic characteristics; (2) the offender’s history of violent behavior; (3) base-rate statistics for violent behavior among individuals with similar backgrounds; (4) sources of stress in the offender’s life; (5) similarities between the present or future context to the contexts in which the offender has been violent in the past; and (6) the offender’s participation in sex-offender treatment programs. In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan III) (employing multi-factor analysis for dangerousness enumerated in Linehan I, 518 N.W.2d at 614).

            Dr. Alberg changed his opinion from 2002 and, based on various psychological tests, now believes that appellant is highly likely to engage in harmful sexual conduct in the future.  Dr. Alberg opined that appellant shows “much more psychopathic tendencies” than he did in 2002.  Dr. Reitman agreed and testified that appellant “would clearly have a high likelihood of sexual recidivism.”  Dr. Hoberman agreed.  Thus, clear and convincing evidence supports the district court’s determination that appellant is highly likely to engage in acts of harmful sexual conduct in the future. 

2.  Other Issues

            A.         Res Judicata/Collateral Estoppel

            Appellant contends that (1) the dismissal of the previous commitment petition and (2) the dismissal of the criminal surreptitious intrusion charge should have collaterally estopped this petition.  Collateral estoppel prevents relitigation of issues that are “both identical to those issues already litigated by the parties in a prior action and necessary and essential to the resulting judgment.”  Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982).  For collateral estoppel to apply, the following conditions must be met:

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

 

Ill. Farmers Ins. Co. v. Reed, 662 N.W.2d 529, 531 (Minn. 2003). 

            Because the prior civil commitment petition did not result in a final judgment on the merits, Douglas County was not estopped from bringing a second petition.  In addition, when a change in circumstances warrants a second proceeding, a prior unsuccessful commitment proceeding does not preclude the later one.  See In re McPherson, 476 N.W.2d 520, 521-22 (Minn. App. 1991) (applying this rule to a commitment petition alleging mental retardation), review denied (Minn. Dec. 13, 1991).  Here, the second petition for appellant’s commitment involved significantly changed circumstances because it included several instances of conduct that were not disclosed in the previous proceeding. 

            Appellant contends that the district court’s consideration of the Bloomington window peeping incident amounts to a collateral attack on the “valid final judgment[s]” of the district court and the corrections department release unit in previously dismissing those charges.  With respect to the April 7 incident, the district court found that “based on the testimony . . ., [appellant]’s peeping on April 7, 2004, in Bloomington is harmful sexual conduct within the meaning of the SDP and SPP statutes.” 

            The issues in the criminal case and the corrections case are not identical to the issue involved here.  The issue in the criminal case was whether there was probable cause to believe that appellant had engaged in window peeping, and the hearings unit was required to determine whether appellant’s release should be revoked based on a preponderance of the evidence.  Here, the issue is whether there was clear and convincing evidence that appellant met the criteria for commitment.  There was no finding in the criminal prosecution or the correction department’s revocation decision that appellant did not commit the window-peeping offense.

            Appellant also contends that collateral estoppel bars the district court’s findings with respect to E.A.W., citing E.A.W.’s uncertain history of identifying appellant.  In 1993, E.A.W. identified appellant in a photographic lineup with 50% to 65% certainty.  But at trial, E.A.W. again identified appellant, this time with 90% certainty.  Because E.A.W. had already indicated that, more likely than not, appellant was her attacker, the district court’s finding on this assault was not collaterally estopped. 

            B.         Admission of Evidence

            Appellant disputes the district court’s admission of two exhibits at trial, one containing references to a polygraph examination of appellant and the other including portions of police reports regarding the rape of K.M.W. 

            Absent an erroneous interpretation of law, the question of whether to admit evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Id. at 46 (quotation omitted). 

            The commitment act provides that the district court “shall admit all relevant evidence at the hearing.”  Minn. Stat. § 253B.08, subd. 7 (2006).  But the act also mandates that the district court “make its determination upon the entire record pursuant to the Rules of Evidence.”  Id.  Additionally, “[t]he Court may admit all relevant, reliable evidence, including but not limited to the respondent’s medical records, without requiring foundation witnesses.”  Minn. Spec. R. Commitment & Treatment Act 15. 

            Over appellant’s objections, Dr. Hoberman testified regarding admissions appellant made during the pre-examination portion of a polygraph.  Appellant admitted that he “had sex with more women than he had disclosed to his treatment provider at Alpha House” and that he had “masturbated to rape fantasies on a number of occasions.” 

            In Minnesota, polygraph test results are inadmissible in both civil and criminal cases because of “insufficient evidence of their reliability.”  State v. Anderson, 379 N.W.2d 70, 79 (Minn. 1985).  But Minnesota has followed the majority of states that admit voluntary admissions made during a polygraph examination.  State v. Erickson, 403 N.W.2d 281, 283-84 (Minn. App. 1987), review denied (Minn. Apr. 29, 1987). 

            Because the reliability considerations that normally justify the exclusion of polygraph evidence do not apply to admissions made during a polygraph examination, the district court did not err in admitting this evidence. 

            Exhibit 38 consisted of Alexandria Police Department records and laboratory reports regarding the 1987 sexual assault against K.M.W.  At trial, appellant’s counsel argued that the exhibit lacked foundation and relevance and that it contained “powerful scientific evidence” that respondent was not involved in the attack.  But the district court overruled appellant’s objection and admitted the evidence, finding that it was “highly probative, particularly in light of [appellant’s] own admission that the victim disclosed in treatment at Alpha House was ‘the Alexandria vo-tech student’ that he was investigated for.” 

            The district court did not abuse its discretion by admitting this evidence.  Although the reports indicate that two hairs found on K.M.W. did not match appellant’s samples, a semen sample analyzed by the Bureau of Criminal Apprehension did not rule out appellant. 

            C.        Constitutional Claims

            Appellant contends that his commitment violates both due process and double jeopardy because of the Minnesota Sex Offender Program’s “inability or unwillingness to allow committed sex offenders graduation and release.” 

            When evaluating constitutionality challenges, courts accord statutes a presumption of validity.  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  “One who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality.”  In re Martenies, 350 N.W.2d 470, 473 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). 

            The Minnesota Supreme Court has rejected due process challenges to both the sexual psychopathic personality and sexually dangerous person statutes.  Blodgett, 510 N.W.2d at 912-917 (sexual psychopathic personality statute); Linehan III, 557 N.W.2d at 184-89 (sexually dangerous person statute).  The Blodgett court reasoned, “even when treatment is problematic, and it often is, the state’s interest in the safety of others is no less legitimate and compelling.  So long as civil commitment is programmed to provide treatment and periodic review, due process is provided.”  Blodgett, 510 N.W.2d at 916. 

            As applied to appellant, neither the sexual psychopathic personality nor the sexually dangerous person acts violate due process because the purpose of appellant’s commitment is to provide him with treatment.

            The appellate courts also have rejected the argument that sexual psychopathic personality and sexually dangerous person commitments violate double jeopardy.  Linehan IV, 594 N.W.2d at 871-72 (sexually dangerous person statute); Joelson v. O’Keefe, 594 N.W.2d 905, 911-12 (Minn. App. 1999) (sexual psychopathic personality statute), review denied (Minn. July 28, 1999).  Because civil commitment is remedial, and its purpose is treatment rather than punishment, civil commitment does not violate the prohibition against double jeopardy.  Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn. 1995). 

            As applied to appellant, both the sexual psychopathic personality and sexually dangerous person statutes are rehabilitative and seek to provide appellant with treatment rather than punishment.  In addition, appellant’s assertions regarding the lack of treatment in the program are premature.  “Generally, the right to treatment issue is not reviewed on appeal from a commitment order.”  In re Wicks, 364 N.W.2d 844, 847 (Minn. App. 1985), review denied (Minn. May 31, 1985).  Therefore, appellant’s civil commitment to the program, even with its apparent rare success in releasing offenders, does not constitute double jeopardy. 

            Affirmed.