STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2044

In the Matter of the Civil Commitment of:
Anthony Bruce Eberhardt.

Filed March 13, 2007

Affirmed

Stoneburner, Judge

Isanti County District Court

File No. 30P205000048

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

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

Jeffrey R. Edblad, Isanti County Attorney, Isanti County Courthouse, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant challenges his commitment as a sexually dangerous person (SDP) and sexual psychopathic personality (SPP), asserting that collateral estoppel should have barred the commitment proceeding, there is not clear and convincing evidence to support the finding that he meets the criteria of SDP and SPP, and his commitment violates his double-jeopardy and due-process rights. Because appellant’s collateral-estoppel and constitutional challenges lack merit and there is clear and convincing evidence in the record to support his commitment, we affirm.

D E C I S I O N

I. Collateral estoppel

Appellant Anthony Bruce Eberhardt argues that because Hennepin County petitioned to commit him as an SDP and SPP in 1995 and 2000, Isanti County was collaterally estopped from pursuing the current commitment. Eberhardt did not raise this argument in the district court, and generally we decline to address such issues on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally will not consider matters not argued and considered in the district court). In this case, we elect to address the issue only to point out that Eberhardt’s argument is without merit.

Collateral estoppel requires that

(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) (quotation omitted). In 1995, by agreement of Eberhardt and Hennepin County, the commitment petition was stayed for two years with conditions, and there was never a trial on the merits of the petition. In 2000, based on an expert’s opinion that Eberhardt did not meet the commitment criteria, Hennepin County voluntarily dismissed the petition without prejudice. Furthermore, Eberhardt moved to Isanti County from Hennepin County, and his circumstances at the time of the current petition were not identical with his circumstances in 1995 or 2000. We conclude that Eberhardt has failed to establish even one of the necessary criteria for application of collateral estoppel: the issues are not identical, there was not a final determination on the merits on either of the prior petitions, Isanti County was not in privity with Hennepin County, and Isanti County had no opportunity to be heard on the prior petitions.

Additionally, “[c]ollateral estoppel is meant to apply to an issue of ultimate fact.” In re McPherson, 476 N.W.2d 520, 521 (Minn. App. 1991) (quotation omitted), review denied (Minn. Dec. 13, 1991). In McPherson, we held that collateral estoppel does not apply to a petition for civil commitment because the determination of whether a person is in need of commitment “does not involve the determination of an ultimate fact that can preclude relitigation of the issue” and because the individual’s “condition or circumstances may change, making a new petition for commitment appropriate.” Id. at 522. Although McPherson involved a commitment for a developmental disability, the condition or circumstances of a potential SDP or SPP are similarly subject to change, precluding a determination on a prior commitment petition from being determinative of an ultimate fact in a subsequent petition. See id. at 521. Although Eberhardt has not committed another sexual offense since the prior petitions were filed, his continued involvement in many of the behaviors identified with increasing his risk of reoffending, his failure to complete court-ordered treatment, and his failure to abide by conditions of supervision in the community are all changed circumstances making the new petition appropriate.

II. Sufficiency of evidence

Eberhardt also challenges the sufficiency of the evidence to support his commitment. When reviewing a commitment order, this court is limited to an examination of whether the district court complied with the requirements of the commitment act. In re Janckila, 657 N.W.2d 899, 902 (Minn. App. 2003). Whether the record contains clear and convincing evidence of the statutory requirements for commitment is a question of law, which this court reviews de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I). The clear-and-convincing-evidence standard “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). This court grants deference to the district court’s role as fact-finder and its ability to judge the credibility of witnesses. In re Ramey, 648 N.W.2d 260, 269 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).

a. SDP commitment

An SDP is defined as a person who: (1) engaged in a course of harmful sexual conduct; (2) manifests 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 supreme court has interpreted the third factor as requiring proof that the person’s disorder or dysfunction does not allow adequate control over sexual impulses and makes it highly likely that the person will reoffend. In re Linehan,594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV).

Eberhardt does not dispute that the evidence is sufficient to support the findings that he engaged in a course of harmful sexual conduct and that he has manifested a sexual, personality, or other mental disorder or dysfunction. He challenges only the sufficiency of the evidence to support the district court’s finding that he is highly likely to engage in acts of harmful sexual conduct.

Eberhardt acknowledges that he spent the majority of the time since his last sexual offense in prison and that good behavior in prison is not conclusive regarding the issue of dangerousness. In Re Beard, 391 N.W.2d 29, 31 (Minn. App. 1986), review denied (Minn. Sept. 24, 1986). But Eberhardt appears to argue that because his most recent sexual offense was committed in 1984, and because in 2000 Dr. Paul Reitman opined that Eberhardt did not meet commitment criteria, the evidence is insufficient to establish that Eberhardt presently lacks control over his sexual impulses and is highly likely to reoffend. We disagree.

The supreme court has articulated six factors used to determine the likelihood of future harm in an SDP commitment: (1) relevant demographic characteristics; (2) history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the environment; (5) similarity of present or future contexts to past contexts in which violence was used; and (6) the record with regard to sex-therapy programs. Linehan I, 518 N.W.2d at 614. The district court in this case made detailed findings on each of these factors, and each of the findings is fully supported by expert testimony in the record. Both Dr. Reitman and Dr. Hoberman, after considering Eberhardt’s time in the community without sexually reoffending, concluded that Eberhardt is highly likely to reoffend in the future within the meaning of the SDP statute. The district court found that the lack of a recent sexual offense was countered by Eberhardt’s recent conviction of a felony, his drinking and attitude toward drinking, and his use of cocaine on the eve of entering jail. And the district court noted that both experts found Eberhardt’s relapse prevention plan was “completely lacking.” Even a cursory review of the record clearly and convincingly demonstrates that Eberhardt is highly likely to sexually reoffend, fully supporting the district court’s finding on this factor.

b. SPP commitment

[SPP] means 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 (2006). Eberhardt challenges only the sufficiency of the evidence to support the district court’s finding that he evidences an utter lack of power to control his sexual impulses. Eberhardt does not provide any authority to support his argument, stating only:

It is clear [that Eberhart’s] behavior no longer fits the common law framework for utter lack of power to control a person’s sexual impulses. Although [Eberhardt] would have fit this framework had he been evaluated in the 1980’s, he does not today. [Eberhardt] has not committed or even been accused of a sexual offense since 1984, a period of 22 years, including the last four and one half years spent in the community.

Although Dr. Reitman testified that Eberhardt does not meet the statutory definition of SPP because he has been in the community for five years without sexually re-offending, the district court made more than 15 findings detailing the testimony of the experts, including Dr. Reitman’s, about Eberhardt’s lack of control and dangerousness. The experts’ testimony was based on examination and testing of Eberhardt and a thorough review of his past and present offenses and circumstances. The record contains clear and convincing evidence in addition to expert testimony, including evidence of Eberhardt’s acts of physical assault, forcible rapes involving a weapon, terroristic threats, continued involvement with alcohol and drugs, failure to complete court-ordered treatment, and violation of conditions of supervision. All of this evidence, along with the experts’ testimony, supports the district court’s finding that Eberhardt evidences the requisite lack of control and dangerousness for SPP commitment.

III. Least-restrictive alternative

As part of his argument on the sufficiency of the evidence to support commitment, Eberhardt argued that his primary problem is chemical dependency and that chemical dependency treatment programs are readily available and do not require indeterminate civil commitment. Eberhardt correctly asserts that Minn. Stat. § 253B.185, subd. 1 (2006), requires commitment of an SDP 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.” Eberhardt does not assert that he established by clear and convincing evidence that a less-restrictive program is available and is consistent with his treatment needs and the requirements of public safety. Eberhardt’s argument is that “[t]he record fails to show clear and convincing evidence that [he] requires inpatient sex offender treatment under a civil commitment.” We disagree. This court will not reverse a district court’s findings as to the least-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).

In support of his argument, Eberhardt cited Dr. Reitman’s recommendation that he be committed to a locked chemical-dependency facility instead of the Minnesota Sex Offender Program (MSOP). Dr. Reitman recommended a stay of commitment with intensive treatment. But the district court noted that stays are not permitted without agreement of the parties, that the county would not agree to a stay, and that there was no evidence in the record that the supervision and programming that Dr. Reitman deemed necessary exists. Dr. Reitman testified that he is not aware of any program that would take Eberhardt under a stay of civil commitment and that MSOP would meet Eberhardt’s treatment needs and the requirements of public safety.

Furthermore, the district court noted that despite Eberhardt’s testimony that he would do everything Drs. Reitman and Hoberman suggested, Eberhardt admitted that he had never followed through on Dr. Reitman’s recommendations in 2000. The district court also found that Eberhardt has violated every condition placed on him by the criminal courts and that his failed treatments and probations argue against his assertion that he would follow all recommendations. The district court noted that Dr. Reitman described Eberhardt as a “sadistic power rapist” with “a powerful deviant arousal system that was to intimidate and humiliate the victims with homicidal threats and hurting victims.” The district court credited the testimony of Dr. Hoberman that Eberhardt is in need of sex-offender treatment as well as chemical-dependency treatment and that MSOP is currently the only available program in Minnesota to meet his needs. It is the exclusive function of the fact-finder to determine and weigh the credibility of witnesses. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). It is well established that these principles apply to the evaluation of expert testimony. State v. McCabe, 251 Minn. 212, 216, 87 N.W.2d 360, 363 (1957). The district court did not err in determining Eberhardt failed to establish by clear and convincing evidence that a less-restrictive treatment program is available that is consistent with his treatment needs and the requirements of public safety.

IV. Constitutional challenge to commitment statutes

Eberhardt asserts that his commitment is the equivalent of incarceration and, as such, violates the Double Jeopardy and Ex Post Facto clauses of the United States Constitution. Because Eberhardt did not raise this issue in district court and because he admits that the supreme court has previously rejected similar challenges to the commitment statutes, we decline to address this issue. Thiele, 425 N.W.2d at 582.

Affirmed.