STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2213

In the Matter of the Civil Commitment of: Raymond Leon Semler

Filed April 3, 2007

Affirmed

Minge, Judge

Crow Wing County District Court

File No. P5-05-1006

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

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

Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondents)

Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

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

MINGE, Judge

Appellant challenges his indeterminate commitment as a sexually dangerous person, arguing that there was not clear and convincing evidence that he engaged in a course of harmful sexual conduct or that he is likely to engage in future acts of harmful sexual conduct. Appellant also argues that his indefinite commitment constitutes incarceration in violation of his double jeopardy and due process rights. Because clear and convincing evidence in the record supports appellant’s commitment as a sexually dangerous person and because his constitutional claim is premature and not developed, we affirm.

D E C I S I O N

To commit an individual as a sexually dangerous person (SDP), the petitioning party must prove the statutory requirements by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1(a) (2006). Whether the record contains clear and convincing evidence 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 defers to the district court’s role as factfinder 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 trial court’s findings of fact will not be reversed unless clearly erroneous. In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).

An SDP is defined as a person who “(1) has engaged in a course of harmful sexual conduct as defined in [Minn. Stat. § 253B.02, subd. 7a (2006)]; (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) (2006). “Harmful sexual conduct” is “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Id.,subd. 7a(a) (2006). “For purposes of [determining SDP], it is not necessary to prove that the person has an inability to control the person’s sexual impulses.” Id., subd. 18c(b) (2006). But the statute requires a showing that the person’s disorder “does not allow [him] to adequately control [his] sexual impulses.” In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV), cert. denied,528 U.S. 1049, 1205 S. Ct. 587 (1999). The statutory phrase “likely to engage in acts of harmful sexual conduct” means that the person is “highly likely” to engage in harmful sexual conduct. In re Linehan,557 N.W.2d 171, 180 (Minn. 1996) (Linehan III), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d on remand, 594 N.W. 2d 867 (Minn. 1999).

1. Course of harmful sexual conduct

Appellant Raymond Semler first challenges the existence of clear and convincing evidence that he engaged in a course of harmful sexual conduct. Dr. Linda Marshall, the first court-appointed examiner, and Dr. Robert Riedel, the second court-appointed examiner, each testified at the initial commitment hearing that Semler meets all of the SDP commitment criteria, including that he engaged in a course of harmful sexual conduct. The parties stipulated to the qualifications of both expert examiners. Five of Semler’s victims also testified at the initial commitment hearing.

J.G. testified that when she was approximately five years old, at which time Semler would have been approximately eight years old, Semler forced himself into the bathroom and tried to pull her pants down, frightening her. She screamed and her sister intervened. J.G. testified that she still thinks about the incident. She testified that because she was friends with Semler’s sister she continued to spend time at the Semler home after the first incident. When she was nine or ten and staying overnight at their home, Semler exposed his penis to her. He exposed himself again approximately a month and a half later.

M.R. testified about an incident that occurred in 1989 when Semler was 13 and M.R. was 14. As she was walking home from school, Semler came from behind her, grabbed her arms and dragged her across the street toward a vacant house. M.R. was able to escape when she caught the attention of a passing driver. No charges were brought, but police told Semler not to have any further contact with M.R. Despite that admonition, Semler continued to follow M.R. Semler testified that he could not recall the incident but that he was physically attracted to M.R. and felt anger towards her because he perceived she was in some fashion trying to show that she was superior to him. The district court found M.R. credible and concluded that Semler had attempted to commit criminal sexual conduct against M.R. that was interrupted by the passing vehicle, and that Semler continued to engage in a pattern of aggressive, antisocial, and sexual conduct directed at M.R. after the assault.

S.R. testified that in the spring of 1993, she was stalked and harassed by Semler. Semler admitted being sexually attracted to and interested in S.R. and recalled leaving flowers for S.R. outside of her apartment building but denied all of the other conduct testified to by S.R. Semler was not charged with any offense but was warned by the police that if he did not stop his conduct toward S.R. he could be charged with harassment and stalking. Semler admitted that his behavior toward S.R. was inappropriate and that she was probably “spooked” by him. S.R. testified that the stalking left her wary. The district court found that Semler’s harassment constituted harmful sexual conduct and “was driven by Semler’s uncontrolled sexual impulses.”

In November 1993, Semler, who was then 17 years old, kidnapped and forcibly raped T.J., who was then 17 years old and pregnant. Semler was certified as an adult and charged with third-degree criminal sexual conduct. Due to a mistrial after jeopardy attached, Semler was not convicted for this incident. In an assessment at CORE Psychological Services, Semler stated that he would be willing to admit that he committed this rape in order to get into treatment, but at his commitment trial, Semler claimed he had consensual sex with T.J. The district court credited the testimony of T.J., the CORE psychologist and the documentary evidence concerning this incident and found that Semler’s testimony was a “total fabrication with no basis in reality.” The district court found that Semler’s rape of T.J., despite her pregnancy, constitutes a part of his ongoing pattern of harmful sexual conduct. Semler concedes that “if this incident occurred it would be presumed to be harmful sexual conduct under Minn. Stat. § 253B.02, subd. 7a(b)” (2006), but maintains that because he was not convicted, “he is entitled to the presumption of innocence.” It is not necessary, however, that a person be convicted of an offense in order for his conduct to be considered as part of a course of harmful sexual conduct. Ramey, 648 N.W.2d at 268.

M.A.N. testified that Semler assaulted her in July 1996 when he was 20 years old. A man she later identified as Semler grabbed her while she was biking on the outskirts of Crosby. M.A.N. screamed and fought. Semler placed his hand over her mouth and told her not to scream. Semler grabbed her breast and buttocks but M.A.N. was able to call out to a man who arrived on the scene on an all-terrain vehicle (ATV). The ATV driver intervened and Semler fled in his truck. The ATV driver took M.A.N. home and immediately reported the attempted rape to the Crosby police department. M.A.N. also reported the attempted rape. Semler was convicted of fourth-degree criminal sexual conduct and kidnapping. Semler concedes that his convictions from this incident are presumed to be harmful sexual conduct as defined in Minn. Stat. § 253B.02, subd. 7a(b).

In addition to the foregoing, Semler admitted window peeping when he was age 14. The district court found Semler’s testimony not credible that he had no sexual intent while window peeping.

Drs. Marshall and Riedel testified that Semler has engaged in a course of harmful sexual conduct that has caused serious physical and emotional harm to his victims. The district court credited this expert testimony. We find no merit in Semler’s arguments minimizing his conduct or his assertions that because his conduct is not as severe as that of some others who have been committed as SDPs, the petitioner has not proved that he met the first commitment criteria. We conclude that the record contains clear and convincing evidence that Semler engaged in a course of harmful sexual conduct

2. Future dangerousness

Semler does not challenge the district court’s finding that he has manifested a sexual, personality, or other mental disorder or dysfunction, but challenges the existence of clear and convincing evidence in the record to support the district court’s finding that he is highly likely to engage in future acts of harmful sexual conduct. Semler’s argument is based primarily on the fact that there is no evidence that he has committed a sexual offense since 1996.

Good behavior in a controlled setting such as a prison or hospital is not conclusive regarding the issue of dangerousness. See In re Beard, 391 N.W.2d 29, 31 (Minn. App. 1986), review denied (Minn. Sept. 24, 1986); see also In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985). Although Semler correctly asserts that he has not been convicted of a criminal sexual offense since 1996, Semler was either incarcerated, on probation, or on intensive supervised release since his 1996 offense. During that time, despite supervision, he has had new criminal convictions, developed a chemical dependency problem, and continued to engage in high-risk behavior including accessing pornography, keeping weapons, and drinking. In addition, Semler has failed five sexual offender treatment programs. Semler completed the TRIAD chemical dependency treatment program in 2004, but his discharge summary noted that Semler had minimal understanding of the connection between his chemical dependency and his criminal activity and that he did not accept responsibility for his criminal activity.

The Minnesota Supreme Court has set out six factors to be considered in examining the likelihood of reoffense. Linehan III, 557 N.W.2d at 189. These factors are: (1) the offender’s demographic characteristics; (2) the offender’s history of violent behavior; (3) base-rate statistics for violent behavior among persons with the offender’s background; (4) sources of stress in the offender’s environment; (5) the similarity of present or future environment to the environment in which the offender used violence in the past; and (6) the offender’s record of treatment in sex-therapy programs. Linehan I, 518 N.W.2d at 614.

On the first factor, Drs. Marshall and Riedel testified that appellant’s demographic characteristics of age, gender, history of substance abuse, and failure to complete sex-offender treatment place him at a high risk to reoffend. Both psychologists agreed that appellant has a history of violent behavior in terms of recency, severity, and frequency. On the third factor, both psychologists testified that appellant falls into a category of a higher risk to reoffend than the base rates for overall sex offenders. Similarly, on the fourth and fifth Linehan factors, Dr. Riedel testified that there appears to be an association between appellant’s stress and his offense cycle, that appellant has not identified any support group, and that if appellant were to be released, he would not be in protective housing. Dr. Marshall testified that appellant’s prognosis is poor for dealing with stress in a healthy manner. Finally, on the sixth factor, both psychologists noted appellant’s multiple failures to complete sex-offender treatment programs.

The district court made 23 detailed findings, based on the experts’ opinions and the relevant factors supporting its finding that appellant is “highly likely to reoffend sexually.” We conclude that clear and convincing evidence in the record supports this determination.

3. Least-restrictive alternative

Appellant argues that “[t]he record fails to show clear and convincing evidence that [he] requires inpatient sex offender treatment under a civil commitment.” He argues that outpatient sex-offender treatment, along with continued chemical-dependency treatment, is a more appropriate treatment for his needs.

The SDP statute requires commitment to a secure treatment facility unless the patient proves “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 (2006). This court will not reverse a district court’s findings on the appropriateness of a treatment program unless they are clearly erroneous. In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).

Drs. Marshall and Riedel reported their opinions that appellant needs a structured, intensive treatment program. Appellant had the burden of proving, by clear and convincing evidence, that a less-restrictive appropriate treatment program was available, consistent with his needs and public safety. Minn. Stat. § 253B.185, subd. 1. Because he has not pointed to evidence that would sustain that burden, the district court did not clearly err by ordering his commitment to a secure treatment facility.

4. Constitutional challenge

Appellant argues that the Minnesota Commitment and Treatment Act, as applied to his commitment, violates his due process rights and the ban on double jeopardy and ex post facto laws in the United States and Minnesota constitutions. He acknowledges the Minnesota Supreme Court’s holding that the Act does not, on its face, violate a committed person’s rights under the double jeopardy and ex post facto clauses. See Linehan IV, 594 N.W.2d at 871-72; see also In re Blodgett,510 N.W.2d 910, 916 (Minn. 1994) (holding that commitment under the psychopathic personality statute does not violate substantive due process). But appellant argues that the SDP act has “become unconstitutional through overzealous administration” and that because of the MSOP’s poor efficacy rate, it is “merely an additional means of incarcerating inmates.” Finally, he appears to maintain that because the district court failed to assess the efficacy of sex offender treatment, he was denied appropriate treatment.

Appellant provides no legal authority or analysis for his constitutional claims; therefore, we decline to consider them. See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegation of violation of due process unsupported by “constitutional analysis or citation”). And to the extent that appellant is claiming that he was denied effective treatment, his argument is premature and need not be addressed in this appeal from a commitment order. See In re Wicks, 364 N.W.2d 844, 847 (Minn. App. 1985) (stating that “[g]enerally, the right to treatment issue is not reviewed on appeal from a commitment order”), review denied (Minn. May 31, 1985).

Affirmed.

Dated: