This opinion will be unpublished and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

A06-2262

 

 

In the Matter of the Civil Commitment of:

Larry Allen Black.

 

 

Filed May 22, 2007

Affirmed

Willis, Judge

 

Olmsted County District Court

File No. 55-P4-05-4534

 

Mark A. Ostrem, Olmsted County Attorney, Geoffrey A. Hjerleid, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN  55904-3710 (for respondent State of Minnesota)

 

Patrick J. Arendt, 300 Third Avenue Southeast, Unit 402, Rochester, MN  55904 (for appellant Larry Allen Black)

 

            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his indeterminate civil commitment as a sexually dangerous person, arguing that there is insufficient evidence to support a finding that he is a sexually dangerous person, that his civil commitment violates his constitutional right to adequate treatment, and that his civil commitment constitutes double jeopardy.  We affirm.

FACTS

Appellant Larry Allen Black appeals to this court from orders of the district court finding him to be a sexually dangerous person (SDP) under Minn. Stat. § 253B.02, subd. 18c (2006), and committing him to the Minnesota Sex Offender Program (MSOP) for an indeterminate period.  

Black is 20 years old.  He was raised with two younger sisters, a younger brother, and an older half-brother.  There is evidence that Black was a victim of sexual abuse by more than one perpetrator by the age of five.  He remembers his older female cousin sexually abusing him when he was about five years old approximately twice a week for a year.  He was sexually abused by his father, as were his siblings.  The abuse perpetrated by his father included inducing Black and his siblings to engage in sexual acts with each other, masturbating while the children engaged in sexual acts, and videotaping the children engaging in sexual acts.  Black’s father was imprisoned when Black was about five years old for sexually abusing Black’s sisters, and it was suspected that Black’s father was abusing him as well, although he was never charged.  When Black’s father was released from prison, he continued to sexually abuse his children.  Black’s father also attempted to murder Black’s mother.  He was returned to prison and is expected to be civilly committed following his incarceration. 

After Black’s mother divorced his father, she married Black’s paternal uncle.  The two divorced when it was discovered that Black’s uncle also was sexually abusing Black’s sisters, and possibly Black and his brother.  The uncle was imprisoned for these offenses and appears thereafter to have been civilly committed.  Black has reported that he started using alcohol at the age of five and marijuana at the age of seven and that his uncle injected him with “angel dust” on two occasions when he was nine years old.  He also has a history of suicide attempts.             

In September 1999, when Black was 12 years old, Black’s half-brother reported to a family-services therapist that Black and his other brother had had sex with their sisters.  A delinquency petition was filed, alleging that Black had sexually assaulted his two younger sisters, then ages 10 and 11, against their will.  The assaults involved vaginal penetration and also fondling of the breasts and genitals of both girls. 

In January 2000, Black was placed at Mille Lacs Academy in Onamia, Minnesota, under a petition alleging that he was a child in need of protection or services.  Shortly after Black entered Mille Lacs Academy, a psychological assessment was completed that revealed that Black had a “severe lack of accountability for his actions” and that he “endorsed a number of interests in atypical sexual outlets including fetishes, voyeurism, obscene telephone calls, and bondage.”  In a pre-dispositional questionnaire and in a dispositional hearing, Black admitted to sexually assaulting his sisters in a multitude of ways and to bribing them with money to persuade them to allow him to do so.  A district-court judge adjudicated Black delinquent on November 30, 2000, for the sexual offenses against his sisters and placed him on probation until his 19th birthday.

In 2000, Black’s mother moved with his siblings to Kansas.  She has remained “geographically and emotively distant,” which has negatively affected Black’s treatment.  The siblings still in Black’s mother’s care were ultimately removed from her home and placed in protective care in Kansas.   

In July 2001, Black was discharged from Mille Lacs Academy and placed in a sex-offender therapeutic foster home.  And in May 2002, a district-court judge ordered that Black be placed in long-term foster care because “[t]he conditions that led to [Black’s] out of home placement have not been corrected so that he can return home, due to lack of familial support available to meet [his] needs and the fact that his behavior has warranted intensive therapeutic intervention” and because efforts to reunite Black with his mother had failed.  While in foster care, Black worked at a grocery store and attended public high school, where he was a member of the student council.

In March 2003, Black was found to be in violation of the terms of his probation “by failure to remain abstinent [from smoking marijuana], possession of pornography and assaultive and threatening behavior.”  And in June 2003, Black was again found to be in violation of the terms of his probation for being in possession of a pornographic magazine and pornographic computer images.  Black was then placed in a juvenile-detention center, where he admitted that he had accessed pornography, including child pornography, almost every day since the Internet had become available to him in his foster home.  Black was released from detention and began participating in outpatient after-care treatment at Project Pathfinder, but his after-care treatment was terminated because of probation violations and inappropriate behavior.  He then began individual therapy at Project Pathfinder.  At a detention hearing, Black was found to be in violation of the terms of his probation by “having assaultive and threatening behavior, failure to attend probation classes and having access to pornographic materials.”  He was again placed in a juvenile-detention center but was released and placed in a different foster home in January 2004.

            In his new foster home, Black began to urinate in cups and hide them in various places in his foster parents’ basement.  In August 2004, Black was placed in a juvenile-detention center after it was discovered that he had stolen and hidden undergarments belonging to his foster parents’ 11-year-old granddaughters.  Black’s foster parents later found a pornographic magazine and a “sex cube”—a die imprinted with sexual terms—in Black’s clothing.    

On September 15, 2004, a district court revoked Black’s probation and committed him to the Minnesota Commissioner of Corrections for sex-offender treatment at the Minnesota Correctional Facility in Red Wing (MCF-Red Wing).  The district court determined that the disposition was necessary because it had concerns about Black returning to his foster home, “especially as it relates to the young granddaughters of the foster parents”; Black had “exhausted treatment options in the community”; and court-services personnel had concluded that Black’s repeated probation violations illustrated his “failure to integrate tools he learned in sex offender treatment to help prevent him from sexually reoffending.”

While Black was in treatment at MCF-Red Wing, he further revealed his history of sexually offending.  He admitted to sexually abusing approximately ten children, both males and females, and that the abuse included oral, anal, and vaginal penetration, digital penetration, and fondling.  The abuse happened in many different settings, and Black reported that he bribed or manipulated his victims to accomplish the abuse.  Black also reported that he fantasized about rape and bondage and that he often used females’ undergarments, voyeurism, phone-sex lines, and nonconsensual touching of both boys and girls for sexual arousal.                 

In November 2005, a petition for judicial commitment was filed, alleging that Black is a sexual psychopathic personality (SPP) and an SDP.  Black was released from MCF-Red Wing in January 2006 but was then apprehended and transported to MSOP-St. Peter pending a hearing on the civil-commitment petition.

The district court appointed Dr. Rosemary Linderman to conduct a psychological evaluation of Black, and after Black requested that the district court appoint a second psychologist, Dr. Peter Meyers was also appointed to evaluate him.  Dr. Linderman concluded that Black is an SDP.  She diagnosed several disorders and dysfunctions, including pedophilia, paraphilia NOS, sexual abuse of a child, frotteurism, fetishism, a history of ADHD, conduct disorder, oppositional defiant disorder, and dysthemia.  She concluded that Black has a “high likelihood” of sexually reoffending.  Dr. Meyers agreed that Black is an SDP and diagnosed pedophilia, paraphilias NOS, and fetishism.  Dr. Meyers concluded that Black was a moderate-to-high reoffense risk based on Black’s history, psychological test scores, and interview responses.   

After a two-day hearing in February 2006, the district court found that the state had presented clear and convincing evidence that Black is an SDP.  The district court concluded that there was not clear and convincing evidence that Black is an SPP, in part because Dr. Meyers disagreed with Dr. Linderman’s conclusion in that regard.  The district court committed Black to MSOP for an indeterminate period.  As required by Minn. Stat. § 253B.18, subd. 2 (2006), a review hearing was held, and the district court found that Black continues to be an SDP and should remain committed to MSOP for an indeterminate period.

D E C I S I O N

A district court will 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), 253B.185, subd. 1 (2006).  The district court’s findings of fact will not be reversed unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; In re Civil Commitment of Ramey, 648 N.W.2d 260, 269 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).  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; Ramey, 648 N.W.2d at 269.  When the findings of fact rest almost entirely on expert testimony, the trial court’s evaluation of credibility is of particular significance.  Id.  But whether the evidence is sufficient to meet the statutory requirements for civil commitment is a question of law, which we review de novo.  In re Civil Commitment of Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).

I.

 

Black argues that there is insufficient evidence to support a finding that he is an SDP.  An SDP is one 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) (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).

Course of Harmful Sexual Conduct

 “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, and the court is not limited to considering only conduct that resulted in a criminal conviction.  Stone, 711 N.W.2d at 837 (stating that conduct need not be recent); Ramey, 648 N.W.2d at 268 (stating that court may consider conduct not resulting in conviction).  This standard does not require that the conduct actually creates 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.

Black argues that the district court erred by finding that there is clear and convincing evidence that he engaged in a course of harmful sexual conduct.  Black does not dispute the district court’s findings of fact regarding any of his conduct but argues, first, that he did not “knowingly” engage in an “intentional” course of harmful sexual conduct because all of his harmful sexual conduct took place when he was a juvenile—there is no evidence that he has engaged in any such conduct since he reached the age of majority.  Second, Black argues that because he was reared in an environment of incest and forced sex, he did not know that his conduct was wrong.  Therefore, he argues, because he did not know that his conduct was harmful, “it cannot be said that he was engaged in the type of intentional ‘harmful sexual conduct’ that is contemplated by the commitment statutes.”

Black provides no support for his implied assertion that conduct engaged in as a juvenile is not “knowing” or “intentional.”  And Minnesota appellate courts have affirmed the civil commitment of individuals whose harmful sexual conduct took place primarily or exclusively while they were juveniles.  See, e.g., Stone, 711 N.W.2d 831.  Black also provides no support for his suggestion that the fact that he was a victim of childhood sexual abuse, and therefore did not know that his actions were wrong, precludes a finding that he engaged in a course of harmful sexual conduct.  There is no requirement within the SDP statute that a person have knowledge that his sexual offending is harmful sexual conduct.  And regrettably, childhood sexual abuse is not an uncommon history for an individual who has been determined to be an SDP or an SPP.  The possibility that Black did not know that his conduct was wrong does not controvert—in fact, it may support—his need for treatment.

Based on the evidence in the record, particularly the number of child victims and the variety of acts involved, the district court properly concluded that there is clear and convincing evidence that Black engaged in a course of harmful sexual conduct.                          

Sexual, Personality, or Other Mental Disorder or Dysfunction

The second factor in an SDP commitment is whether the individual “has manifested a sexual, personality, or other mental disorder or dysfunction.”  Minn. Stat. § 253B.02, subd. 18c(a)(2).  Black argues that the district court erred by finding that there is clear and convincing evidence that he has manifested any such disorder or dysfunction.  Black notes that although Drs. Linderman and Meyers diagnosed several mental disorders after evaluating Black, Dr. Hertog of MCF-Red Wing did not diagnose any of those disorders.  Black argues that because Dr. Hertog treated Black while Black was in sex-offender treatment at MCF-Red Wing, and Drs. Linderman and Meyers evaluated Black based on their reviews of past records, Dr. Hertog is “in the best position to state [Black’s] current diagnosis,” so although Black may, in the past, have manifested the disorders diagnosed by Drs. Linderman and Meyers, Dr. Hertog’s evaluation is evidence that Black does not currently manifest any disorders that would render him sexually dangerous. 

Black’s suggestion that Drs. Linderman and Meyers evaluated him based on reviews of past records is inaccurate.  Both doctors independently interviewed Black and conducted a series of psychological tests before preparing their reports.  Their expert opinions are that Black manifests a sexual, personality, or other mental disorder or dysfunction, and those opinions are clear and convincing evidence of that fact.  The district court expressly discredited the opinion of Dr. Hertog because it “determined that Dr. Hertog’s findings are not well-grounded in fact or experience.”  The district court was in a position to judge the credibility of the three experts and, in its discretion, to credit the opinions of two of the experts over the third.  Minn. R. Civ. P. 52.01; In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).       

Likelihood of Engaging in Acts of Harmful Sexual Conduct

The third factor is whether, as a result of an individual’s course of misconduct and mental disorders or dysfunctions, the individual is “likely to engage in acts of harmful sexual conduct.”  Minn. Stat. § 253B.02, subd. 18c(a)(3).  A district court should consider six factors to determine whether an offender is highly likely to reoffend: “(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.”  Stone, 711 N.W.2d at 840 (citing In re Linehan (Linehan I), 518 N.W.2d 609, 614 (Minn. 1994)).

Although Black fails to address any of the six factors, he claims that the district court erred by finding that there is clear and convincing evidence that he is likely to engage in acts of harmful sexual conduct.  Black argues that all of his sexual offenses took place when he was a juvenile, that he has abstained from engaging in any harmful sexual conduct since he participated in sex-offender treatment at MCF-Red Wing, and that his most recent “offensive conduct” took place nearly two and a half years ago.  Also, Black asserts that his “firm grasp” on his “triggers” and on his relapse-prevention plan, the fact that he completed one sex-offender treatment program when he was a juvenile and nearly completed another at MCF-Red Wing, his scores on the assessment tests that were administered to predict his risk for reoffense, and his past success and future aspirations all demonstrate that he is unlikely to engage in acts of harmful sexual conduct in the future.  

The state argues that because Drs. Linderman and Meyers each addressed the six Linehan factors and because the district court relied on its assessment of the doctors’ expert testimony to find that Black is highly likely to engage in acts of harmful sexual conduct, the district court did not clearly err by so finding. 

Black points to the fact that he has abstained from offensive conduct for two and a half years to argue that he is not likely to reoffend.  But his abstinence may be largely attributable to the fact that he has been incarcerated for most of that time.  And according to Dr. Linderman’s report, several of the six Linehan factors weigh in favor of the district court’s determination that Black is highly likely to reoffend: (1) Black’s young age places him at high risk, as do his abusive home environment and the offensive sexual conduct he engaged in early in his childhood; (2) Black has an extensive history of displaying both sexual and nonsexual violence; (3) Dr. Linderman addressed several studies and statistical factors relating to recidivism and noted that, most pertinently here, offenders who display deviant sexual preferences, who are younger, who have a high number of offenses, who failed to complete treatment, who have impaired intimate relationships, who have had male child victims, and who have an early history of sexual offenses are more likely to reoffend; (4) stresses in Black’s environment include his poor relationship skills, his unstable support system, his preoccupation with pornography, and his “inability or unwillingness to learn from past experiences/mistakes”; (5) Dr. Linderman noted that Black “reports resorting to sexual activity once he becomes frustrated with either relationships or other situations in his life” and concluded that the context in which Black has offended and is likely to reoffend will be “heavily influenced by his level of practiced insight,” so this factor does not conclusively point in either direction; and (6) although Black completed treatment at Mille Lacs Academy, he reoffended after doing so, he had difficulty participating in treatment at Project Pathfinder, and he has participated in treatment at MCF-Red Wing but failed three polygraph tests, apparently relating to his sexual history, during that time.

The expert-witness testimony provided clear and convincing evidence that Black is highly likely to reoffend.  Dr. Linderman concluded that Black’s reoffense risk is “high,” and Dr. Meyers characterized it as “moderate to high.”  The doctors reached these conclusions after conducting interviews and psychological testing and considering factors such as Black’s offense history and his victimization history, the types of offenses and victims involved, his past response to treatment, and his support system.  

Because the evidence in the record sufficiently supports the conclusion that Black has engaged in a course of harmful sexual conduct, has manifested a sexual or mental disorder or dysfunction, and is likely to engage in acts of harmful sexual conduct, the district court did not improperly determine that there was clear and convincing evidence that Black satisfies the criteria for commitment as an SDP.

II.

 

If a district court determines that a person is an SDP, the court must commit the person to a secure treatment facility unless the person establishes by clear and convincing evidence that a less-restrictive treatment program is available that meets the offender’s treatment needs and does not threaten public safety. Minn. Stat. § 253B.185, subd. 1.  This court will not reverse a district court’s findings on the appropriateness of a treatment program unless its findings are clearly erroneous.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).

Black does not claim that a less-restrictive treatment program exists or dispute the district court’s finding that Black failed to establish that one exists.  Instead, Black argues that because the district court expressly found that MSOP does not have a treatment program in place for young offenders, and because his father and his uncle are committed or are expected to be committed to MSOP, Black’s commitment to MSOP violates his constitutional right to adequate treatment.  Black cites Bailey v. Noot, 324 N.W.2d 164 (Minn. 1982), to support his assertion that he has a constitutional right to adequate treatment.  The appellant in Bailey challenged his transfer from civil commitment to correctional imprisonment, and the court rejected the appellant’s right-to-treatment argument as premature.  Id. at 167.       

The state contends that Black’s argument here is similarly premature.  The state also points out that Bailey’s right-to-treatment doctrine requires only that a patient receive treatment “minimally adequate to provide him a reasonable opportunity to be cured or to improve his mental condition,” not that he receive the “best” possible treatment.  See id.  We agree.  The district court was requiredby statute to commit Black upon its finding that Black is an SDP, and Black failed to establish that a less-restrictive treatment program would meet his needs.  The district court noted that MSOP claims that it can avoid placing Black in a position to encounter his father or his uncle.  Although Black’s treatment at MSOP may not be the “best” treatment until MSOP puts in place a treatment program that addresses the needs of younger offenders, Black will receive treatment, and the SDP statute does not require that treatment be age-specific.  Black fails to explain how the treatment he will receive, although targeted at adult offenders, will not be “minimally adequate” to meet his needs as a 20-year-old offender. 

III.

  

Black next argues that because he has already “served time involuntarily confined” for his two criminal-sexual-conduct convictions, the fact that he is now involuntarily confined at another institution based on those same convictions constitutes double jeopardy, particularly in light of the district court’s finding that MSOP does not offer a program that will provide Black with ideal treatment.      

This court reviews a constitutional challenge de novo.  State v. Johnson, 689 N.W.2d 247, 253 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  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).  As the party challenging the constitutionality of the statute, Black bears the burden of proving a violation of a constitutional protection beyond a reasonable doubt.  See id.   

“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 numerous times that civil commitment is a remedial, not a punitive, action.  See In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994).  It has therefore rejected the argument that the SPP and SDP statutes violate the double-jeopardy clauses of the state and federal constitutions.  Linehan IV, 594 N.W.2d at 870-72 (upholding the court’s earlier decision in In re Linehan (Linehan III), 557 N.W.2d 171, 188-89 (Minn. 1996), vacated, 552 U.S. 1011 (1997)).

Our caselaw clearly provides that, as a general proposition, civil commitment is rehabilitative, not punitive, and therefore does not violate the double-jeopardy clauses.  We therefore move on to address Black’s assertion that his commitment in particularviolates the double-jeopardy clauses because the district court concluded that Black’s “sex offender treatment needs are unlikely to be adequately addressed unless the Minnesota Sex Offender Program creates programming they claim they have been working on.”     

Black will receive treatment at MSOP.  We cannot conclude that the fact that MSOP does not yet have an ideal program in place makes Black’s commitment punitive rather than rehabilitative.  Black has not proved beyond a reasonable doubt that his commitment violates the double-jeopardy clauses. 

            Affirmed.