This opinion will be unpublished and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

A06-2299

 

In the Matter of the
Civil Commitment of: Kevin Boyd Nelson

 

Filed June 19, 2007

Affirmed

Peterson, Judge

 

Freeborn County District Court

File No. 24-PX-05-000527

Robert D. Sturtz, Goldman Sturtz & Halborsen, Chartered, P.O. Box 1009, Albert Lea, MN  56007 (for appellant Keving Boyd Nelson)

 

Lori Swanson, Attorney General, Allen Y. Louie, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, MN  56007 (for respondent State of Minnesota)

 

            Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order granting a petition to indeterminately commit appellant Kevin Boyd Nelson as a sexually dangerous person, appellant argues that the indeterminate commitment is not supported by clear and convincing evidence because evidence in the record shows that he has undergone significant changes since his initial commitment.  We affirm.

FACTS

            A petition, as amended, was filed seeking to commit appellant as a sexually dangerous person (SDP) and as a sexual psychopathic personality (SPP).  Before trial, that part of the petition seeking to commit appellant as an SPP was dismissed.  The district court appointed James Alsdurf, Ph.D., L.P., as the first examiner, and at appellant’s request, the district court appointed Roger Sweet, Ph.D., L.P., to serve as an independent second examiner.  See Minn. Stat. § 253B.07, subd. 3 (2006).  Following trial, the district court determined that appellant met the statutory criteria for commitment as an SDP and ordered an initial commitment to the Minnesota Sex Offender Program (MSOP) at St. Peter and Moose Lake.

            The MSOP treatment team submitted an evaluation of appellant for the 60-day review hearing under Minn. Stat. § 253B.18, subd. 2 (2006).  The evaluation indicated that appellant did not cooperate with the assessment process and declined to participate in an interview with MSOP staff.  MSOP staff diagnosed respondent with pedophilia, sexually attracted to females, nonexclusive type; alcohol dependence, sustained full remission, currently in a controlled environment; cannabis dependence, sustained full remission, currently in a controlled environment; rule-out amphetamine abuse, sustained full remission, currently in a controlled environment; and rule-out personality disorder, not otherwise specified.  The evaluation stated that no evidence indicated any changes in appellant’s condition since the initial commitment. 

            Before the review hearing, appellant requested that an independent examiner be appointed, and the district court appointed Sweet to serve in that capacity.  See Minn. Stat. § 253B.12, subd. 3 (2006).  At the review hearing, Sweet testified that psychological testing conducted after the initial commitment indicated that “the primary avoidant characteristics that have typified [appellant’s] behavior for years are still there.”  Sweet opined that appellant continued to meet the criteria for commitment as an SDP.  Appellant privately retained Dr. John Austin and Dr. Edward Kelly to examine him and testify at the review hearing.  The district court reserved a ruling on respondent’s objection and heard their testimony.

            On cross-examination, Austin admitted that he had not read many of the records relating to appellant, including examination transcripts of the court-appointed examiners, and was instead “relying on the summary documents.”  Austin opined that appellant had met the MSOP-prescribed treatment needs but admitted that he had not spoken to the author of the MSOP treatment evaluation and was uncertain what the author meant.  When asked to identify examples of changes in appellant’s condition, Austin testified that “there isn’t anything that could be pointed out that way.”

            Kelly had not previously testified in Minnesota in an SDP or SPP commitment case.  Kelly was “aware of the Linehan case . . . [but had] not done research on it.”  Kelly concluded that appellant no longer met the criteria for commitment as an SDP because he was not highly likely to reoffend.  Kelly’s conclusion was based on his opinion that the risk assessments by Alsdurf and Sweet were inaccurate because they gave “clinical judgment . . . preference over actuarial instruments.”  On cross-examination, when asked to identify the SDP commitment criteria, Kelly was unable to do so. 

            Following a review hearing, the district court determined that appellant continued to be an SDP and ordered that he be committed indeterminately to MSOP.  The district court denied appellant’s motion for amended findings or a new trial.  This appeal followed.

D E C I S I O N

            An appellate court’s review of a judicial commitment is limited to determining whether the district court complied with the Minnesota Commitment and Treatment Act and whether the commitment is justified by findings based upon evidence submitted at the hearing.  In re Schaefer, 498 N.W.2d 298, 300 (Minn. App. 1993).  The state must prove the need for commitment by clear and convincing evidence.  Minn. Stat. §§ 253B.09, subd. 1(a), .18, subd. 1(a) (2006); see Minn. Stat. § 253B.185, subd. 1 (2006) (stating that provisions of chapter 253B pertaining to persons who are mentally ill and dangerous to the public apply to SPP and SDP commitments).

            On review, 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; see Schaefer, 498 N.W.2d at 300 (applying Minn. R. Civ. P. 52.01 in commitment case).  But 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). 

            To commit a person under the SDP statute, the petitioner must prove that the person (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.  Minn. Stat. § 253B.02, subd. 18c(a) (2006).  Following an initial commitment, the district court must conduct a 60-day review hearing to determine whether the person continues to meet commitment requirements.  Minn. Stat. § 253B.18, subd. 2(a) (2006).  If the court finds at the review hearing that the patient continues to meet commitment requirements, “the court shall order commitment of the proposed patient for an indeterminate period of time.”  Id., subd. 3 (2006).

            Appellant does not dispute that clear and convincing evidence supported the initial commitment.  Rather, based on the testimony of Austin and Kelly, appellant argues that he has undergone significant changes and no longer meets the statutory commitment criteria.  Although the district court concluded that the testimony of Austin and Kelly was irrelevant and outside the permissible scope of review at a 60-day hearing, the court also addressed its credibility, explaining:

            19. Dr. Austin essentially testified and reported that there had been a change in [appellant’s] condition in that he conducted his own risk assessment of [appellant], and that he did not hold the opinion that [appellant] was highly likely to engage in future acts of harmful sexual conduct.  Dr. Austin also claimed that [appellant] met some of the treatment needs outlined in the 60-day Report.  However, on cross-examination, Dr. Austin admitted that he had not reviewed the majority of the records relating to [appellant], and that he had only reviewed the records noted on the first page of his report.  Indeed, Dr. Austin testified that [appellant] had demonstrated change by virtue of his not having masturbated to any inappropriate fantasies since April 2004 when [appellant] was incarcerated following his violation of release conditions.  Dr. Austin, however, proceeded to admit that he had not reviewed the transcript of Dr. Alsdurf’s examination of [appellant], occurring in July 2005, in which [appellant] conceded that he continued to masturbate to images of his primary victim, ACN.  Accordingly, this Court finds that Dr. Austin’s testimony is merely an unsubstantiated attack on the opinions offered by the court-appointed examiners at the initial commitment trial, irrelevant, and outside the scope of review for a 60-day hearing.  Even if his testimony were relevant, Dr. Austin’s opinion is not credible as he did not review the entirety of the records relating to [appellant].

 

            20. Dr. Kelly essentially testified and reported that there had been a change in [appellant’s] condition in that he was not of the opinion that [appellant] was highly likely to reoffend, and that the court-appointed examiners at the initial commitment trial were wrong in their assessment of [appellant’s] risk.  Dr. Kelly suggested that the court-appointed examiners were mistaken because they should have given significantly greater weight to the results of actuarial tools.  Dr. Kelly, however, conceded on cross-examination that he had not ever testified in a SDP civil commitment matter in Minnesota, and that he was merely “aware” of the Linehan line of decisions without having ever fully read them.  Although Dr. Kelly stated that [appellant] did not meet the criteria for commitment, when specifically questioned, Dr. Kelly was not able to articulate what the statutory criteria for commitment were.  Moreover, Dr. Kelly, while opining that [appellant] was not “highly likely” to reoffend as defined under relevant case law, was also not able to identify any of the Linehan factors that he took into consideration to make this opinion.  Accordingly, this Court finds that, as in the case of Dr. Austin, Dr. Kelly’s testimony is merely an attack on the opinions offered by the court-appointed examiners at the initial commitment trial, irrelevant, and outside the scope of review for a 60-day hearing.  Even if his testimony were relevant, Dr. Kelly’s opinion is not credible as he was not able to identify any relevant legal or factual bases for his opinions other than the results of the actuarial tools.

 

            21. In reviewing the testimony of Drs. Austin and Kelly as a whole, neither was able to identify with specificity any changes in [appellant’s] condition since his initial commitment.  Instead, the doctors merely made reference to changes that [appellant] had demonstrated prior to his initial commitment, such as a willingness to be honest about his offenses, and suggested that those were changes that had occurred after the initial commitment.  Additionally, the doctors made conclusory and vague statements that [appellant] had undergone changes because he “now knew” the “seriousness” of his situation.

 

            The district court acted within its discretion in declining to credit the testimony of Austin and Kelly.  See In re Linehan, 557 N.W.2d 171 (Minn. 1996) (Linehan II) (concluding that district court acted within its discretion in declining to credit doctor’s testimony when the substance of doctor’s attack on the accuracy of clinical predictions did not bear on a change in Linehan’s condition, was previously considered during the initial commitment hearing, and was neither new nor helpful); see also In re Knops, 536 N.W.2d 616, 620 (Minn. 1995) (stating that “[w]here the findings of fact rest almost entirely on expert testimony, the [district] court’s evaluation of credibility is of particular significance”).  The remaining evidence submitted at the review hearing, specifically the evaluation submitted by the MSOP treatment team and Sweet’s testimony, shows that appellant continued to meet the criteria for commitment as an SDP.  Accordingly, the district court did not err in ordering that appellant be committed indeterminately.

            Because the district court considered the testimony of Austin and Kelly and found that it was not credible, we need not address whether the court properly determined that it was irrelevant and beyond the scope of the review hearing.

            Affirmed.