This opinion will be unpublished and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

A07-593

 

In the Matter of the Civil Commitment of:

Michael Dean Brown.

 

Filed August 21, 2007

Affirmed

Shumaker, Judge

 

Carver County District Court

File No. PR-05-104

 

 

 

Lori Swanson, Attorney General, Willow Najjar, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134 (for respondent)

 

James L. Berg, P.O. Box 85, Chaska, MN 55318 (for appellant)

 

 

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

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Following a trial in 2006, the district court ordered appellant Michael Brown’s commitment as a sexually dangerous person (SDP) under Minn. Stat § 253B.02, subd. 18 (2004).  Brown appealed, arguing that the district court erred in concluding that he failed to establish that a less-restrictive treatment program was available.  Because two experts whom the court found credible recommended commitment to the Minnesota Sex Offender Program (MSOP) at Moose Lake, and because Brown provided no evidence that a less-restrictive treatment program is currently available and has accepted him, we affirm. 

FACTS

            Brown, who is now 46 years old, has a long history of criminal sexual conduct towards minors.  From the summer of 1994 through 2003, Brown sexually abused at least ten children, including his biological daughter and son, forcing one to perform oral sex on him and attempting to sexually penetrate another with his penis.  In 1994, he was charged with four counts of second-degree criminal sexual conduct and pleaded guilty to two amended counts of gross-misdemeanor fifth-degree criminal sexual conduct.

            Brown served 15 days in jail and was placed on probation with several conditions, including that he enter and successfully complete sex-offender treatment, that he undergo a chemical-dependency evaluation, and that he have no unsupervised contact with minors.  He was discharged from probation in 1998, without having completed sex-offender treatment.  Brown continued to molest young girls, both during and after his probationary period and incomplete treatment. 

            In 2003, Brown was charged with three counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct.  As part of a negotiated plea bargain, he pleaded guilty to two counts of criminal sexual conduct.

            Brown was admitted to the correctional facility in St. Cloud in 2004, and he scored an 8 on the Minnesota Sex Offender Screening Tool-Revised, reflecting a high likelihood of reoffending.  He was transferred to Lino Lakes, where two independently retained experts, Drs. Hoberman and Alsdurf, examined him.  Although Brown scored lower on reoffense tests at Lino Lakes, the doctors advised the county attorney to proceed with a petition to commit Brown as a SDP and as a sexual psychopathic personality.  The petition was filed in November 2005; and in January 2006, the court issued an order holding Brown at the state security hospital in St. Peter.  After a trial, Brown was committed to MSOP as a SDP, and this appeal followed. 

D E C I S I O N

            An appellate court will not reverse a district court’s findings as to the least-restrictive treatment program that can meet the patient’s needs unless clearly erroneous.   In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).  Due regard must be given to the opportunity of the district court to judge the credibility of the witnesses.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 269 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002); Minn. R. Civ. P. 52.01.  “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 at 144 (quotation omitted). 

“Under the current statute, patients have the opportunity to prove that a less-restrictive treatment program is available, but they do not have the right to be assigned to it.”  In re Kindschy, 634 N.W.2d 723, 731 (Minn. App. 2001) (alteration in original), review denied (Minn. Dec. 19, 2001). 

The statute provides:

The court shall commit the patient 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.

 

Minn. Stat. § 253B.18, subd. 1(a) (2004).  Clear-and-convincing evidence means that the “party’s evidence should be unequivocal and uncontradicted, and intrinsically probable and credible.”  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).  And “the burden of proving that a less-restrictive program is available is on the patient.”  In re Robb, 622 N.W.2d 564, 574 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001). 

     Brown does not dispute that he is a SDP, but argues that he clearly and convincingly proved that a less-restrictive treatment program is available to him.  He asserts that he could participate in an outpatient sex-offender treatment program and be released to live in the community with adequate safeguards, including a halfway house, GPS and ankle-bracelet monitoring, and drug and alcohol testing, safeguards that had been previously approved and set up by his probation officer. 

      Over the course of two days, the district court heard testimony from three experts and made 54 pages of extensive findings before determining that Brown was in need of commitment.  During the proceedings, Brown admitted that he could not identify a specific sex-offender treatment program in which he would participate if the district court dismissed the petition and agreed that he continues to need an inpatient treatment center “like that at Lino Lakes” rather than outpatient treatment as he argues in his brief.  He has offered no evidence that a halfway house, such as Damascus Way, would accept him, and he has failed to identify a specific out-patient sex-offender program that would provide sufficient treatment. 

      Brown mischaracterizes the expert evidence on less-restrictive alternatives when he states that Drs. Sweet and Alberg both agreed that the proposed release conditions would satisfy the requirements of public safety.  The district court specifically rejected the testimony of Dr. Alberg, who stated that a less-restrictive alternative may be available, as lacking in credibility.  See Minn. R. Civ. P. 52.01 (stating that reviewing court must defer to district court’s evaluation of witness credibility).   

      But the district court found credible the testimony of Drs. Alsdurf and Sweet, who both recommended at the hearing that Brown be committed.  Dr. Sweet testified that he was concerned about Brown’s use of controlled substances, which has remained in remission only in a controlled environment; that he was concerned about the level of security at Damascus Way; that he did not “know how [Brown] will do once he would be released to the community”; and that he believed that Brown was highly likely to engage in harmful sexual conduct in the future.  Although Dr. Sweet mentioned the option of a structured outpatient setting and discussed potential treatment programs, he expressed concern about Brown’s continuing attraction towards young female children, as well as his drug use, and concluded that “[a]side from [MSOP] at Moose Lake, there really are no in-patient programs” that could meet Brown’s treatment needs and protect the public.

      Dr. Alsdurf testified that Brown is dangerous and needs a residential program; that monitoring Brown on an ankle bracelet while placing him in a halfway house would be insufficient to meet the requirements of public safety; that Damascus Way has no proved track record monitoring its patients to eliminate risks to the community; and that the only suitable program for Brown is commitment to MSOP.

      Brown also has a history of failed attempts at treatment.  After a 1980 DWI conviction, Brown was ordered to complete inpatient chemical-dependency treatment, but was terminated from the program for smuggling in marijuana.  After his first criminal-sexual-conduct conviction, Brown was referred to Project Pathfinder for outpatient sex-offender treatment.  Brown was suspended from the program for unexcused absences, failure to complete assignments, failure to make payment, and continuing failure to claim responsibility for his offenses.  Ultimately, he was terminated from the program when his probation was discharged.  Dr. Alsdurf was concerned that Brown had participated in sex-offender treatment and had completed a chemical-dependency evaluation, but still offended during and after these treatments.  

      Brown conceded that chemical abuse is a significant contributor to his sexual offending and stated that he is not capable of maintaining sobriety outside controlled environments.  By his own testimony, his proposed plan, which requires him to attend an AA meeting once a week, is not sufficient to maintain sobriety. 

      Brown has a long history of sexual conduct towards minors, which includes at least ten underage victims; he admits to abusing illegal drugs and is unable to maintain his sobriety outside controlled environments such as prison; he continues to be attracted to juvenile females; he concedes that he needs inpatient treatment; he has neither provided evidence that a halfway house would accept him nor has he found a suitable outpatient treatment program; two experts recommended commitment to MSOP as the only suitable treatment for Brown.  Brown has failed to provide clear-and-convincing evidence of an available alternative program, and the district court’s finding that Brown failed to show that a less-restrictive treatment program than commitment was available is not clearly erroneous. 

            Affirmed.