This opinion will be unpublished and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

A07-460

 

 

In the Matter of the Civil Commitment of:  Adam Leroy Meyer

 

 

Filed September 25, 2007

Affirmed

Toussaint, Chief Judge

 

Koochiching County District Court

File No. P4-06-115

 

 

Kimberly A. Wimmer, Wimmer Law Office, P.A., 401 Main Street, Post Office Box 151, Littlefork, MN 56653 (for appellant Adam Leroy Meyer)

 

Lori Swanson, Attorney General, Willow J. Najjar, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jennifer J. Hasbargen, Koochiching County Attorney, Koochiching County Courthouse, 715 Fourth Street, International Falls, MN 56649 (for respondent State of Minnesota)

 

 

            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Adam Leroy Meyer challenges the order for his indeterminate commitment as a sexually dangerous person (SDP).   Because the evidence supports his commitment, because we see no error in the finding that there is no less-restrictive alternative or in the adoption of the state’s findings of fact and conclusions of law, and because we see no abuse of discretion in the denial of appellant’s motion to sequester witnesses or in reopening the trial to take additional evidence, we affirm.

FACTS

 

            Appellant was born in 1981; he is now 25.  In 1998, he sexually abused an eight-year-old female cousin.  He was adjudicated delinquent of criminal sexual conduct in the fifth degree, placed in residential treatment, and ordered to remain on supervised probation.

            In 2003, appellant had consensual intercourse and oral sex with a 14-year-old girl.   He pled guilty to criminal sexual conduct in the third degree and received a stay of imposition of sentence for 15 years and supervised probation for 15 years.

            In 2004, he dated and had a sexual relationship with a 15-year-old girl, thus violating his probation.  Probation was revoked for this and for his failures to abstain from using illegal drugs, to abstain from contact with females under 18, and to complete sex offender treatment.

            In 2006, while in the security hospital, appellant began correspondence with a 15-year-old girl.  The relationship continued during the hearing on the petition for appellant’s commitment, and the district court granted the state’s motion to reopen the matter to take additional evidence on this relationship.

            Appellant now challenges his commitment on the ground that the evidence does not support it.  He also claims that the district court erred in finding that there is no less-restrictive alternative and in adopting the state’s findings of fact and conclusions of law and abused its discretion in denying appellant’s motion to sequester witnesses and in reopening the trial to take additional evidence.

D E C I S I O N

1.         SDP Commitment

 

            This court reviews de novo whether the evidence as a whole provides sufficient support for the district court’s legal conclusions that the statutory grounds for commitment as an SDP have been met.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

            To commit a person as an SDP, the petitioner must show by clear and convincing evidence that the person: (1) has engaged in a course of harmful sexual conduct; (2) has manifested a sexual, personality or other mental disorder or dysfunction, and (3) is therefore likely to engage in acts of harmful sexual conduct.  Minn. Stat. § 253B.02, subd. 18c (2006); see also In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (Linehan III) (holding commitment as SDP also requires that person be highly likely to engage in acts of harmful sexual conduct), judgment vacated by 522 U.S. 1011, 118 S. Ct. 596 (1997); In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV) (holding commitment as SDP also requires that person lack adequate control of sexual impulses).

            A.        Course of harmful sexual conduct

            Appellant argues first that the evidence does not show he engaged in a course of harmful sexual conduct.  He relies on the testimony of a court-appointed examiner for this argument.  But that examiner answered, “Yes,” when asked if the three acts to which appellant admitted, i.e., criminal sexual conduct against his eight-year-old cousin, stranger penetration of a 14-year-old girl from Canada, and a relationship with a 15-year-old, were in the examiner’s opinion sufficient for a course of harmful sexual conduct.  The other examiner testified that, in his opinion, appellant had “engaged in a course of harmful sexual conduct” and that his opinion was based in part on appellant’s sexual offense against his eight-year-old cousin, his two sex-offense convictions, his inappropriate sexual remarks at school, his targeting of various females, and his writing a note to an underage grocery store clerk while he was in treatment.  

            Appellant also argues that his victims were not harmed and that no one testified to having been harmed by his acts.  But “harmful sexual conduct” means conduct that “creates a substantial likelihood of serious physical or emotional harm to another.”  Minn. Stat. § 253B.02, subd. 7a (2006).  He relies on the fact that some people committed as SDPs have caused greater harm.  But appellant offers no support for the implication that the acts of those who caused greater harm are a minimum standard for SDP commitment.  The standard for commitment requires only that the conduct made harm substantially likely; it does not require that harm actually occurred.  Moreover, both appellant’s examiners testified that his underage victims would have been likely to suffer serious emotional harm. 

            The evidence supports the conclusion that appellant engaged in a course of harmful sexual conduct within the meaning of Minn. Stat. § 253B.02, subd. 18c.

            B.        Sexual, personality or other mental disorder or dysfunction

            Appellant contends that the state failed to show he has the sexual, personality, or other mental disorder or dysfunction required for commitment as an SDP by Minn. Stat. § 253B.02, subd. 18c(a).  Both examiners diagnosed appellant with, among other things, antisocial personality disorder.  Appellant claims this diagnosis is irrelevant because any sex offender would have it and not all sex offenders are subject to commitment as SDPs, but he offers no support for the view that a diagnosis likely to be common among sex offenders is irrelevant to commitment as an SDP. 

            Both examiners testified extensively as to appellant’s diagnoses and the tests on which they were based.  The district court said it “finds the opinions and testimony of [the experts] regarding [appellant’s] mental disorders to be credible and persuasive.” On review, “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.  This court does not reweigh the evidence.  In re Salkin, 430 N.W.2d 13, 16 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).  Appellant provides no basis for not accepting the experts’ opinions that he suffers from a  sexual, personality, or other mental disorder or dysfunction within the meaning of Minn. Stat. § 253B.02, subd. 18c.

            C.        High likelihood of appellant engaging in harmful sexual conduct

            The experts also testified that, in their opinions based on actuarial tools, appellant is highly likely to engage in harmful sexual conduct in the future.  Appellant brought in his own expert witness to show that these actuarial tools were themselves flawed.   This expert’s testimony was based on his unpublished manuscripts concerning the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), which he believes is defective.  But he also testified that the MnSOST-R is “accepted for use by practitioners who are performing these evaluations.” This witness had not interviewed, treated, or tested appellant, had not heard appellant’s testimony, and was not prepared to offer an opinion as to whether appellant met the requirements for commitment as an SDP. The district court’s implicit reliance on examiners who had assessed appellant and failure to rely on an expert who had not assessed him is justified by the evidence.

            Appellant also argues that the six factors set out in Linehan I do not indicate that he is highly likely to engage in harmful sexual conduct.  518 N.W.2d at 614.  The first factor is demographic characteristics.  Id. One of the examiners’ reports cited 12 demographic factors supporting the conclusion that appellant is highly likely to reoffend: two or more sex or sex-related convictions; a sexual offending history lasting from one to six years; committing a sex offense while under supervision; multiple acts against a single victim/contact; offending against two or more age groups; a 13 to15-year-old victim more than five years younger than appellant; a stranger victim; persistent pattern of antisocial behavior; a pattern of persistent drug/alcohol use; irregular employment; discipline history during incarceration; and being under age 30 at the time of release.  Appellant does not dispute any of these.  

            The second factor is a history of violent behavior.  Id.  Appellant claims he is a peaceful, non-violent person.  But one of the examiners reported that appellant had “a number of offenses which involved violence including damage to property and assault” despite having been institutionalized or incarcerated for a significant percentage of his life.[1]  Appellant does not dispute this report.

            The third factor is base rate statistics.  Id.  Both court-appointed examiners testified that the tools indicate appellant is at a “very high risk” to reoffend.  Appellant again relies on the testimony of his expert witness that at least one of the actuarial tools used was flawed, but the district court did not credit the testimony of that witness.

            The fourth factor is sources of stress in appellant’s environment.  Id.  One examiner reported that appellant’s stress factors would be lack of education, “bleak” job prospects, and identification in the community as a sex offender and that appellant’s responses to stress have included mind-altering substances and aggressive acts.  Appellant does not dispute these stress factors, but claims that he would be on a supervised release plan and would be monitored by the department of corrections and that his family would support him.  But appellant’s history of offenses while incarcerated does not support his implication that a supervised release plan would offer adequate support to prevent him from reoffending.

            The fifth factor is the similarity of present or future contexts to those in which the individual used violence in the past.  Id. As the examiners noted, appellant would be returning to the same environment in which he previously offended.  Again, appellant notes that he would be on a supervised release plan, but does not explain how this would significantly change the context of his previous offenses.

            The sixth factor is the therapy record.  Id.   One examiner testified that appellant “sexually offended after treatment and he was also terminated from outpatient sex offender treatment . . . because he violated his probation . . . [and] chemical dependency definitely is an issue in there as well.”  Again, appellant does not dispute this.  Moreover, he began an improper relationship while he was incarcerated.  His therapy record does not support a conclusion that he is unlikely to engage in harmful sexual conduct in the future.

            The six Linehan factors indicate that appellant is highly likely to engage in harmful sexual conduct.

            D.        Adequate Control of Sexual Impulses

            Appellant claims that the state failed to present evidence to support the determination that he cannot adequately control his sexual impulses and that he himself presented witnesses “who have known [him] for an extended period of time [and] who testified that he has changed for the better and is a better person with future plans and goals.”  But none of these witnesses’ testimony pertained to whether appellant has adequate control of his sexual impulses.  The state presented evidence that, while at the security hospital, appellant began correspondence with a 15-year-old girl, and both examiners asserted that, because of his diagnoses, appellant does not have adequate control of his sexual impulses.  Again, this court does not reweigh evidence.  Salkin, 430 N.W.2d at 16.  The evidence supports the conclusion that appellant does not have adequate control of his sexual impulses.

            Appellant meets the four criteria for commitment as an SDP.

2.         Less-restrictive alternative

            An appellate court will not reverse a district court’s finding as to the least-restrictive treatment program that can meet the patient’s needs unless it is clearly erroneous.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).

            The district court, in accord with the testimony of both examiners, determined that the Minnesota Sex Offender Treatment Program at St. Peter and Moose Lake is the least-restrictive alternative that meets appellant’s needs and committed him to that program.  Appellant argues that prison, where he is now incarcerated and receiving sex-offender treatment, is a less-restrictive alternative.  But appellant has yet to demonstrate successful completion of a program while incarcerated.  If he is successful at completing treatment prior to his release in August 2008, he can present this information to the court when his indeterminate commitment is again reviewed.

            A less-restrictive alternative does not provide a basis for reversal.

3.         Adoption of the state’s findings of fact and conclusions of law

A district court’s adoption of one party’s findings of fact and conclusions of law is reviewed under a clearly erroneous standard.  Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).  Adopted findings are acceptable if they are supported by the record and if the district court “conscientiously considered all the issues.” Bersie v. Zyead Corp., 417 N.W.2d 288, 292 (Minn. App. 1987), review denied (Minn. May 5, 1988).  The district court adopted the state’s findings of fact and conclusions of law, but added a memorandum identifying many of the facts that appellant contested and explaining which documents in the record supported the state’s view rather than appellant’s.  The record shows the district court “conscientiously considered all the issues.”  See id. 

4.         Sequestration

            The district court denied appellant’s motion to sequester one of the examiners during the testimony of the other.  Appellant claims he was prejudiced because the two examiners were able to harmonize their testimony.  This court reviews a district court’s decision on sequestration for an abuse of discretion.  State v. Blom, 682 N.W.2d 578, 607 (Minn. 2004).  A party seeking relief on the ground of failure to sequester witnesses must show prejudice.  State v. Erdman, 383 N.W.2d 331, 334 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986).

            Prior to trial, both examiners submitted reports unambiguously concluding that appellant meets the standard for commitment as an SDP.  Because the evidence clearly shows that the examiners were of the same opinion prior to trial, the similarity of their testimony was not a result of the failure to sequester.  There was no prejudice from the denial of appellant’s motion.

5.         Taking additional evidence

            A trial may be reopened to admit “[m]aterial evidence newly discovered, which with reasonable diligence could not have been found and produced at the trial. . .”  See Minn. R. Civ. P. 59.01 (setting out causes for granting motion for new trial).  On review, this court decides whether a trial court’s refusal to reopen a trial to admit newly discovered evidence violated a clear legal right or was a manifest abuse of discretion.  See Peller v. Harris, 464 N.W.2d 590, 593 (Minn. App. 1991) (holding that trial court’s denial of motion for new trial based on newly discovered evidence is matter for court’s discretion and will not be reversed absent violation of clear legal right or manifest abuse of discretion).    

            Appellant argues that reopening the trial was not warranted because the evidence was not material and was available at the time of the hearing.  Both arguments fail.  The evidence was correspondence between appellant, while being held at the Minnesota Security Hospital prior to and during his commitment trial and while under a court order to refrain from all contact with underage girls, and a 15-year-old telling her of his love for her and desire for a relationship with her.  The evidence was material to deciding whether appellant, twice convicted of sexual activity with underage girls, was amenable to therapy and had his sexual impulses under control.  Several of the letters were not written until after the trial, and the existence of the letters did not become known until a week after trial, when the recipient’s mother contacted the state to say that her daughter was receiving love letters from a patient at the Minnesota Security Hospital.

            The district court did not abuse its discretion in reopening the trial to admit newly discovered evidence.

Affirmed.