This opinion will be unpublished and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

A07-681

 

In the Matter of the Civil Commitment of:

Dwane David Peterson.

 

Filed September 4, 2007

Affirmed

Ross, Judge

 

Blue Earth County District Court

File No. 07-PR-05-3156

 

 

Ryan B. Magnus, Brandt & Magnus, P.A., 219 West Nassau Street, P.O. Box 57, St. Peter, MN 56082 (for appellant)

 

Lori Swanson, Attorney General, Angela Helseth Kiese, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

 

Considered and decided by Ross, Presiding Judge; Toussaint, Chief Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

 

On appeal from an order for civil commitment as a sexually dangerous person, Dwane Peterson argues that the county failed to present evidence of an overt act of dangerousness and that the evidence was insufficient to support the district court’s finding that he engaged in a course of harmful sexual conduct.  Because Peterson raises the overt-act argument for the first time on appeal and the evidence establishes that he engaged in a course of harmful sexual conduct, we affirm.

FACTS

In February 2007 the district court granted Blue Earth County’s petition to commit Dwane Peterson to the Minnesota Sex Offender Program as a sexually dangerous person.  Peterson has an extensive criminal record dating to his childhood, but he has never been charged with or convicted of a sexual offense.  Peterson nonetheless has a long history of sexually inappropriate behavior involving children, particularly young boys.

Peterson’s sexual misconduct while a youth is documented by his mother’s reports to social-services agencies.  When Peterson was nine years old, his mother reported that he had been molesting a four-year-old and that she found him in bed sexually touching his female cousin.  Peterson’s mother reported that he would kiss young girls, including his sister, and touch their private parts.  She also told social services that Peterson touched his eight-year-old brother’s penis and attempted to perform oral sex on him.  When Peterson was 11 years old, his mother reported that he had coaxed a 10-year-old girl into pulling down her pants and then touched her.  With the exception of the last incident, which Peterson attributed to “experimenting,” Peterson testified that he could not remember committing any of the conduct reported by his mother.  His mother testified that she did not recall either witnessing or reporting these incidents.  Peterson’s siblings also denied that any sexual misconduct occurred.

In September 1997, when he was 17 years old, Peterson exhibited deviant sexual behavior while at a foster home.  In response to an Internet advertisement, Peterson wrote a letter affirming that he is “all for Child Pornography” and he “think[s] that it shouldn’t be looked at so seriously.”  He described minors’ “hairless bod[ies]” as “just plain beauty” and stated that he would likely order more than 100 pictures of minor males. Peterson also claimed that he had two sons, of whom he purported to have “pictures you will dro[ol] over!” Peterson signed the letter “Dwane DeStefano.”  During the same month, Peterson’s foster father received a telephone call from a young male who asked to speak to Peterson.  The foster father briefly posed as Peterson because the call seemed unusual.  The male caller indicated that he was a runaway and said he wanted to speak with Peterson about “professional services” for 12- to 15-year-old males.  The foster parents also found an advertisement Peterson had for a video collection about Canadian nudists.  The advertisement had little text but featured multiple images of nude children and adults.

InOctober 1999 Peterson’s behavior became more peculiar. He began writing and calling a boy in Phenix City, Alabama.  Peterson did not know him, but the boy had participated in a nationally televised sporting event.  Peterson told the boy that he was a sports reporter for the Star Tribune.  Peterson then wrote the boy a letter stating that he needed permission to use their conversations in his article.  He also asked for a recent school picture.  Peterson asked the boy whether he knew any of the Minnesota Vikings, and then claimed to be supporting a National Football League “Dream Camp” to which he was bringing two high-profile professional players.  When police spoke to Peterson after the boy’s mother complained, he admitted to writing and calling the boy, and to lying about his identity.  Policetold Peterson not to contact the family, but he sent another letter.  He also called two ofthe boy’s teammates.  He told one of the boys to move to a room where no one could hear him and then asked him how he was disciplined at home.  Peterson hung up when the boy’s mother got on the line.  Peterson told police that he had no intent to go to Alabama.  But in July 2000, Peterson was arrested in Phenix City.  He was carrying a notebook that had the names of the boys he had contacted.

In the fall of 2000, 20-year-old Peterson befriended A.P., a 9-year-old boy who frequently played at his elementary-school playground and a park near the school.  A.P.’s friend testified that Peterson focused mostly on A.P.  Peterson carried a backpack filled with soda, candy, stickers, and a bracelet, all of which he gave to A.P.  Peterson also took photographs of A.P., including one in which he instructed A.P. to remove his shirt and flex his muscles.  When A.P. mentioned to his parents that an older boy was at the park, his mother immediately went to the park to meet him.  A.P.’s mother testified that Peterson became “very stiff” as she approached.  The next day Peterson gave A.P. a letter to take to his parents.  The letter represented that Peterson was a student at the local university, needed to participate in a mentoring program like the Big Brothers program, and wanted to mentor A.P.  A.P.’s parents told A.P. he could not be alone with Peterson. Later that day, from their home, A.P.’s mother watched A.P. play at the park.  When she saw A.P. and Peterson move away from the other children, she went outside and called to A.P.  She testified that both A.P. and Peterson apparently heard her and looked toward her.  Peterson then picked A.P. up by his ankles, carried him away from her, and moved behind a large tree.  As she quickly approached, Peterson and A.P. appeared from behind the tree, and Peterson walked away.  A.P.’s parents notified police, who confirmed that Peterson was neither a student at the university nor a Big Brothers volunteer.

The next afternoon A.P.’s mother walked A.P. home from school.  She testified that she specifically watched for Peterson, but she did not see him.  They entered their home, and within seconds Peterson was at the door.  He handed A.P.’s parents five pages of forms purporting to be official documents for the Big Brothers program.  He repeated that he attended the university and conjured the name of an instructor.  He put his foot in the door and asked to enter.  When A.P.’s father refused, Peterson tried to poke his head inside and said hello to A.P., whom his mother had taken out of sight.  A.P.’s parents spoke to A.P. and confirmed that his only physical contact with Peterson occurred while playing football.  A.P.’s parents soon discovered that Peterson had told people he was related to A.P. and that he told a coworker that he planned to “adopt a little boy soon.”

In November 2000 Peterson mailed A.P. a letter attempting to entice him to telephone him.  A.P.’s parents intercepted the letter and again notified the police.  They also obtained a harassment restraining order against Peterson effective until December 2002.  Peterson violated the order and wrote a letter to A.P.’s parents in April 2002, referring to an incident in which A.P. was allegedly in Peterson’s car.  Peterson wrote that A.P. might not remember because “he had a lot of soda among ‘other things.’”  He continued, “To me it was the perfect opportunity but as we pulled onto the bridge I had a change of heart. . . . Those pictures could get into the wrong hands or the wrong web site really.”  He then demanded separate apologies from A.P. and each of his parents, and he suggested that because “I didn’t go through, I guess you also owe me a thanks, huh?”  A.P. testified that he has never been in Peterson’s car and that he never had any sexual contact with him.

In December 2000 Peterson was arrested at the Mankato Salvation Army on an outstanding warrant.  Police officers found a four-year-old boy in Peterson’s vehicle.  Peterson was an acquaintance of the child’s aunt and had told the boy’s mother that he was taking the boy to the YMCA where he was employed.  Peterson told Salvation Army employees a different story, claiming that he was bringing the boy to his father’s workplace.  Peterson was not a YMCA employee, and the boy’s mother established that his father was not in his life and did not work in Mankato.  In the same month the YMCA obtained a harassment restraining order against Peterson because he had been telling people that he was a YMCA employee or volunteer.  Employees had observed Peterson loitering inside and outside the building, and they frequently saw him watching young boys play basketball.

In July 2001 Peterson kidnapped an elderly man at gunpoint and stole his car.  A jury convicted him of multiple charges, but in January 2004 the supreme court reversed the convictions because of a jury-instruction error.  State v. Peterson, 673 N.W.2d 482, 487 (Minn. 2004).  Peterson eventually pleaded guilty to kidnapping and aggravated armed robbery in July 2004.  While in jail and prison for these offenses, Peterson continued to contact boys, wrote sexually explicit journal entries and stories, and otherwise demonstrated a fixation with young boys.

Much of the record involves Peterson’s self-described obsession with B.B., a 14-year-old boy.  Peterson once helped B.B. look for a lost jacket at the YMCA.  Despite having only this brief interaction with B.B., Peterson began to write repeatedly to him and about him, and he telephoned him on multiple occasions.

In April and May 2002 Peterson wrote to B.B.  In the first letter Peterson wrote, “What I’m hoping for is that you’ll read my letters and by my ex[peri]ences you’ll better yourself in school, at home, and even on the [basketball] court.”  He discussed being in prison and his background.  In the second letter, he wrote that he should not be in prison and stated, “Again my goal [B.B.] is to let you see me for what I am.”  The letter is crafted in a tone of familiarity and includes several personal details about B.B., asking about his brother and his involvement with specific sports teams.  Peterson claimed that a company had agreed to help him sell music that he had written and enclosed song lyrics for B.B.’s review.  B.B. read the first letter.  His parents intercepted the second.

In February 2003 Peterson sent two more letters to B.B.  The letters referred to Peterson sexually assaulting B.B. and being in love with him.  He wrote, “I have this feeling in my stomach that needs you real bad.”  Perhaps to avoid interception and review by prison officials, Peterson addressed one letter to “Attorney [B.B.]” and wrote on the envelope that it contained legal documents.  About one week after he mailed the first letter, Peterson called B.B.’s home 13 times within 13 minutes. B.B. answered the phone four times, but hung up each time that he determined that the call was coming from a correctional facility.  B.B. took the receiver off the hook to avoid receiving the calls.  B.B.’s mother intercepted the letters, but she spoke to B.B. and concluded that he had never had sexual contact with Peterson.  Peterson was directly ordered to cease all communications with B.B.’s family.

In March 2003 Peterson sent the Blue Earth County Sheriff’s Office a letter and a sexually explicit story he wrote entitled, “A Boy Story.”  The story features Peterson and an 11-year-old B.B. meeting at the YMCA, professing their love for one another, and having a sexual relationship.  Peterson wrote two other stories featuring a sexual relationship between Peterson and B.B.

Despite multiple orders to have no contact with B.B., B.B.’s family, or any juveniles, Peterson continued to try to contact him.  In a May 2003 letter to B.B., Peterson wrote, “If you [are] reading this it’s nothing short of a miracle,” and he continued to imply a sexual relationship existed between the two.  In August 2003 he wrote to B.B. and his mother separately.  To B.B. he wrote, “I do love you kiddo . . . . No matter how far apart we are, I can still feel your smooth skin, and see those very beautiful and intriguing eyes of yours looking into mine.  And then all the world feels right.”  He wrote to B.B.’s mother that he “refuse[s] to admit what happened was a mistake.”  He then claimed that B.B. had sent him a birthday card and requested permission to have written contact with B.B.  B.B.’s family did not receive these letters.  Later that month Peterson wrote to the county sheriff claiming that B.B. would not leave him alone and requesting that the sheriff press charges against B.B.  In May 2004 B.B.’s mother reported receiving more calls from Peterson.

Corrections staff often found other letters written to B.B. in Peterson’s cell, including several with B.B.’s first name written largely in what appeared to be blood.  Peterson’s writing frequently had a violent and urgent tone, with statements exalting B.B. followed by statements such as “[e]ither he has to die, or I have to.”  He wrote, “I’m needed in [B.B.’s] life” and, “I need you so bad.  You are like my food.  I can’t live without you.  I tremble at the thought.”  Peterson wrote of the need to “sacrifice” B.B.’s mother and, in graphic detail, wrote about killing B.B.’s brother.  He wrote to the court requesting birth records for B.B., B.B.’s brother, and any other children born to their mother.

When discussing B.B. during a mental-competency evaluation in June 2004, pending his retrial for the kidnapping offense, Peterson told the evaluator that he loves and hates B.B.  He explained that “the obsession became so bad . . . I couldn’t control it.”  He stated that the letter he sent to B.B.’s mother claiming he sexually assaulted B.B. “was a desperate way to put our names together.”  He told her that the morning of the offense he had decided to return to Florida, where he had lived briefly, and that “[B.B.] had to come with me. . . . I wanted to take care of him.” He also told the evaluator that he planned to represent himself at his retrial and would subpoena B.B. because he “just want[s] to see him [and] ask if he remembers what I wrote.”  At the civil-commitment hearing, Peterson sought to recall A.P. and B.B. as witnesses so he could personally cross-examine them.  The court denied the request.

The record also contains several references to another boy, S.B.  Peterson wrote of a sexual relationship he allegedly had with S.B., a seventh grader, when Peterson was in tenth grade.  Peterson wrote that S.B.’s family moved to New Jersey and S.B. committed suicide.  Although Peterson contends that S.B. is fictional, a person with the name S.B. exists.  This S.B. did not move and is alive.  After writing that A.P. “is my lover” Peterson wrote, “I keep trying to replace [S.B].”  He once wrote that B.B. was a desperate attempt to replace S.B.  In June 2003 Peterson sent a letter to a man he did not know because he had the same last name as S.B.  Peterson alleged that he had received mail from B.B. in May, and he cryptically wrote that “[b]y that date bu[si]ness should have been taken care of.”  He questioned whether some money was accounted for, what had happened to a contact in Mankato, and what the latest news was on the county’s investigation of his relationship with B.B. Petersonthen wrote, “The other boy is a huge problem and I want it taken care of” and “I don’t need the deaths to come out, do you understand me?”  Peterson closed the letter by writing, “Remember, secrecy is our number one rule.  It’s the most sacred boylove rule.  We’re in each other’s confidence.”

In late May 2004 Peterson began trying to contact T.T., a 13-year-old boy in Connecticut.  Peterson had never met him, but his family had recently been featured on a national television program.  In the span of five days, Peterson called the home 53 times.  T.T.’s sister accepted one call.  Peterson identified himself and said that T.T. had information that would help his court case.  T.T.’s father accepted a call the same day.  Peterson would not identify himself, and T.T.’s father told him not to call anymore.

Peterson continued to call.  When no one answered the calls, instead of leaving his name in the recorded statement of the collect call, Peterson testified that he “tried to leave short little messages . . . that might be picked up by their answering machine.”  The messages included “[T.T.] has secrets” and “I expect to speak to [T.T.].”  T.T. heard these messages and became upset.  Peterson also wrote three letters to T.T., although only one made it out of the jail.  In the letter received by T.T., but intercepted by his parents, Peterson wrote, “I’m coming to [the city where you live] as soon as I get out.  I’ll never forget our first experience.”  Jail officials intercepted another letter, and Peterson requested the third letter back before it was mailed.  In one letter Peterson related a dream he had in which T.T. looked “sexy,” and he wrote, “I need you so bad it causes me to hurt.”  He told T.T. that T.T. might be in danger, and added, “[I]f you want to come and live with me, well all you have to do is ask.”  In the other letter, he asked why no one was accepting his calls.  He then stated that he is a member of the North American Man-Boy Love Association and was worried because he told another member about T.T. and now thought that the man might hurt T.T.  Peterson offered no explanation when confronted with his behavior.  In August 2004 Peterson violated a no-contact order and wrote to T.T.’s father.

Peterson spent a significant amount of time in prison writing.  He sent many internal notes to corrections personnel in which he alternately admitted and denied having sexual relations with minors and made other allusions to sexual behavior with minors.  He wrote to a sergeant offering to “trade information” about “another boy-lover.”  He wrote a “fact sheet” about “pedoiania,” an apparent religion he created that has a core belief that “God gives us a child to love unconditionally as a mate until their adulthood.”  He wrote to the National Association for Research & Therapy of Homosexuality, stating, “In a way my problem is homosexuality, but it’s a severe attraction to children.”  He wrote a “self-evaluation” explaining how he meets the criteria for pedophilia.

Peterson exhibited additional behavior in jail and prison that demonstrated an unhealthy interest in young boys.  Because of his behavior, Peterson received a direct order to cease all communications with any juvenile unless he had written consent from the juvenile’s legal guardian.  Peterson violated the order and wrote to two teenage male singers and to a boy in Florida who had received publicity for a crime.  He somehow obtained the address of one of the singer’s grandparents and sent the letter to their home.  In the letter Peterson wrote of having a sexual encounter with the singer when the boy was 11 years old.  In his letter to the other singer, Peterson noted their eight-year age difference and wrote, “I do love you and think we could handle a private relationship until you reach maturity.”  Peterson asked whether he should go to the singer’s Florida or California home when he leaves prison. Corrections officials intercepted another letter to a juvenile whom he did not have permission to contact.  He wrote to the New York Times requesting pictures of multiple young male celebrities.  He had magazine subscriptions for Parent and J-14.  He requested that the library obtain a specific book about swimming for him, even though the book information was not available in the library’s listings.  The book contains many pictures of children in bathing suits.

In Peterson’s cell, corrections staff repeatedly found notebooks filled with pictures of young boys that he had torn out of magazines and catalogs.  They also found two address books filled with numerous addresses for juveniles, elementary schools, middle schools, junior highs, youth organizations, and a child-development center.  Peterson’s explanation was that he was retaking his SAT examination and planned to ask the schools for used textbooks and study guides.

Peterson was scheduled to be released from prison in December 2005.  After seeing a news report about Peterson’s pending release, a woman contacted police about an incident involving Peterson in 2000 or 2001.  Peterson’s foster family lived next door, and Peterson befriended her son, who was then about 12 or 13 years old.  She stated that Peterson frequently asked to take her son on outings off of their property, and she never gave him permission.  Peterson gave her son a baseball mitt that she made him return. One day she agreed to drive Peterson and her son to an event at a store.  She dropped them off, said she would return in about 30 to 45 minutes, and told them not to leave.  When she returned, they were gone.  After a frantic search, she reached her son by phone and learned that Peterson had taken him to the mall.  When she arrived to pick him up, she found that Peterson had left the boy alone at the mall.

Thedepartment of corrections’ end-of-confinement review committee designated Peterson a risk-level-III offender.  After the county filed its petition for civil commitment, the district court appointed two clinical psychologists to examine Peterson.  The county also retained a third clinical psychologist, who has served as a court-appointed examiner in numerous civil-commitment cases, to review Peterson’s case.  All three psychologists agreed that Peterson satisfies the statutory criteria for commitment as a sexually dangerous person.  They diagnosed him with multiple mental disorders, including pedophilia, erotomania, sexual sadism, a major depressive disorder, an anxiety disorder, an anti-social personality disorder, a borderline personality disorder, and a narcissistic personality disorder. These disorders, they opined, result in Peterson having inadequate control over his impulses, making it highly likely that he will engage in harmful sexual conduct in the future.  Peterson testified that he merely pretended to have pedophilia while incarcerated, first to build a defense for his kidnapping retrial and then to remain in the mental-health unit.  He claimed it was all just a “game.”

A few weeks after the civil-commitment hearing, the district court granted the county’s motion to reopen the hearing.  While on a hold order at the state sex-offender program, a program staff member found contraband in Peterson’s room during two searches.  Peterson had 12 videotapes commercially packaged as mainstream movies, but he had recorded over the films.  The videotapes instead contained hundreds of short clips of children, mostly boys, from advertisements, television shows, and films.  In many of the clips, the children are wearing little clothing.  One tape included several clips of local news coverage of B.B.’s sporting events.  Program staff found a handwritten list of local high-school athletes in Peterson’s room.  They also intercepted a package to Peterson that included 770 pictures of young boys.

Peterson continued to write while at the program.  He wrote to the mother of a recently deceased boy whom he had learned about on the news, asking for a picture of the boy.  He wrote a new story, “A Boy Story 2,” that featured him having a sexual relationship with the friend of A.P. who testified at the commitment hearing.  Peterson also wrote to all of the psychologists who testified at his hearing.  Although he contested the need for commitment, he admitted that he has problems with boundaries and has “issues to work out with relation to juvenile boys.”

The district court found that Peterson satisfied the statutory criteria for a sexually dangerous person and committed Peterson to the Minnesota Sex Offender Program for an indeterminate period.  Peterson appeals.

D E C I S I O N

A sexually dangerous person is a person who has engaged in a course of harmful sexual conduct, has manifested a sexual, personality, or other mental disorder or dysfunction, and as a result, is likely to engage in future acts of harmful sexual conduct.  Minn. Stat. § 253B.02, subd. 18c(a) (2006).  Although the county need not prove that the person is unable to control sexual impulses, the existing disorder or dysfunction must result in inadequate control, making it highly likely that the person will reoffend.  Id., subd. 18c(b) (2004) (stating that inability to control impulses is not required); In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (requiring high likelihood of recidivism).  The district court may order commitment as a sexually dangerous person if the county proves the need for civil commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1(a) (2006).  We will affirm the district court’s factual findings unless they are clearly erroneous, and we defer to the district court on matters of credibility.  In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  Whether the factual findings satisfy the statutory requirements for civil commitment, however, is a question of law subject to de novo review.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

Peterson first argues that civil commitment as a sexually dangerous person requires evidence of an overt act of dangerousness.  We decline to address the argument because Peterson raises it for the first time on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (declining to address issue not presented to district court).  We therefore turn to the only sexually-dangerous-person element that Peterson challenges: the sufficiency of the evidence to establish that he engaged in a course of harmful sexual conduct.

Harmful sexual conduct is “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.”  Minn. Stat. § 253B.02, subd. 7a(a) (2006).  The Minnesota Commitment and Treatment Act establishes a rebuttable presumption that conduct is harmful sexual conduct when a person engages in conduct described by the statutes defining criminal sexual conduct in the first through fourth degrees.  Id., subd. 7a(b).  The act also establishes a rebuttable presumption for conduct described by 17 other statutes when the conduct “was motivated by the person’s sexual impulses or was part of a pattern of behavior that had criminal sexual conduct as a goal.”  Id.  A course of harmful sexual conduct is a sequence of acts that each creates a substantial likelihood of serious harm.  In re Civil Commitment of Stone, 711 N.W.2d 831, 837-38 (Minn. App. 2006), review denied (Minn. June 20, 2006).  Incidents establishing the course of conduct need not be recent, and the court may consider conduct that did not result in a criminal conviction.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002) (stating court may consider conduct that did not result in conviction), review denied (Minn. Sept. 17, 2002); In re Irwin, 529 N.W.2d 366, 374 (Minn. App. 1995) (stating that conduct need not be recent), review denied (Minn. May 16, 1995).

The district court found that, even if Peterson had no physical sexual contact with children other than in his early childhood, he engaged in a course of harmful sexual conduct involving a sequence of sexually motivated stalking or harassment.  The presumption of harmful sexual conduct applies to conduct that was sexually motivated or part of a pattern of behavior with criminal sexual conduct as a goal when the person engaged in stalking or harassment as described in subdivisions 3 or 5 of Minnesota Statutes section 609.749.  Minn. Stat. § 253B.02, subd. 7(b).

Subdivision 3 addresses aggravated violations of the stalking-and-harassment statute and prohibits committing any offense described in subdivision 2 of the section when the victim is under 18 and the actor is more than 36 months older than the victim.  Id. § 609.749, subd. 3(a)(5) (2006).  Subdivision 2 prohibits harassment in the forms of directly or indirectly manifesting a purpose or intent to injure a person; stalking, following, or pursuing another person; repeatedly making telephone calls; making or causing another person’s telephone repeatedly or continuously ring; and repeatedly mailing or delivering, or causing the mailing or delivering, of letters.  Id., subd. 2(a)(1)-(2), (4)-(6); see also id., subd. 1 (defining harassment as intentional conduct that actor knows or has reason to know under circumstances would cause victim to feel frightened, threatened, or intimidated, and that causes this reaction).

Subdivision 5 of section 609.749 describes a pattern of harassing conduct, stating that

[a] person who engages in a pattern of harassing conduct with respect to a single victim or one or more members of a single household which the actor knows or has reason to know would cause the victim under the circumstances to feel terrorized or to fear bodily harm and which does cause the reaction on the part of the victim, is guilty of a felony.”

 

Id., subd. 5(a).  A “pattern of harassing conduct” is defined as “two or more acts within a five-year period that violate or attempt to violate” specific laws, including any part of section 609.749.  Id., subd. 5(b).

Clear and convincing evidence supports the district court’s determination that the presumption of harmful sexual conduct applies to Peterson and that Peterson engaged in a course of harmful sexual conduct.  Peterson made repeated unsolicited, undesired contacts, by telephone and by mail, with several minor children and their families, instilling fear.  See State v. Collins, 580 N.W.2d 36, 42 (Minn. App. 1998) (holding that two letters were sufficient to satisfy “repeatedly” requirement of felony-harassment statute), review denied (Minn. July 16, 1998).  B.B. testified with a physical barrier between him and Peterson because he was too afraid to see Peterson.  He testified that he found the calls and letters from someone he did not know to be surprising and scary.  When asked about his reaction when he learned of the Peterson’s prison writings, he testified that “it just scares me.”  A.P. became upset and questioned why someone might try to hurt him.  T.T. was upset and frightened by the multiple messages Peterson left on his answering machine.  Peterson’s actions also frightened these boys’ families, naturally.

The record amply demonstrates a sexual motivation behind Peterson’s conduct.  The district court did not find Peterson’s testimony credible.  One of the psychologists testified that Peterson “is singularly the most sexually preoccupied individual that I am aware of in my experience.”

Peterson suggests that he rebutted the harmful-sexual-conduct presumption because the evidence established that no physical sexual contact occurred and that any harm that resulted was not caused by Peterson’s conduct, but by the reactions of third parties who communicated their fear to the minors.  This assertion is objectively incredible in light of the facts.  First, physical harm is not the appropriate standard.  Rather, the focus is properly on Peterson’s conduct and whether the conduct created a substantial likelihood of serious physical or emotional harm.  In re Civil Commitment of Martin, 661 N.W.2d 632, 639 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  Second, Peterson greatly minimizes his conduct by arguing that he only wrote a few letters that were received by the intended recipients and that he was committed based only on his thoughts.  He did more than write a few letters.  He repeatedly called and wrote to children with whom he had a sordid obsession, and to their families, despite numerous no-contact orders.  He lied about his identity in an attempt to gain private access to A.P.  He indicated that he sexually assaulted A.P., B.B., and T.T.  The implication that a likelihood of serious harm can develop only if the young boys’ parents let their children read mail and accept telephone calls from an adult prisoner is unreasonable, as is the implication that these parents should not have questioned their children when this same man suggested that he had sexually assaulted them.  One of the testifying examiners opined that if Peterson had targeted boys from dysfunctional homes, he would have completed a sexual assault.  The parents may have communicated some fear to their children, but this fear was directly traceable to and caused by Peterson’s conduct.  Peterson did not rebut the presumption that he engaged in harmful sexual conduct.  And his multiple incidents of harmful sexual conduct with different victims support the district court’s finding that he engaged in a course of harmful sexual conduct.

Affirmed.