Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Peter J. Stiehm, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent Hennepin County)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.

This is an appeal from a commitment as a sexual psychopathic personality and a sexually dangerous person. Because the evidence supports both commitments, we affirm.

While incarcerated Shaw was ordered to cease written and telephone contacts with females in the community. He was discharged from the Transitional Sex Offender Program in 1982 as a program failure due to harassing phone calls. In 1983 and 1984, Shaw was terminated from two separate residential chemical dependency treatment programs for failure to comply with program guidelines. In 1985 Shaw completed a residential chemical dependency treatment program, but was arrested twice during that period for driving while under the influence. In late 1985 Shaw was charged with two separate instances of fleeing a police officer. In 1986 Shaw was placed in a fourth residential chemical dependency treatment program by his probation officer. He absconded and within one month was arrested and charged with the rape of a woman in Superior, Wisconsin. Shaw pleaded guilty to third degree sexual assault. Following his incarceration in Wisconsin, Shaw was returned to prison in Minnesota for violation of parole on his 1977 conviction.

In 1987 Shaw resumed attempts to contact women through newspaper ads, random telephone calls, and letters. In 1988 Shaw entered a combined program for chemical dependency treatment and sex offender therapy in prison. He voluntarily left the program after being confronted with allegations of making obscene phone calls, and he refused to participate in a separate treatment program. In 1990 Shaw was paroled to a residential transitional sex offender program, but absconded a month later and was subsequently charged with fifth degree assault against his wife. He fled to Georgia, was arrested, and sent back to prison in Minnesota as a parole violator. Again Shaw resumed attempts to contact women from prison and received a direct order in 1991 to cease writing letters.

In both 1993 and 1994, Shaw entered transitional programs for sex offenders but failed to complete the programs. In 1995 Shaw again violated orders by responding to newspaper ads and making threatening phone calls. That year a petition was filed to commit Shaw as a sexual psychopathic personality and a sexually dangerous person.

Three medical professionals testified at Shaw's commitment hearing: Marie Weigum, a clinical social worker; Stephen Huot, director of the sex offender and chemical dependency services unit of the Department of Corrections; and Dr. Thomas Alberg, the court-appointed psychologist. Shaw and his fiance, Linda Vanseth, also testified.

Weigum saw Shaw in four individual counseling sessions between July and October 1994. She testified that Shaw was unreceptive to treatment and that she believed Shaw would reoffend based on two "prognostic signs"--the speed with which he has reoffended in the past and the fact that he has engaged in inappropriate behavior while in treatment. Based on these indicators, as well as Shaw's inability to benefit from treatment and his lack of victim understanding and empathy, Weigum assessed Shaw's risk of reoffending as "high."

Huot testified to Shaw's results on the Sex Offender Screening Tool used by the Department of Corrections. The screening tool uses a point system to weigh various characteristics--number of offenses, types of offenses, offenses after treatment, etc. The aggregate score has been shown to correlate with recidivism. Shaw's score on the screening tool was 71. According to Huot, at 47 or more points the tool gives "relative improvement over chance." (62% of prisoners scoring 47 or higher have reoffended.)

Alberg met with Shaw twice and reviewed all the materials in his record. Alberg testified that the MMPI-2 given to Shaw on May 31, 1995, indicated narcissistic and antisocial features of his personality. From his review of the record and his interviews with Shaw, Alberg diagnosed Shaw as having paraphilia, sexual sadism, on Axis I and antisocial personality disorder on Axis II. Alberg testified that Shaw "fits in the subcategory [of anti-social personality disorder] of being a psychopath * * *," and because of his psychopathic traits is "extremely likely to reoffend." Alberg further based his prediction that Shaw would reoffend on Shaw's past behavior inside and outside the prison system and his score of 35 on the Hare psychopathy checklist. Alberg testified that one of the "best predictors of sexual offender recidivism is scoring above 30 or more on the Hare psychopathy checklist."

Based on the evidence and testimony, the district court found that Shaw met the requirements for commitment as a sexual psychopathic personality and as a sexually dangerous person. Shaw now appeals.

the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person's sexual impulses and, as a result, is dangerous to other persons.

Minn. Stat. § 253B.02, subd. 18a. A commitment requires "an identifiable and documentable violent sexually deviant condition or disorder." In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994), cert. denied, 513 U.S. 849 (1994).

Shaw's appeal challenges the validity of opinions as to future harm offered by three medical professionals who testified at his hearing. He argues that their opinions are unsubstantiated because of defects in the tests they used. Specifically, he asserts that "no recent diagnostic testing was performed," that there was "no foundation for a conclusion that the MMPI was appropriately administered or scored," that the Millon Inventory was not given, that the Hare Inventory is corroborative rather than predictive, and that the Department of Corrections' Sexual Offenders Screening Tool is an imperfect research tool that includes a number of invalid factors that are not predictive of future dangerousness. In sum, Shaw argues that "[b]ased on the lack of diagnostic testing, the County has failed to prove by clear and convincing evidence that the Appellant would be a danger to others if released." We disagree.

The evidence necessary to support a SPP commitment may come from a number of sources, not just objective, diagnostic tests. In Linehan I, the supreme court indicated that the district court, in predicting serious danger to the public, should consider certain factors if such evidence is presented:

(a) the person's relevant demographic characteristics (e.g., age, education, etc.); (b) the person's history of violent behavior (paying particular attention to the recency, severity, and frequency of violent acts); (c) the base rate statistics for violent behavior among individuals of this person's background (e.g., data showing the rate at which rapists recidivate, the correlation between age and criminal sexual activity, etc.); (d) the sources of stress in the environment (cognitive and affective factors which indicate that the person may be predisposed to cope with stress in a violent or nonviolent manner); (e) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (f) the person's record with respect to sex therapy programs.

Linehan I, 518 N.W.2d at 614. The court noted that it would review whether these factors had been considered, "particularly where * * * there is a large gap of time between the petition for commitment and the appellant's last sexual misconduct." Id.

The district court's determination reflects consideration of these multiple factors. The court was not required to base its decision to commit Shaw on particular test results. While the validity of techniques used to evaluate an individual before commitment clearly might affect the district court's weighing of evidence and testimony, it is not a factor that requires a specific finding. In addition, the testimony of the medical professionals demonstrates that their evaluations were not based solely on the analysis of test results, but rather involved consideration of multiple factors.

Even if Shaw could demonstrate that the statistical methods employed in some of the testing mechanisms (e.g., the Sex Offender Screening Tool or the Hare checklist) were wholly invalid and unreliable, that would not necessarily be determinative because the test results are only one part of all the evidence the court is to consider. See In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan II) (there is "no statutory or precedential support for the argument that actuarial methods or base rates are the sole permissible basis for prediction.") This court has upheld a commitment when no base rate statistics were considered by the district court. See In re Pirkl, 531 N.W.2d 902, 909 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).

The district court concluded, based on the testimony of Dr. Alberg, that Shaw suffers from a sexual disorder (paraphilia, sexual sadism) and a personality disorder (antisocial personality disorder). Dr. Alberg's expert opinion was based on his review of Shaw's entire record, including various diagnostic tests, and two interviews with Shaw. In addition, the district court considered Shaw's lengthy record of sex offenses, his lack of self-awareness or responsibility, and his numerous failures with treatment. Because the evidence supports the district court's conclusion that Shaw presents a serious danger to the public based on the factors outlined in Linehan I, we affirm his SPP commitment.

(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;

(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 as defined in subdivision 7a.

Minn. Stat. § 253B.02, subd. 18b(a). "Likely" to engage in harmful acts does not simply mean "more likely than not." Rather, the supreme court has determined that the statute requires "that future harmful sexual conduct must be highly likely in order to commit a proposed patient under the SDP Act." Linehan II, 557 N.W.2d at 180 (emphasis added).

Because this case came before the district court in May 1996, the court did not have the benefit of Linehan II (issued in December 1996) in making its conclusions of law. The court found that Shaw "is likely to engage in future acts of harmful sexual conduct." (Emphasis added). Ordinarily, the fact-based inquiry to determine whether the evidence meets such a standard is the province of the district court. But because neither party argued for remand on appeal, and because the evidence supports the conclusion that Shaw is highly likely to engage in future harmful sexual conduct, we affirm Shaw's commitment as a sexually dangerous person.

The supreme court in Linehan II stated that "the guidelines for dangerousness prediction in Linehan I apply to the SDP Act." Id. at 189. Therefore, to determine whether a person is "highly likely" to reoffend, the district court should look to demographic characteristics, the history of violent behavior, base rate statistics, sources of stress in the environment, the context of release, and the treatment record. Linehan I, 518 N.W.2d at 614.

Shaw has an extensive history of sexual violence against women. The documented evidence shows that he was charged with varying degrees of sexual assault in five separate incidents. Some of the incidents involved kidnapping and use of deadly weapons. Even while incarcerated, Shaw continually violated orders to cease sexually harassing women through phone calls and letters.

To the extent that the Sex Offender Screening Test and the Hare checklist rely on "base rate statistics," they suggest that Shaw is highly likely to reoffend based on his test results. Dr. Alberg testified that one of the "best predictors of sexual offender recidivism is scoring above 30 or more on the Hare psychopathy checklist." Alberg administered Shaw's test and determined that his score was 35. Shaw's score on the Sex Offender Screening Test was 71. Validity tests for the screening test have demonstrated that individuals with a score of 47 or higher are probable reoffenders.

The likelihood that Shaw would reoffend if released is significantly increased by his well-documented tendency to return to chemical abuse when in an environment outside prison. He has continually either refused treatment or failed to participate successfully in chemical dependency treatment programs. Shaw was arrested twice for driving while under the influence during his residence at a facility for chemical dependency treatment. Shaw's multiple failed attempts at treatment for chemical dependency evidence a lack of responsibility and a heightened risk that Shaw will be unable to control his sexual impulses outside prison. The context of Shaw's release would provide no obstacles to a return to chemical abuse and sexual hostility directed toward women.

Moreover, Shaw has demonstrated no progress in sex offender treatment. To the contrary, Shaw has either dropped out of or been terminated from a long list of sex offender treatment programs. Even while in treatment, he engaged in sexually inappropriate conduct. Both Weigum and Alberg concluded that Shaw lacks self-awareness; has not assumed responsibility for his aggressive, sexual acts; exhibits little victim empathy; and has failed to benefit from sex offender treatment.

Finally, in the opinion of Weigum, Shaw was at "high risk" to reoffend. According to Dr. Alberg, Shaw exhibits traits of a violent narcissist and a psychopath. Alberg testified that violent narcissists are "much more likely" to reoffend and psychopaths are "extremely likely" to reoffend.

We conclude that Shaw's history of violent sexual behavior, his scores on objective tests intended to gauge the likelihood of recidivism, his unwillingness to treat his chemical dependency, the lack of any obstacles in his environment upon release to a return to chemical abuse or sexual misconduct, his failure in multiple sex offender treatment programs, and the professional assessments of Weigum and Alberg, all combine to demonstrate that Shaw would be highly likely to engage in sexually harmful conduct if released from confinement. We therefore affirm his commitment as a sexually dangerous person. See Linehan II, 557 N.W.2d at 190 ("APD [anti-social personality disorder] and the enduring pattern of behavior it can cause makes Linehan highly likely to sexually harm others in the future.")

Affirmed.