Gregory R. Solum, 5275 Edina Industrial Boulevard, Suite 105, Edina, MN 55439 (for appellant James D. Creighton)

Michael O. Freeman, Hennepin County Attorney, Peter Stiehm, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Parker, Presiding Judge, Davies, Judge, and Foley, Judge.[*]

James Creighton appeals from his initial and indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). Creighton argues that the district court did not have clear and convincing evidence to show he met the standards for initial commitment. He also challenges his indeterminate commitment. Finally, he raises several constitutional issues. We affirm.

I.

Creighton was committed indeterminately as a sexual psychopathic personality.

"Sexual psychopathic personality" means 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 (1996).

While Creighton does not argue that the evidence was insufficient to show the four statutory conditions were met, he challenges whether there was evidence showing that these conditions made him "irresponsible for personal conduct with respect to sexual matters." Id. The district court cited testimony by the first and second court-appointed examiners, Dr. Thomas Alberg and Dr. Roger Sweet, who concluded this factor was met. Dr. Alberg cited Creighton's lack of an attempt to control any of his impulses and his inability to do so, while Dr. Sweet referred to his repetitive history of sexual offenses. The district court had clear and convincing evidence to support its findings.

Creighton also argues that the type of sexual misconduct he committed was not the type of "violent behavior" to which the statute applies. The psychopathic personality statute does not apply to every person guilty of sexual misconduct or even to persons having strong sexual propensities. In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994). Instead, it applies to "an identifiable and documentable violent sexually deviant condition or disorder" when the sexual misconduct has a substantial likelihood of causing serious physical or mental harm to the victims. Id. (citation omitted).

While Creighton acknowledges that he may have caused physical harm by his size (the record indicates that at age 15 he was 6 feet 3 inches tall and weighed 290 pounds) when he engaged in intercourse with several of his smaller victims, he contends he is not violent because he did not torture or batter his victims. The relevant question, however, is whether there was a substantial likelihood of serious physical or emotional harm. Id. The district court referred to the "profound psychological devastation" inflicted by Creighton's behavior, the force he used, and the size differential between Creighton and his victims. These findings, supported by the evidence, show Creighton posed a substantial likelihood of causing serious physical or emotional harm.

Creighton admits that he has engaged in a habitual course of misconduct in sexual matters. Minn. Stat. § 253B.02, subd. 18a. In any event, the court found this factor was met by evidence of his long history of sexual misconduct, the early onset of his behavior at age nine, and the recency of his last offense.

Creighton's next challenge goes to whether he exhibited an utter lack of power to control his sexual impulses. Id. The supreme court has set out a number of factors to consider in determining whether an utter lack of power to control exists. In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 115 S. Ct. 146 (1994). The district court found that Creighton displayed an utter lack of power to control his sexual impulses, specifically citing the nature and frequency of his sexual acts upon very young victims and family members, the use of his large size to intimidate small victims, and his lack of victim empathy. The district court determination is supported by the evidence and is not clearly erroneous.

Next, Creighton challenges whether his condition rendered him "dangerous to other persons." Minn. Stat. § 253B.02, subd. 18a. The supreme court has provided a number of factors the district court should consider in assessing the risk of serious danger to the public if the person were released. Linehan I, 518 N.W.2d at 614. The district court considered numerous facts, including that Creighton showed no insight or remorse for his behavior and that research literature predicts that people who are considered clinically psychopathic are the most likely to continue to reoffend. The court concluded that the record showed by clear and convincing evidence Creighton was dangerous to other persons, particularly small children, because he has not completed treatment and he reoffended even in treatment and corrections settings, most recently a year prior to the hearing. The district court's findings are not clearly erroneous and show this factor was met.

Finally, Creighton contends there was a lack of causal nexus between his problem behaviors, diagnosed condition or disorder, and risk of future harm. He contends testimony shows his impulsive misconduct was of a "global variety" and not only sexual in nature. For example, Dr. Sweet made an additional diagnosis of impulse disorder not otherwise specified because Creighton's impulsive behavior was pervasive in all aspects of his life.

There is no dispute that Creighton exhibited a habitual course of misconduct in sexual matters. The expert witnesses agreed that the sexual misconduct and other factors rendered him incapable of control in regard to his sexual impulses, rendering him highly likely to commit future harm. The fact that Creighton's impulsiveness extends to other aspects of his life shows the difficulties he has in controlling himself, rather than mitigating the determination that his misconduct and inability to control his sexual impulses render him dangerous to others.

II.

Creighton also challenges his commitment as a sexually dangerous person. A sexually dangerous person is defined as one who

(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)(1)-(3) (1996). The future harmful sexual conduct must be "highly likely." Linehan II, 557 N.W.2d at 180.

Creighton admits that he engaged in a course of harmful sexual conduct under Minn. Stat. § 253B.02, subd. 7a(a) (1996). Clear and convincing evidence supports this admission. Creighton also does not dispute that he has the sexual, personality, or other disorder or dysfunction required by the statute. Minn. Stat. § 253B.02, subd. 18b(2). Again, this is also clearly supported by the evidence.

Creighton challenges whether the evidence shows he is highly likely to engage in acts of harmful sexual conduct in the future. Minn. Stat. § 253B.02, subd. 18b(3). The same factors used for determining dangerousness in an SPP commitment are also considered in determining whether the SDP dangerousness factor is met. Linehan, 557 N.W.2d at 190. As discussed above in the analysis of the SPP commitment, this factor was met. Creighton also challenges whether the statutory factors make it likely he will engage in acts of harmful sexual conduct. As also discussed in the challenge to the SPP commitment above, the record shows his course of harmful sexual conduct and disorder make it highly likely he will engage in acts of harmful sexual conduct. Consequently, his SDP commitment is upheld.

III.

After an initial commitment, a report must be issued by the hospital and a review hearing held. Minn. Stat. § 253B.18, subd. 2 (1996); see Minn. Stat. § 253B.185, subd. 1 (1996) (generally, procedures pertaining to mentally ill and dangerous commitments apply to SPP and SDP commitments). If, after the hearing, the court finds the person continues to be an SPP and SDP, the commitment shall be indeterminate.

Creighton first argues that the purpose of the review hearing is unclear. However, the supreme court has recently indicated that at the review hearing, the district court should consider the treatment report, evidence of changes in the person's condition since the initial commitment hearing, and such other evidence as the court considers helpful. In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996), pet. for cert. filed, ___ U.S.L.W. ___ (U.S. May 2, 1997) (No. 96-8876) (Linehan III).

Creighton next challenges his indeterminate commitment to the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC). He cites the staff psychologist's testimony as to his improvement, strengths, and participation in his education program and unit job. He also argued that his treatment plan includes many items in addition to specific sexual offender treatment. Consequently, Creighton contends he should be sent to a facility other than the MSPPTC.

The psychologist also reported that Creighton continued to need treatment and without treatment would in all likelihood reoffend. In the treatment report, the director of the MSPPTC found no significant change in Creighton's condition and indicated that he showed evidence of factors that put him at high risk to reoffend. Clear and convincing evidence existed to show Creighton continued to meet the criteria for the SPP and SDP commitments and that the MSPPTC is the least restrictive program meeting his treatment needs and the public's safety needs. Id.

IV.

Creighton next raises constitutional issues. He first claims his rights to procedural due process were denied because the commitment proceedings took an excessive amount of time. His last sexual offense occurred on May 5, 1995, and the initial commitment judgment was entered on August 30, 1996. He contends he was caught in limbo between the juvenile court and commitment process and that he received no treatment. There is no evidence that the commitment proceeded in other than an orderly fashion, and Creighton does not claim the proper statutory procedures were not followed. His argument is without merit.

Creighton also contends that applying the SPP/SDP criteria to just one aspect of the totality of his admittedly criminal behavior in order to justify indeterminate commitment does not comply with due process requirements. This argument has no merit because, as discussed above, the district court properly found he met the standards for commitment.

Next, Creighton claims that the requirement that a person must have an "utter lack of power to control [his] sexual impulses" for an SPP commitment, Minn. Stat. § 253B.02, subd. 18a, should be extended to the SDP definition. Absent this interpretation, he claims, the statute fails to meet the minimal causal relationship required for an SPP commitment.

While the SPP statute requires a showing of an utter inability to control one's sexual impulses, Minn. Stat. § 253B.02, subd. 18a, the SDP statute requires a showing of a sexual, personality, or other mental disorder or dysfunction. Minn. Stat. § 253B.02, subd. 18b(a)(2). The supreme court has specifically rejected the argument that an SDP commitment, to be constitutional, must include the SPP factor of an utter inability to control sexual impulses. Linehan II, 557 N.W.2d at 184-86 (SDP statute does not violate substantive due process as applied to Linehan where he suffers from medically recognized mental disorder).[1] While Creighton attempts to distinguish it, we find Linehan II controlling here.

Creighton claims that his condition has not been shown to be "an identifiable and documentable violent sexual condition or disorder," required for an SPP commitment. Blodgett, 510 N.W.2d at 915. Instead, he contends his impulsive and attention-craving misconduct is rooted in childhood abuse and neglect and manifests itself in whatever criminal or antisocial outlet is available to him at the time. As discussed above, the evidence shows that his condition met the standards required for the SPP commitment. Creighton's argument is without merit.

Affirmed.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]¹ In Kansas v. Hendricks, ___ U.S.L.W. ___ (U.S. June 23, 1997), the United States Supreme Court upheld the Kansas Sexually Violent Predator Act, which provides for civil commitment of "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." Kan. Stat. Ann. 59-29902 (1994). The court rejected challenges based on substantive due process, double jeopardy, and ex post facto claims.