Warren J. Maas, 7964 Brooklyn Blvd., #107, Brooklyn Park, MN 55445 (for appellant Reb)

Michael O. Freeman, Hennepin County Attorney, Thomas G. Lavelle, Asst. County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County)

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

Appellant challenges the district court's decision to commit him indeterminately as a sexual psychopathic personality and a sexually dangerous person. Because appellant continues to fulfill the requirements of the statute, we affirm.

In August 1990, appellant pleaded guilty to fourth-degree criminal sexual conduct and received a sentence of 115 months in prison; he remained incarcerated until July 1996. At that time, a petition was filed to commit appellant as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). After a hearing pursuant to Minn. Stat. § 253B.18, subd. 1 (1996), appellant was committed in December 1996. See Minn. Stat. § 253B.185, subd. 1 (1996) (procedures in section 253.18 generally apply to SPP and SDP commitments).

Pursuant to Minn. Stat. § 253B.18, subd. 2 (1996), the district court held a 60-day review hearing in February 1997. At the hearing, respondent introduced the report of Dr. Anita Schlank, which diagnosed appellant as Axis I: pedophilia, attracted to both sexes, nonexclusive type fetishism and dysthymia; as Axis II: antisocial personality disorder; and as Axis III: obesity and hypertension.

Dr. Schlank's report also stated that appellant remained highly likely to reoffend as a result of his relatively young age (39), the relatively long period of time he has been offending (31 years), the high number of reported victims (over 40), his failure in previous treatment programs (8), and his flight from a halfway house.

The district court found clear and convincing evidence that appellant continued to meet the definitions of SPP and SDP. Also, the court found that appellant's current facility was best suited to meet his needs because it had adequate security to prevent him from reoffending.

Appellant challenges these findings and argues that the SPP and SDP statutes violate his constitutional rights.

Whether the facts found by the court satisfy the commitment requirements is a question of law that appellate courts review de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I). On appeal, the court will not weigh the evidence, but instead will determine if the evidence as a whole presents substantial support for the district court's conclusion. In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), petition for cert. filed, (U.S. May 2, 1997) (No. 96-8876) (Linehan II). The requirement at the 60-day review hearing is that there be sufficient change since the initial commitment to warrant release. See In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996) (Linehan III).

A person qualifies as a sexual psychopathic personality by showing

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).

Appellant argues that his conduct does not demonstrate an utter lack of power to control sexual urges. In assessing a psychopathic personality, a court should consider

the nature and frequency of sexual assaults, the degree of violence involved, the relationship (or lack thereof) between offender and the victims, the offender's attitude and mood, the offender's medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it.

In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994), cert. denied, 513 U.S. 849 (1994).

At his 60-day review hearing, appellant testified to having two or three sexual fantasies about children each week. In addition, evaluation reports submitted at his initial commitment hearing state that: "it seems blatantly clear that there are many times when [appellant] has been unable to resist the impulse or urge to sexually act out," and "[appellant] has clearly shown an utter lack of power to control his sexual impulses." This evidence, in addition to the large number of victims and long period of time offending, supports the district court finding that appellant lacks the ability to control his sexual impulses.

Next, appellant argues that his conduct does not create the "substantial likelihood of serious physical or mental harm" required for commitment, citing In Re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994). Appellant contends that this case is factually similar to Rickmyer, which held that unwanted sexual touching of young children, though repellant, was not the kind of injury or pain contemplated by the statute. Id. at 190. In addition to admitting to sexually abusing 40 children, one of appellant's victims required surgery as a result of the presence of genital warts contracted from anal and vaginal penetration from appellant. Psychologist Dr. Harry Hoberman testified that this type of sexual contact causes severe mental harm to the victims and that appellant is therefore dangerous to any child.

There is clear and convincing evidence that appellant remains a sexual psychopathic personality.

2. Sexually Dangerous Person

A sexually dangerous person is defined as someone who: (1) has engaged in harmful sexual conduct; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) is likely to engage in acts of harmful sexual conduct.[1] Minn. Stat. § 253B.02, subd. 18b(a) (1996). The likelihood of future harm must be high. Linehan II, 557 N.W.2d at 176.

Appellant contends that there was not sufficient proof that he is likely to engage in harmful sexual conduct. Linehan II adopted a six-factor test for determining future harm. Factors to consider are: (1) demographic characteristics; (2) history of violent behavior; (3) base rate statistics for violent behavior; (4) the sources of stress in the environment; (5) similarity between present and future circumstances to the circumstances under which the person has committed harmful sexual conduct; and (6) the person's record in sex therapy programs. Id. at 178.[2]

Dr. Schlank assessed these factors and determined that because of appellant's young age, long history of abusing, high number of admitted victims, and failure in previous treatment programs, he is highly likely to reoffend. This is sufficient proof that appellant is highly likely to reoffend.

Given appellant's diagnosed pedophilia, fetishism, dysthymia, and antisocial personality disorder, his five offenses of criminal sexual conduct, and his high likelihood of reoffense, there is clear and convincing evidence that appellant meets the criteria of SDP under Minn. Stat. § 253B.02, subd 18b(a).

3. Least Restrictive Alternative

After finding that a person continues to be a sexually psychopathic personality, the district court must find that there is no appropriate less restrictive alternative available than indeterminate commitment. In re Pirkl, 531 N.W.2d 902, 910 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995). See Minn. R. Civ. Commitment 12.06. A reviewing court must affirm a finding of no less restrictive treatment alternative unless clearly erroneous. In re King, 476 N.W.2d 190, 193 (Minn. App. 1991).

At the review hearing, appellant offered two options to the district court: (1) enrollment in the Department of Correction's Intensive Supervised Release Program (ISRP), or (2) granting a continuance until such time as the staff at the Minnesota SPP Treatment Center (MSPPTC) could make an accurate assessment of appellant's progress.

The district court found that the ISRP did not provide sufficient protection for the community because appellant would be free to re-enter the community in 1999 when his sentence is completed. In addition, testimony from the 60-day review hearing indicated that during his stay at ISRP, appellant would have access to the community and to children. Rhonda Heskin from MSPPTC testified that it would be very difficult to keep appellant from reoffending if he were placed in a community before he was cured.

In the alternative, appellant contends that he should be given more time to demonstrate progress to avoid indeterminate commitment. However, case law supports a contrary policy. See In Re Richmond, 433 N.W.2d 429, 433 (Minn. App. 1988) (holding that the legislature did not give the district court authority to extend the 60-day review period for additional observation). Also, a slight improvement in appellant's condition would not prevent commitment if his condition remained largely the same. Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995) (establishing the standard for discharge cases), cert. denied, 117 S. Ct. 772 (1997) .

The district court found that indeterminate commitment to the MSPPTC was the least restrictive alternative that meets appellant's needs and provides adequate protection for society. Given the evidence in the record that appellant is highly likely to reoffend and cannot be placed near a community for fear of reoffending, this finding is not clearly erroneous.

4. Constitutionality

Appellant contends that Minn. Stat. § 253B.02, subd. 18b, violates his substantive due process rights. The SDP statute comes before the court with a presumption of validity. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). Statutes may be declared unconstitutional only if absolutely necessary and then only with great caution. Id.

Appellant argues that the SDP law violates his substantive due process rights because it abandons a "mental illness" requirement for civil commitment and detains a person solely on evidence of dangerousness. The Minnesota Supreme Court addressed and rejected this argument. Linehan II, 557 N.W.2d at 182. Linehan II held that the SDP statute does not violate substantive due process where the person suffers from a medically recognized mental disorder such as antisocial personality disorder, but does not suffer from a mental illness. Id.[3]

Lastly, appellant argues that the SDP statute violates his constitutional rights against double jeopardy. The supreme court also considered these arguments in Linehan II and held that the SDP statute does not violate double jeopardy because commitment at the end of a criminal sentence is done for treatment purposes, not for punishment. Id. at 183.

Case law demonstrates that the SDP statute is constitutional.

Affirmed.

[ ]¹"Harmful sexual conduct" is defined as sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another, including second- and fourth-degree criminal sexual conduct. Minn. Stat. § 253B.02, subd. 7a (1996).

[ ]²Linehan II adopted the six-factor test established in Linehan I for use in SPP commitment and applied it to SDP commitment. Id.; see also Linehan I, 518 N.W.2d at 614.

[ ]³The United States Supreme Court recently held that requiring either a mental abnormality or a personality disorder for civil commitment does not violate a person's substantive due process rights. Kansas v. Hendricks, 117 S. Ct. 2072 (1997). Though the Kansas statute in that case differs from the Minnesota statute by allowing jury trials and requiring a one-year review, we believe that the principles upheld in Hendricks are the same as those upheld in this case.