In the Matter of John Michael Gleason. C2-97-2194, Court of Appeals Unpublished May 5, 1998.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-97-2194

In the Matter of

John Michael Gleason.

Filed May 5, 1998

Affirmed

Shumaker, Judge

Freeborn County District Court

File No. P9-97-634

Chester D. Swenson, 206 South Washington, P.O. Box 426, Albert Lea, MN 56007 (for appellant)

Hubert H. Humphrey, III, Attorney General, Narda Jones, Assistant Attorney General, John L. Kirwin, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

SHUMAKER, Judge

Appellant John Michael Gleason challenges his indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). He argues that respondent failed to prove he met the standards for commitment and contends the laws under which he was committed are unconstitutional. We affirm.

FACTS

In 1990, appellant sexually abused his younger sister by fondling her and engaging in oral, anal and vaginal sex. He was charged with first degree criminal sexual conduct and found delinquent. The court ordered out-of-home placement and sex offender treatment.

In 1992, appellant sexually molested his sister again while on home visits from a foster placement. He also engaged in inappropriate sexual behaviors in the community. He was then ordered to attend the Minnesota Correctional Facility at Sauk Centre, where he made poor progress in the sex offender treatment program. He also kept a journal where he recorded his violent sexual fantasies involving female staff members and on one occasion planned the rape of one of them. On June 19, 1997, Freeborn County petitioned for appellant's commitment as an SPP and SDP.

At the hearing, experts generally agreed that appellant met all of the standards for commitment as an SPP and SDP. After committing appellant for an initial term, a review hearing was held. The court then committed appellant to the Minnesota Sex Offender Program for an indeterminate period as an SPP and SDP. Appellant now seeks review of his SPP and SDP commitments.

D E C I S I O N

The district court's factual findings will be affirmed unless clearly erroneous. Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). Whether facts found by the district court satisfy commitment requirements is a question of law that appellate courts will review de novo. In re Linehan, 518 N.W.2d. 609, 613 (Minn. 1994). On issues of law, the appellate court will not defer to the district court. In re Stilinovich, 479 N.W.2d. 731, 734 (Minn. App. 1992).

Respondent must prove by clear and convincing evidence that appellant meets the standards for SPP and SDP commitment. Minn. Stat. § 253B.18, subd. 1 (1996); see Minn. Stat. § 253B.185, subd. 1 (1996) (provisions of section 253B.18 apply to SPP and SDP commitments). The statute sets forth the relevant SPP and SDP definitions. Minn. Stat. § 253B.02, subd. 18a (1996) (sexual psychopathic personality); Minn. Stat. § 253.02, subd. 18b (1996) (sexually dangerous person).

Arguing that his actual sexual misconduct involved only one victim, and that it was remote in time, appellant contends that respondent failed to meet its burden of proof of showing a habitual course of sexual misconduct as required for SPP commitment. Minn. Stat. § 253B.12, subd. 18a. The record is clear; appellant admits to multiple sexual assaults on his sister. The evidence also shows that during his residency in a children's home, he engaged in anal and oral sex with young male residents and he grabbed a female staff member's breast. While living in a foster home, he masturbated in front of children in a public park. During a stay at a residential treatment facility, appellant kept a journal of violent sexual fantasies involving specific staff members. He actually prepared to carry out a violent rape fantasy but his plan was detected and thwarted.

Appellant's sexual misconduct involved more than one person. The law, however, does not require multiple victims in order to meet the "habitual course" standard. See Minn. Stat. § 253B.02, subd. 18a (1996) (SPP lacks reference to number of victims required). Moreover, gaps in time between the sexual misconduct and the commitment proceeding do not preclude a determination that the conduct is habitual. See Linehan, 518 N.W.2d at 613 (habitual course of misconduct factor met even though last sexual offense occurred in 1975 and psychopathic personality petition filed in 1992).

Appellant compares his history of sexual assaults to the sexual misconduct of other individuals committed as sexual psychopaths and argues that his conduct was much less harmful and did not result in the type of harm the statute intended to address. We disagree. Appellant engaged in repeated, forceful, sexual assaults against his vulnerable, younger sister. The expert witnesses concluded, and the district court found, that the assaults caused appellant's sister severe emotional trauma. See In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (must determine whether nature of conduct is of such egregious nature "that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims.")

We hold that the district court did not err in finding that appellant had engaged in a habitual course of sexual misconduct within the purview of Minn. Stat. § 253B.02, subd. 18a.

II.

The next issue is whether the district court has clear and convincing evidence from which to conclude that appellant had an utter lack of power to control his sexual impulses, rendering him dangerous to other persons, as required for commitment as a sexual psychopathic personality. Minn. Stat. § 253B.02, subd. 18a; see In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 513 U.S. 910 (1994). Appellant argues that his acts lack the violence described in Blodgett to meet the requirement and claims to have shown the insight and remorse as suggested by In re Irwin, 529 N.W.2d 366, 375 (Minn. App. 1995) (discussing need for a person committed as SPP to recognize his disorder to begin to rebut finding of utter lack of control), review denied Minn. May 16, 1995). The district court believed the opinions of the experts who testified that appellant could not control his sexual impulses. Based on its assessment of the evidence, it concluded that appellant has an utter inability to control his sexual impulses. We defer to the district court in credibility determinations. See Joelson, 385 N.W.2d at 811 ("Where the findings of fact rest almost entirely on expert opinion testimony, the probate judge's evaluation of credibility is of particular significance.") The clear and convincing evidence supports the district court's conclusion.

III.

Appellant also argues that respondent failed to prove by clear and convincing evidence that he engaged in the kind of harmful sexual conduct required under the sexually dangerous persons law. Minn. Stat. § 253B.02. subd. 18b; Minn. Stat. § 253B.02, subd. 7a(a) (defining harmful sexual conduct as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another"). This standard is very similar to the definition of the physical or emotional harm required for an SPP commitment. Rickmyer, 519 N.W.2d at 190. For the same reasons that we held the standard of harm requirement for the SPP commitment was met, we also hold that the similar standard for the SDP commitment was met.

IV.

Next, appellant challenges the district court's determination that there is a high likelihood he will engage in such harmful conduct in the future under the SDP law. Minn. Stat. § 253B.02, subd. 18b(a)(3); In re Linehan, 557 N.W.2d 171, 179-180, (Minn. 1996), vacated and remanded, 118 S. Ct. 596 (Dec. 8, 1997). Appellant contends that other facts do not support the district court's determinations. The district court made extensive findings of fact and considered expert testimony that addressed the relevant factors. We decline to reverse the district court's assessment of the credibility of expert and other testimony. Because those credibility determinations support the conclusion that appellant is highly likely to be dangerous in the future, we affirm.

Appellant also raises constitutional challenges, contending that both the sexually dangerous person act and the sexual psychopathic personality act deprive him of his right to due process, violate constitutional prohibitions against double jeopardy, and violate his right to equal protection.

First, as appellant acknowledged, he did not raise these arguments in the district court. See In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981) (appellant may not raise constitutional issues for the first time on appeal). In any event, the Minnesota Supreme Court has upheld the constitutionality of the SPP law and the U.S. Supreme Court has denied review. Blodgett, 510 N.W.2d at 911. As to the SDP law, the Minnesota Supreme Court also upheld its constitutionality in Linehan, 557 N.W.2d at 191, but the United States Supreme Court recently vacated and remanded the decision to our supreme court. 118 S. Ct. at 596. Pending a decision by our supreme court, we continue to reject the argument that the SDP statute is unconstitutional.

Affirmed.