Hubert H. Humphrey III, Attorney General, Steven J. Lokensgard, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Roger S. Van Heel, Stearns County Attorney, 705 Courthouse Square, P.O. Box 1168, St. Cloud, MN 56303 (for respondent)

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

The district court committed Eugene Phillip Kropp as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). Kropp appeals, challenging one of the court's findings and contending his conduct was not sufficiently dangerous to meet the standards for commitment as an SPP and SDP. We affirm.

Although Kropp participated in several sex offender treatment programs and completed two, he continued to reoffend. The first court-appointed examiner, Dr. Roger Sweet, and the second court-appointed examiner, Dr. James Gilbertson, both psychologists, recommended that appellant be committed as a sexually dangerous person; Dr. Sweet concluded Kropp also met the standards for commitment as a sexual psychopathic personality. The district court committed Kropp as both an SPP and an SDP. Kropp appeals.

"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. 18b (Supp. 1997). "`Psychopathic personality' is an identifiable and documentable violent sexually deviant condition or disorder." In re Blodgett, 510 N.W.2d 910, 915 (Minn.) (footnote omitted), cert. denied, 513 U.S. 849 (1994). To meet the standards for commitment as a psychopathic personality, a pedophile's pattern of sexual misconduct must be "of such an egregious nature that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims." In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (holding record did not support finding that pedophile's acts of unauthorized sexual "touchings" and "spankings" constituted type of injury contemplated by statute); see In re Schweninger, 520 N.W.2d 446, 447, 449 (Minn. App. 1994) (reversing commitment under Rickmyer of "non-violent pedophile" who had abused 17 child victims through mutual fondling, exposure, and oral sex), review denied (Minn. Oct. 27, 1994).

In challenging his SPP commitment, Kropp contends that the conduct in which he engaged was not the type of violent conduct to which the SPP law is designed to apply and that has justified SPP commitments in other cases. See Blodgett, 510 N.W.2d at 911 (describing conduct forming basis for psychopathic personality commitment, including sexual assault of ex-girlfriend after breaking into her parents' house, sexual assault of stranger and threats to kill her, and rape of 16-year-old girl). Instead, Kropp contends that, like the appellant in Rickmyer, he engaged only in "non-violent" sexual touchings. 519 N.W.2d at 189. Further, he notes that, unlike the appellant in Rickmyer, he cooperated in his sex offender treatment programs. Consequently, he argues that, based on his lack of dangerousness, there is no basis to conclude he is likely to inflict serious physical or mental harm on others.

In Rickmyer, the supreme court required a showing that there was a substantial likelihood that the person proposed for commitment would cause serious physical or mental harm. 519 N.W.2d at 190. Here, the examiners testified that Kropp's pattern of sexual conduct was extremely harmful emotionally to children. They explained that when a child begins to trust an adult, and the adult sexually assaults the child, the betrayal of trust is substantially likely to cause serious emotional harm to the child victim. The ensuing psychological trauma can range from a loss of self-esteem and trust in authority figures to nightmares and suicidal ideations. The closer the relationship between the adult and child, the greater the harm is likely to be. The court found clear and convincing evidence to show that Kropp's pattern of behavior with young boys over a 25-year period was

of such an egregious nature that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims such as to meet the requirements for commitment as a psychopathic personality.

The court further found there was evidence that Kropp's conduct has caused actual emotional harm to his victims.

Finally, in response to Kropp's claims that his misconduct was minimal because he primarily touched the boys on the outside of their clothing, the court found his behavior was more serious. The court described Kropp's pattern of sexual misconduct as involving a grooming process in which he established a relationship with boys, gained their trust, and then moved on to hugs, touchings, and, if unopposed, other sexual acts. The court found that while the pattern had been interrupted at early stages in 1993 and 1996, Kropp's history suggested that, if unchecked, his conduct would have resulted in more serious assaults. Thus, there was clear and convincing evidence to support the district court's conclusion that Kropp was substantially likely to cause serious mental harm to his victims.

(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. 18c(a) (Supp. 1997). The term "harmful sexual conduct" is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a) (1996).

Kropp first argues that he does not meet the standard of dangerousness required for commitment as an SDP. Relying on his argument that his behavior as a "nonviolent pedophile" could not meet the pattern of sexual misconduct requirement for commitment as an SPP, he argues that likewise it does not meet the standard of "harmful sexual conduct" required for commitment as an SDP. See id. (SDP law requires "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another"); Rickmyer, 519 N.W.2d at 190 ("There may be instances where a pedophile's pattern of sexual misconduct is of such an egregious nature that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims such as to meet the requirements for commitment as a psychopathic personality.").

As Kropp notes, the supreme court has stated that the "SDP Act serves the same state purposes and interests as the PP Act." In re Linehan, 557 N.W.2d 171, 182 (Minn. 1996), vacated & remanded, 118 S. Ct. 596 (1997).[2] Further, the court explained that the SDP act was

an attempt to protect the public by treating sexual predators even more dangerous than those reached by the PP Act--the mentally disordered who retain enough control to "plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success." * * * Both [acts] * * * apply only if a person has already engaged in a course of harmful sexual conduct, will probably do so again, and suffers from a mental disorder that explains and helps predict that person's dangerousness.

Id. (citation omitted).

We have already concluded that Kropp's behavior was sexual misconduct that meets the standard for his commitment as an SPP. For the same reasons, the district court's determination that Kropp's conduct created "a substantial likelihood of serious physical or emotional harm" to his victims within the meaning of Minn. Stat. § 253B.02, subd. 7a(a), is supported by clear and convincing evidence and is not clearly erroneous.

Finally, Kropp briefly argues that he does not have the requisite mental disorder or dysfunction required under the SDP Act. See Minn. Stat. § 253B.02, subd. 18c(a)(2) (providing requirement that person have "manifested a sexual, personality, or other mental disorder or dysfunction"). The district court found appellant has been diagnosed with a sexual, personality, or other mental disorder or dysfunction; both experts diagnosed him with pedophilia. Dr. Gilbertson further noted he might also diagnose him with a personality disorder not otherwise specified (passive and dependent personality traits). Dr. Sweet also diagnosed appellant with a personality disorder not otherwise specified (avoidant, obsessive compulsive). Neither expert disagreed with the diagnosis of the other expert. The district court's determination that this factor was met is supported by clear and convincing evidence and is not clearly erroneous.

Affirmed.

[1] Neither expert relied on the guilty plea to third-degree criminal sexual conduct, which was taken pursuant to North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 168 (1970) (allowing guilty plea despite defendant's claim of innocence when prosecutor has sufficient evidence to convict).

[2] Challenges to the constitutionality of the SDP statute are currently before the Minnesota Supreme Court.