Michael A. Fahey, Carver County Attorney, Kari L.S. Myrold, Chief Deputy County Attorney, Carver County Courthouse, 600 East Fourth Street, Chaska, MN 55318 (for respondent)

Considered and decided by Short, Presiding Judge, Randall, Judge, and Holtan, Judge.

Daniel Bruce Johnson was committed indeterminately as a sexual psychopathic personality and a sexually dangerous person. He appeals, arguing that the court erred in committing him because (1) he did not meet the standards for commitment, (2) respondent's posthearing submission of evidence was so prejudicial that a new trial was required, (3) the court failed to appoint a psychologist to assist him in his defense, (4) the deposition of the first court-appointed expert should not have been admitted into evidence, and (5) the sexually dangerous person law is unconstitutional. Respondent contends that Johnson's appeal from the initial commitment and the order denying the motion for a new trial was untimely and argues that Johnson failed to comply with procedural requirements. We affirm.

Later that year, while on parole, Johnson attempted to rape a 14-year-old babysitter using a knife, but she successfully resisted his attack. A jury convicted him of attempted first-degree and second-degree criminal sexual conduct. At the commitment hearing, Johnson denied this incident, claiming he was a victim of misidentification. While imprisoned for this offense, he completed a sex offender program. Johnson was released in January 1993 and placed at another halfway house. He participated in a sex offender treatment aftercare program.

In March 1994, while on parole, Johnson sexually assaulted another former girlfriend, tying her hands and threatening to kill her, while referring to a shovel he would use after he did so. She tried to calm him down, and he ultimately forced her to drive to his mother's house where he resided and to stay overnight. Johnson pleaded guilty to third-degree assault and false imprisonment. He again participated in sex offender treatment while imprisoned. After serving his sentence, he was placed at a halfway house, attended aftercare, and was released from the halfway house in November 1996.

In early 1997, while still on parole, Johnson had contact with a 15-year-old girl, K.K., whom he met through a computer chat line. K.K. initially said she was 19 but Johnson learned she was only 15. K.K. and Johnson gave differing testimony as to the extent of their contact and whether Johnson had intercourse with her, resulting in her pregnancy. Johnson's contact with the minor violated the terms of his parole, and he was returned to prison. A petition for his commitment as a psychopathic personality and a sexually dangerous person was filed.

At the initial hearing, Dr. Robert Jeub, the first court-appointed examiner, through a deposition, recommended commitment as an SDP. Dr. Douglas Fox, respondent's expert, supported commitment as an SPP and SDP. Dr. Thomas Alberg, the second court-appointed examiner, did not recommend commitment, based on his belief that K.K.'s testimony was not credible. The district court concluded that Johnson met the standards for commitment as both an SPP and SDP and committed him to the Moose Lake Psychopathic Personality Treatment Center.

The hospital filed a review report, and the district court held a review hearing. The district court then made Johnson's commitment as an SPP and SDP indeterminate. Johnson appealed.

Under the commitment act, an appeal may be taken from any order or judgment within 60 days after the date of the filing of the order or entry of judgment. Minn. Stat. § 253B.23, subd. 7 (1998). Presumably to encourage one appeal in cases in which there is an initial and an indeterminate commitment, the statute provides:

A judgment under section 253B.18, subdivision 1, may be appealed within 60 days after the date of the order entered under section 253B.18, subdivision 2.

Id.; see Minn. Stat. § 253B.185, subd. 1 (1998) (providing that procedures in Minn. Stat. § 253B.18 generally apply to SPP and SDP commitments). Consequently, Johnson's appeals from the initial commitment and the order denying a new trial are timely.

Respondent next contends that Johnson's appeal should be dismissed because he did not include adequate citations to the record or legal authorities in his brief, and his appendix did not contain required documents. See Minn. R. Civ. App. P. 128.03 (providing that reference in briefs to record must include cite to specific page of appendix or record). But dismissal is not an appropriate remedy for failure to comply with nonjurisdictional rules. Boom v. Boom, 361 N.W.2d 34, 36 (Minn. 1985). Instead, failure to brief an issue adequately may result in its waiver. In re Irwin, 529 N.W.2d 366, 373 (Minn. App. 1995) (providing failure to argue or brief issue adequately may result in waiver), review denied (Minn. May 16, 1995). We decline to dismiss the appeal, but will address the sufficiency of the briefing as necessary during the analysis of Johnson's issues.

Commitment as an SPP requires, in relevant part, a showing that the person has exhibited "an utter lack of power to control the person's sexual impulses." Minn. Stat. § 253B.02, subd. 18b (1998); see In re Blodgett, 510 N.W.2d 910, 915 (Minn.) (identifying various factors relevant to determining predatory sex impulse and lack of power to control it), cert. denied, 513 U.S. 849 (1994). Johnson raises several challenges to the district court's determination that he met this statutory factor.

Johnson first argues that the record shows he gained control over his sexual impulses as the result of treatment and the effects of aging. He cites the facts that in his 1988 and 1994 sexual assaults, he stopped before penetrating the victims, and in the 1994 assault, he did not use a knife. He also cites his nonassaultive contacts with the 15-year-old girl in 1997.

But different inferences could be drawn from these facts, and the experts disagreed as to their significance on this issue. The record shows that the actions of the 1988 victim in strenuously resisting the attack could have prevented further harm to her. Although Johnson did not use a knife in the 1994 incident, after tying the victim's hands while she was in a locked car in a remote area, he threatened to kill her and referred to a shovel he would use when he was done. Finally, police found Johnson in a parked car with the 15-year-old girl, under circumstances similar to those in which three of his previous assaults had occurred. The district court found it reasonable to conclude that, but for the interruption by the police, the girl would have been Johnson's next victim.

The district court had to determine the credibility of witnesses, draw inferences from the facts, and assess expert opinions. On these facts, the district court was not compelled to accept Johnson's argument that he was gaining control over his sexual impulses.

Johnson next disputes findings made by the district court as to his contacts with 15-year-old K.K. K.K. and Johnson offered widely differing versions of their relationship, including the number of times they met and whether they ever had intercourse. The district court, while doubting whether either had told the whole truth, credited K.K.'s testimony for the most part. It did not find Johnson's testimony particularly credible, noting that he did not admit any inappropriate behavior with K.K.

Johnson faults the district court for failing to make a finding on whether he engaged in intercourse with K.K., which he considers to be a crucial point. But the court made other pertinent findings relating to his conduct with K.K. suggesting he was likely to resume his pattern of sexual assaults. In light of these findings, which are supported by the evidence, the district court's failure to find whether intercourse occurred is not determinative.

Johnson also raises challenges to the experts' testimony and the district court's use of their testimony and reports in relation to K.K.'s testimony regarding whether Johnson had intercourse with K.K. He first challenges the court's reliance on the testimony of Dr. Fox, contending it was erroneously based on the conclusion that he in fact had sexual intercourse with K.K. But Dr. Fox explained that the contact was significant, suggesting Johnson was returning to his former pattern because he maintained contact that appeared sexual in nature with a 15-year-old girl. If "actual sex" did not occur, he appeared at least to be setting her up for sex in the future. The district court was capable of weighing and assessing this opinion.

Next, Johnson challenges the district court's use of Dr. Alberg's report and testimony, contending they were misquoted to show Dr. Alberg supported commitment. While Dr. Alberg did not support commitment, this was based on his determination that K.K.'s testimony was not credible. The district court, as fact-finder, found K.K.'s testimony credible for the most part and thus found that Dr. Alberg's report was consistent with that of Dr. Fox and supported the need for commitment. The district court's findings and use of the experts' reports were supported by the record and are not clearly erroneous.

Johnson's argument focuses on the lack of control issue, but he briefly challenges the district court finding that he is highly likely to be dangerous to others in the future. Under the SPP law, it must be shown that, as a result of the person's habitual course of misconduct in sexual matters and utter lack of power to control his sexual impulses, he will be dangerous to others. Minn. Stat. § 253B.02, subd. 18b. Similarly, under the SDP law, the person, who, as a result of the course of harmful sexual conduct, has manifested a personality disorder, must be likely to engage in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18b(a)(3). The likelihood of this conduct to support an SDP commitment must be "high." In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996), vacated & remanded, 118 S. Ct. 596 (1997). Certain factors should be considered in predicting serious danger to the public in an SPP or SDP commitment. Id. at 189 (SDP); Linehan, 518 N.W.2d at 614 (SPP).

Johnson cites Dr. Alberg's opinion that Johnson was not highly likely to reoffend. But Dr. Fox and Dr. Jeub, the first court-appointed examiner, addressed numerous factors concerning the likelihood of harm. These included Johnson's criminal history, his reoffenses while awaiting sentencing or on parole after treatment, the lack of a relapse prevention plan, and his continued denial of many aspects of his crimes, including complete denial of his 1988 sexual assault. The district court concluded that, based on these facts, appellant was highly likely to engage in further harmful sexual conduct. The district court's findings are supported by the record and are not clearly erroneous.

After the close of the evidence in the initial commitment hearing, respondent sent the district court a police report that was prejudicial to Johnson. Johnson objected and moved for a new trial. The district court advised the parties that it did not review the challenged report and advised respondent to move to reopen the case if it wished to introduce new evidence. Respondent did not make such a motion, and the district court denied Johnson's motion for a new trial.

On appeal, Johnson contends that the district court erred in denying his motion for a new trial based on the extremely prejudicial nature of the report. But the district court did not review the report. Further, courts commonly review material that may never be admitted into evidence and are trained not to consider such material in their decisions. See Minn. R. Evid. 103(a)(2) (requiring offer of proof in some circumstances to preserve claim of error when court excludes evidence). Johnson has failed to show prejudice and the district court did not abuse its discretion in denying the motion for a new trial.

Affirmed.

RANDALL, Judge (concurring specially).

I concur in the result.

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

[1] Johnson filed an appeal from the initial commitment and denial of the motion for a new trial, but voluntarily dismissed it.