Raymond A. Wood, 1919 University Ave., Suite 116, St. Paul, MN 55104 (for appellant Larkin)

Amy Klobuchar, Hennepin County Attorney, Thomas G. LaVelle, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent petitioner)

Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Harten, Judge.

The district court committed appellant Jacquard Larkin for an indeterminate period as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). He appeals, contending that there is insufficient evidence as a matter of law to show he met the criteria for either SPP or SDP commitment. He also challenges the rebuttable presumption of harm in the SDP law. We affirm.

While incarcerated, appellant had numerous disciplinary reports for offenses that included fighting, assault, and masturbation in the presence of female staff. Appellant entered sex offender treatment several times, but was terminated from the programs shortly after starting. Both before and during his incarceration, he enrolled in many chemical dependency programs, but did not complete any of them.

Shortly before appellant's scheduled prison release date, a petition was filed to commit him as an SPP and an SDP. Following a hearing, the district court committed appellant as an SPP and an SDP. After the Minnesota Sex Offender Program filed a review report, the district court held a review hearing, and then made appellant's dual commitment indeterminate. Larkin appeals.

1. SPP Commitment

Appellant challenges the district court's determination that he met the standards for commitment as an SPP. See Minn. Stat. § 253B.02, subd. 18b (1998) (defining SPP). Appellant first argues that the district court did not have clear and convincing evidence that his sexual misconduct was habitual as a matter of law, citing the opinions of the examiners, who expressed doubt that his sexually assaultive behavior was yet habitual.

While experts can offer opinions, the district court ultimately decides whether the standards are met as a matter of law. Linehan, 518 N.W.2d at 609; see In re Moll, 347 N.W.2d 67, 70 (Minn. App. 1984) (addressing commitment as mentally ill and holding that whether person meets standards for commitment is a "mixed question of legal and medical judgment").

Without considering the 30 other rapes that appellant at one time admitted (but later denied) committing, the evidence is sufficient to show habitual sexual misconduct. In a two-month period, appellant committed three vicious armed sexual assaults that included multiple penetrations, and an abduction. While his arrest curbed these violent sexual assaults, even in prison he continued to commit acts of sexual misconduct despite the certainty of consequences. We agree with the district court that appellant exhibited habitual sexual misconduct, as a matter of law.

Next, appellant contends that there was no clear and convincing evidence he possessed an "utter lack of power to control [his] sexual impulses." Minn. Stat. § 253B.02, subd. 18b. "The psychopathic personality statute identifies a volitional dysfunction which grossly impairs judgment and behavior with respect to the sex drive." In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 115 U.S. 146 (1994). The supreme court has set out certain factors to consider in determining whether the person exhibits a predatory sexual impulse and the lack of power to control it. Id.

Again, appellant cites the doubt the examiners expressed on this factor. But based on the experts' review of the relevant factors and the district court's assessment of all of the evidence, we conclude that there was clear and convincing evidence to show appellant exhibited an utter lack of power to control his sexual impulses.

2. SDP Commitment

Appellant next contests his commitment as a sexually dangerous person. See Minn. Stat. § 253B.02, subd. 18(a) (1998) (defining SDP). He challenges only the determination that he manifested the requisite mental disorder or dysfunction. Id., subd. 18c(a)(2).

The district court adopted the appointed examiner's extensive diagnosis of appellant. Appellant is diagnosed with exhibitionism, which is defined as recurrent, intense, sexually arousing fantasies, urges, or behaviors involving the exposure of one's genitals to an unsuspecting stranger. He also suffers from attention-deficit hyperactivity disorder, alcohol dependence, marijuana dependence, and probably substance abuse. He is characterized by features of several personality disorders, most predominately multiple traits described as "cluster B" personality disorders, which include anti-social, borderline, narcissistic, histrionic, passive-aggressive, and "negativistic" personality disorders. These are defined as multiple personality disorders not otherwise specified, or a mixed personality disorder. Finally, appellant appears to have a learning disorder, specifically in math.

Appellant contends that the mere presence of deviant or anti-social behavior is insufficient to meet this factor and appears to argue that a "sexual" disorder is necessary for the commitment. But the statutory language does not contain these limitations. Minn. Stat. § 253B.02, subd. 18c(a)(3). Further, an SDP commitment based on an anti-social personality disorder has been upheld. See In re Linehan, 557 N.W.2d 171 (Minn. 1996), aff'd, ____ N.W.2d ___ (Minn. May 27, 1999) (upholding constitutionality of SDP act as clarified).

Finally, appellant challenges the district court's use of a rebuttable presumption in determining that he engaged in a course of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 7a(b)(1998). While the district court found that appellant's criminal sexual acts created the presumption that he had engaged in harmful sexual conduct and that he failed to rebut the presumption, it also concluded that the victims had in fact suffered such harm. Although appellant attempts to downplay the significance of the harm the victims suffered or attributes it to different causes, there is clear and convincing evidence to support the district court's determination that the victims had suffered harm. We conclude that the statutory requirement that the sexual conduct must have created a "substantial likelihood of serious physical or emotional harm to another" was satisfied without use of the rebuttable presumption. Minn. Stat. § 253B.02, subd. 7a(a) (1998) (defining harmful sexual conduct).

Affirmed.