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

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Amundson, Judge.

In this appeal from an indeterminate commitment to the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC) as a sexual psychopathic personality (SPP) and as a sexually dangerous person (SDP), appellant Henry Woodruff challenges the sufficiency of the evidence and the constitutionality of his commitment. We affirm.

At the review hearing, Dr. Anita Schlank, the clinical director of the MSPPTC, testified that appellant has been diagnosed with paraphilia not otherwise specified, dysthymic disorder, alcohol dependence, and antisocial personality disorder. Appellant declined to participate in sex offender treatment after his initial commitment, but he did take several educational classes. Schlank found no evidence of a significant change in appellant's condition since his initial commitment. Dr. Thomas Ahlberg, another court-appointed examiner, also testified at the review hearing. He testified that appellant's condition has improved somewhat since his initial commitment, but appellant still needs treatment. The district court continued for an indeterminate period appellant's commitments as an SPP and an SDP .

Appellant objects to the district court's admission of Schlank's testimony. He argues that he displayed good behavior while hospitalized, and that Schlank should not have been permitted to testify because her testimony was not based on her direct observations or knowledge of him. See In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985) (holding good behavior in hospital alone not determinative as to patient's dangerousness, where medical experts testify based on own observations that patient remained mentally ill and dangerous).

But it was appellant's refusal to discuss his criminal sexual offense history with Schlank that forced Schlank to rely on the records for her opinion. See in re Wolf, 486 N.W.2d 421, 423 (Minn. 1992) (noting in chemical dependency commitment that it would be "incongruous to allow [committee] to defeat commitment proceedings merely by refusing to cooperate"). We find no error in the district court's decision to allow Schlank's testimony.

Appellant challenges his indeterminate commitment, contending that the district court failed to address the standards for an initial commitment. The supreme court has rejected this argument. In re Linehan, 557 N.W.2d 167, 170-71 (Minn. 1996), aff'd, 594 N.W.2d 867 (Minn. 1999). Instead, at the review hearing, the court considers whether the patient's condition has changed since the initial commitment and whether the patient continues to meet statutory criteria for commitment. Id. at 171.

Appellant also contends that because his condition has improved since his initial commitment, indeterminate commitment is not appropriate. He cites Ahlberg's testimony as to the ways in which his condition improved. Whether to credit Schlank's or Ahlberg's expert opinion regarding changes, if any, in appellant's condition was particularly within the discretion of the district court. Joelson, 385 N.W.2d at 811. Further, although Ahlberg testified that appellant's condition had improved, he also testified that appellant needs continued treatment. The district court's determination was not clearly erroneous.

Appellant contends that he was denied the right to treatment at the least restrictive treatment facility because the district court failed to consider treatment alternatives other than commitment to the MSPPTC. But the supreme court recently determined that there is no statutory requirement that a person committed as an SPP or an SDP must be committed to the least restrictive treatment alternative. In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998).[1] Furthermore, evidence about treatment alternatives was presented to the district court. Schlank testified that the MSPPTC is the least restrictive appropriate placement that could meet appellant's treatment needs and provide sufficient protection to the public. The district court's decision to credit Schlank's recommendation is not clearly erroneous.

Finally, appellant raises constitutional challenges to his commitment as an SPP and an SDP. The Minnesota Supreme Court recently upheld the constitutionality of the sexually dangerous person law as clarified. Linehan, 594 at N.W.2d at 876. The supreme court clarified

that the SDP Act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.

Id. Appellant's condition meets this standard. In addition, this court has recently reaffirmed the constitutionality of the SPP law. Joelson v. O'Keefe, 594 N.W.2d 905 (Minn. App. 1999), review denied, (Minn. July 28, 1999); see In re Blodgett, 510 N.W.2d 910 (Minn. 1994) (upholding constitutionality of psychopathic personality commitment law).

Affirmed.

[1] Under recent amendments to the commitment act, the court must commit the patient to a secure treatment facility unless the patient proves "that a less restrictive treatment program is available that is consistent with the patient's treatment needs and the requirements of public safety." 1999 Minn. Laws ch. 118, § 3 (to be codified at Minn. Stat. § 253B.18, subd. 1(a)) (effective Aug. 1, 1999).