Opinion
No. A07-680.
Filed August 21, 2007.
Appeal from the District Court, Steele County, File No. P6-05-1609.
Jennifer J. Dunn-Foster, Dow, Einhaus, Mattison Carver, P.A., (for appellant James Ronald Christenson).
Lori Swanson, Attorney General, Willow Najjar, Assistant Attorney General, and Douglas Ruth, Steele County Attorney, (for respondent State of Minnesota).
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
In this appeal from an order for indeterminate civil commitment as a sexually dangerous person, appellant James Christenson argues that the district court erred by concluding that the state clearly and convincingly proved that he met the statutory criteria for commitment. Christenson also argues that the court erred by issuing a hold order requiring that he be held at the Minnesota Security Hospital after his release from prison, pending a decision on the merits of the commitment petition. We affirm.
FACTS
James Christenson, sixty-seven years old, has a long history of sexual offenses. Christenson first offended at the age of nineteen, when he was convicted of indecent exposure. While in his twenties, Christenson continued to offend and was convicted for exposing himself, molesting two children, and soliciting over the telephone for immoral purposes. Christenson reported that he exposed himself ten to fifteen times a month, that his victims numbered "in the hundreds," and that he stopped exposing himself in 1969 after he moved to a small town and became concerned that people would recognize him.
Approximately thirty-one years later, Christenson sexually assaulted two vulnerable adults. Christenson was sixty years old at the time. The first incident involved TLH, who reported that Christenson followed her into the bathroom while she was at work and touched her breast. Christenson knew that TLH lived in a group home and admitted that he could tell that she was "kind of slow." The second incident involved JF, who reported that Christenson touched her breasts approximately four times, after asking her repeatedly if he could touch her. Christenson told one of the court-appointed examiners that he chose vulnerable adults as his victims because they were less likely to report the assaults. Christenson was charged with two counts of fourth-degree criminal sexual conduct in connection with these incidents. He pleaded guilty to one count in exchange for the dismissal of the other and was sentenced to a twenty-seven-month prison term. The court stayed the sentence, placed Christenson on probation for ten years, and ordered him to complete sex-offender treatment.
As part of the presentence investigation, Christenson participated in a psychological evaluation at Riverside Psychological Services. Christenson admitted to a history of exhibitionism that dated back to the 1960s. His test results indicated that his primary defense mechanisms were denial, rationalization, and projection, and that he lacked insight into his problems and was not motivated to obtain treatment. The Riverside psychologist diagnosed Christenson with exhibitionism and adjustment disorder with mixed emotional features and gave Christenson a score of six on the Static-99, which, in his view, reflected a high risk for reoffending. He also noted that Christenson knew that his behavior was inappropriate but was unable to stop himself from offending.
Shortly after the incidents involving JF and TLH, Christenson sexually assaulted two minor children. The first of these assaults involved JO, an eleven-year-old girl. JO reported that while Christenson was doing maintenance work in her apartment he put his arms around her and covered her breasts with his hand for approximately two minutes. He later asked JO to come by him and touched her breasts again. The second assault involved ten-year-old CZ. CZ reported that Christenson touched her breasts while doing maintenance work at her house and "swatted" her buttocks as she was walking to the mailbox. Christenson was charged with two counts of second-degree criminal sexual conduct in connection with these incidents. He pleaded guilty to one count in exchange for the dismissal of the other and was sentenced to a stayed twenty-one-month prison term. The court placed Christenson on probation for twenty-five years and ordered him to follow his probation officer's recommendations for sex-offender treatment.
Christenson started sex-offender treatment at Riverside in January 2003. Seventeen months later he was suspended from treatment for failure to make progress and for multiple violations of group rules. Christenson was allowed to return to treatment, but he was again suspended for failing to adhere to treatment expectations. In September 2005 he was permanently terminated from the treatment program. Before treatment was terminated, Christenson refused to acknowledge his treatment needs, and noted that he was not a threat to the community and that he was in treatment only because of a court order.
Following Christenson's termination from treatment, his probation officer executed an apprehension and detention order, and Christenson was arrested. The probation officer also filed a probation-violation report, alleging that Christenson had failed to complete sex-offender treatment, had engaged in a pattern of lying and misrepresentations, and had failed to report matters to his probation officer and his treatment group that he was obligated to report. The probation officer indicated that Christenson was a danger to the community and recommended that the court vacate the stay of execution and commit Christenson to the commissioner of corrections. The district court agreed with the recommendation and committed Christenson to the Minnesota Correctional Facility in St. Cloud, with a scheduled release date of November 2005.
On November 21, 2005, the state filed a petition to commit Christenson civilly as a sexually dangerous person. Because Christenson's release from prison was imminent, the state also moved for a hold order requiring that Christenson be held at the Minnesota Security Hospital on his release, pending a decision on the merits of the commitment petition. The court granted the hold motion.
After a commitment hearing the court issued an order for initial commitment to the Minnesota Sex Offender Program (MSOP) as a sexually dangerous person. The court concluded that the state had submitted clear and convincing evidence that Christenson had engaged in a course of harmful sexual conduct, suffered from a mental disorder that prevented him from adequately controlling his sexual impulses, and was highly likely to engage in further harmful sexual conduct. The court also noted that Christenson had failed to rebut the presumption of harm triggered by his criminal convictions.
The court held a review hearing after the MSOP treatment team filed its sixty-day treatment report. The MSOP team diagnosed Christenson with paraphilia not otherwise specified (NOS), depressive disorder NOS, and personality disorder NOS with schizoid traits. The team concluded that a person with Christenson's risk factors presented a high risk for reoffending and met the criteria for commitment as a sexually dangerous person. The court issued an order committing Christenson indeterminately as a sexually dangerous person. This appeal follows.
DECISION
To prevail on a petition for civil commitment under the Minnesota Commitment and Treatment Act, the state must establish the need for commitment by clear and convincing evidence. Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd. 1 (extending evidentiary requirement to sexually dangerous-person proceedings) (2006). Although a reviewing court must defer to the district court's factual findings unless clearly erroneous, whether the findings satisfy the statutory requirements for civil commitment is a question of law subject to de novo review. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) ( Linehan I); In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).
I
Christenson argues that the state did not meet its burden of proving by clear and convincing evidence that he met the statutory criteria for commitment as a sexually dangerous person. We conclude otherwise.
A sexually dangerous person is a person who (1) has engaged in a course of harmful sexual conduct; (2) suffers from a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in future acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18c(a) (2006). A sexually dangerous person is subject to civil commitment only if the person's disorder or dysfunction prevents the person from adequately controlling his sexual impulses and makes it highly likely that the person will reoffend. In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) ( Linehan IV).
Course of Harmful Sexual Conduct
Christenson first argues that the district court erred by concluding that he engaged in a course of harmful sexual conduct, claiming that the evidence does not establish clearly and convincingly that he caused serious physical or emotional harm to his victims. But the commitment statute does not require evidence of serious physical or emotional harm as a prerequisite for commitment as a sexually dangerous person. It only requires evidence of a course of harmful sexual conduct, i.e., a course of "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a) (2006) (emphasis added). Conduct that results in a conviction of criminal sexual conduct in the first through fourth degrees is presumptively harmful sexual conduct within the meaning of the commitment statute. Id., subd. 7a(b) (2006).
The district court's determination that Christenson engaged in a course of harmful sexual conduct is supported by clear and convincing evidence. Christenson's convictions of second- and fourth-degree criminal sexual conduct triggered the presumption that his conduct was harmful. The presumption is consistent with the reports and testimony of both the court-appointed examiners and Christenson's victims. Dr. James Alsdurf and Dr. Linda Marshall, the court-appointed examiners, agreed that Christenson's conduct created a substantial likelihood of serious emotional harm, noting that Christenson chose children and vulnerable adults as his victims and committed the abuse repetitively over an extended period. Alsdurf testified that children subjected to sexual abuse commonly develop anxiety, depression, substance abuse, difficulty in relationships, and posttraumatic stress disorder. Marshall testified that Christenson's victims were likely to suffer from serious emotional harm, including anxiety, depression, lack of trust, and hypervigilance. She noted in her report that a perpetrator's close relationship with his victims is one of the factors associated with a greater degree of harm and pointed out that Christenson had developed a trusting relationship with the underage victims.
TLH reported that she felt violated by Christenson's conduct, noting that it caused her a great deal of stress and mental anguish, lowered her self-esteem, and made her think that she could not maintain relationships. She expressed anger, humiliation, and fear when discussing the incident; and stated that she was overwhelmed with guilt and that her life "plunged" after the incident. CZ was diagnosed with depression and posttraumatic stress disorder. The record shows that she began performing poorly in school, had nightmares, and wet her bed after the sexual abuse. She also had trouble eating, sleeping, and concentrating; and she reported feeling sad, irritable, hopeless, and nervous. CZ complained of stomach and joint pains, a racing heart, and anxiety attacks. She did not feel safe at school and worried that Christenson would "get" her brothers.
The reports and testimony of the state's witnesses, which the district court credited, clearly and convincingly establish that Christenson's conduct created a substantial likelihood of serious emotional harm to another and was, therefore, harmful sexual conduct within the meaning of the commitment statute. Christenson failed to rebut the presumption that his conduct was harmful. Accordingly, the district court did not err by concluding that Christenson engaged in a course of harmful sexual conduct.
Likelihood of Future Acts of Harmful Sexual Conduct as a Result of a Mental Disorder or Dysfunction
Christenson does not challenge the district court's determination that he has a mental disorder or dysfunction. Instead, he argues that the state failed to prove by clear and convincing evidence that he is highly likely to engage in future acts of harmful sexual conduct. We disagree.
To establish that an offender is likely to reoffend, the state must clearly and convincingly show that the offender is "highly likely [to] engage in harmful sexual acts in the future." Linehan IV, 594 N.W.2d at 876. In determining the probability that an offender will engage in harmful sexual acts in the future, courts must consider six factors: (1) the offender's demographic characteristics; (2) the offender's history of violent behavior; (3) the base-rate statistics for violent behavior among individuals with the offender's background; (4) the sources of stress in the offender's environment; (5) the similarity of the present or future context to those contexts in which the offender used violence in the past; and (6) the offender's record of participation in sex-offender treatment. Linehan I, 518 N.W.2d at 614.
Based on the Linehan factors, both experts concluded that Christenson was highly likely to reoffend. As to the first factor, the offender's demographic characteristics, the experts concluded that, despite his age, which would generally tend to suggest a reduced risk for reoffending, Christenson's gender, recent offenses, limited work history, poor social adjustment, and failure to complete sex-offender treatment suggested that he was highly likely to reoffend.
With respect to the second factor, the offender's history of violent behavior, the experts agreed that Christenson had no history of violent behavior. This factor, therefore, weighed against a determination that Christenson is highly likely to reoffend.
On the third factor the experts agreed that the base-rate statistics indicated a "high likelihood" of reoffending. Marshall concluded that Christenson's gender, sexual deviance, personality disorder, lack of social support, long history of sexual offenses, failure to complete sex-offender treatment, and failure to abstain from reoffending while on conditional release made it highly likely that he would reoffend.
The experts also agreed that the sources of stress in Christenson's environment, the fourth factor, would be high once he was placed in the community as a level-three sex offender. Specifically, they noted that the community-notification process, the restrictions on his ability to move, negative public exposure, and limited interpersonal relations and social support would all be substantial sources of stress for Christenson.
With respect to the fifth factor, the similarity between the present or future context and the contexts in which Christenson offended in the past, the experts concluded that Christenson would be returning to the same living environment he was in when he committed his most recent sexual offenses. Marshall noted that Christenson's support system appeared to be inadequate and that he had not developed a relapse-prevention plan. Christenson testified that he hoped to move to Oklahoma and live with his thirty-eight-year-old daughter, but he admitted that he had not talked to her about moving in and did not know if there was a suitable treatment program in Oklahoma.
Finally, the experts agreed that Christenson's record of participation in sex-offender programs, the sixth Linehan factor, was poor. Marshall noted that Christenson had not completed sex-offender treatment and was suspended for not doing assignments, for not reporting "red flags," and for not paying his fees. Alsdurf pointed out that Christenson had shown no interest in completing sex-offender treatment and had "learned almost nothing" from past treatment. He also noted that nothing in Christenson's records suggested that he had any desire to understand the reasons for his sexual offending.
Christenson argues that the district court's conclusion that he is highly likely to reoffend is inconsistent with the actuarial data, which show that it is more likely that he will not reoffend. Christenson claims that the odds of reoffending according to the Static-99 (39% in five years) and the Rapid Risk Assessment for Sex Offender Recidivism (48.6% in ten years) belie the conclusion that he is highly likely to reoffend. Christenson further claims that the actuarial data indicate that by the time he is more than 50% likely to reoffend, he will be eighty-two years old and, therefore, highly unlikely to reoffend.
Christenson's interpretations aside, the tests on which the experts relied to assess the likelihood of future sexual offending support the district court's determination that Christenson is highly likely to reoffend. Alsdurf reported that the Static-99, on which Christenson scored a seven, suggested a 39% risk of recidivism at five years and a 52% risk at fifteen years, and that Christenson's score placed him in the moderate-risk range for reoffending. But Alsdurf indicated that recent research suggests that the Static-99 rates underestimate sexual recidivism because it only "represents rearrest or reconviction rates and we know that there is a limited percentage of people who commit sex offenses who are actually caught." Alsdurf also noted that the Static-99 might underestimate Christenson's recidivism rate because it "does not directly measure deviant sexual practices/preferences, which ha[ve] been previously shown . . . to be the strongest recidivism predictor."
Marshall reported that Christenson scored a six in the Static-99, a score that in her view presented "a high risk of sexually reoffending." Marshall agreed with Alsdurf that the Static-99 rates "are judged to be underestimates of likely sexual recidivism." Both experts used the Sexual Violence Risk-20 (SVR-20) assessment to determine the likelihood of sexual recidivism and agreed that Christenson scored in the moderate range for risk of sexual violence. Alsdurf endorsed nine out of twenty variables associated with a higher risk of sexual recidivism. Alsdurf reported, however, that "[w]hat must be kept in mind regarding [the SVR-20] is that [what matters] is not necessarily the number of items endorsed but the degree to which each item contributes to reoffending. Sexual deviance and psychopathy can stand alone as items that, if strongly present, would in and of themselves serve as strong predictors of future recidivism. Mr. Christenson does [not] rate as a psychopath but does rate as sexually deviant." Alsdurf also reported that "[w]hile actuarial measures use a statistical method for identifying key factors and assigning them a weight . . . they do not establish a comprehensive assessment of all risk factors associated with sexual offending."
The district court credited the experts' testimony, including their opinion that the Static-99 and the SVR-20 might underestimate the risk of recidivism. This court defers to the district court on issues of credibility. Joelson, 385 N.W.2d at 811 (stating that district court's "evaluation of credibility is of particular significance"). The experts' reports and testimony thus clearly and convincingly support the district court's determination that Christenson is highly likely to engage in future harmful sexual conduct.
Lack of Control Over Sexual Impulses
Christenson argues that the district court erred by concluding that the state proved clearly and convincingly that he lacks control over his sexual impulses.
Alsdurf and Marshall agreed that, as a result of his sexual and personality disorders, Christenson lacked adequate control over his sexual impulses. Alsdurf indicated in his report that Christenson had not completed sex-offender treatment and exhibited no insight into his sexual pathology or his "very impaired impulse control." He testified that as a result of his mental disorders, Christenson has serious difficulty controlling his sexually deviant behavior. Marshall reported that extra-familial child molesters such as Christenson are the sex offenders most likely to have deviant sexual preferences and that "[t]he presence of sexual deviance may contribute to a sustained level of risk well into late adulthood." She indicated that Christenson is part of a group of offenders who continue to "recidivate over the age cycle" and that "older sex offenders are more likely to have a more developed fixation and thus are more likely to reoffend." The court-appointed examiners' reports and testimony, which the district court credited, and Christenson's extensive history of sexual offenses support the court's determination that Christenson lacks adequate control over his sexual impulses.
II
Christenson next argues that the district court erred by issuing a hold order pending a decision on the merits of the commitment petition, claiming that the record does not support the court's finding that physical harm was likely to result if he was released. Christenson's claim is both untimely and moot.
The commitment statute authorizes the district court to hold a proposed patient at a treatment facility pending resolution of a commitment petition, when the petitioner has made "a particularized showing . . . that serious physical harm to the proposed patient or others is likely unless the proposed patient is immediately apprehended." Minn. Stat. § 253B.07, subd. 2b(1) (2006). An aggrieved party may appeal a hold order within sixty days after the order is filed. Minn. Stat. § 253B.23, subd. 7 (2006). The district court issued a hold order in this case on November 23, 2005. Christenson filed a notice of appeal challenging the hold order on March 30, 2007, more than one year after the order was filed. Because the hold order did not affect the commitment order, from which the appeal was taken, Christenson's challenge to the hold order is untimely. See Minn. R. Civ. App. P. 103.04 (providing that appellate court "may reverse, affirm or modify the judgment or order appealed from [and] may review any order affecting the order from which the appeal is taken"); cf. In re Abrahams, 394 N.W.2d 234, 237 n. 1 (Minn.App. 1986) (reviewing commitment order not appealed from, on the ground that it affected order from which appeal was taken). The appeal is therefore untimely.
Additionally, because the hold order has expired and can no longer be enforced or dismissed, and Christenson's claim is not otherwise subject to resolution through the judicial process, Christenson's claim is moot. See State v. Arens, N.W.2d 131, 133 (Minn. 1998) (holding that appeal of bail order is moot after conviction because a determination that bail provision is unconstitutional would not afford defendant any relief). The claim is not subject to the exception for issues capable of repetition, yet evading review, because the issue the claim raises — namely, whether the evidence is sufficient to support the hold order — is a narrow issue that will not arise again. In re McCaskill, 603 N.W.2d 326, 328 (Minn. 1999) (acknowledging that constitutionality of procedure for prehearing confinement of mentally-ill person is issue capable of repetition, yet evading review, but narrower issue regarding sufficiency of evidence to support specific commitment order is not capable of repetition). The issue is, therefore, moot.
Because Christenson's challenge to the hold order is untimely and moot, we decline to reach the merits.