Opinion
No. A05-976.
Filed October 11, 2005.
Appeal from the District Court, Rice County, File No. P0-04-1046.
Adam Jeffrey Dowd, Schmitz, Ophaug and Dowd, L.L.P., (for appellant Nathan Bradley Freeman).
Mike Hatch, Attorney General, Angela Mary Helseth, Assistant Attorney General, (for respondent State of Minnesota).
Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant Nathan Freeman challenges his commitment as a sexual psychopathetic personality (SPP), arguing that the evidence does not support the district court's finding on his "utter lack of power to control" his sexual impulses. Because the record includes evidence to support that finding, we affirm.
DECISION
Whether the evidence is sufficient to demonstrate that the standards for commitment as a psychopathetic personality have been met is a question of law reviewed de novo. In re Linehan, 518 N.W. 2d 609, 613 (Minn. 1994).
"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 (2004) (emphasis added).
Appellant challenges only the finding that he meets the "utter lack of power to control sexual impulses" element, arguing that the evidence is insufficient. But ample evidence supports this finding. Appellant's former girlfriend, F., testified that in 1986 or 1987, appellant had a sexual relationship with a 16-year-old babysitter hired to look after his children; in 1989, he inappropriately touched a ten-year-old girl who was visiting, and in 1991, he abused his five-year-old daughter. In 1992, EAF, a 14-year-old babysitter for appellant and F., was sexually assaulted by appellant and testified to about five instances of sexually inappropriate conduct. In 2002, appellant sexually assaulted the nine-year-old daughter of a friend. This evidence supports the finding that appellant lacks the power to control his sexual impulses.
Appellant relies on the testimony of one of the doctors, the court-appointed examiner chosen by appellant's attorney. The doctor testified and wrote in his report that appellant does not have an utter lack of power to control his sexual impulses. But the context in which the doctor expressed this opinion indicates that he had an idiosyncratic interpretation of the phrase, "utter lack of power." In his report, the doctor wrote:
[T]here is little evidence to support that he has demonstrated an "utter lack of power" to control his sexual impulses. . . . [Appellant] was able to exercise control and judgment in regard to the time and places in which he engaged in sexual conduct with his 14-year-old babysitter, and . . . demonstrated control in luring his [nine-year-old] victim to his apartment and carefully escalating his behavior to the point of sexual conduct.
Thus, for this doctor, "power to control sexual impulses" did not mean the power to refrain from sexual activity with underage females but rather the power to engage in sexual activity with underage females with minimal risk of being caught. Appellant's ability to minimize his own risks when he engaged in sexual activity with underage females would not generally be understood to mean that he had the ability to control his sexual impulses.
The doctor's testimony further reflects his idiosyncratic interpretation of the phrase, "power to control sexual impulses." He replied, "That would be true," when asked if, in his opinion, "there would be very few people who would ever have an utter lack of ability to control their sexual impulses[.]" He was then asked if his view was based on a medical perspective of the meaning of "utter lack of ability to control."
Probably, I think it's . . . because of the difficulty of meeting — of trying to meet a legal standard with medical terminology.
There [are] very few things that a person has utter lack of control over.
. . . .
[A] seizure disorder, for example, people don't have much control over that. But, most other behavior and most behavior of sex offenders is pretty much well controlled.
They do not randomly attack people in the street. So, the true utter lack of power may have a different meaning legally than medically.
The doctor was using control in a medical rather than a legal sense: the fact that one cannot control when and where one has a seizure is a medical reality, but the ability to control when and where one sexually abuses a child does not mean one has control over sexual impulses.
Other factors also oppose using this doctor's opinion that appellant does not have an utter lack of power to control his sexual impulses as a basis for reversing the order for appellant's commitment. First, the doctor himself believes that appellant has "zero chance of succeeding" in the Minnesota Sex Offender program and that he should be committed as a sexually dangerous person (SDP). The doctor testified that appellant's plan to avoid re-offending is "[n]ot very credible" because appellant's "past conduct has not really demonstrated any incentive on his part, prior to this, to seek out any kind of treatment," and "the nature of his character disorder would prevent him from doing so and . . . from benefiting from any treatment that's provided to him." The doctor further testified:
[I]t's not particularly surprising to me that despite having gone to prison a couple of times, that he doesn't seem to apparently learn from that and not do it again. Because of the nature of his character pathology, that elevates his risk for future misconduct. It doesn't make it a certainty but it elevates the risk.
Thus, even the doctor on whose testimony appellant's challenge to his commitment is based does not believe appellant should not be committed.
Second, three other doctors, the first court-appointed examiner and the two doctors retained by the county attorney to conduct a pre-petition review of appellant's records, all were of the opinion that appellant does have an utter inability to control his sexual impulses, and all three supported his commitment as both a SDP and a SPP.
Third, case law supports appellant's commitment. To assess whether an individual is a SPP, the district court "considers (1) the nature and frequency of the sexual assaults; (2) the degree of violence involved; (3) the relationship (or lack thereof) between the offender and the victims; (4) the offender's attitude and mood; (5) the offender's medical and family history; (6) the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it." In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994). These six factors indicate that appellant meets the SPP criteria.
On factor 1, his sexual assaults occurred repeatedly over a period of many years. On factor 2, the most recent assault involved violence as appellant tried to obstruct a nine-year-old girl who ran screaming from his apartment. On factor 3, all appellant's victims were either his own children or children of friends, in other words, people who had reason to trust him. On factor 4, appellant believes his problem is alcohol, not his sexual impulses, and therefore has not attempted sex offender treatment and believes that abstaining from alcohol will solve the problem. On factor 5, appellant has no family ties and was abandoned at a young age. On factor 6, both doctors who testified at trial reported that appellant's personality traits make him not amenable to treatment and likely to re-offend.
Evidence supports the finding that appellant has an utter lack of power to control his sexual impulses, and case law, statutory law, and the evidence support affirming his commitment.