Opinion
No. A07-1449.
Filed December 11, 2007.
Appeal from the District Court, Swift County, File No. 76-PR-06-990.
Bradley A. Kluver, Schaps Kluver, P.A., Litchfield, MN (for appellant).
Lori Swanson, Attorney General, Noah A. Cashman, Assistant Attorney General, St. Paul, and Robin Finke, Swift County Attorney, Benson, MN (for respondent).
Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Worke, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
On appeal from initial and indeterminate commitment orders, appellant argues that (1) the evidence was insufficient to support his commitment as a sexually dangerous person, (2) he established a less restrictive alternative in an outpatient sex-offender program, (3) civil commitment violates double jeopardy, and (4) this court should recognize a constitutional right to a jury trial with a reasonable-doubt standard in commitment cases. We affirm.
DECISION
Sufficiency of Evidence
This court will uphold the district court's findings if they are not clearly erroneous. See, e.g., In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re Preston, 629 N.W.2d 104, 110 (Minn.App. 2001). Whether the evidence was sufficient to demonstrate the standards for commitment as a psychopathic personality are met is a question of law reviewed de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) ( Linehan I).
Appellant Jerry James Thompson argues that the district court erred when it committed him as a sexually dangerous person who is likely to engage in acts of harmful sexual conduct. A sexually dangerous person (SDP) is defined by statute as a person who "(1) has engaged in a course of harmful sexual conduct . . .; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct." Minn. Stat. § 253B.02, subd. 18c (2006). "Harmful sexual conduct" is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Id., subd. 7a(a) (2006).
Appellant challenges the determination that he is likely to engage in acts of harmful sexual conduct. To support commitment as an SDP, the evidence must establish that it is "highly likely" that a person will engage in further harmful sexual conduct. In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) ( Linehan II). The Minnesota Supreme Court has established factors that a court should consider in deciding the likelihood of future harm. Linehan I, 518 N.W.2d at 614. These factors include (1) relevant demographic characteristics; (2) history of violent behavior; (3) base rate statistics for violent behavior; (4) sources of stress in the offender's environment; (5) similarity of the present or future context to those contexts in which the offender has used violence; and (6) offender's record with respect to sex-therapy programs. Id.
The record shows that appellant was convicted of three counts of second-degree criminal sexual conduct for sexually abusing his three nieces. When appellant was committed to MCF-St. Cloud in March 2005, he was diagnosed with Axis-I-pedophilia; possible adjustment disorder with mixed anxiety and depression versus depressive disorder not otherwise specified (NOS); extensive history of polysubstance dependence; extensive history of methamphetamine dependence; possible anxiety/depression secondary to withdrawal; and Axis II — deferred. Appellant's program-review team for the Sex Offender Treatment Program (SOTP) at MCF-Lino Lakes determined that appellant was a recidivist sex offender and directed him to complete chemical dependency and sex offender treatment at MCF-Lino Lakes. Appellant was later notified that he was not eligible for sex offender treatment due to insufficient time left on his sentence.
In September 2005, appellant was referred for civil commitment review. The initial SPP/SDP screening committee for civil commitment determined that they would not refer appellant for civil commitment due to his low/moderate actuarial scores, the lack of escalation of his conduct over the years, and no prior interventions. However, independent legal counsel for the Department of Corrections determined that the case was legally sufficient for civil commitment referral.
In August 2006, appellant was assigned a sex offender risk level two. At his meeting with the end of confinement review committee, appellant appeared to blame the victims stating "[t]hey liked it, the attention, they hugged me." Appellant indicated that he would go to treatment but did not believe he needed it. When appellant was asked about his drug use, he indicated that he had started weaning himself off drugs prior to his arrest. Appellant also stated that he never penetrated the victims because "they showed me where to touch them, and what they liked," and that his behavior did not escalate, which he later contradicted when he testified at his commitment trial.
Swift County retained the services of Dr. Peter Marston, Ph.D., L.P., to review appellant's records and provide a pre-petition opinion on whether appellant met the criteria for commitment as a SPP or SDP. Marston indicated that appellant should be referred as a candidate for commitment as SPP and SDP. Marston indicated that although appellant had relatively low scores on the actuarial instruments relating to sexual re-offense, appellant's "lack of insight, minimizing and failure to see his need for sex offender treatment or chemical dependency treatment indicate a distinctly higher likelihood of re-offense." Marston opined that appellant was highly likely to resume his chemical use upon release and his diagnosis of pedophilia and denials should be regarded as more meaningful as an indicator of sexual re-offense. Marston diagnosed appellant as Axis I-sexual abuse of a child; rule out pedophilia, sexually attracted to females, non-exclusive type; polysubstance dependence, in remission in a controlled setting; and Axis II-deferred. Marston noted that appellant denied a current chemical dependency problem despite a 22-year history of chemical dependency. Appellant rejected Marston's offer of an interview based on the advice of counsel.
The district court appointed Dr. Robert Riedel to interview appellant. Dr. Riedel diagnosed appellant with Axis I-paraphilia, NOS-pedophilia, non-exclusive, attracted to females; polysubstance dependence in remission in controlled setting; Axis II-antisocial personality disorder with passive aggressive and narcissistic features. Upon hearing appellant's testimony at trial, Riedel added Fetishism-female undergarments to his diagnosis. Riedel testified that appellant met most but not all of the elements related to both statutes. However, Riedel also testified that appellant meets the criteria for all of the elements of both statutes when appellant is using chemicals.
Both Marston and Riedel agreed that appellant met the first two criteria of the SDP statute. Appellant's argument is based on the disagreement between Marston and Riedel regarding whether he was likely to engage in harmful sexual conduct. Appellant contends that Riedel was the only court-appointed examiner, he was more experienced than Marston, and Marston did not interview appellant, who refused to be interviewed based on his attorney's advice. While appellant argues that Riedel testified that appellant was not likely to engage in harmful sexual conduct, and that the intensive supervised release (ISR) designed for appellant would be sufficient to prevent his re-offending, Riedel also indicated that if appellant relapsed and began using controlled substances again, he would meet the criteria and be likely to engage in harmful sexual conduct. Riedel testified that appellant's impulsivity and lack of control would greatly increase if he began using controlled substances again. Further, both Marston and Riedel testified that appellant is likely to relapse, with Riedel estimating the relapse rate for methamphetamine addiction to be 80 to 90 percent.
In addition to the testimony of Marston and Riedel, the district court also reviewed each of the Linehan factors in concluding that appellant met the criteria for an SDP. The first Linehan factor examines the relevant demographic characteristics. The district court found that "[appellant] is a male, 36-year-old, pedophile. His gender and pedophilic status raise [appellant's] risk of recidivism." While Marston testified that appellant's age was a risk factor because a pedophile's drive does not diminish until around age 60, Riedel disputed this conclusion and testified that appellant's age did not appreciably increase appellant's risk because the risk drops significantly at age 25. Both Marston and Riedel agreed, however, that appellant's chemical dependency was a significant factor in appellant's offense cycle and his coping ability. Both doctors raised concerns regarding appellant's chance of relapse upon his return to the community.
The second Linehan factor deals with the patient's history of violent behavior. The district court concluded that outside of his sexual assaults on his nieces, appellant does not have a history of violent behavior. The district court did find, however, that appellant used his position of authority and superiority to inflict the unwanted conduct on the underage victims.
The district court found that the third Linehan factor, base rate statistics, indicates that appellant has a heightened risk of re-offending. Marston testified that appellant falls into the category of a child molester and that the base rates suggest 39 percent for recidivism. Riedel testified that the base rates, based on other research, indicate that the recidivism rate could go as high as 52 percent over 25 years. Riedel conceded, however, that appellant was two to three times more likely than the average sex offender to sexually re-offend and that he meets this Linehan factor.
The district court found that the fourth Linehan factor, sources of stress in appellant's environment, is indicated in his untreated chemical dependency, his lack of a support system, and his status as a level two sex offender. Marston testified that appellant's coping mechanism — using chemicals — is an integral part of his offense cycle, which inhibits his behavior and impairs his judgment, giving him a greater sense of power. Riedel testified that appellant's chemical dependency was a concern and often hedged his diagnosis regarding appellant's status as an SDP by referring specifically to his periods of chemical use.
The district court found that the fifth Linehan factor, the similarity of present or future contexts to those contexts in which appellant has used violence in the past, is evident when comparing appellant's status both before and after his incarceration. The district court stated that appellant's status as a level 2 sex offender on ISR would cause many additional stressors in appellant's life making it more difficult to obtain employment. Appellant also lost the support system he depended on before being incarcerated. Additionally, appellant has not had the opportunity to develop coping skills for stress outside of his chemical use and offenses. In finding that appellant met this Linehan factor, the district court stated "[g]iven his current status, it is clear that [appellant] will have as many or considerably more stressors placed upon him if he were to re-enter the community and few additional coping skills to prevent his recidivism."
The district court found that the final Linehan factor, appellant's record of sex offender treatment, was more difficult to assess. Appellant has not had sex offender treatment or chemical dependency treatment but has repeatedly requested to enter such programs. However, appellant has also stated on several occasions that while he will go to treatment, he feels he does not need it.
Following appellant's civil commitment trial, the district court determined that appellant was an SDP. The court concluded that
given the high probability of [appellant] relapsing in his addictions to various controlled substances and the concurring opinions of the psychologists that once [appellant] relapses that he meets the criteria as a sexually dangerous person, as well as the analysis that [appellant] is an atypical incest offender driven by his sexual deviancy who has a high capability to manipulate and persuade, the court finds by clear and compelling evidence that [appellant] is highly likely to engage in harmful sexual conduct.
"[D]ue regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. The district court's credibility determinations in favor of the records, the examiners, and the victims' statements support the conclusion that appellant is a sexually dangerous person who is likely to engage in acts of harmful sexual conduct.
Less Restrictive Treatment Program
Appellant also argues that he established by clear and convincing evidence that a less restrictive treatment program is available that is consistent with his treatment needs and public safety. "[T]he court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient's treatment needs and requirements of public safety." Minn. Stat. § 253B.185, subd. 1 (2006). Here, the district court found that because appellant is a sexually dangerous person who is likely to relapse in his chemical dependency and ultimately engage in harmful sexual conduct, he was in need of treatment at the Minnesota Sex Offender Program. Appellant has not met his burden of proving by clear and convincing evidence that a less restrictive treatment program is available that is consistent with appellant's treatment needs and the requirements of public safety.
Double Jeopardy
Appellant next argues that because he has served his sentence for the second-degree criminal sexual conduct convictions, the civil commitment constitutes double jeopardy. However, the Minnesota Supreme Court has rejected the argument that commitment under either the sexually dangerous person or the sexual psychopathic personality acts violates double jeopardy. In re Linehan, 594 N.W.2d 867, 871-72 (Minn. 1999) ( Linehan IV) (addressing double-jeopardy challenge to sexually dangerous person statute); Joelson v. O'Keefe, 594 N.W.2d 905, 911 (Minn.App. 1999) (addressing double-jeopardy challenge to sexual-psychopathic-personality statute), review denied (Minn. July 28, 1999). Civil commitment does not implicate double jeopardy because it is remedial, and its purpose is treatment rather than punishment. Call v. Gomez, 535 N.W.2d 312, 320 (Minn. 1995).
Jury Trial
Finally, appellant argues that a civil-commitment trial should require a jury trial with a proof-beyond-a-reasonable-doubt standard. However, Minnesota courts have recognized that the state constitution does not guarantee a right to a jury trial in civil-commitment proceedings. Joelson, 594 N.W.2d at 910. The legislature also determined that this was not a matter for a jury. Minn. Stat. § 253B.185, subd. 1 (2006) (leaving for court determination whether person meets commitment criteria).