In re Civil Commitment of Ince

• Decision Date: 23 April 2014
• Docket Number: No. A12–1691.,A12–1691.
• Citation: 847 N.W.2d 13
• Parties: In the Matter of the CIVIL COMMITMENT Of Cedrick Scott INCE.
• Court: Minnesota Supreme Court

847 N.W.2d 13

In the Matter of the CIVIL COMMITMENT Of Cedrick Scott INCE.

No. A12–1691.

Supreme Court of Minnesota.

April 23, 2014.

Syllabus by the Court

1. The term “likely,” as used in the determination of whether a person is “likely to engage in acts of harmful sexual conduct” under Minn.Stat. § 253B.02, subd. 18c(a) (2012), does not indicate a defined numeric level of certainty or require that the fact-finder be substantially certain that the person will engage in acts of harmful sexual conduct. We continue to adhere to our previous construction of this provision, which requires evidence that the person is “highly likely” to engage in acts of harmful sexual conduct. In re Linehan ( Linehan III ), 557 N.W.2d 171, 180 (Minn.1996), vacated sub nom. Linehan v. Minnesota, 522 U.S. 1011, 118 S.Ct. 596, 139 L.Ed.2d 486 (1997).

2. The determination of whether an individual is highly likely to engage in acts of harmful sexual conduct should be based on the multi-factor analysis for dangerousness prediction adopted in In re Linehan ( Linehan I ), 518 N.W.2d 609 (Minn.1994), and all other evidence, including actuarial data, that the district court finds relevant and reliable. The relative weight provided to each Linehan factor and other evidence should be determined on a case-by-case basis by the district court.

3. Findings of fact that support the district court's conclusions on the availability of a less restrictive treatment program must be sufficient to permit meaningful appellate review.

4. Because of the unusual nature of the facts and circumstances presented, a remand to the district court for reconsideration in light of this opinion is required to reevaluate whether appellant is highly likely to engage in acts of harmful sexual conduct and whether a less restrictive alternative for treatment is available.Lori Swanson, Attorney General, Matthew Frank, Noah A. Cashman, Assistant Attorneys General, Saint Paul, Minnesota; and David E. Schauer, Sibley County Attorney, Winthrop, Minnesota, for respondent Sibley County.

Kenneth R. White, Law Office of Kenneth R. White, Mankato, Minnesota; and Anthony F. Nerud, Nerud Law Office, Arlington, Minnesota, for appellant Cedrick Scott Ince.

Ryan B. Magnus, Jennifer Thon, Jones and Magnus, Attorneys at Law, Mankato, Minnesota; and Teresa J. Nelson, American Civil Liberties Union of Minnesota, Saint Paul, Minnesota, for amicus curiae American Civil Liberties Union.

John Kingrey, Michael O. Freeman, John L. Kirwin, Minneapolis, Minnesota, for amicus curiae Minnesota County Attorneys Association.

OPINION

ANDERSON, Justice.

Appellant Cedrick Scott Ince was civilly committed as a sexually dangerous person pursuant to Minn.Stat. § 253B.185 (2012).¹ The petition for civil commitment was filed 1 day before Ince's release from the Minnesota correctional facility where he had served a sentence imposed following a guilty plea to third-degree criminal sexual conduct. Ince appealed his commitment, arguing that respondent Sibley County failed to prove by clear and convincing evidence that he is “likely to engage in acts of harmful sexual conduct” within the meaning of Minn.Stat. § 253B.02, subd. 18c(a)(3) (2012), and that the district court failed to adequately address the less restrictive alternative he presented, consistent with Minn.Stat. § 253B.185, subd. 1(d). In a divided, unpublished opinion, the court of appeals affirmed.

We granted Ince's petition for review to consider whether the factors relevant to the determination that a person is “likely to engage in acts of harmful sexual conduct,” as set forth in In re Linehan ( Linehan I ), 518 N.W.2d 609 (Minn.1994), require clarification or modification, and whether Ince met his burden of proving the existence of a less restrictive alternative to commitment. After a thorough review of the record and our precedent, we now reverse the decision of the court of appeals, vacate the district court's order for commitment, and remand to the district court for reconsideration.

I.

The appellant, Cedrick Ince, was 22 years old at the time of the commitment hearing and had twice been charged with criminal sexual conduct. The first occasion arose from events on February 11, 2007, while Ince, then 17 years old, was at a party. The victim, a 17–year–old known to Ince, passed out at the party after drinking. Ince, who was also drinking, removed the victim's underwear and sexually penetrated her while she remained unconscious. Ince later gave several versions of the events, all of which attempted to diminish his role and culpability in the assault. Eventually, however, Ince admitted that the sexual contact was not consensual, that he “took things way too far,” and that the victim “was heavily intoxicated.” He pleaded guilty to fifth-degree criminal sexual conduct, was adjudicated delinquent, and was placed on probation.

On October 5, 2008, 3 weeks after he was placed on probation for the first offense, Ince broke into the house of a second acquaintance and raped her. The victim, who was 19 years old and had been in a brief relationship with Ince, testified that she was sleeping on the couch in her house and woke up to find Ince on top of her. When she struggled, Ince began choking her, making it difficult for her to breathe. After raping her, Ince told the victim he had a gun and would shoot her if she called the police. Ince again sought to minimize the circumstances of this violent assault, telling police that the sex was consensual and that the victim liked “weird stuff.” In later reports, however, Ince took responsibility, saying, “I was drinking and I broke into her house and raped her.... I forced it upon her ... she said no, but I didn't listen.” Ince pleaded guilty to third-degree criminal sexual conduct and was sentenced to 48 months in prison with a 10–year conditional release term. While in prison, Ince, who has consistently been diagnosed with alcohol dependence, completed chemical dependency treatment, though not without some problems and setbacks. He was placed on a probation contract for rule violations, and he was terminated from aftercare. Ince did not enter or complete any sex offender programs in prison.

The petition for civil commitment was filed by Sibley County the day before Ince was scheduled to be released from prison. Ince was allowed to leave the facility subject to intensive supervised release from September 2011 until his commitment trial concluded in May 2012. During the 8 months that Ince was on supervised release, he obtained employment on a dairy farm, began renting a nearby house from his employer, and purchased a truck. Ince's employer reported that Ince has “done an excellent job” and has an “ongoing, continuous” offer of employment. In early 2012, Ince began court-ordered sex offender treatment at an outpatient, community treatment program, although the record suggests that Ince's disclosures to program staff were less than complete. Finally, the evidence was undisputed that Ince was considered in “sustained full remission” based on his alcohol and drug abstinence since 2009; had participated consistently in Alcoholics Anonymous (AA); and had supportive family relationships.

At the commitment hearing, the district court heard testimony from two court-appointed examiners, Dr. Penny Zwecker and Dr. Peter Marston, and from the County's expert witness, Dr. Rosemary Linderman. The district court recognized that expert testimony carries “much weight” in civil commitment proceedings and found Dr. Marston's testimony to be “particularly persuasive and convincing.” The court announced that it accepted Dr. Marston's testimony and, unless otherwise noted, rejected the testimony of the other experts who did not agree with Dr. Marston's opinions.

Based on an interview with Ince, Dr. Marston concluded that after his release from prison, Ince expressed remorse and regret for his behavior, and concern for the victims of his offenses. Based on evaluations and risk assessments, Dr. Marston diagnosed Ince with antisocial personality disorder, a psychopathic personality disorder, alcohol dependence, and attention deficit hyperactivity disorder (ADHD), and concluded that as a result of those disorders, Ince had serious difficulty controlling his sexually harmful behavior.

Dr. Marston and the other experts attempted to determine, using risk assessmentsbased on actuarial tools, the likelihood that Ince will sexually reoffend in the future. Those assessments produced varied results, placing Ince at a medium risk for reoffending (using the RRASOR assessment); a high risk of reoffending (using the Static–99R assessment); and a high risk for reoffending compared to other sex offenders (using the MnSOST–3.1 assessment). Numeric probabilities also varied, showing Ince's 5–year risk of reoffending as 31.2 percent (Static–99R assessment); or, a 4–year probability of reoffending as 7.92 percent (which is higher than 89.9 percent of sex offenders in Minnesota) (MnSOST–3.1 assessment); or, a “rule of thumb” suggested by one of the test's developers, in which the 5–year estimated rate of reoffending (31.2 percent) is doubled to establish a lifetime risk of reoffending (62.4 percent). Dr. Marston also testified regarding the Linehan factors, concluding that Ince's youth placed Ince at an increased risk of reoffending; that his offenses were serious, recent, and extremely severe; that base rate statistics indicate Ince is at a high risk of reoffending compared to a typical sex offender; that Ince's recent successes (employment, family support, and AA commitment) could be threatened by the stress associated with the commitment proceedings and his supervised release; and that, although Ince had begun sex offender treatment after his release, he did not have a relapse plan in place.

Dr. Marston acknowledged that controlling Ince's alcoholism and ADHD would generally reduce the risk of reoffending. Further, he testified that Ince's...