In re Civil Commitment of Coker

• Decision Date: 16 September 2019
• Docket Number: A19-0620
• Parties: In the Matter of the Civil Commitment of: Christopher Raymond Coker.
• Court: Minnesota Court of Appeals

In the Matter of the Civil Commitment of: Christopher Raymond Coker.

A19-0620

STATE OF MINNESOTA IN COURT OF APPEALS

September 16, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3(2018).

Affirmed; motion denied

Reyes, Judge

Commitment Appeal Panel

FileNo. AP18-9007

Marilyn B. Knudsen, St. Paul, Minnesota (for appellantChristopher Coker)

Keith Ellison, Attorney General, Anthony R. Noss, Assistant Attorney General, St. Paul, Minnesota (for respondent Commissioner of the Department of Human Services)

Michael O. Freeman, Hennepin County Attorney, Jennifer M. Inz, Assistant County Attorney, Minneapolis, Minnesota (for respondentHennepin County)

Considered and decided by Reyes, Presiding Judge; Tracy M. Smith, Judge; and Florey, Judge.

UNPUBLISHED OPINION

REYES, Judge

On appeal from the denial of his petition for full discharge from his commitment as a sexually dangerous person (SDP) after a second-phase hearing, appellant argues that (1) the Commitment Appeal Panel(CAP) erroneously determined that respondent proved by clear and convincing evidence that his petition for discharge should be denied and (2) the Minnesota Commitment and Treatment Act (MCTA) violates due-process standards and the separation-of-powers doctrine.We affirm.

FACTS

In 2000, appellantChristopher Raymond Coker was civilly committed as an SDP to the Minnesota Sex Offender Program (MSOP).He obtained provisional discharge from the MSOP in 2015.In 2017, appellant petitioned the Special Review Board(SRB) for a full discharge.The SRB denied appellant's petition.Appellant petitioned for a rehearing and reconsideration of the SRB's recommendation.Appellant made a prima facie case on his petition for discharge at the first-phase hearing.

At the second-phase hearing, respondent Commissioner of the Minnesota Department of Human Services(the commissioner) called three witnesses.The CAP issued an order concluding that the commissioner established by clear and convincing evidence that appellant's discharge should be denied.This appeal follows.

DECISION

I.The CAP did not clearly err in determining that the commissioner proved by clear and convincing evidence that appellant's petition for discharge should be denied.

Appellant challenges the CAP's denial of his petition for discharge, arguing that the commissioner failed to prove by clear and convincing evidence that his petition should be denied.We disagree.

This court reviews a CAP's decision for clear error, examining the record to determine whether the evidence as a whole sustains the CAP's findings.Matter of Civil Commitment of Kropp, 895 N.W.2d 647, 650(Minn. App.2017), review denied(June 20,2017).In this review, we do not reweigh the evidence.Larson v. Jesson, 847 N.W.2d 531, 534(Minn. App.2014).If the evidence as a whole sustains the CAP's findings, we need not consider evidence that might also provide a reasonable basis for inferences and findings to the contrary.Piotter v. Steffen, 490 N.W.2d 915, 919(Minn. App.1992), review denied(Minn. Nov. 17, 1992).

Minnesota Statutes chapter 253D provides that a committed person shall not be discharged unless the CAP determines that the committed person is (1)"capable of making an acceptable adjustment to open society;"(2)"no longer dangerous to the public;" and (3)"no longer in need of treatment and supervision."Minn. Stat. § 253D.31(2018).In determining whether to recommend discharge, the CAP "shall consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the committed person in adjusting to the community."Id.Absent these conditions, a petition for discharge shall be denied.Id.

In a first-phase hearing, the committed person bears the burden of coming forward with sufficient evidence that, if proven, would entitle the person to relief.Coker v. Jesson, 831 N.W.2d 483, 486(Minn.2013).In a second-phase hearing, the party opposing the petition bears the burden of proving by clear and convincing evidence that discharge should be denied.Minn. Stat. § 253D.28, subd. 2(d)(2018);Kropp, 895 N.W.2d at 651.

A.The commissioner proved by clear and convincing evidence that appellant is not currently capable of making an acceptable adjustment to open society.

Katie Thelemann, appellant's MSOP reintegration agent for the past two years, testified at the phase-two hearing that her team "isn't sure how [appellant will] handle a move to a residence that's not as supervised," and, as a result, appellant remains fixed in his current tier of MSOP supervision.Theleman testified that appellant is a "very capable, able-bodied individual to live on his own."She testified that she encouraged him to seek different housing than the "24-7 oversight" outpatient residence where he currently resides because "[MSOP] would expect that he not be [living there] any longer than he needs to."Thelemann testified that appellant is "not interested in moving" to more independent housing because he does not want to move to St. Paul, as it is too far away from his job and family, he does not want to live in a house with other sex offenders because his fiancée might visit him, and it would cost $200 more per month than what he is currently paying.

According to Thelemann, the MSOP reintegration staff encouraged appellant to find different employment with better pay after he noted that his current employment does not pay enough for him "to create the life that he wants in the community for himself."Appellant expressed "reluctan[ce] to pursue [other job opportunities] because he is nervous about [Thelemann's] supervision requirements getting in the way of the [new] employer."Thelemen informed appellant that, as his reintegration agent, she would be as flexible as possible with a new employer should he find one.In essence, appellant has not demonstrated to MSOP his ability to live independently in the community because he has self-limited his advancement within the MSOP-supervision tiers by failing to implementthe reintegration agent's feedback relating to more independent housing and obtaining higher-paying employment.

Dr. Mallory Obermire, a forensic evaluator with the Department of Human Services, prepared a report in advance of the second-phase hearing, in which she opined about appellant's results in several sexual-violence-risk assessments.Dr. Obermire testified about the Structured Assessment of Protective Factors (SAPROF), "an assessment tool designed to measure protective factors for adult offenders."¹The relevant protective factors for appellant are coping, self control, work, attitude toward authority, social network, intimate relationship, professional care, living circumstances, and external control.Dr. Obermire noted that "some of these [protective] factors would not be in place if he were granted a full discharge, including living circumstances and external control."Her report also noted that "[t]his is particularly important" as these factors encompass aspects of reintegration into the community.Dr. Obermire concluded that appellant's "resistance to seeking alternative housing, to seeking independent living skills, [and] to utilizing independent living skills . . . raises concern about his ability to adjust [to open society] successfully," and he"remains stagnant" in provisional discharge.

Dr. Linda Marshall, a court-appointed examiner who conducted a risk assessment of appellant, testified that he currently is not capable of making an acceptable adjustment to open society, "[b]ecause he's [still] in the process right now of doing some gradualtransition to open society."She opined that appellant is "sabotaging his treatment" by "not working fully with the reintegration specialist ... in terms of recommendations that are made to him."For example, by not following through with recommendations to seek housing with a lower level of supervision, appellant fails to "gradual[ly] reunify[y] with society and learn[] to be able to live independently and develop [the] skills to be successful."Dr. Marshall agreed that the MSOP agent's recommendations are consistent with "successful and acceptable adjustment to the community" and would promote "increase[d] interactions with all members of society."She noted that "[i]t's offered to him. . . but he's not taking advantage of the opportunit[ies]."She agreed with appellant's antisocial-personality diagnosis and that further assessments showed that he had a high degree of antisocial behavior.She noted that appellant has not yet demonstrated the ability to handle the stressors of daily living.Based on the witnesses' testimony, the commissioner provided clear and convincing evidence that appellant is not currently capable of making an acceptable adjustment to open society.

B.The commissioner proved by clear and convincing evidence that appellant remains a danger to the public.

Dr. Obermire's testimony and report indicate that, at present, appellant poses a danger to the public, and that the danger relates to his sexual disorder.On the Static-99R, which "is designed for use with adult male sexual offenders to predict sexual recidivism,"appellant"received a total score of 6, reflective of Level IVb (i.e.Well Above Average).""Offenders in this risk level generally present with higher risk for sexual re-offense than typical offenders."Based on appellant's Static-99R score, his "dynamic need areas, andhis current status,"he closely reflects a sample group that has "a recidivism rate of 20.5 percent within a five year follow-up period."

On the Static-2002R, which "measure[s][the] risk of sexual and violent recidivism" in adult male sexual offenders,²appellant received a score of 8, "which places him in the Level IVb, Well Above Average Risk Category."Offenders with this score "sexually reoffend at a rate of 34.3 percent within a five-year follow-up period."

As to the Stable-2007, an...