In the Matter of Civil Commitment of Deloach, No. A05-985 (MN 10/11/2005)

• Decision Date: 11 October 2005
• Docket Number: No. A05-985.,A05-985.
• Parties: In the Matter of the Civil Commitment of: Kermit Lorenzo Deloach.
• Court: Minnesota Supreme Court

Page 1

Unpublished Opinion

In the Matter of the Civil Commitment of: Kermit Lorenzo Deloach.

No. A05-985.

Court of Appeals of Minnesota.

Filed October 11, 2005.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).

Appeal from the District Court, Hennepin County, FileNo. MH-PR-04-584.

Stephen D. Radtke, (for appellant).

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, (for respondent).

Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Stoneburner, Judge.

UNPUBLISHED OPINION

STONEBURNER, Judge.

Appellant challenges his commitment as a sexually dangerous person (SDP), asserting constitutional challenges, arguing that the record does not support the finding that he is highly likely to reoffend, and contending that the district court erred in determining that commitment is the least-restrictive alternative.Because appellant's constitutional arguments have been previously rejected, there is clear and convincing evidence that appellant is highly likely to reoffend, and appellant did not present clear and convincing evidence of a less-restrictive available treatment option that would meet his treatment needs and the needs of public safety, we affirm.

FACTS

Anoka County Human Services petitioned for appellant's involuntary commitment as a sexual psychopathic personality and a sexually dangerous person.The district court appointed James Alsdurf, Ph.D., and Thomas Alberg, Ph.D., as examiners.Both experts submitted written opinions and testified in detail at appellant's two-day commitment trial.Dr. Alsdurf testified that appellant's scores on various risk-assessment instruments, as well as other factors, place appellant in the "highly likely" to reoffend range and that appellant meets the sexually dangerous person criteria.Dr. Alberg also testified that appellant meets the criteria to be considered a sexually dangerous person, but qualified his conclusion by opining that appellant is "more likely than not," rather than "highly likely," to reoffend.

Appellant presented testimony from his parole officer, his girlfriend, and his mother.The parole officer, who had been providing intensive supervision to appellant at the time he last violated parole, testified about a plan developed for appellant's prior parole, which involved appellant being on "intensive supervised release," living at a halfway house, attending outpatient sex-offender treatment at Alpha Services, and additional weekly treatment groups for sex offenders and the chemically dependent.The parole officer proposed this plan, with the addition of GPS monitoring, as a viable alternative to commitment.He testified that if appellant absconded from any of the groups or programs or had contact with minors, his probation would likely be revoked and he would be returned to prison.The parole officer and the director of Alpha Services both testified that appellant would not be able to obtain residential treatment from Alpha Services under a civil commitment.

Appellant's girlfriend and mother expressed doubt about whether appellant committed the sex offenses for which he was convicted and whether he is a danger to children.They testified that they would provide support for appellant in the community and would report any probation violations, despite their failure to report past violations of which they were aware.Both also testified that they believed appellant would not use drugs again, his girlfriend testifying that he had "been through enough" and his mother stating that he"went through so much."

The district court dismissed the allegation that appellant is a sexual psychopathic personality but committed appellant as a sexually dangerous person, concluding that the evidence was clear and convincing that appellant is "highly likely to engage in harmful sexual conduct in the future due to [appellant's] history of violent behavior, base rate statistics, similarity of present and future contexts to past, and record of sex therapy," and his lack of remorse and lack of truth regarding sexual matters.The court also found no suitable less-restrictive alternative to commitment and treatment at the Minnesota Sex Offender Program.

As required by law, the court conducted a 60-day review hearing after receiving the report of a court-appointed examiner, Dr. James Gilbertson, and the report of appellant's evaluation by a treatment team at the Minnesota Sex Offender Program that included a psychological assessment and social history.The treatment team concluded there was no change in the conditions that led to the initial commitment, appellant would benefit from sex-offender treatment, and he is in the category of offenders who present a high risk for reoffense.Dr. Gilbertson also concluded that there was no change in the conditions that led to the finding of SDP, that appellant is highly likely to reoffend without inpatient, residential sex-offender treatment, and that the outpatient program proposed by appellant would not be adequate.The district court concluded that appellant continued to be a sexually dangerous person in need of inpatient sex-offender treatment and ordered appellant's indefinite commitment as an SPD.This appeal of both the interim and indeterminate commitment orders followed.

DECISION

I.Standard of review

When reviewing a commitment, this court is limited to an examination of whether the district court complied with the requirements of the commitment act.In re Janckila,657 N.W.2d 899, 902(Minn. App.2003).An appellate 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).The reviewing court will not defer to the district court if it has erred as a matter of law.In re Pirkl,531 N.W.2d 902, 907(Minn. App.1995), review denied(Minn. Aug. 30, 1995).Whether the record contains clear and convincing evidence of the statutory elements for commitment is a question of law, which this court reviews de novo.In re Linehan,518 N.W.2d 609, 613(Minn.1994)(Linehan I).An appellate court will not reverse a district court's findings as to the least-restrictive treatment program that can meet the patient's needs unless clearly erroneous.In re Thulin,660 N.W.2d 140, 144(Minn. App.2003);In re Kellor,520 N.W.2d 9, 12(Minn. App.1994), review denied(Minn. Sept. 28, 1994).

II.The SDP Commitment Law

A "sexually dangerous person"(SPD) is defined as a person who:

(1) has engaged in a course of harmful sexual conduct as defined in [Minn. Stat. § 253B.02, subd. 7a(2004)];

(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 as defined in subdivision 7a.

Minn. Stat. § 253B.02, subd. 18c(a)(2004).The statute also provides that, "[f]or purposes of this provision, it is not necessary to prove that the person has an inability to control the person's sexual impulses."Id.,subd. 18c(b).But the supreme court has held that the statute must be interpreted to require a showing that the person's disorder "does not allow [him] to adequately control [his] impulses."In re Linehan,594 N.W.2d 867, 876(Minn.1999)(Linehan IV), cert. denied,528 U.S. 1049(1999).And the supreme court has held that the statutory phrase "likely to engage in acts of harmful sexual conduct" must be interpreted to mean that the person is "highly likely" to engage in such conduct.In re Linehan,557 N.W.2d 171, 180(Minn.1996)(Linehan III), vacated and remanded on other grounds,522 U.S. 1011, 118 S. Ct. 596(1997), aff'd as modified,594 N.W.2d 867(Minn.1999),cert. denied,528 U.S. 1049(1999).The elements for commitment must be proved by clear and convincing evidence.Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd. 1(2004).

III.Constitutional challenges to Minn. Stat. § 253B.02(2004)

Appellant argues that his commitment under the SDP law¹ violates substantive due process and the Double Jeopardy and Equal Protection clauses under the United States Constitution, and his right to a jury trial under the Minnesota Constitution.At oral argument, appellant's counsel candidly conceded that each of these challenges to the SDP law has been rejected by this court and the supreme court in previous decisions and acknowledged that this court is bound by precedent on these issues.SeeState v. Ward,580 N.W.2d 67, 74(Minn. App.1998)(stating that as an intermediate appellate court, this court is "not in [a] position to overturn established supreme court precedent.").Based on this binding precedent, we reject appellant's constitutional challenges to his commitment.²

IV.The record supports the district court's finding that appellant is highly likely to reoffend

Appellant does not challenge the district court's finding that he is a person who has engaged in a course of harmful sexual conduct as defined in the statute or the finding that he has manifested a sexual, personality, or other mental disorder or dysfunction.But appellant argues that there is not clear and convincing evidence in the record that demonstrates he is highly likely to engage in harmful sexual conduct.

In Linehan III,the supreme court held that the six Linehan I factors for predicting future dangerousness in a SPP commitment are used to determine the likelihood of future harm in a SDP commitment.557 N.W.2d at 189.The factors are: (1) relevant demographic characteristics; (2) history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the environment; (5) similarity of present and future contexts to past contexts in which violence was used; and (6) the record with regard to sex-therapy programs.Linehan I,518 N.W.2d at 614.In detailed findings, the district court reviewed appellant's...