Opinion
No. A07-670.
Filed September 25, 2007.
Appeal from the District Court, Olmsted County, File No. 55-P1-05-005138.
Patrick J. Arendt, (for appellant Scott Wilton Lentz).
Mark A. Ostrem, Olmsted County Attorney, Geoffrey A. Hjerleid, Assistant County Attorney, (for respondent State of Minnesota).
Considered and decided by Willis, Presiding Judge; Toussaint, Chief 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION
Appellant challenges his commitment as a sexually dangerous person, arguing that the evidence is insufficient to support the commitment; that the district court erred when, after a review hearing, it continued appellant's commitment as a sexually dangerous person; and that his commitment violates his right against double jeopardy. We affirm.
FACTS
In July 1988, when he was 22 years old, appellant Scott Wilton Lentz was charged with second-degree criminal sexual conduct for assaulting an 11-year-old girl: the girl awoke in her bedroom to find Lentz naked from the waist down, and Lentz had placed the child's hands on his penis. Lentz pleaded guilty to an amended charge of fifth-degree criminal sexual conduct. In September 1991, Lentz was charged with fourth-degree criminal sexual conduct for sexually assaulting a woman, who awoke to find Lentz fondling her breasts under her shirt. When the woman turned away, Lentz put his hands inside her shorts and touched her vaginal area. The charge was amended to fifth-degree criminal sexual conduct, but when a rule 20 evaluation showed that Lentz was unable to participate in his own defense, the proceedings were stayed.
In January 1994, Lentz fired a shotgun in his apartment, injuring a girl in an adjoining apartment. When police responded to Lentz's apartment, they discovered liquor bottles that were filled with gasoline and contained cloth wicks. Lentz was charged with possession of an incendiary device. In addition, the 1991 fifth-degree criminal-sexual-conduct charge was refiled, and Lentz also was charged with indecent exposure for masturbating in public in June 1993. Lentz pleaded guilty to all three charges.
In April 2002, Lentz was charged with and subsequently convicted of gross-misdemeanor indecent exposure for masturbating on the patio of a church. Lentz told the presentence investigator that he committed the act to obtain medical attention and to "avoid being homeless." In August 2005, Lentz was discovered with six teenagers smoking marijuana in a city park. When police searched Lentz's backpack, they discovered a bag of tobacco, cigarette rolling papers, condoms, and a bed sheet. Police officers notified Lentz's probation agent, who searched Lentz's room, discovering "6 pornographic magazines, including teenage pornography," as well as drug paraphernalia. Lentz was convicted of four counts of contributing to the delinquency of a minor.
In addition, Lentz has been convicted of three charges of interference with privacy. In March 1998, a police officer saw Lentz looking through a window of a woman's home; the officer saw Lentz duck away when it appeared that the woman was turning toward the window. The district court here noted, on the basis of the police report, that when the occupant was told of Lentz's actions, she "became very upset and was crying." In May 1998, Lentz was discovered using a lawn chair to look inside the window of another woman's home. The district court found, on the basis of a presentence-investigation report, that when the woman was told of Lentz's actions, she "was so afraid and disturbed" that she moved from the house. And in June 1999, Lentz was seen looking through windows of the home of a woman and her teenage daughter. When the police arrested Lentz, he had condoms, lubricating gel, marijuana, and drug paraphernalia in his possession. The district court noted that Lentz's actions caused the victim fear. Lentz was subsequently convicted of gross-misdemeanor interference with privacy.
In December 2005, the Department of Corrections classified Lentz as a level-3 sex offender. On December 23, 2005, the state filed a petition to have Lentz committed as a sexual-psychopathic personality (SPP) and a sexually dangerous person (SDP).
The district court appointed Dr. Linda Marshall as an independent examiner. Dr. Marshall diagnosed Lentz as suffering from bipolar I disorder, unspecified; schizoaffective disorder, bipolar type; polysubstance dependence; paraphilia, not otherwise specified (NOS); and personality disorder NOS, with antisocial, paranoid, avoidant, and schizoid traits. Dr. Marshall concluded that on the basis of Lentz's file, actuarial tests, and a clinical interview, Lentz "meets the criteria for commitment as a [s]exually [d]angerous [p]erson" but does not meet the criteria for commitment as an SPP.
Lentz requested a second independent examiner, and the district court appointed Dr. Peter Meyers. Dr. Meyers diagnosed Lentz with dysthymia; alcohol and cannabis dependence; polysubstance disorder; and schizoid personality disorder. Dr. Meyers concluded that Lentz did not meet the criteria for commitment as an SPP or as an SDP because of his diagnosis that Lentz suffered from schizoid personality disorder, which, he testified, is characterized as having "little, if any, interest in having sexual experiences with another person."
After a hearing, the district court determined that Lentz satisfied the criteria for commitment as an SDP but not the criteria for commitment as an SPP. The district court determined that Lentz had engaged in a course of harmful sexual conduct: the two convictions of fifth-degree criminal sexual conduct and the three convictions of interference with privacy.
The district court concluded that Lentz's two criminal-sexual-conduct convictions were presumed to be acts of harmful sexual conduct because although Lentz was ultimately convicted of fifth-degree criminal sexual conduct in each case, his "conduct [was] described by" the statutes defining second-degree and fourth-degree criminal sexual conduct and, under Minn. Stat. § 253B.02, subd. 7a(b) (2006), acts described by the statutes defining those crimes are presumed to be acts of harmful sexual conduct. The district court also concluded that Lentz's convictions of interference with privacy were acts of harmful sexual conduct because they created a "substantial likelihood . . . of causing serious emotional harm" to the women. Relying on Dr. Marshall's report, the district court determined that Lentz suffers from a sexual disorder and that Lentz cannot "adequately control his sexual impulses."
A 60-day review hearing was held, at which the intake psychologist at the Minnesota Security Hospital testified that there had been no changes in Lentz's mental health. In addition, Dr. Meyers testified that there was no evidence that would weigh against Lentz's continued commitment, although Dr. Meyers opined that he still believed that Lentz "does not have any sexual disorder diagnosis." The district court concluded that Lentz continued to satisfy the criteria for commitment as an SDP, and this appeal follows.
DECISION I.
Lentz argues first that the evidence is insufficient to support the district court's determination that he met the criteria for commitment as an SDP. On appeal from an order committing a person as an SDP, we defer to the district court's findings of fact, and we will not reverse those findings unless they are clearly erroneous. Minn. R. Civ. P. 52.01; In re Civil Commitment of Ramey, 648 N.W.2d 260, 269 (Minn.App. 2002), review denied (Minn. Sept. 17, 2002). We give due regard to the district court's opportunity to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01; Ramey, 648 N.W.2d at 269. And when the district court's findings of fact rest almost entirely on expert testimony, its evaluation of credibility is of particular significance. In re Civil Commitment of Janckila, 657 N.W.2d 899, 904 (Minn.App. 2003). But whether the evidence is sufficient to meet the statutory requirements for commitment is a question of law. In re Civil Commitment of Martin, 661 N.W.2d 632, 638 (Minn.App. 2003), review denied (Minn. Aug. 5, 2003).
A district court will commit a person as an SDP under the Minnesota Commitment and Treatment Act if the state proves that the person meets the criteria for commitment by clear-and-convincing evidence. Minn. Stat. §§ 253B.18, subd. 1(a), 253B.185, subd. 1 (2006). An SDP is one 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(a) (2006).
A. Course of harmful sexual conduct
"Harmful sexual conduct" is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a) (2006). A course of harmful sexual conduct is a sequence of such conduct occurring over a period of time. In re Civil Commitment of Stone, 711 N.W.2d 831, 837 (Minn.App. 2006), review denied (Minn. June 20, 2006). The incidents establishing a course of conduct may extend over a long period, and a court is not limited to considering conduct that resulted in a criminal conviction. Stone, 711 N.W.2d at 837 (stating that conduct need not be recent); Ramey, 648 N.W.2d at 268 (stating that court may consider conduct not resulting in conviction). To be harmful, the conduct does not have to cause actual physical or emotional harm but rather must create a substantial likelihood of physical or emotional harm. Ramey, 648 N.W.2d at 269.
Lentz contends first that the district court erred by presuming that his two convictions of fifth-degree criminal sexual conduct constituted harmful sexual conduct, arguing that because he "has never been convicted of Criminal Sexual Conduct in the 1st-4th degrees, . . . it cannot be legally presumed that any of his victims suffered serious physical or emotional harm."
There is a rebuttable presumption that conduct described in the statutes defining criminal sexual conduct in the first through fourth degrees "creates a substantial likelihood that a victim will suffer serious physical or emotional harm." Minn. Stat. § 253B.02, subd. 7a(b) (2006). The 1988 and 1991 charges were for conduct that is described by the statutes defining second-degree and fourth-degree criminal sexual conduct. See Minn. Stat. § 609.343, subd. 1(a) (1986) (prohibiting sexual contact between a complainant under 13 when the actor is more than 36 months older than the complainant); see also Minn. Stat. § 609.345, subd. 1(c) (1990) (prohibiting sexual contact accomplished by force or coercion). But in both instances, Lentz pleaded guilty to fifth-degree criminal sexual conduct. We conclude, therefore, that the presumption of harmful sexual conduct in Minn. Stat. § 253B.02, subd. 7a(b) (2006), cited by the district court, does not apply here. See Stone, 711 N.W.2d at 838. But the district court also made express factual findings to support its conclusion that Lentz's behavior giving rise to the charges was, in fact, harmful sexual conduct under Minn. Stat. § 253B.02, subd. 7a(a) (2006). The district court found that the 1988 incident was "an act of harmful sexual conduct . . . in that it created a substantial likelihood of causing serious physical or emotional harm to the child." The district court further recognized that the "victim child suffered significant emotional injury," noting that after the attack, the "child cried a great deal of the time, would not leave the family home by herself, and at the time of the sentencing, the child had taken to wearing 4 or 5 shirts at once and 2 or 3 pants at a time." Similarly, the district court found that Lentz's 1991 conviction was based on an incident of harmful sexual conduct. The court noted that "the victim demonstrated emotional trauma as a result of the assault" and that officers discovered the victim "hiding in the closet, crying, and talking incoherently" and described her as appearing frightened. As a result, the district court concluded that the 1991 conviction was based on "an act of harmful sexual conduct . . . in that it created a substantial likelihood of causing serious physical or emotional harm." The district court, therefore, made sufficient findings to sustain its conclusion that Lentz engaged in a course of harmful sexual conduct.
Lentz does not argue that the conduct giving rise to the 1988 and 1991 charges is not described by the statutes defining second-degree and fourth-degree criminal sexual conduct; rather, Lentz argues only that because he was not convicted of second-degree or fourth-degree criminal sexual conduct, the statutory presumption does not apply.
Lentz argues next that the district court erred by concluding that his three convictions of interference with privacy constitute harmful sexual conduct, contending that he "made no physical contact with anyone." Lentz's argument is without merit. Lentz relies on In re Rodriguez, 506 N.W.2d 660, 663 (Minn.App. 1993), review denied (Minn. Nov. 30, 1993), in which this court reversed the commitment of a person under the SPP statute because the person was a "nonviolent exhibitionist." But unlike the SPP statute, the SDP statute does not require a showing of violent conduct; therefore, Rodriguez is not applicable. See In re Robb, 622 N.W.2d 564, 573 (Minn.App. 2001), review denied (Minn. Apr. 17, 2001). The district court specifically found that the three indecent-exposure convictions posed a substantial likelihood of emotional harm. We agree with the district court's conclusion that Lentz's three convictions of interference with privacy constituted harmful sexual conduct.
B. Sexual, personality, or other mental disorder or dysfunction
The second element to be considered in an SDP commitment proceeding is whether the individual "has manifested a sexual, personality, or other mental disorder or dysfunction." Minn. Stat. § 253B.02, subd. 18c(a)(2) (2006). Lentz argues that the district court erred by crediting the testimony of Dr. Marshall, who concluded that Lentz satisfied the second element, over that of Dr. Meyers, who concluded that Lentz did not. Dr. Marshall diagnosed Lentz as suffering from bipolar I disorder, schizoaffective disorder, polysubstance disorder, paraphilia disorder, and personality disorder. But Dr. Meyers concluded that because Lentz suffers from schizoid personality disorder, which is characterized by a low interest in sexual experiences, he did not meet the criteria for commitment as an SDP. The district court discredited Dr. Meyers's conclusion because it determined that Dr. Meyers applied the wrong legal standard and because Dr. Meyers's conclusion is not supported by Lentz's mental-health history and was based "primarily" on Lentz's own statements.
It was the district court's prerogative to credit the testimony of Dr. Marshall over that of Dr. Meyers. See Ramey, 648 N.W.2d at 269. And Dr. Marshall's report provided the district court with an adequate basis for determining that Lentz suffers from a sexual, personality, or other disorder.
C. Likelihood of engaging in acts of harmful sexual conduct
The third element to be considered in an SDP commitment proceeding is whether, as a result of an individual's course of misconduct and mental disorders or dysfunctions, the individual is "likely to engage in acts of harmful sexual conduct." Minn. Stat. § 253B.02, subd. 18c(a)(3) (2006). To satisfy this element, the state must show that it is difficult, if not impossible, for the person to control his dangerous behavior because of the person's disorder or abnormality. In re Linehan ( Linehan IV), 594 N.W.2d 867, 875 (Minn. 1999). A court should consider the six factors articulated in In re Linehan ( Linehan I), 518 N.W.2d 609, 614 (Minn. 1994): "(1) the offender's demographic characteristics; (2) the offender's history of violent behavior; (3) the base-rate statistics for violent behavior among individuals with the offender's background; (4) the sources of stress in the offender's environment; (5) the similarity of the present or future context to those contexts in which the offender used violence in the past; and (6) the offender's record of participation in sex-therapy programs." Stone, 711 N.W.2d at 840 (citing Linehan I, 518 N.W.2d at 614).
Lentz asserts that the district court erred by determining that he was likely to engage in acts of harmful sexual conduct, arguing that three of the Linehan I factors do not support the district court's conclusion. Lentz argues first that under the second Linehan I factor, he does not have a history of violent behavior because his two convictions of fifth-degree criminal sexual conduct were not for violent behavior because neither involved intercourse. We fail to see why this is relevant to whether the conduct was violent.
Lentz argues also that the two convictions are not relevant because they occurred in 1988 and 1991, more than a decade before this petition was filed. But relevant conduct need not be recent conduct. Stone, 711 N.W.2d at 837.
Lentz argues next that under the third Linehan I factor, the actuarial tests used to predict future dangerousness are flawed because they overstate the risk in his case, relying on Dr. Meyers's testimony. But Dr. Marshall testified that the Static-99 generally underestimates risk and that the SVR-20 cannot exaggerate a person's risk. And as we have noted, the district court was entitled to credit Dr. Marshall's testimony over Dr. Meyers's.
Lentz argues finally that under the sixth Linehan I factor, his failure to complete sex-offender treatment was the result of his history of mental illness, and he was not incarcerated long enough to complete a program. Again, why Lentz failed to complete sex-offender treatment is not relevant to the issue of whether he completed such treatment.
The record shows that Dr. Marshall applied all six of the Linehan I factors and concluded that there was a high likelihood that Lentz would reoffend. Specifically, Dr. Marshall concluded that Lentz's demographic characteristics, namely, his age and sex, did not reduce his risk of reoffending; that Lentz has a history of violent behavior; that based on actuarial analysis, base-rate statistics indicate that Lentz presents a "moderate to high likelihood" of reoffending; that stress "will appear to be substantial" for Lentz if he returns to the community as a level-3 sex offender; that Lentz will be returning to a context similar to that in which he violated probation as an untreated sex offender because there have been no changes in his support system; and that Lentz has never completed a sex-offender treatment program. Based on this evidence, the district court's finding that there is a high likelihood that Lentz will reoffend is not clearly erroneous.
II.
Lentz also argues that the district court erred by not discharging Lentz's commitment as an SDP after the review hearing and recommitting Lentz as mentally ill. At the 60-day review hearing, the patient may not challenge every aspect of the commitment order, and evidence is limited to "(1) the statutorily required treatment report; (2) evidence of changes in the patient's condition since the initial commitment hearing; and (3) such other evidence as in the district court's discretion enhances its assessment of whether the patient continues to meet statutory criteria for commitment." In re Linehan ( Linehan III), 557 N.W.2d 167, 171 (Minn. 1996), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997).
Lentz argues that the evidence at the review hearing did not support a finding that the statutory requirements for continued commitment had been satisfied. We disagree. At the hearing, a psychologist from the security hospital testified that there had been no changes in Lentz's mental health that would suggest that Lentz should be discharged. And Dr. Meyers, on whose testimony Lentz relies, testified that there have been no changes in Lentz's condition, although he continued to dispute whether Lentz should have been committed in the first place. Because a review hearing is limited to evidence of any change in the patient's condition, and because there was evidence that there had been no changes in Lentz's condition, the district court's conclusion that Lentz continued to meet the statutory requirements for commitment as an SDP is supported by the record.
III.
Finally, Lentz argues that the SDP statute is unconstitutional because it violates his right against double jeopardy. This court reviews a constitutional challenge de novo. State v. Johnson, 689 N.W.2d 247, 253 (Minn.App. 2004), review denied (Minn. Jan. 20, 2005). Minnesota statutes are presumed constitutional. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). A party challenging the constitutionality of a statute bears the burden of proving a violation of a constitutional protection beyond a reasonable doubt. Id.
"If an individual otherwise meets the requirements for involuntary civil commitment, the State is under no obligation to release that individual simply because the detention would follow a period of incarceration." Kansas v. Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072, 2086 (1997). The Minnesota Supreme Court has held in numerous cases that civil commitment is a remedial, not a punitive, action. See, e.g., In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994). It has therefore rejected the argument that the SPP and SDP statutes violate the double-jeopardy clauses of the state and federal constitutions. Linehan IV, 594 N.W.2d at 871-72.
Lentz argues that because "the current level of confinement at the Minnesota Sex Offender Program . . . is equivalent to that of incarceration," his commitment violates his right against double jeopardy. Lentz relies on State v. Razmyslowski, 668 N.W.2d 681, 684 (Minn.App. 2003), in which this court granted jail credit to a defendant who had spent time in a mental-health institution as a condition of probation. But Razmyslowski did not address double jeopardy in the context of civil commitment. And as noted above, the Minnesota Supreme Court has determined that civil commitment does not violate a person's right against double jeopardy. Linehan IV, 594 N.W.2d at 871-72. Lentz's argument therefore fails.