Opinion
No. A06-1657.
Filed February 27, 2007.
Appeal from the District Court, Marshall County, File No. 45-P4-05-000001.
Richard N. Sather II, (for appellant Lund).
Lori Swanson, Attorney General, Allen Y. Louie, Assistant Attorney General, (for respondent State of Minnesota).
Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Wright, 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This opinion will be unpublished and may not be cited except as provided by Minn.Stat.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UNPUBLISHED OPINION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 an order for his indeterminate commitment as a sexually dangerous person and a sexual psychopathic personality, appellant Jeremy Allan Lund argues that the evidence does not establish clearly and convincingly that he is highly likely to engage in future acts of harmful sexual conduct or that he has an utter lack of power to control his sexual impulses. Because the trial court's findings are not clearly erroneous, are supported by the record, and satisfy the criteria for civil commitment, we affirm.
DECISION
We will uphold the trial court's factual findings unless they are clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). Whether the findings satisfy the statutory criteria for commitment, however, is a question of law that we review de novo. In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).
"Where the findings of fact rest almost entirely on expert testimony, the trial court's evaluation of credibility is of particular significance." In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). This court does not reweigh the evidence but instead gives due deference to a trial court's broad discretion to evaluate testimonial and documentary evidence. Haefele v. Haefele, 621 N.W.2d 758, 763 (Minn.App. 2001), review denied (Minn. Feb. 21, 2001).
I.
A sexually dangerous person (SDP) is a person who has engaged in a course of harmful sexual conduct, has manifested a sexual, personality, or other mental disorder or dysfunction and, as a result, is likely to engage in acts of harmful sexual conduct. Minn.Stat. § 253B.02, subd. 18c(a) (2004). The state is not required to prove an inability to control sexual impulses but must show that the person has an existing disorder or dysfunction that results in inadequate impulse control, making it highly likely that the person will reoffend. Id., subd. 18c(b) (2004) (stating that inability to control impulses is not required); In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999) (requiring high likelihood of recidivism).
Appellant argues that the court's finding that he is "highly likely" to reoffend is clearly erroneous. When reviewing a determination that a person is likely to engage in acts of harmful sexual conduct, we consider whether the likelihood is high. Linehan IV, 594 N.W.2d at 876. For this consideration, we utilize the factors established in Linehan I, 518 N.W.2d at 614. These factors include (1) relevant demographic characteristics; (2) a history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the offender's environment; (5) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (6) the person's record with respect to treatment programs. Id.
The trial court specifically addressed each of the Linehan factors and found court-appointed examiner Dr. Robert Riedel's testimony on them credible. Court-appointed examiner Dr. John Austin agreed with Dr. Riedel that the demographic characteristics and appellant's poor record of sex therapy supported commitment. Both experts considered the commonly used instruments for predicting recidivism and both found that appellant fell within the "high" category of likelihood of reoffending under the STATIC-99. Dr. Riedel testified regarding the limitations of the instruments. He testified that some may underestimate and some may overestimate recidivism and that base rates may vary. He then evaluated each instrument in light of appellant's circumstances. He opined, "taken as a whole, or any one [risk predictor] individually," appellant is highly likely to reoffend. The trial court did not err in its findings that Dr. Riedel's testimony was credible and appellant is highly likely to reoffend.
Appellant generally argues that the trial court overlooked evidence relating to appellant "as he exists today," having "accepted his homosexuality," with no advances or attempted contact with minor children since the initial problems; ignored testimony of the second court-appointed examiner that appellant's risk of acting out sexually again was not "highly likely"; and disregarded records showing appellant's emotional stability had increased, his sexual crimes were not violent, and his infrequent misconduct involved neither weapons nor "violent forced rapes." These arguments lack merit.
Appellant argues, without citation to the record, that a review of the district court records and exhibits "as a whole" shows that his emotional stability has increased. A material assertion of fact in a brief must be supported by a cite to the record. Hecker v. Hecker, 543 N.W.2d 678, 681-82 n. 2 (Minn.App. 1996) (citing Minn. R. Civ. App. P. 128.02, subd. 2, 128.03), aff'd, 568 N.W.2d 705 (Minn. 1997). Even if the record supported such a demonstration, appellant does not show how this demonstration would impact the court's findings on the Linehan factors.
The record indicates that appellant has not successfully completed sex offender treatment and has continued to violate rules by making sexual comments and gestures to staff and peers and by possessing pornography. He also continued to have contact with minor children and drink alcohol after chemical-dependency treatment. The court did not "ignore" Dr. Austin; the court noted and accepted some of Dr. Austin's opinions and made several findings based on Dr. Austin's examination of appellant. Finally, appellant's argument that his conduct was not violent is contradicted by documentary evidence of his use of coercion, threats, and psychological and physical force to obtain the children's compliance and by the victims' credible testimony that they suffered significantly from the incidents.
The trial court had clear and convincing evidence to support its finding of a high likelihood of reoffense.
II.
Commitment as a sexual psychopathic personality (SPP) requires clear and convincing proof that a person (1) has either emotional instability, impulsive behavior, a lack of customary standards of good judgment, or a failure to appreciate the consequences of personal acts; (2) as a result, has engaged in a habitual course of sexual misconduct; and (3) has an utter lack of power to control sexual impulses and, therefore, is dangerous to others. Minn.Stat. §§ 253B.02, subd. 18b, .18, .185 (2004). When considering an offender's utter inability to control his sexual impulses, the court looks at the nature and frequency of assaults, the degree of violence, the offender's relationship to the victims, the offender's attitude and mood, the offender's medical and family histories, and the results of evaluations. In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994). Other relevant factors are the offender's refusal of treatment opportunities, the lack of a relapse-prevention plan, the presence of grooming behavior, the failure of the offender to remove himself from similar situations, and the existence of a period in which the offender controlled his sexual behavior. In re Pirkl, 531 N.W.2d 902, 907 (Minn.App. 1995), review denied (Minn. Aug. 30, 1995); In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn.App. 1994), review denied (Minn. Oct. 27, 1994).
The trial court considered each of the Blodgett factors and found that Dr. Riedel's opinion that appellant lacked control was persuasive and credible. The trial court also noted that Dr. Austin found that appellant's history demonstrates "marked impulsivity" and that appellant admitted impulsiveness of behavior.
Appellant argues that the trial court erred in its application of the Blodgett degree-of-violence factor. Appellant argues that, "No victim needed medical treatment, nor were any cut, severely bruised, there was no gratuitous violence and there was not even penetration." Absent citation to authority supporting appellant's position that physical harm was required, this court need not address the issue. See Ganguli v. University of Minn., 512 N.W.2d 918, 919 n. 1 (Minn.App. 1994). We note, however, that caselaw establishes that this factor is satisfied when the sexual abuse is of victims whose age or disability enhanced their vulnerability. In re Preston, 629 N.W.2d 104, 113 (Minn.App. 2001) (finding that psychological harm would be likely consequence of appellant's acts). Here, three victims testified that grooming, coercion, and physical force were used by appellant to accomplish his sexual misconduct. The trial court found the victims' testimony credible evidence of the harmful sexual conduct with continuing psychological and emotional injury. Coupled with appellant's place of authority as babysitter or trusted friend, these actions constitute the violence contemplated by the statute.
The trial court found and the record supports that appellant's habitual course of misconduct in sexual matters was not limited to his three convictions in sexual matters. See In re Monson, 478 N.W.2d 785, 789 (Minn.App. 1991) (stating that statute addresses patient's behavior, not convictions). Prior to his sexual offending against minors, appellant had two convictions involving minors: contributing to the delinquency of a minor and furnishing alcohol to persons underage. Subsequently, he committed sexual assaults against three child victims over a period of three years. The repeated assaults against one of the children resulted in a second-degree criminal sexual conduct conviction. Appellant later was convicted for indecent exposure, targeting an 18-year-old male neighbor and the general public. While working on a Sentence-to-Service crew, he committed fifth-degree criminal sexual conduct against an adult male co-worker. The court found appellant's sexual misconduct opportunistic; when his access to child-victims was limited, he forced his unwanted or inappropriate sexual conduct on those available. See Bieganowski, 520 N.W.2d at 530 (noting that appellant's grooming of victims and failure to remove himself from situations demonstrate lack of control). Despite the multiple attempts to treat appellant to control his sexual acting out, he continued to target those around him, showing no understanding of the consequences of his acts. See Pirkl, 531 N.W.2d at 907 (stating that refusal of treatment and lack of relapse-prevention plan can show utter lack of control).
Because clear and convincing evidence establishes the number and frequency of the offenses and the level of violence required by the statute and appellant does not challenge the court's findings on the other Blodgett factors, the trial court did not err in its conclusion that appellant has an utter lack of control over his sexual impulses and meets the requirements of an SPP.