Opinion
No. C4-98-2076.
Filed April 27, 1999.
Appeal from the District Court, Rice County, File No. P8-98-331.
Adam J. Dowd, (for appellant)
Mike Hatch, Attorney General, Piper Kenney Aafedt, Assistant Attorney General, (for respondent)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Stephen Love appeals from his commitment as a sexual psychopathic personality (SPP) and sexually dangerous person (SDP). He contends the district court did not have clear and convincing evidence from which to conclude that he had an utter lack of power over his sexual impulses, as required for an SPP commitment. He also argues the SDP statute is unconstitutional. We affirm.
FACTS
In 1986, when Love was about 18, he sexually assaulted a number of boys and girls between ages 4 and 14. In September 1986, he pleaded guilty to three counts of criminal sexual conduct in the second degree for sexual misconduct with three of these children. Love's sentence was stayed on the condition he complete an intensive sex offender treatment program. While in treatment, he was involved sexually with other residents and he was terminated from the program in 1989.
Love's sentences on his guilty pleas were executed and he was returned to prison. He was again admitted for sex offender programming, but the program terminated him two weeks later after he solicited sex from other residents. In 1992, Rice County filed a petition to commit Love as a psychopathic personality. The court-appointed examiner did not recommend commitment and the county dismissed the petition.
After release from prison in 1993, Love again engaged in criminal sexual conduct with a neighbor after she fell asleep or passed out due to illness. He pleaded guilty to fifth-degree criminal sexual assault for this act. In May 1995, after permitting a 17-year-old female runaway to stay with him and allowing her to drink, he fondled her and penetrated her vagina with his finger after she was asleep or passed out. In June 1995, he engaged in fellatio and anal intercourse with a 14-year-old runaway boy, for which he pleaded guilty to criminal sexual conduct in the third degree.
Appellant was again imprisoned pursuant to his guilty pleas in October 1995. He entered another sex offender program but was terminated from the program in less than a month for engaging in sexual behavior. He reentered the program in January 1997 but was terminated again in September 1997 as a result of several major disciplinary infractions. Love entered a substance abuse program in November 1997 but was discharged after several months for violating several rules. In March 1998, a petition was filed to commit him as an SPP and an SDP.
At the commitment hearing, the court-appointed examiners differed in their opinions as to whether Love had an utter inability to control his sexual impulses. The district court concluded that there was clear and convincing evidence that Love met the standards for commitment as an SPP and an SDP. Love appeals.
DECISION
Findings of fact will not be reversed unless clearly erroneous. Minn.R.Civ.P. 52.01; In re Joelson , 385 N.W.2d 810, 811 (Minn. 1986). This court will conduct a de novo review to determine whether there is clear and convincing evidence to support the district court's conclusion that appellant meets the standards for commitment. In re Linehan , 518 N.W.2d 609, 613 (Minn. 1994). We do not defer to the district court if it has erred as a matter of law. In re Stilinovich , 479 N.W.2d 731, 734 (Minn.App. 1992).
I.
Commitment as an SPP requires, in relevant part, a showing that the person has evidenced "an utter lack of power to control the person's sexual impulses." Minn. Stat. § 253B.02, subd. 18b (1998). A variety of factors are relevant in determining whether the person exhibited a "predatory sex impulse and the lack of power to control it." In re Blodgett , 510 N.W.2d 910, 915 (Minn.), cert. denied , 513 U.S. 849 (1994). The court-appointed examiners addressed in detail the Blodgett factors, as well as other relevant factors. Dr. Thomas Alberg concluded Love did not demonstrate the necessary lack of control, while Dr. James Alsdurf concluded that he did. The district court determined that there was clear and convincing evidence to show Love had an utter lack of power to control his sexual impulses. On appeal, Love argues that the decision was not supported by the evidence.
The first factor is the nature and frequency of Love's sexual assaults. Id. Love acknowledges he engaged in repeated sexual assaults before 1986. But he contends that because he engaged in only three assaults since then, which resulted in only two convictions, he has not engaged in the type of assaultive behavior Blodgett requires. He also argues he showed more control because in two of the three incidents, he did not assault the victims at the first opportunity.
Love was either in a residential treatment program or prison between 1986 and 1993. Within a year of his release, he committed three new assaults and was imprisoned again in 1995. The fact that he did not engage in sexual assaults while under close supervision is not determinative. See In re Pirkl , 531 N.W.2d 902, 909 (Minn.App. 1995) (rejecting argument that sexually assaultive behavior was too remote in time when proposed patient imprisoned during this period), review denied (Minn. Aug. 30, 1995). Further, grooming behavior does not demonstrate an ability to control. In re Bieganowski , 520 N.W.2d 525, 530 (Minn.App. 1994), review denied (Minn. Oct. 27, 1994).
The next factor is the degree of violence. Blodgett , 510 N.W.2d at 915. Dr. Alsdurf testified that this factor was not particularly helpful because pedophiles do not need to use violence to offend. Instead, they use control and manipulation. The district court noted that while it would be unfair to consider Love a vicious or particularly violent offender, it would be inaccurate to suggest he only participated in consensual activity.
Another factor is the type of relationship between the offender and victims. Blodgett , 510 N.W.2d at 915. Dr. Alsdurf testified that most of Love's victims were his relatives or were children with whom he had a big brother or uncle-type of relationship. This made the victims more vulnerable because trust was a natural part of such relationships. See Pirkl , 531 N.W.2d at 907 (citing fact Pirkl was marginally acquainted with victims, used ruses to gain access, and sexually assaulted them when they were drunk or passed out).
Next considered are the offender's mood and attitude. Blodgett , 510 N.W.2d at 915. Love contends Dr. Alsdurf did not directly address these but instead discussed his lack of insight. A lack of insight is relevant to this question and can indicate a lack of control. See In re Irwin , 529 N.W.2d 366, 375 (Minn.App. 1995), review denied (Minn. May 16, 1995). Love also argues the testimony was conflicting as to his insight. The court obviously credited Dr. Alsdurf's testimony, who explained that Love was "exceedingly insightless about himself and his own sexual deviancy." In his report, he noted that Love's "pervasive minimization" of his acts and the damage he caused his victims were most striking.
Love's medical and family history is also an issue that must be considered. Blodgett , 510 N.W.2d at 915. His medical history was not significant. As to family history, there was evidence that Love was subjected to sexual abuse and alcoholism when he was young. Dr. Alsdurf stated that Love's chaotic upbringing contributed to his lack of character formation. He explained this would affect the level of functioning that would allow a person to have a "clear understanding and clear measures of self control." But he noted it was difficult to make the connection between family history and lack of control.
The final Blodgett factor looks at psychiatric testing and evaluation. 510 N.W.2d at 915. Dr. Alsdurf explained that test results were consistent with Love's condition. Another relevant factor is the offender's participation in treatment. Bieganowski , 520 N.W.2d at 529 (noting person denied need for sex offender or chemical dependency treatment). In this case, the evidence showed Love was repeatedly discharged from treatment programs after acting out sexually despite, as the district court noted, a high likelihood of discovery and discharge from the programs.
Clear and convincing evidence decisively supports the district court's conclusion that Love exhibited an utter lack of power to control his sexual impulses.
II.
Love next contends that the SDP act violates the Minnesota Constitution, noting the issue is before the supreme court in In re Linehan , 557 N.W.2d 171 (Minn. 1996), vacated remanded , 118 S.Ct. 596 (1997). As Love notes, this court will not further address the constitutionality of the SDP law while it is under consideration by our supreme court.