Opinion
No. C7-00-873
Filed October 31, 2000
Appeal from the District Court, Hennepin County, File No. P59960277.
William L.H. Lubov, Brian J. Clausen, (for appellant)
Amy Klobuchar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, Todd L. Lemanski, (for respondent)
Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Stoneburner, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 Coker was committed as a sexually dangerous person (SDP). Coker appeals his commitment, arguing that the record does not contain clear and convincing evidence to support the finding that he lacked adequate control over his sexual impulses and that he is likely to engage in harmful sexual conduct in the future. Coker also argues that the district court erred in committing him indeterminately because it failed to make a finding that indeterminate commitment was the least restrictive treatment alternative available. Lastly, Coker claims that the district court erred in accepting a psychologist's report because it was signed by a social worker instead of the psychologist. We affirm.
DECISION
Clear and convincing evidence is required to support commitment of an individual as a sexually dangerous person. Minn. Stat. §§ 253B.18, subd. 1, 253B.185, subd. 1 (1998). "`Clear and convincing' requires more than a preponderance of the evidence, but less than proof beyond a reasonable doubt." State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997) (citation omitted). In the presence of conflicting evidence, the district court must resolve the factual issues. In re Martenies, 350 N.W.2d 470, 472 (Minn.App. 1984), review denied (Minn. Sept. 12, 1984). This court defers to the district court's credibility determinations. See In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986) ("Where the findings of fact rest almost entirely on expert opinion testimony, the probate judge's evaluation of credibility is of particular significance."). We will not reverse the district court's findings of fact unless they are clearly erroneous. Minn.R.Civ.P. 52.01; Joelson, 385 N.W.2d at 811; In re Monson, 478 N.W.2d 785, 788 (Minn.App. 1991). Nevertheless, whether the record supports the standards for commitment with clear and convincing evidence is a question of law that this court reviews de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) ( Linehan I).
According to our supreme court, Minn. Stat. § 253B.02, subd. 18c(a) (1998) provides for civil commitment of sexually dangerous persons who have
engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.
In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) ( Linehan IV) , cert. denied, 120 S.Ct. 587 (Dec. 6, 1999).
The purpose of the act is to protect the community from predatory sex offenders with mental disorders "who retain enough control to plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success." Linehan IV, 594 N.W.2d at 875 (quotations omitted).
Coker concedes that he engaged in a prior course of sexually harmful behavior and does not dispute his diagnosis of Antisocial Personality Disorder. Therefore he satisfies the first two requirements for commitment as an SDP.
Coker disputes the existence of clear and convincing evidence that he lacks adequate control over his sexual impulses. Coker points out that during the commitment hearing, psychologist Dr. James Alsdurf stated that Coker had adequate control over his sexual impulses. Coker, however, ignores the remainder of Dr. Alsdurf's testimony:
And so when you ask the question adequate control, I want to qualify that with for limited periods of time, yes. But if adequate has a clear time dimension to it, which I think in the end it does, then I think the answer is no.
(Emphasis added.). Dr. Alsdurf further testified that "the combination of factors clearly indicate to me that at this point it is not reliable to say [Coker] has adequate control." Contrary to Coker's claim, Dr. Alsdurf concluded that Coker failed to have adequate control over his sexual impulses.
Coker also refused to accept that he was a sex offender and blamed his conduct exclusively on crack cocaine abuse. An important factor in determining power to control sexual impulses is whether the sex offender admits he has a problem. In re Irwin, 529 N.W.2d 366, 375 (Minn.App. 1995), review denied (Minn. May 16, 1995). Dr. Alsdurf testified that Coker's refusal of sex-offender treatment increased his likelihood of reoffending. See In re Pirkl, 531 N.W.2d 902, 907 (Minn.App. 1995) ("Refusal of treatment and lack of a relapse prevention plan can show an utter lack of control."), review denied (Minn. Aug. 30, 1995). Coker also failed to complete drug abuse treatment. According to Dr. Alsdurf, Coker's limited strategy in dealing with substance abuse issues, combined with his lack of a clear relapse prevention plan, resulted in Coker's inadequate control over sexual matters. See id. Clear and convincing evidence supports the district court's determination that Coker lacks adequate control over his sexual impulses.
Coker further contends that the state failed to prove by clear and convincing evidence that he is likely to engage in future harmful sexual conduct. For SDP commitment, the likelihood of future harm must be high. Linehan IV, 594 N.W.2d at 876. Coker claims that he is not likely to reoffend because (1) he is older; (2) he has no recent history of violent crimes and is remorseful for his previous assaults; (3) he has a 61% chance of not reoffending; (4) he is able to effectively manage stress; (5) he wants to be employed; and (6) sex offenders can stop assaulting without treatment. The evidence, however, does not support Coker's claims.
First, Dr. Alsdurf testified that Coker's age did not reduce his likelihood to reoffend: "His age maybe somewhat of a factor, although, probably not clearly the case at this point. I think he's still too young."
Second, Coker's lack of recent violent crimes can be explained by his incarceration during the past few years. Exemplary behavior in an artificial environment is not dispositive of dangerousness to the public, where experts testify that the patient remains mentally ill and dangerous. In re Bobo, 376 N.W.2d 429, 432 (Minn.App. 1985); see, e.g., Pirkl, 531 N.W.2d at 909 (rejecting appellant's arguments as to lack of recent sexual assaults where he had been incarcerated for last nine years and had no opportunity to commit sexual assaults).
During his incarceration in 1997, prison officials revoked Coker's phone privileges due to his "continued pattern of abusive telephone calls made to private citizens that were inappropriate and harassing in nature." Prison reports show that Coker made several phone calls to women, and at least one call involved requests of a sexual nature to the resident's daughter. These allegations undermine Coker's claim of good behavior while incarcerated.
In 1994, prior to his recent term of imprisonment, Coker was placed on supervised release at a halfway house. About a week later, Coker absconded from the halfway house. After two days, police apprehended Coker in an automobile with three female juveniles from out of state. According to the police report, Coker persuaded the girls to give him a ride and then led them aimlessly around Minneapolis until they were lost. The girls caught the attention of an officer in a nearby squad car, who stopped the vehicle and removed Coker. Coker's conduct in that incident is akin to the grooming process he employed in prior sexual assaults, and we reasonably infer that Coker was interrupted in his progress toward reoffending. This episode illustrates not only his propensity to reoffend, but also his inability to adequately control his sexual impulses.
Third, Coker misstates Dr. Alsdurf's statistical figures. During testimony, Dr. Alsdurf stated that "[Coker]'s in the 75th percentile for reoffending within a period of seven years." Dr. Alsdurf's evaluation report ranks Coker at an "82% likelihood of such offending in 10 years."
Fourth, Coker has no discernable plan or strategy to deal with the stress he would likely re-encounter in the community, and Dr. Alsdurf concluded this would contribute to Coker's propensity to reoffend.
Fifth, Coker's interest in employment does little to offset his likelihood of reoffending. Dr. Alsdurf theorized Coker's employment prospects appear bleak, given his criminal history and limited skills.
Sixth, Coker's failure to complete sex offender treatment substantially magnifies the likelihood he will reoffend. In his evaluation report, Dr. Alsdurf concluded:
Given the combination of Mr. Coker's history of sexual violence and his entrenched antisocial personality disorder and his lack of sexual offender treatment, he does appear likely to engage in acts of harmful sexual conduct in the future.
Clear and convincing evidence supports the district court's conclusion that Coker was highly likely to reoffend if not committed. Commitment of Coker was appropriate.
Next, Coker argues he should not have been indeterminately committed to the Minnesota Sex Offender Program because the district court failed to make a finding that a less restrictive treatment alternative did not exist. The Minnesota Supreme Court has ruled, however, that this determination is not required in an SDP commitment. In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998) ("We can identify no statutory requirement that SPP/SDP commitments must be to the least restrictive treatment program.") (footnote omitted). Moreover, SDP procedure places the burden on Coker to show that a less restrictive treatment option is appropriate:
In commitments under this section, the court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient's treatment needs and the requirements of public safety.
Minn. Stat. § 253B.185, subd. 1 (Supp. 1999) (emphasis added). Coker offers no evidence that an appropriate, less restrictive treatment alternative exists. Coker absconded from supervised release at least three times before his parole was revoked and he was returned to prison. Clearly, the option of parole suggested by Coker is not an adequate alternative.
Finally, Coker asserts that the district court erred in admitting Dr. Anita Schlank's treatment report because it was signed by St. Peter social worker Pamela Bidelman. We largely defer to the district court's evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).
The SDP statute requires only that "[a] written treatment report shall be filed by the treatment facility with the committing court within 60 days after commitment." Minn. Stat. § 253B.18, subd. 2 (1998). Bidelman testified that because Dr. Schlank is stationed in Moose Lake and travels to St. Peter only once a week, Dr. Schlank corresponds with Bidelman via email or phone. Bidelman also testified she routinely signs for Dr. Schlank (at her direction) if the doctor will not be in St. Peter at the time a report is mailed. After reviewing the document and considering Bidelman's testimony, the district court admitted the report. Given the wide latitude afforded the district court in accepting evidence, we cannot say the district court clearly abused its discretion in admitting the report.