Opinion
No. C6-99-1179.
Filed December 28, 1999.
Appeal from the District Court, Hennepin County, File No. PI9860380.
James S. Dahlquist, (for appellant).
Amy Klobuchar, Hennepin County Attorney, Thomas G. Lavelle, Assistant County Attorney, (for respondent).
Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 James LeMasters contends that the district court violated his constitutional rights by ordering his indeterminate commitment on evidence insufficient to establish that he is a Sexual Psychopathic Personality and a Sexually Dangerous Person. We affirm.
FACTS
In 1991, James LeMasters sexually assaulted children in Hennepin and Stearns Counties. In Hennepin County, he engaged in oral sex with two 11-year-old boys, and vaginal fondling and attempted vaginal penetration with a 10-year-old girl. In Stearns County, he penetrated his four-year-old cousin's vagina with his fingers. LeMasters pleaded guilty to sex offenses in both counties and received prison terms.
The state sent LeMasters to the St. Peter Regional Treatment Center for a sex-offender evaluation. The center found that he was not amenable to treatment because of his poor behavior control and his strong tendency to blame others for his conduct. Among his diagnoses by the center was pedophilia as to both sexes.
Personnel in the sex-offender treatment program at the Minnesota Correctional Facility-Oak Park Heights interviewed him and rejected him because of his emotional instability and behavior problems.
LeMasters then expressed an eagerness to participate in treatment. He began the assessment phase of sex-offender treatment at the Minnesota Correctional Facility-St. Cloud. While in treatment LeMasters admitted that he had molested 26 boys and girls ranging in age from 5 to 15 during 1977 through 1991. He also identified four additional children whom he molested in Stearns County. They were all family members and were ages 4, 5, 7, and 9. The St. Cloud treatment program placed LeMasters on probation for inappropriate conduct, and he eventually withdrew from treatment.
During the interview for his Civil Commitment Review Assessment in December 1997, LeMasters revealed that he has sexual fantasies every few days that involve boys and girls of the ages 4 to 14. He contended that, despite the fantasies and despite his failure to complete sex-offender treatment, he will not re-offend because he has done "soul searching." He admitted that he was not taking his prescribed psychotropic medication, but he claimed he was justified in failing to do so.
While incarcerated, LeMasters has received two "disciplinary reports" for public exposure and masturbation and for soliciting sex from another inmate. He admits to having had 12 to 18 sexual partners in prison.
Prior to LeMasters' anticipated supervised release date, the state petitioned for his judicial commitment as a Sexual Psychopathic Personality and Sexually Dangerous Person.
Two court-appointed experts interviewed LeMasters. In one interview, LeMasters stated:
I never harmed my victims. I was always in control of myself * * *. When the situation presents itself, I pop the question, but I don't think the person knows what they're doing.
LeMasters reported that his approach was to coax his victims with strategies such as measuring penises in order to get them to expose themselves. Although he recognized that his conduct was wrong, he insisted that his victims
weren't forced; they were just coerced. None of my crimes were with force. It really wasn't consensual, but not a lot of opposition. I used manipulation and coercion, and that's the most deadly form of abuse because the victims don't tell, because you're making them feel like they wanted it; then it's ok. You can get a lot more victims that way.
Although LeMasters admits that he still has sexual thoughts about children, he "subdues them," and relies on his religious faith to help shift the thoughts to women. He believes he has a new level of self-control around children but remains "quite fearful around them." He states that his sexual interest in children has diminished but, "I ain't cured and B.S., I ain't interested in getting cured. You can't stop being what you are but you can redirect your interests."
The district court heard the experts' opinions that LeMasters satisfies the criteria for Psychopathic Personality and Sexually Dangerous Person. The court also heard testimony from therapists, corrections officials, a police officer, and the mother of a victim; and the court received various social service, treatment, diagnostic, and corrections records.
Based on all the evidence, the court found that LeMasters is an untreated, chemically-dependent pedophile who has no genuine remorse or guilt over his sex offenses, and who "exhibits an utter lack of power to control his sexual impulses * * *." The court also found that LeMasters is "highly likely to engage in harmful sexual conduct against female and male children, adolescents, and adults * * *."
DECISION
LeMasters contends that there is insufficient evidence to support a finding that he is a Sexual Psychopathic Personality (SPP) or a Sexually Dangerous Person (SDP). The petitioner seeking commitment must prove that a person is a SPP or a SDP by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (1998); Minn. Stat. § 253B.185, subd. 1 (1998) (procedures in section 253B.18 apply generally to SPP and SDP commitments). Factual findings will not be reversed unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). The appellate court will not reweigh the evidence. In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996). Whether the record supports the district court's conclusions that the evidence establishes the necessary elements for commitment is a question of law that we review de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).
Commitment as a SPP requires proof that a person: (1) has engaged in a habitual course of misconduct in sexual matters; (2) has an utter lack of power to control the person's sexual impulses; and (3) is therefore dangerous to others. Minn. Stat. § 253B.02, subd. 18b (1998). Commitment as a SDP requires proof that a person: (1) has engaged in a course of harmful sexual conduct; (2) manifests a sexual, personality, or other mental disorder or dysfunction; and (3) is therefore likely to engage in acts of harmful sexual conduct. Id. , subd. 81c (1998).
LeMasters argues that the evidence fails to support the district court's determination that he lacks control of his sexual impulses as required by section 253B.02, subd. 18b. He claims that one court-appointed expert testified that LeMasters has some control over his sexual behavior. But he quotes the expert out of context and fails to acknowledge pertinent portions of the expert's testimony. The expert, Dr. Hoberman, agreed that it is fair to infer that a lack of sexual activity on LeMasters' part might be evidence that he does have some control over his sexual behavior. However, Dr. Hoberman declined to agree that such testimony contradicts his earlier opinion that LeMasters utterly lacks power to control his sexual behavior. In addition, LeMasters ignores Dr. Hoberman's testimony as to the existence of factors set forth in In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994), when determining lack of ability to control sexual impulses. For example, Dr. Hoberman noted that the assaults were frequent and often involved penetration; that, although the assaults were not violent, the size disparity between LeMasters and his victims reduced the need for violence; that LeMasters believes that the laws prohibiting sexual contact with children are "unfair, arbitrary and shouldn't apply to him"; and he lacks inhibition to prevent him from acting when prospective victims are present.
Factors used under Blodgett consist of (1) nature and frequency of sexual assaults; (2) degree of violence involved; (3) relationship or lack thereof between offender and victims; (4) offender's attitude and mood; (5) offender's medical and family history; (6) results of psychological and psychiatric tests and evaluations; and 7) any such other factors that bear on the predatory sex impulse and lack of power to control it.
The district court accepted as credible the opinions of the experts who testified that LeMasters could not control his sexual impulses. This court defers to the district court in 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"). Furthermore, LeMasters' refusal to complete sex-offender treatment and the absence of a relapse-prevention plan demonstrate an utter lack of control. See In re Pirkl, 531 N.W.2d 902, 907, (Minn.App. 1995) ("[r]efusal of treatment and lack of a relapse prevention plan can show an utter lack of control" necessary for involuntary commitment under SPP statute), review denied (Minn. Aug. 30, 1995).
LeMasters also argues that the evidence fails to support a determination that he is likely to inflict serious physical or mental harm on others because he did not inflict physical injury on his victims. He characterizes himself as a nonviolent pedophile, and minimizes the harm suffered by his victims. See In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (holding that defendant's history of unauthorized sexual "touchings" and "spankings" did not satisfy statutory requirements for commitment as psychopathic personality). In Rickmyer, the supreme court held that a pedophile's unauthorized sexual "touchings" and "spankings" did not constitute the kind of injury, pain, or other evil contemplated by the predecessor to the current SPP statute. 519 N.W.2d at 190; see also In re Schweninger, 520 N.W.2d 446, 450 (Minn.App. 1994) (concluding that absent showing of violence, repetitive pedophile who was nonviolent does not meet standard for commitment), review denied (Minn. Oct. 27, 1994). Rickmyer explained that:
There may be instances where a pedophile's pattern of sexual misconduct is of such an egregious nature that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims such as to meet the requirements for commitment as a psychopathic personality.
Rickmyer, 519 N.W.2d at 190. LeMasters compares his history of sexual assaults to the sexual misconduct of other individuals committed as sexual psychopaths and argues his conduct was less harmful and did not result in the type of harm the statute intended to address. He engaged in repeated, coerced, sexual assaults against vulnerable, young children. The expert witnesses concluded, and the district court found, that the assaults caused emotional trauma. See id. (court must determine whether nature of conduct is of such egregious nature "that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims"). In fact, LeMasters himself characterizes the harm he caused the victims as being "the most deadly form of abuse because the victims don't tell cause you're making them feel like they wanted it, then it's okay."
LeMasters' sexual abuse of his victims and its effects on them is more serious than the "spanking" and "touchings" that the supreme court found insufficient in Rickmyer . The district court made specific findings concerning the number of LeMasters' victims, the frequency and extent of their victimization, the broad victim pool of children and pre-adolescents of both genders, and the substantial and significant likelihood and degree of harm associated with LeMasters' sexual offenses. These findings are supported by the evidence.
Moreover, concerning commitment as a SDP, there is a rebuttable presumption that criminal sexual conduct in the first, second, or third degree creates a substantial likelihood that the victim will suffer serious physical or emotional harm. Minn. Stat. § 253B.02, subd. 7a(b) (1998). The district court found that LeMasters has been adjudicated delinquent, according to Minn. Stat. § 260.015, subd. 5(a) (1998), for Criminal Sexual Conduct in the Second Degree, Minn. Stat. § 609.343, subds. 1(a), 2 (1998), and § 609.101, subd. 2 (1998), and found that his conduct creates the presumption that he has engaged in harmful sexual conduct. LeMasters fails to identify evidence rebutting this presumption, and instead argues that, because he used no weapons or physical force on his victims, the level of harm they suffered is inconsequential. His argument is without merit.
LeMasters' contention that he has been deprived of his constitutional right to due process because of the insufficiency of the evidence to support his commitment is without merit. The evidence clearly and convincingly supports the district court's findings, conclusions and order for indeterminate commitment.