Opinion
No. A06-2142.
Filed: May 8, 2007.
Appeal from the District Court, Hennepin County, File No. 27-MH-PR-04-768.
David L. Kraker, David L. Kraker Associates, Minneapolis, MN (for appellant Patrick James Blue, Sr.).
Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN (for respondent State of Minnesota).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
In this appeal from an order for indeterminate commitment as a sexual psychopathic personality and a sexually dangerous person, appellant argues that (1) the commitment as a sexual psychopathic personality is not supported by the evidence, (2) the admission of actuarial-risk-assessment-testing evidence denied him the right to substantive due process, and (3) the record does not support a finding that he is currently suffering from a mental disorder justifying commitment. We affirm.
FACTS
On August 5, 2004, a petition was filed seeking the commitment of appellant Patrick James Blue, Sr. as a sexual psychopathic personality (SPP) and as a sexually dangerous person (SDP). The petition alleged that Blue sexually abused his stepdaughter, A.B., beginning when she was five years old, that A.B. had five children by Blue, and that Blue engaged in sexual intercourse with one of their daughters, P.B., when she was five years old and in the presence of her younger brother. Blue was charged in 1990 with first-degree intrafamilial sexual abuse for his abuse of A.B. and first-degree criminal sexual conduct for his abuse of P.B. Blue pleaded guilty and was sentenced to consecutive prison sentences totaling 258 months. See State v. Blue, No. C0-95-1315, 1996 WL 718, at *1-2 (Minn.App. Jan. 2, 1996) (affirming summary denial of postconviction relief and noting that Blue's sentence was affirmed in earlier direct appeal by order opinion).
The district court appointed Dr. Harry Hoberman, Ph.D., to examine Blue in connection with the commitment proceedings. At Blue's request, the district court appointed Dr. Peter Marston, Ph.D., as a second examiner. A trial was held in April and May 2005. The county introduced an exhibit that contained hundreds of documents relating to Blue's family and the numerous allegations of intrafamilial sexual abuse. Blue renewed a previously filed objection to these documents on hearsay and foundation grounds, and the district court received the exhibit subject to its ruling on Blue's objections. Hoberman testified that he had reviewed all of the county's records, which included police reports, court records, medical records, psychological records, and corrections records. Hoberman testified that he interviewed Blue on October 5, 2004, and reviewed testing done by other professionals and that in his opinion Blue met the criteria for commitment as an SPP and an SDP.
Marston testified that he did not believe that Blue "fully met the highly likely to reoffend portion of the [SDP] statute." But Marston explained that although he did not believe that Blue was highly dangerous with regard to predatory offenses, since he had limited his abuse to his captive pool of victims, Blue was "highly likely to reoffend" within the family or given easy opportunity. Thus, in explaining the circumstances under which Blue would not be "highly likely" to reoffend, Marston recommended "24/7 supervision of Mr. Blue that literally guarantees that he has no access to children, no contact with children."
In a July 11, 2005 order, the district court found the county's documents reliable, and denied Blue's motion objection to admitting the documents. On November 30, 2005, the district court ordered that Blue be committed as both an SPP and an SDP. At a review hearing on July 25, 2006, respondent offered the 60-day report prepared pursuant to Minn. Stat. § 253B.18, subd. 2(a) (2006), and requested that the commitment become indeterminate. Blue offered no evidence, and the matter was submitted to the district court on the record. On September 11, 2006, the district court ordered indeterminate commitment as an SPP and an SDP. This appeal followed.
DECISION
An appellate court's review of a judicial commitment is limited to determining whether the district court complied with the civil commitment act and whether the commitment is justified by findings based on evidence submitted at the hearing. In re Shaefer, 498 N.W.2d 298, 300 (Minn.App. 1993). Findings of fact will not be set aside unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). The record is viewed in the light most favorable to the decision. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). But whether the evidence is sufficient to meet the standards for commitment is a question of law reviewed de novo. Id.; In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994). The appellate court does not reweigh the evidence. In re Salkin, 430 N.W.2d 13, 16 (Minn.App. 1988), review denied (Minn. Nov. 23, 1988).
To commit a person as an SPP or an SDP, the petitioner must prove the requirements for commitment by clear and convincing evidence. Minn. Stat. §§ 253B.09, subd. 1(a), .18, subd. 1(a) (2006); see Minn. Stat. § 253B.185, subd. 1 (2006) (stating provisions of chapter 253B pertaining to persons who are mentally ill and dangerous to the public apply to SPP and SDP commitments). SDP is defined as 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) (2006). The SDP statute requires a showing that a person is highly likely to commit harmful sexual acts in the future. In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999).
SPP is defined as
the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person's sexual impulses and, as a result, is dangerous to other persons.
Minn. Stat. § 253B.02, subd. 18b (2006). SPP "is an identifiable and documentable violent sexually deviant condition or disorder." In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994). The SPP statute's reach is "limited to sexual assaultive behavior and excludes mere sexual promiscuity." Id. In determining whether a person may be committed as an SPP, courts must consider "the nature and frequency of the sexual assaults" and "the degree of violence involved." Id.
I.
Blue argues that the district court's findings regarding the requirements for commitment under the SPP statute are not supported by clear and convincing evidence in the record. Blue contends that the record lacks evidence of "serious sexual violence," which is required for SPP commitment. To support his argument, Blue cites In re Rickmyer, in which the supreme court reversed an SPP commitment because the record did not support a finding that there was a substantial likelihood of serious physical or mental harm being inflicted on the victims. 519 N.W.2d 188, 190 (Minn. 1994) (concluding that unauthorized sexual touching and spankings were not the type of behavior contemplated by the SPP statute). Blue also cites In re Robb, in which this court reversed an SPP commitment because the record did not establish that Robb physically injured any of his victims or was likely to commit violent sexual assaults. 622 N.W.2d 564, 571-72 (Minn.App. 2001), review denied (Minn. Apr. 17, 2001).
But the record establishes that Blue inflicted serious physical harm on his victims. Hoberman testified that A.B. reported that "Blue would threaten her by hitting her or threatening to shoot her with a gun." Hoberman also testified that there was evidence that Blue used physical force or threats of harm, that the duration and frequency of the sexual relations with A.B. was significant in terms of harm, and was evidenced by the fact that A.B. bore five of his children, and that the physical examination of P.B. showed "clear evidence of vaginal penetration" when she was approximately seven years of age and "that in the area near her anus there was a healed superficial laceration," which was evidence of "physical harm related to specifically the sexual behavior."
The record demonstrates that the physical contact in this case was not limited to touching or fondling; it included repeated acts of sexual penetration involving children, which caused visible physical injury to P.B. and obvious physical pain and injury to A.B. who had her first child by Blue at the age of 13. See In re Preston, 629 N.W.2d 104, 113 (Minn.App. 2001) (holding that repeated acts of penetration against children was sufficiently egregious and violent to support SPP commitment). Therefore, the record supports the district court's finding that Blue meets the requirements for commitment under the SPP statute.
II.
Blue argues that because actuarial-risk-assessment-testing evidence is unreliable, he was denied his substantive-due-process rights when the district court admitted such evidence. See State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002) (stating that to be admissible, scientific evidence must be generally accepted in the relevant field and the particular evidence derived from the technique must have a scientifically reliable foundation). Blue contends that the district court improperly admitted this unreliable evidence in the context of determining whether Blue was highly likely to reoffend.
But Blue did not object to any of the actuarial-risk-assessment-testing evidence or request an evidentiary hearing, and therefore, he has waived his right to challenge its admission. See State v. Schneider, 597 N.W.2d 889, 894 (Minn. 1999) (stating that whether to object to scientific evidence or request hearing is matter of trial strategy). Hoberman testified that these tests are commonly relied upon in his field when making risk assessments. Blue did not object to admitting the test results and argued that the results were too inconsistent to be reliable and that on many of the tests, especially those administered by Marston, Blue actually presented as a low risk for reoffending. However, after hearing Hoberman's testimony explaining the results of his testing, Marston reevaluated his results and scored Blue as a higher risk on some of the tests. Blue cannot adopt a trial strategy that uses the testing results, and then ask this court to reverse his commitment because the district court admitted the results without objection. See id. (noting that failure to object waived any objection).
In the context of this argument, Blue also complains that the district court and the experts improperly relied on the county's records when determining whether his actions were violent and whether he is highly likely to reoffend. Hoberman testified that the documents "represented a particularly strong set of information involving objective corroboration" from medical evaluations and other individuals, and Marston testified that the level of corroboration in the documents detailing the allegations regarding P.B. make it "very difficult to believe that it isn't true." The district court considered Blue's objection to the documents, found the documents reliable, and admitted them. Blue does not challenge the admission of the documents and has not shown that the district court abused its discretion in admitting them. See In re Civil Commitment of Ramey, 648 N.W.2d 260, 270 (Minn.App. 2002) (stating that whether to admit evidence is within district court's discretion and will not be reversed absent abuse of discretion), review denied (Minn. Sept. 17, 2002); Prechtel v. Gonse, 396 N.W.2d 837, 839 (Minn.App. 1986) (stating that alleged deficiencies in factual basis of expert testimony go more to weight of testimony than to its admissibility).
III.
Blue argues that the record does not support a finding that he is currently suffering from a disorder that justifies commitment as either an SDP or an SPP.
In order to justify civil commitment, the SDP Act requires the state to prove that a person: (1) has engaged in a course of harmful sexual conduct; (2) suffers from a current disorder or dysfunction; and (3) this current disorder or dysfunction does not allow the person to adequately control his or her behavior such that the person is highly likely to commit harmful sexual acts in the future.
Linehan, 594 N.W.2d at 876 n. 4. The statutory definition of "sexual psychopathic personality" also requires that the condition be current because it refers to "the existence in any person of such conditions . . . which render the person irresponsible for personal conduct." Minn. Stat. § 253B.02, subd. 18b. The definition does not refer to the past existence of conditions.
But the record establishes that Blue's current condition justifies commitment. Although they provided different diagnoses, both experts agreed that Blue has a personality disorder that is primarily antisocial and narcissistic. Hoberman testified that the disorders prevent Blue from adequately controlling his sexual impulses. Hoberman also testified that in the personality testing administered to Blue as part of the evaluation process, the personality profile that Blue evidenced was essentially similar to his earlier test results and showed no significant change in his psychological state or traits from 1990 through 2005. Marston testified that Blue "continues to have . . . and will continue to have, regardless of treatment that he goes through of any kind, pedophile sexual interests and impulses that will not go away." Marston was later asked, "You use the phrase a pedophile who would not hesitate to reoffend. Is that how you would describe him today?" And Marston replied, "Yes, provided the circumstances were he could get away with it. . . ." Also, the 60-day treatment report listed Blue's pedophilia and personality disorder as "current diagnoses." Thus, the record supports the finding that
Blue currently suffers from a condition or disorder or dysfunction that justifies commitment as an SPP and an SDP.