Opinion
No. A06-1601.
Filed: February 20, 2007.
Appeal from the District Court, Hennepin County File No. 27-MH-PR-05-1057.
Ronald L. Thorsett, Eden Prairie, MN, (for appellant Olson).
Michael O. Freeman, Hennepin County Attorney, Theresa F. Couri, Assistant County Attorney, Minneapolis, MN, (for respondent State of Minnesota).
Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Hudson, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 the district court's order for his indeterminate commitment as a sexually dangerous person, appellant Brandon-le Douglas Olson challenges the district court's findings that he is highly likely to reoffend and is unable to adequately control his sexual impulses and the district court's conclusion that no less-restrictive treatment than the Minnesota Sex Offender Program was appropriate or available. Because we see no error in the court's findings or conclusions, we affirm.
FACTS
Appellant was imprisoned after pleading guilty to charges of first-and second-degree criminal sexual conduct. In October 2005, shortly before his scheduled release date, a petition for his commitment as a sexual psychopathic personality (SPP) and sexually dangerous person (SDP) was filed. The district court appointed Dr. Mary Kenning as an examiner and Dr. Thomas Alberg as appellant's requested examiner. Both examiners opined that appellant met the elements of an SDP but not of an SPP. They and appellant testified at the January 2006 trial on the SDP petition after the SPP petition was voluntarily dismissed.
The record details appellant's dysfunctional family history and his extensive record of juvenile delinquency. After an early diagnosis of a "potential organic personality disorder" and a suicide attempt at age eight, appellant was diagnosed with "pervasive developmental disorder, mild mental retardation, and attention deficit disorder with hyperactivity." Appellant and his mother did not cooperate with the recommended treatment. When appellant was 10, he and his half-brother were sexually molested by a 23-year-old babysitter, who was eventually incarcerated for the conduct.
Over the next few years, appellant was charged with fifth-degree assault (at age 12, punching a ten-year-old girl who was defending her brother from appellant), theft, breaking curfew, and truancy. He required one-on-one services during school. Before his sixteenth birthday, appellant was charged with possession of a stolen vehicle, receiving stolen goods, and truancy and, not long afterwards, was arrested on a felony juvenile warrant and admitted fleeing a police officer. He used alcohol and cannabis and physically intimidated others to get his way. Appellant spent his sixteenth year at Wyalusing Academy in Wisconsin.
After discharge from the academy, appellant was arrested in November 1998 for sexual misconduct with two boys during the previous summer. He pleaded guilty to first-degree criminal sexual conduct against a two-year-old boy, R.L., whom he babysat. R.L. stated that appellant had put his mouth on R.L.'s penis more than once, touched R.L.'s buttocks underneath his clothes, and rubbed his own penis against R.L.'s. Appellant also pleaded guilty to second-degree criminal sexual conduct against nine-year-old J.F., a neighborhood boy. Appellant placed his mouth on J.F.'s penis.
In 1999, appellant received a stayed 107-month sentence for the two convictions, but he violated probation within five weeks by using cocaine and marijuana. He failed to comply with the Telesis chemical-dependency program, indicating that he had continuing interest in using marijuana, and his probation was revoked in March 2000.
In prison, during his evaluations and sex-offender treatment, appellant began reporting his sexual exploitation of other children. He admitted, since he was a seven-year-old, sexually fantasizing about and victimizing approximately 20 male and eight female children aged one through nine. Appellant would seek out vulnerable children and used a grooming process to lure them to him. Appellant acknowledged that he found it sexually arousing to talk about his and others' past sexual misconduct.
Despite attempts, appellant never completed a chemical-dependency program. Although he had periods of adequate attendance and participation in sex-offender treatment, he was discharged or terminated for violative conduct and for lack of motivation and never completed a program. He had multiple disciplinary infractions in prison, including three incidents of sexual behavior with inmates.
After trial, the court filed findings, conclusions, and an order for commitment of appellant as an SDP. On receipt of the 60-day report, the court held a hearing and filed a final order for indeterminate commitment of appellant as an SDP.
DECISION
A sexually dangerous person 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). The district court must be presented with clear and convincing evidence that the standards for commitment are met. Minn. Stat. § 253B.18, subd. 1(a) (2004); see Minn. Stat. § 253B.185, subd. 1 (2004) (providing that Minn. Stat. § 253B.18 applies to SDP commitments).
Appellant acknowledges that he has engaged in a course of sexual conduct that creates a substantial likelihood of emotional harm to his victims but denies that there is clear and convincing evidence that he is highly likely to reoffend or that he is unable to adequately control his sexual impulses as a consequence of an identifiable mental, sexual, or personality disorder that seriously impairs his ability to control his behavior.
We will uphold the district court's factual findings unless they are clearly erroneous. See, e.g., 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). We do not reweigh the evidence; we defer to the district court's credibility determinations and its resolution of conflicting evidence. Minn. R. Civ. P. 52.01; see, e.g., Joelson, 385 N.W.2d at 811.
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. In this consideration, we use 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.
Both examiners concluded that appellant has a mental, sexual, or personality disorder that seriously impairs his ability to control his behavior. Dr. Kenning opined that appellant meets the DSM-IV criteria for pedophilia, sexually attracted to males, nonexclusive type, and personality disorder NOS with antisocial and borderline features. Appellant meets the following criteria for antisocial personality disorder: "failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest; deceitfulness, as indicated by repeated lying; impulsivity or failure to plan ahead; reckless disregard for the safety of others; and lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another." Appellant meets the following criteria for borderline personality disorder: "a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation, impulsivity, and recurrent suicidal behavior." Dr. Alberg's diagnosis overlapped in significant part with that of Dr. Kenning, and he noted that appellant's "impulsivity is certainly a problem with his personality."
The statute does not require, as appellant argues, that a patient be diagnosed as a "sociopath"; the statute requires that the patient "has manifested a sexual, personality, or other mental disorder or dysfunction" that seriously impairs his ability to control his behavior. Minn. Stat. § 253B.02, subd. 18c.
Appellant further argues that he is only at moderate risk to reoffend under the Static 99 and that the other instruments exaggerate his level of risk. The examiners indicated that many researchers consider the Static 99 to underestimate recidivism. They also evaluated other instruments and provided their clinical observations revealing appellant's high likelihood of sexual recidivism to conclude appellant was highly likely to reoffend.
Appellant argues that there is no evidence that he "ever used violence, threats of violence, or coercion of any kind against his victims" and his criminal history is "relatively benign." Dr. Kenning, however, reported that appellant had developed grooming conduct at an early age to gain the young victims' compliance and had forced R.L. and others to perform sex acts multiple times. Appellant's admissions regarding his sexual conduct are inconsistent with his claim that the conduct was without coercion of any kind. See In re Bieganowski, 520 N.W.2d 525, 529 (Minn.App. 1994) (noting that pedophiles often groom victims rather than use violence to obtain compliance), review denied (Minn. Oct. 27, 1994). Appellant does not dispute the examiners' assessment of the remaining Linehan I factors, including his failure to complete treatment, unlikely maintenance of sobriety once in the community, lack of consistent employment, lower socioeconomic status, continued violent fantasies, lack of support in his family, and the likely presence of the same stressors that existed at the time he was incarcerated.
Appellant's convictions and admitted past harmful sexual conduct combined with the examiners' diagnoses of disorders that seriously impair appellant's ability to control his sexual and other impulses and their expert opinions that appellant is highly likely to reoffend satisfy the statutory elements for indeterminate commitment as an SDP and distinguish appellant from the typical recidivist offender.
Appellant also argues that he established by clear and convincing evidence that there was an appropriate and available alternative to the MSH. When the district court determines that a person is an SDP, the court must commit the person to a secure treatment facility, unless the person establishes by clear and convincing evidence that a less-restrictive-treatment program that meets the offender's treatment needs and the needs of public safety is available. Minn. Stat. § 253B.185, subd. 1. We will not reverse a district court's findings on the appropriateness of a treatment program unless its findings are clearly erroneous. In re Thulin, 660 N.W.2d 140, 144 (Minn.App. 2003).
The trial court did not clearly err in its findings and conclusion that civil commitment to the Minnesota Sex Offender Treatment Program is the only available option for appellant. The record supports this determination; Dr. Kenning and Dr. Alberg both opined that appellant is in need of intensive treatment and the only appropriate and available program for him is the Minnesota Sex Offender Treatment Program. Appellant's offer of his supervised release plan as an alternative less-restrictive program does not meet the statutory standard because it was not developed for a patient committed as an SDP.