IN THE MATTER OF CIVIL COMMITMENT OF ROTH
Court of Appeals of Minnesota.
Filed August 1, 2011.
Dr. Gilbertson interviewed appellant twice and completed an evaluation. He opined that appellant engaged in a course of harmful sexual conduct by committing sex offenses against 12-year-old J.F., whose victimization lasted two days, and 14-year-old H.C., whose victimization lasted approximately three weeks. Dr. Gilbertson testified that all of appellant's actions (including kidnapping, restraint, use of the stun gun, and compliance obtained through drugs and alcohol) created a substantial likelihood of serious physical and emotional harm to his victims. He testified that appellant has manifested a sexual, personality, or other mental disorder or dysfunction, as evidenced by appellant's various diagnoses (including Axis I sexual abuse of adolescents, Axis II personality disorder (not otherwise specified), with antisocial and possibly narcissistic traits) and his history of criminal convictions, illegal activities, and general lifestyle. Dr. Gilbertson testified that appellant's disorder "defines who he is," is not a condition that comes and goes, and does not allow appellant to adequately control his sexual impulses.
Dr. Gilbertson also stated that, in his opinion, and based upon the predictive factors set forth in In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (Linehan I), appellant is "highly likely" to engage in harmful sexual conduct in the future. Dr. Gilbertson observed that appellant's demographic factors are essentially unchanged since the time of his offenses; that appellant's base-rate statistics, and particularly his high scores on the MNSOSTR, Static 99, and SVR-20 tests, show a very high likelihood of sexual recidivism; that appellant's sources of stress remain since the time of his offenses; that appellant's entire social life has always revolved around selling illegal drugs; that appellant's antisocial nature has not changed since his offenses; and that appellant's social contexts have not changed since his offenses. Dr. Gilbertson further testified that appellant has historically shown an ability to manipulate other people to help him commit his sexual crimes, such that his risk to the public vastly increases if he is in an unsupervised living environment. He also stated that appellant's "actuarial scores consistently place him within a group of released sex offenders who are at moderate to moderately high risk for sexual reoffense"; that appellant's personality disorder indicates deficits in intimacy and social skills; that appellant demonstrates compromised empathy and anti-authority attitudes; that appellant's sexual-offense history shows a predilection for sexual contact with underage females, driven by his victims' vulnerability and the ease with which appellant gains control of his victims; and that appellant is an untreated sex offender who has denied sexual contact with his victims and the need for treatment.
Finally, Dr. Gilbertson opined that, although appellant is certainly in need of residential sex-offender treatment, given his confinement to a wheelchair, he is not necessarily in need of a maximum-security facility such as those used by the MSOP because he likely poses a smaller escape risk than able-bodied patients. But Dr. Gilbertson also stated he was not aware of any program in Minnesota that might be less restrictive than the MSOP but still provided adequate supervision to safeguard against appellant's ability to recreate his prior environments that enabled him to sexually offend. Dr. Gilbertson therefore testified that the MSOP is the only viable option for appellant and that no less-restrictive treatment alternative exists.
Dr. Ahlberg also interviewed appellant. He testified that appellant meets the criteria for civil commitment as an SDP. Dr. Ahlberg considered both appellant's charged offenses involving J.F. and H.C. and appellant's uncharged offense against D.H. in concluding that appellant has engaged in a course of harmful sexual conduct. He testified that all of appellant's actions created a substantial likelihood of serious physical and emotional harm to his victims (noting specifically that the assaults were highly violent and committed against girls appellant did not know), that appellant used physical and chemical restraints (as well as a stun gun), and that there was a high frequency of sexual assaults during each incident. Dr. Ahlberg testified that appellant has manifested a sexual, personality, or other mental disorder or dysfunction, as evidenced by appellant's various diagnoses (including Axis I rule out sexual sadism and polysubstance dependence by history and Axis II narcissistic personality disorder with antisocial personality features) and his pervasive pattern of disregard for the rights of others. Dr. Ahlberg testified that appellant's mental disorders do not allow him to adequately control his sexual impulses.
Dr. Ahlberg opined that, based upon the application of various Linehan factors, appellant is "highly likely" to engage in harmful sexual conduct in the future. Dr. Ahlberg observed that appellant's demographic factors were essentially unchanged since the time of his offenses: he is a physically handicapped male with a history of poor relationships, employment difficulties, and violence. Dr. Ahlberg stated that appellant's base-rate statistics, including his 33 on the HARE psychopathy checklist (on which a score of 30 indicates categorical psychopathy), his SORAG score placing him in the high-risk category for violent reoffense, his HCR-20 score anticipating a high likelihood of another offense, and his SVR-20 score placing him at a very high likelihood of sexual recidivism, establish that appellant is highly likely to engage in acts of harmful sexual conduct in the future. Dr. Ahlberg noted that, if released, appellant's living environment would more than likely be very similar to the one in which his prior offenses took place and that appellant has not participated in any sex-offender therapy since his offenses. Dr. Ahlberg testified that, during the interview process, appellant denied detaining H.C. against her will and refused to discuss the possibility of reoffending because he did not acknowledge having offended in the first place. Dr. Ahlberg testified that appellant meets the criteria for an SDP and cannot be safely released to the community.
Like Dr. Gilbertson, Dr. Ahlberg testified that, given appellant's physical limitations, he does not pose the same escape risk as able-bodied MSOP patients and may not need the level of security provided at the MSOP; Dr. Ahlberg suggested that some less-restrictive program might therefore be appropriate, if such a program exists. But, like Dr. Gilbertson, he also stated that he is aware of no such program. Dr. Ahlberg stated that the critical concern was that appellant be prevented from recreating the prior environments that enabled him to sexually offend and that assuming no suitable less-restrictive alternative to the MSOP exists (and in light of appellant's failure to identify a suitable facility), the MSOP is the only viable option for appellant.
Dr. Kenning, who interviewed appellant, testified that appellant meets the criteria for civil commitment as an SDP. Dr. Kenning testified that appellant has engaged in a course of harmful sexual conduct, that his actions created a substantial likelihood of serious physical and emotional harm to his victims, that appellant has manifested a sexual, personality, or other mental disorder or dysfunction, and that appellant's disorder does not allow him to adequately control his sexual impulses.