IN THE MATTER OF CIVIL COMMITMENT OF ROTH
Court of Appeals of Minnesota.
Filed August 1, 2011.
Applying the Linehan factors, Dr. Kenning concluded that appellant is "highly likely" to engage in harmful sexual conduct in the future. She specifically observed that appellant's physical disability does not lower his risk of reoffense and that appellant had the same limitations at the time of his initial offenses. Dr. Kenning concluded that appellant is dangerous to the public and cannot be safely released into the community, that he is in need of intensive supervised sex-offender treatment in a secure residential setting, and that the MSOP is the only viable option for appellant and that no less-restrictive treatment alternative exists.
Following the expert testimony, and at the request of his counsel, appellant was interviewed by Project Pathfinder, Inc., an outpatient treatment facility for sex offenders, to determine whether a less-restrictive alternative setting than the MSOP could be available to appellant. The district court admitted the Project Pathfinder intake report into evidence and observed in its findings that the report only addressed appellant's potential admission as an outpatient participant in the program in the event the district court concluded that appellant did not meet the criteria for civil commitment as an SDP. Because the court concluded that appellant does meet the criteria (and that no suitable less-restrictive alternative to the MSOP existed), the results of the report were not relevant to the proceedings. Although both Project Pathfinder and the district court concluded that appellant was not a suitable candidate for the program, the district court did note, in its order, that, during his interview with Project Pathfinder, appellant admitted for the first time that he had engaged in oral sex and sexual intercourse with 12-year-old J.F. while he was holding her in his apartment on March 30-31, 2000.
The district court heard the video testimony of H.C., who testified that in March 2000, when she was 14, appellant kidnapped her at gunpoint and brought her to his apartment, where, after shaving off her pubic hair, he drugged her, bound her, shocked her with a stun gun, and sexually assaulted her repeatedly over a period of approximately three weeks. The district court specifically found H.C.'s deposition testimony to be credible and persuasive, and concluded that the testimony constituted clear and convincing evidence that appellant sexually assaulted H.C. such that the incident, which did not result in a conviction for a sexual offense, should be considered part of appellant's course of harmful sexual conduct.
The district court also heard video testimony from Robert H., D.H.'s brother, concerning the 1997 uncharged incident involving appellant and D.H. at appellant's apartment in South St. Paul. The district court found the testimony to be credible and persuasive and observed that Robert H.'s credibility was further enhanced by the similarity between the events he described and the events described by D.H. in the incident report she gave to the police in March 1997. The district court found that Robert H.'s testimony described conduct similar to appellant's conduct in the assaults against H.C. and J.F. The district court concluded that the conduct described in Robert H.'s testimony clearly took place and should be considered a part of appellant's course of harmful sexual conduct.
In its initial commitment order, the district court concluded that sufficient evidence exists to commit appellant as an SDP and that there is no less-restrictive available facility than the MSOP. The district court found that both 1997 incidents involving D.H. (the second of which was the subject of Robert H.'s testimony), despite not being charged offenses, were clearly sexually motivated, caused D.H. serious physical and emotional harm, and were part of appellant's course of harmful sexual conduct for the purpose of satisfying the statutory criteria for commitment as an SDP. The district court found that the kidnapping of 12-year-old J.F. in March 2000, of which appellant was convicted, was sexually motivated, caused J.F. serious physical and emotional harm, and was part of appellant's course of harmful sexual conduct. The court found that the conviction for deprivation of parental rights, arising out of the three-week abduction and imprisonment of 14-year-old H.C. in March 2000, was a sexually motivated offense, caused H.C. serious physical and emotional harm, and was part of appellant's course of harmful sexual conduct. The district court reviewed the expert reports and the rest of the evidence, including the deposition testimony of H.C. and D.H.'s brother, in light of the requisite factors and criteria set forth in the relevant statutory and case law, and concluded that respondent had proved the statutory elements of commitment by clear and convincing evidence. The district court committed appellant to the custody of the Commissioner of Human Services at the MSOP subject to a final determination.
After the close of evidence in appellant's commitment trial and before the January 11, 2010, interim order, appellant suffered a stroke and was hospitalized for approximately one week. At the request of appellant's counsel, the district court appointed Michael J. Fuhrman, Ph.D., a neuropsychologist, to examine appellant and provide a neuropsychological evaluation. Dr. Fuhrman's examination took place eight months after appellant's stroke. In light of this special circumstance, the 60-day review hearing was continued to December 2010. At the hearing, Dr. Fuhrman testified that the stroke caused appellant mild brain injury and that, assuming the district court found that appellant met the criteria for commitment as an SDP in the order filed at the end of trial, Dr. Fuhrman believed that appellant continued to meet those criteria as of the date of the review hearing. Dr. Fuhrman also testified that, during the examination, appellant attempted to manipulate him into believing that appellant's symptoms were worse than they actually were and that appellant continues to aggressively attempt to manipulate others into doing what appellant wants them to do. A doctor from the MSOP testified at the hearing that there had been no change in appellant's condition since the commitment hearing and that appellant continued to meet the necessary criteria for an SDP. The district court affirmed its original order and committed appellant as an SDP for an indeterminate period. This appeal arose from both commitment orders.DECISION