IN THE MATTER OF CIVIL COMMITMENT OF ROTH
Court of Appeals of Minnesota.
Filed August 1, 2011.
Appellant's argument on this issue focuses exclusively on the district court's determination that the deposition testimony of H.C. and Robert H. was credible. At trial, the three experts informed the court that their opinion as to whether appellant engaged in a course of harmful sexual conduct required a prior determination by the district court concerning the credibility of H.C.'s and Robert H.'s deposition testimonies. The district court specifically found the testimony of each witness to be both credible and persuasive, and each expert consequently found that appellant had engaged in a course of harmful sexual conduct. Appellant contends that neither witness is credible and that the evidence is therefore insufficient to support the experts' findings.
As to H.C., appellant argues that her deposition testimony was not credible because "[m]any of the acts [she] alleges Appellant performed are physically impossible for Appellant to accomplish" and because H.C., who has a history of running away from home, admitted during the deposition that she previously lied to her father about being abducted and sexually assaulted. H.C. was deposed under oath and subject to cross-examination. She gave a detailed, and emotional, account of her abduction at gunpoint and brutal treatment while in appellant's custody. The district court found that H.C. had difficulty composing herself during the deposition, that H.C. "continually sobbed" during the questioning, and that "[i]t was painfully obvious . . . that H.C. was being traumatized by reliving these events in her testimony." The district court found that H.C. has given consistent reports of the events involving appellant in the years since they occurred and that the deposition testimony was consistent with those reports, further enhancing H.C.'s credibility.
As to appellant's allegation that H.C. is not credible because he cannot physically accomplish the acts she testified that he performed on her, appellant does not specifically identify any such acts. Nor does he dispute that he is physically capable of accomplishing many of the criminal acts H.C. testified he performed on her person, including holding and using a stun gun and penetrating her with his tongue, fingers, and various plastic devices. These acts supported the district court's conclusion that appellant sexually assaulted H.C. in a manner that caused her physical and emotional harm. We further note that, to the extent appellant was physically assisted in the abduction, restraint, and confinement of H.C. by other people (including his adult niece), appellant's demonstrated ability to manipulate others to commit sexual abuse and other criminal acts is an integral part of the experts' (and the district court's) determination that he is a danger to the public who meets the criteria for an SDP. The district court acted well within its discretion by crediting H.C.'s deposition testimony, and that testimony was sufficient to support the experts' determination that appellant's treatment of H.C. formed part of a harmful course of sexual conduct.
Appellant also argues the allegations concerning D.H. are not credible because (1) as to the March 1997 incident (when D.H. fled from appellant's apartment wearing only a halter top), D.H. never filed a police report and (2) the deposition testimony of Robert H. concerning the events later in 1997 is not credible because Robert H. admitted that he and his sister were taking drugs in 1997 and because Robert H. is a convicted felon. Concerning the March 1997 events, the district court observed that, although D.H. initially reported them, she ultimately decided she did not want to pursue criminal charges. The district court found that the similarity of the assault alleged by D.H. in March 1997 to the sexual assaults reported by H.C. and J.F. in 2000 and to the events described by Robert H. in his testimony enhance D.H.'s credibility concerning the March 1997 events and constitute clear and convincing evidence that the events alleged by D.H. took place. This finding is not clearly erroneous.
Like H.C., Robert H. gave testimony under oath and was subject to cross-examination. The district court specifically credited the testimony in which Robert H. described finding his sister hysterical, naked, and face-down on appellant's bed, with her hands cuffed behind her back, while appellant electrocuted her with a cattle prod. Appellant had an opportunity to impeach Robert H.'s testimony at the time of the deposition, which the district court viewed in assessing Robert H.'s credibility. The district court found that Robert H.'s personal observations were credible and corroborated the credibility of D.H.'s initial police report concerning the March 1997 events. The district court properly found, based upon Robert H.'s testimony, that the events described therein took place.
B. Appellant is likely to engage in acts of harmful sexual conduct.
Appellant also argues that the record does not establish that he is likely to engage in acts of harmful sexual conduct, the third element of the SDP determination. "Harmful sexual conduct" includes "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another" and includes first-, second-, third-, and fourth-degree criminal sexual conduct. Minn. Stat. § 253B.02, subd. 7a. The statutory phrase "likely to engage in acts of harmful sexual conduct" means that the person is "highly likely" to engage in harmful sexual conduct. In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (Linehan III), vacated and remanded, 522 U.S. 1011, 118 S.Ct. 596 (1997), aff'd, 594 N.W.2d 867 (Minn. 1999) (Linehan IV). The supreme court has set forth six factors to be considered in examining the likelihood of reoffense: (1) the offender's demographic characteristics; (2) the offender's history of violent behavior; (3) the base-rate statistics for violent behavior among individuals with the offender's background; (4) the sources of stress in the offender's environment; (5) the similarity of the present or future context to those contexts in which the offender used violence in the past; and (6) the offender's record of non-participation in sex-therapy programs. Linehan I, 518 N.W.2d at 614.