IN THE MATTER OF CIVIL COMMITMENT OF ROTH
Court of Appeals of Minnesota.
Filed August 1, 2011.
Appellant does not challenge the district court's findings on his demographic characteristics, his base-rate statistics, his sources of stress, his present and past contexts, or his record of participation in sex-therapy programs. The district court's findings on these issues are amply supported by voluminous record evidence, including expert testimony, and are not clearly erroneous. Rather, focusing on his history of harmful sexual conduct, appellant argues that because "he is physically incapable of physically forcing anyone to do anything," and because "[a]ll of [his] alleged harmful sexual conduct required the help of someone else," it is improper to impute this conduct to him for the purpose of determining whether he is highly likely to engage in acts of harmful sexual conduct. "The criminal concept of liability for crimes of others," he argues, "should not be used in determining whether someone should be committed as [a] sexually dangerous person."
Appellant's argument is not supported by the record. Neither the experts nor the district court concluded that he is highly likely to engage in acts of harmful sexual conduct based upon other people's conduct. Rather, Dr. Gilbertson testified that appellant has historically shown an ability to manipulate other people to help him commit his sexual crimes. Further, Dr. Henning testified that appellant's physical disability does not lower his risk of reoffense. The Project Pathfinder evaluator who interviewed appellant wrote in his report that, although appellant's
extreme physical disability limits his mobility and his capacity to engage in any harmful acts . . . he has historically demonstrated an ability and willingness to manipulate or use others to commit sexual abuse and numerous other criminal acts. So his disability is clearly not a protective factor, nor does it appear to mitigate the risk of any type of criminal recidivism.
The district court also found that appellant "did not play a passive role in these sexual assaults." The experts agreed that, in light of appellant's ability to manipulate others to assist in the commission of his crimes, his disability does not minimize his dangerousness to the population or the risk of further offenses. Appellant himself admits in his brief to this court that "[a]ll of the experts agreed Appellant's ability to manipulate people is what makes him dangerous," conceding the role of his own agency in his harmful sexual conduct. After interviewing and testing appellant and considering his history, the experts concluded that appellant is highly likely to reoffend. Their conclusions were not based upon the imputation of anyone else's crimes to appellant. Thus, the record contains clear and convincing evidence that appellant is highly likely to reoffend.II
Appellant argues that the Project Pathfinder non-residential program presents a suitable less-restrictive alternative to the MSOP's secure facilities. Under the statutory civil commitment scheme, a patient is committed to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less-restrictive program is available that satisfies both the patient's treatment needs and public-safety requirements. Minn. Stat. § 253B.185, subd. 1(d) (2010). Observing that the experts all stated that the highly secure environment of the MSOP may be unnecessarily restrictive for appellant in light of his physical limitations, appellant contends that Project Pathfinder is a suitable alternative. He relies on statements allegedly made by Project Pathfinder staff that he may be appropriate for their outpatient program under certain circumstances and that the only impediment is that appellant find his own housing.
Appellant's characterization of his previous interaction with Project Pathfinder is inaccurate, as is his conclusion about the program's suitability. First, Project Pathfinder only considered the propriety of its outpatient program for appellant in the event the district court determined that he does not meet the criteria for commitment as an SDP. Because the district court concluded appellant meets the criteria, Project Pathfinder was foreclosed as an option. In the report prepared during trial, the Project Pathfinder social worker noted that appellant would be a "high risk outpatient candidate" because of his criminal history and demonstrated ability to manipulate others to commit criminal acts. While appellant is correct that Dr. Gilbertson opined that the MSOP may provide more security than is arguably necessary to protect the public from appellant, none of the experts, or the district court, ever suggested that a non-residential program would be appropriate, particularly in light of the experts' consensus that he should be committed as an SDP. The district court properly concluded that appellant did not meet his burden of demonstrating that a less-restrictive alternative to the MSOP exists.