In the Matter of: Charles Randal Ashman.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1921

In the Matter of:

Charles Randal Ashman.

Filed April 17, 2001

Affirmed

Halbrooks, Judge

Hennepin County District Court

File No. P19860220

Michael J. Biglow, 839 Norwest Midland Bank Building, 401 Second Avenue South, Minneapolis, MN  55401 (for appellant Ashman)

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent Hennepin County)

            Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Charles Ashman challenges his indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP).  He argues that (1) the court-appointed examiners' testimony was biased, (2) there was insufficient evidence to show that he met the standards for commitment, (3) he was not committed to the least restrictive alternative, and (4) his commitment was unconstitutional.  We affirm.

FACTS

            In 1981, when appellant was 24 years old, he raped a 14-year-old girl, forcibly removing her clothing, physically restraining her, and repeatedly hitting her.  He pleaded guilty to a reduced charge of fourth-degree criminal sexual conduct and received a 21-month stayed sentence.

            The day after he was sentenced for the 1981 rape, appellant attempted another rape when he entered a woman's house under false pretenses.  Holding her at knifepoint, he threatened to rape and kill her, but fled after she yelled "fire."  Appellant pleaded guilty to attempted first-degree criminal sexual conduct and received a 36-month sentence.  He was discharged from parole in January 1985.

            In May 1985, appellant brutally raped a stranger as she was walking from her garage to her house in the middle of the night, threatening to kill the victim's daughter if she reported the rape.  He pleaded guilty to a charge of third-degree criminal sexual conduct and the court sentenced him to 82 months, a double upward departure from the sentencing guidelines.

            In May 1991, while on supervised release for the 1985 rape and while enrolled in an outpatient sex-offender treatment program, appellant sexually molested his girlfriend's 13-year-old sister, whom he had taken fishing.  He pleaded guilty to fourth-degree criminal sexual conduct and was sentenced to 120 months in prison as a patterned sex offender.  During these various periods of incarceration and release, appellant refused most offers of sex-offender treatment and never completed any treatment that he started.

            A petition was filed to commit appellant as an SPP and an SDP.[1]  The district court appointed two examiners to evaluate appellant, James Alsdurf, Ph.D., and Roger Sweet, Ph.D.  Both experts diagnosed appellant with polysubstance abuse and antisocial personality disorder.  At the commitment hearing, both experts testified that appellant met the standards for commitment as an SPP and an SDP.  Appellant testified on his own behalf, asserting that he would not repeat the offenses.  The district court concluded that appellant met the standards for commitment and committed him as an SPP and SDP to the Minnesota Sex Offender Program (MSOP).  MSOP filed a treatment report and a review hearing was held, at which a representative from MSOP testified.  The treatment team concurred with the diagnoses of the court-appointed examiners, and added the diagnosis of paraphilia, not otherwise specified.  The district court made appellant's commitment indeterminate.  This appeal follows.

D E C I S I O N

            Credibility determinations are within the discretion of the district court, particularly in the evaluation of expert opinion testimony in commitment cases, and will not be reversed unless clearly erroneous.  In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  Whether the record supports a conclusion that the appellant meets the elements for commitment is a question of law reviewed de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).  A district court must determine that the standards for commitment are met by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1 (1998); see Minn. Stat. § 253B.185, subd. 1 (1998) (providing generally that section 253B.18 applies to SPP and SDP commitments).

            Appellant first contends that this court should not consider the testimony of the court-appointed examiners because they were biased.  A party may attack the credibility of a witness by showing evidence of bias.  Minn. R. Evid. 616.  In support of his argument, appellant cites his own testimony and his interpretation of comments that Dr. Sweet made in a follow-up interview he conducted with appellant.  The credibility determinations as to the bias of the examiners were within the discretion of the district court and its decision to credit their testimony is not clearly erroneous.

            Appellant next challenges his commitment as an SPP.  An SPP commitment requires a showing that the person (1) engaged in a habitual course of misconduct in sexual matters, (2) has an utter lack of power to control his sexual impulses, and (3) as a result, is dangerous to others.  Minn. Stat. § 253B.02, subd. 18b (1998).  Based primarily on his own testimony that he can control his sexual impulses, appellant contends that the record is insufficient to show that he has an utter lack of power to control his sexual impulses.

            The supreme court has set out certain factors that the district court may consider in deciding whether the person exhibits a predatory sexual impulse and the lack of power to control it.  In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994) (citing nature and frequency of sexual assaults, degree of violence involved, relationship or lack thereof between the offender and victims, offender's attitude and mood, his medical and family history, and results of psychological and psychiatric testing and evaluation), cert. denied, 513 U.S. 849 (1994).

            The district court considered appellant's choice of victims, which included both strangers and acquaintances, his violence and threats, the results of psychological testing and diagnoses, his failure to avoid precursors that trigger his compulsive behavior such as the consumption of alcohol, his lack of insight, his lack of completed sex-offender treatment, and his failure to develop an appropriate relapse prevention plan.  In light of these facts, the district court's decision that appellant displays an utter lack of power to control his sexual impulses is supported by clear and convincing evidence and is not clearly erroneous.

            Appellant also challenges his commitment as an SDP.  This commitment requires proof that the person (1) engaged in a course of harmful sexual conduct, (2) manifested a sexual, personality, or other mental disorder, and (3) as a result, is likely to engage in acts of harmful sexual conduct.  Minn. Stat. § 253B.02, subd. 18c(a) (1998).  The likelihood of future harm must be high.  In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996), vacated & remanded, 522 U.S. 1011 (1997), aff'd, 594 N.W.2d 867 (Minn.), cert. denied, 528 U.S. 1049 (1999).  Appellant argues that the record does not support the determination that he is highly likely to harm others.

            The supreme court has set out factors for the district court to consider in determining the likelihood of future harm.  Linehan, 518 N.W.2d at 614 (setting out factors as applied to psychopathic personality commitment, including demographics, history of violent behavior, base-rate statistics, stress factors, similarity of present and future contexts to situations in which person used violence in the past, and record in sex-offender treatment); see Linehan, 557 N.W.2d at 189 (applying same factors to prediction of harm for sexually dangerous person commitment).

            The district court, applying these factors, cited the recency, severity, and frequency of appellant's violent sexual acts, base rate statistics for violent behavior among individuals with backgrounds similar to appellant, and the court-appointed examiner's testimony that appellant was highly likely to commit additional sex offenses.  Since appellant's choice of victims was somewhat indiscriminate, the court found that future contexts would be similar to those in which appellant used violence in the past.  Finally, appellant failed to participate in or complete sex-offender treatment despite being offered numerous opportunities.  The district court had clear and convincing evidence from which to conclude that appellant is highly likely to reoffend.

            Appellant next contends that he was not committed to the least restrictive alternative.  The procedures governing commitment as an SPP or SDP do not require commitment to the least restrictive alternative.  In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998).  The proposed patient has the opportunity to prove that a less restrictive treatment program is available that is consistent with the patient's treatment needs and requirements of public safety.  Minn. Stat. § 253B.18, subd. 1(a) (Supp. 1999).

            The district court committed appellant to the Minnesota Sex Offender Program.  Appellant contends that a less restrictive alternative to judicial commitment would have been release from prison pursuant to an intensively supervised release program until his correctional sentence expires on May 19, 2001.  Based on the extensive testimony by the examiners and the MSOP program staff member, the district court's determination that commitment to the MSOP was the least restrictive alternative is supported by clear and convincing evidence.

            Finally, appellant contends that his commitment is unconstitutional.  He first argues that under Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 2080 (1997), his SDP commitment is unconstitutional because it does not require him to exhibit an utter lack of power to control his sexual impulses.  See Minn. Stat. § 253B.02, subd. 18c(b) (1998) (stating inability to control sexual impulses not required for SDP commitment).  We first note that, in the course of determining that appellant met the standards for an SPP commitment, the district court found appellant did exhibit such a lack of control.  In any event, the Minnesota Supreme Court has recently upheld the SDP law against this challenge.  Linehan, 594 N.W.2d at 876.

            Next, appellant contends that the Minnesota procedures are constitutionally inadequate because they fail to meet the "strictest procedural standards" approved in Hendricks, 521 U.S. at 364, 117 S. Ct. at 2083.  Specifically, he challenges Minnesota law because it does not require proof beyond a reasonable doubt, does not provide for a jury trial, authorizes indeterminate commitment, and improperly places the burden of proof on the committed person to show he is entitled to release.  First, we note that the Supreme Court's statement was in the context of a discussion in which it rejected the claim that the "use of procedural safeguards traditionally found in criminal trials" rendered the proceedings criminal rather than civil.  Id.  As to the merits, the Supreme Court has approved the use of a clear-and-convincing standard in civil commitments.  Addington v. Texas, 441 U.S. 418, 431, 99 S. Ct. 1804, 1812 (1979).  In addition, this court has already rejected the remaining arguments.  Joelson, 594 N.W.2d at 910-11.

            Appellant also argues that the Minnesota law is punitive because those committed as SPP or SDP are treated differently from those who are committed as mentally ill, chemically dependent, or mentally retarded.  The supreme court has approved the more limited treatment alternatives for those subject to indeterminate commitment under section 253B.18 based on the type of commitment and the needs of society.  Senty-Haugen, 583 N.W.2d at 268-69.  The supreme court has also rejected the argument that the purpose of the law is punitive.  Call v. Gomez, 535 N.W.2d 312, 320 (Minn. 1995).

            Affirmed.

[1]  The district court initially dismissed the petition based on a determination that it violated appellant's 1991 plea agreement, but was reversed.  In re Ashman, 608 N.W.2d 853, 858 (Minn. 2000).