In the Matter of the Civil Commitment of: George G. Chamberlain.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-03-281

 

 

In the Matter of the Civil Commitment of:

George G. Chamberlain.

 

 

Filed August 5, 2003

Affirmed Willis, Judge

 

Hennepin County District Court

File No. PX0260061

 

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

 

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his civil commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), arguing that (1) the commitment is not supported by clear and convincing evidence, (2) the SDP statute is unconstitutional and in conflict with Minnesota caselaw, and (3) he is entitled to relief because the department of corrections did not refer this matter to the county attorney at least 12 months before his release from state prison.  We affirm the commitment.

FACTS

            Appellant George G. Chamberlain has an extensive history of sexual misconduct.  Chamberlain was born in 1939 and raised in California.  At age 15 he was sent to a juvenile correctional facility for window peeping.  In 1958, Chamberlain was convicted in California for window peeping and was committed to a state hospital for observation as an alleged sexual psychopath.  A psychiatrist at the hospital found Chamberlain to be a sexual psychopath and diagnosed him as an "immature personality with sexual deviation" and as having propensities toward voyeurism and rape.

            In 1960, Chamberlain moved to South Dakota.  In 1961, he pleaded guilty to attempted rape and was sentenced to five years in prison.  As part of the disposition of the attempted-rape charge, Chamberlain consented to examination by two doctors at a state hospital.  The first doctor diagnosed Chamberlain as having a "personality trait disturbance, [and an] emotionally unstable personality, with sexual deviation (rape)" and "distinguished sociopathic and antisocial designations which may well qualify him as a sexual psychopath."  The first doctor also reported that Chamberlain said that "he does not know why he is doing these acts and that he simply has an urge to do it."  The second doctor concluded that Chamberlain "reveals classical findings of a typical psychopathic personality * * * profiting neither from experience nor punishment."

            In 1965, Chamberlain moved to Minneapolis.  In 1967, he was charged with the molestation of a six-year-old girl.  The district court ordered a psychological evaluation, and the psychologist found that before, during, and after the offense Chamberlain "was fully aware that he knew what he was doing was wrong, but that this awareness made no difference to him."  The psychologist also noted that Chamberlain described his behavior in terms of an "irresistible impulse."  In 1968, Chamberlain pleaded guilty to indecent liberties related to the molestation.  A psychiatrist who examined Chamberlain as part of a presentence investigation diagnosed him as having a "sociopathic personality disturbance, [with] sexual deviation."  The chief psychologist at the state hospital in St. Peter, who also examined Chamberlain at this time, concluded that Chamberlain was a person capable of acting "with little control or forethought" and who appeared "concerned about his inability to control * * * but would be unlikely to exercise it in other situations where both need and opportunity are present."  The chief psychologist also concluded that Chamberlain was a "long-term threat to the community."  Chamberlain was imprisoned following the indecent-liberties conviction and was paroled in 1971.

In 1972, Chamberlain broke into a house in St. Paul and found a 14-year-old female babysitting two girls, ages seven and nine.  Chamberlain told the babysitter and the girls to take off their clothes.  The girls' father then returned to the house; Chamberlain stabbed the father and fled the scene but was arrested soon thereafter.  Chamberlain pleaded guilty to burglary with intent to commit indecent liberties and admitted that he intended to commit indecent liberties with the babysitter.  Chamberlain was sentenced to seven years in prison and was paroled in 1973.

Chamberlain was implicated in the sexual assaults in 1975 and 1976 of approximately 14 children.  Chamberlain was charged with sexual assault but was acquitted of all charges.  In this commitment proceeding, the district court found that the evidence "is not clear enough to support a finding that [Chamberlain] committed any of those offenses."

In 1979, Chamberlain was charged with criminal sexual conduct against four minor females who had worked for him and his girlfriend as babysitters.  Following a jury trial, Chamberlain was convicted of one count of first-degree, one count of third-degree, and three counts of fourth-degree criminal sexual conduct.  The supreme court later reversed the conviction of one of the fourth-degree counts.  As part of a presentence investigation, Chamberlain was evaluated by a psychologist who diagnosed him as having a "very significant character disorder or psychopathic personality who has longstanding problems with adequate impulse control."  Chamberlain was again sentenced to prison; his release was eventually scheduled for February 2002.

In the early 1980s, Chamberlain, who had earned a bachelor's degree while in prison, began work through the Insight Program as a subcontractor for Control Data, teaching computer programming to physically disabled adults.  By 1994, the department of corrections had begun an investigation into whether Chamberlain had accessed child pornography on the Internet while working in the Insight Program.

In 1997, Chamberlain was convicted of federal charges of possession of and conspiracy to trade in child pornography.  On appeal, these convictions were reversed.  Chamberlain then pleaded guilty to one count of possession of child pornography and was sentenced to 51 months in prison, to be served consecutively with his state sentence.  In February 2002, Chamberlain was released from state prison and transferred to federal prison, where as of December 2002 he was serving the remainder of his federal sentence.

Chamberlain has either failed to complete or refused sex-offender treatment.  After leaving prison in 1971 Chamberlain entered a treatment program but was dropped from the program for failing to keep appointments.  Chamberlain later testified that the program included electroshock therapy, which he found "quite painful."  Chamberlain was paroled in 1973 on the condition that he move into a halfway house and undergo aversion therapy.  The record does not indicate whether Chamberlain completed such therapy.  Chamberlain began a different course of treatment in 1976 but was dropped from the program for missing appointments.  While Chamberlain was in prison in the mid-1990s, department of corrections staff recommended to him that he begin sex-offender treatment, but he refused.  Chamberlain refused similar recommendations made in the late 1990s.

As Chamberlain's February 2002 release date approached, the department of corrections referred Chamberlain's case to the Hennepin County Attorney with the recommendation that the state seek civil commitment as a sexual psychopathic personality (SPP) or sexually dangerous person (SDP).  The county attorney petitioned for Chamberlain's commitment as an SPP and SDP in February 2002.

As part of the commitment proceeding, the district court ordered a psychological examination to be completed by Roger C. Sweet, Ph.D., but Chamberlain refused to be interviewed.  A second court-appointed examiner, Thomas L. Alberg, Ph.D., was able to interview Chamberlain.  Both Dr. Sweet, who reviewed Chamberlain's medical records, and Dr. Alberg diagnosed Chamberlain as a pedophile with antisocial personality disorder.  In addition, the psychologists reported to the district court that there was a high probability that Chamberlain would reoffend and that Chamberlain's psychological-test results were consistent with that of a clinical psychopath.

The district court concluded that the state had established, by clear and convincing evidence, that Chamberlain is an SPP, as defined in Minn. Stat. § 253B.02, subd. 18b (2002), and is an SDP, as defined in Minn. Stat. § 253.02, subd. 18c (2002), and thus granted the petition for commitment.  Having found no evidence of a secure sex-offender-treatment program willing to accept Chamberlain, the district court concluded that the Minnesota Sex Offender Program was the only treatment facility capable of treating Chamberlain.  This appeal follows.

D E C I S I O N

I.

Chamberlain contends that the state did not prove by clear and convincing evidence that (1) he is a sexual psychopathic personality (SPP), (2) he is a sexually dangerous person (SDP), or (3) commitment to the Minnesota Sex Offender Program (MSOP) is the least-restrictive alternative.  Whether the evidence is sufficient to demonstrate that the standards for commitment under the SPP or SDP statutes are met is a question of law, which we review de novo.  See In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

A.         SPP commitment

            Under Minnesota law, "sexual psychopathic personality"

means the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person's sexual impulses and, as a result, is dangerous to other persons.

 

Minn. Stat. § 253B.02, subd. 18b (2002).  Clear and convincing evidence is required to support an individual's commitment as an SPP.  Id. §§ 253B.18, subd. 1(a), .185, subd. 1 (2002).  Clear and convincing evidence requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.  State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997).  Here, Chamberlain contends that the evidence proving that he is an SPP is not clear and convincing.

            The first issue is whether Chamberlain engaged in a habitual course of sexual misconduct.  In his adult life, Chamberlain has been convicted of attempted rape, indecent liberties, burglary with intent to commit indecent liberties, possession of child pornography, and four counts of criminal sexual conduct.  Thus, there is clear and convincing evidence of a habitual course of sexual misconduct.

            The second issue is whether Chamberlain is utterly unable to control his sexual impulses.  Chamberlain was diagnosed as unable to control his sexual impulses after his 1961 attempted-rape conviction, at the time of his 1968 indecent-liberties conviction (by two different psychologists), and after his 1979 criminal-sexual-conduct convictions.  Both Dr. Sweet and Dr. Alberg testified at the hearing on the petition that Chamberlain has an utter lack of power to control his sexual impulses and that this condition would continue in the future, despite his age.  Chamberlain cites no evidence in the record that would contradict the conclusion that he is utterly unable to control his impulses, other than his own assertion to the contrary.  Furthermore, the record shows that Chamberlain has regularly refused or failed to complete sex-offender treatment.  "Refusal of treatment and lack of a relapse prevention plan can show an utter lack of control."  In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995) (citation omitted), review denied (Minn. Aug. 30, 1995).  Thus, there is clear and convincing evidence that Chamberlain has an utter lack of power to control his sexual impulses.

            The final issue is whether Chamberlain poses a danger to other persons.  A person is "dangerous to others" and subject to commitment as an SPP if the person's pattern of sexual misconduct (1) creates a substantial likelihood of serious physical or emotional harm to others and (2) is likely to recur because of an utter lack of power to control sexual impulses.  In re Kindschy, 634 N.W.2d 723, 732 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).  To demonstrate that a person is dangerous to other persons as required by the SPP statute, "it must be shown that the person is likely to commit violent sexual assaults."  In re Robb, 622 N.W.2d 564, 569 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  Chamberlain has been convicted of one count of attempted rape, one count of first-degree criminal sexual conduct, one count of third-degree criminal sexual conduct, and two counts of fourth-degree criminal sexual conduct.  Thus, Chamberlain has an extensive history of committing violent sexual assaults.  See Minn. Stat. § 609.1095, subd. 1(d) (2002) (defining first-, third-, and fourth-degree criminal sexual conduct as "violent crimes" for sentencing purposes).  More importantly, both Dr. Sweet and Dr. Alberg testified that it was highly probable that Chamberlain would reoffend if not committed.  We therefore conclude that there is clear and convincing evidence that Chamberlain is dangerous to other persons and that the district court did not err by committing him as an SPP.

            B.         SDP commitment

            Under Minnesota law, an SDP is a person who (1) has engaged in a course of "harmful sexual conduct," as defined in Minn. Stat. § 253B.02, subd. 7a (2002); (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct.  Minn. Stat. § 253B.02, subd. 18c(a) (2002).  The SDP statute does not require a proof of an "utter lack of power to control * * * sexual impulses," but the statute

requires a finding of future dangerousness, and then links that finding to the existence of a mental abnormality or personality disorder that makes it difficult, if not impossible, for the person to control his dangerous behavior.

 

In re Linehan, 594 N.W.2d 867, 875 (Minn. 1999) (Linehan IV) (quotations omitted).  As with the SPP statute, the requirements for commitment under the SDP statute must be established by clear and convincing evidence.  Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd. 1.

            Chamberlain does not dispute that he has manifested a mental disorder or dysfunction, and we conclude that the evidence that establishes that Chamberlain engaged in a course of harmful sexual conduct for purposes of the SPP commitment also establishes the required course of conduct for purposes of the SDP commitment.  See id. § 253.02, subd. 7a(b) (providing that commission of first-, third-, and fourth-degree criminal sexual conduct creates rebuttable presumption of harmful sexual conduct under SDP statute).  Thus, this issue turns on whether there is clear and convincing evidence that Chamberlain is likely to engage in acts of harmful sexual conduct.  We have noted that Dr. Sweet and Dr. Alberg testified that Chamberlain has an utter lack of power to control his sexual impulses and that he is highly likely to reoffend if not committed.  Again, Chamberlain cites no evidence that would contradict the court-appointed experts' conclusion, other than his own assertion to the contrary.  Therefore, we conclude that there is clear and convincing evidence that Chamberlain is an SDP and that district court did not err by committing him.

            C.        Least-restrictive alternative

            Chamberlain asserts that the state did not prove by clear and convincing evidence that commitment to MSOP is the least-restrictive alternative that is consistent with his treatment needs and the requirements of public safety.  Rather, he maintains that supervised release after he has completed his sentence in federal prison is a viable less-restrictive alternative.

            The SPP and SDP statutes provide that the district court must commit patients to a secure treatment facility, unless the patient proves by clear and convincing evidence that a "less restrictive treatment program is available that is consistent with the patient's treatment needs and the requirements of public safety."  Minn. Stat. § 253B.185, subd. 1 (2002).  Thus, in the district court proceeding, the burden was on Chamberlain to establish that the federal supervised-release program would meet both his treatment needs and the requirements of public safety.  But on appeal Chamberlain cites no evidence showing that supervised release would achieve these ends, and we decline to conclude that supervised release would be an appropriate less-restrictive alternative under the SPP or SDP statute.

II.

            Chamberlain challenges the constitutionality of the SDP statute, as interpreted by the supreme court in Linehan IV.  This issue presents a question of law, which we review de novo.  See Pirkl, 531 N.W.2d at 907.

            A.         U.S. Supreme Court decisions

            Chamberlain argues that the SDP statute is unconstitutional in light of the U.S. Supreme Court's decisions in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002), and Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780 (1992).  We have held that the SDP statute is constitutional under Crane.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 267 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).  Chamberlain also argues that the SDP statute and Linehan IV conflict with Foucha.  But in Foucha the U.S. Supreme Court struck down a statute that allowed a person acquitted of a crime by reason of insanity to be committed indefinitely, even if no longer mentally ill, until the person could prove that he or she was not a danger to others.  504 U.S. at 82-83, 112 S. Ct. at 1787.  Here, the opposite is true:  the SDP statute does not allow commitment until the petitioner proves by clear and convincing evidence that the person is mentally ill and a danger to others.  Thus, the SDP statute, as interpreted in Linehan IV, is not unconstitutional under Foucha and Crane.

            B.         Minnesota precedent

            Chamberlain also claims that the SDP statute and Linehan IV conflict with Pearson, where the supreme court interpreted the Psychopathic Personality Commitment Act to require proof of an utter inability to control sexual impulses.  See State ex rel. Pearson v. Probate Court, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939), aff'd, 309 U.S. 270 (1940).  But as Linehan IV states, the Psychopathic Personality Commitment Act was the predecessor to the SPP statute, not the SDP statute, and since Pearson, Minnesota law has recognized other grounds for civil commitment (e.g., as an SDP) that do not constitutionally require proof of an utter inability to control sexual impulses.  594 N.W.2d at 876.  Thus, the SDP statute is not unconstitutional in light of Pearson.

            C.        Procedural safeguards

            Chamberlain maintains that the SDP statute is unconstitutional because it does not provide the same procedural safeguards as those provided by the Kansas statute that the U.S. Supreme Court upheld in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997).  But this court has concluded that the lack of procedural safeguards identical with those in the Kansas statute in Hendricks does not render the Minnesota SPP statute unconstitutional.  Joelson v. O'Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999), review denied (Minn. July 28, 1999).  We conclude that the same reasoning applies to the SDP statute and, therefore, that the statute is not unconstitutional on this ground.

            D.        Ex post facto and double-jeopardy arguments

            Chamberlain argues that the SDP statute violates the Ex Post Facto Clause and the Double Jeopardy Clause of the U.S. Constitution because, unlike persons committed "under traditional mental health categories," persons committed under the SDP statute (1) must complete criminal sentences, if any, before being placed in a treatment facility; (2) are not guaranteed commitment to the least-restrictive treatment program; (3) have "unequal access to outside ‘review boards'"; and (4) are not sufficiently protected as "vulnerable adults" under Minnesota law.  But Chamberlain provides no analysis of constitutional law demonstrating how the SDP statute violates either the Ex Post Facto Clause or the Double Jeopardy Clause.  Therefore, we decline to address this issue.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegation of violation of due process not supported by "constitutional analysis or citation").

            We therefore conclude that Chamberlain has not demonstrated that the SDP statute, as interpreted in Linehan IV, is unconstitutional.

III.

            Chamberlain contends that he is entitled to a reversal because the department of corrections did not refer this matter to the state at least 12 months before his scheduled release from prison.  If the department determines that an SPP or SDP commitment may be appropriate, the determination must be forwarded to the state no less than 12 months before the release date.  See Minn. Stat. § 244.05, subd. 7(c) (2002).  But a failure to adhere to the statute does not deprive the district court of jurisdiction to decide the commitment matter.  See State v. Thomas, 467 N.W.2d 324, 326 (Minn. App. 1991).  While the state does not dispute that the determination was forwarded less than 12 months before Chamberlain's anticipated release, we "will not reverse [an order] for a technical error unless the accused has been prejudiced through the impairment of substantial rights essential to a fair" proceeding.  Id. (quotation omitted).  Chamberlain does not argue, and the record does not indicate, that he was prejudiced by the department's failure to follow Minn. Stat. § 244.05, subd. 7.  Because the error is technical and Chamberlain has not been prejudiced, we decline to reverse on this ground.

            Affirmed.