In the Matter of the Civil Commitment of Bruce Ernest Foley.

In the Matter of the Civil Commitment of Bruce Ernest Foley. A04-2340, Court of Appeals Unpublished, May 17, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2340

 

In the Matter of

the Civil Commitment of

Bruce Ernest Foley.

 

 

Filed May 17, 2005

Affirmed Hudson, Judge

 

Renville County District Court

File No. P9-04-64

 

Mike Hatch, Attorney General, Angela Helseth, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101 (for respondent)

 

James S. Dahlquist, 301 Fourth Avenue South, Suite 270, Minneapolis, Minnesota 55415 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Schumacher, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant Bruce Ernest Foley challenges his commitment as a sexually dangerous person under Minn. Stat. § 253B.02, subd. 18(c) (2004) and as a sexual psychopathic personality under Minn. Stat. § 253B.02, subd. 18(b) (2004).  Appellant argues that (1) the record does not support his commitment as either a sexually dangerous person or a sexual psychopathic personality; (2) the district court erred by adopting portions of the state's proposed findings of fact and conclusions of law in its commitment order; and (3) appellant's commitment violates double jeopardy and due process.  We affirm.

FACTS

            Appellant is in his late fifties.  He grew up in Maine, a self-professed loner who had few friends.  In October 1966, appellant pleaded guilty to assault with intent to kill after beating a neighbor girl with a rock.  After appellant was paroled in November 1967, he obtained his high-school diploma and joined the Iron Horseman Motorcycle Club.  As a club member, appellant was involved in numerous brawls and self-reported that he had assaulted 42 law enforcement officers.  Appellant attended college in 1975 and ended his association with the biker club in 1977.

            In October 1977, appellant was charged with rape and gross sexual misconduct following an incident in his apartment with 23-year-old C.C.  After choking C.C., appellant forced her to perform fellatio on him.  Appellant penetrated C.C. vaginally and performed cunnilingus on her.  Appellant then threatened to beat C.C. if she did not go into the living room and sexually gratify his friend.  C.C. complied.  Upon returning to the bedroom, the two men rolled C.C. onto her side and appellant penetrated her anally while his friend penetrated her vaginally.  A jury convicted appellant of the charged offense, and the district court sentenced him to ten years in prison.  Appellant was paroled in 1984 and worked odd jobs in Maine until moving to Minnesota in 1992.

            In March 1993, appellant was charged with fifth-degree criminal sexual conduct after he procured alcohol for N.H.  Appellant brought the alcohol to a residence where N.H. and friends were playing cards and drinking.  When N.H. went to a bedroom to lay down, appellant entered the room, misrepresented his identity, and fondled N.H.'s breasts and vagina.  The incident ended when N.H. screamed and other party attendees entered the bedroom.  Pursuant to a plea agreement, on June 24, 1993, appellant pleaded guilty to count two of an amended complaint, procuring alcohol for minors, and the court dismissed the sexual conduct charge. 

            In May 1997, appellant was charged with one count of fourth-degree criminal sexual conduct following a January 1993 incident at appellant's home.  Appellant, then 44 years old, held a party attended by female juveniles L., A., B., and B.B.  Appellant provided alcohol to 16-year-old B.B.  B.B. went upstairs to sleep.  L. went upstairs and found appellant unbuttoning B.B's shirt.  B.B.'s pants were also undone.  When A. went upstairs, she observed appellant's hands under B.B.'s bra and inside B.B.'s underwear.  B.B. was asleep while appellant fondled her, until A. and L. woke B.B. up.  In August 1997, a jury found appellant guilty of fourth-degree criminal sexual conduct.  Appellant received a stayed sentence of 30 months and ten years' probation.

            Pursuant to appellant's sentencing requirements, appellant received a psychological evaluation.  The evaluator, Dr. Naldony, diagnosed appellant with Paraphilia, not otherwise specified (NOS), based on his sexual interest in minors, and Antisocial Personality Disorder (APD).  Dr. Naldony considered appellant a high risk for reoffending, but he concluded that appellant's personality composition (callousness, lack of remorse) did not lend itself well to sex-offender treatment.  The facility staff opined that appellant was not a candidate for any sex-offender treatment other than a long-term inpatient program, which was not an option at the time.

            In March 2001, appellant was charged with fourth-degree criminal sexual conduct after sexually assaulting 13-year-old T.L.P.  Appellant met T.L.P. and another juvenile, A.F., at a Subway restaurant.  Both juveniles informed appellant that T.L.P. was thirteen, but appellant accepted an invitation back to A.F.'s apartment.  Appellant commented to T.L.P., "You don't find breasts like that on a 13-year-old."  When A.F. left the apartment, appellant led T.L.P. to a bedroom, pinned her legs with his, and put her hands behind her back.  Appellant lifted T.L.P.'s shirt and bra and touched her breasts with his hands.  Appellant removed his shirt and lay down on top of T.L.P.  Appellant touched and kissed T.L.P.'s breasts, "French kissed" T.L.P., and moved his hips while he laid on top of her.  T.L.P. pushed appellant off of her and left the apartment.  A jury convicted appellant of the charged offense in June 2001.  The court sentenced appellant to a 36-month commitment in November 2001 for the offense against T.L.P. and executed appellant's sentence for his offense against B.B. based on the probation violation of having contact with a minor, T.L.P.

Following the conviction, the Renville county attorney moved for a court-ordered sex-offender evaluation.  Drs. Erickson and Farnsworth diagnosed appellant as having Axis I "Paraphilia NOS" and Axis II "Antisocial Personality Disorder."  The report indicated that appellant was a poor treatment candidate, but appellant's scores on the Static-99 sex offender screening tool and on the Minnesota Sex Offender Screening Tool-Revised (MNSOST-R) indicated that appellant was a high risk to reoffend. 

In December 2002, Department of Corrections (DOC) psychologist Huot completed a civil-commitment screening on appellant, based on file review only.  Huot opined that appellant should not be referred for civil commitment, noting that appellant's most recent convictions had not involved sexual penetration or physically assaultive behavior.  Huot gave appellant a score of 8 on the MNSOST-R, reflecting a high likelihood of sexual reoffense.  The end-of-confinement-review committee assigned appellant a risk level of three.  Appellant was released from prison in March 2003, but was apprehended again in May and October 2003 after searches of appellant's residence produced sexually explicit materials in violation of a supervised release agent's order. 

In September 2003, appellant underwent a diagnostic assessment to determine whether he was a candidate for outpatient treatment.  Dr. Lee conducted the assessment.  Dr. Lee opined that appellant was highly disinclined to take personal responsibility for his situation and that appellant genuinely believed that he did not need sex-offender treatment.  Dr. Lee opined that appellant was both a high-risk offender and a poor candidate for treatment and denied appellant's admission to Woodland Center's sex-offender treatment program.  Appellant was thereafter terminated from outpatient sex-offender treatment at CORE Professional Services after disrupting a group-therapy session. 

In November 2003, DOC psychologist and civil-commitment coordinator Dr. Zwecker completed a civil-commitment-review assessment of appellant, based on appellant's file.  Dr. Zwecker did not refer appellant for civil commitment, noting that he had not accumulated the type of sex-offense history typical of offenders who meet civil-commitment criteria. 

In January 2004, Renville County petitioned the district court for appellant's civil commitment as a "sexually psychopathic personality" (SPP) and as a "sexually dangerous person" (SDP).  Appellant appeared for an initial commitment hearing in March 2004.  At the hearing, court-appointed evaluator Dr. Gilbertson testified that appellant met the statutory criteria for civil commitment as both an SPP and SDP.  The district court's second evaluator, Dr. Alberg, testified that appellant was neither an SPP nor SDP as defined by statute and posed a moderate likelihood of reoffense.  Dr. Alberg did not agree with Dr. Gilbertson's conclusion that appellant has an utter inability to control his sexual impulses and is dangerous to others. 

In its May 3, 2004 interim order, the district court determined that, where the two evaluators' opinions differed, Dr. Gilbertson's opinions were more credible and found that appellant met the statutory criteria for civil commitment as both an SPP and SDP.  The Minnesota Sex Offender Program (MSOP) issued its 60-day treatment report on June 21, 2001.  Appellant refused to participate in an interview.  Dr. Zwecker recommended that appellant participate in the MSOP. 

Appellant appeared for a final commitment hearing in September 2004.  At the hearing, appellant's evaluator, Dr. Reitman, testified that appellant meets the statutory criteria of an SPP and SDP.  In its October 21, 2004 order, the district court concluded that appellant continues to have a sexual psychopathic personality and is a sexually dangerous person and, therefore, continues to satisfy the statutory criteria for SPP and SDP civil commitment.  The district court entered judgment on October 22, 2004.  This appeal follows. 

D E C I S I O N

I

            To commit a person as a sexually dangerous person (SDP) or a sexual psychopathic personality (SPP), the petitioner must prove the requirements for commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1 (2004); see Minn. Stat. § 235B.185, subd. 1 (2004) (providing that chapter 253B.18 applies to SPP and SDP commitments).  On review, findings of fact shall not be set aside unless they are clearly erroneous.  In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).  "Due regard shall be given to the opportunity of the trial court to judge the credibility of the witness."  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  Whether the record supports the conclusion that appellant meets the statutory criteria for commitment as an SPP is a question of law, which this court reviews de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994). 

A.        Sexually Dangerous Person

Minnesota law defines a sexually dangerous person as an individual who (1) has engaged in a course of harmful sexual conduct; (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 (2004).  The SDP law also provides: "For purposes of this provision, it is not necessary to prove that the person has an inability to control the person's sexual impulses."  Id.  It is sufficient if the record establishes that the individual suffers from a mental abnormality or personality disorder that "does not allow them to adequately control their sexual impulses."  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV), cert. denied, 528 U.S. 1049, 120 S. Ct. 587 (1999).  But a commitment as an SDP requires a showing that the individual is "highly likely" to reoffend.  In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (Linehan III), vacated, 522 U.S. 1011, 118 S. Ct. 596 (1997). 

            Appellant does not challenge the district court's conclusion that he has engaged in harmful sexual conduct or that he has manifested a mental disorder or dysfunction.  Instead, appellant argues that the district court erred by concluding that he is highly likely to engage in acts of harmful sexual conduct.  Specifically, appellant argues that the record lacks clear and convincing evidence that he cannot adequately control his impulses because: (a) the record is devoid of acts of sexual impulsivity; (b) he has not been accused of concealing his sexual misconduct through lying; (c) his aggression in sex-offender treatment was verbal, not physical; (d) he demonstrated restraint in his past two convictions by ceasing his conduct; and (e) appellant's criminal convictions have greatly decreased in severity over the years.  In addition, appellant argues that the district court improperly credited the testimony of Dr. Gilbertson over Dr. Alberg and the results of his prior psychological assessments. 

            We conclude that there is clear and convincing evidence establishing that appellant is highly likely to reoffend.  The district court considered the so-called Linehan factors used to determine the likelihood of future harm in an SDP commitment.  See Linehan III, 557 N.W.2d at 189. Those factors are: (1) relevant demographic characteristics; (2) a history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the environment; (5) the similarity of present and future contexts to past contexts in which violence was used; and (6) the record with regard to sex-therapy programs.  Id.  To the extent that Dr. Gilbertson's opinion differed from that of Dr. Alberg, the district court did not err in crediting Dr. Gilbertson's testimony.  See Knops, 536 N.W.2d at 620. 

Dr. Gilbertson opined that appellant's sexual re-offense risk is two and one-half times greater than the expected base rate for recidivism.  Dr. Gilbertson testified that a variety of actuarial tools, including the SORAG, the MNSOST-R, and the PCL-R, demonstrate that appellant has a high risk of reoffense.  Both experts testified that appellant received a score of 32 on the PCL-R, which is above the cutoff for a clinical psychopath and reflects a high likelihood of violent re-offense. 

In addition to the results of the actuarial tools, the district court credited Dr. Gilbertson's testimony that, based on his clinical assessment of appellant, appellant could not adequately control his sexual impulses.  Dr. Gilbertson testified that appellant lacks an adequate support system and has no therapeutic tools or insight to combat temptations.  Appellant re-offended sexually while on probation, despite the known consequences.  And the district court found that appellant is an untreated offender.  Dr. Gilbertson testified that appellant demonstrates inadequate insight into the basis of his past sexual offending and his risk factors for future re-offending.  Moreover, while Dr. Alberg ultimately concluded that appellant does not meet the statutory criteria, Dr. Alberg opined that appellant has "serious difficulty" overcoming his sexual impulses and that, if there is an available victim and circumstances conducive to sexual assault, appellant will "most likely" not control himself.  And both experts opined that appellant's plan to avoid re-offending, to stay away from under-aged girls, is not sophisticated. 

Given the district court's extensive analysis of the Linehan factors and its discretion when judging the credibility of expert testimony, the district court's factual findings are not clearly erroneous and are sufficient to support a finding by clear and convincing evidence that appellant is a sexually dangerous person as defined in Minn. Stat. § 253B.02, subd. 18c.

B.        Sexual Psychopathic Personality

Commitment as an SPP requires a showing of a habitual course of misconduct in sexual matters and an utter lack of power to control sexual impulses.  The SPP law states,

"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 (2004) (emphasis added). 

 

            Appellant does not deny engaging in a habitual course of misconduct in sexual matters.  Rather, appellant argues that there is insufficient evidence establishing that appellant evidences an utter lack of power to control his sexual impulses.  According to appellant, because the conduct underlying his recent convictions was less severe, his juvenile victims were not very young, and he did not orally or vaginally penetrate his juvenile victims, his conduct no longer "fits the common law framework for utter lack of power to control a person's sexual impulses."  In addition, appellant argues that the record reflects appellant's ability to stop his sexual behavior, a finding contrary to an utter lack of control.  We disagree.

            The district court applied the so-called Blodgett factors to determine whether appellant has an utter lack of power to control his sexual impulses.  See In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).  These factors include (1) the nature and frequency of the sexual assaults, (2) the degree of violence involved, (3) the relationship (or lack thereof) between the offender and the victims, (4) the offender's attitude and mode, (5) the offender's medical and family history, (6) the results of psychological and psychiatric testing and evaluation, and (7) other factors that bear on the predatory sex impulses and the lack of power to control it.  Id. 

            The district court found that appellant has a varied victim pool and has assaulted at least three victims, consistently committing sexual offenses against women and teenagers with whom he was acquainted or related.  Appellant demonstrated a willingness to use extreme violence with his earlier victims and employed some force against his juvenile victims.  The district court noted that appellant's attitude predisposed him to sexually offending, because appellant denies and minimizes his sexually harmful behavior as well as his need for treatment.  Dr. Gilbertson opined that appellant does not see himself as having a current problem with regard to sexual offending.  In addition, the court credited Dr. Gilbertson's opinion that the results of appellant's past evaluative techniques, actuarial scales, personality inventories, etc. have consistently demonstrated that appellant has a significant personality impairment known for impulsive behavior and high rates of recidivism. 

            The district court also credited Dr. Gilbertson's testimony with respect to additional factors evidencing appellant's utter lack of control over his sexual impulses.  Dr. Gilbertson testified that appellant engages in grooming behavior, plying his juvenile victims with alcohol or cigarettes, and does not avoid the precursors that trigger his sexual acting out, such as having contact with minors.  Dr. Gilbertson testified that appellant lacks victim empathy and insight into his offenses, believing that his victims were already victims of some sort who suffered no additional harmful effects as a result of appellant's conduct.  Moreover, Dr. Gilbertson opined that appellant does not have an understanding of treatment concepts, has refused treatment opportunities, and lacks an adequate relapse prevention plan. 

Finally, while Dr. Alberg testified that appellant's offenses exhibited a pattern of de-escalation in violence, because appellant's recent offenses have employed some force and appellant has repeatedly assaulted his juvenile victims when they were intoxicated and vulnerable, these assaults were highly likely to have a serious, lasting effect on the victim's sense of security and cause a continuing sense of fear.  See In re Robb, 622 N.W.2d 566, 571 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001); cf. In re Preston, 629 N.W.2d 104, 113 (Minn. App. 2001) (noting the absurdity of holding that an assault was not violent because the victim was not difficult to subdue).  Accordingly, the district court's finding that appellant lacks utter control over his sexual impulses is not clearly erroneous. 

II

Appellant next argues that the district court committed reversible error by adopting the attorney general's proposed findings of fact and conclusions of law in "near totality."  Appellant's argument lacks merit.  A comparison of the proposed findings and the district court's May 3, 2004 order demonstrates that the court made significant changes, deletions, and additions to the proposed findings.  Moreover, "the verbatim adoption of a party's proposed findings and conclusions of law is not reversible error."  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). 

III

 

            Appellant next argues that his commitment as an SDP and SPP violates his double-jeopardy and due-process rights because the program is allegedly "notorious" for its lack of success in rehabilitating offenders and has not released an offender from the program in ten years.  "Evaluating a statute's constitutionality is a question of law."  Hamilton v. Comm'r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).  "The party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution."  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).

            Appellant's contention that the SDP and SPP statutes have been rendered unconstitutional by their administration is contrary to established Minnesota precedent.  The supreme court has rejected the argument that the SDP and SPP statutes violate double jeopardy.  See Call v. Gomez, 535 N.W.2d 312, 31920 (Minn. 1995), cert. denied, 519 U.S. 1094 (1997).  In addition, the supreme court has concluded that "[s]o long as civil commitment is programmed to provide treatment and periodic review, due process is provided."  Blodgett, 510 N.W.2d at 916.  Here, appellant has not argued that the program is no longer offering rehabilitative services or has ceased to provide treatment.  Accordingly, appellant's speculative characterization of the MSOP does not satisfy his burden of demonstrating the statute's unconstitutionality beyond a reasonable doubt. 

            Affirmed.