In the Matter of the Civil Commitment of Lawrence Joseph Fisher.

In the Matter of the Civil Commitment of Lawrence Joseph Fisher. A05-579, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and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

A05-579

 

In the Matter of the Civil Commitment of
Lawrence Joseph Fisher

 

Filed September 13, 2005

Affirmed in part, vacated in part, and remanded

Wright, Judge

 

Itasca County District Court

File No. P6-04-0892

 

 

James S. Dahlquist, 270 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN  55415 (for appellant Lawrence Fisher)

 

Mike Hatch, Attorney General, Matthew Frank, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent State)

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

The district court committed indeterminately appellant as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP) under Minn. Stat. §§ 253B.02, subds. 18b, 18c, .185 (2004).  On appeal from the initial order of commitment and the order for indeterminate commitment, appellant argues that (1) the record lacks sufficient evidence to support his civil commitment as a SDP and a SPP; (2) the district court erred by permitting the state, but not appellant, to elicit expert testimony criticizing another expert; and (3) the district court violated appellant's right to due process by accepting an incomplete treatment report at the review hearing and then relying on a supplemental report submitted after the 60-day deadline to support appellant's indeterminate commitment.  We affirm in part, vacate in part, and remand.

FACTS

 

On May 14, 2004, Itasca County Human Services (ICHS) filed a petition for the civil commitment of appellant Lawrence Fisher as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP) under Minn. Stat. §§ 253B.02, subds. 18b, 18c, .185 (2004).  A civil-commitment hearing was held in late June 2004.  Following the hearing, the district court ordered Fisher's commitment to the Minnesota Sex Offender Program (MSOP) as a SDP and a SPP. 

On October 10, 2004, the MSOP submitted a written treatment report to the district court, as required by Minn. Stat. § 253B.18, subd. 2 (2004), to assist the district court in its final determination as to whether Fisher continued to meet the commitment standards and therefore should be committed indeterminately.  The report omitted a recommendation addressing Fisher's indeterminate commitment as a SPP, addressing only the SDP commitment standards. 

At the review hearing on December 16, 2004, Fisher objected to the incomplete report and requested a dismissal of the SPP petition, arguing that he could not be committed indeterminately as a SPP without a report assessing any change in circumstances under the SPP criteria.  The district court offered to continue the matter, but Fisher elected to proceed.  On January 13, 2005, the MSOP submitted a supplemental report recommending Fisher's indeterminate commitment as a SPP.  Fisher never received a copy of the supplemental treatment report.  Relying on both the October 2004 report and the January 2005 supplement, the district court ordered Fisher committed indeterminately as a SDP and a SPP.  This appeal followed.

D E C I S I O N

 

I.

           

            Fisher argues that the record lacks sufficient evidence to support his civil commitment as a SDP and a SPP.  Clear and convincing evidence is required to support commitment on either ground.  Minn. Stat. §§ 253B.02, subds. 17, 18b, 18c, .18, subd. 1(a), .185, subd. 1 (2004).  "Clear and convincing" 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). Whether the record supports the standards for commitment with clear and convincing evidence is a question of law, which we review de novo.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd on remand,594 N.W.2d 867 (Minn. 1999) (hereinafter Linehan III).  In performing our review, we do not reweigh the evidence on appeal; rather we determine whether the evidence as a whole provides substantial support for the district court's conclusions.  Id. 

We review the district court's factual findings for clear error, deferring to the district court's credibility determinations and its resolution of conflicting evidence.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re Kindschy, 634 N.W.2d 723, 732 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).  When the findings of fact rest almost entirely on expert opinion testimony, the district court's evaluation of credibility is of particular significance.  Joelson, 385 N.W.2d at 811. 

A.

            As an initial matter, Fisher challenges the district court's finding that he sexually assaulted S.M., conduct that serves in part as the basis for his civil commitment.  Fisher contends that, because S.M. could not identify him from a 1977 photograph and because the state declined to prosecute him for the assault, the district court cannot consider this incident as a basis for civil commitment.  Unless they are clearly erroneous, the district court's factual findings will not be disturbed on review.  Minn. R. Civ. P. 52.01.

            S.M. testified at the civil commitment hearing.  She explained that, in May 1977, she was traveling to a party with her friend A.S. and his friend Larry Fisher, whom she had just met.  On the way to the party, A.S. stopped to visit a girlfriend and left Fisher and S.M. alone in the vehicle.  Fisher asked S.M. to take a drive, and she agreed.  When they reached an isolated area, Fisher stopped the vehicle, grabbed S.M., and began undressing her.  S.M. tried to resist his advances, but Fisher held her down and forcefully penetrated her.  He also performed oral sex on S.M. without her consent.  After the assault, Fisher took S.M. home.

The 1977 police report recounts different facts.  According to the police report, the assailant attacked S.M. while she was walking home through a field, rather than in the vehicle.  S.M. also initially told the police that Fisher knocked her unconscious and that she awoke naked in the field an hour later.  S.M.'s allegations of forced vaginal penetration and nonconsensual oral sex are consistent, however.  At the commitment hearing, S.M. testified that she lied to the police because she feared that her mother would be angry that she entered a vehicle with a stranger.

Although S.M. could not identify Fisher as her assailant from a 1977 photograph, she testified that A.S. introduced the man who later assaulted her as Larry Fisher.  Fisher admitted that he was acquainted with A.S. in May 1977 but denied assaulting S.M.  In support of his claim, Fisher offered the telephone message of a probation officer who had theorized that the state declined to prosecute because "[S.M.'s] statement was false" but later admitted that he did not know why the state declined to prosecute Fisher. 

Notwithstanding the inconsistencies between S.M.'s testimony at the commitment hearing and the 1977 police report, the district court found S.M. credible.  The district court also found that S.M.'s failure to recognize Fisher from the photograph was not fatal to her claims because the assault occurred more than 25 years ago.  The district court credited S.M.'s testimony and specifically discredited Fisher's denials.  Deferring to the district court's assessment of witness credibility, we conclude that the district court's finding that Fisher assaulted S.M. is not clearly erroneous.  See Joelson, 385 N.W.2d at 811.

B.

Fisher next argues that the record fails to provide clear and convincing evidence of the standards for commitment as a SDP.  A "sexually dangerous person" is one 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 Minnesota Supreme Court has clarified that the SDP Act permits the civil commitment only of those who, because of their disorder or dysfunction, cannot adequately control their sexual impulses, making it "highly likely" that they will reoffend.  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (hereinafter Linehan IV); Linehan III, 557 N.W.2d at 180.

1.

We first consider whether Fisher engaged "in a course of harmful sexual conduct."  "Harmful sexual conduct" is sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.  Minn. Stat. § 253B.02, subd. 7a(a) (2004).  There is a rebuttable presumption that conduct constituting first- to fourth-degree criminal sexual conduct creates a substantial likelihood that the victim will suffer serious physical or emotional harm.  Id., subd. 7a(b) (2004); Kindschy, 634 N.W.2d at 730.  A course of harmful sexual conduct may be demonstrated by similarities between incidents, In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994), and numerous acts, In re Monson, 478 N.W.2d 785, 789 (Minn. App. 1991).  A course of harmful sexual conduct also may include harmful sexual conduct for which the offender was not convicted.  In re Civil Commitment of Jackson, 658 N.W.2d 219, 226 (Minn. App. 2003), review denied (Minn. May 20, 2003).

Relying primarily on expert testimony, the district court found that Fisher engaged in a course of harmful sexual conduct.  Based on two prior fourth-degree criminal sexual conduct convictions, two other incidents of sexual misconduct with young women, and the repeated rape of his wife throughout their marriage, all three experts who testified at the commitment hearing opined that Fisher engaged "in a course of harmful sexual conduct."  The experts also agreed that Fisher's conduct created a substantial likelihood of serious emotional harm to his victims. 

Fisher's 27-year history of sexual misconduct substantiates the experts' opinions.  Fisher's history of sexual misconduct began in 1977 when Fisher sexually assaulted 17-year-old S.M.  Although Fisher was not prosecuted for this assault, recognizing this incident as part of a course of harmful sexual conduct is justified by evidence presented at the commitment hearing.

Two months after the incident with S.M., Fisher admitted following an 18-year-old female, B.I., in his pickup truck.  Fisher tried to flag B.I. down; but when this failed, he ran her vehicle off the road.  Fisher told B.I. that his truck was overheating and he needed a ride.  Without waiting for a response, Fisher unlocked the door of her vehicle, pushed her over, and drove the car into the woods.  In a secluded area, Fisher grabbed B.I. and announced his intention to rape her.  During the struggle, Fisher claimed that he had a gun.  After several attempts to distract him, B.I. eventually convinced Fisher to go to her apartment.  As soon as she arrived home, she contacted the police.  Fisher was convicted of fourth-degree criminal sexual conduct for this incident. 

About eight years later, in August 1985, Fisher assaulted a 17-year-old female, T.H.  Fisher followed T.H. into the parking lot of her apartment building where he initiated a conversation with her.  A few moments later, he grabbed T.H. and threw her against his truck.  T.H. struggled to escape, but Fisher pushed her inside the cab of his truck where he placed his hand over her mouth to silence her and threatened to use a knife if she did not keep quiet.  A night security guard intervened and chased Fisher away.  Fisher later admitted that he intended to rape T.H.  Fisher was convicted of felony terroristic threats for this incident. 

Fifteen years elapsed with no reported incidents.  But Fisher's former wife, G.H., testified at the commitment hearing that, throughout their 24-year marriage, Fisher forced her to have sexual intercourse.  According to G.H., between 1997 and 1999, Fisher sexually assaulted her on a weekly basis.  Fisher admitted that he frequently raped his wife.  G.H. separated from Fisher in December 1999, and the parties' marriage was dissolved in early 2000. 

Following the separation, Fisher engaged in several additional instances of threatening sexual behavior.  In late January 2000, Fisher made lewd comments to a female bartender.  Fisher waited for the bartender to leave work and then tried to gain entry into her vehicle.  The bartender sped out of the parking lot.  Approximately one month later, Fisher visited the home of a female acquaintance in the middle of the night, banged on her door, and demanded sex.  The woman refused to let him in.  And on May 11, 2000, a man reported that Fisher was peeping in his windows.  These three incidents were reported to the police, but Fisher was not prosecuted for them. 

Finally, in September 2000, Fisher sexually assaulted I.S., an adult female whom he met at a bar.  After buying I.S. a drink, Fisher repeatedly touched I.S.'s neck and leg, tried to pull her sweater off, and attempted to kiss her.  When I.S. left the bar, Fisher followed her.  I.S. reluctantly agreed to take Fisher to his home.  But instead of directing I.S. to his house, Fisher led I.S. to a roadside area where he suddenly grabbed her by the throat and tried to drag her into the back seat.  I.S. told Fisher to stop, but Fisher ignored her, shoved his hand under her clothing, and fondled her breasts.  Fisher ordered I.S. to undress.  When she refused, he unbuttoned her pants.  I.S. eventually convinced Fisher that they should go to her apartment.  Instead, I.S. dropped Fisher off at his car and drove away.  As a result of this incident, Fisher pleaded guilty to fourth-degree criminal sexual conduct, admitting that he used force to initiate sexual conduct with I.S. and that he intended to "fool around with her."

Committing four sexual assaults in a 27-year period in addition to raping his wife and harassing strangers demonstrates a course of harmful sexual conduct.  Fisher's assaults have been repeated, and they exhibit similar characteristics.  The record also establishes that this course of sexual conduct is harmful.  The state demonstrated that Fisher was convicted of fourth-degree criminal sexual conduct on two occasions, once in 1977 and once in 2000.  In doing so, the state shifted the burden to Fisher to rebut the presumption that the victims suffered serious physical or emotional harm.  See Minn. Stat. § 253B.02, subd. 7a(b).  Fisher introduced no evidence to rebut that presumption.  Although Fisher was not convicted of a criminal-sexual-conduct offense for the 1985 or May 1977 assaults or for the rape of his wife, Dr. James Alsdurf testified as an expert that these incidents, which involved threats and physical force, almost certainly caused the victims emotional harm, including depression.  The record supports the district court's finding that Fisher engaged in a course of harmful sexual conduct. 

2.

Fisher next challenges the district court's finding that he suffers from a mental disorder that prevents him from exercising adequate control over his sexual impulses.  In assessing whether a patient's mental illness prevents him from adequately controlling his sexual impulses, relevant factors may include: (1) a recent display of sexual impulsiveness; (2) concealing sexual misconduct; (3) abusing substances that heighten sexual impulsiveness; (4) aggressive behavior; and (5) the particular symptoms of the mental disorder.  Linehan IV, 594 N.W.2d at 876-78. 

The district court, again relying on the consensus of the three testifying experts, found that Fisher suffers from bipolar affective disorder and a personality disorder, which prevent him from adequately controlling his sexual impulses.  At the commitment hearing, all three experts diagnosed Fisher with bipolar affective disorder and two of the experts believed Fisher suffered from some type of personality disorder.  The experts also agreed that Fisher's bipolar disorder, which causes impulsive behavior, in conjunction with his alcoholism, which exacerbates his impulsiveness, prevents Fisher from exercising adequate control over his sexual impulses and has caused Fisher to commit sexual assaults. 

The record supports the experts' opinions.  Fisher has a 20-year history of treatment for bipolar affective disorder, depression, anxiety, and alcoholism.  Fisher was first diagnosed with bipolar disorder with psychotic features in 1984, after his voluntary commitment to a psychiatric hospital, when he experienced bouts of prolonged depression followed by manic episodes.  It was determined that Fisher's mental illness contributed to his hypersexuality and sexual impulsivity.  Fisher was prescribed medication that helped stabilize his mood and control his behavior, but Fisher refused to take his medication consistently because it weakened his sexual drive.  In addition to Fisher's untreated mental illness, Fisher's heavy alcohol use also contributed to the assaults.

Fisher's bipolar disorder and alcoholism continue to prevent him from controlling his sexual impulses.  Since his first diagnosis, Fisher has sought individual counseling, marriage counseling, chemical-dependency treatment, and electroconvulsive therapy in efforts to alleviate the symptoms of his mental illness.  Despite years of treatment, in 2001, Fisher was again diagnosed with severe bipolar disorder, alcohol dependence, and antisocial personality disorder, which, one psychologist noted, have not been completely amenable to treatment.  The record also establishes that Fisher has not fully admitted his past sexual misconduct, continues to abuse alcohol, and has exhibited aggressive behavior with his victims and with treatment counselors.  The record supports the district court's conclusion that Fisher suffers from a mental illness that prevents him from adequately controlling his sexual impulses.  See Linehan IV, 595 N.W.2d at 876-78. 

3.

Fisher next challenges the district court's determination that, because of his inability to exercise adequate control over his sexual impulses, he is "highly likely" to reoffend.  In determining the likelihood of reoffending in a SDP commitment, courts consider the following factors: (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.  In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (hereinafter Linehan I); Linehan III, 557 N.W.2d at 189 (applying these six factors to SDP commitments). 

The district court, relying on the Linehan factors, concluded that Fisher is highly likely to engage in future acts of harmful sexual conduct.  The record supports the district court's finding.  As to the first Linehan factor, the district court found that Fisher's demographic characteristics were not significantly persuasive as to his likelihood of reoffending.  But, given the substantial evidence supporting the remaining five factors, this determination is not fatal to the district court's ultimate conclusion.

As to the second factor, Fisher's past conduct establishes a history of violent behavior.  Fisher sexually assaulted or attempted to sexually assault five women in the past 27 years.  The assaults included acts of physical restraint, surprise, and force.  In two instances, Fisher threatened to use a weapon to subdue the victim.  During another assault, Fisher threatened to kill his victim.  And in the uncharged 1977 assault, Fisher physically attacked a 17-year-old female and forcibly penetrated her.  Moreover, Fisher's 24-year marriage to G.H. was also characterized by sexual assaults and physical abuse.

Regarding the third factor, the district court emphasized Fisher's scores on several actuarial tests.  Fisher received high scores on the Static-99, the leading actuarial instrument designed to estimate the probability of sexual and violent recidivism among adult males.  Both Dr. Rosemary Linderman and Dr. Alsdurf gave Fisher a score of six, which indicates a high risk of reoffending sexually.  Dr. Linderman also used SONAR, a risk-assessment tool that measures the likelihood that the patient can make positive changes to avoid reoffending.  Fisher fell into the moderate-risk category on the SONAR instrument.  Although Dr. Robert Riedel concluded that Fisher's scores did not demonstrate a high likelihood of recidivism, Dr. Linderman and Dr. Alsdurf disagreed.  They opined that Fisher's scores on the most reliable tests demonstrate a high likelihood of reoffending.  Both experts also emphasized that relying solely on statistical measures to accurately assess a likelihood of reoffending is not sufficient.  The district court credited Dr. Linderman's and Dr. Alsdurf's testimony and agreed that relying solely on actuarial tests to predict recidivism is not accurate.  Deferring to the district court's ability to evaluate expert witness credibility, we conclude that there is ample support for the district court's reliance on Fisher's scores as evidence of a high likelihood of reoffending.  See In re Knops, 536 N.W.2d 616, 620 (Minn. 1995) ("[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witness.").

The fourth factor assesses potential sources of stress.  Regarding this factor, Dr. Riedel testified that Fisher's environment upon release is riddled with sources of stress, including the loss of his wife, his job, and his house.  In addition, the demands of extensive treatment and parole are potential sources of stress.  Dr. Linderman testified that Fisher lacks a significant support system to manage these sources of stress, which could lead to increased use of alcohol and emotional instability.  Dr. Linderman also noted that Fisher's worsening cognitive disorder, in conjunction with the bipolar disorder, could increase his stress and anxiety, causing him to reoffend.  Dr. Alsdurf agreed that Fisher's capacity for managing these new sources of stress is extremely low. 

As to the fifth factor, which addresses the similarity of past and future contexts when violence was used, the record demonstrates that little has changed.  Fisher's propensity toward sexual violence increases when he is not taking his medication, and Fisher recently reported to Dr. Riedel that he has not been medication-compliant.  Dr. Riedel also testified that Fisher does not have control over his bipolar disorder, the mental illness that makes Fisher prone to sexual impulsivity and violence.  Moreover, Fisher tends to commit violent sexual assaults while under the influence of alcohol, and Fisher admits that his alcoholism has been an ongoing problem.  Fisher has received chemical-dependency treatment at least three times, in 1977, 1999, and 2002.  Fisher also has periodically attended Alcoholics Anonymous meetings.  Despite treatment and several lengthy periods of sobriety, while incarcerated in St. Cloud, Fisher displayed a negative attitude toward chemical-dependency treatment and a resistance to authority.  There is no evidence of the likelihood that Fisher would cease abusing alcohol.

Dr. Linderman opined regarding the sixth factor that, although Fisher has twice attended sex-offender treatment, Fisher continues to lack a genuine awareness of the seriousness of his sexually assaultive conduct.  Dr. Linderman emphasized that Fisher reoffended after attending sex-offender treatment in 1985.  During Fisher's second attempt at treatment, he minimized his sexual proclivities and exhibited signs of denial.  Fisher did not complete the treatment program.  Without the requisite insight, any ability to self-correct or control future behavior is absent.  Dr. Linderman also observed that Fisher's responses during his interview and at the commitment hearing were scripted and opined that Fisher was merely imitating remorse.  Dr. Linderman ultimately characterized Fisher as a sex offender who has not made significant progress over a 27-year period and has failed to develop a relapse-prevention plan.  Dr. Riedel agreed that Fisher "never really committed himself to treatment."  Fisher's poor record with regard to sex-offender treatment provides substantial evidence in support of the district court's finding that Fisher is highly likely to reoffend.

The record comports with the district court's well-reasoned opinion and extensive analysis of the Linehan factors.  There is clear and convincing evidence in the record to support the district court's conclusion that commitment as a SDP is warranted.

C.

Fisher also challenges his commitment as a SPP.  "Psychopathic personality" refers to an identifiable and documentable violent, sexually deviant condition or disorder.  In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).  A person may be committed as a SPP based on clear and convincing evidence that the person (1) has engaged in a habitual course of misconduct in sexual matters; (2) has an utter lack of power to control his or her sexual impulses; and (3) is, therefore, dangerous to others.  Minn. Stat. § 253B.02, subd. 18b (2004); Kindschy, 634 N.W.2d at 732.   Fisher contends that the record lacks sufficient evidence to support any of the three SPP statutory criteria.

1.

            We first consider whether Fisher engaged in a habitual course of misconduct in sexual matters.  Similarities between incidents of sexual activity are useful in determining whether the pattern of sexual misconduct is habitual.  Bieganowski, 520 N.W.2d at 530. 

The district court found, based on the testimony of Dr. Linderman and Dr. Alsdurf, that Fisher exhibited a habitual course of misconduct in sexual matters.  Dr. Linderman discerned a distinct pattern in Fisher's behavior in which he registered an opportunity for a sexual encounter with a woman, approached her, and after limited conversation, attacked the woman with the intent to engage in sexual intercourse.  Dr. Linderman opined that the violent sexual assaults in 1977, 1985, and 2000 were sufficiently similar to constitute a habitual course of misconduct.  Dr. Alsdurf agreed, noting that the charged 1977 offense and the most recent, 2000 offense, which occurred 23 years later, shared many similarities.  Dr. Riedel disagreed with the other experts.  He testified that, because of the large gaps of time in Fisher's offense history, Fisher's sexual misconduct was not habitual.  But Dr. Riedel admitted on cross-examination that habitual meant "repeated and consistent" and that the sexual assaults were "repeated and consistent." 

Although controverted, the evidence nevertheless is clear and convincing that Fisher engaged in a habitual course of sexual misconduct.  

2.

Fisher next argues that the record lacks clear and convincing evidence that he has exhibited an utter lack of control over his sexual impulses.  In determining whether a person lacks control over his sexual impulses, a court considers the following: (1) the nature and frequency of the sexual assaults; (2) the degree of violence involved; (3) the relationship between the offender and the victims; (4) the offender's attitude and mood; (5) the offender's medical and family history; (6) the result of psychological and psychiatric testing and evaluation; and (7) other factors that bear on the predatory sex impulse and the lack of power to control it.  Blodgett, 510 N.W.2d at 915.  In addition to the Blodgett factors, an individual's failure to avoid triggers to impulsive behavior, such as the consumption of alcohol, demonstrates an inability to control sexual impulses.  Bieganowski, 520 N.W.2d at 530.  An individual's lack of insight into his or her deviant sexual behavior also evidences an inability to control sexual impulses.  In re Irwin, 529 N.W.2d 366, 375 (Minn. App. 1995), review denied (Minn. May 16, 1985). 

The district court applied the seven Blodgett factors and concluded that Fisher exhibits an utter lack of control over his sexual impulses.  The record supports the district court's careful and thorough analysis. 

As to the first and second factors, Dr. Linderman testified that, based on Fisher's numerous assaults and other threatening behavior committed over a 27-year period, Fisher displayed a consistent pattern of violent sexual behavior.  All of the attacks were characterized by force, physical restraint, and threats to subdue his victims.  The assaults also demonstrated impulsiveness.  Fisher selected B.I. after seeing her drive by on the highway and targeted T.H. as soon as he saw her walk through the parking lot.  The record demonstrates that Fisher attacked his victims immediately, without any particular planning or seduction.  Dr. Riedel, who did not support committing Fisher as a SPP, agreed with the other experts that Fisher's behavior is extremely impulsive and violent. 

As to the third factor, Dr. Linderman testified that Fisher's victim pool is especially broad, consisting of adult women with whom he is not previously acquainted.  According to Dr. Linderman, attacking a stranger demonstrates more impulsivity than assaulting an acquaintance or family member. 

Fourth, regarding Fisher's attitude and mood, the experts agreed that Fisher suffers from a volatile mood disorder.  Fisher also lacks empathy toward his victims and shows no remorse for his actions.

Fifth, Fisher's medical history further demonstrates an utter inability to control his sexual impulses.  Fisher suffers from bipolar affective disorder, which significantly contributes to his sexual impulsiveness.  Over time, medication has alleviated many of his symptoms and stabilized his mood, but Fisher admits that he does not consistently take his medication.  Fisher's commitment to treatment is also sporadic and relatively weak.  Furthermore, based on the most credible assessment tools, Fisher's scores on several actuarial tests signify a high likelihood of reoffending as well as mild psychopathic features. 

The record also establishes that, despite chemical-dependency treatment, Fisher admits consuming alcohol, which demonstrates that he is not avoiding the precursors to his assaults.  The experts agreed that alcohol exacerbates Fisher's violent tendencies and expressed grave concern regarding Fisher's numerous relapses. 

Finally, Dr. Linderman concluded that Fisher demonstrates a shallow acknowledgement of his sexual proclivities.  Noting that Fisher minimizes his behavior, denies responsibility for his actions, and claims he cannot remember parts of his past, Dr. Linderman concluded that Fisher lacks insight into his sexually assaultive behavior.  Dr. Alsdurf also honed in on Fisher's lack of insight, opining that 

no one is saying Mr. Fisher has insight.  What [the professionals are] saying is he's kind of denying less than he denied before.  That's not understanding, that's not insight, and I see no evidence at all that he has any empathy or remorse for any of his behavior.  In fact, I would say the opposite.  He's recalcitrant, he's dismissive, he's almost antagonistic[.]

 

Both Dr. Linderman and Dr. Alsdurf observed that Fisher erroneously believes that the sole cause of his behavior is alcoholism, which ultimately precludes him from recognizing the real source of his sexually assaultive conduct.  The experts reiterated that alcohol acts as a disinhibitor that reconnects Fisher with his negative emotions, but that alcohol abuse does not cause his sexual violence.   Fisher's grave lack of insight into his deviant sexual behavior, his alcoholism, and the clear and convincing evidence in the record of the Blodgett factors supports the district court's conclusion that Fisher utterly lacks the power to control his sexual impulses. 

3.

The final issue under the SPP analysis is whether the record provides clear and convincing evidence that Fisher is dangerous to others.  Whether a person is "dangerous to others" involves two interrelated elements, namely, whether the person's pattern of sexual misconduct (1) creates a substantial likelihood of serious injury or harm to others and (2) is likely to recur because of an utter lack of power to control sexual impulses.  See Call v. Gomez, 535 N.W.2d 312, 317 (Minn. 1995)(citing State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939), aff'd,309 U.S. 270, 60 S. Ct. 523 (1940)); see also In re Preston, 629 N.W.2d 104, 112-13 (Minn. App. 2001) (holding that behavior involving coercion, physical force, and oral and vaginal sex with young children supported finding that sex offender had utter lack of power to control sexual impulses and was sufficiently harmful to justify SPP commitment).

Having previously determined that Fisher exhibits an utter lack of power to control his sexual impulses, we now examine the record to determine whether there is clear and convincing evidence that Fisher's course of conduct creates a substantial likelihood of injury to others.  The Minnesota Supreme Court has instructed courts to consider the following factors when assessing dangerousness to the public under the SPP statute: (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.  Linehan I, 518 N.W.2d at 614; see also Preston, 629 N.W.2d at 112 (applying Linehan factors to assess dangerousness under SPP statute); In re Pirkl, 531 N.W.2d 902, 909 (Minn. App. 1995) (same), review denied (Minn. Aug. 30, 1995).  These are the same factors used to predict a high likelihood of reoffending under the SDP Act.  Because we have determined that the record provides clear and convincing evidence of nearly all of these factors, we hold that the record also provides clear and convincing evidence of Fisher's dangerousness to others under the SPP act. 

Accordingly, there is sufficient evidence in the record to support Fisher's civil commitment as a SDP and as a SPP.  

II.

Fisher next argues that the district court's evidentiary rulings pertaining to expert witness testimony violated his right to due process.  Evidentiary rulings rest within the sound discretion of the district court and will not be reversed unless the district court clearly abused that discretion.  State v. Ashby, 567 N.W.2d 21, 25 (Minn. 1997).  The mode, manner, and method of receiving testimony also rest within the district court's sound discretion.  Manion v. Tweedy, 257 Minn. 59, 67-68, 100 N.W.2d 124, 130 (1959). 

Fisher contends that the district court erred by allowing Dr. Alsdurf, the state's independent expert, to criticize Dr. Riedel's interviewing technique, while prohibiting Dr. Riedel from criticizing Dr. Linderman's expert opinion.  Fisher maintains that the conflicting rulings violate due process. 

Our review of the record demonstrates that the evidentiary rulings were not in conflict.  On direct examination, Fisher's counsel elicited testimony from Dr. Riedel that he disagreed with several of Dr. Linderman's conclusions.  During the questioning, the state objected on the ground that Dr. Riedel was mischaracterizing Dr. Linderman's testimony.  The district court sustained the objection and, to prevent additional mischaracterization, instructed Dr. Riedel to refrain from restating Dr. Linderman's testimony.  But the district court permitted Dr. Riedel to continue to explain why his results differed from those of Dr. Linderman.  Later, when the state's expert, Dr. Alsdurf, took the stand, he critiqued Dr. Riedel's interviewing style.  Fisher objected on fairness grounds, contending that if Dr. Riedel could not criticize Dr. Linderman, then Dr. Alsdurf could not criticize Dr. Riedel.  The district court overruled Fisher's objection. 

The district court did not abuse its discretion in so doing.  Contrary to Fisher's characterization, the record establishes that the district court did not rule that Dr. Riedel could not critique Dr. Linderman's opinion, only that Dr. Riedel could not misstate Dr. Linderman's testimony.  Although an expert may criticize the analysis, methods, and assumptions employed by another expert, a misstatement of testimony at trial constitutes error.  Springfield Farmers Elevator Co. v. Hagenson Constr. Co., 268 N.W.2d 80, 83 (Minn. 1978).  Fisher's claim, therefore, fails. 

Were we to conclude that the district court's evidentiary ruling on Fisher's fairness objection was erroneous, a new trial would not be warranted.  Entitlement to a new trial based on an improper evidentiary ruling depends on the complaining party's ability to demonstrate prejudicial error.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). "An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial." Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998).  Given the weight of the other evidence presented at trial, striking Dr. Alsdurf's single criticism of Dr. Riedel's interviewing style would not have changed the result.  Accordingly, Fisher would not otherwise be entitled to reversal and a new trial.

III.

Fisher also argues that the district court violated his right to due process by ordering an indeterminate commitment as a SPP when the MSOP omitted any discussion of the SPP factors in its October 2004 treatment report submitted for the review hearing, in violation of Minn. Stat. §§ 253B.18, subd. 2(a), .185, subd. 1 (2004).[1]  This argument presents an issue of statutory interpretation, which, as a question of law, we review de novo.  Eischen Cabinet Co. v. Hildebrandt, 683 N.W.2d 813, 815 (Minn. 2004). 

Within 60 days after an individual's commitment to a treatment facility, the facility "shall" file a written treatment report with the district court, and the district court "shall" hold a review hearing for the purpose of making "a final determination as to whether the person should remain committed[.]"  Minn. Stat. §§ 253B.18, subd. 2(a), .185, subd. 1; Linehan III, 557 N.W.2d at 179.  The review hearing must be held within 14 days after the district court's receipt of the report "unless otherwise agreed by the parties."  Minn. Stat. § 253B.18, subd. 2(a).  The purpose of the review hearing is to "allow[] the district court to consider the views of the treatment facility before issuing a final commitment order" and to "allow[] the district court to consider whether changes in the patient's condition render further commitment" inappropriate.  In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996) (hereinafter Linehan II).  The statutorily required treatment report is the primary evidence considered at the review hearing to determine whether indeterminate commitment is warranted.  See id.

Here, the MSOP submitted a treatment report within the 60-day time limit but failed to include in the report a recommendation as to Fisher's indeterminate commitment as a SPP.  At the review hearing on December 16, 2004,[2] Fisher's counsel objected to the incomplete report, arguing that, because of the MSOP's omission, he could not be indeterminately committed as a SPP.  The district court offered to continue the hearing to permit the omission to be corrected, but Fisher elected to proceed.  On January 13, 2005, the MSOP submitted an amendment to the initial treatment report, which recommended Fisher's indeterminate commitment as a SPP.  But Fisher never received a copy of the supplemental report. 

Although the MSOP submitted an initial report within the 60-day time limit, the report was materially incomplete as to the SPP indeterminate commitment.  Without an analysis and recommendation as to Fisher's indeterminate commitment as a SPP, the district court could not assess whether there had been any change in Fisher's condition such that indeterminate commitment was no longer appropriate.  Thus, by omitting the SPP factors in its October 2004 treatment report, the MSOP failed to comply with the plain language of subdivision 2(a), which mandates that the MSOP shallsubmit a treatment report within 60 days. 

MSOP's failure to comply with subdivision 2(a) does not require reversal, however.  Although the term "shall" is typically interpreted as mandatory, Minn. Stat. § 645.44, subd. 16 (2004), the word "shall" is not always read as such, Wenger v. Wenger, 200 Minn. 436, 440, 274 N.W. 517, 519 (1937).  "Shall" is interpreted as directory, rather than mandatory, when "the act provided for is merely incidental or subsidiary to some chief purpose of the law and is not designed for the protection of third persons and the statute does not declare the consequences of a failure of compliance[.]"  Wenger, 200 Minn. at 440, 274 N.W. at 519; see also Sullivan v. Credit River Twp., 299 Minn. 170, 176-77, 217 N.W.2d 502, 507 (1974) (stating that "a statute which does not declare the consequences of a failure to comply may be construed as a directory statute").  Failure to comply with a directory statute does not necessarily invalidate action taken with respect to that statute.  Sullivan, 299 Minn. at 177, 217 N.W.2d at 507. 

Section 253B.18, subdivision 2, does not provide any consequence for failing to submit a complete report within the 60-day period.  To the contrary, subdivision 2(c), specifically states that the "[f]ailure of the treatment facility to provide the required report at the end of the 60-day period shall not result in automatic discharge of the parties."  Minn. Stat. § 253B.18, subd. 2(c) (2004); see also Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 11-12, 153 N.W.2d 209, 217 (1967) (requiring examination of a statute as whole when construing specific provisions).  From the plain language of section 253B.18, we cannot conclude that the MSOP's submission of an incomplete report precludes Fisher from being indeterminately committed as a SPP.

Our due-process inquiry, however, does not end here.  After submitting an incomplete report at the review hearing in October 2004, the MSOP submitted a supplemental report to the district court on January 13, 2005, which included an analysis of the SPP factors and a recommendation to indeterminately commit Fisher as a SPP.  Relying on both the October 2004 treatment report and the January 2005 supplement, the district court ordered Fisher committed indeterminately as a SDP and a SPP.  But Fisher never received a copy of the supplemental report on which the district court relied.  Fisher, therefore, received neither notice nor the opportunity to be heard, which are the hallmarks of the right to due process.  See Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 909 (1976) ("The essence of due process is the requirement that a person in jeopardy of serious loss (be given) notice of the case against him and the opportunity to meet it." (quotation omitted)).  Fisher was not able to review the document, challenge the document itself or its findings, or call an expert witness to dispute the MSOP's conclusion that no changes had occurred in the conditions warranting Fisher's indeterminate commitment as a SPP.  Because the treatment report is the primary piece of evidence that addresses whether Fisher's commitment as a SPP should be indeterminate, Fisher must be afforded the opportunity to thoroughly review and challenge this evidence.

The state contends that any error in omitting discussion of the SPP factors in the October 2004 treatment report is harmless because the elements of the SDP statute and the elements of the SPP statute are sufficiently similar.  We recognize the logic underlying the state's argument.  In essence, because the MSOP found no change in Fisher's condition warranting release under the more lenient SDP statute, there could be no change in Fisher's condition warranting release under the stricter SPP statute. 

Despite its rational persuasiveness, we reject the state's claim because the district court did not rely solely on the October 2004 treatment report documenting the SDP criteria when it ordered indeterminate commitment as a SPP.  Rather, the district court specifically referred to the January 2005 supplemental report in its order for indeterminate commitmenta document that Fisher did not have the opportunity to review or challenge.  Fisher remains unaware of the contents of the January 2005 report.  Regardless of the content of this report, that it serves as the basis for Fisher's indeterminate commitment as a SPP warrants an opportunity for Fisher's review to determine whether to challenge its findings.

Accordingly, we vacate that part of the district court's order indeterminately committing Fisher as a SPP and remand for a hearing, after Fisher and the state receive the January 2005 supplemental report, to determine whether changes in Fisher's condition render indeterminate commitment as a SPP inappropriate.

Affirmed in part, vacated in part, and remanded.

[1] Fisher does not challenge his indeterminate commitment as a SDP on this ground.

[2] Because Fisher waived in writing the statutory requirement that the review hearing be held within 14 days after the report's submission, he does not contest the delayed review hearing.