In the Matter of the Civil Commitment of: Lionel Tohannie Yazzie.

In the Matter of the Civil Commitment of: Lionel Tohannie Yazzie. A05-750, Court of Appeals Unpublished, September 6, 2005.

This opinion will be unpublished and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

A05-750

 

In the Matter of

the Civil Commitment of:

Lionel Tohannie Yazzie

 

Filed September 6, 2005

Affirmed Parker, Judge[*]

 

Hennepin County District Court

File No. MH-PR-04-353

 

 

Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, C-2000 Hennepin County Government Center, 300 South Sixth Street, Minneapolis, Minnesota 55487 (for respondent Hennepin County)

 

Douglas F. McGuire, 1401 West 76th Street, Suite 400, Richfield, Minnesota 55423 (for appellant Yazzie)

 

            Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

In April 2004, Hennepin County petitioned for judicial commitment of appellant Lionel Tohannie Yazzie as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP).  Following a hearing, the district court found clear and convincing evidence that appellant met the statutory criteria for commitment as a sexually dangerous person.  At the end of November 2004, the district court committed appellant to the head of the Minnesota Sex Offender Program (MSOP). 

MSOP issued its 60-day treatment report and recommendations to the district court in January 2005.  Appellant's treatment team concluded that there was no change in the conditions that led the district court to find that appellant is a sexually dangerous person.  After a hearing, the district court committed appellant to the head of MSOP as a sexually dangerous person for an indeterminate period.

            Appellant argues that the evidence is insufficient to support his indeterminate commitment as a sexually dangerous person and that the district court improperly failed to consider less restrictive alternatives to commitment.  Appellant also argues that the commitment statute is unconstitutional because (1) it does not provide for a jury trial, (2) it violates the Due Process Clause, and (3) it violates the prohibition against double jeopardy.  We affirm.

D E C I S I O N

To commit a person as a sexually dangerous person (SDP), 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 section 253B.18 applies to both 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).  "[D]ue 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 is a question of law, which this court reviews de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

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 one being committed 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).  But a commitment as an SDP does require a showing that the one committed is "highly likely" to reoffend.  In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (Linehan III), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd as modified, 594 N.W.2d 867 (Minn. 1999).

Appellant does not challenge the district court's conclusion that he has manifested a sexual, personality, or other mental disorder or dysfunction, but he argues that the evidence does not meet the statutory criteria with respect to the course of harmful sexual conduct or appellant's propensity to reoffend sexually.

A.         Course of Harmful Sexual Conduct

The Minnesota Commitment and Treatment Act defines the term "harmful sexual conduct" as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another."  Minn. Stat. § 253B.02, subd. 7a(a) (2004).  "[T]he course of conduct [under the SDP statute] need not consist solely of convictions, but may also include conduct amounting to harmful sexual conduct, of which the offender was not convicted."  In re Ramey, 648 N.W.2d 260, 270 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).  There is a rebuttable presumption that conduct described in the provisions for criminal sexual conduct in the first through the fourth degrees creates a substantial likelihood of serious physical or emotional harm to another.  Minn. Stat. § 253B.02, subd. 7a(b) (2004); see also In re Kindschy, 634 N.W.2d 723, 730 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).  If the petitioner satisfies this burden, the burden shifts to the respondent offender to rebut the presumption of harm.  Kindschy, 634 N.W.2d at 730.

The record clearly establishes that appellant's conduct created a substantial likelihood of serious physical or emotional harm to another.  Appellant was convicted of third-degree criminal sexual conduct for his 1994 assault of a 28-year-old woman and attempted first-degree criminal sexual conduct for his 1994 assault of an 11-year-old girl.  The latter assault constitutes second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (2004) (defining second-degree criminal sexual conduct to include sexual contact where "complainant is under 13 years of age and the actor is more than 36 months older than the complainant").  Appellant also admitted to molesting a female child, who was then about ten years old, when he was fourteen, conduct that constitutes either second-, third-, or fourth-degree criminal sexual conduct under the Minnesota criminal code.  Minn. Stat. § 609.344, subd. 1(a) (2004) (defining third-degree criminal sexual conduct to include sexual penetration where "complainant is under 13 years of age and the actor is no more than 36 months older than the complainant"); Minn. Stat. § 609.345, subd. 1(a) (2004) (defining fourth-degree criminal sexual conduct to include sexual contact where "complainant is under 13 years of age and the actor is no more than 36 months older than the complainant").  Appellant offered no record evidence rebutting the statutory presumption of harm.

Appellant contends that the evidence does not support the district court's conclusion that appellant engaged in a "course" of harmful sexual contact because appellant last committed a sexual offense in 1994.  Appellant's argument is without merit.  The SDP statute does not require recent conduct; rather "[t]he remoteness of any harmful sexual conduct affects the likelihood of future harm, and not whether the acts constitute a course of harmful sexual conduct in the first instance."  In re Linehan, 544 N.W.2d 308, 312-13 (Minn. App. 1996) (Linehan II), aff'd, 557 N.W.2d 171, 180 (Minn. 1996), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd as modified, 594 N.W.2d 867 (Minn. 1999). 

B.         Highly Likely to Reoffend

Based on the expert testimony of court-appointed examiner Dr. Lisa Fish Stern, Psy.D., and the court's own experience, the district court found that the state established by clear and convincing evidence that, as a result of appellant's past course of harmful sexual conduct and his personality disorder, it is "highly likely" that appellant will engage in future acts of harmful sexual conduct.  Dr. Stern testified that appellant's behavior demonstrates impulsivity, poor planning, and a lack of appreciation for the consequences of his behavior.  Dr. Stern found that appellant minimized aspects of his offenses and typically refused to participate in treatment or was terminated from treatment programs in correctional facilities.  According to Dr. Stern, appellant is an untreated sex offender who lacks a well-developed relapse-prevention plan for sex offenses.  Moreover, appellant's alcohol and drug use is instrumental in appellant's sexual offending, but appellant could not provide any specific information about a plan for chemical-abuse treatment.  Finally, Dr. Stern testified that the results of various actuarial tests that she conducted to assist in her assessment of appellant's propensity to reoffend placed appellant in a category of offenders that had a 100% rate of reoffence in a violent manner within an average of seven years after release. 

Appellant argues that the record lacks clear and convincing evidence that he cannot adequately control his impulses because appellant committed his last sexual offense in 1994, despite spending significant time in the community from 1999-2003.  The remoteness of appellant's sexual offenses does not negate the finding of future dangerousness, particularly given the fact that appellant was either incarcerated or on supervised release since his last sexual offense.  See Linehan II, 544 N.W.2d at 315.  Moreover, it is significant that appellant continued to abuse substances while on supervised release, despite acknowledging in his testimony that substance abuse is a trigger for his sexual reoffending.  Accordingly, the evidence supports the district court's finding that appellant is highly likely to reoffend, and the district court did not err by concluding that appellant met the statutory criteria for indeterminate commitment as a sexually dangerous person.

Appellant next argues that the record contains clear and convincing evidence that a treatment option less restrictive than commitment is available.  Minn. Stat. § 253B.185, subd. 1 (2004), provides that in proceedings for commitment of sexually dangerous persons, "the court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available."  Minnesota statutes do not require that commitments be made to the least restrictive treatment program.  In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998) (holding that person subject to commitment as SDP or SPP had no statutory right to receive treatment from least restrictive alternative program).

Here, the district court concluded that no other less restrictive alternative program would serve appellant's treatment needs appropriately while ensuring the safety of the public.  This finding is supported by the testimony of Dr. Stern, who testified that appellant required inpatient care and could best receive treatment at MSOP.  Dr. Stern testified that she did not believe there was any other less restrictive option.  Although appellant testified to his willingness to begin outpatient sex offender treatment, appellant failed to provide evidence that he had applied to such a program or that he had the financial means to pay for the program.  The record therefore supports the district court's less restrictive alternative determination.

Lastly, appellant's constitutional challenges to his commitment are without merit.  In State ex rel. Pearson v. Probate Court, 205 Minn. 545, 557, 287 N.W. 297, 303 (1939), the supreme court held that there was no constitutional right to a jury trial in civil commitment proceedings.  See also Joelson v. O'Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999) (following Pearson), review denied (Minn. July 28, 1999).   In In re Ramey, 648 N.W.2d at 26567, this court affirmed that Linehan IV's "lack of control" requirement provided the constitutional substantive due process protection required of civil commitments and specifically rejected a vagueness challenge to the standard.  Finally, Minnesota courts have routinely rejected the argument that indeterminate civil commitments violate the prohibition against double jeopardy.  See, e.g., Linehan III, 557 N.W.2d at 188 (holding that "[t]he purpose and effect of the SDP Act is . . . predominately remedial, not punitive").

            Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.