In the Matter of the Civil Commitment of Hearvy Lee Brown (a/k/a Harvey Lee Brown).

In the Matter of the Civil Commitment of Hearvy Lee Brown (a/k/a Harvey Lee Brown). A05-1500, Court of Appeals Unpublished, January 10, 2006.

This opinion will be unpublished and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

A05-1500

 

 

In the Matter of the Civil Commitment of

Hearvy Lee Brown (a/k/a Harvey Lee Brown).

 

 

Filed January 10, 2006

Affirmed

Willis, Judge

 

 

Hennepin County District Court

File No. 27-MH-PR-04-836

 

 

William L.H. Lubov, Lubov & Associates, LLC, 820 North Lilac Drive, Suite 210, Golden Valley, MN  55422 (for appellant Hearvy Lee Brown)

 

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

 

            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his indeterminate commitment as a sexually dangerous person, arguing that he has not engaged in a course of harmful sexual conduct and is not likely to engage in such a course of conduct in the future because his most recent act of sexual misconduct occurred more than 12 years ago and he has lived in the community for a period of time without committing any further such acts.  We affirm.

FACTS

            The facts are largely undisputed.  Appellant Hearvy Brown testified extensively at the commitment hearing regarding his criminal background.  As a juvenile, Brown committed an assault when he was ten years old, stabbed his sister in the hand when he was 12, and began using marijuana at 14.  In November 1982, at age 17, he exposed himself to a female teacher, following inappropriate sexual language and some sexual touching.  In 1986, when Brown was 20 years old, he and four others broke into a residence, ransacked the house, and assaulted four children, as well as their minor babysitter, in an assault characterized as "particularly vicious" in a court evaluation.

            Brown committed his first sexual assault in February 1987.  While Brown was extremely intoxicated, he broke into a home shortly after midnight, intending to burglarize it.  Once there, he became aroused when he saw a woman, who was seven months pregnant, sleeping unclothed next to her husband in their second-floor bedroom.  Holding a knife to the woman's throat, he warned her not to make any noise or he would kill her husband and her child.  After ordering her downstairs and threatening to kill her if she did not comply, he forcibly raped her twice.  He pleaded guilty to one count of first-degree criminal sexual conduct, for which he was sentenced to 43 months in prison.

            In April 1987, also while intoxicated, Brown saw a couple walking on the street and tried to take the woman's purse.  The man struggled with Brown, and Brown knocked him unconscious.  He beat the woman, grabbed her purse, and fled.  Brown admitted that he was looking for money to buy drugs.  He pleaded guilty to a charge of aggravated robbery at the same time that he pleaded guilty to the charge of first-degree criminal sexual conduct described above.  The district court sentenced Brown to 32 months in prison, to be served concurrently with the sentence for the first-degree criminal-sexual-conduct conviction.

            Brown was incarcerated for these offenses from September 1987 to October 1989.  He admitted that before his incarceration he had a history of daily intoxication from marijuana, alcohol, and cocaine.  He declined to participate in sex-offender treatment while in prison.  In 1989, Brown was paroled to a halfway house and then lived with family members.  With credit for time already served, his sentence for the 1987 crimes expired on December 9, 1990.

            In October 1992, Brown committed his second sexual offense.  He raped his girlfriend's 14-year-old daughter when they were watching television in a bedroom at the girl's home.  In his interview with the court-appointed examiner and in his testimony at the commitment proceeding, Brown admitted that he forcibly raped the girl, that he suffocated her with a pillow to overcome her resistance, and that he lied when he told police that the sexual intercourse was consensual; he explained that he became aroused when he saw the girl, that during the rape he knew it was wrong but nonetheless proceeded because he was aroused, and that he was drunk at the time.

            Brown pleaded guilty to one count of first-degree criminal sexual conduct and the district court sentenced him to 105 months.  Brown went to prison in March 1993 and again declined to participate in recommended sex-offender treatment and declined to submit to a chemical-dependency evaluation.

            Brown was released from prison in October 1998.  Over the next few years, he violated the terms of his supervised release several times, resulting in several revocations, returns to prison, and increased prison time.  His violations included the use of chemicals, contact with minors, failure to complete halfway-house treatment, and change of residence without permission.

Brown got a job in the spring of 2004, but he had problems with tardiness and absences due to his use of crack cocaine and alcohol.  After admitting to his employer on the eve of a polygraph test that he had relapsed and admitting to the polygraph operator that he had been using alcohol and crack cocaine, he then told his supervised-release agent.  Brown was arrested for violating his release conditions.  Despite a recommendation from his supervised-release agent that his release be restructured and a letter of support from his employer, his release was revoked and he was ordered to serve an additional 90 days in prison for the violations.  A petition for his commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP) was filed in August 2004.

            Brown testified at the commitment hearing that alcohol is his trigger for sexual offenses and admitted that he likes alcohol and crack cocaine equally.  He described his strong support system, including ten siblings and half-siblings, who, he asserted, would help him avoid reoffending and help him maintain sobriety.  He acknowledged, however, that one of his brothers knew of Brown's drug use before Brown's last parole revocation but did not report it.  Further, some of his other siblings and his son have served time in prison for various criminal offenses.  His fiancée, who has three daughters who are in the custody of her mother and sister, also has problems with drug use.  A previous girlfriend, two of his former supervised-release agents, and the coordinator of an adult supervised-release support group in which Brown had participated provided testimony favorable to Brown.

            Dr. Paul Reitman, the court-appointed examiner, concluded that Brown met commitment standards as both an SPP and an SDP.  He found that Brown's two sexual assaults constituted a course of harmful sexual conduct and testified that as a result of Brown's sadistic and violent behavior, the two victims may reasonably have believed they were going to be killed and there was a substantial likelihood that they suffered emotional harm, including an increased risk of depression, posttraumatic-stress disorder, alcoholism, and suicide.

            Dr. Reitman diagnosed Brown with alcohol dependence, poly-drug dependence, and antisocial-personality disorder and explained that Brown's sexual assaults were the result of these disorders.  Dr. Reitman testified that Brown's use of drugs and alcohol lowered his inhibitions and was part of his sexual-assault cycle.  He noted that Brown had attempted, but had not completed, chemical-dependency treatment and that Brown's most recent chemical relapse in the summer of 2004 involved the use of both alcohol and crack cocaine.  Dr. Reitman concluded that Brown was highly likely to sexually offend if he were not civilly committed.

            Dr. Reitman stated that the Minnesota Sex Offender Program (MSOP) could meet Brown's treatment needs therapeutically and would also satisfy the need for security during Brown's treatment, intensive programming, and chemical-dependency treatment.  But Dr. Reitman did not believe that Brown needed treatment that was as secure and long term as that offered by MSOP.  Instead, he believed that Brown would be adequately served by community inpatient chemical-dependency treatment and outpatient sex-offender treatment under a stayed commitment.  He stated that residential sex-offender treatment would be preferable if available and noted that, despite Brown's many past rejections of sex-offender treatment, Brown currently indicated willingness to participate in treatment.  But Dr. Reitman was unaware of any community sex-offender treatment program that would accept Brown for treatment.  Before trial, Alpha Human Services had considered Brown for placement but rejected him because of the nature of his offenses.

The district court committed Brown to MSOP as an SDP.  A 60-day report was filed with the district court, and a review hearing was held.  The treatment report found Brown generally cooperative but noted that he did not cooperate with the evaluation process.  It concluded that "he has not shown any interest in signing the treatment contract and has not indicated an interest in sex offender treatment."  The treatment team concluded that there was no change in the conditions that led the court to find that Brown was an SDP.  The team determined that Brown would benefit from inpatient sex-offender treatment and presented a high risk for reoffense.

The district court found that Brown continues to suffer from alcohol dependence in sustained full remission in a controlled environment, poly-substance dependence, and antisocial-personality disorder.  Based on Brown's refusal to participate in the evaluation and on the district court's earlier findings, the district court found that Brown was highly likely to reoffend without an inpatient, residential sex-offender treatment program offered by MSOP and that, for the safety of the public, the treatment program should be locked.  It found that an outpatient sex-offender treatment program was inadequate to meet Brown's needs and to protect the public while Brown was undergoing treatment and that there was no suitable alternative, less-restrictive program or disposition available.  The district court committed Brown to MSOP as an SDP for an indeterminate period.  This appeal followed.

D E C I S I O N

            An appellate court will review findings by the district court to determine whether they are clearly erroneous.  Minn. R. Civ. P. 52.01; In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).  The appellate court will not weigh the evidence but "will determine if the evidence as a whole presents substantial support for the district court's conclusions."  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd, 594 N.W.2d 867 (Minn. 1999).  An appellate court will review de novo whether the record supports the district court's conclusion that the statutory requirements for commitment are met.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

            The district court must be presented with clear and convincing evidence that the standards for commitment as an SDP are met.  Minn. Stat. § 253B.18, subd. 1(a) (2004); see Minn. Stat. § 253B.185, subd. 1 (2004) (providing that Minn. Stat. § 253B.18 applies to SDP commitments).  An SDP is defined as a person who: "(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a; (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 as defined in subdivision 7a."  Minn. Stat. § 253B.02, subd. 18c(a) (2004).

            Brown first argues that because he committed rapes in 1987 and 1992, and has not committed acts of sexual misconduct since, he has not engaged in a "course of harmful sexual conduct" under Minn. Stat. § 253B.02, subd. 18c(a)(1).  Instead, he contends, because at the time of the hearings, approximately 12 years had passed since his last offense and because he has lived in the community for approximately five years since his release from prison in 1998 without any evidence that he engaged in sexually inappropriate behavior, he "has broken the ‘succession' or ‘sequence'" of sexual offenses.  First, a close review of the facts as found by the district court shows that if the time he spent in prison on subsequent parole revocations and the time he resided in halfway houses is taken into account, Brown has resided in the community on his own for a total of only approximately three and one-half years. 

Next, "course" is defined as "a systematic or orderly succession; a sequence."  In re Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002) (citation omitted), review denied (Minn. Sept. 17, 2002).  The fact that there is a period of time during which the person has not committed sex offenses does not preclude a determination that he has engaged in a course of sexual misconduct.  In re Robb, 622 N.W.2d 564, 573 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  Further, the SDP statute does not require that the acts of sexual misconduct be recent.  In re Linehan, 544 N.W.2d 308, 312 (Minn. App. 1996), aff'd, 557 N.W.2d 171 (Minn. 1996), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd, 594 N.W.2d 867 (Minn. 1999).  If the misconduct is not recent, that fact will be considered in determining whether the person is highly likely to cause harm in the future.  See Linehan, 518 N.W.2d at 614 (citing a number of factors, including recency of violent acts, to consider in that circumstance).

The second issue is whether Brown lacks adequate control over his sexual behavior.  For commitment as an SDP, "it is not necessary to prove that the person has an inability to control the person's sexual impulses."  Minn. Stat. § 253B.02, subd. 18c(b).  The supreme court has clarified

that the SDP Act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.

 

In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999).  This standard has been deemed to meet the constitutional requirements described most recently by the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002).  In re Martinelli, 649 N.W.2d 886, 890 (Minn. App. 2002), review denied (Minn. Oct. 29, 2002), cert. denied, 538 U.S. 933 (2003).  At a minimum, Crane "requires ‘serious difficulty in controlling behavior,' and ties that requirement to a psychiatric diagnosis of a mental abnormality or personality disorder, as well as to the severity of the offender's mental condition."  Martinelli, 649 N.W.2d at 890 (citing Crane, 534 U.S. at 413-14, 122 S. Ct. at 870-71).

The district court found that Brown's disorders, which include alcohol dependence, poly-drug dependence, and antisocial-personality disorder, do not allow him to control his sexual impulses adequately and cause him to have serious difficulty controlling his behavior, as described in Linehan, 594 N.W.2d at 876, and Crane, 534 U.S. at 413, 122 S. Ct. at 870.

Brown argues that the longer a person is in the community without engaging in acts of sexual misconduct, the more likely it is that the person has adequate control of his impulses.  Without such a presumption of control, he asserts, no former offender would ever be able to demonstrate that he is in control of his impulses no matter how much time has lapsed since his last offense.  Consequently, Brown contends that commitment would turn into life-long detention for every person who has committed sexual offenses.

            Brown first cites a case in which the supreme court reversed a psychopathic-personality (PP) commitment.  Although he acknowledges that commitment as a psychopathic personality requires the higher standard of an utter inability to control one's sexual impulses, he asserts that the case is instructive.  In re Linehan, 518 N.W.2d at 610-11.  Brown contends that Linehan was reversed based, in part, on the 18-year period between Linehan's last sexual offense and his commitment, leading the court to conclude that there was not clear and convincing evidence of an utter inability to control his impulses.  Linehan, 518 N.W.2d at 614; see Linehan, 594 N.W.2d at 876-77 (upholding SDP commitment, noting recent instances showing lack of control over sexual impulses).

            Our review, however, reveals that, in determining that the utter-inability-to-control element was not met, the supreme court did not rely on the fact that there was an 18-year period between the last sexual offense and commitment.  Linehan, 518 N.W.2d at 613-14.  Instead, the supreme court cited the fact that the experts offered inconsistent testimony on the key issue of control and that it appeared that the committed person had his alcohol abuse, the precursor of his assaults, under control.  Id. at 613.  Even though one of the experts noted that while in prison, the person had not had any out-of-control behavior in sexual matters, the supreme court did not mention this in its analysis of the issue.  Id. at 612-13.  Instead, the court referred to the period since the person's last offense in the context of predicting the likelihood of future harm, which it found unnecessary to review in light of its determination that the lack-of-control factor had not been met.  Id. at 614.

            Therefore, in reviewing the district court's decision that Brown lacks adequate control over his sexual impulses, this court will consider whether the expert testimony provides clear and convincing evidence to support the district court's decision.  First, Dr. Reitman, the court-appointed examiner, who was aware of Brown's history of sexual assaults, testified as to Brown's lack of control.  He diagnosed Brown with alcohol dependence, poly-drug dependence, and antisocial-personality disorder.  He explained that Brown's sexual assaults were a result of these disorders and that Brown's use of alcohol and drugs disinhibited him from resisting those impulses.  Psychological testing showed that Brown is impulsive, reckless, and lives by the "pleasure principle."  His assaults were impulsive; he had not planned to commit either sexual assault, but instead, when aroused, he did so impulsively.  Although Brown attempted chemical-dependency treatment, he never completed such treatment, and he used alcohol and crack cocaine in the summer of 2004.  Dr. Reitman recognized that Brown had a sincere desire to refrain from the use of drugs and alcohol, but he was unable to do so.  The district court concluded that Brown's disorders did not allow him to control his sexual impulses adequately.  These findings are supported by the evidence.

            Next, Brown argues that the evidence does not support a finding that it is highly likely that he will engage in harmful sexual acts in the future.  Minn. Stat. § 253B.02, subd. 18c(a)(3); Linehan, 594 N.W.2d at 876.  The supreme court has set out the factors to be considered when, as here, there is a "large gap of time" between the last offense and the time of the petition for commitment.  Linehan, 518 N.W.2d at 614 (applying factors to PP commitment); see Linehan, 557 N.W.2d at 189 (applying these factors to SDP commitment).  The court-appointed examiner addressed these factors in detail.  The first factor concerns Brown's demographic characteristics, which Dr. Reitman did not find relevant in predicting the likelihood of reoffense.  Linehan, 518 N.W.2d at 614.  Second is the history of violent behavior, which was undisputed.  Id.  The third factor concerns base-rate statistics.  Id. Dr. Reitman administered two psychological tests to Brown.  One suggested that he is sadistic, self-absorbed, and narcissistic, and the other suggested he is immature, impulsive, risk-taking, self-centered, pleasure-oriented, narcissistic, and manipulative, indicating that he would have great difficulty with impulse control.  Dr. Reitman also used the Hare Psychopathy Checklist-Revised to assess Brown.  He determined that Brown's score indicated that he approached, if he did not meet, the standard for designation as a clinical psychopath.  Assessing Brown using other actuarial tools indicated that Brown is a member of a group that has a 76% likelihood of general and sexual recidivism.  Brown's elevated scores on two other tests also indicate a high likelihood of reoffense.

            The fourth factor is the sources of stress in Brown's environment, and the fifth factor is the similarity of the environment into which Brown would be released if not committed to the environment in which he had sexually reoffended in the past.  Id.  With regard to both of these factors, Dr. Reitman noted that while Brown's family cares about him, a number of family members have significant criminal histories or chemical-abuse problems, or both, and his fiancée has chemical-abuse problems.

            The sixth factor addresses Brown's record with respect to sex-therapy programs.  Id.  Dr. Reitman testified that Brown's repeated refusal to participate in sex-offender treatment seriously affected the likelihood that he would reoffend.  While Brown did attend an eight-session psycho-educational program, he has not attended actual sex-offender treatment.  Further, Dr. Reitman noted that Brown's continued drug and alcohol use greatly increases his likelihood to reoffend.  Based on consideration of all of these factors, Dr. Reitman concluded that Brown is highly likely to sexually reoffend if not civilly committed.

            The district court extensively and conscientiously examined the evidence on the specific factors that the supreme court has instructed district courts to use in assessing whether an SDP commitment is proper.  The record supports the district court's findings, and the findings support the district court's conclusion that the statutory requirements for Brown's commitment are met.

            Affirmed.