In the Matter of the Civil Commitment of Kurt Lloyd Jennings.

In the Matter of the Civil Commitment of Kurt Lloyd Jennings. A05-1920, Court of Appeals Unpublished, March 21, 2006.

This opinion will be unpublished and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

A05-1920

 

 

In the Matter of the Civil Commitment of Kurt Lloyd Jennings.

 

 

Filed March 21, 2006

Affirmed

Toussaint, Chief Judge

 

Rice County District Court

File No. P7-04-1481

 

 

Timothy L. Morisette, Lampe, Swanson, Morisette & Heisler, LLP, 105 East Fifth Street, Northfield, MN 55057 (for appellant Jennings)

 

Mike Hatch, Attorney General, Noah A. Cashman, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

G. Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN 55021 (for respondent State of Minnesota)

 

 

            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Kurt Lloyd Jennings challenges an order for indeterminate commitment as a sexually dangerous person, arguing that (1) the district court erred by concluding that the state had proven by clear and convincing evidence that he was highly likely to engage in future acts of harmful sexual conduct; (2) the court deprived him of due process and a fair trial by denying his request for remedial measures regarding the court administrator's list of examiners, which consisted of a "stacked deck" of examiners hand-selected by the attorney general; and (3) the district court erred by adopting verbatim the state's proposed findings of fact, conclusions of law, and order for initial commitment.  Because we conclude that appellant was not deprived of due process and that there was no clear error by the district court, we affirm. 

D E C I S I O N

            An appellate court will uphold the district court's findings if they are not clearly erroneous.  See, e.g., In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re Preston, 629 N.W.2d 104, 110 (Minn. App. 2001).  Whether the evidence was sufficient to demonstrate the standards for commitment as a psychopathic personality are met is a question of law reviewed de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I). 

            Appellant argues that the district court erred when it civilly committed him as a sexually dangerous person who is likely to engage in acts of harmful sexual conduct.  A sexually dangerous person is a person 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).  "Harmful sexual conduct" is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another."  Id. at subd. 7a(a) (2004). 

            Appellant challenges only the determination that he is likely to engage in acts of harmful sexual conduct.  When reviewing this determination, an appellate court must find that it is "highly likely" that a person will engage in further harmful sexual conduct.  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan II).  The Minnesota Supreme Court has established factors for a reviewing court to consider when determining the likelihood of future harm.  Linehan I, 518 N.W.2d at 614.  These factors include (1) relevant demographic characteristics; (2) history of violent behavior; (3) base rate statistics for violent behavior; (4) sources of stress in the offender's environment; (5) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (6) the person's record with respect to sex therapy programs.  Id.

            The record reflects that appellant was born in September 1981.  When he was six years old, appellant and his younger brother moved in with his aunt and uncle after his father was incarcerated for murdering a child by hitting him over the head with a bottle.  Appellant testified that his aunt was physically abusive towards him and his brother so they were placed in foster care. Appellant testified that he resided with his foster parents, the Jennings, for approximately nine years before they adopted him.

            Appellant started engaging in sexually deviant behavior at a relatively young age.  Appellant admitted to sexually touching a four- to six-year-old foster sister when he was 14 or 15 years old.  At first, appellant stated that he molested the child twice over the course of a month.  Later, appellant stated that it occurred four to six times over a three month period of time.  Appellant also admitted to further assaults against the victim and stated that he performed oral sex on the child as well as fondled her vaginal area.  Appellant's discharge summary from the Sex Offender Treatment Program-Lino Lakes found that appellant admitted to molesting two children. 

            Appellant's second victim involved an attempted rape that the police initially believed to be a criminal damage to property offense.  In February 1998, a woman reported that her paper boy, appellant, had entered her home without permission and damaged the carpet because of the mud on his shoes.  At the time, appellant told the police that he entered the house to warm his hands.  While in treatment in prison, appellant admitted breaking into the house with the intent of raping the woman's daughter, but he ran out the back door when her mother came home.  Appellant admitted that he later masturbated to numerous fantasies about what he wanted to happen the night he broke into the house.  During the commitment trial, appellant gave three different versions of how he formed the intent to rape the girl. 

            Appellant admitted in treatment and testimony at his commitment trial to peeping into the windows of homes in the Northfield area where women resided.  Between the ages of 15 and 18, he peeped into the windows of as many as 17 to 18 houses.  Appellant also admitted to peeping into public bathrooms in the Northfield area, including a bathroom at a park in Northfield.  Appellant also admitted to hiding in the ceiling of bathrooms at St. Olaf College and peeping on nude female students while he masturbated.  Appellant testified that he hid in the ceiling and masturbated on approximately 25 occasions. 

            In January 2000, appellant committed his first sexual assault with a knife.  Appellant approached a 40-year old woman, A.S., from behind, placed a hand over her mouth, put a knife to her throat, and ordered her not to say anything.  The woman was on the second floor of the library using the computer when appellant approached her and pulled her forcibly from her chair.  The victim struggled and got away, seriously cutting her finger on the knife in the process.  Appellant pleaded guilty to attempted criminal sexual conduct in the second degree.  During the preparation of the presentence investigation report, appellant admitted that he was sexually aroused by the idea of committing his offenses.  At his commitment trial, appellant testified that prior to assaulting the woman, he had stalked females on the St. Olaf campus approximately 25 times.  Appellant testified that he had planned to drag A.S. to the bathroom or another secluded area to rape her.  Despite denying he fantasized about the assault, appellant's treatment notes show that appellant "fantasized and masturbated to this fantasy for several months before he attempted this again." 

            In March 2000, appellant attempted to sexually assault another woman.  K.B., a resident assistant at Mohn Hall at St. Olaf, reported that she had just come home from running, hearing someone in the hall, and quickly went into her room and locked the door.  When K.B. looked through the peephole, she saw appellant staring back at her.  On the white board outside her room, appellant had written "Katy, look in room 107."  Security checked room 107 and found a note on the white board outside that room which stated, "Open this door."  The window in room 107 had been broken and it was later discovered that appellant had stolen underwear from the room.  Appellant admitted to subsequently returning the underwear to the front desk at the dormitory.  Appellant first admitted to this assault at his commitment trial.  Appellant stated that he was trying to force his way into K.B.'s room to rape her.  Appellant also admitted to breaking into another room at Mohn Hall and stealing a bag of women's undergarments which he used to masturbate.  Appellant pleaded guilty to burglary in the second degree in connection with these two incidents.  During the preparation of the presentence investigation report, appellant stated that he stole approximately 25 panties and bras and that he used them for his sexual gratification purposes.  Appellant testified at his commitment trial that the theft was sexually stimulating and he got an erection when he stole the underwear.

            In May 2000, appellant sexually assaulted K.C., a 20-year old female student.  Appellant approached K.C. and threatened her with a knife.  He took K.C. to a secluded area near the athletic center and forced her to remove her clothing and lie on the ground.  K.C. removed all of her clothing except her panties.  Appellant told K.C. that if she screamed he would kill her.  Appellant kissed her cheek and fondled her breasts, then decided to take K.C. back to his grandparent's home to finish the assault.  K.C. escaped by hitting appellant with her shoe and running away.  Appellant pleaded guilty to criminal sexual conduct in the second degree.  Appellant admitted that he was aroused by the first portion of the assault against K.C., but by the time he climbed on top of her, she appeared to be consenting so he was no longer aroused.

            Appellant also admitted to various acts of harmful sexual conduct involving his sister J.J., including walking into her room naked and watching her while she slept and stealing her underwear for masturbation.  Appellant testified that he considered raping his sister and often had deviant sexual fantasies about raping her.

            The district court took appellant's background and offense history into consideration when conducting a complete analysis of each of the Linehan factors in determining appellant's likelihood of future harm.  The first Linehan factor examines the relevant demographic characteristics.   All three doctors testified that it was their opinion that appellant had a number of demographic characteristics that are positively associated with increased risk including his young age, he is a single male, his chaotic childhood, the early onset of his sexual deviancy, the escalation of his behaviors into high risk sexual violence, and choice of strangers as victims.  All of these factors place appellant at a high risk to reoffend.  Further, based on the testimony and opinion of all three experts, the district court found that the second Linehan factor, appellant's history of violent behavior, including recency, severity and frequency of violent acts, support a finding that appellant was highly likely to reoffend. 

            The district court found that the third Linehan factor, base rate statistics, indicates that appellant has a heightened risk of re-offending.  The results of the actuarial measurements employed by all three experts indicate that appellant is far more likely to reoffend than the averaged released offender.  One doctor testified that this factor places appellant at high risk for reoffense and the base rate statistics applied against his adjusted actuarial scores make him as much as three times more likely to reoffend as other sex offenders. 

            The district court found that the fourth Linehan factor, sources of stress in appellant's environment, suggest that he may be predisposed to cope with stress in a sexually harmful manner and would be likely to reoffend.  All three experts agreed that appellant will experience stress when faced with life as a level two sex offender, his social skills and intimacy deficits interfere with his ability to access and sustain relationships, he lacks a broad support system, experiences sexual frustration, and continues to have violent rape fantasies. 

            The district court found that the fifth Linehan factor, the similarity of present or future contexts to those contexts in which the appellant has used violence in the past, indicates a high likelihood to re-offend.  Appellant will have many of the same stressors that he faced in the community leading up to his assaults including his continuing deviant sexual arousal and his lack of a primary release plan. 

            The district court found that the final Linehan factor, appellant's record of sex offender treatment, indicated a high likelihood of re-offense.  While it was acknowledged that appellant was enrolled in and had made some progress in sex-offender treatment, he has not actually completed treatment.  Two doctors testified that appellant lacks a solid plan to avoid reoffending and failed to submit a relapse prevention plan to any of the examiners. 

The district court's credibility determinations in favor of the evidence in the record, the examiners, and the victim's testimony support the conclusion that appellant is a sexually dangerous person who is likely to engage in acts of harmful sexual conduct.   Because this conclusion is supported by record, the district court did not err in its determination that appellant is a sexually dangerous person.

            Appellant argues that his procedural due process rights and right to a fair trial were violated when the Rice County Court Administrator's office and the trial court appointed the first and second court-appointed examiner.  Appellant's main argument is that the expert opinions regarding the legal standard for commitment were inconsistent.  The record does not reflect that appellant raised this constitutional issue in the district court.  This court will not consider on appeal issues that were not raised and litigated below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

            Finally, appellant contends that the trial court erred by adopting the state's proposed findings of fact, conclusions of law, and order for initial commitment.  Appellant urges this court to adopt a rule that it is per se reversible error for the district court to adopt the state's proposed findings in their entirety.  This proposed standard of review is contrary to existing caselaw.  This court has stated that "the verbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se."  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  The practice of adopting the findings and conclusions submitted by a party, while disapproved, does not warrant reversal per se.  Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).   The district court "must scrupulously assure that findings and conclusionswhether they be the court's alone, one or the other party's, or a combinationare always detailed, specific and sufficient enough to enable meaningful review by [an appellate] court."  Bliss, 493 N.W.2d at 590. 

            Here, the district court stated that it had "carefully reviewed the proposed findings of fact submitted by [the state]" and that those findings "accurately, completely, and properly describe the evidence presented at the trial in this matter."  After a five-day trial, the district court had thirty days to review the court file, reports by the experts, and the testimony during the trial.  Because the district court had adequate time to review the record and the testimony in this case, it was not clearly erroneous for the district court to adopt the state's proposed findings.

            Affirmed.