In the Matter of the Civil Commitment of Daniel Carl Paulsen.

In the Matter of the Civil Commitment of Daniel Carl Paulsen. A05-1997, Court of Appeals Unpublished, March 14, 2006.

This opinion will be unpublished and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

A05-1997

 

In the Matter of the

Civil Commitment of

Daniel Carl Paulsen.

 

Filed March 14, 2006

Affirmed
Klaphake, Judge

 

Sherburne County District Court

File No. P5-04-2228

 

Deborah Moore Gilman, 590 Holly Avenue, St. Paul, MN 55102 (for appellant Paulsen)

 

Mike Hatch, Attorney General, Noah A. Cashman, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent State of Minnesota)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Daniel Carl Paulsen challenges the district court's order indeterminately committing him as a sexual psychopathic personality (SPP) and sexually dangerous person (SDP) under Minn. Stat. §§ 253B.02, subds. 18b, 18c; 253B.18; 253B.185 (2004).  He argues that (1) the psychological evidence, based on actuarial and psychological testing and evaluation, fails to support a finding that he is SDP or SPP by clear and convincing evidence; and (2) evidence was presented to show that less-restrictive treatment programs are available to meet his needs.  Because clear and convincing evidence supports the district court's determination that appellant meets the criteria for commitment as SDP and SPP, we affirm.

FACTS

            Appellant was 32 years old when this petition for civil commitment was filed.  His history of sexual misconduct began in 1989 when he admitted in a statement to police that he had had sexual contact over a period of time with several boys, ranging in age from 10 to 15 years old.  Appellant, who was 17 years old at the time, was charged with first-degree criminal sexual conduct and adjudicated delinquent for his conduct with one of the boys.

            In 1993, while he was extremely intoxicated, appellant threatened and terrorized two girls, who were 10 and 14 years old.  He pleaded guilty to kidnapping and solicitation of sex with a minor.

            In 1996, while he was still on probation for his previous offenses, appellant and another man gave alcohol to a 15-year-old girl.  They then proceeded to sexually assault her over a period of several hours.  Appellant pleaded guilty to third-degree criminal sexual assault, was sentenced to 30 months, and given 10 years of conditional release.

            Since then, appellant has been in and out of jail, treatment programs, and halfway houses.  His IQ of 72 places him in the mild mental retardation range, and he has been diagnosed with several mental disorders, including paraphilia and antisocial personality disorder.  Appellant has been transferred to different facilities within the correctional system due to incompatibility, treatment, and discipline issues.  He has failed to complete any sex offender treatment program, generally because he lacks the ability or willingness to honestly assess his behavior, blames others for his bad behavior, and violates program rules.  He has been terminated from halfway houses and group homes for violating rules and failing to maintain employment.  While he has not been criminally charged, appellant has maintained unhealthy relationships with younger women, which have included inappropriate displays of affection in public and harassment of the women when they have terminated the relationships.  In October 2004, this petition was filed to civilly commit appellant as SDP and SPP.

D E C I S I O N

            Our review of a civil commitment order is limited to determining whether the district court complied with the requirements of the commitment statutes.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  The district court's findings of fact will not be "set aside unless clearly erroneous, [with] due regard . . . given to the opportunity of the [district] court to judge the credibility of the witnesses."  Minn. R. Civ. P. 52.01.  But we 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) (Linehan I).

I.

            To civilly commit an individual as SDP or SPP, the petitioner must prove the requirements for commitment by clear and convincing evidence.  Minn. Stat. §§ 253B.18, subd. 1, 253B.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).

            SPP is defined as follows:

[T]he existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person's sexual impulses and, as a result, is dangerous to other persons.

 

Minn. Stat. § 253B.02, subd. 18b (2004).  SDP is defined as a person who "has engaged in a course of harmful sexual conduct," has "manifested a sexual, personality, or other mental disorder or dysfunction," and "as a result, is likely to engage in acts of harmful sexual conduct."  Minn. Stat. § 253B.02, subd. 18c (2004).

            Appellant argues that the psychological evidence, based on actuarial and psychological testing, fails to support a finding that he is SDP and SPP by clear and convincing evidence.  In particular, he argues that the opinions of the court-appointed examiners, Drs. James Gilbertson and Peter Meyers, fail to meet the "clear and convincing" legal standard because those opinions are based on "static and clinician-driven tests."  Appellant acknowledges that while both experts testified that he satisfies the criteria for commitment to a "reasonable degree of psychological certainty," their assessments do not show an absolute risk of recidivism and thus fail to meet the clear and convincing standard.

            Appellant's argument, however, assumes that the district court merely adopted the opinions of the examiners.  While the determination of whether an individual meets the criteria for civil commitment requires the assistance of an expert, the district court, and not the expert, makes the ultimate determination.  See In re Moll, 347 N.W.2d 67, 70 (Minn. App. 1984).  Here, the district court made detailed findings of fact based on the extensive record presented at trial, which included not only the testimony and opinions of the experts, but also testimony from appellant and his mother and the submission of numerous exhibits documenting appellant's long history with law enforcement, corrections, treatment programs, and social services.

            Appellant's argument further assumes that the ultimate opinions of the examiners are based solely on psychological and actuarial testing.  While Drs. Gilbertson and Meyers cited appellant's scores on actuarial and psychological tests, their opinions that appellant is highly likely to engage in acts of harmful sexual conduct in the future and that he is dangerous to others because he has an utter lack of power to control his sexual impulses, which are required for SDP and SPP commitments, are based on many other risk factors exhibited by appellant.  See, e.g., Linehan I, 518 N.W.2d at 613-14; In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).

            In particular, the examiners considered appellant's choice of victims, undiminished deviant sexual behavior over time, treatment failures, behavioral problems, history of alcohol dependency, low behavioral self-regulation, and anti-social orientation.  Gilbertson further discussed the six factors deemed relevant to the likelihood to re-offend set out in Linehan I, 518 N.W.2d at 614, only one of which considers base rate statistics.  Gilbertson testified that consideration of the other factors, which include relevant demographic characteristics, history of violent behavior, sources of stress in the environment, similarity of present or future contexts to those in which violence was used in past, and the record with respect to sex-offender treatment, further indicates an increased likelihood to reoffend.  Finally, both examiners considered the various factors set out in Blodgett, 510 N.W.2d at 915, only one of which involves the results of psychological testing, and opined that appellant exhibits an utter lack of power to control his sexual impulses.  We therefore conclude that clear and convincing evidence supports finding that appellant is SDP and SPP.

II.

            Minn. Stat. § 253B.185, subd. 1 (2004) requires that "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 that is consistent with the patient's treatment needs and the requirements of public safety."  Appellant insists that evidence was presented to show that there are less restrictive treatment programs that can meet his sexual and chemical treatment needs, and that the district court therefore erred in determining that commitment to the Minnesota Sex Offender Program (MSOP) is the least restrictive alternative.[1]

            Appellant mischaracterizes the opinions and testimony of both Drs. Gilbertson and Meyers, who stated that appellant is a danger to the public and cannot be safely released to the community.  Both testified that appellant is in need of in-patient, residential treatment at a secure facility and that MSOP at either Moose Lake or St. Peter is the only program in Minnesota that has these characteristics.  Gilbertson specifically testified that Alpha House would not accept an offender such as appellant and that MSOP has a program for learning deficient patients; Gilbertson further testified that other programs that treat patients with borderline IQ's are not secure and do not meet the needs of public safety.  Meyers similarly testified that programming at REM-Lyndale and Alpha House would be unable to provide the security necessary to treat appellant.

            The district court found the opinions of Drs. Gilbertson and Meyers regarding the level of security needed for appellant to be credible and persuasive.  See Minn. R. Civ. P. 52.01 (stating that reviewing court must defer to district court's evaluation of witness credibility).  We therefore conclude that the district court did not err in its decision regarding appellant's placement.

            Affirmed.

[1]  For the first time on appeal, appellant also argues that these statutes, which require him to prove by clear and convincing evidence that a less restrictive treatment is available, violate due process by placing the burden of proof on him.  See Minn. Stat. §§ 253B.18, subd. 18, 253B.185, subd. 1 (2002).  Issues raised for the first time on appeal generally are not considered by this court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  In any event, the statutes do not change the state's burden to prove that a patient meets the criteria for commitment; rather, patients are given the opportunity to show that an alternative placement exists but are not given the right to be assigned to that placement.  See In re Kindschy, 634 N.W.2d 723, 731 (Minn. App. 2001) (stating that "patients have the opportunity to prove that a less-restrictive alternative program is available, but they do not have the right to be assigned to it") (emphasis omitted), review denied (Minn. Dec. 19, 2001).