In the Matter of the Civil Commitment of Eric Matthew Flanders.

In the Matter of the Civil Commitment of Eric Matthew Flanders. A05-2380, Court of Appeals Unpublished, April 18, 2006.

This opinion will be unpublished and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

A05-2380

 

In the Matter of the Civil Commitment of
Eric Matthew Flanders.

 

Filed April 18, 2006

Affirmed

Collins, Judge*

 

Scott County District Court

File No. 2005-03328

 

Ryan B. Magnus, 219 West Nassau Street, P.O. Box 57, St. Peter, MN  56082 (for appellant Eric Matthew Flanders)

 

Mike Hatch, Attorney General, Matthew G. Frank, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Patrick Ciliberto, Scott County Attorney, Scott County Government Center, 200 Fourth Avenue West, Shakopee, MN  55379-1220 (for respondent Scott County)

 

            Considered and decided by Klaphake, Presiding Judge; Hudson, Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N

COLLINS, Judge

            The district court committed appellant Eric Matthew Flanders as a sexually dangerous person under Minn. Stat. § 253B.02, subd. 18c(a) (2004).  On appeal from the initial and indeterminate commitment orders, Flanders argues that the evidence produced at trial was insufficient to establish the criteria for civil commitment.  Because the record supports the district court's conclusion, we affirm.

FACTS

            On February 25, 2005, respondent Scott County petitioned for civil commitment of Flanders as a sexual psychopathic personality (SPP) under Minn. Stat. § 253B.02, subd. 18b (2004), and as a sexually dangerous person (SDP) under Minn. Stat. § 253B.02, subd. 18c (2004). 

            Flanders reports being physically and sexually abused by his father as a child.  Since childhood, Flanders has amassed a lengthy record of aggressive and inappropriate sexual behaviors.  His first reported instance of sexual abuse occurred at 14 years old, when Flanders sexually assaulted a seven-year-old female on at least two occasions.  He was charged in a delinquency petition with two counts of attempted first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct.  Flanders was ordered to submit to a psychological exam to determine his competency to proceed in the delinquency action.  The psychologist opined that Flanders was operating under a defect of reason and did not know that what he was doing was wrong.

            In early 1993, the delinquency charges were dismissed.  The district court determined that Flanders's parents were unable to meet his needs and it was in his best interests to be placed in the custody of Scott County Human Services.  Flanders entered a sex-offender treatment program, Beyond, as an outpatient in April 1993.  While attending Beyond in 1993 and 1994, Flanders was reported to act up and be physically and verbally abusive in group sessions.  From July 1993 to January 1994, Flanders's therapist noted that he was behaving more appropriately and that he was doing well.  In April 1994, Flanders tried to push a staff member down the stairs, then assaulted the staff member.  He also pushed another staff member and threatened to get his brother to attack the staff member.  Flanders was suspended from Beyond in July 1994.  Two weeks later he returned, but then resumed challenging treatment staff members.  In the Beyond review for July 14, 1994, to October 14, 1994, Flanders's therapist noted that he remained at high risk in the community because of his poor impulse control. 

            On September 4, 1995, Flanders exposed himself to a 12-year-old female.  His therapist noted that his transition out of Beyond should be put on hold until he could be placed in a supervised group home.  Flanders still needed structure and supervision and had difficulty identifying the consequences of his behavior. 

            Flanders engaged in individual therapy from January 1995 to July 1996.  The therapist noted that he had a limited ability to relate to others and that he was at risk of using aggressive behaviors to get his needs met.  In his discharge summary from the Beyond program, the therapist indicated that Flanders remained at risk to reoffend and diagnosed him with mild mental retardation and oppositional defiant disorder. 

            In July 1997, Flanders twice exposed himself to a female bus driver.  In 1997, he moved into a group home for developmentally disabled persons in Shakopee and in August 1997, he was accepted into the Onward sex offender program.  In December, Flanders mentioned in a therapy session that he was more likely to expose himself when he was stressed.  On March 18, 1998, he was dismissed from the Onward program for poor participation and attendance. 

            On August 18, 1999, while residing at a group home, Flanders was sexually assaulted by an adult male who was a guest at the home.  In November 1999, Flanders moved to another residential group home, the Elm Home, in Waseca.  Initially, he did well and adjusted.  Flanders received vocational help through Jobs Plus and was employed as a dishwasher in a restaurant, but he soon lost the job.  In December 2000, he started exposing himself to staff.  There were other incidents when he became sexually aroused while in the presence of female staff.  On one occasion he phoned a female staffer and asked her if he could touch her anywhere.  Another time, in March 2001, he sat on a female staffer and refused to let her up.  Flanders also exposed his genitals to staff, peers, and his job coach. 

            In April 2001, Flanders entered the room of a developmentally disabled female resident of the Elm Home and forced her to have intercourse.  He sexually assaulted her twice again, on May 6 and May 17, 2001.  Flanders was charged with first- and second-degree criminal sexual conduct. 

            Flanders was transferred to the Minnesota Security Hospital on May 30, 2001, for evaluation and determination of whether or not he was competent to proceed in the criminal matter.  While there, he failed to cooperate with the assessment team.  Flanders lay naked on his bed on two occasions when staff checked on him during rounds and in another instance he stood outside his room naked, clutching his genitals. 

            On July 19, 2001, Flanders participated in a neuropsychological evaluation.  During the testing, Flanders began to masturbate.  The neuropsychologist determined that Flanders did not meet the diagnostic criteria for mental retardation, but did have a learning disability in mathematics and difficulty processing information.  Flanders achieved a verbal IQ score of 68, a performance IQ score of 89, and a full scale IQ of 76.  He ranked in the category of mildly to moderately impaired as to cognitive abilities and adaptive functioning.  Flanders was diagnosed with mathematics disorder, mixed receptive expressive language disorder, and borderline intellectual functioning.  The neuropsychologist concluded that Flanders was amenable to treatment, provided that the format was appropriate and matched his intellectual functioning. 

            Flanders pleaded guilty to one count of fourth-degree criminal sexual conduct and received a 21-month stayed sentence.  He was referred to Safety Center for sex-offender treatment in 2001.  Flanders continued to have problems in relation to female therapists and would stare at them inappropriately.  He admitted to problems with respect to pornography and said that he would try to make himself better by playing video games and watching television.  Supported by another psychological evaluation at Safety Center, Flanders was found to be an appropriate candidate for the program and started treatment on January 7, 2002.  Flanders reported that female staff aroused him and his main problem with treatment involved staring intently at female staff.  During this period, Flanders masturbated in front of a window and exposed himself to female staff at REM-Lyndale. 

            In May 2002, Flanders exposed himself at his dentist's office and spent five days in jail.  He was uncooperative and found to be engaging in sexually inappropriate talk with two residents in July 2002.  By September 2002, Flanders was thought to be making progress and was moved to the REM-Creekside home in November 2002.  On October 4, 2002, Flanders was charged with two earlier misdemeanor indecent conduct offenses. 

            By the spring and summer of 2003, Flanders's behavior continued to be problematic, and he failed to demonstrate motivation.  He was suspended from the Safety Center program on July 24, 2003, after he attacked a staff member with a butter knife.  The staff concluded that Flanders needed treatment in a more restrictive setting.  Upon discharge, a psychologist noted that Flanders would benefit from experiencing the natural consequences of his actions.  

            In August 2003, Flanders was referred back to the Onward program and was admitted on September 23, 2003.  He was expelled from Onward on July 9, 2004, because he failed to follow the rules of his contract and for lack of motivation to participate in treatment.  Flanders persistently engaged in defiant behavior and in the manipulation of others. 

            In May 2004, Flanders had been placed on house restriction at REM-Creekside because of physically aggressive incidents and exposure.  He was removed from Creekside in July 2004 for failure to comply with his contract.  In his discharge summary, the therapist noted that Flanders is at extremely high risk for reoffense if not supervised. 

            In October 2004, Flanders violated probation for failure to complete his sex- offender treatment program and was ordered by the district court to complete a psychological exam.  Flanders's reoffense risk was assessed as "moderately high."  In November 2004, Flanders was committed to the Minnesota Correctional Facility at St. Cloud.

            The district court relied on Flanders's history of aberrant sexual behaviors and the reports of two court-appointed experts in finding clear and convincing evidence that Flanders satisfied the criteria for commitment as an SDP under Minn. Stat. § 253B.02, subd. 18c, but that Flanders did not meet the statutory criteria for commitment as an SPP.  An interim order for commitment was issued on July 27, 2005, as amended by an order filed on August 17, 2005.  The district court ordered the Minnesota Sex Offender Program to file a treatment report with the court within 60 days, as required by Minn. Stat. § 253B.18, subd. 2 (2004).  On October 25, 2005, the district court ordered that Flanders be indeterminately committed to the Minnesota Sex Offender Program as an SDP.  This appeal followed.

D E C I S I O N

            An appellate court's review of a judicial commitment is limited to determining whether the district court complied with the Civil Commitment Act and whether the commitment is justified by findings based upon evidence submitted at the hearing.  In re Schaefer, 498 N.W.2d 298, 300 (Minn. App. 1993).  To commit a person as an SDP, the petitioner must prove the requirements for commitment by clear and convincing evidence.  Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd. 1 (2004). 

            Whether the evidence is sufficient to demonstrate that the standards for commitment as an SDP are met is a question of law reviewed de novo.  See In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (setting standard of review for psychopathic personality) (Linehan I).  This court does not weigh the evidence on appeal, but rather it determines whether 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) (Linehan III), vacated on other grounds and remanded for reconsideration, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd as modified, 594 N.W.2d 867 (Minn. 1999). 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). 

            To commit a person under the SDP statute, the petitioner must prove that the person

(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).  Subdivision 7a defines harmful sexual conduct to include "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another" and imposes a rebuttable presumption that acts constituting criminal sexual conduct in the first through fourth degree create a substantial likelihood that the victim will suffer serious physical or emotional harm.  Minn. Stat.
§ 253B.02, subd. 7a(a), (b) (2004).  Appellant does not dispute the district court's findings on the first two elements.  He argues that the evidence is insufficient to sustain the finding on the third element.  Flanders contends that the evidence only demonstrated that he was highly likely to reoffend in a nonviolent manner by exposing himself, causing minimal harm, and not by acts of harmful sexual conduct.

            The SDP law states, "For purposes of this provision, 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) (2004).  The statutory definition has been interpreted to require that the present disorder "does not allow [offenders] 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) (Linehan IV).  Although an "utter lack of control" is not required, there must be a finding that the person suffers from a mental abnormality or personality disorder that "makes it difficult, if not impossible, for the person to control his dangerous behavior."  Id. at 875 (quotation omitted).

            The court-appointed experts, Dr. Roger Sweet and Dr. Linda Marshall, both testified that the type of sexual conduct engaged in by Flanders is harmful because it creates a substantial likelihood of emotional and physical harm to his victims.  The reports and testimony of Drs. Sweet and Marshall indicate that Flanders's exposure is a precursor to other offending behaviors. 

            Dr. Marshall noted in her report that Flanders manifested a sexual personality or other mental disorder or dysfunction.  In addition to an underlying antisocial personality disorder, Flanders has a disorder of deviated sexual arousal.  Dr. Marshall also noted that Flanders manifested an inability to adequately control his sexual behavior and, as a result, he is highly likely to engage in acts of harmful sexual conduct.  Flanders was assessed with at least two actuarial tools and rating scales.  On the STATIC 99, he was deemed a high risk of reoffending; and on the MnSOST-R, he was deemed a moderate to high risk of reoffending.  Dr. Marshall also noted that

            [i]n studies of sex offender[s] two variables have been shown to highly correlate with increased risk of recidivation.  One of these is deviant sexual arousal and failure to complete treatment.  Mr. Flanders does have a deviant sexual arousal pattern, is diagnosed with Paraphilia, NOS.  He completed sex offender treatment as a juvenile and later was found unamenable to treatment at two other facilities.

 

            The doctors also based their opinions on a consideration of the Linehan factors.  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.  Linehan I, 518 N.W.2d at 614; see Linehan III, 557 N.W.2d at 189 (holding that the six Linehan I factors for predicting danger in an SPP commitment may also be used to determine the likelihood of future harm in an SDP commitment).

Relevant demographic characteristics

            Both court-appointed experts agreed that Flanders has numerous demographic factors that are associated with increased risk.  Flanders is a young, single, male without a strong support system.  The experts also agreed that as a result of Flanders's limited intellectual abilities and sexual and mental disorders, he has serious difficulty controlling his sexually harmful behaviors and is more dangerous.

History of Violent Behavior

            Flanders has committed numerous physically aggressive acts in his past.  Reports depict a history of verbal aggression and property destruction.  At the Beyond sex- offender day treatment program from 1993 to 1996, Flanders was verbally and physically aggressive, he was disrespectful, oppositional, and belligerent toward staff.  Flanders was suspended from the Safety Center after he attacked a staff member with a butter knife in July 2003.  In April 1994, Flanders threatened to have his brother beat up a staffer and tried to push someone down the stairs. 

            Dr. Marshall noted that Flanders has two sex-offense convictions from six different incidents over a nine-year period and numerous uncharged exposure incidents.  Dr. Sweet noted that Flanders's exposure incidents are a part of his sexual-offending cycle; they are a prelude to his sexual offending.  Both agreed that his history of violent behavior portends a high likelihood of recidivism. 

Base-Rate Statistics

            Both experts agreed that the actuarial risk percentages indicate that Flanders poses a heightened risk of sexually reoffending.  Additionally, Flanders's discharge summaries from the Onward program and the Beyond program indicated that he was at a high risk of reoffending.

Sources of Stress

            Flanders has a history of acting out sexually brought on by anger and stress.  Flanders consistently acted out in group homes.  Flanders self-reported to a psychologist that he was more likely to expose himself when he was stressed.  Significantly, Dr. Sweet cited the connection between Flanders's limited intellectual abilities and his tendency to become stressed and act out. 

Similarity of Situation to the Past

            Dr. Sweet noted that if Flanders were not committed, he would have to deal with many of the same stressors that affected past behavior.  Flanders has not acquired the coping tools necessary to succeed in controlling himself in such situations.  Because of his limited intellectual abilities, any prevention plans that he has are not likely to help him because he does not comprehend how he is to accomplish these plans. 

Record with Sex-Therapy Programs.

            Flanders has been availed of numerous treatment programs and has nominally completed only one.  Soon after completing the Beyond program, Flanders reoffended multiple times.  Hampered by limited intellectual capacity, Flanders fails to understand the cycle of offending, and he lacks the ability to empathize, both of which Dr. Sweet opined are necessary for effective treatment.  Flanders has not achieved adequate control of his sexual impulses. 

            Based on all of the Linehan factors, Dr. Marshall concluded that Flanders is "highly likely to engage in acts of harmful sexual conduct."  Dr. Sweet also concluded that Flanders is highly likely to engage in a hands-on sexual offense.  Dr. Sweet noted that the exposure incidents are a part of the hands-on offense cycle.  We find clear and convincing evidence in the record supporting the district court's conclusion that it is highly likely that Flanders will engage in future harmful sexual conduct. 

            Finally, Flanders contends that the actuarial tools employed by the experts and relied on by the district court are invalid.  He points out that indecent exposure is not listed under Minn. Stat. § 253B.02, subd 7a(b), as one of the types of conduct creating a rebuttable presumption of a substantial likelihood that a victim will suffer serious physical or emotional harm thereby; thus, he argues, the prediction of future harm is invalid in his case.  Flanders provides no authority for this argument, and there is no support in the record.  More importantly, his focus on the actuarial tools fails to recognize that the statistical information is only one of the factors relevant to predicting likelihood of reoffense.  See Linehan III, 557 N.W.2d at 189 (noting that the appellant in that case had offered "no statutory or precedential support for the argument that actuarial methods or base rates are the sole permissible basis for prediction.").  And there is no requirement that a victim suffer actual emotional or physical harm.  In re Civil Commitment of Martin, 661 N.W.2d 632, 639 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  Nor is there a requirement that the offender be convicted for the conduct.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002). 

            In light of Flanders's past course of harmful sexual conduct, his mental disorders, and his profound lack of power to control his sexual impulses, the district court determined on clear and convincing evidence that Flanders meets the statutory criteria for a sexually dangerous person under Minn. Stat. § 253B.02, subd. 18c.  Review of the
record reveals that the evidence as a whole substantially supports the district court's conclusion on the likelihood of Flanders to engage in acts of harmful sexual conduct. 

            Affirmed.

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