In the Matter of the Civil Commitment of: DuWayne Melvin Gorden.

In the Matter of the Civil Commitment of: DuWayne Melvin Gorden. A06-43, Court of Appeals Unpublished, July 3, 2006.

This opinion will be unpublished and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

A06-43

 

 

In the Matter of the Civil Commitment of:

DuWayne Melvin Gorden.

 

 

Filed July 3, 2006

Affirmed

Lansing, Judge

 

Itasca County District Court

File No. 31-PR-05-914

 

James S. Dahlquist, 301 Fourth Avenue South, #270, Minneapolis, MN 55415 (for appellant DuWayne Melvin Gorden)

 

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

 

            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from an order for indeterminate commitment as a sexually dangerous person and a sexual psychopathic personality, DuWayne Gorden challenges the sufficiency of the evidence to support his commitment, his placement in the Minnesota Sex Offender Treatment Program, and the constitutionality of the commitment statutes.  Because clear and convincing evidence supports Gorden's commitment as a sexually dangerous person and as a sexual psychopathic personality, because he has not met his burden of proving a less-restrictive placement is appropriate or available, and because he has not demonstrated that his commitment is unconstitutional, we affirm.

F A C T S

            The state filed a petition for the civil commitment of DuWayne Gorden in March 2005 as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP) based on his history of sexually assaulting young boys.  Two court-appointed medical examiners evaluated Gorden and testified to their opinion that he is both an SDP and an SPP, and the district court granted the petition.

Police first became aware of Gorden's sexually aggressive conduct involving young children in September 1988 when they received a complaint from a woman stating that Gorden sexually assaulted her four-year-old son, MCA.  While investigating this allegation, police officers discovered that Gorden had also sexually assaulted his former stepson, AWH, and made sexual advances toward another boy, CGF.

            Gorden sexually assaulted AWH over a five-year period from approximately 1982 to 1987.  Gorden testified that he married AWH's mother, in part, because of his sexual attraction to her three sons.  AWH was approximately four years old when the assaults began, and Gorden "groomed" AWH by buying him a bicycle and giving him food and candy.  Gorden did not sleep with his wife and instead slept with AWH almost every night during the marriage.  He sexually assaulted AWH approximately three to four times a week.  In the initial assaults, Gorden rubbed his penis between AWH's legs, but the conduct escalated to include both oral and anal penetration.  Gorden testified at his commitment hearing that he could not recall assaulting AWH, but stated, "I'm assuming I did."  Although Gorden attributed his lack of memory to alcoholism, AWH testified that Gorden was sober during some assaults.

            In August 1986 AWH's eight-year-old friend, CGF, visited AWH's home.  At the end of the visit, while CGF was waiting for his mother to arrive, Gorden directed CGF to approach him and told CGF to "[g]ive me a blow job."  CGF refused and left the house with his mother a short time later.  Gorden denied that this incident occurred.

            In 1988,after divorcing AWH's mother, Gorden provided childcare for a female coworker's two sons.  Gorden testified that he befriended her because of his attraction to her sons and because he knew her husband was frequently away from the home.  Gorden had childcare responsibility for the boys over several months, during which he sexually assaulted the younger boy, MCA, approximately five times.  Gorden groomed MCA by letting him play video games and giving him soda and candy.  Gorden's assaults included rubbing his penis between MCA's legs and oral penetration.  Gorden testified that he did not assault the older child because he feared the boy would report him, but he believed MCA would not.  At his commitment hearing, Gorden admitted to only one sexual encounter with MCA, stating that MCA initiated it and that Gorden acted out of love for MCA.

            Gorden was charged with first-degree criminal sexual conduct for his assaults against MCA, second-degree criminal sexual conduct for his assaults against AWH, and attempted first-degree criminal sexual conduct for his advances toward CGF.  In January 1989 Gorden pleaded guilty to two counts of second-degree criminal sexual conduct in exchange for dismissal of the attempt charge.  The district court sentenced him to prison.

            Gorden was released from prison and placed on supervised release in August 1990.  Gorden violated the terms of his release by drinking alcohol and by having unsupervised contact with minors.  In May 1991, while still on supervised release, Gorden began sexually assaulting his twelve-year-old nephew, CWK.  Gorden groomed CWK by giving him money and candy.  Between May and July, Gorden sexually assaulted CWK six to ten times.  The assaults included Gorden rubbing his penis between CWK's legs, rubbing CWK's penis, forcing CWK to masturbate, and masturbating in front of CWK.  Gorden anally penetrated CWK once, hitting CWK in the back of the head.  Gorden threatened to drown him if he did not cooperate or if he told anyone about the assaults.

            Gorden was charged with first- and second-degree criminal sexual conduct for his assaults against CWK.  At the trial on these charges, CKH, who is CWK's mother and Gorden's sister, testified that, when she was seven or eight years old and Gorden was nine or ten, Gorden vaginally penetrated her approximately four or five times a week for about a year.  She testified to another childhood incident in which Gorden brought her to another boy's basement and watched him sexually assault her.  A jury convicted Gorden of both charges in September 1991, and the district court sentenced him as a patterned sex offender to 244 months in prison.  Gorden denied the incidents to which CKH testified; he alternately admitted and denied his behavior with CWK.  During a presentencing investigation in 1991, Gorden stated that CWK would not have continued to spend time with Gorden if he did not like the sexual acts.  At his commitment hearing, Gorden denied assaulting CWK, but at the review hearing following his initial commitment, Gorden testified that he was drunk every time he assaulted CWK.

            While incarcerated, Gorden continued to initiate contact with children.  In February 2001 the department of corrections received a letter from the husband of Gorden's niece.  The letter stated that Gorden was continually sending his niece's family, including her eleven-year-old son, letters, cards, and money.

Although corrections officials consistently recommended sex-offender treatment at each of Gorden's annual reviews, Gorden refused to participate in treatment each year from 1991 to 2003.  He received a disciplinary violation for his refusal in 2001, and, after exhausting his appeals within the department of corrections, he signed a treatment agreement in March 2004 and began treatment in May.  When he began treatment, Gorden told an evaluator that he did not need treatment, but that he would do his best.  At the time of the commitment hearing, Gorden had completed one phase of the multi-phase treatment program and had failed the course in victim empathy.

The state filed a petition for civil commitment one month before Gorden's scheduled release from prison.  The court appointed two medical examiners, Dr. Mary Kenning and Dr. Thomas Alberg.  Both doctors formed an opinion that Gorden is an SDP, and Dr. Kenning concluded that Gorden is an SPP.  Although the expert report Dr. Alberg filed with the court concluded that Gorden was not an SPP, Dr. Alberg testified that he changed his mind after hearing the testimony of several witnesses and learning that Gorden had a longer history of sexual abuse than indicated by the records he had at the time of his evaluation.  Following the hearing, the district court found that Gorden is an SDP and an SPP and granted the petition for commitment in August 2005.  At the review hearing in November 2005, the court determined that Gorden continued to be an SDP and an SPP in need of commitment.  Gorden appeals this determination.

D E C I S I O N

The district court may civilly commit a person under the Minnesota Commitment and Treatment Act if the state proves the need for commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1(a) (2004).  We defer to the district court's factual findings unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  Whether the factual findings rest on evidence that satisfies the statutory requirements for civil commitment, however, is a question of law subject to de novo review.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).

I

A sexually dangerous person is 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(a) (2004).  Although the state need not prove that the person is unable to control sexual impulses, the existing disorder or dysfunction must result in inadequate control, making it highly likely that the person will reoffend.  Id., subd. 18c(b) (2004) (stating that inability to control impulses is not required); In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV) (requiring high likelihood of recidivism).

            Clear and convincing evidence supports the district court's determination that Gorden engaged in a course of harmful sexual conduct.  Harmful sexual conduct is "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another."  Minn. Stat. § 253B.02, subd. 7a(a) (2004).  Conduct that results in a conviction of criminal sexual conduct in the first through fourth degree creates a rebuttable presumption of harmful sexual conduct.  Id., subd. 7a(b) (2004).  A course of harmful sexual conduct is a sequence of harmful sexual conduct occurring over a period of time.  In re Civil Commitment of Stone, 711 N.W.2d 831, 837 (Minn. App. 2006), review denied (Minn. June 20, 2006).  The incidents that establish the course of conduct may extend over a long period of time, and the court is not limited to considering only conduct that resulted in a criminal conviction.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002) (stating that court may consider conduct not resulting in conviction), review denied (Minn. Sept. 17, 2002); In re Irwin, 529 N.W.2d 366, 374 (Minn. App. 1995) (stating that conduct need not be recent), review denied (Minn. May 16, 1995).

            Gorden's conduct with AWH, MCA, and CWK resulted in convictions of first- and second-degree criminal sexual conduct, thereby triggering the presumption that the conduct was harmful.  Both experts testified that Gorden's conduct created a substantial likelihood of serious physical or emotional harm because Gorden chose vulnerable victims who were emotionally close to him, violated their trust by his predatory acts, engaged in multiple forms of sexual contact, and committed the abuse repetitively over an extended period of time.  Dr. Kenning further stated that it is common for children subjected to this type of abuse to develop depression, identity problems, and posttraumatic stress disorder and that they have an increased likelihood of engaging in self-destructive behaviors such as substance abuse and suicide.  AWH, who was twenty-eight years old at the time of the commitment hearing, testified that he has had problems with depression, alcoholism, substance abuse, and low self-esteem.  CWK, who was twenty-six years old at the hearing, testified that he is still suffering from the effects of the sexual assaults and testified via telephone so he would not have to be in the same room as Gorden.  Gorden failed to rebut the presumption that his sexual misconduct toward these boys qualifies as harmful sexual conduct.

The sexual misconduct toward CGF and CKH did not result in convictions.  Dr. Kenning testified that CGF is unlikely to suffer long-term harm as a result of Gorden's behavior.  She testified that his sexual misconduct toward CKH, however, created a high likelihood of serious emotional harm in the form of depression, anxiety, and self-destructive behavior.  CKH testified that she continues to have difficulties in her relationships with men and that she is frightened of the dark and of being alone.  Based on Gorden's sequence of aggressive sexual misconduct with AWH, MCA, CWK, and CKH over an extended period of time, and the testimony by the victims and experts, clear and convincing evidence supports the district court's determination that Gorden engaged in a course of harmful sexual conduct.

            Clear and convincing evidence also supports the district court's finding that Gorden manifested a sexual, personality, or other mental disorder or dysfunction.  The medical experts diagnosed Gorden with pedophilia, dysthymia, alcoholism, and a personality disorder with avoidant, antisocial, and narcissistic features.  Gorden has a long history of depression that includes two suicide attempts.  The medical experts noted that Gorden's diagnosed psychological conditions relate to his offenses because he alternately denies his assaultive acts and acknowledges his guilt, minimizes his responsibility by attributing his actions to alcohol or the behavior of his victims, and expresses his belief that his behavior is emotionally supportive rather than harmful to the victims.  His offense cycle begins with isolation from appropriate peers, which then fosters depression and self-pity, and ultimately triggers a desire to find solace through predatory sexual conduct toward children.

Finally, clear and convincing evidence supports the district court's determination that Gorden is highly likely to engage in future harmful sexual conduct.  Six factors are considered when examining whether an offender is highly likely to recidivate.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan III), cert. granted, judgment vacated, and case remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd on remand, 594 N.W.2d 867 (Minn. 1999).  The court must consider: (1) the offender's demographic characteristics; (2) the offender's history of violent behavior; (3) the base-rate statistics for violent behavior among individuals with the offender's background; (4) the sources of stress in the offender's environment; (5) the similarity of the present or future context to those contexts in which the offender used violence in the past; and (6) the offender's record of participation in sex-therapy programs.  Linehan I, 518 N.W.2d at 614.

            The district court's findings on these factors rely on Dr. Kenning's testimony, which the court evaluated as credible and persuasive.  Dr. Kenning testified that Gorden is an extrafamilial pedophile who is not subject to typical patterns of desistance with age and that his status as a male with a lack of consistent employment and low socioeconomic status increase his risk of recidivism.  Although Gorden's conduct is aggressive, he does not have a history of violent behavior except for the incident with CWK in which Gorden hit and threatened him.  Base-rate recidivism estimates for offenders with Gorden's background are as high as fifty-two percent.  Individualized tests of Gorden yield a fifty-nine percent chance of recidivism within ten years.  With regard to sources of stress and contextual similarity between Gorden's past and present circumstances, Dr. Kenning pointed to Gorden's actions following release from prison in 1990.  Gorden became depressed, started drinking, and resumed his offense cycle with CWK.  According to Dr. Kenning, Gorden's current circumstances may present greater stress because he no longer has the support of his family.  Dr. Kenning testified that Gorden is not a suitable candidate for an outpatient treatment program because he has a history of repeated offenses and denials, that he lacks a detailed plan to obtain the help he needs to avoid reoffending, and that he refused to participate in sex-offender treatment for more than a decade after his first offenses.  Dr. Kenning indicated that Gorden's participation in the 2004 treatment appears to have been motivated by his desire to transfer to a different correctional facility after he was assaulted by other inmates and concluded that his expressed interest in treatment may only be "shamming."

            Dr. Alberg classified Gorden as an incest perpetrator based on the fact that Gorden was either related to or formed familial relationships with his victims.  He testified that, although he believed Gorden will need treatment for the rest of his life and will reoffend given the opportunity, he is at a lower risk of recidivating because he can be denied access to the limited pool of potential victims.  The district court rejected this possible limitation on Gorden's future conduct because Dr. Alberg's opinion did not rely on a medically accepted definition of incest, and Gorden testified that he was attracted generally to children whom he knows.  We defer to the district court on issues of credibility.  Joelson, 385 N.W.2d at 811 (stating that district court's "evaluation of credibility is of particular significance").  The record establishes by clear and convincing evidence that Gorden meets the statutory criteria for an SDP commitment.

II

            Status as a sexual psychopathic personality requires clear and convincing proof of three elements: (1) the existence of either emotional instability, impulsive behavior, a lack of customary standards of good judgment, or a failure to appreciate the consequences of personal acts; (2) a habitual course of sexual misconduct that results from the presence of a condition in the first criterion; and (3) an utter lack of power to control sexual impulses such that the person is dangerous to others.  Minn. Stat. § 253B.02, subd. 18b (2004).

The district court found credible the expert testimony that Gorden is emotionally unstable, lacks customary standards of good judgment, and fails to appreciate the consequences of his actions.  In February 2005 Gorden indicated that he was not responsible for his conduct and in his response to testing, stated that he continued to believe that sexual assaults against children are not harmful and do not have lasting effects.  He also endorsed the belief that children enjoy sex with adults, that children may seek out sex and can learn from it, and that offenders suffer more than the children they assault.

Clear and convincing evidence supports the district court's determination that Gorden engaged in a habitual course of sexual misconduct.  A habitual course of sexual misconduct requires similar incidents of misconduct or incidents that form a pattern.  See In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn. App. 1994) (considering similarities between incidents and pattern of conduct), review denied (Minn. Oct. 27, 1994).  Gorden has a defined pattern of assaulting young boys.  His sexual approach and contact with the boys is similar and he justifies his actions by telling his victims that his actions are "love."  As the district court noted, "[s]ince Gorden assaulted AWH in 1982, Gorden has continually groomed and assaulted young boys at all times when he has had the opportunity."

When considering an offender's utter inability to control his sexual impulses, the court looks to the Linehan factors addressed in an SDP analysis.  Linehan III, 557 N.W.2d at 189.  Courts also consider other factors to examine the ability to control sexual impulses, including the nature and frequency of assaults, the degree of violence, the offender's relationship to the victims, the offender's attitude and mood, the offender's medical and family histories, the results of evaluations, the offender's refusal of treatment opportunities, the lack of a relapse prevention plan, the presence of grooming behavior, the failure of the offender to remove himself from similar situations, and the presence of a period in which the offender controlled his sexual behavior.  In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994); In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995);Irwin, 529 N.W.2d at 375; Bieganowski, 520 N.W.2d at 530.

Clear and convincing evidence on each of these factors supports the district court's determination that Gorden is not only highly likely to reoffend, but also has an utter lack of power to control his impulses.  Dr. Kenning testified to Gorden's inability to control his impulses.  Gorden assaulted three young male victims within five years, attempted an assault against another boy, and admitted that he considered grooming yet another boy.  He abused trusting relationships with children through coercion, manipulation, and grooming, and has exhibited inconsistent attitudes toward his offenses, either denying that they occurred or attributing his conduct to alcohol.  Gorden's failure of a victim-empathy course confirms his inability to comprehend the consequences of his actions.  Both experts testified to their opinion that, given the opportunity, Gorden will reoffend.  The record contains strong evidence to support the finding that Gorden does not have the capacity to resist acting on his sexual impulses.

III

A district court's determination that a person is sexually dangerous or has a sexual psychopathic personality, as defined by statute, requires commitment to a secure treatment facility unless the person establishes, by clear and convincing evidence, the availability of a less-restrictive treatment program consistent with the person's needs and the requirements of public safety.  Minn. Stat. § 253B.185, subd. 1 (2004).  We will not reverse a district court's findings on the appropriateness a treatment program unless its findings are clearly erroneous.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).

The district court found that civil commitment to the Minnesota Sex Offender Treatment Program was the only available option that would meet both Gorden's needs and the requirements of public safety.  The record supports this determination.  Dr. Kenning testified that Gorden is in need of intensive treatment in a secure setting, and Dr. Alberg testified that the Minnesota Sex Offender Treatment Program is the only realistic option.  The treatment report submitted by the program after Gorden's initial commitment indicated that nothing had changed since Gorden's commitment to suggest that he was not both an SDP and an SPP and that Gorden continued to need comprehensive sex-offender treatment.

Gorden did not satisfy his burden of proving that a less-restrictive alternative was available.  Gorden provided the name of one outpatient treatment center but did not provide evidence that the facility would accept him, meet his needs, or protect the public.  Both experts testified that an outpatient facility would not accept Gorden as a patient.  The district court did not err by committing Gorden to the Minnesota Sex Offender Treatment Program.

IV

Minnesota statutes are presumed constitutional and will not be declared unconstitutional unless absolutely necessary.  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  Gorden asserts that the commitment proceedings violated his constitutional right to due process and his protection against double jeopardy.  But he does not point to any specific act or procedure that constitutes a violation.  He acknowledges that Minnesota's commitment procedures have previously withstood constitutional challenges asserting violation of due process and double-jeopardy protections.  See Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn. 1995) (holding that commitment does not constitute double jeopardy); Blodgett, 510 N.W.2d at 916(concluding that SPP law does not violate right to substantive due process); Joelson v. O'Keefe, 594 N.W.2d 905, 910-11 (Minn. App. 1999) (holding that SPP law does not violate right to procedural due process or constitute double jeopardy), review denied (Minn. July 28, 1999);see also Kansas v. Hendricks, 521 U.S. 346, 369, 117 S. Ct. 2072, 2086 (1997) (holding that law permitting commitment of sexually dangerous persons did not constitute double jeopardy or violate right to substantive due process).

            Gorden appears to challenge the suitability or possible success of treatment and his future opportunity for discharge.  These claims are factually and procedurally premature and cannot be addressed on appeal from a commitment order.  See In re Wicks, 364 N.W.2d 844, 847 (Minn. App. 1985) ("Generally, the right to treatment issue is not reviewed on appeal from a commitment order."), review denied (Minn. May 31, 1985); see also Joelson, 385 N.W.2d at 810 (addressing constitutional right to treatment).

Affirmed.