In the Matter of the Civil Commitment of: Robert Leroy Rustman.

In the Matter of the Civil Commitment of: Robert Leroy Rustman. A06-266, Court of Appeals Unpublished, June 27, 2006.

This opinion will be unpublished and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

A06-266

 

In the Matter of the Civil Commitment of:
Robert Leroy Rustman.

 

Filed June 27, 2006

Affirmed

Stoneburner, Judge

 

Lyon County District Court

File No. P105429

 

Robert L. Gjorvad, Runchey, Louwagie & Wellman, P.L.L.P., 533 West Main Street, P.O. Box 1043, Marshall, MN 56258 (for appellant);

 

Mike Hatch, Attorney General, Matthew Frank, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his commitment as a sexually dangerous person and as a sexual-psychopathic personality.  Because there is clear and convincing evidence in the record that appellant is highly likely to engage in harmful sexual acts in the future and that he has an utter lack of power to control his sexual impulses, we affirm.

D E C I S I O N

 

            When reviewing a commitment order, this court is limited to an examination of whether the district court complied with the requirements of the commitment act.  In re Janckila, 657 N.W.2d 899, 902 (Minn. App. 2003).  Whether the record contains clear and convincing evidence of the statutory requirements for commitment is a question of law which this court reviews de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).  "Clear and convincing" evidence is evidence that is unequivocal, uncontradicted, and intrinsically probable and credible.  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).  The clear-and-convincing-evidence standard "requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt."  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).  "Where the findings of fact rest almost entirely on expert opinion testimony, the [district court's] evaluation of credibility is of particular significance."  In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  This court grants deference to the district court's role as fact-finder and its ability to judge the credibility of witnesses.  In re Ramey, 648 N.W.2d 260, 269 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).

I.          Commitment as Sexually Dangerous Person

 

A sexually dangerous person (SDP) is a person who

(1)       has engaged in a course of harmful sexual conduct as defined in [Minn. Stat. § 253B.02, subd. 7a (2004)];

(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).  "Harmful sexual conduct" is "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another."  Id., subd. 7a(a) (2004).  Rustman does not dispute that he has engaged in a course of harmful sexual conduct or that he has manifested a sexual, personality, or other mental disorder or dysfunction.  Rustman challenges his commitment as a SDP solely on his assertion that the petitioner failed to establish by clear and convincing evidence that he is highly likely to engage in harmful sexual acts in the future.

            "For purposes of [determining a SDP], it is not necessary to prove that the person has an inability to control the person's sexual impulses."  Id., subd. 18c(b) (2004).  But the statute requires a showing that the person's disorder "does not allow [him] to adequately control [his] sexual impulses."  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV), cert. denied, 528 U.S. 1049 (1999).  The statutory phrase "likely to engage in acts of harmful sexual conduct" means that the person is "highly likely" to engage in harmful sexual conduct.  In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (Linehan III), vacated and remanded on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd as modified, 594 N.W.2d 867 (Minn. 1999), cert. denied, 528 U.S. 1049 (1999).

In Linehan III, the supreme court held that the six Linehan I factors for predicting future dangerousness in a sexual-psychopathic-personality commitment are used to determine the likelihood of future harm in a SDP commitment.  557 N.W.2d at 189.  The factors are: (1) relevant demographic characteristics; (2) history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the environment; (5) similarity of present or future contexts to past contexts in which violence was used; and (6) the record with regard to sex-therapy programs.  Linehan I,518 N.W.2d at 614.

            Rustman attacks the "flaws and limitations" of the actuarial instruments used by expert witnesses, Drs. Riedel and Hoberman specifically criticizing how the doctors scored or assessed Rustman on each measure to support their opinions.  For example, Rustman argues that "under the three actuarial tests specific for sexual reoffending [the MnSOST-R, Static-99, and RRASOR], the highly likely standard is not met," and he argues that three other actuarial measures, the PCL-R, VRAG, and SORAG, "relate to general offending and are not specific to sexual offending."

But by attacking specific features of individual actuarial instruments, Rustman ignores the fact that both experts opined that Rustman meets the SPD criteria for dangerousness despite their acknowledgment of some limitations with the instruments.  As Dr. Hoberman testified, "[T]he actuarials give us specific numbers. . . .  [W]hen it comes to using structured professional judgment, it's left to the evaluator to offer an opinion based on looking at how many, or which factors are present in a particular individual, and making or offering an opinion as to their degree of risk."  Dr. Riedel testified that even if he accepted what Rustman argued should be the scoring of several actuarial instruments, "[i]t would change certain of the numbers in my report. . ., but it would not change my overall estimate that [Rustman] is an unacceptable public risk of for reoffending sexually." 

Rustman also ignores our standard of review and the fact that we defer to the district court's ability to weigh the credibility of witnesses, especially when the findings rest exclusively on expert opinion testimony.  See Joelson, 385 N.W.2d at 811.  Based in part on the experts' testimony, the district court found that "it is highly likely that Rustman will engage in further harmful sexual conduct and he is dangerous to others."  Dr. Riedel used eight different actuarial measures to evaluate Rustman's likelihood of future harmful sexual conduct and concluded that considering "all the risk predictions for reoffense or sexual reoffense; taken as a whole, or any one individually, we find a very high level that certainly meets the criterion of ‘highly likely' for Mr. Rustman."  Likewise, Dr. Hoberman, after conducting several actuarial measures, concluded that

in considering the variety of potential approaches to gauging future risk of sexual recidivism including base rates, the combined results of the actuarial measures, individual risk factors, and structured clinical or professional judgment, there are quite uniform results relative to the likelihood of Mr. Rustman's risk of sexual reoffending.  It is clear that based on all methods of risk assessment he is a high risk for future sexual reoffending; these methods indicate that he is at or above the legal threshold of "highly likely" over Mr. Rustman's remaining lifetime.

 

The district court's finding that Rustman is highly likely to engage in harmful sexual conduct is based on unequivocal and uncontradicted expert testimony and is not clearly erroneous.

            The Linehan factors further support the district court's finding.  Dr. Riedel listed more than 20 relevant demographic characteristics that support a finding that Rustman is highly likely to engage in harmful sexual conduct, including Rustman's multiple sex-related convictions, multiple offenses against a single victim, multiple age groups of the victims, and his deviant sexual preference.  Rustman's sexual assault of a 17-year-old victim involved force and violence; his other assaults did not require violence due to the young age of the victims.  Dr. Riedel opined that Rustman's demographic characteristics, the breadth of his victim pool, and his "continued pedophile fantasies" contribute to a "very high base rate for reoffending."  Regarding the sources of stress and similarity of future contexts to Rustman's past sexual assaults, Dr. Reidel noted that Rustman "might actually be in a poorer situation this time than last in relation to the availability of support and structure so the probability of reoffending would actually be higher."  Furthermore, Rustman's record with sex-offender treatment is "quite bad," and he refused to participate in treatment during his last prison sentence. 

II.        Commitment as Sexual-Psychopathic Personality

 

Commitment as a sexual-psychopathic personality (SPP) requires proof that a person

(1)       engaged in an habitual course of misconduct in sexual matters;

(2)       has an utter lack of power to control the person's sexual impulses; and

(3)       is therefore dangerous to others. 

 

Minn. Stat. § 253B.02, subd. 18b (2004).  Rustman does not challenge the district court's determination that he has engaged in an habitual course of misconduct in sexual matters but argues that the evidence does not support the determination that he is highly likely to engage in acts of harmful sexual conduct and is therefore a danger to others. 

            In determining whether a person has an utter lack of power to control his sexual impulses, an appellate court considers

the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender's attitude and mood, the offender's medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it.

 

In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).  To commit a person as a SPP, the petitioner must prove the requirements for commitment by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1 (2004); see Minn. Stat. § 253B.185, subd. 1 (2004) (providing that the provisions of section 253B.18 apply to SPP commitments).

            The district court found that "Rustman has conditions of emotional instability, impulsiveness of behavior, lacks customary standards of good judgment, and fails to appreciate the consequences of personal acts . . . so that he has an utter lack of power to control his impulses to engage in harmful sexual conduct."  The district court also found that the Blodgett factors indicate that Rustman cannot control his impulses. 

The record supports the district court's findings.  Rustman's emotional and personality disorders are well documented.  For example, as early as 1972, he was diagnosed with sexual deviation, pedophilia, and mild mental retardation.  Dr. Hoberman diagnosed Rustman with personality disorder, causing him to be "resistant to psychological treatment methods . . . [and] to be an immature individual who has difficulty establishing personal relationships."  Dr. Hoberman also concluded that Rustman is "likely to be impulsive, unreliable, egocentric, and irresponsible . . . [with] strong feelings of resentment of ‘authority.'"  Dr. Riedel testified that Rustman's sexual fantasies and past sexual abuse of children, and his general personality disorders, cause him to have serious difficulty in controlling his sexual impulses.  Dr. Riedel diagnosed Rustman with pedophilia, sexual sadism, major depression, antisocial-personality disorder, and borderline intellectual functioning. 

            The Blodgett factors also support a finding that Rustman is unable to control his sexual impulses.  Rustman has committed sexual assaults with high frequency on a wide victim pool of children over a 30-year period.  His assault of a 17-year-old girl is the only assault on record when he has used actual force and violence; his remaining assaults, however, required no force due to the age of the victims.  Rustman has sexually abused his relatives, other children he has known, and strangers.  Dr. Riedel noted that Rustman's attitude and mood are "very negative" and that he refuses to take responsibility for his crimes.  Dr. Hoberman stated that Rustman's attitude reflects his belief that "stranger females were acceptable objects to be used to satisfy his emotional and sexual desires."  Rustman's family history includes a brother-in-law who sexually abused Rustman and Rustman's own sexual abuse of several nieces.  Testing shows that Rustman has pedophilia and borderline intellectual functioning, and he is "self-centered, indifferent to social rules and alienated and uncomfortable with adult peers."  Dr. Riedel noted that Rustman continues to admit to "pedophile fantasies" and that he has been unable to remove himself from situations that present the potential for sexual abuse, exemplified by Rustman's sexual assault of his roommate's daughter.  Rustman conceded before moving in with this roommate that a problem might exist, yet still moved in. 

The record contains clear and convincing evidence supporting the district court's findings that Rustman is highly likely to engage in acts of harmful sexual conduct and that he has an utter lack of power to control his sexual impulses.

            Affirmed.

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