In the Matter of the Civil Commitment of: Jeffrey Kim Kirckof.

In the Matter of the Civil Commitment of: Jeffrey Kim Kirckof. A06-956, Court of Appeals Unpublished, October 24, 2006.

This opinion will be unpublished and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

A06-956

 

 

In the Matter of the Civil Commitment of:

Jeffrey Kim Kirckof.

 

 

Filed October 24, 2006

Affirmed

Dietzen, Judge

 

 

Sherburne County District Court

File No. P5-05-1042

 

 

Roderick N. Hale, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for appellant Kirckof)

 

Mike Hatch, Attorney General, Angela Helseth Kiese, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134 (for respondent petitioner)

 

            Considered and decided by Dietzen, Presiding Judge; Willis, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant Kirckof challenges the district court's judgment committing him as a sexually dangerous person and a sexual psychopathic personality, arguing that (1) the determinations were not supported by clear and convincing evidence; (2) the district court abused its discretion by incorporating proposed findings and conclusions prepared by respondent; and (3) his indeterminate commitment violated principles of double jeopardy, ex post facto law, and equal protection.  Because the district court decision was supported by clear and convincing evidence, and the court properly applied the law and did not abuse its discretion, we affirm.

FACTS

I.

            Appellant Jeffrey Kirckof, who was 51 years old at the time of his indeterminate commitment, has a long history of sex-related offenses, many of which resulted in convictions.

A.        Appellant's Criminal and Incarceration History

            In 1981, when appellant was 26 years old, he was convicted of indecent exposure after exposing himself to an adult female with whom he had a dispute.  At that time, he had been drinking heavily and had taken LSD.  He was sentenced to pay a $200 fine and serve 30 days in jail.

            In 1985, appellant was convicted of fourth-degree criminal sexual conduct and was placed on probation for five years.  The conviction related to an incident in which appellant approached a 13-year-old girl at a shopping center and touched her buttocks and squeezed the inside of her thigh twice.  Appellant was discharged from probation in 1989.

            In 1990, appellant was convicted in California of fourth-degree annoying or molesting a child and was sentenced to three years of probation.  Appellant was convicted of grabbing his ex-wife's 12-year-old niece from behind, wrapping his arms around her, and then sliding his right hand across her left breast over her clothing.  Appellant was then voluntarily admitted to a Minnesota hospital, which on discharge recommended that he obtain outpatient therapy for depression and sexual deviance.

            In April 1994, a jury found appellant guilty of fourth-degree criminal sexual conduct, and the district court sentenced him to serve 36 months in prison with a supervised-release period of ten years.  This conviction arose out of an incident in which appellant gave a ride to a woman who was obviously developmentally disabled.  When the victim discovered that appellant was not her pastor, she asked to get out of the vehicle, but appellant refused.  Instead, he brought her to a parking lot where he fondled her breasts and forced her to rub his penis until he ejaculated.

            In May 1994, appellant pleaded guilty to fifth-degree criminal sexual conduct and was sentenced to serve one year concurrently with the fourth-degree criminal-sexual-conduct sentence.  In this incident, appellant drove up to the victim, talked to her for a few minutes, and then pulled her to his window, grabbed her breast, and tried to kiss her.

            During his incarceration, appellant requested treatment.  Appellant then entered the Sexual Education and Evaluation Center (SEEC), which he completed in 1995 but received a guarded prognosis.  SEEC staff issued recommendations, including that appellant complete the Sexual Offender Transitional Program.  He completed six months of the transitional program with a guarded prognosis.

            In December 1995, a Department of Corrections psychologist interviewed appellant, concluded that he was a "predatory nuisance" with a serious risk to reoffend, and recommended that he participate in an after-care program.  Appellant was released from prison in January 1996 and referred to the CORE Professional Services supervised-release treatment program.  In July 1999, appellant's supervised-release agent filed a violations report in response to reports to the police from two women that appellant had approached and offered them rides in his vehicle.  Following a revocation hearing, the violations were dismissed for lack of evidence, but appellant's supervised release was conditioned on appellant not using a motor vehicle without his agent's express permission.

            In September 2002, a jury found appellant guilty of the felony of stalking, and the court sentenced appellant to serve 21 months in prison.  The conviction involved appellant approaching a 13-year-old and her 19-year-old sister in his vehicle on separate occasions.  Appellant was incarcerated from October 2002 to September 2003.  An end-of-confinement review committee gave him a risk level of 3 and determined that he was at high risk to reoffend.

            In November 2003, appellant once again entered sex-offender treatment at CORE.  In April 2004, appellant accepted a job at a restaurant that included contact with young women, despite urging from his agent to take a different job.  In late November 2004, appellant was terminated from CORE following a report that he had initiated physical contact with a 15-year-old girl at work who suffered from bipolar disorder, despite very specific directives that he avoid such contact.  In early December 2004, a violations report was filed based on the same incident and appellant's failure to complete sex-offender treatment.  In December 2004, appellant's release was revoked and he was assigned 150 days of "accountability time."  In January 2005, appellant was transferred to the Minnesota Correctional Facility in Rush City, and his projected release date was extended 90 days for review and possible commitment proceedings.

B.        The Commitment Hearing

            A petition for commitment as a sexual psychopathic personality (SPP) and as a sexually dangerous person (SDP) was filed in May 2005, and the hearing was held on October 12 and 13, 2005.

            Appellant testified and, for the most part, acknowledged the offenses leading to convictions.  He admitted most of the uncharged incidents, in which he approached girls or women while driving, talking to them or asking them to get into his vehicle, or in which he grabbed their breasts, although he was unable to recall several of the incidents.  For some, he offered details, justifications, or explanations that differed from the official record or witness statements or testimony, but the court credited the latter versions.  He also admitted that he was chemically dependent, that he last used controlled substances in 1979 and last drank alcohol in 1983, and that he does not attend AA meetings or have an AA sponsor.

            Appellant testified that if he were not committed, he would live with a couple who were his good friends, who agreed that appellant would be welcome to live with them.  He also planned to obtain employment and pay off his debt.  Appellant asserted that he has a reoffense-prevention plan in which he would take the following steps:  obtain treatment from CORE; avoid vulnerable adults and not be alone with young people; stop picking up prostitutes; and use his coping skills, have victim empathy, and remember how his behavior affects others.  He testified that he did not need sex-offender treatment but would continue therapy if released and that he did not believe he is a danger to anyone else.

            A.J.J., a developmentally disabled woman who was 18 years old when appellant sexually assaulted her in November 1993, also testified.  She described how appellant approached her in a white truck while she was walking on the sidewalk and told her to get into the truck.  After she unsuccessfully sought help, A.J.J. got into the truck because she was afraid.  Appellant drove her to his apartment, where he forced her to engage in sexual intercourse.  At the hearing, appellant admitted that he had sexual intercourse with her, but denied forcing her.  Instead, he testified that she willingly went to his apartment on three occasions and engaged in various sexual activities with him.  The district court credited A.J.J.'s version of events.

Dr. Linda Marshall, a licensed psychologist since 1994, testified as the first court-appointed examiner.  She has previously served as court-appointed examiner in 33 SPP/SDP cases in Minnesota.  Dr. Peter Meyers, a licensed psychologist since 2000, testified as the second court-appointed examiner.  He has previously served as a court-appointed examiner in 17 SPP/SDP cases in Minnesota.  Both examiners had special training related to the assessment and prediction of dangerous behaviors and reviewed records relating to appellant, including records of his prior psychological testing.

            Marshall testified that she interviewed appellant at the Minnesota Security Hospital on June 16, 2005, and also administered the Minnesota Multiphasic Personality Inventory (MMPI) II and the Millon Clinical Multiaxial Inventory III to appellant.  She diagnosed appellant with dysthymic disorder, history of major depressive disorder; paraphilia, not otherwise specified (NOS); alcohol dependence, in remission; and personality disorder, NOS, with borderline and schizoid traits.  She concluded in her report, and also testified, that appellant met the standards for commitment as both an SPP and an SDP.  Meyers diagnosed appellant with paraphilia, NOS; and alcohol dependence, sustained full remission, in a controlled environment.  He also concluded in his report, and testified, that appellant met the criteria for commitment as an SPP and SDP, but only recommended commitment as an SDP.  Meyers did not recommend commitment as an SPP because he did not find that appellant was a clinical psychopath.

            After the hearing, the district court issued findings of fact, conclusions of law, and order of initial commitment consisting of 65 pages, including 272 findings of fact.  The district court concluded that appellant met the requirements for commitment as an SDP and an SPP by clear and convincing evidence under Minn. Stat. § 253B.02, subds. 18b and 18c (2004), and committed appellant under Minn. Stat. § 253B.18, subd. 1.

After the treatment report mandated by Minn. Stat. § 253B.18, subd. 2, was filed, a review hearing was held.  The district court ordered appellant's indeterminate commitment as an SDP and SPP under Minn. Stat. § 253B.18, subd. 3 (2004), and judgment was entered.  This appeal followed.

D E C I S I O N

I.

            Appellant argues that his commitment as an SDP is not supported by clear and convincing evidence.  Findings of fact by the district court will not be reversed unless clearly erroneous.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  Due regard must be given to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01; In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  "Where the findings of fact rest almost entirely on expert testimony, the trial court's evaluation of credibility is of particular significance."  Id.  Whether the record supports the determination that the standard for commitment was met by clear and convincing evidence is a question of law reviewed de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

            A petitioner must prove that the standards for commitment as an SDP are met by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1(a) (2004); see Minn. Stat. § 253B.185, subd. 1 (2004) (providing that generally, Minn. Stat. § 253B.18 applies to SPP and SDP commitments).  An SDP is defined as a person who:

                        (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).

             "Harmful sexual conduct" is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another."  Minn. Stat. § 253B.02, subd. 7a(a) (2004).  There is a rebuttable presumption that conduct described in statutes addressing criminal sexual conduct in the first to fourth degrees, as well as certain other crimes when motivated by sexual impulses, including harassment and stalking, meets this standard.  Id., subd. 7a(b).  This standard does not require that the conduct actually create physical or emotional harm, but rather that there is a substantial likelihood of causing physical or emotional harm.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 269 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).

            Here, the district court found that appellant was convicted of fourth-degree criminal sexual conduct in 1985; fourth-degree annoying or molesting a child in 1990; fourth-degree criminal-sexual conduct in 1994; and felony stalking under Minn. Stat. § 609.749, subd. 3(a)(5), in 2002, in incidents in which he followed the pattern that had led to sexual assaults in the past.  The court also found A.J.J.'s testimony that appellant forced her to engage in sexual intercourse in 1993 to be credible.

            Appellant argues that the record supports the conclusion that he has not engaged in harmful sexual conduct but rather that he is merely a "predatory nuisance."  He relies on a report by a Department of Corrections psychologist who evaluated him in 1995 and concluded that he did "not meet the dangerousness criteria with respect to harming his victims."  Instead, the psychologist described appellant as "a predatory nuisance."  Appellant also relies on a 2003 risk-assessment report that noted "[l]imited force has been noted in his sexual assault and his sexual assaults have not included penetration" and agreed that appellant was a "predatory nuisance." 

            But the district court found that appellant's 1993 sexual assault of the 18-year-old developmentally disabled woman included forced intercourse and found persuasive the testimony of both court-appointed examiners that appellant's sexual conduct was harmful.  According to Marshall, appellant's harm to the victims was both physical and emotional.  Meyers opined that appellant's victims would experience posttraumatic stress symptomology, increased fear, and reduced trust.  Both experts believed that appellant's niece would suffer increased harm because it was a family member who molested her.  The district court's findings are supported by the evidence and are not clearly erroneous.

            The second factor for an SDP commitment is whether appellant "has manifested a sexual, personality, or other mental disorder or dysfunction."  Minn. Stat. § 253B.02, subd. 18c(a)(2).  Based on both experts' diagnosis of appellant, the district court concluded that this second factor was met.  Appellant does not challenge this determination.

            The third factor is whether, as a result of appellant's course of misconduct and mental disorders or dysfunctions, he is "likely to engage in acts of harmful sexual conduct."  Minn. Stat. § 253B.02, subd. 18c(a)(3).  Minn. Stat. § 253B.02, subd. 18c(b) does not require proof that appellant has an inability to control his sexual impulses.  A  recent Minnesota Supreme Court decision has clarified that the SDP Act applies to those "who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them 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).

            Appellant challenges the determination that he is highly likely to be dangerous in the future.  In predicting future dangerousness for an SDP commitment, the district court should apply a multi-factor analysis.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), 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).  These factors include the person's demographic characteristics, history of violent behavior, base-rate statistics, sources of stress in the environment, similarity of present or future context to that in which the person was violent in the past, and the record of the person's sex-offender treatment.  Linehan, 518 N.W.2d at 614.

            Appellant argues that the evidence does not support the district court's finding that he lacked adequate control over his sexual impulses so as to warrant commitment as an SDP.  Both experts considered the Linehan factors and concluded that appellant is highly likely to engage in acts of harmful sexual conduct in the future.  Both experts characterized appellant as an incompletely treated or untreated sex offender who has continued to offend after treatment. 

            Appellant further argues that base-rate statistics and his attendance at sex-offender treatment programs show he is not dangerous.  Both experts considered a variety of actuarial and structured clinical judgment tools, including the MnSost-R, Static-99, and the Sexual Violence Risk (SVR)-20, which, when taken together, show that appellant has a high risk of reoffense.  We defer to the district court's evaluation of the experts' opinions.  Knops, 536 N.W.2d at 620. 

            Next, appellant challenges the findings regarding the results of his sex-offender treatment programs.  But Marshall and Meyers testified that appellant is an incompletely treated sex offender, noting that he reoffended after treatment and that he failed to learn and understand the consequences of his actions.  And both experts testified that appellant did not have a credible plan to avoid reoffending.

            In summary, the district court rejected appellant's arguments and concluded that under the Linehan factors, appellant posed a high risk to sexually reoffend.  These findings of the district court are supported by clear and convincing evidence.

II.

            Appellant argues that the district court's determination that he was a sexual psychopathic personality is not supported by clear and convincing evidence.

            An SPP is defined as the following:

                        [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) (emphasis added).  Both experts discussed the factors relevant to this issue which are set forth in In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).  The Blodgett factors consider the nature and frequency of sexual assaults, the degree of violence involved, the relationship or lack of relationship between appellant and the victims, appellant's attitude and mood, appellant's medical and family history, and the result of psychological testing and evaluation.  Both experts concluded that appellant satisfied the Blodgett factors for SPP commitment.

            Appellant argues that he has not exhibited recent acts of sexual impulsivity or attempted to conceal sexual misconduct.    But appellant was convicted of felony stalking in 2002.  Appellant acknowledges that following his release from prison in 2004, a co- employee reported that he touched her inappropriately, which he denied.  Two months later, a 15-year-old girl reported that he initiated physical contact with her.  Although appellant acknowledged the contact, he denied her version of events.  As a result of the incident, he was discharged from treatment and his supervised release from prison was revoked.  Thus, appellant both committed recent acts demonstrating sexual impulsivity and denied them, and his attempts to distinguish Linehan, 594 N.W.2d at 876-78, fail.

            Appellant argues that his behavior did not show that he is dangerous to others, relying on the cases of In re Rickmyer, 519 N.W.2d 188, 189 (Minn. 1994) (holding that acts of spanking and fondling young boys did not meet dangerousness requirements necessary for commitment as psychopathic personality); and In re Robb, 622 N.W.2d 564, 572 (Minn. App. 2001) (holding that sexual misconduct toward adolescent boys, including fondling, fellatio, and masturbation, did not inflict type of harm contemplated by SPP statute), review denied (Minn. Apr. 17, 2001). 

            But the district court found that appellant's offenses "have involved penetration and he held victim A.J.J. down during the sexual assault."  Appellant's methods were enough to "accomplish his will" on these vulnerable victims, including forced sexual intercourse.  See In re Preston, 629 N.W.2d 104, 113 (Minn. App. 2001) (holding that "[i]t would be absurd to hold that because less force was needed to subdue an extremely young victim, the assault was non-violent").  Both experts testified that appellant's assaults would likely cause physical and emotional damage to the victims.  A.J.J., whom appellant sexually assaulted in 1993 when she was 18 years old, testified that since the assault, she continues to have nightmares about the attack and continues to need counseling. 

            Appellant also argues that Meyers did not recommend SPP commitment because he did not find that appellant was a psychopath as measured by the Hare Psychopathy Checklist Revised.  But Meyer's ultimate conclusion was that appellant met all the statutory requirements for an SPP commitment.  The assessment of a person's dangerousness is "complex and contested."  Linehan, 557 N.W.2d at 189.  Use of tools such as the Hare evaluation is but one of a number of factors to be considered in making this determination.  See id. (noting that "[s]tatistical evidence of recidivism is only one of the six factors").  On this record, the determination that appellant meets the standards for commitment as an SPP is supported by clear and convincing evidence and the determination was proper as a matter of law.

III.

            Next, appellant challenges the district court's initial commitment decision because the findings of fact, conclusions of law, and order for initial commitment were drafted "in near totality" by respondent's counsel and were attached to respondent's counsel's final memorandum of law to the court.  "[T]he 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).  Verbatim adoption may, however, raise "the question of whether the trial court independently evaluated each party's testimony and evidence."  Id.  We review the district court decision to determine "if the record supports the findings and shows the trial court conscientiously considered all the issues."  Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn. App. 1987), review denied (Minn. May 5, 1988).

            A review of the proposed findings shows that the district court reviewed them and revised some of them.  Further, as appellant concedes, the adoption of the proposed findings is not in itself reversible error.  Instead, findings will be reversed only if clearly erroneous.  Bersie, 417 N.W.2d at 290.  The findings reviewed on this appeal were supported by the record.  Appellant has not shown any error due to the district court's adoption of the proposed findings as modified by the court.

IV.

            Finally, appellant contends that his indeterminate commitment to the Minnesota Sex Offender Program as an SPP and SDP violates the constitutional prohibitions against double jeopardy found in the U.S. Const. amend. V, the prohibition against ex post facto laws, based on the U.S. Const. art. I, § 10, and the right to equal protection set forth in the U.S. Const. amend. XIV, § 1.  This is based on his claim that no committed person has been released from the program for the last ten years, making his commitment more like a second incarceration.

            Appellant did not present this issue to the district court; he did not raise constitutional issues there and he did not present any evidence regarding the treatment program.  Because these issues were not presented to or considered by the district court, they are not properly before this court.  Thiele v. Stich, 425 N.W. 580, 582 (Minn. 1988).

            But the supreme court has rejected the argument that the SPP or SDP statutes violate the prohibitions against double jeopardy.  Linehan, 557 N.W.2d at 188-89 (SDP); Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn. 1995) (psychopathic personality commitment).  The court has also ruled that the SDP law does not violate the prohibition against ex post facto laws.  Linehan, 557 N.W.2d at 188-89.  For the same reasons, the SPP law does not violate the prohibition against ex post facto laws.  See id. (relying on holding in Call, a psychopathic-personality-commitment case, to conclude SDP law did not violate ex post facto law).  Finally, the court has held that neither the SPP statute nor the SDP statute violates equal protection.  Blodgett, 510 N.W.2d at 916-17 (SPP); Linehan, 557 N.W.2d at 186-87 (SDP).

            Affirmed.