In the Matter of the Civil Commitment of:  Ben Braylock.

In the Matter of the Civil Commitment of:  Ben Braylock. A06-1053, Court of Appeals Unpublished, November 28, 2006.

This opinion will be unpublished and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

A06-1053

 

 

In the Matter of the Civil Commitment of:  Ben Braylock

 

 

Filed November 28, 2006

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 27-MH-PR-05-554

 

 

Gregory R. Solum, 3300 Edinborough Lane, Suite 550, Edina, MN 55435 (for appellant Braylock)

 

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)

 

 

            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Ben Braylock challenges his indeterminate commitment as a sexually dangerous person (SDP), arguing that (a) the evidence was insufficient to meet the statutory requirements for commitment as an SDP; (b) the SDP statute is unconstitutional because it is void for vagueness; and (c) he presented sufficient evidence of an available less-restrictive alternative to indeterminate commitment.  Because we observe no error in the trial court's determinations on the statutory elements or on the constitutionality of the statute, we affirm.

FACTS

Appellant's reported criminal history began in January 1968, when he was 37.  He was convicted of burglary and sentenced to five years in prison.   He was paroled in the same year and released from supervision three years later.  

Appellant disclosed that he unsuccessfully attempted to kill his first wife, whom he divorced in 1970, at age 39.  He had heard that his wife had given money to her brother, so he purchased a gun to kill them both.  Appellant reported that his sister prevented the shooting by taking the gun. 

When appellant was 49 years old, he was indicted for the first-degree murder of his second wife.  The couple had previously been separated, allegedly after appellant had attempted to molest his wife's teen-aged daughter on a number of occasions.  The murder occurred after appellant pulled in front of the car in which his wife and a male were driving.  Numerous eyewitnesses reported that the male driver ran away, but appellant caught his wife, knocked her down, and stabbed her.   When she attempted to flee, he caught her, stabbed her, and, when she crawled away, he stabbed her in the back.   Appellant claimed it was an accident but eventually pleaded guilty to second-degree murder and was sentenced to 116 months. 

Appellant was released seven years later, in January 1988.  Six months after his release, when appellant was 56, he was charged with first-degree criminal sexual conduct involving a 13-year-old female.  The victim had been hired to clean appellant's apartment.  When she returned to get paid, appellant pulled off her clothes and forced vaginal intercourse.  He then offered her $20 per week to have sex with him.  Appellant pleaded guilty to third-degree criminal sexual conduct and was sentenced to 38 months of confinement. 

Appellant was released two years later in 1990 and entered a half-way house.  Within two weeks of his release, he committed first-degree criminal sexual conduct involving his 14-year-old granddaughter.   Both the victim's vagina and anus tested positive for appellant's sperm.   He denied having assaulted his granddaughter, called her a liar, and said she was just jealous.  He was tried, found guilty of first-degree criminal sexual conduct, and sentenced to 268 months of confinement as a patterned sex offender. 

When appellant was 73 years old, 15 years after the assault on his granddaughter, a petition for commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP) was filed.  The court first appointed examiner Dr. Rosemary  S. Linderman and then examiner Dr. James H. Gilbertson.   Dr. Linderman concluded that appellant met the elements of an SDP and that the Minnesota Sex Offender Treatment Program (MSOTP) was appropriate for him.  Dr. Gilbertson concluded that appellant met all but the highly-likely-to-reoffend element of an SDP.  Dr. Gilbertson testified that a structured placement in the community that removes the opportunity to reoffend would fit appellant's needs and that he would support the program in human sexuality at the University of Minnesota.  

After the initial warrant of commitment as SDP, forensic services prepared an updated report.  Noting that appellant continued to deny any sex offenses, the reviewer agreed with Dr. Linderman's evaluation that appellant was likely to engage in future acts of harmful sexual conduct and that appellant was in need of MSOTP placement and treatment "to begin the process of accepting responsibility and changing his cognitive distortions regarding his offending behavior." 

At the review hearing, Dr. Gilbertson testified that appellant had stated that day "that he was going to take full responsibility for what had happened."   Appellant had told Dr. Gilbertson that he had penetrated his granddaughter vaginally and "probably" anally and that he thought it was a mistake.    Based on appellant's new statements, his counsel asked that, as an alternative to dismissing the petition, the court "stay its order for commitment and allow us to find a less restrictive alternative."  In its order for indeterminate commitment, the trial court found that appellant's progress in taking responsibility for his acts did not have "a significant effect on the findings" leading to the initial commitment.

D E C I S I O N

I.

The district court may civilly commit a person under the Minnesota Commitment and Treatment Act if the court finds by clear and convincing evidence the need for commitment. Minn. Stat. § 253B.18, subd. 1(a) (2004). We defer to the district court's factual findings, including credibility determinations and conflicting-evidence resolutions, unless they are clearly erroneous. Minn. R. Civ. P. 52.01; see In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). "We review de novo whether there is clear and convincing evidence in the record to support the district court's conclusion that appellant meets the standards for commitment."  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003). [1]

A "sexually dangerous person" means 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).  Subdivision 7a defines harmful sexual conduct as "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 degrees create a substantial likelihood that the victim will suffer serious physical or emotional harm. Minn. Stat. § 253B.02, subd. 7a(a), (b) (2004).

For commitment as an SDP, the statute states that "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 supreme court has clarified that the SDP Act allows civil commitment of sexually dangerous persons 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 reoffend.   Linehan (Linehan IV ), 594 N.W.2d 867, 876 (Minn. 1999).

The trial court concluded, as did the two court-appointed examiners, that the first two elements were satisfied.  Appellant's two criminal sexual conduct convictions independently constituted harmful sexual conduct and, having occurred within two years of each other, constituted a sequence or course.  See In re Stone, 711 N.W.2d 831, 839 (Minn. App. 2006), review denied (Minn. June 20, 2006); In re Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).    Both court-appointed examiners diagnosed appellant with a disorder:  Dr. Linderman concluded appellant had paraphilia, not otherwise specified, and noted that "he may be seen as meeting the designation for pedophilia," and Dr. Gilbertson diagnosed appellant with Axis Isexual abuse of adolescentsand Axis IIpersonality disorder not otherwise specified with anti-social and narcissistic traits.  Both examiners tied their diagnoses to appellant's inability to adequately control his sexual impulses and behaviors.  Thus, the court had clear and convincing evidence that appellant met the first two factors.

Appellant's primary contention is that reoffense is not "highly likely."  A high likelihood of reoffense is determined by consideration of the following factors:  (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 treatment programs.  In re Linehan (Linehan I), 518 N.W.2d 609, 614 (Minn. 1994).

The trial court accepted Dr. Linderman's evaluation of the Linehan factors and her clinical judgment that appellant was highly likely to reoffend. The court specifically rejected Dr. Gilbertson's conclusion that this element was not satisfied.

The trial court's decision was based in part on its resolution of the conflicting expert opinions on the use of actuarial risk instruments versus clinical judgment to assess recidivism.  The court noted that both examiners questioned the value of actuarial risk instruments as applied to appellant, who did not fall within the "norm" used to develop the statistics.  The trial court accepted the possibility that actuarial tests might provide a more reliable basis than clinical judgment but specifically found that, in appellant's case, age should not act as a mitigating factor, "limited reliance" should be placed on actuarial tools and statistics, and "strong reliance" should be placed on the clinical judgment of the evaluator.   

The court gave more weight to Dr. Linderman's opinion regarding appellant's likelihood of reoffending, which was also based on appellant's 1) lack of treatment; 2) absence of identifiable tools to prevent reoffending; 3) brief time between the two convictions; and 4) denial of sexual assaults.  It is undisputed that appellant declined sex-offender treatment and, until the day of the review hearing, had denied the criminal offenses.   The trial court's decision was based on all of the Linehan factors with specific findings regarding its decision to deemphasize the weight of the actuarial tools.  In light of the deference this court affords the trial court's ability to weigh opinion, particularly expert opinion, we conclude there was clear and convincing evidence supporting the trial court's decision that all three elements were established.

II.

"Evaluating a statute's constitutionality is a question of law."  Hamilton v. Comm'r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). 

Appellant argues that the trial court erred when it denied his motion to dismiss the petition because the SDP commitment statute is void for vagueness.  He argues that the "lack of adequate control" factor is not a cognizable standard and is so vague that it "can mean virtually anything a party or court intends it to mean." [2]

This court has previously determined that the "adequate control" factor is tied to the mental disorder and thereby is adequately clear.  In re Martinelli, 649 N.W.2d 886, 890 (Minn. App. 2002), review denied (Minn. Oct. 29, 2002); see also Ramey, 648 N.W.2d at 265-66 (determining that lack of adequate control standard was not vague as applied to Ramey).   Here, the trial court made findings based on clear and convincing evidence that appellant's lack of control was tied to his mental disorder, which distinguishes appellant's commitment from typical recidivist cases.  Therefore, appellant's void-for-vagueness argument fails.

Appellant also argues that the Minnesota Supreme Court's Linehan IV opinion violated the rules of statutory construction when it "added the ‘adequate control' and ‘highly likely' language to the statutory definition" of sexually dangerous person.  But this court is not in a position to overturn established supreme court precedent.  State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998).

III.

A district court's determination that a person is sexually dangerous, 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 of a treatment program unless its findings are clearly erroneous.  Thulin, 660 N.W.2d at 144.

The trial court concluded that clear and convincing evidence showed that appellant must be confined in a secure setting and that MSOTP can meet those security needs.  MSOTP also provides the most intensive treatment, and there is no other program that has both accepted appellant and can provide appropriate treatment to meet appellant's needs and the need for public safety.   After the review hearing, the court specifically concluded that there was insufficient evidence that an outpatient program would be appropriate for appellant in his current situation.[3]    

Appellant argues that the University of Minnesota Program on Human Sexuality was a less-restrictive treatment option.   He cites his additional interview with Dr. Gilbertson on the day of the review hearing at which appellant admitted the sex offense against his granddaughter and argues that this change warrants dismissal of the petition.

Dr. Gilbertson testified that "if" there was a proper residential placement, it "might be a doable and workable thing consistent with public safety."  The review-hearing testimony on a less-restrictive program[4] was no more specific than the testimony offered at the trial.   It did not establish that the University of Minnesota program was available to appellant.  Moreover, Dr. Gilbertson's recommendation was consistent with his opinion that appellant presented only a "moderate" risk of reoffending, but inconsistent with the trial court's conclusion that appellant presented a "high" risk of reoffending.  Therefore, appellant failed to establish an appropriate and available less-restrictive program. 

Appellant also contends that the court failed to consider the evidence of a significant change in circumstances at the review hearing.  The court specifically noted appellant's new-found accountability and determined that the evidence would not affect its initial findings.  Thus, the court considered the evidence but concluded that it did not constitute a change affecting its SDP determination.

Affirmed.

[1] Appellant argues that the clear-and-convincing burden of proof was not met because the evidence presented at trial was not "unequivocal and uncontradicted, and intrinsically probable and credible," quoting Deli v. Univ. of Minn, 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).  Deli, however, does not require that the state present undisputed evidence of each statutory element.  Id.at 54 (stating evidence was "relatively undisputed").  "Clear and convincing" evidence 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).   Clear and convincing evidence is demonstrated when the truth of the facts sought to be admitted is "highly probable."  Id.  A trial court must still resolve inconsistencies in testimony by weighing the credibility of the testimony and evidence presented.  

[2] Respondent correctly states that appellant attacked only the constitutionality of the "adequate control" element before the trial court.  Appellant now argues that the rebuttable presumption of substantial harm, the "future dangerousness," and "high likelihood of future harm" elements are also too vague.   This court will generally not consider matters not argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Because these additional issues were not impliedly raised in the trial court and were not considered or decided by the trial court, appellant waived this court's consideration of them as well.

[3] The transcript indicates that the trial court specifically asked appellant's counsel if he was requesting a continuance to call a witness regarding the University of Minnesota program, but none was requested.

[4] Dr. Gilbertson called appellant's admission regarding the assault on his granddaughter a "baby step."   Although the baby step might have opened the door to treatment, "it might close again, could close again."  Gilbertson thought that it made appellant more amenable to treatment:  "it positions himself for some consideration of treatment, that if it were available, may not need the full secure treatment of the MSOP program.  If there were a residential treatment program available to him, and he continues on wishing to explore and look at this issue, he is in a much better position of treatment now than he ever has been."