In the Matter of the Civil Commitment of: Nicholas Harold Luhmann.

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In the Matter of the Civil Commitment of: Nicholas Harold Luhmann. A07-912, Court of Appeals Unpublished, August 28, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-912

 

In the Matter of the Civil Commitment of:
Nicholas Harold Luhmann.

 

Filed August 28, 2007

Affirmed

Stoneburner, Judge

 

Wright County District Court

File No. 86P605004530

 

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent);

 

Deborah M. Gilman, 590 Holly Avenue, St. Paul, MN 55102 (for appellant).

 

            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges the sufficiency of the evidence to support indeterminate commitment as a sexually dangerous person and a sexual psychopathic personality.  Because the evidence is sufficient, we affirm.[1]


FACTS

 

            Appellant Nicholas Harold Luhmann has a long history of sexual offenses, many committed while he was in sexual-offender treatment or incarcerated for sexual offenses.  He completed three sexual-offender treatment programs, but continued to reoffend, including reoffenses against his brother, whom he began to sexually abuse when Luhmann was ten years old and his brother was four years old.  His victims have included both children and adults. 

            In December 2005, Wright County petitioned for Luhmann's civil commitment as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP).  The district court appointed Dr. Mary Kenning, Ph.D., L.P., to serve as the first court-appointed examiner.  At Luhmann's request, the district court appointed Dr. Peter E. Meyers, Psy.D, L.P., to serve as the second court-appointed examiner.  Both doctors testified at trial, and their reports were admitted into evidence.  The doctors agreed that Luhmann meets the SDP-commitment criteria but does not meet the SPP-commitment criteria.  Dr. Kenning concluded that Luhmann does not meet the SPP-commitment criteria because he "does not utterly lack the power to control his sexual impulses," and Dr. Meyers concluded that Luhmann does not meet the SPP-commitment criteria because he does not meet the clinical criteria to be diagnosed as a "psychopath."

            At the commitment trial, Luhmann candidly testified about his sex-offense history, and Drs. Kenning and Meyers testified consistent with the information in their reports.  The district court made exhaustive, detailed findings about Luhmann's history of harmful sexual conduct, his criminal conduct and antisocial behavior, and his treatment and confinement history.  The district court also made extensive findings about the testimony and opinions of the experts, finding them credible on all but the legal conclusion that Luhmann does not meet the SPP-commitment criteria.  The district court concluded that the record contains clear and convincing evidence that Luhmann meets the commitment criteria for commitment both as an SDP and an SPP and that Luhmann failed to prove that there is a less-restrictive alternative to commitment to the Minnesota Sex Offender Program (MSOP) at St. Peter or Moose Lake.  The district court issued its interim order for commitment.  Following the statutory 60-day review hearing, the district court ordered Luhmann's indeterminate commitment as an SDP and as an SPP.  This appeal followed.

D E C I S I O N

 

I.          Standard of review

            Appellate 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 on evidence submitted at the hearing.  In re Janckila,657 N.W.2d 899, 902 (Minn. App. 2003).  An appellate court will uphold the district court's findings if they are not clearly erroneous.  See, e.g., In re Joelson,385 N.W.2d 810, 811 (Minn. 1986); In re Preston, 629 N.W.2d 104, 110 (Minn. App. 2001).  "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); Minn. Stat. § 253B.18, subd. 1(a) (2006) (requiring the state to prove the need for commitment by clear and convincing evidence).  "Where the findings of fact rest almost entirely on expert testimony, the trial court's evaluation of credibility is of particular significance."  In re Thulin, 660 N.W.2d at 144 (quotation omitted).

II.        Sufficiency of the evidence

            Luhmann focuses primarily on (1) a dispute between Dr. Kenning and Dr. Meyers about whether he is a pedophile; (2) Dr. Meyers's testimony concerning the inability of psychology to predict which victims will suffer long-term difficulties from trauma; (3) statements in the DSM-IV-TR, concurred in by the experts, that clinical diagnosis is not sufficient to establish mental disability or defect for legal purposes; (4) Luhmann's score of 5 on the Static-99 that put him in the "moderate to high risk" category of recidivism; and (5) the experts' agreement that Luhmann does not meet all of the criteria of the SPP-commitment statute, to argue that the state failed to present clear and convincing evidence to support his commitment as an SDP or as an SPP.

            Specifically, Luhmann argues that (1) if the mental health professionals cannot agree on his diagnosis, the clear and convincing standard has not been met; (2) the Static -99 results establish that the state failed to establish clear and convincing evidence that he is highly likely to reoffend; (3) because of the divergence between the legal and psychological standards, psychologist's opinions cannot be relied on to meet the legal standard of clear and convincing evidence; and (4) having found Dr. Kenning and Dr. Meyers to be qualified as experts in the field of forensic psychology and qualified to render expert opinions in this case, it was "unusual" for the district court to disregard their opinions regarding SPP commitment.  Based on these assertions, supported by excerpts from the testimony, Luhmann contends that he has "compellingly argued that the psychological evidence and actuarial tools are inadequate to deprive [Luhmann] of his liberty under both the SDP and SPP statutes," and his commitment should be reversed.  We disagree.

            a.         SDP criteria

            SDP means a person who: (1) has engaged in a course of harmful sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another; (2) manifested a sexual, personality, or other mental disorder/dysfunction; and (3) as a result, is likely to engage in harmful sexual acts with a substantial likelihood of causing serious physical or emotional harm to another.  Minn. Stat. § 253B.02, subd. 18c (2006).  Caselaw establishes that the lack-of-adequate-control standard in Minnesota is consistent with the holding in Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002), that states must prove that a person subject to civil commitment as a sexually dangerous person has serious difficulty controlling his or her behavior.  In re Ramey, 648 N.W.2d 260, 267 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).  And the Minnesota Supreme Court has held that for purposes of SDP commitment, "likely" means "highly likely."  In re Linehan, 594 N.W.2d 867, 874 (Minn. 1998).

                        1.         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) (2006).  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) (2006).  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 court need not consider only conduct that resulted in a criminal conviction.  Ramey, 648 N.W.2d at 268.  The standard does not require proof of actual harm, but rather that there is a substantial likelihood of creating physical or emotional harm.  Id.at 269.

            Luhmann does not challenge the district court's finding that there is clear and convincing evidence that he has engaged in a course of harmful sexual conduct, and the record fully supports this finding.

                        2.         Sexual, personality, or other mental disorder or dysfunction

            Luhmann strongly emphasizes the fact that Dr. Meyers disagreed with Dr. Kenning's diagnosis of pedophilia, a subpart of the paraphilia diagnosed by Dr. Meyers.  Dr. Kenning focused more on Luhmann's fantasies involving young children while Dr. Meyers opined that Luhmann chose his victims based on opportunism and availability rather than age.  This was the only disagreement between the testifying experts concerning Luhmann's diagnosis.  There is no evidence that this disagreement detracts from the testimony of each expert that Luhmann manifests a sexual, personality, or other mental disorder or dysfunction, whether it is pedophilia or paraphilia, and as a result is likely to engage in acts of harmful sexual conduct.  The record contains clear and convincing evidence that Luhmann meets this factor for commitment as a SDP.

                        3.         Likelihood of engaging in acts of harmful sexual conduct.

            The supreme court has articulated six factors to be used to determine the likelihood of future harmful conduct in a SDP commitment: (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.  In re Linehan (Linehan I), 518 N.W.2d 609, 614 (Minn. 1994).  Both experts reported on and testified about the Linehan factors.  Based on actuarial instruments, structured-clinical-judgment instruments, and individual risk factors, both experts opined that Luhmann is highly likely to engage in acts of harmful sexual conduct in the future and is dangerous to others.  The district court found the experts' opinions credible on this issue.

            Luhmann focuses on his score on one assessment tool used by both experts, the Static-99, on which he scored "5," placing him in a group that had a 33% rate of reconviction over five years, 38% over ten years, and 40% over 15 years.  Based on a journal article,[2] Luhmann asserts that the finder of fact should use a 75% certainty standard in assessing whether the "highly likely" to reoffend standard of the SDP statute has been shown by clear and convincing evidence, and argues Luhmann's score on the Static-99 therefore fails to establish clear and convincing evidence that he is highly likely to reoffend.  We disagree.

            Dr. Kenning testified that the Static-99 uses reconviction as a way to predict recidivism.  Because many reoffenses are not reported, the literature suggests that actual risk to reoffend is up to five times greater than reported by this tool.  Dr. Kenning also testified that on the Sex Offender Risk Appraisal Guide (SORAG), an actuarial formula to predict risk of recidivism that may also underpredict recidivism, Luhmann scored 27, which equates to a 76% probability of sexual reoffense over seven years and 82% over ten years.  Additionally, the finding that Luhmann is highly likely to reoffend is supported by his history of offending, his age, his sex, his socioeconomic status, and the evidence that he continued to reoffend after having "successfully" completed sex-offender treatment programs.  Based on the entire record, we find no merit in Luhmann's argument that the record does not contain clear and convincing evidence that he is highly likely to reoffend.

            b.         SPP criteria

            [SPP] means the 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 impulses and, as a result, is dangerous to other persons.

 

Minn. Stat. § 253B.02, subd. 18b (2006).

                        1.         Emotional instability, impulsive behavior, etc.

            Luhmann does not challenge the district court's finding that the record contains clear and convincing evidence that he meets the first criterion for SPP commitment.  Both experts testified that Luhmann has impulsive behavior, lacks customary standards of good judgment, and fails to appreciate the consequences of personal acts.  Dr. Kenning testified that Luhmann is emotionally unstable.  The record, therefore, supports the district court's finding.

                        2.         Habitual course of misconduct in sexual matters

            Luhmann also does not challenge the district court's finding that clear and convincing evidence in the record supports a finding that he has engaged in a habitual course of misconduct in sexual matters, and our review of the record confirms that the record supports this finding.

                        3.         Utter lack of power to control sexual impulses

            When considering whether an offender has an utter lack of power to control his sexual impulses, the district court may look to the Linehan factors addressed in the context of an SDP analysis.  Linehan I, 518 N.W.2d at 614.  Additional considerations may include: the nature and frequency of sexual assaults; the offender's relationship to the victims; the offender's attitude and mood; the offender's medical and family history; the results of psychological testing and evaluations of the offender, In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994); the offender's refusal of treatment opportunities; and the lack of a relapse-prevention plan.  In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Aug. 30, 1995).  Based on all of these factors, the district court concluded that there is clear and convincing evidence that Luhmann meets this criterion and found that the experts' opinions to the contrary were not credible on this criterion.

            Dr. Kenning found the presence of many of the factors supporting a conclusion that Luhmann utterly lacks power to control his sexual impulses.  But Dr. Kenning opined that because Luhmann understands that he has a problem, that his behavior is wrong, and that he needs treatment, he does not utterly lack the power to control his impulses.  Dr. Kenning testified that Luhmann has trouble applying what he learns in treatment, is not willing to acknowledge the depth of his attraction to children or young adolescents or acknowledge them as victims, and has knowledge of what he needs to do to create healthy relationships but has not yet translated that knowledge into any significant behavioral changes.  Dr. Kenning testified unequivocally that Luhmann is dangerous to the public, despite her opinion that the harm he inflicted on victims other than his brother was not "egregious."  Based on the entire record, we conclude that the district court did not err by rejecting Dr. Kenning's opinion that Luhmann's awareness of his problem and his need for treatment indicates that he has some power to control his impulses because, as acknowledged by Dr. Kenning, this awareness and knowledge has not resulted in any change in Luhmann's behavior.

            Despite finding that all of the necessary factors listed in Minn. Stat. § 253B.02, subd. 18b, were present, Dr. Meyers concluded that Luhmann does not meet the commitment criteria for a sexual psychopathic personality because Luhmann's PCL-R score indicates that, clinically, Luhmann is not a psychopath.  Dr. Meyers testified that for him, "psychopathy is a loaded word" and acknowledged that a person can fit the SPP criteria without being a psychopath, but stated that in this case he would not recommend commitment of Luhmann as a SPP due to the PCL-R score.

            Although Dr. Meyers's testimony illustrates that the word "psychopath" may be used differently in the field of psychology from its use in the SPP-commitment statute, we conclude that based on existing caselaw and the district court's thorough consideration of all of the relevant factors, the district court's conclusion that Luhmann meets this criterion is not clearly erroneous.

            Affirmed.


[1] Appellant also initially asserted on appeal that he proved that a less-restrictive alternative than commitment to the Minnesota Sex Offender Program was available, but in his brief, he concedes that the existence of a less-restrictive alternative was not proved.

[2] Luhmann's brief cites Eric S. Janus and Paul E. Meehl, Assessing the Legal Standard for Predictions of Dangerousness in Sex Offender Commitment Proceedings, 3 Psychol. Pub. Pol'y & Law 33, 41-44 (1997).