In the Matter of the Civil Commitment of:  Joseph Jose Thompson.

In the Matter of the Civil Commitment of:  Joseph Jose Thompson. A07-998, Court of Appeals Unpublished Decision, October 16, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-998

 

 

In the Matter of the Civil Commitment of:  Joseph Jose Thompson

 

 

Filed October 16, 2007

Affirmed

Toussaint, Chief Judge

 

Faribault County District Court

File No. 22-PR-06-95

 

 

Charles K. Frundt, Frundt & Johnson, Ltd., 117 West Fifth Street, Post Office Box 95, Blue Earth, MN 56013 (for appellant Joseph Thompson)

 

Lori Swanson, Attorney General, Noah A. Cashman, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Brian D. Roverud, Faribault County Attorney, 412 North Main, Post Office Box 5, Blue Earth, MN 56013 (for respondent State of Minnesota)

 

 

            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Joseph Jose Thompson challenges his commitment to the Minnesota Sex Offender Program (MSOP) on the ground that it is not the least restrictive alternative.  Because the district court's determination that the MSOP is the least restrictive alternative is not clearly erroneous, we affirm. 

D E C I S I O N

            After appellant assaulted several girls between the ages of 12 and 14, a petition was filed to commit him as a sexually dangerous person (SDP) and as a sexual psychopathic personality (SPP).  He was committed to MSOP following trial and, after a review hearing, an order was filed for his indeterminate commitment to MSOP as the least restrictive alternative.  He argues that commitment to the Minnesota Security Hospital (MSH) would be a less restrictive alternative.

            This court reviews a district court's determination of the least restrictive alternative under a clearly erroneous standard.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).   To prevail, appellant must establish by clear and convincing evidence that the Minnesota Security Hospital is a less restrictive treatment program available and consistent with his treatment needs and requirements of public safety.  See Minn. Stat. § 253B.185, subd. 1 (2006) ("The Court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient's treatment needs and requirements of public safety.").  Appellant cannot meet this burden. 

            Two court-appointed psychologists examined him.  The first testified that appellant needs "a very organized program that will address his issues of sex offending, help him to identify his cycle of re-offending, help him identify behaviors that lead to the offending, helping him develop a relapse prevention plan and work with him in transitioning."  When asked where appellant could receive such treatment, the psychologist said, "At the Minnesota Sex Offender Program [MSOP]" and added that she did not believe any less restrictive programs were available for appellant.   She specifically said that the program at MSH would not be appropriate because "It's not a program that deals with sex offenders and [appellant] would have to be diagnosed with a major mental illness which he does not have." 

            The second psychologist testified that "the only option available to [appellant] would be the Sex Offender Treatment Program at Moose Lake" and said he knew of no less restrictive alternative appropriate for appellant.  Having heard two experts testify that no less-restrictive alternative, and specifically not MSH, would be appropriate for appellant, the district court did not err in committing him to MSOP rather than to MSH. 

            Appellant claims that the second psychologist's testimony "established by clear and convincing evidence that a less restrictive treatment program is available," namely the program at MSH.  But appellant mischaracterizes the expert's testimony.  When the psychologist was asked if appellant should address his antisocial personality disorder first so he could be successful at sex offender treatment, he answered,  "That would be part of what the sex offender treatment program would address is his personality disorder and how to get along with people, how to interact with people."  The testimony does not establish that MSH is a less-restrictive appropriate treatment for appellant.

            Appellant also argues that his commitment to MSOP violates substantive due process because he will not be able to succeed at the program. [1]  But  In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994), addresses and rejects this argument.

It is next argued that a psychopathic personality condition is untreatable, and, therefore, confinement is equivalent to life-long preventative detention.  But it is not clear that treatment for the psychopathic personality never works.  It also seems somewhat incongruous that a sexual offender should be able to prove he is untreatable by refusing treatment.

 

            But even when treatment is problematic, and it often is, the state's interest in the safety of others is no less legitimate and compelling.  So long as civil commitment is programmed to provide treatment and periodic review, due process is provided.

 

(Citations omitted.)  Appellant's commitment to MSOP does not violate due process, regardless of the probability of his success there.

            Affirmed.

[1] As a threshold matter, this issue is not properly before the panel because it was not presented to the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We nevertheless address it in the interests of completeness.