This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Civil Commitment of:
John Gerald Iverson
Filed February 4, 2013
Washington County District Court
File No. 82-PR-09-5139
Gregory J. Schmidt, Bayport, Minnesota (for appellant)
Peter J. Orput, Washington County Attorney, James C. Zuleger, Assistant County
Attorney, Stillwater, Minnesota (for respondent)
Considered and decided by Chutich, Presiding Judge; Hudson, Judge; and
On appeal from his indeterminate civil commitment as a sexually dangerous
person, appellant John Gerald Iverson argues that (1) the state’s experts applied an
incorrect legal standard in determining his likelihood of sexual reoffense and (2) the
evidence was insufficient to establish a high likelihood of sexual reoffense. Because
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
clear and convincing evidence supports Iverson’s commitment as a sexually dangerous
person, we affirm.
Iverson was born on September 17, 1960, and was 49 years old during the initial
commitment proceedings. In 2000 and 2001, Iverson sexually assaulted his two stepdaughters, ages 9 and 11, and his biological son, age 10. Washington County charged
him with six counts of first-degree criminal sexual conduct and three counts of seconddegree criminal sexual conduct. In June 2001, Iverson pleaded guilty to one count of
first-degree criminal sexual conduct and one count of attempted first-degree criminal
sexual conduct. The district court sentenced him to 162 months in prison with an
anticipated supervised-release date of February 22, 2010.
In 2009, Washington County petitioned the district court to civilly commit Iverson
as a sexually dangerous person and as a sexual psychopathic personality. In February
2010, Iverson waived his right to a contested hearing on the state’s petition for
commitment as a sexually dangerous person. Iverson stipulated that he was a sexually
dangerous person as defined in Minn. Stat. § 253B.02, subd. 18c (2008), and the district
court committed him to a secure treatment facility. In exchange for Iverson’s waiver and
stipulation, the state dismissed its petition seeking Iverson’s commitment as a sexual
psychopathic personality under Minn. Stat. § 253B.02, subd. 18b (2008).
The parties further agreed that Iverson’s review hearing, as required by Minn. Stat.
§ 253B.18, subd. 2 (2008), would be continued for approximately 18 months. The parties
stipulated that the scope of the review hearing would be limited to “(1) whether [the
county] established by clear and convincing evidence that . . . Iverson continued to meet
the statutory criteria for judicial commitment as a [sexually dangerous person] . . . ; and
(2) whether . . . Iverson established by clear and convincing evidence that there is a less
restrictive treatment program available, as opposed to indeterminate commitment to a
secure treatment facility.” During Iverson’s initial commitment, the district court ordered
the treatment facility to file a written report to the district court every six months
addressing Iverson’s treatment progress and whether his condition changed.
Iverson began general treatment but because he had not yet been indeterminately
committed, he was unable to begin the sex-offender portion of the treatment program.
Dr. Gary Hertog and Dr. Angela van der Walt interviewed and assessed Iverson and
submitted semi-annual reports as ordered by the district court. In their reports, both
doctors opined that Iverson continued to satisfy the statutory requirements for
While Iverson had a fair prognosis to be successful in treatment,
Dr. Hertog opined that he “continues to require long-term and comprehensive sex
offender specific treatment.” Dr. van der Walt opined that Iverson’s “risk for future
dangerous behaviors directed at others remains a significant concern” and recommended
Iverson’s continued commitment.
The district court held a two-day review hearing in April 2012.
psychologists testified at the hearing: Dr. Hertog, Dr. Harry Hoberman, Dr. Thomas
Alberg, and Dr. Scott Guldseth. The district court also received reports from the four
psychologists into evidence. Iverson testified, as well as two other witnesses: Jason
Terwey, a corrections agent with the Minnesota Department of Corrections, and Tracy
Jenson, a supervisor for Washington County Community Corrections.
At the hearing, Dr. Hertog testified consistently with his reports that Iverson
continued to meet the statutory criteria for commitment. Dr. Hertog specifically opined
that Iverson had a high risk of sexually reoffending, one of the necessary requirements
for commitment as a sexually dangerous person.
Dr. Hoberman, the court’s first appointed examiner, opined that Iverson had a high
likelihood of future harm based on the factors developed in In re Linehan, 518 N.W.2d
609, 614 (Minn. 1994). He further opined that, according to one actuarial assessment,
Iverson had an 80% recidivism rate over ten years.
Based on his assessment,
Dr. Hoberman concluded that nothing significant had changed since Iverson’s initial
commitment and that he met all of the criteria for commitment as a sexually dangerous
Dr. Alberg, Iverson’s requested examiner, also testified at the hearing. Dr. Alberg
opined that Iverson engaged in a harmful course of sexual conduct and that he manifested
a sexual or personality disorder. But Dr. Alberg testified that Iverson did not satisfy the
third criterion for commitment because he was not highly likely to commit future sexual
harm. Dr. Alberg further opined that he did not believe that Iverson’s risk of sexually
reoffending had diminished since his initial commitment, but explained that he would not
have recommended committing Iverson in 2010.
Dr. Guldseth, a psychologist with Project Pathfinders, Inc., also testified at trial.
Dr. Guldseth examined Iverson to determine whether he could participate in Project
Pathfinder’s outpatient sex offender treatment program. Dr. Guldseth opined that Iverson
could be a potential candidate for the program, but only if he was not committed.
Following the review hearing, the district court issued a written order concluding
that the state established by clear and convincing evidence that Iverson continued to meet
the statutory criteria for commitment as a sexually dangerous person. The district court
further concluded that Iverson failed to demonstrate that a less-restrictive treatment
alternative existed. Accordingly, the district court indeterminately committed Iverson as
a sexually dangerous person. This appeal followed.
We review the district court’s findings made at a review hearing for clear error and
determine de novo if the findings support the district court’s conclusion as to the need for
indeterminate commitment. See In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003)
(discussing review-hearing standards in a mental-health-commitment case).
review hearing, the district court is limited to considering “(1) the statutorily required
treatment report; (2) evidence of changes in the patient’s condition since the initial
commitment hearing; and (3) such other evidence as in the district court’s discretion
enhances its assessment of whether the patient continues to meet statutory criteria for
In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996), vacated and
remanded on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997). On appeal, we give
deference to the district court’s credibility determinations, and we review the record “in a
light most favorable to the district court’s findings.” In re Commitment of Ramey, 648
N.W.2d 260, 269 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).
On appeal, Iverson contends that the district court erred by finding that clear and
convincing evidence supports his commitment as a sexually dangerous person.
commit someone as a sexually dangerous person, the state must show by clear and
convincing evidence that the person: “(1) has engaged in a course of harmful sexual
conduct . . . ; (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 . . . .” Minn. Stat. § 253B.02, subd. 18c(a). Specifically, Iverson makes two
challenges to the sufficiency of the evidence on the third statutory criterion: (1) Dr.
Hertog and Dr. Hoberman used an incorrect standard when determining whether Iverson
was highly likely to reoffend, and (2) the evidence is insufficient to establish that he is
highly likely to reoffend.
First, Iverson contends that Dr. Hertog and Dr. Hoberman “applied the wrong
legal standard in determining risk of future harm.” Minnesota law defines a sexually
dangerous person as one who is “likely” to engage in harmful sexual conduct as a result
of a disorder or dysfunction. Minn. Stat. § 253B.02, subd. 18c(a).
Whether someone is likely to reoffend is a complex inquiry. See 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) (stating that “dangerousness prediction methodology is
complex and contested”). The Minnesota Supreme Court has interpreted the third factor
to mean that it must be “highly likely” that the person will engage in future harmful
sexual conduct. Id. at 189–90. Dr. Hertog and Dr. Hoberman concluded that Iverson was
highly likely to reoffend based on numerous psychological and actuarial test results.
Dr. Hertog described his understanding of this criterion as “[b]asically a better than even
chance.” Dr. Hoberman testified that “highly likely” meant “that it’s higher than more
likely than not but there’s no specific number attached to it.” The doctors’ articulations
of the standard are in line with the supreme court’s interpretation of the third factor,
especially when considered with their testimony and the results of the actuarial measures.
Ultimately, however, whether someone is highly likely to reoffend is a question
for the district court, not the experts, and is based on the district court’s “assessment of
expert testimony.” Id. at 190. “The district court acts within its discretion in determining
the credibility of expert testimony, and we defer to those assessments.”
Commitment of Stone, 711 N.W.2d 831, 839 (Minn. App. 2006), review denied (Minn.
June 20, 2006).
Here, the district court found that Iverson continues to be a sexually dangerous
person and is highly likely to engage in harmful sexual conduct. In so finding, the district
court credited the testimony of Dr. Hoberman because his “testimony and reports
evidence a clear understanding by [Dr. Hoberman] of the current legal requirements for
commitment in a [sexually dangerous person] case and a proper application of that
standard to the evidence here.” Given the district court’s broad discretion in evaluating
expert testimony, it was entitled to rely solely upon the testimony of Dr. Hoberman if it
found him to be most credible. In addition, although the district court did not explicitly
find Dr. Hertog credible, it did so implicitly by following the recommendations of his
report and testimony. Accordingly, we find Iverson’s argument regarding the credibility
of Dr. Hoberman and Dr. Hertog unavailing.
Sufficiency of the Evidence
Iverson next argues that the evidence is insufficient to demonstrate that he satisfies
the third criterion for commitment because a majority of experts determined that he was
not highly likely to reoffend. Again, because we must defer to the district court’s
credibility determinations and its opportunity to weigh the evidence, we find this
contention to be without merit. In re Commitment of Navratil, 799 N.W.2d 643, 648
(Minn. App. 2011), review denied (Minn. Aug. 24, 2011); Ramey, 648 N.W.2d at 269.
Iverson relies on reports by three psychologists, one dated 2001 and two from
2009, which all found Iverson to be a low to moderate risk for sexually reoffending.
Because these reports were completed before Iverson’s initial commitment, the district
court found them irrelevant to the issue of whether Iverson continued to meet the sexually
dangerous person criteria. See Linehan, 557 N.W.2d at 171 (stating that evidence at a
review hearing is limited and includes “evidence of changes in the patient’s condition
since the initial commitment hearing”).
Iverson also notes that Dr. Guldseth and Dr. Alberg testified at the review hearing
that Iverson had only a moderate risk of reoffending. Dr. Guldseth opined that Iverson
had a reduced risk of reoffending, but did not give an opinion as to whether this risk had
diminished since Iverson’s commitment in 2010. Dr. Alberg also testified that Iverson
was at “moderate risk to reoffend.”
The district court specifically did not credit
Dr. Alberg’s testimony, however, because Dr. Alberg’s recommendation was not based
on any change in Iverson, but rather was based on his disagreement with Iverson’s initial
While several of the experts thought that Iverson was not highly likely to reoffend,
other experts opined that Iverson met all of the criteria for commitment as a sexually
Dr. Hoberman testified about several actuarial measures that he
administered and also discussed the Linehan factors identified by the supreme court. See
Linehan, 518 N.W.2d at 614 (identifying six factors to consider in determining whether
the “highly likely” standard is met). Based on these assessments, Dr. Hoberman opined
that Iverson was highly likely to reoffend. Dr. Hertog and Dr. Van der Walt both opined
in their reports to the court that Iverson was highly likely to sexually reoffend and
recommended Iverson’s continued commitment. Dr. Hertog also testified at the review
hearing consistently with his reports. Specifically, Dr. Hertog opined that, based on
actuarial instruments, Iverson was a high risk for sexual offense.
Because we must defer to the district court’s decision to credit the opinions of
Dr. Hoberman and Dr. Hertog and because evidence in the record supports the district
court’s factual findings, they are not clearly erroneous. These findings amply support the
district court’s determination that Iverson’s condition has not changed since his initial
commitment and that he presently meets the criteria for indefinite commitment.