In the Matter of the Civil Commitment of: Earll Stephen McMoore, d.o.b. 4/8/1977.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1008

In the Matter of the Civil Commitment of:

Earll Stephen McMoore, d.o.b. 4/8/1977.

Filed October 19, 2004

Affirmed

Toussaint, Chief Judge

Hennepin County District Court

File No. P1-03-60024

Lisbeth J. Nudell, 3228 Holmes Avenue South, Minneapolis, MN  55408 (for appellant)

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

            Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On appeal from an indeterminate commitment as a sexual psychopathic personality and a sexually dangerous person, appellant argues that his sexual misconduct was insufficiently dangerous as a matter of law to meet the standards for commitment.  Because the record supports appellant's commitment as a sexual psychopathic personality and sexually dangerous person, we affirm.

D E C I S I O N

            In reviewing a commitment, the appellate court "is limited to an examination of the trial court's compliance with the statute, and the commitment must be justified by findings based upon [the] evidence."  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  Findings of fact will not be set aside unless clearly erroneous.  In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995).  Whether the evidence is sufficient to meet the standards for commitment is a question of law reviewed de novo.  Knops, 536 N.W.2d at 620.

            Appellant Earll Stephen McMoore first argues that as a matter of law, his sexual misconduct did not meet the dangerousness standard for commitment as a sexual psychopathic personality (SPP).  An SPP commitment requires, in relevant part, a showing that the person's sexual misconduct is "dangerous to other persons."  Minn. Stat. § 253B.02, subd. 18b (2002) (defining SPP).

            McMoore bases his challenge on In re Rickmyer, 519 N.W.2d 188 (Minn. 1994), where the supreme court emphasized in the case of a pedophile that it would not be reasonable to apply the psychopathic personality statute "to every person guilty of sexual misconduct nor even to persons having strong sexual propensities."  Id. at 190 (quotation omitted).  Instead, a psychopathic personality "is an identifiable and documentable violent sexually deviant condition or disorder."  Id. (quotation omitted).  "[A]mong the factors to be considered are the nature of the sexual assaults and the degree of violence involved."  Id. (quotation omitted).  The supreme court further explained:

                                    There may be instances where a pedophile's pattern of sexual misconduct is of such an egregious nature that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims such as to meet the requirements for commitment as a psychopathic personality.

Id.  It held that Rickmyer's "unauthorized sexual ‘touchings' and ‘spankings' while repellant, do not constitute the kind of injury, pain, ‘or other evil' that is contemplated by the psychopathic personality statute."  Id.

            McMoore argues that the district court erred as a matter of law because rather than following Rickmyer, the court relied on an unpublished court of appeals' decision distinguishing Rickmyer.  McMoore contends that under Rickmyer, he does not meet the standards for commitment because his sexual misconduct was not dangerous enough.

            This case is distinguishable from Rickmyer on the facts.  First, McMoore's victims were even younger than Rickmyer's victims and were quite vulnerable.  Id. at 189 (referring to eight- and ten-year-old victims).  McMoore's half-siblings were age three or four when he started abusing them and were only six-year-olds when the abuse finally ended.  The toddler McMoore assaulted in the park bathroom was just under three years old and trusted him because McMoore had played catch with him and helped him use the bathroom.  Further, Rickmyer engaged in indecent exposure, unauthorized "touchings," and spankings.  Id. at 190.  Here, McMoore digitally penetrated his half-brother's anus and attempted vaginal intercourse with his young half-sister, forced his victims to both give and receive oral sex, and fondled their exposed genitals and forced them to kiss him over their protests.  Further, he repeatedly assaulted his siblings over the course of several years.  In summary, the district court properly concluded that McMoore engaged in sexual misconduct dangerous to others.  See In re Preston, 629 N.W.2d 104, 113 (Minn. App. 2001) (also distinguishing Rickmyer, where pedophile had engaged in over 100 incidents of impermissible sexual contact, including oral sexual contact and vaginal penetration, with eight different victims, one of whom was five-year-old half-sister).

            McMoore also challenges his commitment under the sexually dangerous person (SDP) law.  Under that law, the term "harmful sexual conduct" is defined as follows:

                                    (a)       "Harmful sexual conduct" means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.

                                    (b)       There is a rebuttable presumption that conduct described in the [specified statutory provisions including criminal sexual conduct in the first to fourth degrees] creates a substantial likelihood that a victim will suffer serious physical or emotional harm . . . .

Minn. Stat. § 253B.02, subds. 7a, 18c (2002) (emphasis added).  Because McMoore was convicted of two counts of criminal sexual conduct, admitted to committing many acts of harmful sexual conduct, and produced no evidence to rebut the statutory presumption, the district court did not err in committing him as an SDP.

            The district court did not err in committing McMoore as an SPP and an SDP.

            Affirmed.