In the Matter of the Civil Commitment of: Robin John Razmyslowski.

In the Matter of the Civil Commitment of: Robin John Razmyslowski. A05-993, Court of Appeals Unpublished, November 1, 2005.

This opinion will be unpublished and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

A05-993

 

         In the Matter of the Civil Commitment of: Robin John Razmyslowski

 

Filed November 1, 2005

Affirmed

Peterson, Judge

 

Polk County District Court

File No. P504518

 

Richard N. Sather II, Sather Law Office, 311 Main Avenue North, P.O. Box 381, Thief River Falls, MN  56701 (for appellant Robin John Razmyslowski)

 

Mike Hatch, Attorney General, Matthew G. Frank, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent State of Minnesota)

 

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

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

The district court committed appellant as a sexually dangerous person under Minn. Stat. § 253B.02, subd. 18c(a) (2004).  On appeal from the initial and indeterminate commitment orders, appellant argues that (1) the evidence does not clearly and convincingly establish that he is "highly likely" to reoffend within, and (2) the district court violated his due-process rights by failing to consider a less-restrictive treatment alternative.  We affirm.

FACTS

            Appellant Robin John Razmyslowski was born on April 9, 1972.  During his childhood, he was sexually abused by his father, older brother, and family acquaintances.  The abuse began when appellant was five years old and continued until appellant turned age 16 and moved out of the family home.

            Between 1987 and 1998, appellant sexually assaulted at least nine children.  At least six of the victims were subjected to multiple acts of abuse.  In 1989 and 1990, appellant sexually assaulted his 11-year-old brother about 100 times.  Between 1988 and 1990, appellant sexually assaulted his half-brother, who was age six when the abuse began, about 35 times.

            In February 1991, appellant pleaded guilty to four counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct.  The district court stayed execution of appellant's sentence and placed him on probation.

            A probation condition required appellant to complete a sex-offender treatment program at the St. Peter Regional Treatment Center.  Appellant entered the treatment program in December 1991 and remained in it until June 30, 1996, when the Minnesota Department of Human Services ended the program.  On May 30, 1996, appellant entered the sex-offender treatment program at the Northwest Mental Health Center.  He completed that program and was released in September 1997.

            Six times on five separate occasions in July and August 1998, appellant sexually assaulted a 13-year-old girl.  Appellant pleaded guilty to two counts of third-degree criminal sexual conduct and was sentenced to a 51-month prison term.  Initially, appellant refused sex-offender treatment but, in March 2001, he agreed to seek admission into the sex-offender treatment program.

            On October 20, 2003, appellant was released from prison and placed on intensive supervised release.  Appellant returned to live with his mother in Beltrami, Minnesota, and was placed on electronic home monitoring and house arrest.  As a condition of release, appellant was required to complete sex-offender treatment.

            Appellant entered an outpatient sex-offender treatment program at the Upper Mississippi Mental Health Center.  John Yingling supervised appellant's treatment.  Yingling initially assessed appellant as being sexually attracted to children, needing a high level of supervision to remain safe, and questionable as to his ability to fully control his impulsivity and desire to be sexual.  During treatment, appellant did not cause any problems and appeared willing to take responsibility for his sexual offenses.

In April 2004, respondent State of Minnesota filed a petition for the civil commitment of appellant as a sexual psychopathic personality and as a sexually dangerous person under Minn. Stat. § 253B.185, subd. 1 (2004).  When the commitment petition was filed, appellant was doing well in treatment.  The petition resulted in appellant being removed from the treatment program before completing it.  Yingling was willing to accept appellant back into the treatment program if he was not committed.

            The district court appointed Dr. Robert Riedel, Ph.D., L.P., to serve as a court-appointed examiner.  At appellant's request, the district court appointed Dr. John Austin, Ph.D., L.P., to serve as a second court-appointed examiner.  Respondent retained two independent forensic psychologists, Dr. Harry Hoberman, Ph.D., L.P., and Dr. James Alsdurf, Ph.D., L.P., as expert witnesses.  Riedel, Hoberman, and Alsdurf opined that appellant met the criteria for commitment as a sexually dangerous person.  Austin opined that appellant did not meet the criteria for commitment as a sexually dangerous person.

Following a court trial, the district court concluded that respondent did not establish by clear and convincing evidence that appellant is a sexual psychopathic personality.  The district court also concluded that appellant met the criteria for commitment as a sexually dangerous person and ordered him initially committed to the Minnesota Sex Offender Program at St. Peter and Moose Lake, Minnesota.

            At the St. Peter facility, appellant underwent an evaluation by a treatment team that included a psychological assessment, and a social history.  The results of the evaluation were summarized in a 60-day treatment report filed with the court.  After the treatment report was filed, the district court conducted a review hearing as required by Minn. Stat. § 253B.18, subd. 2 (2004).  The district court then issued an order committing appellant as a sexually dangerous person for an indeterminate period.  This appeal followed.

D E C I S I O N

I.

            An appellate court's 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 upon evidence submitted at the hearing.  In re Schaefer, 498 N.W.2d 298, 300 (Minn. App. 1993).  Clear and convincing evidence is required to support a commitment as a sexually dangerous person (SDP).  Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd 1 (2004).

The ultimate question of whether the record supports the standards for commitment with clear and convincing evidence is a question of law subject to de novo review.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).  We review the district court's underlying factual findings for clear error, defer to the district court's credibility determinations and its resolution of conflicting evidence, and review the record in the light most favorable to the district court's decision.  See Minn. R. Civ. P. 52.01; In re Knops, 536 N.W.2d 616, 620 (Minn. 1995); In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re Kindschy, 634 N.W.2d 723, 732 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).

            To commit a person under the SDP statute, the petitioner must prove that the person (1) has engaged in a course of "harmful sexual conduct," as defined in Minn. Stat. § 253B.02, subd. 7a (2004); (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) (2004).  Appellant does not object to the district court's findings on the first two elements.  He argues that the evidence is insufficient to support the district court's findings on the third element.

            The SDP law states, "For purposes of this provision, 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 Minnesota Supreme Court has clarified that the definition of SDP requires that the present disorder "does not allow [offenders] to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future."  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan III).

The supreme court has set forth the following factors to consider in determining the likelihood of reoffending:

(a) the person's relevant demographic characteristics (e.g., age, education, etc.);  (b) the person's history of violent behavior (paying particular attention to recency, severity, and frequency of violent acts);  (c) the base rate statistics for violent behavior among individuals of this person's background (e.g., data showing the rate at which rapists recidivate, the correlation between age and criminal sexual activity, etc.);  (d) the sources of stress in the environment (cognitive and affective factors which indicate that the person may be predisposed to cope with stress in a violent or nonviolent manner);  (e) the similarity of the present or future context to those contexts in which the person has used violence in the past;  and (f) the person's record with respect to sex therapy programs.

 

Linehan I, 518 at 614; see also Linehan II, 557 N.W.2d at 178 (discussing Linehan I factors).  The district court specifically addressed each of the Linehan I factors in detail in finding 80.

Appellant first argues that the evidence does not support the finding that appellant's "demographic characteristics are associated with a high risk of re-offending.  These characteristics include [appellant's] gender, relatively young age, lower socio-economic status, and limited work history.  His limited employment skills and education will make his adjustment into a community difficult."  Appellant cites evidence that he completed his G.E.D. while in prison and is also adept at carpentry work and that, when the commitment petition was filed, he was employed by the Crookston Flyer.  But Riedel testified that the factors identified by the district court, appellant's age, gender, lower socio-economic status, and limited work history, are factors typically associated with a higher risk of recidivism.  And Alsdurf testified that appellant's limited marketable skills and poor work history suggest that appellant will have difficulty adjusting in the community.

Appellant challenges the following district court finding on appellant's history of violent behavior:

[Appellant] sexually assaulted at least nine children between 1988 and 1990.  Most of these children were sexually assaulted several times.  In addition, [appellant] sexually assaulted thirteen year old GMP in approximately 1998 while on probation.  These assaults involved oral and anal sex, fondling, and digital penetration.  The absence of additional assaults by [appellant] does not mitigate the risk that he will re-offend because [appellant] was in prison, jail, or treatment for much of the time since 1990.  As a result, he had no real opportunity to commit additional assaults.  [Appellant's] treatment records also demonstrate that he has difficulty controlling his anger and becomes easily frustrated.  His anger and frustration cause him to seek out victims.

 

Citing the testimony of Yingling and parole officers Craig Hemmingsen and Mike Amble, appellant argues that he has made significant progress in controlling his anger and frustration.  While their testimony could support appellant's position, the district court's finding is supported by Alsdurf's testimony and appellant's history of offenses and treatment records before entering Upper Mississippi.

            Appellant next challenges the district court's consideration of base-rate statistics.  Appellant argues that the district court ignored test results indicating that appellant was in a low-risk category for reoffending.  The district court considered two tests, the static-99 and the Hare psychopathy checklist revised (PCL-R), both of which are generally accepted among psychologists as a reliable measure of a sex offender's likelihood of reoffending.  Hoberman, Riedel, Alsdurf, and Austin assigned appellant a score of 6 on the static-99, which correlates to a 39% likelihood of reoffense within five years, 45% within 10 years, and 52% within 15 years.  Hoberman testified that a recent study shows that because the percentages used in the static-99 are based on reconviction rates, the static-99 significantly underestimates the likelihood of reoffending.  The study, which attempted to correct for undetected offenses, determined that the actual percentage of reoffending for persons with a score of six ranges from 66 to 95% within 15 years.

            Regarding the PCL-R, the district court found:

Persons taking this test are given scores of zero, one or two on twenty separate items or characteristics.  A person who scores thirty on this test is considered psychopathic.  Dr. Riedel gave [appellant] a score of twenty-one, Dr. Alsdurf gave [appellant] a score of twenty-four, and Dr. Hoberman gave [appellant] a score of twenty-five.  While these scores do not show that [appellant] is psychopathic, they do show that he possesses traits common with a psychopathic personality.  These traits are likely to give him serious difficulty in controlling his sexual behavior.

 

            Appellant argues that none of the psychologists equated traits in common with a psychopathic personality with a high likelihood of reoffending.  But when asked about the significance of appellant scoring below 30 on the PCL-R, Alsdurf testified:

[W]e need to be very careful to not think of this as a binary system, either you are or aren't.  It's better to think of this as more or less of and clearly to obtain a score in the mid 20s is indicative of someone who has a significant amount of these features, particularly when you think that the kind of average for the normal population on the Hare is probably below ten and for people coming out of prison it's in the early 20s.  So you have to have a substantial amount of these factors or these traits, these behaviors to be able to even get into that range.

 

Hoberman testified that studies have shown that people who have a combination of some degree of psychopathy present (with cut-off numbers in the studies ranging from 16 to 25 and 25 being the most common) and deviant sexual arousal have extremely high rates of recidivism for both violent and sexual offending behavior.

            Appellant also objects to the district court's findings on stress, appellant's record of sex therapy, and his access to potential victims.  He argues that those findings ignore evidence that he was dealing well with stress when the commitment petition was filed, evidence regarding his success at Upper Mississippi, and his parole status.

All of appellant's objections to the district court's findings go to the weight and credibility of evidence.  Appellant is seeking to have this court reweigh evidence on appeal, which is not this court's role.  See Linehan II, 557 N.W.2d at 189 (stating that appellate court "will not weigh the evidence").  When the findings of fact rest almost entirely on expert-opinion testimony, the district court's "evaluation of credibility is of particular significance."  Joelson, 385 N.W.2d at 811.  Here, the district court's findings are supported by the expert testimony of Riedel, Hoberman, and Alsdurf, and the district court specifically found their testimony "credible and persuasive" on the issue of the likelihood of appellant reoffending.  Deferring to the district court's assessment of witness credibility, as we must, we conclude that clear and convincing evidence supports the district court's findings on the likelihood of appellant reoffending.

Citing the district court's finding that "[respondent] has proven by clear and convincing evidence that [appellant] is likely to engage in acts of harmful sexual conduct as a result of his mental and psychological disorders," appellant argues that the district court failed to apply the "highly likely" standard stated in Linehan III.  (Emphasis added.)  Appellant also argues that the district court failed to find that appellant's history of violent behavior and the stress in his environment would make it "highly likely" that he would reoffend.  But finding 81 specifically states, "Based upon the [Linehan I] factors, the Court finds that [respondent] has proven by clear and convincing evidence that [appellant] is highly likely to engage in acts of harmful sexual conduct."  A reading of the district court's findings as a whole shows that the district court properly applied the Linehan III "highly-likely" standard.

II.

            Minn. Stat. § 253B.185, subd. 1 (2004), states, "In commitments under this section, 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 the requirements of public safety."  In considering treatment alternatives, a court may consider such factors as the need for security, whether the patient needs long-term treatment, and the type of treatment required.  In re Pirkl, 531 N.W.2d 902, 910 (Minn. App. 1995), review denied Minn. Aug. 30, 1995; In re Bieganowski, 520 N.W.2d 525, 531 (Minn. App. 1994), review denied Minn. Oct. 27, 1994.

            Riedel, Hoberman, and Alsdurf all testified that appellant needed an intensive, long-term, residential sex-offender treatment program.  They also testified that he needs to be in a secure facility due to the risk of reoffending and that the Minnesota Sex Offender Treatment Program at Moose Lake and St. Peter is the only program in Minnesota that meets those requirements.  The district court specifically found persuasive the opinions of Riedel, Hoberman, and Alsdurf about the level of secure treatment need by appellant.  The district court did not err in finding that there is no less-restrictive alternative than commitment to a secure treatment facility.

            Affirmed.