In the Matter of the Civil Commitment of: Todd Anthony Fernandes.

In the Matter of the Civil Commitment of: Todd Anthony Fernandes. A06-506, Court of Appeals Unpublished, October 17, 2006.

This opinion will be unpublished and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

A06-506

 

In the Matter of the Civil Commitment of:

Todd Anthony Fernandes

 

 

Filed October 17, 2006

Affirmed Worke, Judge

 

Hennepin County District Court

File No. 27-MH-PR-04-1257

 

Roderick N. Hale, 301 Fourth Avenue South, Suite 270, Minneapolis, MN  55415 (for appellant)

 

Carolyn A. Peterson, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.[*]

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from an order for indeterminate commitment as a sexually dangerous person, under Minn. Stat. § 253B.02, subd. 18c (2004), appellant argues that the commitment order must be reversed because (1) the evidence is insufficient to support a
 finding that he meets the criteria for commitment as a sexually dangerous person; and (2) his commitment violates his double-jeopardy, due-process, and equal-protection rights.  We affirm.

D E C I S I O N

Sufficiency of the Evidence

Appellant Todd Anthony Fernandez argues that the evidence was insufficient to support the district court's determination that he should be committed as a sexually dangerous person who is likely to engage in acts of harmful sexual conduct.  Whether the evidence was sufficient to demonstrate the standards for civil commitment are met is a question of law reviewed de novo.  In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).  "The [district] court's findings of fact will not be reversed unless clearly erroneous."  In re Robb, 622 N.W.2d 564, 568 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  This court will not reweigh the evidence.  In re Linehan (Linehan III),557 N.W.2d 171, 189 (Minn. 1996), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd on remand, 594 N.W.2d 867 (Minn. 1999).  Instead, "[w]e will determine if the evidence as a whole presents substantial support for the district court's conclusions."  Id.

A sexually dangerous person is a person who "(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 (2004).  "'Harmful sexual conduct' means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another."  Id., subd. 7a(a) (2004).  Appellant challenges only the determination that he is likely to engage in acts of harmful sexual conduct.  When reviewing this determination, an appellate court must find that it is "highly likely" that a person will engage in further harmful sexual conduct.  In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999).  The Minnesota Supreme Court has established the following factors to consider when determining the likelihood of future harm: (1) relevant demographic characteristics; (2) history of violent behavior; (3) base-rate statistics for violent behavior; (4) sources of stress in the offender's environment; (5) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (6) the person's record with respect to sex-therapy programs.  Linehan I, 518 N.W.2d at 614.

Appellant argues that the district court erred in determining that he was a sexually dangerous person because the opinions of the two psychological examiners, Drs. James Alsdurf and Thomas Alberg, failed to establish by clear and convincing evidence that appellant was "highly likely" to engage in further harmful sexual conduct.  Based on their examination of the Linehan factors, however, both doctors concluded that appellant poses a significant risk of re-offending.  Dr. Alsdurf concluded that appellant was "highly likely" to reoffend because appellant had not successfully completed sex-offender treatment, had "no real insight" into his treatment needs, and "[was] unable to provide a rational[] understanding of the facts around his past offenses or to communicate a serious regard for the injury he caused others."  Likewise, Dr. Alberg concluded that appellant meets the criteria of a sexually dangerous person because he "ha[d] not received sex offender treatment programming in prison[,]" had "only participated in a brief outpatient program in the community[,]" and had "very little insight into his sexual offending."  Therefore, the reports of Drs. Alsdurf and Alberg support the district court's conclusion that appellant is a sexually dangerous person. 

But appellant argues that the methodology used by Drs. Alsdurf and Alberg cannot show that he is "highly likely" to reoffend because the psychological "tools" they used are used for purposes other than sexually dangerous person commitment and their methods have error rates insufficient to meet the required clear-and-convincing standard of proof.  This court defers to the fact-finder's determination of weight and credibility of expert witnesses.  State v. Triplett, 435 N.W.2d 38, 44 (Minn. 1989).  Further, the record supports the district court's conclusion.  Drs. Alsdurf and Alberg used various methods to assess appellant's likelihood to reoffend.  Dr. Alsdurf used three teststhe STATIC-99, the Sex Offender Risk Appraisal Guide, and the Sexual Violence Risk-20 testin his conclusion that appellant is highly likely to reoffend.  Dr. Alberg used five teststhe Violence Risk Appraisal Guide, the Sex Offender Risk Appraisal Guide, the Rapid Risk Assessment of Sexual Offense Recidivism, the HCR-20, and the Sexual Violence Risk-20in concluding that appellant has a "higher risk to re-offend than other offenders" and that appellant meets the criteria for a sexually dangerous person.  Therefore, the evidence substantially supports the district court's conclusion that appellant is a sexually dangerous person.

Appellant also argues that he does not satisfy the Linehan factors because the record does not show that he has committed "recent acts of sexual impulsivity," he has not been accused of concealing his misconduct, he was not diagnosed with an antisocial personality disorder, and his offenses have not increased in severity over time.  These are not factors to be considered under Linehan.  See Linehan I, 518 N.W.2d at 614.  Appellant provides no authority that, given his history as a sex offender and record of avoidance of treatment, these factors would weigh against the district court's conclusion that he is a sexually dangerous person.  Therefore, appellant's argument lacks merit. 

Finally, appellant argues that the district court's findings of fact were insufficient because they were largely adopted from the proposed findings drafted by the county attorney's office.  The verbatim adoption of one party's proposed findings is not per se reversible error.  Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).   Because appellant fails to identify specific findings of fact that are incorrect or were misrepresented by the district court, the argument fails. 

Constitutional Claims

Appellant argues that his indefinite civil commitment to the Minnesota Sex Offender Treatment Program, which he contends has not released a graduate in ten years, constitutes incarceration, violating his double-jeopardy, due-process, and equal-protection rights under the Minnesota and United States Constitutions.  But civil commitment is remedial and is for treatment purposes rather than punishment; thus, it does not violate double jeopardy.  Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn. 1995).  And while appellant challenges the suitability or possible success of treatment and his future opportunity for discharge, his claims are factually and procedurally premature and cannot be addressed on appeal from a commitment order.  See In re Wicks, 364 N.W.2d 844, 847 (Minn. App. 1985) ("Generally, the right to treatment issue is not reviewed on appeal from a commitment order."), review denied (Minn. May 31, 1985).

            Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.