Nevada Silverpony, a/k/a Jerry D. Ekker, Appellant, vs. Kevin Goodno, Commissioner of Human Services, Respondent.

Nevada Silverpony, a/k/a Jerry D. Ekker, Appellant, vs. Kevin Goodno, Commissioner of Human Services, Respondent. A06-997, Court of Appeals Unpublished, October 31, 2006.

This opinion will be unpublished and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

A06-997

 

 

Nevada Silverpony, a/k/a Jerry D. Ekker,

Appellant,

 

vs.

 

Kevin Goodno, Commissioner of Human Services,

Respondent.

 

 

Filed October 31, 2006

Affirmed

Toussaint, Chief Judge

 

Judicial Appeal Panel

File No. P2-92-53 (SCAP No. AP-05-9027)

 

 

Jed J. Hammell, Rippe, Hammell & Murphy, P.L.L.P., 110 East Main Street, Post Office Box 149, Caledonia, MN 55921-0149 (for appellant)

 

Mike Hatch, Attorney General, Jonathan Geffen, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2127; and

 

Richard W. Jackson, Jr., Houston County Attorney, 304 South Marshall Street, Room 201, Caledonia, MN 55921 (for respondent)

 

 

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

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            The judicial appeal panel denied appellant's petition for transfer, provisional discharge, or full discharge from his commitment as mentally ill and dangerous.  Because the judicial appeal panel's findings are supported by the evidence and because we conclude that appellant does not meet the statutory requirements for discharge, we affirm.

D E C I S I O N

            In 1985, appellant Nevada Silverpony, a/k/a Jerry D. Ekker, was convicted of attempted criminal sexual conduct after hitting and attempting to rape a woman.  He was sent to prison for five years.  In 1990, appellant was convicted of attempted criminal sexual conduct in the first degree after stabbing a woman.  He was incarcerated at Oak Park Heights and began sex offender treatment, but the treatment was terminated after a month because of appellant's hostile behavior and unwillingness to accept feedback.  In 1993, appellant was transferred to Stillwater, where he again began sex offender treatment but the treatment was terminated after two months.  He was transferred to Lino Lakes, where he began sex offender treatment a third time; it was terminated after six months. 

            In 1995, appellant was diagnosed with major depression, chemical dependency, and antisocial personality disorder. He was civilly committed to the Minnesota State Hospital at St. Peter (MSP) as mentally ill and dangerous.  In 1999, appellant escaped from MSP to California, where he used drugs and alcohol and had unprotected sex with a prostitute, although he knew he carries the hepatitis C virus.  He was returned to MSP, and in 2003 he again escaped, used drugs and alcohol, and had unprotected sex with prostitutes.  He was again returned to MSP.

            In June 2003, a doctor removed appellant's diagnoses of panic disorder with agoraphobia and major depression because appellant admitted that he lied about his symptoms.  He is now diagnosed with polysubstance dependence and antisocial personality disorder. In January 2004, appellant was assigned the maximum sex offender risk level of three.  In March 2004, appellant attempted to escape and was physically restrained by staff; in May 2004, he ingested drugs in an attempt to appear ill and prompt a move to a less secure facility.

            In 2005, appellant filed a petition for transfer to a non-secure facility, provisional discharge, or full discharge.  After a hearing, the special review board denied his petition.  He petitioned the judicial appeal panel for rehearing and reconsideration of the denial.  After another hearing, the judicial appeal panel dismissed his petition.  He now challenges that dismissal, arguing that the judicial appeal panel's findings are not sustained by the evidence and that he meets the statutory criteria for discharge.[1]

1.         Judicial Appeal Panel Findings

In reviewing a decision of the judicial appeal panel, the appellate court must determine from an examination of the record if the evidence as a whole sustains the panel's findings.  Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992).  "[I]t is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary."  Id.  The judicial appeal panel's assessment of the credibility of experts has particular significance.  Id.

The judicial appeal panel found that appellant "is appropriately diagnosed with Paraphilia, sexual sadism."[2]  Appellant argues that this finding is not sustained by the evidence because he was originally committed as mentally ill and dangerous and cannot now be diagnosed with paraphilia.

But the judicial appeal panel relied for its finding on two psychologists who examined and diagnosed appellant in 1994-95 and again in 2003. They explained the discrepancy between appellant's original mentally ill and dangerous classification and his current diagnosis as paraphiliac.  One psychologist testified that, in 1994-95, "My ultimate conclusion was that [appellant] was maybe a better fit for mentally ill and dangerous" but added:  "If I was doing this evaluation again today, I would not have opined that way .  . . .   I would have given an opinion that he was a sexually dangerous person."  The psychologist explained that, in 1994-95, "I was clear about his sex offending.  I wanted to be sure for community safety . . . that he would have to have sex offender treatment, and that's why I felt the [mentally ill and dangerous] was an appropriate thing to do to give him a chance."  When asked if appellant had the major mental illness that led to his mentally ill and dangerous classification in 1994-95, the psychologist said, "[When] I saw him in ‘94, I felt he did.  But what I learned is that he was faking.  He was postulating, he was posturing himself. . . . He knew what was up, so he certainly thought that a [mentally ill and dangerous] commitment would be a much better shot [than a sexually dangerous person commitment] for him."

The other psychologist submitted a written report stating that

 

[Appellant] was well aware of [the likelihood of civil commitment after release from prison] and had ample time to arrange a response.  In my opinion, his response was to attempt to change the potential commitment from that of a sex offender to one of [mentally ill and dangerous].  I believe he thought this would result in placement in a "preferred facility."

 

. . . .

 

It is my opinion that [appellant] presents the symptoms of whatever illness he believes would be beneficial to him at the moment.  Perhaps it is true that he should have been committed as a sex offender in 1995.  However, as a result of his own choosing (and with my support) he instead was committed as [mentally ill and dangerous]. 

 

The judicial appeal panel's finding that appellant is appropriately diagnosed with paraphila is sustained by the evidence.

            The judicial appeal panel also found:  "Until [appellant] successfully completes treatment for this disorder, he remains extremely dangerous to the public."  Again, the testimony of a psychologist who examined appellant in 1994-95 and in 2003 provides support for this finding.  He testified that appellant "has not completed the type of sexual offending programming that is absolutely required to even consider whether or not he should be released to an open hospital" and that "all of the psychologists and psychiatrists agree that [appellant] needs sex offender treatment, and that equates to he is still a danger to the community." 

            Evidence sustains the judicial appeal panel's findings that appellant is correctly diagnosed with paraphilia and will be dangerous to the public until he completes sex-offender treatment.

2.         Statutory Criteria for Discharge

            This court reviews de novo whether a set of facts meets statutory criteria.  See State v. Bunde, 556 N.W.2d 917, 918 (Minn. App. 1996) (application of statutory criteria to facts as found is question of law subject to de novo review).  The judicial appeal panel concluded that appellant does not meet the criteria for transferring a person committed as mentally ill and dangerous to the public out of a secure facility set forth in Minn. Stat. § 253B.18, subd. 6 (2004), or for provisional discharge of a person committed as mentally ill and dangerous to the public set forth in Minn. Stat. § 253B.18, subd. 7 (2004), or for full discharge of a person committed as mentally ill and dangerous to the public set forth in Minn. Stat. § 253B.18, subd. 15 (2004). See In re K.B.C., 308 N.W.2d 495, 498-99 (Minn. 1981) (statutory discharge procedures apply even if individual is determined to be no longer mentally ill and dangerous to public).[3] 

            A.        Transfer Out of Secure Facility

            Factors to be considered in determining whether transfer out of a secure facility is appropriate include (1) clinical progress and treatment needs; (2) need for security to accomplish treatment; (3) need for continued institutionalization; (4) facility that can best meet treatment needs; and (5) safety of the public.  Minn. Stat. §  253B.18, subd. 6. 

            The record shows that appellant needs and has repeatedly failed to complete sexual offender treatment and that he is not now willing to be enrolled in a sexual offender program.  He has repeatedly escaped from the secure facility to which he was committed and has demonstrated that he is unable to refrain from the use of chemicals or to control his sexual impulses, from which medical professionals inferred his need for continued institutionalization and his potential danger to the public.  Appellant does not meet the criteria for transfer to a less secure facility.

            B.        Provisional Discharge

            Factors to be considered in determining whether provisional discharge is appropriate include continuing need for treatment and supervision in the current treatment setting and safety of the public and successful adjustment to the community provided by the provisional discharge plan.   Minn. Stat. §  253B.18, subd.7. 

As one psychiatrist noted in his report,

Twice in the past four years [appellant] has demonstrated he is unable to effectively function outside of a controlled setting.  Twice he has escaped and engaged in the risky behavioral combination of drug use and sexual activity.  In my opinion it is likely that the combination of these elements presents a significant risk of future harmful behavior for [appellant].

 

. . . .

 

In my opinion, [appellant] is not capable of making an adjustment to open society and continues to be in need of inpatient treatment and supervision.  As a result, he continued to present a danger to the public. 

 

Appellant's escapes and his conduct during those escapes demonstrate that he remains a danger to the public and does not successfully adjust to the community.  He does not meet the criteria for provisional discharge.

C.        Full Discharge

Criteria to be considered in determining whether full discharge is appropriate are "whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the patient in adjusting to the community."  Minn. Stat. §  253B.18, subd. 15.  There is no evidence that these conditions exist. 

            To argue that full discharge is appropriate, appellant relies on language from the risk appraisal done by two psychologists before the judicial appeal panel hearing.  "Concerning mitigating factors, [appellant] has not engaged in serious assaults, either violent or sexual, while at Minnesota Security Hospital.  When he has escaped, he has not committed serious violent/sexual offenses.  He does have the support of his mother and stepfather, although his mother is likely to have been enabling him in the past." But appellant's reliance is misplaced.  While the risk assessment noted these mitigating factors, its recommendation was: "Due to [appellant's] severe sexual offending and sexual recidivism risk based on the previous factors outlined in this report, [appellant] should participate in an intensive inpatient sex offender treatment program." Other recommendations were that appellant be encouraged "to participate in an intensive substance abuse treatment program," "to develop insight into his dynamic and potential risk factors for future sexual recidivism and general criminality," and "to discuss with staff his conning/manipulative/antisocial behaviors that he engages in on the unit."  Neither transfer nor discharge was recommended by the psychologists who performed and reviewed the risk appraisal.

            Appellant does not meet the statutory criteria for transfer to a less secure facility, provisional discharge, or full discharge.

Affirmed.

[1] Appellant also raises due process and equal protection issues, but these issues are not properly before us because appellant did not raise them to the judicial appeal panel.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  The record contains no mention of any constitutional issue.  At the conclusion of the judicial appeal panel hearing, appellant's attorney cited Reome v. Levine, 692 F. Supp. 1046 (D. Minn. 1988) (holding that denying discharge to individual who is dangerous to public but not mentally ill violates due process and equal protection). But citing a case without referring to any particular statutory or constitutional provision does not preserve a constitutional issue for appeal.  See Henning v. Village of Prior Lake, 435 N.W.2d 627, 632 (Minn. App. 1989) (refusing to address constitutional argument not raised below), review denied (Minn. Apr. 24, 1989).

[2] Paraphilia is defined as socially prohibited sexual practices; among its features are behaviors involving the suffering or humiliation of one's partner. See B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 820 n.3  (Minn. 2003).

[3] Appellant raises the issue of whether he is "mentally ill and dangerous to the public" within the meaning of Minn. Stat. § 253B.02, subd. 17 (2004).  But appellant was committed under this classification 11 years ago. The issue now is whether he meets the criteria for any type of discharge.