In the Matter of the Civil Commitment of: Richard Russell Fageroos.

In the Matter of the Civil Commitment of: Richard Russell Fageroos. A06-1947, Court of Appeals Unpublished, February 20, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1947

 

 

In the Matter of the Civil Commitment of:

Richard Russell Fageroos.

 

 

Filed February 20, 2007

Affirmed

Lansing, Judge

 

Crow Wing County District Court

File No. PX-05-580

 

James S. Dahlquist, 301 Fourth Avenue South, #270, Minneapolis, MN 55415 (for appellant Fageroos)

 

Lori Swanson, Attorney General, Allen Louie, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Crow Wing County)

 

            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from an order for civil commitment as a sexually dangerous person, Richard Fageroos challenges the sufficiency of the evidence to support his commitment, his placement at the Minnesota Security Hospital, and the admissibility of an expert's report and a witness's supplementary testimony.  Because the district court's commitment orders are supported by clear and convincing evidence; because Fageroos failed to demonstrate the availability of a suitable, less-restrictive treatment program; and because Fageroos's evidentiary challenges were not preserved for appeal and do not provide a basis for reversal, we affirm.

F A C T S

            Crow Wing County filed a petition, in March 2005, for the civil commitment of Richard Fageroos as a sexually dangerous person under Minn. Stat. § 253B.02, subd. 18c (2006).  Following a commitment hearing that began in May and was continued for three additional days in October, the district court granted the petition.

            Fageroos has a long history of physically aggressive acts and harmful sexual conduct.  In 1979 Fageroos pleaded guilty to assaulting his then-wife, CJF, by slamming her face against a wall.  During their one and one-half year marriage, Fageroos raped CJF, at knifepoint.  In 1980, following their marital dissolution, Fageroos became obsessed with CJF's male acquaintances, broke into her apartment, and again raped CJF at knifepoint.  CJF did not report the two knifepoint rapes to the authorities, and Fageroos was never charged for this conduct.  At Christmas in 1981 Fageroos assaulted CJF and her father with a knife in the course of forcibly removing his son from CJF's custody.  

            After his release from prison on the second-degree-assault charges, Fageroos sexually assaulted thirty-year-old JLM.  Fageroos invited JLM into his car and forced her to perform oral sex on him while parked on the roadside.  JLM reported the incident and Fageroos was charged with kidnapping and criminal sexual conduct.  While those charges were pending, Fageroos broke into the bedroom of twelve-year-old SMB and fifteen-year-old PAF and sexually assaulted both of them.  Fageroos was sentenced to 45 months in prison for the assault on JLM, and 244 months in prison for the assaults on SMB and PAF.

            Despite his convictions, Fageroos denies ever sexually assaulting JLM, SMB, or PAF.  While in prison, Fageroos refused to participate in sex-offender treatment and was repeatedly reprimanded for misconduct, including the assault of a fellow inmate.  Near the end of his prison term, the End of Confinement Review Committee assigned Fageroos a Level 3 sex-offender rating.  The county filed its petition for commitment early the following year.

            Three psychiatric experts testified at Fageroos's commitment hearing.  Dr. Linda Marshall, the court's first appointed examiner; Dr. Robert Riedel, the court's second appointed examiner; and Dr. James Alsdurf, a psychologist retained by the state as an expert witness.  All three psychologists concluded that Fageroos has a personality disorder, not otherwise specified, with antisocial and histrionic features on Axis II.  Only Alsdurf and Marshall, however, recommended civil commitment.

            Marshall interviewed Fageroos and conducted diagnostic tests.  She testified that Fageroos is highly likely to engage in acts of harmful sexual conduct in the future and meets all the requirements for commitment as a sexually dangerous person.  Marshall initially believed Fageroos did not require commitment, but changed her mind after observing Fageroos in court and hearing CJF's testimony.

            Riedel also interviewed Fageroos and conducted diagnostic tests.  He disagreed with Marshall's opinion that Fageroos is highly likely to commit harmful sexual offenses in the future and testified that Fageroos could succeed in an intensive supervised-release program.  On cross-examination Riedel admitted to making errors in his assessment but stood by his recommendation.

            Alsdurf did not meet with Fageroos but reviewed Fageroos's file.  Alsdurf testified that Fageroos is highly likely to reoffend and recommended civil commitment. 

            The district court specifically discredited the testimony of Riedel and accepted the testimony of Alsdurf and Marshall in finding that Fageroos is a sexually dangerous person who cannot adequately control his sexual impulses.  The district court ordered civil commitment in April 2006 and ordered indeterminate commitment following the sixty-day review hearing in August.  Fageroos now appeals.

D E C I S I O N

I

A petition for civil commitment under the Minnesota Commitment and Treatment Act must be supported by clear and convincing evidence.  Minn. Stat. § 253B.18, subd. 1(a) (2006).  The evidence as a whole must substantially support the district court's conclusion.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (Linehan III), cert. granted, judgment vacated and case remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd on remand, 594 N.W.2d 867 (Minn. 1999).  We review a district court's findings in a commitment proceeding for clear error.  Minn. R. Civ. P. 52.01.  The determination that those findings meet or fail to meet the statutory requirement for civil commitment is a question of law, which we review de novo.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I). 

Minnesota statutes define a sexually dangerous person as a person who: (1) engaged in a course of harmful sexual conduct; (2) suffers from sexual, personality, or other mental disorder; and (3) is likely to engage in future acts of harmful sexual conduct.  Minn. Stat. § 253B.02, subd. 18c(a) (2006).  In addition, the district court's findings in a commitment order must support the determination that the person is unable to adequately control his sexual impulses.  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV).  Fageroos asserts that the assembled record does not support a finding that he cannot adequately control his sexual impulses because it lacks evidence of recent sexual activity, it establishes only one recent act of aggression, and it does not provide evidence of an antisocial personality disorder.  We disagree.

            Fageroos misconstrues the legal framework necessary to establish an inability to control sexual impulses.  Fageroos relies on that portion of Linehan IV in which the supreme court examined whether the proposed patient demonstrated a lack of adequate control over his sexually harmful behavior.  Id.  The court concluded that he lacked adequate control based on his recent display of impulsive sexual behavior, his history of alcohol abuse, his recent acts of aggression, and his diagnosis of antisocial personality disorder.  Id. at 876-77.  But these factors demonstrate only a sufficient, not a necessary, basis to prove that a person is unable to adequately control his sexual impulses.

            The Linehan IV court held that civil commitment is permissible when, among the other statutory requirements, persons have a "disorder or dysfunction [that] does not allow them to adequately control their sexual impulses."  Id. at 876 (emphasis added).  And in Kansas v. Crane, the Supreme Court held that lack of control only requires "proof of serious difficulty in controlling behavior."  534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002).  The Court added that this proof, "when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient."  Id.  Thus an inadequate-control finding hinges on a person's history of harmful behavior and the nature of his mental-disorder diagnosis.

            The district court found that Fageroos has engaged in a course of harmful sexual conduct and that Fageroos suffers from a sexual, personality, or other mental disorder or dysfunction.  Based on the expert testimony received from Alsdurf, Marshall, and Riedel, the district court then concluded that Fageroos's disorder or dysfunction "does not allow him to adequately control his sexual impulses."

            Alsdurf testified that Fageroos is a "recidivist, untreated sex offender, with a huge chemical dependency problem and almost no recognition that the thousands of pages of records accumulated on him describe him."  Alsdurf recommended that Fageroos be committed to a residential, highly structured sex-offender treatment facility.  Fageroos argues that Alsdurf's testimony is unreliable because Alsdurf did not interview him or have him complete any tests.  Instead, Alsdurf's opinion was based on his review of interview transcripts and test results from examinations by other psychiatrists.  The rules of evidence, however, do not prevent an expert from offering an opinion based on the reports and examinations of other psychiatric professionals.  See Minn. R. Evid. 703 (stating that expert may base opinion on data made known to expert).  In addition, the district court found Alsdurf's testimony to be credible.  See Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970) (noting that appellate courts should defer to fact-finder's determinations of weight and credibility of expert evidence).

            Marshall also concluded that Fageroos should be committed to a secure facility, one that would provide close monitoring and intensive treatment.  Fageroos argues that Marshall's opinion is suspect because it changed during the course of the commitment hearing.  It is true that Marshall originally believed that Fageroos's condition did not warrant civil commitment and then altered her assessment after hearing testimony from Fageroos and his ex-wife.  But the rules of evidence permit experts to base their opinions on observations made at the hearing.  Minn. R. Evid. 703.  And, again, the district court credited the testimony of Marshall in making its determination.  Alstores Realty, Inc., 286 Minn. at 353, 176 N.W.2d at 118.

            Riedel testified that Fageroos did not require civil commitment and could instead succeed in an intensive supervised-release program.  But Riedel also admitted to making numerous errors in his assessment of Fageroos.  The district court discounted Riedel's testimony as a result of the acknowledged mistakes. 

            The district court acted within its discretion in crediting Alsdurf's and Marshall's testimony.  It is the exclusive function of the fact-finder to weigh the evidence and determine the credibility of witnesses.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The fact-finder's exclusive function of weighing evidence and determining credibility also applies to expert testimony, and an appellate court should not reassess an expert's opinion on appeal.  State v. McCabe, 251 Minn. 212, 216, 87 N.W.2d 360, 362 (1957).  The expert testimony, which must be viewed in a light most favorable to the district court's conclusion, established that Fageroos suffers from a personality disorder with antisocial and histrionic features that renders him unable to adequately control his sexual impulses.  See, e.g., In re Martin, 661 N.W.2d 632, 639 (Minn. App. 2003) (holding that evidence of offender's personality disorder "with paranoid, narcissistic, and antisocial traits" compelled finding of inability to adequately control harmful sexual impulses and behavior), review denied (Minn. Aug. 5, 2003).  The evidence clearly and convincingly demonstrates that Fageroos is a sexually dangerous person in need of commitment.

II

            If a person is adjudicated sexually dangerous, the district court must "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."  Minn. Stat. § 253B.185, subd. 1 (2006).  Fageroos argues that he successfully met the burden to establish the availability of a suitable, less-restrictive alternative.  The record does not support this assertion.

            Fageroos presented testimony of a Department of Corrections agent from the intensive supervised-release (ISR) program.  The agent's testimony outlined the operation of the ISR program, of which sex-offender treatment would be a part, and the limitations that would be placed on Fageroos if he were admitted to the ISR program.  Fageroos did not present the district court with evidence of any actual sex-offender treatment program to which he had applied and been accepted.  Instead, Fageroos presumes that he would be accepted to a program upon his release.  The agent indicated that he was uncertain whether the sex-offender treatment provider in Fageroos's area would accept an offender who had been convicted of an incident involving a weapon.  The testimony on this issue cannot be characterized as clear and convincing evidence of the availability of a suitable less-restrictive alternative.  The district court did not err by committing Fageroos to the Minnesota Security Hospital.

III

            Fageroos's final argument is that the district court violated his due process rights by improperly admitting CJF's testimony about the two uncharged rapes and Alsdurf's written psychological report.  Fageroos did not claim a violation of his due process rights in the district court proceeding.  Consequently, he is precluded from raising this argument on appeal.  See In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981) (holding that appellant cannot raise constitutional claims for first time on appeal). 

            Even if Fageroos had preserved this issue for appeal, the record does not provide support for his claim.  Fageroos challenges the admission of CJF's testimony because he did not know that she would testify about the two rapes until the night before the hearing that began in May.  But Fageroos had known for a considerable period of time that CJF would be a witness for the state.  Also, Fageroos made a motion in limine to exclude CJF's testimony on the morning of the hearing, and, after his motion was rejected, he declined the court's offer for a continuance to allow for further preparation.  All of this occurred before CJF testified.  Fageroos cannot reject the court's offer of a continuance and then claim that he had inadequate time to prepare.

            Fageroos also challenges the admission of Alsdurf's report because it was not submitted within the time frame provided in Minn. Stat. § 253B.07, subd. 5 (2006).  But as Fageroos acknowledges, that statute applies only to reports submitted by court-appointed examiners, and Alsdurf was not a court-appointed examiner.  Consequently, this claim also fails. 

            The state presented testimony and exhibits that supported its petition for civil commitment by clear and convincing evidence.  Fageroos failed to demonstrate the availability of a less-restrictive alternative to commitment at the Minnesota Security Hospital, and his constitutional challenges to CJF's testimony and Alsdurf's report, which were not preserved for appeal, lack a legal or factual basis. 

Affirmed.