In the Matter of the Civil Commitment of: Anthony Charles Green.

In the Matter of the Civil Commitment of: Anthony Charles Green. A06-2272, Court of Appeals Unpublished, May 29, 2007.

This opinion will be unpublished and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

A06-2272

 

In the Matter of the Civil Commitment of:
Anthony Charles Green.

 

Filed May 29, 2007 Affirmed Wright, Judge

 

Olmsted County District Court

File No. 55-P5-05-000119

 

Patrick J. Arendt, Arendt & Heim Law Office, 300 Third Avenue Southeast, Unit 402, Rochester, MN  55904 (for appellant)

 

Mark A. Ostrem, Olmsted County Attorney, Geoffrey A. Hjerleid, Assistant County Attorney, Olmsted County Government Center, 151 Fourth Street Southeast, Rochester, MN  55904 (for respondent State of Minnesota)

 

 

            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal challenging his indeterminate commitment as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP), appellant argues that the evidence is insufficient to support the district court's findings that he is an SDP and an SPP and that the indeterminate commitment statutes violate the constitutional protection against double jeopardy.  We affirm.

FACTS

 

Appellant Anthony Green's criminal history began more than 30 years ago, having committed numerous offenses since 1972.  In 1984, Green was convicted of two counts of second-degree assault when Green fired a shotgun near his girlfriend and another man because he suspected them of having an affair.  Green was sentenced to 60 months' imprisonment.  During this period of incarceration, Green denied his guilt, resisted treatment in a behavior-modification program, and committed several disciplinary infractions, including sexual misconduct with a male inmate. 

While on supervised release in 1988, Green was convicted of first-degree criminal sexual conduct, kidnapping, and second-degree assault.  The sexual assault involved multiple penetrations of the victim over a 12-hour period in which Green used coercion including hitting, choking, and threatening to kill her.  Green told the victim that he had used similar violence on a previous girlfriend to secure her submission.  The district court departed upward from the presumptive guidelines sentence and imposed a term of imprisonment of 202 months.

 When admitted to the correctional facility, Green advised the sex-offender assessment committee that he is bisexual, highly sexed, and a "freak by nature, not by choice."  He denied his guilt and indicated that he was not interested in any treatment.  The committee opined that Green was sexually addicted and recommended a chemical€‘dependency evaluation and treatment for Green's antisocial behavior.  While incarcerated, Green committed disciplinary infractions, including exhibitionism, masturbation in the presence of female staff, assaultive and threatening behavior, and possession of weapons.  Green received numerous formal discipline reports while incarcerated, 13 of which were for sexual misconduct.         

In 1999, the end-of-confinement review committee designated Green as a level€‘three sex offender, in part because of Green's refusal to participate in any sex€‘offender or chemical-dependency treatment.  Prior to being released, Green refused to sign the sex-offender registration form, but eventually did so "under duress."  Green was released in 2000 with intensive supervision and public-risk monitoring.  As a condition of his release, he was required to participate in a sex-offender treatment program.  Within a few months, Green violated the conditions of release twice and was briefly reincarcerated for each violation.  After his release, Green violated the conditions of release within a month by testing positive for THC.  He was terminated from his chemical-dependency rehabilitation program and reincarcerated again for 120 days. 

Green participated in a chemical€‘dependency program, receiving a prognosis of "fair."  But within a few months, three new chemical-related violations were documented, totaling six violations while on supervised release. 

During his supervised release, Green attended sex-offender-treatment programming but was terminated on numerous occasions because he was not cooperative.  Green completed a psychosexual-education-aftercare program and attended a community-corrections sex-offender group.   

In January 2005, Olmsted County filed a petition for Green's civil commitment.  Dr. Rosemary Linderman, who was appointed to examine Green, concluded that he has antisocial-personality disorder, he lacks insight, control, and remorse, and there was no evidence that Green has changed.  Dr. Linderman opined that Green met the statutory criteria of an SDP and an SPP.  Green requested a second examination from Dr. Paul Reitman, who also opined that Green met the criteria for an SDP and an SPP and had a high likelihood of recidivism.  In December 2005, the district court granted the petition and committed Green as an SDP and an SPP.

            Pursuant to Minn. Stat. § 253B.18, subd. 2(a) (2006), Dr. John Fabian, forensic psychologist with the Minnesota Sex Offender Program (MSOP), prepared Green's 60€‘day-treatment report.  Dr. Fabian opined that Green has antisocial-personality disorder and minimally meets the statutory criteria for commitment as an SDP.  Dr. Fabian also opined that Green does not meet the statutory criteria for commitment as an SPP because Green has not demonstrated an utter lack of power to control his sexual impulses.  Dr. Fabian's opinion is based in part on his conclusion that Green has been convicted of only one sex offense.  But Dr. Fabian also observed that Green lacked insight into his criminal behavior, continually denied participation in the sex offense, and resists participating in sex-offender treatment.  Dr. Fabian also concluded that Green remains a risk for reoffending and is dangerous to others.

            Green requested Dr. Peter Meyers, an independent examiner, to prepare a second psychological assessment.  Like Dr. Fabian, Dr. Meyers concluded that Green continues to deny his sexual-assault history and remains in need of sex-offender treatment.  Contrary to Dr. Fabian's conclusion, Dr. Meyers testified that Green's 1988 conviction and history of sexually "acting out" while incarcerated demonstrate that Green has engaged in a course of harmful sexual conduct, and there is no new evidence that Green has the ability to control his sexual impulses.  Therefore, Green presents a high risk of reoffending and is a danger to the public. 

            Green sought discharge from the civil commitment based on Dr. Fabian's opinions.  But the district court found Dr. Meyers's testimony more persuasive.  Based on its finding that Green continues to meet the statutory criteria for involuntary commitment as an SDP and an SPP, the district court committed Green for an indeterminate period.  This appeal followed.

D E C I S I O N

We review the district court's factual findings for clear error, deferring to the district court's credibility determinations and its resolution of conflicting evidence.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  We do not reweigh the evidence; rather, we review de novo whether the evidence as a whole provides sufficient support for the district court's legal conclusions that the statutory grounds for commitment as an SDP and an SPP have been met.  In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I); In re Civil Commitment of Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).

I.

Green argues that the district court erred by determining that the evidence is sufficient to support the conclusion that he is an SDP.  A person is an SDP if he or she "(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(a) (2006).  The state is not required to prove an inability to control sexual impulses.  Id., subd. 18c(b) (2006).  Rather, the state must prove that the person to be committed as an SDP has an existing disorder or dysfunction that results in inadequate impulse control, making it highly likely that the person will reoffend.  In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV).

Harmful sexual conduct "creates a substantial likelihood of serious physical or emotional harm to another."  Minn. Stat. § 253B.02, subd. 7a(a) (2006).  A course of harmful sexual conduct is a sequence of such conduct that occurs over a period of time.  In re Civil Commitment of Stone, 711 N.W.2d 831, 837 (Minn. App. 2006), review denied (Minn. June 20, 2006).  Such incidents need not have been recent or have resulted in a criminal conviction.  Id.; In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).  Harmful sexual conduct need not actually cause physical or emotional harm; rather, it is sufficient that such conduct poses a substantial likelihood of causing physical or emotional harm.  Ramey, 648 N.W.2d at 269.  Conduct underlying a second-degree assault conviction is presumed to "create[ ] a substantial likelihood that a victim will suffer serious physical or emotional harm."  Minn. Stat. § 253B.02, subd. 7a(b) (2006).

Green argues that, because he has only one 18-year-old conviction for a sex offensethe 1988 first-degree sexual assaultthere is not substantial evidentiary support for the legal conclusion that he engaged in a course of harmful sexual conduct.  The district court's determination is based on expert testimony and on the second-degree assault committed in 1984, the first-degree sexual assault committed in 1988, and the 13 sexually related disciplinary infractions committed while Green was incarcerated.

The record establishes that the district court's determination is well founded.  In 1984, Green fired a shotgun and threatened his girlfriend and a man with whom Green believed she was having an affair.  Shortly after his release from prison, Green kidnapped and brutally raped and assaulted another woman.  For the latter offense, he was sentenced to 202 months' imprisonment.  His nearly continuous incarceration since 1984 has limited Green's opportunity to reoffend.  See In re Pirkl, 531 N.W.2d 902, 909 (Minn. App. 1995) (rejecting party's argument of lack of recency of sexual assaults, noting that imprisonment eliminates opportunity to reoffend), review denied (Minn. Aug. 30, 1995).  But he nonetheless committed 13 sexually related prison disciplinary infractions including sexual misconduct with other inmates, exposing himself, and masturbating in front of female guards.  These actions constitute a course of harmful sexual conduct.

Expert testimony also supports the district court's conclusion.  In addition to Green's criminal offenses and prison infractions, Dr. Linderman relied on Green's account of other sexual assaults to threaten his sexual-assault victim and concluded that based on the "whole picture" this behavior is an ongoing course of harmful sexual behavior.  Dr. Reitman and Dr. Meyers agreed.  Accordingly, the evidence provides substantial support for the district court's determination that Green engaged in a course of harmful sexual conduct.

Contrary to Green's contentions, the record also demonstrates that Green has manifested a sexual, personality, or other mental disorder or dysfunction.  Minn. Stat. § 253B.02, subd. 18c(a).  Dr. Linderman, Dr. Reitman, Dr. Fabian, and Dr. Meyers diagnosed Green as having antisocial-personality disorder.  Dr. Linderman opined that Green displays evidence of psychopathy, Dr. Reitman diagnosed Green with sexual sadism and paraphilia, and Dr. Meyers diagnosed Green with alcohol dependence and cannabis dependence.  Taken as a whole, there is ample evidence to show that Green manifests a sexual, personality, or other mental disorder or dysfunction.

The supreme court has set forth the following six factors to determine whether an offender is highly likely to reoffend:  (1) relevant demographic characteristics; (2) the offender's history of violent behavior; (3) base-rate statistics for violent behavior among individuals of the offender's background; (4) sources of stress in the environment; (5) the similarity of present or future contexts to past contexts in which violence was used; and (6) the offender's record with regard to sex-therapy programs.  Linehan I, 518 N.W.2d at 614 (setting out factors as applied to SPP commitment); see In re Linehan,557 N.W.2d 171, 180 (Minn. 1996) (Linehan III) (applying same factors to SDP commitment), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff'd on remand, 594 N.W.2d 867 (Minn. 1999).   

Green maintains that the record does not support the district court's determination that he is highly likely to engage in future acts of harmful sexual conduct.  We disagree.  Green has a history of juvenile and adult criminal offenses that began in 1972; he has serially committed new crimes while on parole, has had his probationary releases restructured, and has committed numerous sexually related disciplinary infractions while incarcerated.  Green has a history of violent behavior in addition to the offense conduct resulting in convictions.  While incarcerated, Green assaulted another inmate and contributed to a riot.  Dr. Meyers opined that "violence is at the heart" of Green's antisocial behavior.  Dr. Linderman testified that people, like Green, who have a history of violence, pose a heightened risk of future sexual assault.  Dr. Linderman also noted Green's minimization or outright denial of his criminal behavior, including the brutal rape in 1988 and his failure to seriously engage in sex-offender treatment.  According to Dr. Linderman, base-rate statistics among individuals with Green's background indicate elevated short-term and lifetime recidivism rates.

Dr. Linderman testified that sources of stress in Green's environment include his relationships with others and authority or probation parameters.  Dr. Linderman opined that Green demonstrates an absence of empathy required in relationships and a general absence of honesty, thereby making Green unpredictable and untrustworthy.

As to the similarity of present or future contexts to past contexts, experts testified that Green continues to demonstrate entitlement and an unwavering sense of denial.  And he continues to defy authority.  Green's sex-therapy record also indicates that he is highly likely to reoffend.  He has never completed an inpatient intensive sex-offender treatment program and does not have an understanding of relapse prevention.  Each expert agrees that Green's status as an untreated sex offender is a compelling factor in predicting his sexual recidivism.  As Dr. Meyers concluded, there is no new evidence that Green has the ability to control his sexual impulses, and "[h]e has done nothing in terms of deescalating his risk potential . . . ."

The record, including the opinions of four experts and statistical evaluations, provides substantial support for the district court's determination that Green has engaged in a course of harmful sexual conduct, manifests a sexual or mental disorder or dysfunction, and is likely to engage in acts of harmful sexual conduct.  Accordingly, the district court's conclusion that Green satisfies the criteria for SDP commitment is proper.  

II.

SPP commitment requires clear and convincing evidence of: (1) the existence of emotional instability, impulsive behavior, a lack of customary standards of good judgment, or a failure to appreciate the consequences of personal acts; (2) a habitual course of misconduct in sexual matters that results from the presence of a condition in the first criterion; and (3) an utter lack of power to control sexual impulses such that the person is dangerous to others.  Minn. Stat. § 253B.02, subd. 18b (2006).

Green argues that there is insufficient evidence to support the district court's conclusion that he engaged in a habitual course of sexual misconduct.  The record establishes otherwise.  To establish a habitual course of misconduct in sexual matters, in contrast to a "course of harmful sexual conduct" as discussed in section I, the incidents of sexual misconduct must be the same or similar.  Stone, 711 N.W.2d at 837.  According to the expert testimony, Green's second-degree assault, first-degree sexual assault, and numerous sexually related disciplinary infractions are similar because they are motivated by Green's impulse to exert power over others by exerting force and control in his sexual relationships.  As the district court observed, these disciplinary infractions involved "unbridled sexually inappropriate behavior," including "exhibitionistic nudity [and] purposefully masturbating in front of female staff."  Dr. Linderman opined that such repetitive behavior established a habitual course of sexual misconduct.  And Dr. Meyers testified that Green's sexual infractions while incarcerated demonstrate a "repetitive pattern of sexual deviancy."  There is ample evidence in the record to support the district court's finding that Green has engaged in a habitual course of sexual misconduct.

            When determining whether an offender has an utter lack of power to control his sexual impulses and is dangerous to others, we consider the Linehan factors addressed in section I, Linehan I, 518 N.W.2d at 614, along with additional factors, including the offender's relationship to the victims, attitude and mood, medical history, psychological assessment, In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994), and relapse-prevention plan, Pirkl, 531 N.W.2d at 907-08.

Green's history of relationships with his victims demonstrates that, when he perceived rejection, he responded with violence and brutality.  Dr. Linderman's and Dr. Reitman's characterization of Green as a power or control rapist is supported by Green's admission that he became sexually aroused when he threatened to kill his victims.  Green's psychological test results also indicate an utter lack of control.  One expert concluded from Green's test results that Green meets the criteria for psychopathy and is three to four times more likely than others to violently reoffend after his release from custody.  Another expert testified that Green's test results predict high recidivism rates because of Green's "cold and callous disregard of others."  Green has 13 disciplinary infractions for sexual behavior while incarcerated.  Green's recidivism pattern and lack of regard for sanctions demonstrate his utter lack of power to control his sexual impulses.

In addition, Green does not have a relapse-prevention plan, nor does he know what triggers his behavior.  Thus, there is strong evidentiary support for Green's indeterminate commitment as an SPP.

III.

Green next argues that the Minnesota Commitment and Treatment Act is unconstitutional under the double-jeopardy clause of the United States and Minnesota constitutions.  U.S. Const. amend. V; Minn. Const. art. I, § 7.  Green acknowledges that other double-jeopardy challenges to commitment as an SDP and an SPP have failed.  But he argues that the MSOP constitutes "preventative detention" in part because "[o]nly one ‘patient' has ever graduated from the treatment program . . . ."

Minnesota statutes are presumed constitutional, In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989), and we review a constitutional challenge de novo, State v. Johnson, 689 N.W.2d 247, 253 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  The Minnesota Supreme Court has repeatedly held that civil commitment is a remedial, not a punitive, course of action.  Blodgett, 510 N.W.2d at 916.  Consequently, the supreme court has rejected the claim that the SPP and SDP statutes violate the constitutional protection against double jeopardy.  See Linehan IV, 594 N.W.2d at 871-72 (holding that SDP act does not violate double-jeopardy protection); Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn. 1995) (observing that purpose of SPP commitment statute is treatment, not preventive detention). 

Citing Asfaha v. State, 665 N.W.2d 523 (Minn. 2003), and State v. Razmyslowski, 668 N.W.2d 681 (Minn. App. 2003), for the proposition that a criminal offender can receive custody credit for time spent in a correctional hospital if the level of confinement is equivalent to that of incarceration in a correctional facility, Green argues that confinement in the MSOP is sufficiently similar to incarceration in a correctional facility to be considered punitive confinement.  But Asfaha and Razmyslowski are distinguishable in that neither involved SDP or SPP commitment, and the remedial nature of this type of confinement is determinative of the double-jeopardy challenge.  Accordingly, Green's constitutional challenge fails.

Affirmed.