In the Matter of the Civil Commitment of: Ozhaawaskoo Giishig a/k/a Guy Israel Green.

Annotate this Case
In the Matter of the Civil Commitment of: Ozhaawaskoo Giishig a/k/a Guy Israel Green. A07-616, Court of Appeals Unpublished, September 11, 2007.

This opinion will be unpublished and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
A07-0616

 

In the Matter of the Civil Commitment of:
Ozhaawaskoo Giishig
a/k/a Guy Israel Green



Filed on September 11, 2007

Affirmed
Hudson, Judge

 

Sherburne County District Court

File No. P9-05-2825

 

Lori Swanson, Attorney General, Matthew Frank, Angela Helseth Kiese, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
 
Kathleen A. Heaney, Sherburne County Attorney, Sherburne County Courthouse, 13880 Highway 10, Elk River, Minnesota 55330-4601 (for respondent)
 
David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, Minnesota 55408 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

On appeal from an order for indeterminate commitment as a sexually dangerous person, appellant argues that (1) there is insufficient evidence to support his commitment; (2) his commitment is barred by collateral estoppel because the issues raised by the state's petition are the same as the issues the state raised in an unsuccessful 1993 petition for indeterminate commitment; (3) because he is a Native American, the court lacks jurisdiction to commit him under Public Law 83-280; and (4) his commitment is punitive and violates the Double Jeopardy Clause.  We affirm.

FACTS

            Appellant Ozhaawaskoo Giishig was raised in Detroit Lakes, Minnesota.  Appellant's family moved several times during his childhood and he attended high schools in Detroit Lakes, Moorhead, and Spring Lake Park.

1986

            In 1986, when he was 15 years old, appellant sexually assaulted his neighbor, who was the mother of one of appellant's friends.  The neighbor awoke to find appellant standing at her bedside; appellant was naked except for pantyhose covering his head.  Appellant fondled the victim's breast and penetrated her with his penis.  Appellant was charged in July 1986 but denied committing the offense.  Appellant maintained that he only intended to steal a VCR when he went to the victim's house and did not intend to rape the victim.  Appellant was adjudicated delinquent in April 1987 and was placed at the Hennepin County Home School Sex Offender Program.  In May 1987, appellant admitted that he had raped his neighbor.

1989

            On December 17, 1989, at age 18, appellant sexually assaulted a woman after approaching her in a parking lot.  Appellant touched the woman under her underpants, took her purse, and struck her face twice.  Five days later, appellant was charged with aggravated robbery, simple robbery, second-degree criminal sexual conduct, and fourth-degree criminal sexual conduct.  Appellant pleaded guilty to second-degree criminal sexual conduct and the remaining charges were dismissed. 

During the psychological-examination portion of the pre-sentence investigation (PSI) for his 1989 crimes, appellant "did not deny that he intended to rape [the victim] and stated that his offense against [the victim] was the first time he had intended rape since he was a juvenile."  Appellant later stated that he assaulted the woman because he felt rejected by his friends and admitted that he had been using marijuana and cocaine on the day of the assault.  In May 1990, appellant was sentenced to serve 44 months in prison.  Appellant did not participate in any sex-offender treatment while in prison because of discipline issues.   

Appellant eventually admitted that between 1987 and 1989, he had committed frottage approximately ten times.  He admitted that he had rubbed up against joggers and touched the thighs and buttocks of female strangers in places like shopping malls.  Later, however, appellant stated that he had made up the frottage incidents so he could get into treatment and avoid prison because he was afraid for his safety in prison.

1992

            While at the Minnesota Correctional Facility St. Cloud in 1992, appellant tried to detain a female corrections officer in his cell while he was masturbating.  Appellant was charged with sexual behavior for the offense.

            Anoka County petitioned to commit appellant as a psychopathic personality in December 1992.  The Anoka County district court denied the petition in April 1993.  The court stated it was "concerned about [appellant's] behavior" and noted that two of the court-appointed examiners did not find that appellant met the dangerousness requirement of the psychopathic-personality statute.  The district court concluded that it was not clear that appellant would commit sexual offenses in the future.  Appellant was released from prison in December 1992 to 180 Degrees, a halfway house.  Appellant left 180 Degrees without permission after three weeks.

            Appellant began sex-offender treatment in March 1993 but left after approximately half an hour.  He stated that he "couldn't deal with the pedophiles that were in the group" and that because of his Native American culture, "if [a person] would have committed a crime against another Native American child or something, I have to, I have to assault them.  I have to beat them up.  And I didn't want to be in that situation."

1994

            Appellant robbed a man at knifepoint on June 2, 1994, less than six months after being released from prison.  Appellant took $290 in cash from the man while appellant's girlfriend acted as a lookout.  Appellant was charged with aggravated robbery on June 3, 1994.  A jury found appellant guilty, and on February 23, 1995, he was sentenced to 62 months in prison.  In the presentence investigation, appellant admitted that he was high on marijuana and beer at the time of the offense.

            On November 8, 1994, while on pretrial release for the June 1994 robbery, appellant broke into a woman's home, threatened her with her own gun, and stole her car.  Appellant pointed the gun at the woman and threatened to shoot her in the head if she refused to give him the keys to her car.  Appellant's girlfriend accompanied appellant during the robbery.  Appellant later lied to police officers about his identity when questioned about the offense. 

            On November 10, 1994, appellant was charged with first-degree burglary, first-degree aggravated robbery, second-degree assault, theft of a firearm, theft of a motor vehicle, and first-degree criminal damage to property.  The first-degree criminal-damage-to-property charge was subsequently dismissed.  A jury convicted appellant on the remaining five charges on May 17, 1995.  In July 1995, appellant was sentenced to serve 88 months in prison.

1999

            In 1999, a female corrections officer at the Minnesota Correctional Facility Willow River/Moose Lake entered appellant's cell during a daily count of prisoners.  The officer noticed that appellant was sitting in a chair with no pants on and an obvious erection.  As a result, appellant was charged with improper dress and sexual behavior; a prison hearings officer found him guilty only of improper dress.

The Sherburne County district court addressed this incident in its 2006 commitment order and concluded that "the state of undress and sexual arousal of [appellant] . . . was deliberate and sexually motivated" because it was likely that appellant could have anticipated that a corrections officer would have entered his cell during the daily count.

2000

Appellant was released from prison in 2000.  Within seven days after being released, appellant violated house arrest and a warrant was issued for his arrest.  Appellant's release was eventually revoked, and he returned to prison in March 2000.

In July 2000, appellant was released from prison to the 180 Degrees halfway house.  Appellant again absconded from the halfway house.  In August 2000, appellant lied about his identity to a police officer when he was approached while sitting in a parked van.  Appellant had a warrant out for his arrest for a probation violation, and he was charged with gross misdemeanor false information to peace officer.  Appellant returned to prison in November 2000.  Appellant was again released from prison in January 2001. 

2001

In 2001, child protection received a report that appellant was sexually abusing his girlfriend's children.  Both children denied that any sexual abuse had taken place, and appellant was not charged.  Appellant was married in 2001.  He divorced in 2003, and his ex-wife obtained a harassment/restraining order against him in January 2004.

2002

            Appellant returned to prison in July 2001 after failing to abide by the conditions of his release.  Appellant also admitted using cocaine while on release.  Appellant was released from prison again in January 2002.  While being transported from prison to the Mahnomen County jail, appellant threatened his supervised-release agent with a pen.  Appellant was charged with felony escape from custody and misdemeanor fifth-degree assault on January 9, 2002. 

Appellant eventually returned to prison for escape from custody.  In April 2002, appellant was charged with fifth-degree assault and disorderly conduct after assaulting a fellow inmate in the Isanti County jail.

2003

            Appellant was released from prison in July 2003 after this court overturned his escape conviction.  Appellant was later charged with failure to register as a predatory offender, but the charges were dismissed after he registered in Sherburne County.

2004

            On January 17, 2004, appellant assaulted his girlfriend, who, at the time, was approximately eight months pregnant with his child.  Appellant got into an argument with her and shoved her backwards; she fell onto a table, breaking it, and then fell to the floor.  Appellant then kicked her repeatedly in the head and punched her in the face until she became unconscious.  Appellant apparently threatened to kill those who witnessed the assault if they tried to help the victim.  Appellant later claimed that he had acted in self-defense.  At his 2006 commitment trial, he testified that he had been under the influence of cocaine and marijuana at the time of the assault.

            Shortly after assaulting his girlfriend, appellant drove his car off a cliff in Minneapolis in an attempt to commit suicide.  Appellant threatened the police officers who arrived at the scene, saying that he would shoot and kill them if they approached him.  Appellant later testified that he had tried to commit suicide because he thought he had killed his unborn child.

At one point, appellant "drafted an affidavit for [the victim's] signature, in which [the victim] would recant some of her statements to the police about the assault."  Appellant testified that he did not think he should be sent to prison for assaulting his pregnant girlfriend because he "felt he should have been punished by the blood guilt conscious [sic]."  He stated: "I think I have been punished enough." 

Appellant was charged with second-degree assault, third-degree assault, and terroristic threats on January 21, 2004.  On February 2, 2004, appellant threatened to commit suicide and requested a mental-health assessment.  Following a court-ordered rule 20 psychological evaluation, Dr. Peter Meyers, M.Div., Psy.D., L.P., diagnosed appellant with (1) polysubstance-induced mood disorder (depressed); (2) polysubstance dependence; and (3) adult-antisocial-personality disorder.  Dr. Meyers concluded that appellant was competent to stand trial.  In April 2004, a jury convicted appellant of terroristic threats and third-degree assault.

            In May 2004, while in the Sherburne County jail, appellant assaulted a female corrections officer.  The officer intervened when she observed appellant in a scuffle with another corrections officer.  As she tried to help subdue appellant, he grabbed her shirt.  The officer later testified that she believed he had looked at her breast and was actually trying to grab her breast.  A videotape of the incident was played before the district court at appellant's 2006 commitment trial.  The report of Dr. James Alsdurf, Ph.D., L.P., noted that appellant had admitted to him that he had grabbed the female guard's breast in "self-defense."  Sherburne County charged appellant with fourth-degree assault.  The charge was later dismissed because appellant was already in prison for the 2004 assault of his pregnant girlfriend.     

2005

            Appellant underwent an annual review at the Minnesota Correctional Facility Rush City on July 19, 2005.  The review noted that appellant had been unable to complete either chemical-dependency or sex-offender treatment because of discipline issues.  On July 28, 2005, a sexual psychopathic personality/sexually dangerous person review report was prepared.  The report concluded that appellant was a "stranger on stranger rapist who has engaged in predatory-type sex offense behavior [and] has employed weapons to gain access to victims."  Appellant's score on the MnSOST-R test indicated that he was at a high risk to re-offend sexually.

2006

Two psychologists, Dr. Paul Reitman, Ph.D., L.P., F.A.C.F.E., and Dr. Rosemary Linderman, Psy.D., L.P., reviewed appellant's records prior to the filing of Sherburne County's 2006 commitment petition.  Dr. Reitman supported a commitment petition but Dr. Linderman did not.  Dr. Linderman concluded that appellant's history indicated that he was dangerous in general, but that he did not meet the criteria for commitment as a sexual psychopathic personality or as a sexually dangerous person.  Dr. Reitman noted that although appellant had not sexually re-offended since 1989, he had also been incarcerated for most of that time.

In December 2005, Sherburne County petitioned to commit appellant as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP).  At the commitment hearing, appellant testified that he had changed as a result of a spiritual conversion, asserting that he thought his chances of committing a violent act in the future were "[s]lim to none" because

I am more in tune with the church.  I have a religious love for God.  He is in my life every day.  Every time there has become a challenge in my life since I have accepted Jesus into my heart, I have used that as intervention and to always reflect on.

 

Appellant is currently engaged to a woman he met in about 2003.  They initially met through a friend who was incarcerated with appellant at St. Cloud.  At the commitment hearing, appellant's fiancée testified that she has noticed a change in appellant since she has known him and that he has undergone an "awakening."  They are planning to get married.  Ms. Moreland has never been in a relationship with appellant while he was out of custody and has not had any sort of sexual relationship with appellant.

Appellant testified that his family would support him and would help him get a job.  Appellant stated that he would not volunteer for treatment because it is too expensive.  Appellant testified that his belief in Christ is "better than any civil commitment."  He testified that he deals with his feelings by "meditat[ing] and pray[ing].  I ask God, I ask Jesus, I ask the Holy Spirit.  I go to my future wife.  I speak to my family." 

At the hearing, each party presented testimony of a court-appointed expert psychological witness.  Both psychologists relied on similar tests, including the Millon Clinical Multiaxial Inventory-III, the Personality Assessment Inventory, the Psychopathic Checklist-Revised, the STATIC-99, the Sex Offender Risk Appraisal Guide, the MnSOST-R, the Sexual Violence Risk-20, and the HCR-20.  Respondent's expert, Dr. Alsdurf, testified in support of commitment of appellant, while appellant's expert, Dr. Meyers, testified in opposition to his commitment.

            Dr. Alsdurf diagnosed appellant with (1) sexual paraphilia not otherwise specified (NOS); (2) mood disorder by history; (3) polysubstance dependence in sustained, forced remission; and (4) antisocial personality disorder NOS with narcissistic features.  Dr. Alsdurf testified that, in his opinion, there is a reasonable degree of psychological certainty that appellant satisfies the statutory criteria for commitment as a sexually dangerous person.  He also testified that he does not believe that appellant meets the criteria for commitment as a sexual psychopathic personality. 

            Dr. Alsdurf interviewed appellant on two separate occasions.  At trial, he noted that

[Psychopaths] can have certain features: They are engaging, they have a glibness; there is a shallow affect; there is a capacity to actively connect with you.  And I was impressed with [appellant].  That's one of the reasons why I had the second interview.  I wanted to see if he could persist in that.  Because the reports had indicated that he has a great deal of difficulty persisting on the right track.  And it was apparent to me in the second interview that he was quite almost paranoid at times, and contentious, and passive aggressive.

 

            Dr. Alsdurf also concluded that appellant has engaged in a course of harmful sexual conduct.  He testified that the fact that appellant has not committed a sexual offense since 1989 does not affect his conclusion regarding a course of harmful sexual conduct because "there is a whole range of other sexual behavior for which he has not just simply been caught."  Dr. Alsdurf also stated that he believed the February 1992 incident in which appellant was caught masturbating in his prison cell was "a continuation of very reckless sexual misconduct."  He continued, "there are a variety of sexual events that are deliberate on his part and have taken place over time, and not just his first two offenses, but other behaviors as well."  Dr. Alsdurf testified that prison certainly interrupted the course of harmful sexual conduct but did not stop it completely.  In his report to the court, Dr. Alsdurf also noted that appellant "has very high scores on actuarial methods and would not receive any real reduction in risk level based on the time gap between his last offense and the present date."  He stated that "the authors of the STATIC-99 state that adjusted risk estimates would be lower only if offenders live ‘in the community without incurring new offenses' of a violent nature" and that "‘[a]djusted crime-free rates only apply to offenders who have been without a new sexual or violent offense.'"[1]

Dr. Alsdurf testified that appellant's conduct created a substantial likelihood of serious physical or emotional harm to his victims.  Dr. Alsdurf also stated that, in his professional opinion, appellant currently has a sexual personality disorder or other mental disorder.  Specifically, he diagnosed appellant with sexual paraphilia (a deviant pattern of sexual arousal) NOS and stated that

there is a robustness about [appellant's] disorders that was still evident during my interviews, and I think to date.  That is striking to me in light of the fact that he has . . . had such severe consequences.  And part of the distinction, I think, between people who are psychopathic and people who are antisocial, is that people who are just antisocial who are getting rubbed up against, and who are experiencing consequence, and are having to deal with the system, it tends to wear them down.  I don't see a lot of evidence that's happened with [appellant].     

 

            Dr. Alsdurf stated that he believes appellant is "highly likely" to engage in harmful sexual conduct in the future.  Using the STATIC-99 test, Dr. Alsdurf estimated that appellant has "a 39% likelihood of reoffending at five years, a 45% at ten years and a 52% at fifteen years."  Regarding appellant's violent nature, he stated that "I think his assault on his girlfriend who is pregnant with his child is reflective of a person who will be violent without a whim. . . .  It's a very unusual thing to physically engage somebody who is pregnant in that kind of manner."  Dr. Alsdurf also testified that appellant's

disinhibition and dysregulation is so much connected to drug and alcohol that if he returns to the setting where he can use and drink I know what assurances he made, but I am extremely [skeptical] he is not going to use drugs or alcohol again. . . . [H]e is going to be at risk because of that alone.

 

Dr. Alsdurf testified, "I believe that his religious language, and his religious talk, and his religious beliefs are authentic.  I don't think he is just simply using that in a kind of instrumental way."  But he also stated that there is an "incongruity and kind of dissidence . . . blatantly apparent in [appellant]. . . .  It is great he had his new faith, he is a new kind of a person in Christ. . . .  [But] I don't see there is much evidence of him applying that.  . . . [T]here is not much evidence of transformation." 

Appellant's expert, Dr. Meyers, testified that he does not believe appellant meets the threshold criteria required for commitment as a sexually dangerous person.  He diagnosed appellant with (1) polysubstance dependence, in remission via controlled setting; (2) antisocial personality disorder; and (3) Chrohn's disease.  He testified that appellant currently shows symptoms of a personality disorder but not paraphilia.

[It is] very clear to me that around the time of [appellant's] convictions in '87 and '89, there is no doubt to me that a paraphilia did exist.  That paraphilia being NOS, non-consent.  But since that time, and more importantly since 1992, as I look definitionally at what paraphilia NOS represents, there is, to me, no evidence that it is currently operating. 

 

Dr. Meyers explained that he did not see any evidence of any recurrent sexual behavior since 1992, even though appellant has had the opportunity to commit such behavior. 

            Dr. Meyers testified that he believed to a reasonable degree of scientific certainty that there is not a disorder or disruption that prevents appellant from controlling his sexual impulses.  He noted that appellant has spent a considerable amount of time in prison "being scrutinized and monitored to the nth degree," and appellant has not demonstrated any sexual disorder or deviant behavior since 1992.  He also pointed out that because of appellant's history, prison officials were likely to pay special attention to him and monitor him carefully.  On cross-examination, Dr. Meyers acknowledged that any evidence that appellant has a current deviant sexual-arousal pattern would be based entirely on appellant's self-reporting.  But he also noted that some of the psychological tests appellant underwent are designed to determine whether the test-taker is denying, minimizing, or rationalizing his own behavior.

            Dr. Meyers stated that he believed that appellant is not highly likely to engage in future acts of harmful sexual conduct.  Using the STATIC-99 test, he estimated appellant's likelihood of reoffending to be ".33 over 5 years, .38 over 10 years and .40 over 15 years."  He cited favorably appellant's acknowledgement of his crimes and his recognition that he has "destroyed lives."  Dr. Meyers noted that, at the time of his evaluation, appellant "had been [in a relationship] for over two years. . . . That's significant in this particular realm of risk."  Dr. Meyers also stated that although appellant has a history of chemical dependency, there did not appear to be any indication that he had used drugs or alcohol since his 2004 arrest. 

            Dr. Meyers testified, "It was very clear that [appellant] did not try and hedge his activity that went into the two charges and ultimate convictions.  He talked about frotteurism during that period of his life.  He equally did not deny that he had a sexual charge at the DOC level.  That's pretty significant . . . to me."  He continued, "[t]he thing that I am really impressed by is the fact that we don't have anything since 1992 where opportunity fully existed."  Dr. Meyers admitted during cross-examination that appellant's victim pool is non-consenting females and that appellant did not have the kind of free contact with that victim pool in prison that he would have had if he were on the streets.  But Dr. Meyers also noted that "there are quite a number of female people that work for corrections" and "for the most part, he still is operating with people that are potential victims in corrections."

            Dr. Meyers testified that he did not regard the 1999 masturbation incident in prison as an important event, partly because the DOC did not interpret it as a rule violation and partly because "privacy is a luxury that you have little opportunity of in prison. . . . And so the act of masturbation, you know, I just don't see this as an egregious event."  Dr. Meyers also stated that based on his interpretation of the video of the footage of the 2004 event at the Sherburne County jail, he did not believe it was a "sexual acting out by any stretch of the imagination. . . .  When somebody is in that kind of tussle, I certainly didn't see an erotic behavior to it." 

            Dr. Meyers acknowledged that appellant has had difficulty completing treatment in the past, but that he believed that appellant is "motivated for treatment" and that "he does appear to have a fairly good capacity for treatment.  And I think that's very noteworthy in this particular case."  He added:

[appellant] wants to continue with his relationship.  I think certainly his spirituality is vital, and he wants to participate in those activities.  More importantly, the way I look at this specifically toward [appellant], is the fact of his treatment.  He is not saying he is never going back to treatment.  Specifically sex offender treatment.  And to me, that's at the heart of why I said no.  Because at the time during my discussion with him, there was not any question that he would not participate in that.

 

But Dr. Meyers admitted that appellant's past behavior contradicts his conclusion regarding appellant's likelihood to participate in treatment in the future.

Following the presentation of respondent's case, appellant moved to dismiss the petition to commit appellant as a sexual psychopathic personality.  Respondent took no position on the motion, and the district court dismissed the SPP petition.

            In an 84-page order, the district court concluded that appellant met the statutory requirements for commitment as a sexually dangerous person as defined in Minn. Stat. § 253B.02, subd. 18c (2006).  The district court concluded that (1) there was clear-and-convincing evidence that appellant engaged in a course of harmful sexual conduct; (2) there was clear-and-convincing evidence that appellant suffers from sexual or personality disorders and that appellant "has serious difficulty controlling his sexually harmful behavior and lacks adequate ability to control his sexually harmful behavior"; (3) there was clear-and-convincing evidence that "it is highly likely that [appellant] will engage in further harmful sexual conduct and he is dangerous to others"; and (4) there was clear-and-convincing evidence that appellant is in need of treatment and appellant has not shown that there is a less-restrictive treatment program available that would meet his needs and be consistent with public safety.  The district court committed appellant to the Minnesota Sex Offender Program (MSOP) in St. Peter and Moose Lake. 

On September 21, 2006, the district court held a 60-day review hearing on a treatment report from the MSOP pursuant to Minn. Stat. § 253B.18, subds. 23 (2006).  The MSOP treatment report concluded that (1) there was a course of harmful sexual conduct; (2) appellant's diagnoses include paraphilia NOS, polysubstance dependence in a controlled environment, and antisocial personality disorder; (3) appellant is highly likely to engage in harmful sexual conduct; (4) appellant signed a contract indicating an interest in sex-offender treatment; and (5) appellant is in need of further care and treatment, specifically sex-offender treatment. 

At the hearing, appellant stated that he did not believe he needed any treatment but that he would be willing to participate in treatment.  Appellant also indicated his intention to file a motion to request a transfer of jurisdiction to the White Earth Band of Ojibwa and a motion arguing collateral estoppel.

The district court concluded that there was no new evidence to suggest that the risk appellant presents to society had lessened and also that appellant was in need of "comprehensive sex offender treatment."  That same day, the district court issued a written order of indeterminate commitment.  The court noted that appellant's prognosis is "guarded" and "would improve were he to complete a program such as the [MSOP]."  The court also stated that appellant "produced no evidence at the review hearing concerning the appropriateness and availability of placements other than MSOP."  The district court concluded that the statutory requirements for civilly committing an SDP in Minn. Stat. §§ 253B.02, subd. 18c, 253B.18, subd. 1(a), and 253B.185, subd. 1, continued to be met and that MSOP is the "appropriate and least restrictive alternative available to provide confinement, care, and treatment to [appellant]."

            Appellant moved for a new trial, amended findings, and relief from judgment.  At a December 14, 2006 hearing on his motions, appellant argued that the state was collaterally estopped from committing him because it was "basically relitigating identical issues from 1993, since there was no additional sexual behavior that would meet any standard since 1993." 

On January 23, 2007, the district court issued an order denying appellant's motions.  The court concluded that (1) its 2006 factual findings met the clear-and-convincing standard; (2) appellant's circumstances had changed since 1993; and (3) the issues presented in 1993 and 2006 were not identical, thus collateral estoppel was not applicable.  This appeal follows. 

D E C I S I O N

This court reviews the district court's factual findings for clear error and defers 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 by clear and convincing evidence the record provides sufficient support for the district court's legal conclusions that the statutory grounds for commitment as a sexually dangerous person (SDP) are 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

 

            Appellant argues that there was insufficient evidence showing that his present condition warrants his indeterminate civil commitment as a sexually dangerous person.  Appellant maintains that the evidence does not establish clearly and convincingly that he is a sexually dangerous person and that he has no "current or present qualifying mental disorder or dysfunction."  Appellant also argues that a diagnosis of "Paraphilia not otherwise specified (NOS)" does not meet the statutory definition of SDP under Minn. Stat. § 253B.02, subd. 18c(a)(2) (2006).

To establish that commitment as an SDP is warranted, the state must prove by clear-and-convincing evidence that the person meets the definition of an SDP.  Minn. Stat. §§ 253.18, subd. 1(a), 253.185, subd. 1 (2006).  An SDP is defined as "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 highly likely to engage in acts of harmful sexual conduct."  Minn. Stat. § 253B.02, subd. 18c(a) (2006).  "Harmful sexual conduct" is "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another."  Minn. Stat. § 253B.02, subd. 7a(a) (2006).  To meet the definition of an SDP, "it is not necessary to prove that the person has an inability to control the person's sexual impulses," id., subd. 18c(b) (2006), but the statute requires a showing that the person's disorder "does not allow [him] to adequately control [his] 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 IV); see In re Linehan,557 N.W.2d 171, 180 (Minn. 1996) (Linehan III) (construing the statutory phrase "likely to engage in acts of harmful sexual conduct," Minn. Stat. § 253B.02, subd. 18c(a)(3), as "highly likely" to engage in such conduct), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997).

            The record before us supports the district court's conclusion that appellant meets the statutory requirements for commitment as a sexually dangerous person.  First, although conflicting evidence was presented and Dr. Meyers disagreed with some of Dr. Alsdurf's conclusions, the district court made specific credibility findings throughout its order regarding the doctors' respective testimony and generally credited the opinions of Dr. Alsdurf.  This court defers to the district court regarding credibility determinations and the resolution of conflicting evidence.  Minn. R. Civ. P. 52.01; Joelson, 385 N.W.2d at 811.

            Second, the district court concluded that appellant had engaged in a course of harmful sexual conduct and noted that both doctors shared that opinion.  Incidents establishing a course of conduct may extend over a long period of time, and the court is not limited to considering only conduct that resulted in a criminal conviction.  In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002) (stating that court may consider conduct not resulting in conviction), review denied (Minn. Sept. 17, 2002); In re Irwin, 529 N.W.2d 366, 374 (Minn. App. 1995) (stating that conduct need not be recent), review denied (Minn. May 16, 1995).  Incidents making up a course of conduct need not be similar.  In re Civil Commitment of Stone, 711 N.W.2d 831, 837 (Minn. App. 2006), review denied (Minn. June 20, 2006).  This standard does not require that the conduct actually create physical or emotional harm, but rather that there is a substantial likelihood of causing physical or emotional harm.  Ramey, 648 N.W.2d at 269.  The record and the testimony before the district court, in particular the testimony of Dr. Alsdurf, are adequate to support its conclusion that appellant engaged in a course of harmful sexual conduct. 

Third, the district court concluded that appellant "has manifested a sexual, personality, or other mental disorder or dysfunction."  Minn. Stat. § 253B.02, subd. 18c(a)(2).  Without citing legal authority, appellant argues that a diagnosis of paraphilia NOS is inadequate to support his commitment.  Appellant argues that because an "NOS" diagnosis is a "waste basket category," it "would be a miscarriage of justice to affirm the trial court[']s findings . . . based on . . . a diagnosis of not otherwise specified (NOS) . . . and from behavior that occurred 14 years earlier."  But according to the testimony of Dr. Alsdurf, an "NOS" diagnosis means that appellant's behavior does not match any specifically designated paraphilia, not that none exists. The record, including the testimony and reports of expert witnesses, is adequate to support the district court's conclusion. 

Finally, the district court concluded that as a result of appellant's course of misconduct and mental disorders or dysfunctions, appellant is "likely to engage in acts of harmful sexual conduct."  Minn. Stat. § 253B.02, subd. 18c(a)(3).  When reviewing this determination, an appellate court must find that it is "highly likely" that a person will engage in further harmful sexual conduct.  Linehan IV, 594 N.W.2d at 876.  Six factors are considered when examining whether an offender is highly likely to reoffend, including: (1) the offender's demographic characteristics; (2) the offender's history of violent behavior; (3) the base-rate statistics for violent behavior among individuals with the offender's background; (4) the sources of stress in the offender's environment; (5) "the similarity of the present or future context to those contexts in which the [offender] has used violence in the past"; and (6) the offender's record of participation in sex-therapy programs.  Linehan I, 518 N.W.2d at 614; see also Civil Commitment of Stone, 711 N.W.2d at 840 (citing the six Linehan I factors).

            In a detailed analysis, the district court concluded that appellant is highly likely to engage in further sexual conduct based on, among other things, (1) his mental disorders; (2) his lack of insight; (3) his lack of a relapse-prevention plan; (4) his lack of sex-offender treatment; (5) his angry and violent behaviors; (6) appellant's base-rate statistics based on the STATIC-99 assessment administered by Dr. Alsdurf; and (7) appellant's failure to take responsibility for his actions.  The record supports the district court's conclusions.  For these reasons, we conclude that there is sufficient evidence to support the district court's conclusion that appellant meets the statutory requirements for civil commitment as an SDP. 

II

 

            Appellant argues that collateral estoppel barred the district court from committing him as a sexually dangerous person because "the conditions and circumstances leading to [his] commitment have not changed since the court previously found him not to be committable."  Appellant's argument is unpersuasive.

            "Collateral estoppel is meant to apply to an issue of ultimate fact."  In re McPherson, 476 N.W.2d 520, 521 (Minn. App. 1991) (quotation omitted), review denied (Minn. Dec. 13, 1991).  In McPherson, this court held that collateral estoppel does not apply to a petition for civil commitment because the determination of whether a person is in need of commitment "does not involve the determination of an ultimate fact that can preclude relitigation of the issue" because the individual's "condition or circumstances may change, making a new petition for commitment appropriate."  Id. at 522 (addressing collateral estoppel in the context of commitment as mentally retarded under Minn. Stat. § 253B.02, subd. 14 (1990)).  Appellant acknowledges this court's decision in McPherson but argues that this case is distinguishable because "the conditions and circumstances leading to appellant's commitment have not changed since the court previously found him not to be committable." 

            But the record does not support appellant's argument.  Dr. Alsdurf testified that "there are a variety of sexual events that are deliberate on his part and have taken place over time, and not just his first two offenses, but other behaviors as well."  And in the 13 years since appellant's 1993 commitment hearing, there is evidence that he has engaged in multiple acts of violence directed towards both strangers and known victims, both in and out of prison, including: (1) robbing a man at knifepoint; (2) breaking into a house and threatening the victim with her own gun; (3) improper dress while in prison; (4) various parole violations; (5) giving false information to a police officer; (6) escape from custody; and (7) multiple assaults, including that of his pregnant girlfriend.  Appellant has also admitted to drug and alcohol use.  For all these reasons, we conclude that collateral estoppel does not bar appellant's indeterminate civil commitment.

III

 

            Appellant argues that the district court did not have jurisdiction to commit him as a sexually dangerous person because he is a White Earth Band of Ojibwa Reservation-domiciled Tribal Member, and Public Law 280 preempts the district court's jurisdiction. 

"State court jurisdiction over matters involving Indians is governed by federal statute or case law."  State v. Stone, 572 N.W.2d 725, 728 (Minn. 1997).  But if Congress expressly provides, state laws may be applied to tribal Indians on their reservations.  Id.  "In Public Law 280, Congress granted Minnesota broad criminal and limited civil jurisdiction over all Indian country within the state, with the exception of the Red Lake Reservation."  Id. (footnote omitted).

"In order for a state law to be fully applicable to a reservation under the authority of Public Law 280, it must be a criminal law," id. at 729, but "the mere presence of a criminal penalty" does not ensure applicability.  State v. Busse, 644 N.W.2d 79, 91 (Minn. 2002).  Because "[t]here is no bright-line rule which separates a criminal law from a civil law," we apply a two-step test to determine whether a law is "civil/regulatory" or "criminal/prohibitory."  Stone, 572 N.W.2d at 72930; see also Busse, 644 N.W.2d at 83 (applying Stone's two-part test to determine whether a law is civil/regulatory or criminal/prohibitory). 

The first step is to determine whether to analyze the broad or narrow conduct.  Busse, 644 N.W.2d at 83.  Unless the narrow conduct presents substantially different or heightened public policy concerns, we focus on the broad conduct.  Id. 

[I]n light of the purpose of Public Law 280 to combat lawlessness, we interpret "public policy" . . . to mean public criminal policy.  Public criminal policy goes beyond merely promoting the public welfare.  It seeks to protect society from serious breaches in the social fabric which threaten grave harm to persons or property.  We find the following factors to be useful in determining whether an activity violates the state's public policy in a nature serious enough to be considered "criminal": (1) the extent to which the activity directly threatens physical harm to persons or property or invades the rights of others; (2) the extent to which the law allows for exceptions and exemptions; (3) the blameworthiness of the actor; (4) the nature and severity of the potential penalties for a violation of the law.  This list is not meant to be exhaustive, and no single factor is dispositive.

 

Stone, 572 N.W.2d at 730 (footnote omitted).  In addition, in State v. Jones, 729 N.W.2d 1 (Minn. 2007), the Minnesota Supreme Court stated that "[i]t is difficult to dispute that predatory offenders pose a threat to public safety."  Id. at 8 (listing several predatory crimes including criminal sexual conduct).  Because such conduct violates public policy, we analyze this issue based on the narrow category of criminal sexual conduct.

Here, the district court addressed appellant's argument in a May 8, 2006 order and memorandum.  The court concluded that it had jurisdiction in this matter and denied appellant's motion to dismiss on that ground. 

In this case, the proscribed conduct is narrowly defined.  The statute at issue mandates that someone who meets the statutory definition and is a danger to the public, must be committed to a secure facility. . . .  Moreover, the sex offender commitment statutes are consistent with Minnesota laws prohibiting criminal sexual conduct.  It is not merely regulated conduct or part of a governmental regulatory scheme.  The court finds that sex offender commitment statutes are prohibitory and, therefore, this court has jurisdiction in this matter.

 

We agree.  Based on the Stone factors, the conduct for which appellant is being committed violates the state's criminal public policy and "threaten[s] grave harm to person or property."  Stone, 572 N.W.2d at 730.

The second step is to determine whether the conduct is "generally permitted but subject to regulation, or if it is generally prohibited."  Busse, 644 N.W.2d at 83.  In Minnesota, criminal sexual conduct is generally prohibited.  Therefore, we conclude that the civil commitment of appellant as an SDP under Minn. Stat. §§ 253B.02, subd. 18c, 253B.18, subd. 1(a), and 253B.185, subd. 1, is a criminal/prohibitory law applicable to appellant pursuant to Public Law 280 and that the district court had jurisdiction to hear this matter and civilly commit appellant.

IV

 

Appellant argues that if the district court did have jurisdiction to civilly commit him, then the civil-commitment statute for SDP is a criminal prohibitory/deterrent statute and his commitment under the statute is barred by state and federal constitutional protections against double jeopardy.

But "[t]he focus in a double jeopardy analysis is on the sanctions and their purposes, whether remedial, deterrent, or retributive.  The focus in a [Public Law] 280 analysis is not on the sanctions but on whether the conduct is regulated or prohibited."  Bray v. Comm'r of Pub. Safety, 555 N.W.2d 757, 760 (Minn. App. 1996) (citation omitted).

The Minnesota Supreme Court has determined that civil commitment is a remedial, not a punitive, course of action.  In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994) (reasoning that commitment is not a "life-long preventative detention").  As a result, the supreme court has rejected the argument that the SDP or SPP statutes violate the constitutional protection against double jeopardy.  Linehan III, 557 N.W.2d at 18889 (SDP); Call v. Gomez, 535 N.W.2d 312, 31920 (Minn. 1995) (finding that the purpose of the SPP commitment statute is treatment, not preventive detention); Joelson v. O'Keefe, 594 N.W.2d 905, 91112 (Minn. App. 1999) (holding that SPP law does not violate double jeopardy), review denied (Minn. July 28, 1999); see also State ex. rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 550, 287 N.W. 297, 300 (1939) (noting that a civilly committed individual receives treatment upon commitment and, therefore, the statute is not punitive but remedial), aff'd, 309 U.S. 270, 60 S. Ct. 523 (1940).  The United States Supreme Court has similarly concluded that states have an interest in civilly committing those who present a danger to others.  Kansas v. Hendricks, 521 U.S. 346, 36566, 117 S. Ct. 2072, 2084 (1997); see also Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct. 1804, 1809 (1979) (recognizing the state's legitimate interest in caring for those unable to care for themselves and protecting the community from the dangerous behavior of mentally ill persons).  Therefore, we conclude that appellant's argument is without merit.

            Affirmed.

 


[1] Dr. Alsdurf defined the STATIC-99 as an actuarial measure that "assess[es] sexual recidivism from two different angles" and uses "a statistical construction of specific variables and their connection with rearrests or reconvictions."  It was "developed to improve the accuracy of recidivism risk assessment and to provide explicit direction as to the relative importance of each [variable]."