In the Matter of the Civil Commitment of: Kenneth Richard Domrose.

In the Matter of the Civil Commitment of: Kenneth Richard Domrose. A07-649, Court of Appeals Unpublished Decision, September 18, 2007.

This opinion will be unpublished and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

A07-649

 

In the Matter of the Civil Commitment of:

Kenneth Richard Domrose.

 

Filed September 18, 2007

Affirmed

Parker, Judge*

 

Hubbard County District Court

File No. P0-06-283

 

Steven H. Bolton, Bolton Law Office, P.O. Box 126, Park Rapids, MN 56470 (for appellant Kenneth Richard Domrose)

 

Lori Swanson, Attorney General, Elizabeth I. Wrobel, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134 (for respondent State of Minnesota)

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

 

PARKER, Judge

 

            On appeal from an order for indeterminate commitment as a sexually dangerous person, appellant Kenneth Domrose argues that the district court erred in (1) determining that the evidence clearly and convincingly showed that he is highly likely to reoffend within the meaning of the civil-commitment statute; (2) striking an affidavit from the record submitted after the trial; and (3) ruling that rule 22 of the special rules of civil commitment is constitutional.  Because the evidence clearly and convincingly supports the district court's determination that appellant is a sexually dangerous person and appellant's other arguments have no merit, we affirm.

D E C I S I O N

I.

Domrose argues that the evidence does not sustain the district court's conclusion that he is a sexually dangerous person.  "We review de novo whether there is clear and convincing evidence in the record to support the district court's conclusion that appellant meets the standards for commitment.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).  An appellate court will uphold the court's findings if they are not clearly erroneous.  See, e.g., In re Preston, 629 N.W.2d 104, 110 (Minn. App. 2001).  When the evidence is in conflict as to the existence of a psychopathic personality, the question is one of fact to be determined by the district court upon all the evidence.  In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).  When the findings of fact rest upon expert testimony, the district court's "evaluation of credibility is of particular significance."  Thulin, 660 N.W.2d at 144 (quotation omitted).

To commit someone as a "sexually dangerous person," the petitioner must prove that the person:

(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).  "A sexually dangerous person is subject to civil commitment only if the person's disorder or dysfunction does not allow adequate control over sexual impulses and makes it highly likely that the person will reoffend."  In re Civil Commitment of Stone; 711 N.W.2d 831, 836 (Minn. App. 2006), review denied (Minn. June 20, 2006) (citing In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999)).  When considering the likelihood of a person to reoffend, the district court is to consider

                        the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender's attitude and mood, the offender's medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it.

 

In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).  The petitioner must prove the requirements for commitment by clear and convincing evidence.  Minn. Stat. § 253B.185, subd. 1 (2006).

            Domrose does not challenge the first two elements of the sexually dangerous person definition and concedes that he engaged in a course of harmful sexual conduct and manifested a mental disorder or dysfunction.  But he argues that the state did not prove the third elementthat he is highly likely to engage in acts of harmful sexual conductby clear and convincing evidence. 

            Domrose's argument is based on the testimony of one of the court-appointed experts who testified at his trial.  He argues that because Dr. Alberg expressed doubts that he would reoffend, the evidence was not clear and convincing.  He argues that disagreement shows that evidence is not unequivocal and uncontradicted.  See Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994) (stating that "[i]n order to prove a claim by clear and convincing evidence, a party's evidence should be unequivocal and uncontradicted, and intrinsically probable and credible"), review denied (Minn. Mar. 23, 1994).

            But it is the district court's role to evaluate the testimony of experts.  See Thulin, 660 N.W.2d at 144.  Here, both of the other experts (Dr. Hoberman and Dr. Marshall) found Domrose highly likely to reoffend.  The district court credited the opinions and testimony of Drs. Hoberman and Marshall, and found Dr. Alberg's opinion and testimony "to not be credible and persuasive on this issue."  Dr. Hoberman's and Dr. Marshall's reports clearly and convincingly support the district court's conclusion that Domrose is highly likely to reoffend, and therefore is a sexually dangerous person. 

            Furthermore, even if Dr. Alberg's testimony is given credit, his testimony also supports a conclusion that Domrose is likely to reoffend.  Although he said that he did not think appellant would reoffend if "supervised," he also stated that if appellant were in the same situation as he was previously, he was highly likely to reoffend.  He then admitted that he did not know of a program in which Domrose could be properly supervised and that Domrose's Sex Offender Risk Assessment Guide (SORAG) score suggested an 80% likelihood of reoffending after ten years, which placed Domrose in a "high risk" category.

            Along with the testimony of the experts, the district court also evaluated the other facts that support its conclusion that Domrose lacks adequate control over his harmful sexual behavior and is likely to reoffend.  The court noted that Domrose repeatedly failed to conform his sexual behavior to social norms, has been deceitful about his sexual behavior, failed to take responsibility for it, and "wholly lacks any meaningful remorse for his victim."  The court further noted that

[e]ven after nearly two years of in-patient sex offender treatment, [Domrose] continued to re-offend against [his sister].  [Domrose] returned home after [treatment] and offended the same victim more frequently and more violently than before treatment.  [Domrose] was even under the close watch of family when his sexual offending against [his sister] escalated. 

 

As the district court noted, Domrose exhibited escalating behaviors, even after "successfully" completing his two-year sex offender treatment.  Thus, the evidence on the record clearly and convincingly shows that Domrose is unable to control his behaviors and is highly likely to reoffend.

            Secondly, Domrose argues that the verbatim adoption by the district court of the state's proposed findings suggests a failure of the district court to scrutinize the evidence in the case.  Domrose, however, has not identified any of the district court's findings as unsupported by the record.

            Domrose acknowledges that although a court's adoption of proposed findings raises questions of whether the district court independently evaluated the evidence, it is not reversible error.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  But when the district court adopts proposed findings of fact and conclusions of law verbatim, a "careful and searching review of the record" is required.  Dukes v. State, 621 N.W.2d 246, 258 (Minn. 2001).  Having carefully and searchingly reviewed this record, we conclude that the findings are supported.

II.

Domrose argues that the district court erred by ruling that the affidavit of his mother was inadmissible.  "The admission of evidence rests within the broad discretion of the [district] court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion."  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (quotation omitted).

Here, Domrose presented the affidavit of his mother as part of his written closing argument and in support of his motion for a stay of commitment in order to allow him to attempt to find an appropriate placement for sex offender treatment.  The affidavit states that he was "tentatively" admitted to a sex offender program several weeks before trial, but that the program "changed its mind and declined to accept [Domrose] into its sexual offender treatment program" at noon on the first day of trial.  Domrose argues that the affidavit is admissible to rebut a contention by the state that he "had ample time to locate and identify such a program and the evidence at the hearing demonstrated that no such alternative exists." 

But the availability of treatment options was relevant throughout the trial.  And as the state points out, Domrose's mother was present throughout the trial.  She was called as a witness by the state and cross-examined by Domrose's attorney, but did not testify that Domrose had been "tentatively" admitted to any program or that suitable treatment programs existed.  The additional evidence submitted by Domrose in the form of an affidavit could have been presented during the course of the trial through testimony.  But the timing and nature of the affidavit forecloses cross-examination of what might otherwise be presented as live evidence.  Therefore, the district court did not abuse discretion by granting the state's motion to strike the affidavit.

III.

Domrose argues that the district court erred in concluding that rule 22 of the special rules of procedure governing proceedings under the Minnesota Commitment and Treatment Act is constitutional.  The constitutionality of a rule is a question of law, which this court addresses de novo.  State v. Gail, 713 N.W.2d 851, 865 (Minn. 2006).

The rule Domrose challenges states:  "Stayed orders for commitment as mentally ill and dangerous to the public, sexually dangerous person, or a sexual psychopathic personality may be issued only by agreement of the parties and approval by the court."  Minn. Spec. R. Commitment & Treatment Act 22.

Domrose argues that the rule's promulgation by the supreme court violates the Minnesota Constitution's separation of powers.  See Minn. Const. art. III, § 1 (establishing legislative, executive, and judicial branches and prohibiting each from exercising the others' powers).  Under the separation-of-powers doctrine, the supreme court has the primary responsibility to "regulate matters of trial and appellate procedure."  In re Welfare of J.R., Jr., 655 N.W.2d 1, 3 (Minn. 2003). Thus, the court may promulgate rules of procedure.  State v. Chauvin, 723 N.W.2d 20, 25 (Minn. 2006).  A procedural rule "neither creates a new cause of action nor deprives defendant of any defense on the merits."  Id.(quotations omitted).  Procedural rules include those that regulate the steps by which the guilt or innocence of one who is accused of violating a criminal statute is determined and those that prescribe the method of enforcing rights or obtaining redress for their invasion.  Id.  Substantive rules, on the other hand, are the province of the legislature.  A substantive rule "creates, defines and regulates rights."  Id. (quoting Stern v. Dill, 442 N.W.2d 322, 324 (Minn. 1989) (other quotation omitted)).

Domrose argues that rule 22 is a substantive rule "because it can deprive a person of their liberty."  But rule 22 does not deprive sex offenders of their liberty.  Civil commitments are instead governed by Minn. Stat. §§ 253B.001 to .23 (2006).  In particular, Minn. Stat. § 253B.185 establishes that "the court shall commit [sexually dangerous persons] 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.  Rule 22 only provides a procedure by which that commitment may be stayed, if the patient has satisfied the requirements of the statute.  As such, the rule appears procedural rather than substantive.  Therefore, rule 22 does not violate the separation-of-powers doctrine.

            Affirmed.

 

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