In re the Civil Commitment of Ince

847 N.W.2d 13, 2014 WL 1628112, 2014 Minn. LEXIS 197
CourtSupreme Court of Minnesota
DecidedApril 23, 2014
DocketNo. A12-1691
StatusPublished
Cited by30 cases

This text of 847 N.W.2d 13 (In re the Civil Commitment of Ince) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Civil Commitment of Ince, 847 N.W.2d 13, 2014 WL 1628112, 2014 Minn. LEXIS 197 (Mich. 2014).

Opinions

OPINION

ANDERSON, Justice.

Appellant Cedrick Scott Ince was civilly committed as a sexually dangerous person pursuant to Minn.Stat. § 25BB.185 (2012).1 The petition for civil commitment was filed 1 day before Ince’s release from the Minnesota correctional facility where he had served a sentence imposed following a guilty plea to third-degree criminal sexual conduct. Ince appealed his commitment, arguing that respondent Sibley County failed to prove by clear and convincing evidence that he is “likely to engage in acts of harmful sexual conduct” within the meaning of Minn.Stat. § 253B.02, subd. 18e(a)(3) (2012), and that the district court failed to adequately address the less restrictive alternative he presented, consistent with Minn.Stat. § 253B.185, subd. 1(d). In a divided, unpublished opinion, the court of appeals affirmed.

We granted Ince’s petition for review to consider whether the factors relevant to the determination that a person is “likely to engage in acts of harmful sexual conduct,” as set forth in In re Linehan (Linehan I), 518 N.W.2d 609 (Minn.1994), require clarification or modification, and whether Ince met his burden of proving the existence of a less restrictive alternative to commitment. After a thorough review of the record and our precedent, we now reverse the decision of the court of appeals, vacate the district court’s order for commitment, and remand to the district court for reconsideration.

I.

The appellant, Cedrick Ince, was 22 years old at the time of the commitment hearing and had twice been charged with criminal sexual conduct. The first occasion arose from events on February 11, 2007, while Ince, then 17 years old, was at a party. The victim, a 17-year-old known to Ince, passed out at the party after drinking. Ince, who was also drinking, removed the victim’s underwear and sexually penetrated her while she remained unconscious. Ince later gave several versions of the events, all of which attempted to diminish his role and culpability in the assault. Eventually, however, Ince admitted that the sexual contact was not consensual, that he “took things way too far,” and that the victim “was heavily intoxicated.” [18]*18He pleaded guilty to fifth-degree criminal sexual conduct, was adjudicated delinquent, and was placed on probation.

On October 5, 2008, 3 weeks after he was placed on probation for the first offense, Ince broke into the house of a second acquaintance and raped her. The victim, who was 19 years old and had been in a brief relationship with Ince, testified that she was sleeping on the couch in her house and woke up to find Ince on top of her. When she struggled, Ince began choking her, making it difficult for her to breathe. After raping her, Ince told the victim he had a gun and would shoot her if she called the police. Ince again sought to minimize the circumstances of this violent assault, telling police that the sex was consensual and that the victim liked “weird stuff.” In later reports, however, Ince took responsibility, saying, “I was drinking and I broke into her house and raped her.... I forced it upon her ... she said no, but I didn’t listen.” Ince pleaded guilty to third-degree criminal sexual conduct and was sentenced to 48 months in prison with a 10-year conditional release term. While in prison, Ince, who has consistently been diagnosed with alcohol dependence, completed chemical dependency treatment, though not without some problems and setbacks. He was placed on a probation contract for rule violations, and he was terminated from aftercare. Ince did not enter or complete any sex offender programs in prison.

The petition for civil commitment was filed by Sibley County the day before Ince was scheduled to be released from prison. Ince was allowed to leave the facility subject to intensive supervised release from September 2011 until his commitment trial concluded in May 2012. During the 8 months that Ince was on supervised release, he obtained employment on a dairy farm, began renting a nearby house from his employer, and purchased a truck. Ince’s employer reported that Ince has “done an excellent job” and has an “ongoing, continuous” offer of employment. In early 2012, Ince began court-ordered sex offender treatment at an outpatient, community treatment program, although the record suggests that Ince’s disclosures to program staff were less than complete. Finally, the evidence was undisputed that Ince was considered in “sustained full remission” based on his alcohol and drug abstinence since 2009; had participated consistently in Alcoholics Anonymous (AA); and had supportive family relationships.

At the commitment hearing, the district court heard testimony from two court-appointed examiners, Dr. Penny Zwecker and Dr. Peter Marston, and from the County’s expert witness, Dr. Rosemary Linderman. The district court recognized that expert testimony carries “much weight” in civil commitment proceedings and found Dr. Marston’s testimony to be “particularly persuasive and convincing.” The court announced that it accepted Dr. Marston’s testimony and, unless otherwise noted, rejected the testimony of the other experts who did not agree with Dr. Mar-ston’s opinions.

Based on an interview with Ince, Dr. Marston concluded that after his release from prison, Ince expressed remorse and regret for his behavior, and concern for the victims of his offenses. Based on evaluations and risk assessments, Dr. Marston diagnosed Ince with antisocial personality disorder, a psychopathic personality disorder, alcohol dependence, and attention deficit hyperactivity disorder (ADHD), and concluded that as a result of those disorders, Ince had serious difficulty controlling his sexually harmful behavior.

Dr. Marston and the other experts attempted to determine, using risk assess[19]*19ments based on actuarial tools, the likelihood that Ince will sexually reoffend in the future. Those assessments produced varied results, placing Ince at a medium risk for reoffending (using the RRASOR assessment); a high risk of reoffending (using the Static~99R assessment); and a high risk for reoffending compared to other sex offenders (using the MnSOST-3.1 assessment). Numeric probabilities also varied, showing Ince’s 5-year risk of reof-fending as 31.2 percent (Static-99R assessment); or, a 4-year probability of reof-fending as 7.92 percent (which is higher than 89.9 percent of sex offenders in Minnesota) (MnSOST-3.1 assessment); or, a “rule of thumb” suggested by one of the test’s developers, in which the 5-year esti- . mated rate of reoffending (31.2 percent) is doubled to establish a lifetime risk of reof-fending (62.4 percent). Dr. Marston also testified regarding the Linehan factors, concluding that Ince’s youth placed Ince at an increased risk of reoffending; that his offenses were serious, recent, and extremely severe; that base rate statistics indicate Ince is at a high risk of reoffend-ing compared to a typical sex offender; that Ince’s recent successes (employment, family support, and AA commitment) could be threatened by the stress associated with the commitment proceedings and his supervised release; and that, although Ince had begun sex offender treatment after his release, he did not have a relapse plan in place.

Dr. Marston acknowledged that controlling Ince’s alcoholism and ADHD would generally reduce the risk of reoffending. Further, he testified that Ince’s successes while supervised in the months following his release from prison represented a decrease in the risk of future harm to others.

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Bluebook (online)
847 N.W.2d 13, 2014 WL 1628112, 2014 Minn. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-civil-commitment-of-ince-minn-2014.