This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0550
In the Matter of the Civil Commitment of: Brian Lee Wilbur.
Filed September 21, 2015 Affirmed Reyes, Judge
Hennepin County District Court File No. 27MHPR141002
Ron Thorsett, Eden Prairie, Minnesota (for appellant)
Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and
Larkin, Judge.
UNPUBLISHED OPINION
REYES, Judge
Appellant Brian Lee Wilbur challenges his commitment to the Minnesota sex-
offender program (MSOP) as a sexually dangerous person (SDP) under the Minnesota
Commitment and Treatment Act (the MCTA). Minn. Stat. §§ 253D.01-.36 (2014).
Appellant argues that (1) he does not meet the statutory criteria for commitment as an
SDP and (2) a less-restrictive treatment program is available. We affirm. FACTS
I. 1987 Sex Offense
In November 1987, appellant physically assaulted C.W., his then wife, and
sexually assaulted A.M.G., C.W.’s 15-year-old sister who was staying the night at
appellant’s and C.W.’s apartment. He pleaded guilty to one count of fourth-degree
criminal sexual assault and received a 21-month sentence, stayed for five years. The stay
was revoked when appellant was convicted of the 1988 offense described below.
II. 1988 Sex Offense
In May 1988, appellant sexually assaulted a five-year-old girl, A.P., who lived in
his apartment complex. Appellant pleaded not guilty to second-degree criminal sexual
conduct but was found guilty by a jury. He was sentenced to 36 months served
concurrently with the 21-month sentence he received from his 1987 conviction. While
incarcerated, appellant was evaluated and referred to the transitional-sex-offender
program (TSOP). A report from the TSOP stated that appellant “was minimizing and
justifying his behavior” at first but later “significantly improved in his ability to express
responsibility for his offense.” Appellant was terminated from the TSOP after staff
discovered marijuana in his room. He was paroled in May 1990, and his sentence
expired in May 1991.
III. 1992 Window-Peeping Offense
In March 1992, neighbors observed a man moving between two windows of a
neighbor’s home. Appellant pleaded guilty to peeping and received a stayed
2 misdemeanor sentence. He was required to attend sex-offender treatment as a part of his
probation, but he failed to do so.
IV. 1997 Sex Offense
In June 1997, appellant sexually assaulted a 25-year-old woman, C.O., in her
apartment while she was sleeping, unclothed, in her bedroom. Appellant was charged
with second-degree criminal sexual conduct, fourth-degree criminal sexual conduct, first-
degree burglary, and first-degree burglary motivated by or committed in furtherance of
sexual contact or penetration. Appellant denied the charges. A jury found appellant
guilty on all counts, and he was sentenced to 300 months in prison.
V. Incarceration and Treatment
In March 2009, appellant was deemed appropriate for MSOP placement.
Appellant initially refused, but accepted after being informed that he would be subject to
further discipline if he did not attend. His initial progress in the program was good, and
staff members generally perceived appellant as a good participant in treatment. However,
appellant began to have repeated disputes with treatment goals and resentment toward
facilitators. In July 2010, appellant decided to drop out of the program. He was charged
with and convicted of medical-treatment refusal, which resulted in an additional 360 days
of extended incarceration.
In 2014, appellant was referred to Department of Correction (DOC) psychologist
James Olson for possible civil commitment as an SDP or sexual psychopathic personality
(SPP). Olson used two actuarial tools to predict the likelihood of sexual recidivism: the
MnSOST-3.1.2 (MnSOST) and the Static-99R. The MnSOST indicated the probability
3 of sexual recidivism for appellant was 1.96% with a percentile rank of 35.5%, which
placed him in a group of offenders considered at a low likelihood of re-offense. On the
Static-99R, Olson scored appellant as an offender with a high likelihood of sexual re-
offense. Later in 2014, a different DOC committee reassessed appellant and designated
him as a moderate risk level for re-offense.
With appellant’s 300-month sentence set to expire on March 23, 2015, the state
petitioned for appellant’s commitment as an SPP and SDP. The state eventually
withdrew the petition for commitment as an SPP and only the petition for commitment as
an SDP was tried. The district court appointed forensic psychologist Michael Thompson,
Psy.D., LP, to serve as the district court’s first examiner. Appellant chose the second
examiner, Paul Reitman, Ph.D., LP. During a four-day trial, both examiners concluded
that appellant satisfied the statutory definition of an SDP. The district court committed
appellant to the MSOP as an SDP. This appeal followed.
DECISION
Appellant asserts that the district court erred by (1) committing appellant as an
SDP and (2) concluding that there were no less-restrictive alternatives to commitment.
Both arguments are addressed below.
I. The district court did not err by committing appellant as an SDP.
The elements of commitment must be established by clear and convincing
evidence. See Minn. Stat. § 253D.07, subd. 3. On review, we defer to the district court’s
findings of fact and will not reverse those findings unless they are clearly erroneous. In
re Civil Commitment of Ramey, 648 N.W.2d 260, 269 (Minn. App. 2002), review denied
4 (Minn. Sept. 17, 2002). But 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). We
review the record in the light most favorable to the district court’s decision. In re Knops,
536 N.W.2d 616, 620 (Minn. 1995). Additionally, when, as here, “the findings of fact
rest almost entirely on expert testimony, the [district] court’s evaluation of credibility is
of particular significance.” Id.
To be committed as an SDP, an individual must be found to be someone 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 likely to
engage in acts of harmful sexual conduct. Minn. Stat. § 253D.02, subd. 16(a). “Harmful
sexual conduct” is defined as “sexual conduct that creates a substantial likelihood of
serious physical or emotional harm to another.” Id., subd. 8. Here, appellant only
challenges the second and third elements of section 253D.02, subdivision 16(a).
A. Sexual, Personality, or other Mental Disorder or Dysfunction
Appellant disputes the district court’s conclusion that there is clear and convincing
evidence that he suffers from mental disorders which impair his ability to adequately
control his sexual impulses. Appellant’s argument is twofold— first, he challenges the
district court’s finding that he had any mental disorder at all; and second, he challenges
the district court’s finding that he had a mental disorder which does not allow him to
adequately control his sexual impulses.
5 Appellant argues that the record does not support his diagnoses of paraphilia and
antisocial personality disorder (APD). But both Dr. Thompson and Dr. Reitman
concluded that appellant suffered from sexual paraphilia and APD. Dr. Thompson stated
in his submitted report and at trial that appellant suffers from “Paraphilia Not Otherwise
Specified”1 and specifically applied the criteria for that diagnosis to appellant. Appellant
ignores Dr. Thompson’s clear APD diagnosis and instead points out that Dr. Reitman
first failed to include an APD diagnosis in his report but later did so at trial. But at trial
Dr. Reitman clarified that while he initially doubted whether appellant met the APD
criteria, he changed his mind when he was writing his report, and his failure to include
the diagnosis was simply an oversight. Moreover, Minnesota courts have specifically
upheld the use of disorders such as APD and paraphilia for the purpose of commitment as
an SDP. See In re Linehan, 594 N.W.2d 867, 875 (Minn. 1999) (Linehan IV); In re Civil
Commitment of Navratil, 799 N.W.2d 643, 648 (Minn. App. 2011), review denied (Minn.
Aug. 24, 2011).
Appellant next argues that there was not clear and convincing evidence that he
lacked adequate control of his sexual impulses. The supreme court has interpreted the
MCTA to require a showing that the person’s disorder “does not allow [him] to
adequately control [his] sexual impulses.” Linehan IV, at 876 (emphasis added); see also
In re Martinelli, 649 N.W.2d 886, 890-91 (Minn. App. 2002) (determining that the
“adequate lack of control” standard and the “‘serious difficulty’ in controlling behavior”
1 “Paraphilia Not Otherwise Specified” is a disorder that meets the requirements of paraphilia but does not fall within a listed subcategory, such as pedophilia.
6 standard are the same). The United States Supreme Court later affirmed this position.
Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002) (“It is enough to say that
there must be proof of serious difficulty in controlling behavior.”).
Here, both court examiners clearly stated that appellant’s disorders prevent him
from adequately controlling his sexual impulses. Dr. Thompson testified that appellant’s
disorders prevent adequate control of his impulses and that his criminal history shows
that he continued to commit sexual offenses even after facing legal sanctions.
Dr. Thompson stated that he will likely always struggle with alcohol, which also plays a
part in his inability to adequately control his impulses. Dr. Reitman agreed that
appellant’s history suggests impulsive behavior and emphasized that appellant’s failure to
receive treatment while imprisoned further demonstrates his inability to control himself.
Accordingly, the district court did not err in determining that there is clear and
convincing evidence that appellant’s disorders do not allow him to adequately control his
sexual impulses.2
2 Appellant repeatedly makes the argument that the examiners’ diagnoses fail to distinguish him from a typical recidivist. This argument is based on the Supreme Court’s opinion in Crane, which states that proof of lack of adequate control “must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” 534 U.S. at 413, 122 S. Ct. at 870. But, as the state points out, the Eighth Circuit has specifically held that the criteria for committing an individual under the MCTA, taken together, will automatically satisfy the “sufficient to distinguish” requirement under Crane. Linehan v. Milczark, 315 F.3d 920, 927 (8th Cir. 2003). Therefore, no separate analysis under Crane is required.
7 B. Likely to Engage in Acts of Harmful Sexual Conduct
To be committed as an SDP, appellant must also be likely to engage in acts of
harmful sexual conduct. Minn. Stat. § 253D.02, subd. 16(a)(3). The supreme court has
construed the phrase “likely to engage in acts of harmful sexual conduct” to require a
showing that it is “highly likely” to occur. In re Linehan, 557 N.W.2d 171, 190 (Minn.
1996) (Linehan III), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997),
aff’d on remand, 594 N.W.2d 867 (Minn. 1999). When examining whether an offender
is highly likely to engage in acts of harmful sexual conduct, a district court considers six
factors. Linehan III, 557 N.W.2d at 189 (“We conclude that the guidelines for
dangerousness prediction in [In re Linehan, 518 N .W.2d 609 (Minn. 1994) (Linehan I)]
apply to the SDP Act . . . .”). Those factors are: (1) relevant demographic characteristics;
(2) history of violent behavior; (3) base rate statistics for violent behavior among those
with the individual’s background; (4) sources of stress in the individual’s environment;
(5) the similarity of the individual’s present or future context to the context in which the
individual engaged in harmful sexual conduct in the past; and (6) the individual’s record
in sex therapy programs. Linehan I, 518 N.W.2d at 614. “No single factor is
determinative of this complex issue.” Navratil, 799 N.W.2d at 649. We will not reverse
the district court’s findings unless they are clearly erroneous, and deference is given to
the district court’s credibility determinations. Ramey, 648 N.W.2d at 269.
In considering the Linehan factors, the district court concluded that “the great
weight of the evidence under the multi-factor analysis suggests that [appellant] is highly
likely to reoffend.” Both examiners concluded that appellant was highly likely to
8 sexually re-offend if not committed. Dr. Thompson specifically addressed each of the six
Linehan factors in his report, while Dr. Reitman provided testimony as to those factors at
trial. Appellant contends that, with the exception of the sixth factor, the record
established that all of the Linehan factors were either neutral or in his favor. We
conclude that the record supports the district court’s assessment of the factors.
1. Relevant demographic characteristics
The district court determined that the first Linehan factor weighed in favor of
appellant because, as Dr. Thompson testified, his age, 49, has been shown to mediate the
risk of re-offense compared to that of a younger person. The district court recognized
that this factor weighs in favor of appellant, and the state agrees.
2. History of violent behavior
Appellant argues that there is no evidence that his past victims were either
threatened with or suffered serious physical harm during his sexual offenses. In addition
to ignoring the physical violence detailed in the police reports, this argument
mischaracterizes the law. This court has held that “the [SDP] statute does not require a
showing of violence.” In re Robb, 622 N.W.2d 564, 573 (Minn. App. 2001), review
denied (Minn. Apr. 17, 2001). Instead, the statute only requires a showing that the
individual “is likely to engage in acts of harmful sexual conduct.” Id. (quoting Minn.
Stat. § 253D.02, subd. 16(a)(3)). And “harmful sexual conduct” is defined in terms of
“serious physical or emotional harm.” Minn. Stat. § 253D.02, subd. 8 (emphasis added).
Here, Dr. Reitman testified that “there’s no question” that the victims likely suffered
“serious emotional and physical harm,” including “post-traumatic stress
9 disorder . . . , neurological impairment . . . , higher risk for psychiatric
disorders, . . . higher risk for substance abuse.” Dr. Thompson agreed that the victims
likely suffered physical and psychological trauma, including acute stress reactions and
post-traumatic stress disorder. The presentence investigation from the 1997 offense
specifically outlined the victim’s physical and emotional harm. The district court did not
clearly err in determining that this factor weighed in favor of commitment.
3. Base-rate statistics
Appellant next contests the base-rate statistics and actuarial tools used to predict
the likelihood of re-offending. Dr. Thompson used three assessment tools: the MnSOST,
the Static-2002R, and the PCL-R. Dr. Thompson’s MnSOST results were low, indicating
only a 2.2% likelihood of re-offense in the next four years. The Static-2002R evaluation
indicated a moderate-high risk of re-offense and a 10-year re-offense rate of 39%.
Dr. Thompson gave appellant a PCL-R score which indicated a high risk of recidivism.
Dr. Reitman used two assessment tools: the Static-99R and the PCL-R. The Static-99R
score indicated that appellant had a moderate-high re-offense risk and the PCL-R score
indicated a high risk of re-offense. And as previously mentioned, DOC psychologist
James Olson also employed the MnSOST and Static-99R to evaluate appellant. Olson’s
results indicated a low likelihood of re-offense on the MnSOST but a high likelihood of
re-offense on the Static-99R.
10 Appellant argues that only the MnSOST results should be credited and asks this
court to give it greater weight than the other assessment tools.3 But in performing the
Linehan analysis, appellate courts “will not weigh the evidence.” Linehan III, 557
N.W.2d at 189. The supreme court reiterated that the “dangerousness prediction under
[the MCTA] is not simply a matter for statisticians.” Id. at 191. Accordingly, we are not
persuaded by appellant’s argument that the third Linehan factor weighs in his favor and
the district court did not err in ruling as such.
4. Sources of stress
Dr. Thompson indicated that appellant’s vocational training meant that he was a
stronger candidate for employment than most individuals coming out of prison.4
However, Dr. Thompson also noted appellant’s “long-standing issue with authority
figures” and that it could be “quite a problem.” Dr. Thompson further noted that the
issue “runs deep,” as evidenced by appellant’s self-terminated sexual-offender treatment.
Appellant has not shown that the district court clearly erred when it found that this factor
weighed in favor of commitment.
3 We note that appellant correctly points out that the district court clearly erred in reciting Dr. Thompson’s MnSOST results. The district court found that Dr. Thompson’s MnSOST assessment indicated a 35% recidivism rate. In fact, Dr. Thompson’s MnSOST assessment indicated a 35th percentile rank among offenders, and a re-offense rate much closer to 2%. However, appellant did not suffer any prejudice from this error because a number of other assessment tools indicated a moderate-high risk or high risk of re- offense. 4 Dr. Reitman did not give significant testimony related to this factor.
11 5. Similarity of present or future context to context in which individual engaged in harmful conduct
Appellant argues that his skill, attitude, and motivation to make a successful
transition into the community all exhibit a different future context than that in which he
engaged in harmful conduct. However, Dr. Thompson reported that because appellant
engaged in harmful conduct in a wide variety of situations with victims of different ages
and relationships, appellant would present a risk of re-offending in almost any situation.
Dr. Thompson also testified that, despite appellant’s sobriety while imprisoned, alcohol
abuse “likely will always be a struggle.” Appellant has not shown that the district court
clearly erred when it found that this factor weighed in favor of commitment.
6. Record in sex-therapy programs
Appellant admits that he has a poor record with sex-therapy programs, but argues
that he is currently amenable to such programs and that he has knowledge of the
program’s treatments as a result of experience and independent study. But appellant cites
no authority for the proposition that current willingness or independent knowledge of
treatment should be included in evaluating an offender’s sex-therapy record. Moreover,
Dr. Thompson testified that appellant’s current willingness to attended therapy is likely a
“bargaining process” and that it is “conditional on the treatment being presented in a
modality (outpatient) that [appellant] agrees with.” Dr. Thompson further questioned
appellant’s amenability to treatment because appellant “admits only minimally that he
engaged in problematic sexual behavior.” Appellant has not shown that the district court
clearly erred in finding that this factor weighed in favor of commitment.
12 In sum, the record clearly and convincingly supports the district court’s conclusion
that appellant meets the standard for commitment. Appellant’s arguments essentially ask
this court to discredit the testimony of the court examiners and give greater weight to his
own opinions regarding the Linehan factors. Because the district court’s evaluation of
credibility is of particular significance, Knops, 536 N.W.2d at 620, and we are not
allowed to reweigh the evidence, Linehan III, 557 N.W.2d at 189, appellant’s arguments
fail.
II. The district court did not err by concluding that there were no less-restrictive alternatives to commitment.
Upon a finding that an individual is an SDP, a district court “shall commit the
person to a secure treatment facility unless the person establishes by clear and convincing
evidence that a less restrictive treatment program is available, is willing to accept the
person under commitment, and is consistent with the person’s treatment needs and the
requirements of public safety.” Minn. Stat. § 253D.07, subd. 3. “Under the current
statute, patients have the opportunity to prove that a less-restrictive treatment program is
available, but they do not have the right to be assigned to it.” In re Kindschy, 634
N.W.2d 723, 731 (Minn. App. 2001) (emphasis omitted), review denied (Minn. Dec. 19,
2001). “[T]he burden of proving that a less-restrictive program is available is on the
patient.” Robb, 622 N.W.2d at 574. This court will not reverse a district court’s findings
on the propriety of a treatment program unless its findings are clearly erroneous. Thulin,
660 N.W.2d at 144.
13 Appellant argues that the district court erred in concluding that a less-restrictive
treatment program is unavailable because he would be on intensive supervised release
(ISR) until 2032. Appellant points out that under ISR, he would be eligible for sex-
offender-treatment programs or a halfway house. But he identifies no specific facility
that “is willing to accept [appellant] under commitment.” See Minn. Stat. § 253D.07,
subd. 3. Instead, appellant relies heavily on the testimony of DOC caseworker Jean
Rudebeck for support that ISR is consistent with appellant’s treatment needs and the
requirements of public safety. But Dr. Reitman testified that the amount and length of
supervision received during ISR would be insufficient. And Dr. Thompson stated that it
would be in the community’s best interest to commit appellant to a secure setting like the
MSOP. The district court credited this testimony in determining that no other sex-
offender program can satisfy the requirements of section 253D.07, subdivision 3.
Appellant again improperly asks this court to make a credibility determination, and we
will not do so. The district court did not clearly err in finding that no less-restrictive
programs were available.
Affirmed.