This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A25-1091
In the Matter of the Civil Commitment of: Dwayne Qutez Irving.
Filed December 29, 2025 Affirmed Bratvold, Judge
Blue Earth County District Court File No. 07-PR-24-2442
Daniel T. Donnelly, Donnelly Law Office, Austin, Minnesota (for appellant Dwayne Qutez Irving)
Keith Ellison, Attorney General, Lisa Jones, Assistant Attorney General, St. Paul, Minnesota; and
Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent Blue Earth County Human Services)
Considered and decided by Bratvold, Presiding Judge; Schmidt, Judge; and Smith,
John, Judge. *
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal from an order indeterminately committing him as a sexually
dangerous person (SDP), appellant argues that the district court erred in two ways: (1) the
record does not establish by clear and convincing evidence that appellant is an SDP, and
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. (2) alternatively, appellant proved by clear and convincing evidence that a less restrictive
treatment program was available and appropriate. Because the record establishes that
appellant (a) has engaged in a course of harmful sexual conduct, (b) has manifested a
sexual, personality, or other mental disorder or dysfunction and, as a result, (c) is likely to
engage in future harmful sexual conduct, we affirm the district court’s determination that
appellant is an SDP. And because appellant failed to prove by clear and convincing
evidence that a less restrictive treatment program (a) is available and willing to accept him,
(b) is consistent with his treatment needs, and (c) is consistent with the requirements of
public safety, we affirm the district court’s determination that appellant be indeterminately
committed to a secure treatment facility as an SDP.
FACTS
On December 2, 2024, respondent Blue Earth County Human Services (county)
petitioned to civilly commit appellant Dwayne Qutez Irving to the Minnesota Sex Offender
Program (MSOP) as an SDP. The opinion summarizes the district court’s written factual
findings filed after an evidentiary hearing along with other record evidence.
Irving was 48 years old at the time of the district court’s evidentiary hearing. Irving
has two convictions for criminal sexual conduct and other convictions for various offenses,
including domestic abuse, stalking, threats of violence, violations of a domestic-abuse
no-contact order (DANCO), violations of an order for protection (OFP), violations of
predatory-offender registration requirements, and obstruction of legal process, along with
drug, property, fleeing, and other offenses.
2 Beginning with Irving’s criminal sexual conduct, in 2000, he was living in Chicago
and used a toy gun to force T.J. to perform fellatio on him. Irving pleaded guilty to criminal
sexual abuse and was sentenced to four years in an Illinois prison. For the entire period
between 1995 and 2014, he was either on probation or incarcerated in Illinois.
In 2014, Irving moved to Minnesota to live with his sister in Mankato. In 2020,
Irving was convicted of a second criminal-sexual-conduct offense that occurred within a
few months of his being released from prison. Irving had sexual contact with J.G., who
was under her mother’s guardianship pursuant to a 2015 district court order that found J.G.
had a low IQ and lacked “decision-making capabilities.” J.G.’s mother “described her as
developmentally slow with the mindset of a 13- to 15-year-old.” Irving alleges that the
sexual contact was consensual and that he was unaware of J.G.’s cognitive limitations.
Still, Irving entered an Alford plea to fifth-degree criminal sexual conduct. 1
Irving has a long history of drug use, which he concedes has contributed to his
sexual misconduct and criminal record. He has completed some chemical-dependency
treatment but has failed to comply with aftercare and has refused treatment.
Some of Irving’s sexual misconduct did not result in criminal charges but was
admitted as evidence during the evidentiary hearing. In 2020, Irving lived with E.W. and
her teenage sons. Irving and E.W. “tried to have an intimate relationship,” but there were
a “handful of times” when E.W. would wake up in the middle of the night to Irving
1 “An Alford plea is a plea in which ‘[a]n individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence’ while not admitting guilt.” Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015) (quoting North Carolina v. Alford, 400 U.S. 25, 37 (1970)).
3 “standing over her in her room watching her.” E.W. “would scream because she was
scared,” but Irving “continued to do it.” E.W. eventually called police to remove Irving
from her home, but E.W. testified that Irving twice tried to reenter her home at night. E.W.
testified that she “was afraid and intimidated by these events.” 2 The district court found
that “Irving’s parasitic lifestyle and view of women as objects is shown through the
testimony of E.W.” The district court also found that Irving would “frighten [E.W.]
repeatedly by entering her bedroom without consent in the middle of the night” and that he
“further frightened [E.W.] when he would yell and become intimidating.”
In 2022, Irving met K.M. at a crisis center. K.M. has been subject to guardianship
since 2010. Irving stayed in K.M.’s home, where she lived with her parents, for about five
days, and the two had a sexual relationship. K.M.’s parents called the police to remove
Irving because he would not leave their home. Also in 2022, J.P. told police that Irving
exposed his penis when the two were using methamphetamine together; she pushed him
away and later threw two bricks at him.
Irving’s relationship with A.B. lasted for several years, and A.B. testified in support
of Irving at the evidentiary hearing. 3 In September 2016, A.B. reported Irving to law
enforcement for hitting her “lightly on the nose during an argument.” In August 2017, after
2 E.W. testified that Irving “can get very scary” and that she still puts a chair underneath her doorknob before bed because of him. To be clear, E.W. did not testify that Irving physically or sexually abused her. 3 A.B. testified that she was not afraid of Irving, that the two maintained what A.B. described as a “friendly-ship,” and that she would be a support person for him if he were to remain in the community. The district court found that A.B.’s testimony “appeared [to be] under duress, at times.”
4 Irving threatened to kill A.B. and her children, the district court entered an OFP prohibiting
Irving from contacting A.B. Later, A.B. was also protected by a DANCO against Irving.
Irving violated the OFP and DANCO, showing up at A.B.’s home and calling her
from the jail. Reports show he was at her home, in violation of the OFP, in September,
November, and December 2017, and then again in April 2018. He went to jail in
August 2018 and then called A.B. from jail four times, all on different days in September.
Irving pleaded guilty to several offenses involving A.B., including violating the OFP,
violating the DANCO, and stalking. The district court found that, while Irving was not
charged with criminal sexual conduct related to A.B., “many of his offenses were sexually
motivated.”
Irving testified on his own behalf at the evidentiary hearing. Irving testified that his
brother and sister were “his main support in the community.” He admitted that, while his
family was aware of some of his convictions, they “were unaware of the underlying facts.”
Irving testified that his plan to ensure he would not commit sexual offenses in the future
was to abstain from substance use and “abstain from trying to talk with females, unless
they approach him.” The district court found that Irving’s plan “reveals a lack of awareness
of his triggers for reoffending and would not be effective.” The district court also found
that much of Irving’s testimony contradicted other record evidence; for example, Irving
denied using a toy gun to force T.J. to perform fellatio, denied he was served with an OFP
to protect A.B., and denied other facts that were established by the record.
Irving’s brother testified that Irving lived with him at times, including “a little over
a year” and that Irving “used drugs” at that time. Brother “tried” to get Irving into
5 chemical-dependency treatment, but Irving refused. Brother testified that he “could not
force [Irving] to do anything.” The district court found brother to be credible and
“understandably concerned” about Irving.
Irving’s sister testified that, if Irving were released, he could live with her and work
for her cleaning business. Sister had “no concern” about Irving using illegal substances
“unless he is in a stressful situation” and agreed that Irving needs therapy but also testified
that he need not be committed. The district court found that sister had “good intentions to
be a support person for Irving” but that she “did not assist Irving in staying away from
controlled substance use or criminal activity in the past.”
Drs. Marshall and Dority, both appointed by the district court, testified as experts.
Both experts testified similarly, stating that in their opinion, Irving meets the criteria for
commitment as an SDP. Both experts testified that Irving had engaged in a course of
harmful sexual conduct and that Irving has one or more personality disorders. Dr. Marshall
diagnosed Irving with unspecified personality disorder with antisocial traits, among other
things, and noted that he also has “a probable diagnosis of other specified paraphilic
disorder.” A paraphilic disorder “denotes any intense and persistent sexual interest other
than sexual interest in . . . consenting human partners.” Diagnostic and Statistical Manual
of Mental Disorders 779 (5th ed. 2022). Dr. Dority diagnosed Irving with unspecified
paraphilic disorder and antisocial personality disorder, among other things.
Both experts testified that Irving requires an intensive, highly structured program
best provided in an inpatient, residential setting. Dr. Marshall acknowledged that there was
sex-offender treatment available in the community where Irving hopes to live, but she
6 expressed her concern that Irving may not follow through. Dr. Dority acknowledged that
Irving “could have success” in an outpatient setting such as the “robust,” “local” program
offered at CORE Professional Services in Mankato, but Irving did not provide any evidence
that he had applied for or been accepted into the program. When asked whether he
recommended MSOP to “ensure the safety of the community” or because it is the “only
place Irving could succeed,” Dr. Dority replied, “[A]ll of the above.” Dr. Dority also
testified that MSOP is the only inpatient residential sex-offender treatment program in the
state and that he had ruled out less restrictive alternatives.
On May 21, 2025, the district court filed a 71-page order that included 290 findings
of fact and nine conclusions of law. The district court made findings based on the evidence
of Irving’s criminal sexual conduct—convicted and uncharged—as summarized above.
The district court summarized and found credible the testimony from experts Drs. Marshall
and Dority. The district court found that “[t]here is clear and convincing evidence that
Irving had engaged in a course of harmful sexual conduct.” It also found that to be true
“whether the acts against A.B. and E.W. are included or not.” The district court determined
that Irving “has sexual, personality, or other mental disorders that cause him to lack
adequate control of his sexual impulses as required for purposes of SDP commitment.”
And the district court found that Irving is “highly likely” to engage in future acts of harmful
sexual conduct. Based on these findings and other evidence, the district court concluded
that the county satisfied the requirements for committing Irving to a secure treatment
facility as an SDP and that Irving did not meet his burden to prove a less restrictive
alternative. The district court ordered that Irving be committed indeterminately to MSOP.
7 Irving appeals.
DECISION
I. The district court did not err in determining that clear and convincing evidence showed that Irving is a sexually dangerous person.
To commit someone as an SDP, the district court must find by clear and convincing
evidence 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. § 253D.02,
subd. 16(a) (2024); accord In re Civ. Commitment of Ince, 847 N.W.2d 13, 20 (Minn.
2014).
Appellate courts review a district court’s findings of fact “under a clear error
standard to determine whether they are supported by the record as a whole.” Ince,
847 N.W.2d at 22. Appellate courts defer to the district court’s role as fact-finder and its
ability to judge the credibility of witnesses. In re Civ. Commitment of Kenney, 963 N.W.2d
214, 222 (Minn. 2021). Whether the evidence is sufficient to meet the statutory
requirements for SDP civil commitment is a question of law that we review de novo. In re
Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).
A. Evidence of Irving’s Course of Harmful Sexual Conduct
Irving argues that the record evidence does not establish that he engaged in a course
of harmful sexual conduct because his history of sexual offenses is limited to “two highly
dissimilar incidents . . . twenty years apart from one another.” Citing In re Monson, Irving
8 argues that his record of sexual misconduct is markedly dissimilar to that of others who
have been civilly committed as SDPs. 478 N.W.2d 785, 786-89 (Minn. App. 1991).
Irving does not dispute that the sexual misconduct on which the district court based
its findings was harmful. “Harmful sexual conduct” is “sexual conduct that creates a
substantial likelihood of serious physical or emotional harm to another.” Minn. Stat.
§ 253D.02, subd. 8 (2024). Neither the statute nor the caselaw defines “course,” but the
dictionary definition includes “[a] systematic or orderly succession; a sequence.” The
American Heritage Dictionary of the English Language 419 (5th ed. 2011).
According to caselaw reviewing SDP civil commitments, “[t]he incidents that
establish the course [of harmful sexual conduct] will have occurred over a period of time
and need not be recent.” In re Civ. Commitment of Stone, 711 N.W.2d 831, 837 (Minn.
App. 2006), rev. denied (Minn. June 20, 2006). And “the existence of a period in which a
person has not committed sex offenses does not preclude a determination that he engaged
in a course of sexual misconduct.” Id. at 838. Persuasive authority has recognized that no
specific number of victims or sexual offenses must be present before a district court can
find that a “course” of harmful sexual conduct exists. See In re Civ. Commitment of Taylor,
No. CX-02-1102, 2002 WL 31890941, at *1, *6 (Minn. App. Dec. 31, 2002) (concluding
that, though the appellant had only two convictions, the record supported the district court’s
finding that the appellant engaged in a course of harmful sexual conduct), rev. denied
(Minn. Feb. 26, 2003). 4
4 Nonprecedential opinions are not binding authority but may be cited for their persuasive value. Minn. R. Civ. App. P. 136.01, subd. 1(c).
9 The record of Irving’s harmful sexual conduct includes two convictions. First, the
original incident report for Irving’s 2000 sexual offense summarizes T.J.’s statement that
Irving placed a toy handgun to her side and forced her to perform fellatio. When Irving
testified about this incident during commitment proceedings, he maintained that, contrary
to the record, he knew the victim was a prostitute, she agreed to give him sex in exchange
for ten dollars, and he did not have a toy gun. But Irving pleaded guilty to criminal sexual
abuse of T.J. and was sentenced to four years in prison.
As for Irving’s sexual offenses toward J.G., a vulnerable adult under guardianship,
Irving agreed that he asked to see J.G.’s breasts and that he paid her “in exchange for sex.”
And while Irving denied knowing about J.G.’s guardianship, J.G.’s guardianship order is
in the record. Irving entered an Alford plea, admitting that the evidence showed he
committed fifth-degree criminal sexual conduct against J.G. based on her guardianship
status.
Similarly, the record of Irving’s uncharged incidents of sexual misconduct is clear
and convincing. Irving denied knowing that K.M. was under guardianship, but he agreed
that he had a sexual relationship with K.M., and the record includes evidence of K.M.’s
guardianship. The district court’s findings about the incident with J.P. are also supported
by Irving’s testimony that J.P. threw bricks at him the day after the two were using
methamphetamines together and Irving exposed himself to her.
The record supports the district court’s findings about Irving’s offenses against A.B.
In the fall of 2018, A.B. spoke to Irving’s probation agent about “ongoing emotional and
psychological abuse” in the relationship, saying that Irving would not “leave her alone,”
10 that her “kids [were] scared of” Irving, and that Irving “would go to her daughter’s bus
stop and sit and watch her daughter.” The probation agent’s reports also documented
Irving’s calls to A.B. from jail despite an active OFP and DANCO. Irving pleaded guilty
to stalking and gross-misdemeanor violation of an OFP, among other crimes involving
A.B.
We acknowledge that the experts disagreed on whether Irving’s conduct toward
A.B. was part of the “course of harmful sexual conduct.” Dr. Dority testified that it was
not, but Dr. Marshall testified that it was because “what [Irving] exhibited [toward A.B.]
was power and control and . . . violence and she asked him to leave, and he would keep
showing up.” Because “we will defer to the district court’s resolution of conflicting expert
testimony,” In re Civ. Commitment of Crosby, 824 N.W.2d 351, 361 (Minn. App. 2013),
rev. denied (Minn. Mar. 27, 2013), and the district court found that Irving had engaged in
“criminal conduct” toward A.B., some of which was “sexually motivated,” we conclude
that the evidence of Irving’s conduct toward A.B. supports the district court’s conclusion.
Finally, the record contains Irving’s full criminal record, and each conviction was
proved beyond a reasonable doubt; therefore, there is at least clear and convincing evidence
to support the district court’s findings on Irving’s nonsexual criminal offenses. The record
evidence also shows Irving’s probation violations, supervised-release violations, and
conditional-release violations. Dr. Marshall testified, “I consider [Irving] to be a release
violator. He was in prison at least four times in Illinois before coming here. And he keeps
going in and out, in and out, in and out.”
11 Although Irving is correct that his convictions for sexual offenses involved “two
highly dissimilar incidents” that occurred “twenty years apart,” the district court also found
that Irving engaged in uncharged sexual misconduct against many victims and that this
conduct was harmful. Irving acknowledges in his brief that caselaw recognizes uncharged
behavior may establish a course of harmful sexual conduct under the civil-commitment
statute. See In re Civ. Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002),
rev. denied (Minn. Sept. 17, 2002); Monson, 478 N.W.2d at 789. In fact, in persuasive
opinions, this court has affirmed SDP designations for offenders with no or one criminal
conviction. In re Civ. Commitment of Moore, No. A09-0623, 2009 WL 2747980, at *5, *7
(Minn. App. Sept. 1, 2009) (no criminal-sexual -conduct conviction), rev. denied (Minn.
Nov. 17, 2009); see also In re Civ. Commitment of Parks, No. A09-126, 2009 WL
2226792, at *3 (Minn. App. July 28, 2009) (“That Parks has only one conviction for
criminal-sexual conduct does not prevent the conclusion that he engaged in a course of
harmful sexual conduct.”), rev. denied (Minn. Oct. 20, 2009).
Although the experts did not completely align on which women were victims of
Irving’s course of harmful sexual conduct, both experts opined that Irving had engaged in
a course of harmful sexual conduct involving T.J., J.G., and K.M. We conclude that clear
and convincing evidence supports the district court’s determination that Irving engaged in
a course of harmful sexual conduct.
12 B. Evidence Irving Manifested a Sexual Disorder and Lacked Adequate Control of Sexual Impulses
To satisfy the second element, the record must establish that the person has a
disorder or dysfunction which causes them to lack adequate control of their sexual
impulses. In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999). “[T]he
Minnesota SDP Act ‘requires a finding of future dangerousness, and then links that finding
to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult,
if not impossible, for the person to control his dangerous behavior.’” Id. at 875 (quoting
Kansas v. Hendricks, 521 U.S. 346, 358 (1997)).
Irving argues that, while it “may even be true that he suffers from one or more
disorders,” the evidence offered by the county “bears [no] resemblance” to the “lack [of]
adequate control contemplated in the most important caselaw.” Specifically, Irving argues
that Linehan IV illustrates what the law requires for a district court to find that a person
lacks adequate control over their sexual impulses. In Linehan IV, the record showed that
Linehan displayed a “long course of harmful sexual conduct” starting “in his teens” that
included multiple sexual assaults and rapes, windowpeeping, and murder; he also
continued to offend sexually even after he escaped from prison. Id. at 869.
Dr. Marshall testified that she diagnosed Irving with unspecified personality
disorder with antisocial traits as well as cannabis-use disorder and stimulant-use disorder,
both in remission. She also testified that Irving “does not appear to have adequate control
when there is an available person present that he could take advantage of” and that “[i]t is
primarily his personality disorder that causes him to have the problems he has.” When
13 asked by the county attorney whether Irving’s personality disorder causes him “to lack
adequate control over his sexually harmful behavior,” Dr. Marshall responded, “Yes, it
does.”
Dr. Dority testified that he diagnosed Irving with antisocial personality disorder and
unspecified paraphilic disorder. When asked by the county attorney whether Irving’s
personality disorder caused him to lack adequate control over his sexually harmful
behavior, Dr. Dority responded, “Yes.” Dr. Dority supported his answer by testifying that
Irving has a consistent record of criminal behavior showing a lack of concern about others,
engages in impulsive acts leading to criminal charges, and exhibits “dis-controlled
behavior.”
While Irving is correct that his criminal sexual history is not as extensive as
Linehan’s, we are not persuaded that proof of a long criminal sexual history is required by
the statutory standard or by caselaw. As stated above, a person may meet the statutory
criteria to be committed as an SDP without a single conviction. The district court found—
based on clear and convincing record evidence including expert testimony that the court
found credible—that Irving’s disorder causes him to lack adequate control over his sexual
impulses. The district court did not clearly err in its finding.
14 C. Evidence Irving is Highly Likely to Reoffend
The Minnesota Supreme Court has directed district courts to consider the Linehan
factors to evaluate the likelihood of future harmful sexual conduct. Linehan I, 518 N.W.2d
at 614. Those factors include the following:
(a) the person’s relevant demographic characteristics (e.g., age, education, etc.); (b) the person’s history of violent behavior (paying particular attention to recency, severity, and frequency of violent acts); (c) the base rate statistics for violent behavior among individuals of this person’s background (e.g., data showing the rate at which rapists recidivate, the correlation between age and criminal sexual activity, etc.); (d) the sources of stress in the environment (cognitive and affective factors which indicate that the person may be predisposed to cope with stress in a violent or nonviolent manner); (e) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (f) the person’s record with respect to sex therapy programs.
Id. The word “likely” requires “clear and convincing evidence that the person is ‘highly
likely’ to engage in acts of harmful sexual conduct.” Ince, 847 N.W.2d at 22. And “‘highly
likely’ cannot be defined by a numeric value.” Id. at 21. Experts may use their specialized
knowledge to assist the trier of fact in determining a person’s psychological state. In re
Civ. Commitment of Jackson, 658 N.W.2d 219, 227 (Minn. App. 2003), rev. denied (Minn.
May 20, 2003). We defer to the district court’s weighing of evidence relevant to whether
an individual is highly likely to engage in harmful sexual conduct. See Ince, 847 N.W.2d
at 23-24 (acknowledging that, in making a commitment decision, district courts undertake
a “difficult task” often requiring consideration of a “voluminous and complex” record
followed by a “careful balancing of all the relevant facts” and concluding that district courts
15 are in “the best position to determine the weight to be attributed to each factor” (quotations
omitted)).
The district court found that Irving was highly likely to sexually reoffend. This
finding was based on a “combination of assessment of static risk factors, dynamic risk
factors and the application of the Linehan factors analyzed by Drs. Marshall and Dority.” 5
Specifically, the district court found that the experts’ opinions and testimony were
“credible and persuasive,” in part “because the experts conducted multifaceted assessments
and considered individual risk factors rather than relying entirely upon actuarial risk tools
to determine risk.” The district court also found that Irving’s score on the Static-99R was
5 The experts testified that they performed actuarial assessments of Irving’s risk, including the Static 99-R, HARE Psychopathy Checklist (HARE PCL-R), and the Violence Risk Scale—Sex Offense (VRS-SO). Dr. Marshall testified that the Static 99-R is “an instrument that is used to evaluate risk of an individual” and that it is “widely used.” She scored Irving as a 5 on the assessment, which is “in the well above average range for committing another sexual offense,” but she acknowledged that his score could be as high as 6, depending on whether he knew his first victim. She also assessed Irving using the HARE PCL-R, which “measures psychopathy on a continuum from less to more” and looks “at a person’s ability . . . to be violent.” She found that his score was 28, which is a “high score,” and concluded that “Irving is a clinical psychopath, basically.” Dr. Dority testified that the Static-99R is a “gold standard robust” tool and that Irving scored a 6, which is “well above average” and places him in “the highest risk level.” He also testified that a score of 6 correlates with a percentile of 94.2, indicating that “only six percent of persons score any higher” and that the ten-year recidivism rate associated with that score is “30-45%.” Dr. Dority testified that, using the HARE PCL-R—the “gold standard tool” for assessing psychopathy or psychopathic personality, which he “always” uses in an SDP case—Irving scored 24 with a standard deviation of 3. This score indicates that Irving is in the “moderate psychopathy range,” and based on this assessment and Irving’s record, Dr. Dority believed that Irving was highly likely to reoffend. Dr. Dority also assessed Irving using the VRS-SO, which “looks at dynamic [risk] factors,” and found that his score was 36, placing Irving in the 94th percentile. We observe that Irving’s scores on the assessments used by the experts support the district court’s finding that Irving is highly likely to sexually reoffend.
16 “considerably higher than the average score” and that Irving’s score indicates a “sexual
recidivism rate that is 3.77 times the rate of average sex offenders” with a “10-year sexual
recidivism rate [of] between approximately 30% and nearly 45%.” It found that Irving’s
score on the HARE PCL-R—an “instrument [that] is widely accepted in forensic settings
and frequently used in the assessment of psychopathy for individuals being considered for
commitment as a SDP”—“is close to the cutoff some recognize to be considered a clinical
psychopath.” Finally, the district court found that Irving’s “risk level was in the highest
possible category” and “well above average risk.”
The district court also made findings on each Linehan factor, which we summarize
in part:
• Factor (a): relevant demographic characteristics. “Irving’s age of 48 may be a factor that could reduce his risk.”
• Factor (b): history of violent behavior. “Irving has a significant history of intimidating others and engaging in assaultive, aggressive and violent behavior. He has numerous violations of orders for protection and convictions for assault.”
• Factor (c): base-rate statistics. Irving’s statistics for violent behavior were “well above average from the base rate, as demonstrated by the measures and actuarial instruments the examiners utilized.”
• Factor (d): sources of stress in the environment. Irving “has difficulty coping with stressors,” “has difficulty remaining sober,” and “would likely relapse with controlled substances if he felt stressed.”
• Factor (e): similarity of the present or future context to those contexts in which the person has used violence in the past. Irving’s release plan will put him in the same situation he was in the last time he was in the community— he plans to live with his sister, which he had the opportunity to do before, and the last time he was on intensive supervised release (ISR), he failed to abide by the ISR conditions.
17 • Factor (f): record of sex-offender treatment. Irving has never participated in sex-offender treatment. Although Irving completed chemical-dependency treatment while in jail, he “did not follow through with any aftercare or support meetings.”
In conclusion, the district court found that “Irving is highly likely to sexually
reoffend in the future” and that the county “met the burden by clear and convincing
evidence that Irving meets the statutory definition of an individual who is a sexually
dangerous person.”
Irving argues that the evidence is “simply too thin and too equivocal” to support,
under the clear-and-convincing standard, the district court’s finding that he is highly likely
to sexually reoffend in the future. Irving cites, for example, Dr. Dority’s testimony
acknowledging that Irving’s age reduces his risk to reoffend because “the older a person
gets the less likely they tend to be to engage in criminal sexual behavior or
any . . . troublesome behavior actually,” that Irving’s score on the HARE PCL-R is “not
too far from . . . the low range,” and that Irving did not qualify for a score of “hardcore
psychopathy.” Irving also cites Dr. Dority’s conclusion that “it’s not all bad” and Dr.
Dority’s acknowledgment that, while Irving’s release plan would include him living in the
community—which, Dr. Dority opined, would “be a stressful environment to try and
reenter again”—Irving “has family” in the area and the community can be “supportive.”
In short, the record evidence supports the district court’s finding that Irving is highly
likely to sexually reoffend. Both experts agreed that Irving is “highly likely” to sexually
reoffend “in the future,” and the district court found that the experts were “credible and
18 persuasive.” 6 The district court analyzed Irving’s risk based on the Linehan factors, and in
performing that analysis, it relied on the experts’ testimony and assessments. It also relied
on Irving’s own testimony and the testimony of his brother and sister. For example, the
district court found, based in part on Irving’s sister’s testimony, that Irving “would likely
relapse” if released into the same environment as his past offending environment and he
felt stressed.
Irving testified that his chemical use drove his sexual-offending behaviors and that
he had refused treatment and had a history of disregarding aftercare following treatment.
Based on this evidence, the district court concluded that Irving was highly likely to reoffend
if released into the community. The district court also relied on Irving’s criminal record,
citing Irving’s “poor ability to maintain compliance with release conditions, particularly
sobriety, and [his] probation violations, new criminal charges, and incarceration.” The
record also shows that Irving has failed to stay sober or complete drug testing, even when
required to do so under supervised release. Irving has violated probation many times, has
been charged with new crimes, and has been incarcerated on and off since arriving in
Minnesota in 2014.
6 We distinguish Irving’s case from the record in Ince. In both cases, a district court relied on expert testimony in civilly committing a respondent as an SDP. In Ince, the supreme court held that a district court may not “simply review[] the Linehan factors after largely accepting [one expert’s opinions] without indicating the significance of any of those factors within the context of a multi-factor analysis.” Ince, 847 N.W.2d at 24. There, the district court found that the first expert’s opinion was “particularly persuasive and convincing” and rejected the testimony of the other experts who did not agree with the first expert. Id. at 18. But here, both experts agreed that Irving was highly likely to reoffend, and the district court agreed with the experts’ conclusions while also performing its own independent analysis of the Linehan factors.
19 The record supports the district court’s findings that Irving is highly likely to
reoffend sexually. The district court did not err in finding that the record supports all three
elements required to civilly commit Irving as an SDP under section 253D.02,
subdivision 16.
II. The district court did not err in concluding that Irving failed to prove by clear and convincing evidence that a less restrictive alternative placement was available, consistent with Irving’s treatment needs, and consistent with the requirements of public safety.
Alternatively, Irving argues that the district court erred in finding that he did not
establish by clear and convincing evidence that “a less restrictive treatment program” under
Minnesota Statutes section 253D.07, subdivision 3 (2024), was available and appropriate
for him. This court reviews a district court’s decision not to adopt a less restrictive
alternative placement using the clear-error standard. In re Thulin, 660 N.W.2d 140, 144
(Minn. App. 2003) (affirming appellant’s civil commitment as mentally ill).
To avoid commitment to a secure treatment facility, a person designated as an SDP
must prove by clear and convincing evidence that (1) a less restrictive treatment program
is available and willing to accept the person, (2) the program is consistent with the person’s
treatment needs, and (3) the program is consistent with the requirements of public safety.
Minn. Stat. § 253D.07, subd. 3.
The district court found that “Irving did not present any evidence that there is a less
restrictive treatment program [than MSOP] available or willing to accept him as a possible
alternative to commitment.” It found that MSOP “is an appropriate treatment program for
20 Irving, and there are no less restrictive alternatives that meet Irving’s treatment needs and
the requirements of public safety.”
Irving contends that a less restrictive alternative to commitment would “best serve
the legitimate interests of all parties.” During his testimony, he proposed that he would
attend outpatient treatment at CORE Professional Services in Mankato, live with his sister,
and work at her cleaning company. Irving cites Dr. Dority’s testimony that CORE offers a
“robust outpatient treatment program.” He also cites Dr. Dority’s testimony that Irving
tends to have fewer incidents of sexual misconduct than the average person Dr. Dority has
interviewed.
Finally, Irving relies on his own testimony that he has a realistic plan to reintegrate
with society in a positive way. He testified, “[N]ow I got something positive to go back to
the streets to. . . . I got a home site to go to . . . [w]on’t miss no more . . . failure to register
stuff. . . . I got a job. . . . I got positive people that’s got my back now.” He testified that,
due to his age and declining health, he is highly motivated to avoid drug use and to avoid
situations that put him at risk for future sexual offenses. Irving also argues that the district
court should have “accorded much greater importance” to the fact that Irving “does not
have a history of refusing sex-offender treatment and has not been unsuccessfully
terminated from sex-offender treatment.”
Irving did not carry his burden on this issue. Both experts opined that Irving needs
secure residential sex-offender treatment, which only MSOP provides. Some evidence
suggests that Irving could succeed in a less restrictive treatment program. Dr. Dority
testified that Irving “could have success” in an outpatient program. But the statute requires
21 that the SDP prove three elements to avoid commitment to a secure treatment facility, and
one of those elements is that a less restrictive program is available and willing to accept
the person. See Minn. Stat. § 253D.07, subd. 3. Irving presented no evidence that he had
been accepted into, or had even applied to, the outpatient program at CORE Professional
Services.
Even if Irving had presented evidence that CORE was available and willing to
accept him into its program, he failed to offer clear and convincing evidence that the CORE
program was consistent with his treatment needs or the requirements of society. While
Dr. Dority acknowledged that it was possible Irving could have success in an outpatient
program, he also testified that a secure inpatient residential setting would be best for the
safety of both Irving and the community. Dr. Dority testified that, in his opinion, an
outpatient program would not be intensive enough for Irving and that he had “ruled out”
less restrictive alternatives.
Dr. Marshall also acknowledged that CORE could provide services to Irving, but
she also testified that Irving “needs treatment in a program that is highly structured, intense,
residential, [and] in a secure setting” and that MSOP was the only program offering that
degree of structure and intensity. She expressed her concern that, if Irving was in outpatient
treatment, “he would say he would do it but then once he got out that he wouldn’t follow
through with it . . . [b]ecause he has a pattern of doing that.”
22 Because Irving did not establish by clear and convincing evidence that a less
restrictive treatment program is available and appropriate, we conclude that the district
court did not err by rejecting a less restrictive alternative placement.
Affirmed.