This opinion is nonprecedential except as provided by Minn.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 A24-1017
In the Matter of the Civil Commitment of: Rodger Dean Robb II.
Filed November 18, 2024 Affirmed Connolly, Judge
Commitment Appeal Panel File No. AP20-9168
Rodger Dean Robb II, Moose Lake, Minnesota (pro se, appellant)
Keith Ellison, Attorney General, Benjamin Johnson, Assistant Attorney General, St. Paul, Minnesota (for respondent Commissioner of Human Services)
Mary F. Moriarty, Hennepin County Attorney, Jennifer Inz, Brittany D. Lawonn, Assistant County Attorneys, Minneapolis, Minnesota (for respondent Hennepin County)
Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Ede,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Pro se appellant Rodger Dean Robb II (appellant) challenges the denial of his
petition for full discharge from his indeterminate civil commitment to the Minnesota Sex
Offender Program (MSOP) as a sexually dangerous person (SDP). He argues that: (1) the
record does not support the commitment appeal panel’s (CAP’s) finding that he has a
mental illness to support continued commitment; (2) the statutory discharge criteria do not
comply with due process; and (3) the CAP made several evidentiary and procedural errors. Because the record sustains the CAP’s findings and appellant has not adequately briefed
his remaining arguments, we affirm.
FACTS
Appellant is 74 years old and is currently civilly committed as a sexually dangerous
person (SDP) to the Minnesota Sex Offender Program (MSOP). In February 2001, this
court affirmed the indeterminate commitment of appellant as SDP. In re Robb II, 622
N.W.2d 564, 566 (Minn. App. 2001), rev denied (Minn. Apr. 17, 2001). The bases for
commitment included multiple convictions for criminal sex offenses and a history of
uncharged criminal sexual behavior.
In 1976, when appellant was 26 years old, he committed sexual offenses against
four minor boys. Some of the victims’ ages are unknown, but the victims’ ages generally
ranged from 10 to 13 years old. While appellant was employed at a school as the band
director, he attempted to unzip the pants of the first victim during a band lesson. After that
incident, appellant molested two male students. Appellant was not charged for his conduct.
Appellant then molested a 10-year-old boy by touching the boy’s genitals. For this,
appellant was charged with disorderly conduct, and he received a stayed sentence on the
condition that he complete counseling.
Three years later, appellant was charged with three counts of criminal sexual
conduct for molesting three more boys aged 12 years old. He plead guilty to one count of
second-degree criminal sexual conduct and received a stayed sentence on the condition that
he complete Intensive Treatment Program for Sexual Aggressives (ITPSA). While
appellant was in treatment at ITPSA, he molested a 15-year-old boy while the boy was
2 sleeping. He was not charged for the incident. A year later, he was caught molesting
another minor male at ITPSA. He was then terminated from ITPSA, his probation was
revoked, and he served 21 months in prison.
From 1992 to 1993, when appellant was 42 and 43 years old, he sexually assaulted
three minor boys. In one of the incidents, appellant forced a 12-year-old boy onto a bed,
held him down, and masturbated him. Appellant continued to abuse this boy ten more
times. Appellant abused two 14-year-old boys at his apartment in a similar manner on
multiple occasions. For these incidents, he was charged with one count of first-degree
criminal sexual conduct and two counts of third-degree criminal sexual conduct. He
pleaded guilty to all three counts and was sentenced to 98 months in prison.
Following civil commitment proceedings, appellant was indeterminately committed
as a sexually dangerous person in February 2001. At the time of the indeterminate
commitment proceedings, appellant’s diagnoses included “paraphilia-not otherwise
specified,” and “personality disorder-not otherwise specified, with narcissistic and
antisocial traits.”
In 2005, appellant and another MSOP resident escaped from the St. Peter facility.
He was apprehended 12 hours later in Omaha, Nebraska. Appellant claimed that one of
his victims helped him escape and stated the victim, “volunteered to help because he
believed I got the shaft, so he felt bad.” After he was extradited to Minnesota he was
convicted of escaping from a “mental hospital.”
3 In October 2019, appellant petitioned for a reduction in custody.1 A year later, the
Special Review Board (SRB) recommended denial of appellant’s petition for a transfer to
community preparation services (CPS),2 provisional discharge, or full discharge.
Appellant then petitioned to the CAP for rehearing and reconsideration of the SRB’s
recommendations.3
First-phase hearing
On July 19, 2022, the CAP held a first-phase hearing on appellant’s petition.
Appellant proceeded only on his petition for full discharge and withdrew his petition for
transfer or provisional discharge.
The CAP received testimony from Dr. Jessica Mugge, Ph.D. (Dr. Mugge), a clinical
psychologist retained by appellant. Dr. Mugge was the only witness appellant called. Dr.
Mugge completed a psychological evaluation of appellant. She testified to her diagnosis
of appellant’s sexual and personality disorder. She concluded that she “did not find
sufficient evidence to diagnose a paraphilic disorder.” She explained that the DSM-5
criteria of a paraphilic disorder include that the victims are under the age of 13. And
because appellant’s “offense history were ages 12 to 14 or older,” she did not diagnose him
with a paraphilic disorder. She also testified that appellant could fit the criteria for
1 Appellant also petitioned for full discharge in 2017. In re Civ. Commitment of Robb II, No. A18-1521, 2019 WL 1007796, at *1 (Minn. App. Mar. 4, 2019). This court affirmed the CAP’s dismissal of his petition at the first-phase hearing. Id. 2 CPS is a “non-secure facility” at MSOP-St. Peter. In re Civ. Commitment of Fugelseth, 907 N.W.2d 248, 251 (Minn. App. 2018), rev. denied (Minn. April 17, 2018). 3 We refer to the judicial appeal panel as the commitment appeal panel or CAP. See Minn. Stat. § 253D.28, subd. 1(a) (2022).
4 “hebephilia” based on his offense history, which is attraction to “post-pubescent males.”
Dr. Mugge explained that hebephilia is not within the DSM-5, “simply because the research
suggests that men who are attracted to pubescence” are normal, but “acting on that
[attraction] is deviant and illegal and that’s a problem.” She also testified that appellant
has some “narcissistic personality traits,” which could support a “specified or unspecified
personality disorder” diagnosis, but his traits are “not enough to meet full criteria for
narcissistic personality disorder.” Dr. Mugge ultimately concluded that “because of
[appellant’s] treatment needs” he is not safe to release to society and is dangerous to the
public.
The CAP held that appellant did not produce a prima facie case with competent
evidence to meet the statutory criteria for discharge. The CAP cited to Dr. Mugge’s
evaluation, noting that she opined that appellant did not meet the statutory criteria for
discharge from civil commitment, because appellant lacked progress in sex-offender
treatment, and she could not determine if existing protective factors effectively reduced his
risk for reoffending. But the CAP concluded that appellant “presented the bare minimum
evidence to proceed to a Phase II hearing on the issue of mental illness” under a due-process
analysis. The CAP found that appellant did not present competent evidence to support a
finding that he no longer poses a danger to the community, but the CAP was “left with
questions regarding [appellant’s] continued mental illness.” The CAP noted that at least
six other experts diagnosed appellant with various mental illnesses throughout the duration
of his civil commitment, and it required further information on the issue of how appellant’s
mental illness relates to the issue of dangerousness to support continued civil commitment.
5 Second-phase hearings
The CAP held three second-phase hearings that concluded on September 12, 2023.
The CAP received 31 exhibits into evidence and testimony from three witnesses: (1)
Christopher Schiffer (Schiffer), (2) Dr. Mallory Jorgenson (Dr. Jorgenson), and (3) Dr.
Tyler Dority (Dr. Dority).
Schiffer is the clinical services director at MSOP. The parties stipulated that
Schiffer testified as an expert witness. Schiffer opined that the petition for discharge “was
premature.” He testified that appellant is “consistent” in not engaging in treatment, is
“essentially untreated,” and “hasn’t engaged in therapy to address any of the affects of his
offense dynamics that could be addressed through treatment.” He acknowledged that
appellant does occasionally speak with his primary therapist, but this is not adequate
treatment. He explained that appellant is in a “precontemplative” phase of treatment, where
he “does not recognize his behaviors as harmful or problematic” nor recognize “treatment
as potentially helpful.”
Dr. Jorgenson is a forensic evaluator with the Department of Human Services. The
parties stipulated that Dr. Jorgenson testified as an expert witness. Dr. Jorgenson prepared
two sexual violence risk assessments of appellant. In preparing her assessments, she used
risk-assessment tools that indicated appellant poses average risk of sexual recidivism.
She opined that appellant does not meet the statutory criteria for discharge, that he
has a mental disorder, that he continues to pose a danger to the public due to his mental
disorders, and that he continues to require treatment. She testified that in assessing
appellant, it was notable that he offended against “a number of minor males over an
6 approximate 17-year period” and “that he continued to offend despite multiple criminal
interventions.” Dr. Jorgenson diagnosed appellant with “other specified paraphilic
disorder pubescent males in a controlled environment.” She opined appellant is diagnosed
with this disorder because he has a “number of victims” in the age range of “11 to 14.” She
further explained that although she did not diagnose appellant with hebephilia, that
“hebephilia and pubescent is often viewed . . . as kind of interchangeable language.”
Dr. Jorgenson also diagnosed appellant with “provisional narcissistic personality
disorder.” She testified appellant “demonstrated a real pervasive lack of empathy,” a
“willingness to manipulate others,” and “made statements viewing himself as superior.”
She testified that she qualified the personality disorder as “provisional,” according to the
DSM-5, to indicate there is a strong presumption that the disorder is present. But she did
not have enough information to remove the “provisional” identifier from her diagnosis, in
part because appellant has not participated in treatment.
Dr. Dority is the court-appointed examiner. He also prepared a sexual violence risk
assessment. He used risk assessment tools that also indicated appellant is at average risk
for sexual recidivism. Dr. Dority testified that appellant does not meet the statutory criteria
for discharge and continues to pose an unreasonable risk to the public.
Dr. Dority diagnosed appellant with “other specified paraphilic disorder pubescent
males in a controlled environment” and “unspecified personality disorder with narcissistic
and other cluster B features.” He testified these disorders are recognized by the DSM-5.
Dr. Dority testified that although “hebephilia” is not in the DSM-5, “just because every
7 single possible type of paraphilia . . . [is] not expressly specified in the [DSM-5] . . . does
not mean they don’t exist.”
The CAP found that appellant is diagnosed with a paraphilic and personality
disorder, remains a danger to the community, and that “continued commitment is
appropriate according to both the statutory discharge criteria and the due process
considerations.” The CAP then denied appellant’s petition for full discharge from civil
commitment.
DECISION
I. The CAP did not clearly err by determining appellant has a mental illness.
A committed person who petitions for discharge must first file the petition with the
SRB. Minn. Stat. § 253D.27, subd. 2 (2022). If the SRB recommends the CAP deny the
petition, then the committed person may petition for “rehearing and reconsideration” by
the CAP of the SRB recommendation. Minn. Stat. §§ 253D.27, subd. 4; 253D.28, subd. 1
(2022). The CAP conducts phased hearings on the petition. At the first-phase hearing, the
committed person bears the burden to present a “prima facie case with competent evidence”
that the committed person should be discharged. Minn. Stat. § 253D.28, subd. 2(d) (2022).
If the committed person meets that burden, then the party opposing discharge “bears the
burden of proof by clear and convincing evidence” that the discharge should be denied at
the second-phase hearing. Id.
A person committed as SDP can be fully discharged if the CAP determines that he
is (1) “capable of making an acceptable adjustment to open society,” (2) “no longer
dangerous to the public,” and (3) “no longer in need of treatment and supervision.” Minn.
8 Stat. § 253D.31 (2022). In determining whether the CAP will grant the person’s requested
discharge, the CAP considers “whether specific conditions exist to provide a reasonable
degree of protection to the public and to assist the committed person in adjusting to the
community.” Id. If these specific conditions do not exist, then the “discharge shall not be
granted.” Id.
The CAP must apply the statutory criteria in a manner that comports with due
process protections. Call v. Gomez, 535 N.W.2d 312, 318 (Minn. 1995). Due process
protections are satisfied when the “nature of commitment bear[s] some reasonable relation
to the purpose for which the individual was originally committed.” Id. (quotations
omitted). This reasonable relation exists if a committed person continues to both (1) “need
further inpatient treatment and supervision for his sexual disorder” and (2) poses a danger
to the public. Id. at 319.
We review the CAP’s decision on the merits of a petition for clear error. In re Civ.
Commitment of Edwards, 933 N.W.2d 796, 803 (Minn. App. 2019), rev. denied (Minn.
Oct. 15, 2019). When reviewing factual findings for clear error, “we view the evidence in
a light favorable to the findings,” and we do not reweigh the evidence or reconcile
conflicting evidence. In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-22 (Minn.
2021). Thus, we “need not go into an extended discussion of the evidence to prove or
demonstrate the correctness of the [CAP’s] findings,” because it is the CAP’s “primary
responsibility” to determine fact issues. Id. at 222. Under a clear error review, “an
appellate court’s duty is fully performed after it has fairly considered all the evidence and
has determined that the evidence reasonably supports the decision.” Id.
9 Appellant argues that he “lacks a sexual, personality, or mental disorder or
dysfunction that requires ongoing treatment.” To support his contention, appellant states
that the CAP “erred by accepting fictitious diagnoses from Drs. Jorgenson and Dority either
rejected by the medical community or not complying with the requirements of DSM-5.”
The diagnosis appellant claims is fictitious is hebephilia. We construe his argument to be
a challenge to the CAP’s findings.
As noted above, the CAP considered whether appellant has a mental illness to
support continued commitment under a due-process analysis. It found that appellant is
diagnosed with a paraphilic and personality disorder, appellant continues to pose a danger
to the community, and “continued commitment is appropriate according to both the
statutory discharge criteria and the due process considerations.” The record supports the
CAP’s findings for two reasons.
First, as noted above, each expert testified in regard to appellant’s paraphilic
diagnosis. Dr. Jorgenson and Dr. Dority each testified that they diagnosed appellant with
“other specified paraphilic disorder pubescent males in a controlled environment.” Dr.
Mugge was the only expert who testified that she did not have enough information to
diagnose him with a paraphilic disorder, but that he may fit the criteria for “hebephilia,”
even though hebephilia is not presently an independent diagnosis in the DSM-5. Dr.
Jorgenson and Dr. Dority agreed that appellant could be diagnosed with hebephilia, but
opined hebephilia could be included under the “other specified paraphilic disorder”
category in the DSM-5. The CAP ultimately found Dr. Jorgenson and Dr. Dority credible
and found Dr. Mugge’s testimony that she did not have enough evidence to diagnose
10 appellant with a paraphilic disorder to be “less persuasive.” Expert testimony in civil
commitment cases is important to determine a person’s mental state, Kenney, 963 N.W.2d
at 224, and we generally defer to the CAP’s evaluation of expert testimony so long as the
record as a whole supports the CAP’s evaluation. Edwards, 933 N.W.2d at 805. And due
process does “not require[] any particular mental condition as a prerequisite for a person’s
ongoing civil commitment.” In re Civ. Commitment of Opiacha, 943 N.W.2d 220, 228
(Minn. App. 2020). Upon review of the record, we conclude that the record sustains the
CAP’s findings. See In re Civ. Commitment of Navratil, 799 N.W.2d 643, 648 (Minn. App.
2011) (concluding the district court did not clearly err by finding patient was diagnosed
with sexual disorder after patient was diagnosed with paraphilia and expert witnesses
testified he would meet criteria for hebephilia).
Second, each expert also testified in regard to appellant’s personality disorder. Dr.
Jorgenson testified she diagnosed him with “provisional narcissistic personality disorder.”
Dr. Dority diagnosed appellant with “unspecified personality disorder with narcissistic and
other cluster B features.” And Dr. Mugge testified that he has some “narcissistic
personality traits,” but his traits are “not enough to meet full criteria for narcissistic
personality disorder.” Again, the CAP found Dr. Jorgenson and Dr. Dority credible, but
found “Dr. Mugge’s testimony contradictory, as she testified that there was not evidence
of a personality disorder, yet admitted that these ‘narcissistic traits’ could be included under
a valid diagnosis listed in the DSM-5.” There is ample evidence in the record to support
the CAP’s finding that appellant has a personality disorder and requires further treatment
to support continued commitment.
11 To the extent that the CAP considered whether appellant required further inpatient
treatment, it found that “continued commitment is appropriate” and the “record is devoid
of evidence that [appellant] no longer requires treatment.” 4 This finding is supported by
the record, because Schiffer testified that appellant refuses to participate in treatment and
the CAP received MSOP’s treatment reports of appellant into evidence. And refusing to
engage in treatment does not establish that appellant no longer needs treatment. See In re
Blodgett, 510 N.W.2d 910, 916 (Minn. 1994) (stating that: “[i]t also seems somewhat
incongruous that a sexual offender should be able to prove he is untreatable by refusing
treatment”). On the issue of dangerousness, the CAP found “[n]o evidence was presented
showing that [appellant] no longer presents a danger to the community.” This finding is
also supported by the record, because every expert agreed that appellant remains a danger
to the public. And Dr. Jorgenson and Dr. Dority determined that appellant poses an
“average risk” for re-offending.
Because the CAP did not clearly err by finding that appellant does not meet the
statutory discharge criteria or due process discharge criteria, his argument that “holding
[him] without a valid diagnosis and/or for dangerousness alone violates 14th Amendment
due process protections” fails.5
4 At the first-phase hearing, the CAP also concluded appellant did not produce a prima facie case on the issue of statutory discharge. In other words, appellant did not provide evidence suggesting that he was no longer in need of treatment. 5 Because we conclude that the CAP’s findings are both sufficient for review and supported by the record, appellant’s arguments that the CAP made insufficient findings fails.
12 II. Appellant’s argument that the statutory discharge criteria cannot be reconciled with the constitutional standard is not adequately briefed.
Appellant also contends that “the relevant discharge standard must include the need
for further inpatient treatment” and the “new, more stringent discharge standard cannot be
reconciled with the constitutional standard set forth in Minnesota case law.” We construe
his argument to be a challenge to the discharge statute. We review issues of statutory
interpretation de novo. Fugelseth, 907 N.W.2d. at 253.
In 2018, the legislature removed the word “inpatient” from the statutory criteria that
a committed person shall not be discharged if the person “is no longer in need of inpatient
treatment and supervision.” 2018 Minn. Laws ch. 194, § 2, at 423-24. Appellate courts
have repeatedly stated that the relevant discharge standard must include the need for further
inpatient treatment to comply with constitutional law. See Call, 535 N.W.2d at 319;
Fugelseth, 907 N.W.2d at 255; In re Civ. Commitment of Poole, 921 N.W.2d 62, 66 (Minn.
App. 2018), rev. denied (Minn. Jan. 15, 2019). Appellant supports his contention by
quoting from an unpublished decision, In re Civ. Commitment of Hogy, A19-1181, 2019
WL 6286408, at *4-6 (Minn. App. Nov. 25, 2019), rev. denied (Minn. Jan. 21, 2020). But
this court’s decision in Hogy did not reach the issue of whether the 2018 change to the
discharge statute can be reconciled with the constitutional standard; instead, it applied the
constitutional standard for discharge set forth in case law by considering whether the
appellant in that case was (1) in need of inpatient treatment and supervision and (2) a danger
to the public. Id. Appellant offers no further argument to support his contention. We
13 decline to reach an issue in the absence of adequate briefing. In re Civ. Commitment of
Kropp, 895 N.W.2d 647, 653 (Minn. App. 2017), rev. denied (Minn. June 20, 2017).
III. Appellant’s arguments that the CAP erred in its evidentiary rulings or procedural decisions fail.
Appellant argues the CAP erred in four evidentiary rulings or procedural decisions
because the CAP (1) “ignored their own [o]rder and allowed other testimony which was
prejudicial to [a]pellant,” (2) denied excerpts of testimony from another case that appellant
sought to introduce into evidence, (3) denied “appellant the opportunity to cross-examine
the court’s examiner,” and (4) accepted statutory analysis from the expert witnesses.6
Appellant did not raise these arguments with the CAP, so we do not consider them. See
Kropp, 895 N.W.2d at 653. To the extent that appellant did raise the issue of the CAP
allowing prejudicial testimony below, on appeal he has not identified testimony that the
CAP erroneously admitted. We decline to reach issues that are inadequately briefed. See
Kropp, 895 N.W.2d at 653.
Affirmed.
6 We are aware of the Minnesota Supreme Court’s recent opinion, In re Civ. Commitment of Benson, where the court determined that “Minn. Stat. § 253D.20 establishes a waivable right to counsel” and that to proceed pro se, a committed person must be deemed competent to enter a knowing and intelligent waiver. __ N.W.3d __, 2024 WL 4551311, at *8 (Minn. Oct. 23, 2024). Although the facts presented here and in Benson are similar, we conclude Benson does not apply in this case. The committed person in Benson requested that he be allowed to personally examine witnesses and stated that “prefers to proceed pro se.” Id. at *2. Here, appellant also requested that he be allowed to personally cross-examine witnesses, and the record shows he requested new counsel to be appointed during the second-phase hearings. But appellant unambiguously stated that he was not requesting to proceed pro se; rather he said, “I’m just asking for different representation.” Therefore, Benson does not apply to appellant’s request to personally cross-examine witnesses because he did not also request to proceed pro se.