This opinion is nonprecedential except as provided by Minn.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 A23-1744
In the Matter of the Civil Commitment of: Rodrick Dean Pouncy, Jr.
Filed May 13, 2024 Affirmed Bjorkman, Judge
Anoka County District Court File No. 02-PR-22-687
Jennifer L. Thon, Jonathan M. Comuzzi, Jones Law Office, Mankato, Minnesota (for appellant Rodrick Pouncy, Jr.)
Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Ellen Lavigne, Assistant County Attorneys, Anoka, Minnesota (for respondent Anoka County)
Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his indeterminate civil commitment as a sexually dangerous
person (SDP) and a sexual psychopathic personality (SPP), arguing that the district court
clearly erred in finding that he (1) “engaged in a course of harmful sexual conduct,”
(2) demonstrated a “habitual course of misconduct,” (3) is “highly likely to reoffend,” and
(4) is “dangerous to others.” Because the record supports the district court’s factual
determinations, we affirm. FACTS
Appellant Rodrick Dean Pouncy, Jr. committed numerous domestic assaults and
seven reported sexual assaults between 2014 and 2022. The State of Minnesota charged
him with four sexual-assault offenses in separate proceedings; all four proceedings were
suspended because Pouncy was found incompetent under Minn. R. Crim. P. 20.01. The
sexual assaults became increasingly violent. While the first incidents involved unwanted
touching and kissing (consistent with fifth-degree criminal sexual conduct), later incidents
involved nonconsensual sexual intercourse with minors (consistent with third-degree
criminal sexual conduct), and most recently forced sexual intercourse accompanied by
death threats and violent behavior including strangulation (consistent with first-degree
criminal sexual conduct). All of Pouncy’s sexual-assault victims were vulnerable because
of their age, cognitive disabilities, or both.
Four of Pouncy’s charged domestic assaults 1 involved the same victim and at least
five other reported incidents were not charged. These incidents of domestic assault have
resulted in orders for protection, no-contact orders, and harassment restraining orders.
Pouncy has violated these orders, but prosecutions have been dismissed or suspended due
to his incompetency. In sum, Pouncy had at least two reported sexual or domestic assaults
every year from 2014 until he was jailed in 2022. 2
1 All of Pouncy’s charged domestic-assault offenses were dismissed or the proceedings were stayed due to Pouncy’s incompetency. 2 Pouncy also has two prior assault charges, one that was dismissed in 2015 for incompetency and one that was dismissed in 2022 “in the interests of justice.” And he has a pending felony motor-vehicle theft charge. Since going to jail in 2022, Pouncy has
2 Pouncy has a very low IQ 3 and has been diagnosed with an intellectual development
disorder, a personality disorder that affects his impulse control, paraphilic disorder with
sexual sadism and coercive paraphilia traits, and a cannabis-use disorder. His participation
in treatment to address his sexual impulses and aggressive behaviors has been minimal and
inconsistent, due in large part to his low cognitive function. Pouncy has been under the
guardianship of his mother since he turned 18 in 2016.
In January 2023, respondent Anoka County petitioned for Pouncy to be civilly
committed as an SDP and an SPP. Two doctors testified at the May trial, the pre-petition
examiner retained by the county, Dr. Michael Thompson, MSW, Psy.D., L.P., and the
court-appointed examiner, Dr. Tyler Dority, Ph.D., L.P. 4 Both doctors reviewed Pouncy’s
extensive record and conducted standard actuarial assessments, and Dr. Dority interviewed
Pouncy. Both doctors opined that Pouncy meets the statutory requirements for civil
commitment as an SDP and an SPP. The district court expressly found the doctors’ shared
opinion “credible, supported, and persuasive.”
Four of Pouncy’s victims also testified, providing details regarding his conduct and
the harm it caused them. Two of the victims, E.J.T. and L.R.B., testified that Pouncy
strangled them during the course of the sexual assault. And the district court received 25
assaulted multiple corrections officers and made threats to kill, harm, and “blow up” other officers. 3 Pouncy has an IQ between 40 and 60. 4 The parties stipulated that both doctors have the experience and training to offer relevant expert testimony. Pouncy did not ask the district court to appoint a second examiner.
3 exhibits, including the doctors’ written reports and other records from Pouncy’s various
criminal incidents and failed treatments. The district court found that clear and convincing
evidence establishes that Pouncy meets the criteria for commitment as an SDP pursuant to
Minn. Stat. § 253D.02, subd. 16 (2022), and an SPP pursuant to Minn. Stat. § 253D.02,
subd. 15 (2022). The court also determined that there is no less-restrictive alternative to
commitment to the Minnesota Sexual Offender Program (MSOP) that will meet Pouncy’s
treatment needs and ensure public safety.
Pouncy appeals.
DECISION
A person may be civilly committed as an SDP or an SPP if the county proves the
statutory commitment criteria by clear and convincing evidence. Minn. Stat. § 253D.07,
subd. 3 (2022). We review a district court’s factual findings regarding the criteria for clear
error. In re Civ. Commitment of Stone, 711 N.W.2d 831, 836 (Minn. App. 2006), rev.
denied (Minn. June 20, 2006). Under this standard, we view the evidence in a light most
favorable to the findings, do not reweigh the evidence, and do not resolve conflicting
evidence. In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-22 (Minn. 2021). But
whether the evidence meets the statutory requirements for commitment is a question of
law, which we review de novo. In re Civ. Commitment of Crosby, 824 N.W.2d 351, 356
(Minn. App. 2013), rev. denied (Minn. Mar. 27, 2013).
An SDP is a person 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.
4 § 253D.02, subd. 16. An SPP is a person who (1) has “conditions of emotional instability,”
impulsive behavior, “lack of customary standards of good judgment,” “failure to appreciate
the consequences of personal acts, or a combination of any of these conditions, which
render the person irresponsible for personal conduct with respect to sexual matters”; (2) has
“an utter lack of power to control” his sexual impulses, as evidenced by “a habitual course
of misconduct in sexual matters”; and (3) “as a result, is dangerous to other persons.” Id.,
subd. 15.
If a district court determines that the statutory commitment criteria have been
proven,
the 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.
Pouncy only challenges the district court’s SDP findings that he (1) “engaged in a
course of harmful sexual conduct” and (2) is “highly likely to reoffend”; and its SPP
findings that he (1) exhibited “a habitual course of misconduct in sexual matters” and (2) is
“dangerous to others.” 5 Because of the similarities between the SDP and SPP statutory
criteria, we consider the first challenged findings from each commitment standard together;
5 Pouncy does not dispute the district court’s findings of fact regarding the other commitment criteria. And he does not challenge the district court’s determination that there is no less-restrictive alternative to commitment to MSOP.
5 and, separately, we consider the second challenged findings from each statutory criteria
together.
I. The district court did not clearly err by finding that Pouncy engaged in “a course of harmful sexual conduct” and exhibited “a habitual course of misconduct in sexual matters.”
SDP Findings
“Harmful sexual conduct” is defined as “sexual conduct that creates a substantial
likelihood of serious physical or emotional harm to another.” Minn. Stat. § 253D.02,
subd. 8(a) (2022). It is presumed that the conduct described in the statutes establishing
criminal sexual conduct in the first and third degrees meets this definition. Minn. Stat.
§ 253D.02, subd. 8(b) (2022) (establishing a rebuttable presumption). Repeated incidents
of such conduct may constitute a “course” even if they did not occur recently, 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.” Stone, 711 N.W.2d at
834-35, 837-39 (reported aggressive interactions with young girls every 1-3 years
constituted a course of harmful sexual conduct). In determining whether a person engaged
in a course of harmful sexual conduct, courts consider “both conduct for which the [person]
was convicted and conduct that did not result in a conviction.” Id. at 837.
Pouncy broadly contends that the record does not support the challenged findings.
And he takes particular issue with the district court’s findings that he strangled victims
E.J.T. and L.R.B., pointing to Dr. Thompson’s testimony that he would expect some kind
of bruising or effect on the person’s vocal cords, which neither victim presented. None of
Pouncy’s arguments persuade us to reverse.
6 First, the absence of strangulation marks does not—in and of itself—make the
district court’s strangulation findings clearly erroneous. Both E.J.T. and L.R.B. testified
that Pouncy strangled them. E.J.T., the victim of the charged first-degree criminal-sexual-
conduct offense, recounted Pouncy strangling her with both hands for 30 seconds.
Likewise, L.R.B. testified that Pouncy choked her with both hands, consistent with prior
statements she made to a doctor that she was strangled with a “ten-out-of-ten grip.”
Dr. Thompson’s testimony that he would have expected some kind of bruising or effect on
E.J.T.’s vocal cords and some kind of mark on L.R.B. is evidence that the district court
was entitled to consider. 6 But the court was not bound to credit any particular evidence—
even expert testimony. See Kenney, 963 N.W.2d at 224-25 (explaining that the fact-finder
is not bound by expert testimony, even when uncontradicted). Rather, the district court
weighed the competing evidence as to strangulation, which was uniquely its task as the
finder of fact. In re Civil Commitment of Ince, 847 N.W.2d 13, 23-24 (Minn. 2014) (“As
the trier of fact, the district court [is] in the best position . . . to evaluate the credibility of
witnesses—a critical function in [civil-commitment] cases that rely so heavily on the
opinions of experts.”).
Moreover, even if the district court clearly erred by finding that Pouncy strangled
two of his victims, ample other evidence supports a finding that his conduct harmed his
sexual-assault victims. See Minn. Stat. § 253D.02, subd. 8(a) (defining “harmful sexual
6 Dr. Dority offered no opinion regarding E.J.T.’s lack of bruising or other marks of strangulation. As to L.R.B., Dr. Dority testified that he would expect some physical evidence if a person were strangled over several hours.
7 conduct” as “sexual conduct that creates a substantial likelihood of serious physical or
emotional harm to another”). All four testifying victims described the harm they
experienced as a result of Pouncy’s acts and death threats, including physical pain and the
fear and trauma they have lived with since the incidents occurred. And Dr. Thompson
opined that the overall record demonstrates that Pouncy engaged in harmful sexual
conduct.
Second, the record defeats Pouncy’s argument that the district court misapplied the
law by finding that he engaged in sexual conduct that created “likely” physical or emotional
harm to others when Minn. Stat. § 253D.02, subd. 8(a), requires a finding that the sexual
conduct created a “substantial likelihood of serious physical or emotional harm to another.”
A careful review of the district court’s findings shows that it applied the correct standard.
It is true that the district court uses the adjective “likely,” in some of its findings. But each
time it does so, it follows up with a reference to the “substantial likelihood” standard. For
example, in paragraph 254 of its order, the district court “finds the testimony and
supporting evidence regarding the pending 3rd degree criminal sexual conduct charge
related to L.R.B. . . . proves that such conduct is likely to cause substantial physical or
emotional harm.” But the paragraph concludes with the statement “this incident has a
substantial likelihood of creating serious or emotional harm.”
Finally, Pouncy does not point to any other specific findings of fact as lacking record
support and cites no legal authority for his general assertion that the district court
misapplied the law. We do not presume error on appeal. Loth v. Loth, 35 N.W.2d 542,
546 (Minn. 1949). Rather, the appellant must show that the district court erred. Potter v.
8 Potter, 27 N.W.2d 784, 786 (Minn. 1947). Absent such a showing, we do not consider an
appellant’s arguments. See Christie v. Est. of Christie, 911 N.W.2d 833, 837-38 n.4 (Minn.
2018) (stating that arguments without analysis or citation to legal authority are waived);
State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.
1997) (declining to consider an inadequately briefed question); In re Civ. Commitment of
Kropp, 895 N.W.2d 647, 653 (Minn. App. 2017) (applying Wintz in a civil-commitment
matter), rev. denied (Minn. June 20, 2017).
In sum, the district court made supported findings that Pouncy engaged in the
requisite “sexual conduct that has created a substantial likelihood of serious physical or
emotional harm to another.” See Minn. Stat. § 253D.02, subd. 8(a).
SPP Findings
Under the SPP statute, Pouncy only meets the commitment criteria if he exhibited
“a habitual course of misconduct in sexual matters.” Minn. Stat. § 253D.02, subd. 15.
Pouncy again broadly argues that the record does not support the district court’s finding
that he exhibited a habit of sexual misconduct. The extensive record, including Pouncy’s
charged and uncharged conduct, defeats this contention. Any discrepancies in the accounts
of his misconduct can be attributed to any number of circumstances: victims who are
vulnerable due to their young age and cognitive disabilities, Pouncy’s own cognitive
function, the passage of time, and the impact of trauma on a person’s ability to recall an
event. Based on our careful review of the record, we discern no clear error by the district
court in finding that Pouncy exhibited a habitual course of sexual misconduct for the same
reasons he meets the harmful-sexual-conduct criterion of the SDP statute.
9 II. The district court did not clearly err by finding that Pouncy is “highly likely to reoffend” and is “dangerous to others.”
To be committed as an SDP, clear and convincing evidence must establish that a
person “is likely to engage in acts of harmful sexual conduct” as a result of sexual or other
mental disorder or dysfunction. Minn. Stat. § 253D.02, subd. 16; see In re Linehan, 544
N.W.2d 308, 318 (Minn. App. 1996) (Linehan II) (“[T]he statute’s term ‘likely’ requires
future misconduct to be ‘highly likely.’”), aff’d, 557 N.W.2d 171 (Minn. 1996), vacated
and remanded sub nom., Linehan v. Minnesota, 522 U.S. 1011 (1997), aff’d on remand,
594 N.W.2d 867 (Minn. 1999) (affirming appellant’s civil commitment under SDP statute).
In evaluating the likelihood that an individual will engage in future harmful sexual
conduct, district courts consider:
(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.
In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (Linehan I); see In re Linehan, 557
N.W.2d 171, 189 (Minn. 1996) (Linehan III) (applying these factors to SDP case). We
note that the Linehan factors may overlap with factors accessed by other actuarial risk-
10 assessment tools. Indeed, our supreme court has acknowledged this possibility and
cautioned district courts “to be wary of the potential for factor repetition.” Ince, 847
N.W.2d at 24. But the supreme court affirmed its reliance “on the ability of district courts
to weigh the evidence in each case, drawing the appropriate conclusions based on
consideration of all the evidence.” Id.
Pouncy first argues that the district court erred by crediting the doctors’ testimony
regarding his base-rate statistics because both acknowledged errors in scoring one of the
risk-assessment tools, the Static-99R. The Static-99R is an actuarial risk-assessment tool
that ranks a sexual offender’s relative recidivism risk based on ten objective factors. It is
objectively scored “based on unchanging, enduring factors, called static factors, correlated
with long-term re-offense rates of similar sexual offenders with the same score.” A
person’s total score correlates to five risk categories ranging from very low risk (-3 through
-2) to well-above average risk (6+). Both doctors scored Pouncy in the well-above average-
risk category.
Dr. Thompson scored Pouncy as a 7. At trial, he admitted this score was incorrect
because he included one point for prior nonsexual violence convictions when in fact
Pouncy had been charged but not convicted of such offenses due to his incompetency.
Dr. Thompson further explained that Pouncy’s corrected score of 6 still placed him in the
highest risk category. And he opined “with a degree of certainty customary in the field of
psychology” that regardless of the error in the Static-99R scoring, Pouncy meets the criteria
for civil commitment.
11 As to Dr. Dority, Pouncy seems to take issue with both the Static-99R score he
calculated and a reference in his written report to whether placement in an institution
should be considered based on Pouncy’s own need for protection and care as a vulnerable
adult. Dr. Dority directly addressed the scoring error, stating that it does not alter his
opinion that Pouncy meets the statutory commitment criteria. And Pouncy does not explain
how the single reference to another potential reason for placing Pouncy in a treatment
facility undermines Dr. Dority’s analysis or supports his bald assertion that Dr. Dority’s
opinions are “inconsistent and equivocal.” See State v. Bursch, 905 N.W.2d 884, 889
(Minn. App. 2017) (“Arguments are forfeited if they are presented in a summary and
conclusory form, do not cite to applicable law, and fail to analyze the law claiming that
errors of law occurred.”); Joelson v. O’Keefe, 594 N.W.2d 905, 909 (Minn. App. 1999)
(declining to address appellant’s challenge to district court’s SPP findings in the absence
of supporting argument or authority), rev. denied (Minn. July 28, 1999).
Ultimately, the district court determined, “To the extent [Dr. Dority’s] scores varied
or might be revised, [Pouncy’s] risk level remains in the highest, or second highest, risk
levels.” We defer to the district court as the fact-finder to make these credibility
determinations. See In re Civ. Commitment of Ramey, 648 N.W.2d 260, 270 (Minn. App.
2002) (“The district court [has] the advantage of hearing the witnesses personally and
judging their relative credibility. A reviewing court generally defers to the district court in
matters of witness credibility.”), rev. denied (Minn. Sept. 17, 2002).
Pouncy next asserts that the district court’s analysis includes impermissible factor
repetition. This argument is unavailing. In its order, the district court explained that “the
12 Linehan factors are useful in considering the evidence of risk,” and gave particular weight
to:
(i) [Pouncy’s] increasing age, over time, at the time of the charged offenses demonstrating that [Pouncy] has not aged out of amassed sufficient life experiences so as [to] cease reoffending . . . ; (ii) [Pouncy’s] relative lack of education; (iii) [Pouncy’s] history of violence toward the victims including the use of violence to perpetrate the offenses and continued violence and threats thereafter; . . . (iv) and the recency and severity in which [Pouncy] used violence (including strangulation, spitting in one victim’s mouth, and threatening to kill the victim during the course of vaginal rape) . . . ; and (vi) [Pouncy’s] demonstrated lack of success in sex offender related programming . . . .
But the court stated that it did not “base its ruling solely on the Linehan factors.” And it
acknowledged “the potential, when considering the various types of evidence, for ‘factor
repetition.’” Indeed, the district court expressly stated that it “discounted its reliance on
Linehan factors potentially duplicative of that incorporated in the various actuarial tools,
including, for example [Pouncy’s] demographics (age), history of violence, and record with
respect to sex offender therapy program[s].”
The record does not persuade us to disturb the district court’s detailed and
comprehensive findings of fact. The commitment determination is a “difficult task” that
requires district court’s to carefully balance the relevant facts gleaned from a “voluminous
and complex” record. Linehan III, 557 N.W.2d at 191. We give great deference to the
district court’s weighing of evidence relevant to whether an individual is highly likely to
engage in harmful sexual conduct. Ince, 847 N.W.2d at 23. We see no clear error in the
13 district court’s finding that Pouncy is highly likely to engage in future harmful sexual
Under the SPP statute, the district court found Pouncy is dangerous to others “for
the same reasons” that he is highly likely to commit future sexual harm. Pouncy’s low IQ
that requires a guardianship, history of engaging in conduct that resulted in at least two
charges of sexual and domestic assault each year from 2014 to 2022, the increasingly
violent nature of his conduct, and his continued inability to stand trial due to incompetency
all support this finding.
Based on our careful review of the record, we conclude that the district court did
not err by finding that Pouncy poses a danger to others.
Affirmed.