This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0951
In the Matter of the Civil Commitment of: Stephen Danforth, a/k/a Stephen Rabideau
Filed December 8, 2014 Affirmed Hooten, Judge
Hennepin County District Court File No. 27-MH-PR-13-1092
Roderick N. Hale, Minneapolis, Minnesota (for appellant)
Michael O. Freeman, Hennepin County Attorney, Theresa Couri, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Hooten, Presiding Judge; Connolly, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In this appeal from an order of civil commitment, appellant argues that the
commitment statute constitutes an unconstitutional bill of attainder and is
unconstitutional on other grounds under the United States Constitution and the Minnesota
Constitution. He further contends that the district court erred in admitting evidence of the
results of his risk assessment testing, a prior conviction, and his correspondence and possession of certain print materials while in prison. Because we conclude that
appellant’s arguments lack merit under federal and Minnesota precedent, we affirm.
FACTS
In October 2013, a petition was filed to commit appellant Stephen Danforth as a
person with a sexual psychopathic personality and a sexually dangerous person, as
defined in Minn. Stat. § 253D.02, subds. 15, 16 (Supp. 2013). At the time, Danforth was
serving a prison sentence stemming from a 1996 conviction of first-degree criminal
sexual conduct and was due for supervised release in April 2014.
Before the commitment hearing, Danforth moved for the exclusion of evidence
regarding his clinical and actuarial risk assessment, his 1996 conviction, and his
correspondence and possession of certain print materials while he was in prison.
Danforth also moved to dismiss the petition on various constitutional grounds, alleging,
inter alia, that the commitment statute violated his substantive and procedural due process
rights and constituted an illegal bill of attainder. Prior to the commitment hearing, the
district court denied Danforth’s motion to exclude evidence, but deferred ruling on his
motion for dismissal of the petition on constitutional grounds.
The commitment hearing was held on February 24–25, 2014, with court-appointed
psychologist, Dr. Paul Reitman, as the sole witness. Dr. Reitman testified that Danforth
has numerous convictions for the sexual abuse of young children stretching back to the
1970s and was currently serving a prison sentence for first-degree criminal sexual
conduct involving a six-year-old victim. He further testified that, while in prison,
Danforth had made attempts to procure books with nudity, had been in contact with a
2 media company that condoned pedophilia, and was found to be in possession of
photographs of young boys. Based upon his psychological testing of Danforth, he
concluded that Danforth has a high risk of recidivism, especially in light of his repeated
refusals to participate in sex offender treatment during his incarceration. On cross-
examination, Danforth’s counsel challenged Dr. Reitman’s opinions regarding Danforth’s
risk of recidivism as determined by his risk assessment testing, asserting that Danforth’s
advanced age of 59 years and stale conviction history from more than a decade earlier did
not support Dr. Reitman’s assessment. Dr. Reitman countered that Danforth’s continued
preoccupation with the nudity of young boys, as demonstrated by his correspondence
seeking books and periodicals with nude boys while in prison, indicated that he was still
at a high risk of recidivism, notwithstanding his age and the fact that his convictions were
committed more than a decade earlier.
After the commitment hearing, the district court denied Danforth’s motion to
dismiss the commitment petition on constitutional grounds. Based on Dr. Reitman’s
testimony and the exhibits in evidence, the district court found by clear and convincing
evidence that Danforth satisfied the requirements for commitment as a person with a
sexual psychopathic personality under Minn. Stat. § 253D.02, subd. 15, and as a sexually
dangerous person under Minn. Stat. § 253D.02, subd. 16. Danforth appeals from the
commitment order.
DECISION
To commit someone as a person with a sexual psychopathic personality, the
district court must find: (1) a habitual course of misconduct involving sexual matters; (2)
3 an utter lack of power to control sexual impulses; and (3) dangerousness to others. Minn.
Stat. § 253D.02, subd. 15; In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).
An individual may be committed as a sexually dangerous person if 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. After a petition for
commitment is filed, the district court holds a hearing at which a court-appointed
examiner testifies, other witnesses can be called and cross-examined, and the district
court receives any relevant documentary evidence. Minn. Stat. §§ 253D.07, subd. 2
(Supp. 2013), 253B.08 (2012 & Supp. 2013). The district court will commit a person to
the secure confinement of the Minnesota Sex Offender Program (MSOP) if it finds clear
and convincing evidence that the person has a sexual psychopathic personality or is a
sexually dangerous person, unless that person establishes his or her suitability for a less-
restrictive treatment program. Minn. Stat. § 253D.07, subd. 3 (Supp. 2013); see also In
re Civil Commitment of Ince, 847 N.W.2d 13, 25–26 (Minn. 2014).
I.
Danforth brings a number of constitutional challenges to the commitment statute.
We review the constitutionality of a statute de novo. Rew v. Bergstrom, 845 N.W.2d 764,
776 (Minn. 2014). “Minnesota statutes are presumed constitutional and . . . our power to
declare a statute unconstitutional must be exercised with extreme caution and only when
absolutely necessary.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.
1999). We will uphold a statute unless the challenger can demonstrate beyond a
4 reasonable doubt that the statue is unconstitutional. SooHoo v. Johnson, 731 N.W.2d
815, 821 (Minn. 2007).
A.
Danforth claims that the commitment statute is a bill of attainder in violation of
state and federal constitutional law because it inflicts punishment upon a group of
individuals identified by virtue of their past conduct.
A bill of attainder is “a law that legislatively determines guilt and inflicts
punishment upon an identifiable individual without provision of the protections of a
judicial trial.” Council of Indep. Tobacco Mfrs. of Am. v. State, 685 N.W.2d 467, 474
(Minn. App. 2004), aff’d, 713 N.W.2d 200 (Minn. 2006). Bills of attainder are
unconstitutional under the United States and Minnesota constitutions. U.S. Const. art. I,
§ 10; Minn. Const. art. I, § 11. Before a statute may be declared unconstitutional as a bill
of attainder, it must be shown that (1) the statute singles out or specifies an identifiable
individual or group; (2) the purpose of the statute is punishment; and (3) there is no
judicial trial necessary for the application of the statute. Council of Indep. Tobacco
Mfrs., 685 N.W.2d at 474 (citing Selective Serv. Sys. v. Minn. Pub. Interest Research
Grp., 468 U.S. 841, 847, 104 S. Ct. 3348, 3352 (1984)).
First, Danforth has failed to show that the civil commitment statute singles out or
specifies an identifiable individual or group of people. In order to constitute a bill of
attainder, the law must designate individuals “by name or described in terms of conduct
which, because it is past conduct, operates only as a designation of particular persons.”
Selective Serv. Sys., 468 U.S. at 847, 104 S. Ct. at 3352 (quotation omitted). In other
5 words, “[a] legislative prohibition is not a bill of attainder if it can be avoided by simply
not engaging in the affected conduct.” Council of Indep. Tobacco Mfrs., 685 N.W.2d at
475.
Danforth argues that the commitment statute improperly designates him for
commitment based upon his past convictions of criminal sexual conduct and that he is
therefore unable to avoid application of the statute. But while the definitions of “sexual
psychopathic personality” and “sexually dangerous person” in the statute are based in
part upon a person’s past misconduct, more than just past conduct is required before a
person can be found to satisfy these definitions. The statute also requires the
commitment court to find future dangerousness, coupled with additional factors, and is
intended to “‘limit involuntary civil confinement to those who suffer from a volitional
impairment rendering them dangerous beyond their control.’” Ince, 847 N.W.2d at 23
(quoting In re Linehan (Linehan IV), 594 N.W.2d 867, 873 (Minn. 1999)). A district
court is required to evaluate an offender’s present circumstances and condition in
assessing future dangerousness. See Linehan IV, 594 N.W.2d at 876 n.4 (providing that
civil commitment requires proof that a person “suffers from a current disorder or
dysfunction”). Because the statute requires proof of a current condition and an
assessment of future dangerousness, not all sexual offenders or persons with a history of
sexual misconduct may be civilly committed under the statute.
Second, Danforth has failed to show that civil commitment as a person with a
sexual psychopathic personality or as a sexually dangerous person constitutes
“punishment.” The Supreme Court has defined “forbidden punishment” in terms of three
6 questions: “(1) whether the challenged statute falls within the historical meaning of
legislative punishment; (2) whether the statute, viewed in terms of the type and severity
of burdens imposed, reasonably can be said to further nonpunitive legislative purposes;
and (3) whether the legislative record evinces a [legislative] intent to punish.” Selective
Serv. Sys., 468 U.S. at 853, 104 S. Ct. at 3355 (quotation omitted); see also Council of
Indep. Tobacco Mfrs., 685 N.W.2d at 474–75. Danforth argues that the commitment
statute is punishment under all three tests: it constitutes historical punishment, it does not
act to further nonpunitive purposes, and the legislative intent behind its passage was for
“unlimited, indefinite, and probably lifetime-duration preventive detention” for sex
offenders.
Minnesota courts have consistently held that civil commitment of sex offenders
has dual nonpunitive purposes: “(1) protection of the public, and (2) rehabilitation of the
patient.” In re Civil Commitment of Lonergan, 811 N.W.2d 635, 642 (Minn. 2012).
“These state interests are ‘compelling’ . . . [and] are directly served through the civil
commitment statute because . . . the determination as a ‘sexually dangerous person’
specifically requires findings that the person is likely to reoffend and harm the public.”
Id. (quotations omitted). Numerous Minnesota decisions have established that the
commitment program is remedial, not punitive, in the context of other constitutional
doctrines. See, e.g., Linehan IV, 594 N.W.2d at 872–76 (concluding that commitment
under the statute requires a finding of volitional impairment and is therefore sufficiently
narrowly tailored to satisfy substantive due process standards); In re Linehan (Linehan
III), 557 N.W.2d 171, 187–88 (Minn. 1996) (finding a prior version of the commitment
7 statute remedial in the context of an ex post facto law challenge); Call v. Gomez, 535
N.W.2d 312, 319–20 (Minn. 1995) (holding that a prior version of the statute was not
punitive as was required to sustain a double jeopardy challenge). Danforth’s arguments
are unpersuasive as to how we should distinguish this case law or how “punishment” is
defined more broadly in the context of attainder.
Finally, Danforth has failed to show that the commitment statute lacks a judicial
trial. Federal and state case law make clear that the lack of a judicial trial is an element
of a bill of attainder. See Selective Serv. Sys., 468 U.S. at 846–47, 104 S. Ct. at 3352;
Council of Indep. Tobacco Mfrs., 685 N.W. at 474. The bill-of-attainder doctrine is
“grounded in the separation of powers doctrine,” and the usurpation by the legislature of
the judicial role in making determinations of guilt and punishment is the primary concern
of the proscription against bills of attainder. Council of Indep. Tobacco Mfrs., 685
N.W.2d at 474.
Danforth asserts that the absence of judicial trial is a “pseudo-element” of the
attainder doctrine, and that the judicial procedure underlying civil commitment is
inadequate to save the commitment statute from designation as a bill of attainder.
Danforth cites United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707 (1965), for the
proposition that a jury trial does not inoculate a law from being struck down as a bill of
attainder. But unlike the law at issue in Brown, where the jury merely needed to
determine that the defendant was a member of the Communist Party to find criminal
guilt, id. at 440, 85 S. Ct. at 1710, the judicial process under the commitment statute
requires reasoned findings by the district court after a trial.
8 Under the commitment statute, there are significant judicial procedures and
protections in place that delineate how an individual is civilly committed. E.g., Minn.
Stat. §§ 253B.07 (2012 & Supp. 2013) (providing for prepetition screening, petition
requirements, right to counsel, right to second examiner of patient’s choosing, and a
preliminary hearing), .08 (setting out hearing procedure, including right to attend or be
absent, and right to call and cross-examine witnesses). The judiciary, not the legislature,
is ultimately responsible for determining whether to commit an offender. Minn. Stat.
§ 253D.07, subd. 3. In light of the judicial process required by the commitment statute,
Danforth has failed to show any usurpation of the judicial role by the legislature.
Because Danforth is not able to show beyond a reasonable doubt that the
commitment statute meets any of the three required elements, the statute is not
unconstitutional as a bill of attainder under the United States or Minnesota Constitutions.
B.
Danforth argues that his civil commitment is an unconstitutional deprivation of his
substantive due process rights under the Fourteenth Amendment. “[F]reedom from
physical restraint ‘has always been at the core of the liberty protected by the Due Process
Clause from arbitrary governmental action.’” Kansas v. Hendricks, 521 U.S. 346, 356,
117 S. Ct. 2072, 2079 (1997) (quoting Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct.
1780, 1785 (1992)). “Due process requires that the nature of commitment bear some
reasonable relation to the purpose for which the individual is committed.” Foucha, 504
U.S. at 79, 112 S. Ct. at 1785. “Whether a confinement scheme is punitive has been the
threshold question for some constitutional challenges,” including due process challenges.
9 Seling v. Young, 531 U.S. 250, 266, 121 S. Ct. 727, 737 (2001) (citing, inter alia, United
States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095 (1987), which upheld the use of pretrial
detention against a due process challenge). In order to satisfy substantive due process, a
civil-commitment statute must “couple[] proof of dangerousness with the proof of some
additional factor,” in order to “limit involuntary civil confinement to those who suffer
from a volitional impairment rendering them dangerous beyond their control.”
Hendricks, 521 U.S. at 358, 117 S. Ct. at 2080.
Danforth first argues that the Minnesota commitment statute violates substantive
due process “as applied” because it is punitive in nature and “supersedes the primacy of
criminal law in Minnesota.” But Danforth, who has not or has only recently entered
treatment under the MSOP, is appealing from his initial civil-commitment order. Beyond
conclusory statements that commitment is “preventive detention” and “incapacitation,”
he fails to present any specific facts of his pending commitment or treatment or any other
aspects of the law that support his “as-applied” challenge. Moreover, to the extent that
Danforth is challenging his future treatment in the MSOP without actually having
received treatment yet, his claim is not ripe. See In re Civil Commitment of Travis, 767
N.W.2d 52, 58 (Minn. App. 2009).
As previously noted, case law has established that the purposes of the commitment
statute are treatment and protection of the public, not punishment. E.g., Lonergan, 811
N.W.2d at 642; Linehan III, 557 N.W.2d at 187–88; Call, 535 N.W.2d at 319–20; see
also Hendricks, 521 U.S. at 361–63, 117 S. Ct. at 2081–83. Moreover, our supreme court
has upheld the commitment statute against a substantive due process challenge by
10 holding that the statute is sufficiently narrowly tailored to satisfy substantive due process.
Linehan IV, 594 N.W.2d at 872–76; see also In re Blodgett, 510 N.W.2d 910, 916 (Minn.
1994). By failing to distinguish his constitutional claims from the holdings in those
decisions, Danforth’s argument is unpersuasive.
Danforth also contends that the district court’s reliance on risk assessment
evidence violates substantive due process, claiming that such clinical and actuarial testing
does not reliably predict future behavior. However, the use of such evidence at civil
commitment proceedings has been deemed “relevant” when determining whether
commitment is needed. Ince, 847 N.W.2d at 24. District courts are required to evaluate
several factors in assessing future dangerousness, including the person’s history with sex
therapy programs as well as demographic statistics and “base rate statistics for violent
behavior among individuals of the person’s background.” Linehan I, 518 N.W.2d at 614.
“[T]he need for a multi-factor analysis lies in the very purpose for civil commitment,”
and clinical and actuarial risk assessments are a necessary part of a district court’s
“thorough consideration of all relevant evidence” in determining whether to commit a
person. Ince, 847 N.W.2d at 23–24. The supreme court has instructed district courts to
carefully weigh such evidence, in combination with the Linehan factors, in order to draw
appropriate conclusions under the commitment statute. Id. at 24. While he challenges
risk assessment evidence’s predictive power, Danforth has not shown how a district
court’s consideration of this evidence violates substantive due process rights. To the
extent that this court and district courts alike are bound by supreme court precedent, it
appears that Danforth’s arguments to the contrary must fail.
11 C.
Danforth claims that United States Supreme Court precedent requires the “full
panoply” of procedural due process rights to be provided at civil commitment
proceedings, and alternatively argues that traditional criminal due process protections are
needed because the commitment process is punitive in nature. Danforth largely relies on
Specht v. Patterson, in which the Court held that due process required that Colorado’s
commitment procedure provide various rights to those who would be committed,
including the right to counsel, the right to present witnesses, the right to testify on their
own behalf, the right to cross-examination, and the right to offer evidence. 386 U.S. 605,
610, 87 S. Ct. 1209, 1212 (1967). However, as was explicitly found by the Court in that
case, the previous version of the commitment statute in Minnesota satisfactorily provided
those rights. Id. at 610–11, 87 S. Ct. at 1212–13 (concluding that “[this] case is therefore
quite unlike the Minnesota statute” which provided “procedural safeguards” that were
absent from the Colorado civil commitment statute). The current statute continues to
provide those rights. See Minn. Stat. §§ 253B.07, .08 (stating the various rights available
during the commitment process).
Each protection that Danforth claims is required by Specht has later been held to
not be required at civil commitment proceedings: the Confrontation Clause does not
apply, In re Irwin, 529 N.W.2d 366, 373 (Minn. App. 1995), proof beyond a reasonable
doubt is not required, Addington v. Texas, 441 U.S. 418, 430–31, 99 S. Ct. 1804, 1811–
12 (1979), and there is no privilege against self-incrimination, Allen v. Illinois, 478 U.S.
364, 374, 106 S. Ct. 2988, 2994–95 (1986). Further, Minnesota case law has firmly
12 established that commitment laws are civil in nature, and courts have refused to apply
criminal procedural standards to civil commitments. See, e.g., In re Commitment of
Rannow, 749 N.W.2d 393, 396–97 (Minn. App. 2008) (applying civil, and not criminal,
procedural requirements to stipulation); Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn.
App. 1999) (providing that the Minnesota Supreme Court has rejected claims that jury
trials are required for commitment proceedings), review denied (Minn. July 28, 1999). In
light of this precedent, Danforth’s procedural due process arguments are unavailing.
D.
Danforth argues that the district court’s reliance on his 1996 conviction of first-
degree criminal sexual conduct is a violation of his right of confrontation under Crawford
v. Washington, which provided that defendants must be allowed to cross-examine
testimonial witnesses pursuant to the Sixth Amendment’s Confrontation Clause. 541
U.S. 36, 68–69, 124 S. Ct. 1354, 1374 (2004). At Danforth’s 1996 trial, a videotaped
interview with the victim was admitted as evidence because the victim was found
incompetent to testify. Danforth v. State, 761 N.W.2d 493, 495 (Minn. 2009). Danforth
first challenged the conviction on Crawford grounds in a postconviction petition, and our
supreme court denied him relief. Danforth v. State, 718 N.W.2d 451, 454–55 (Minn.
2006). After review and remand by the United States Supreme Court, the Minnesota
Supreme Court ultimately held that Crawford did not apply retroactively to past
convictions and affirmed the denial of Danforth’s postconviction petition. Danforth, 761
N.W.2d at 499–500; see Danforth v. Minnesota, 552 U.S. 264, 288–91, 128 S. Ct. 1029,
13 1045–47 (2008); see also Danforth v. Crist, 624 F.3d 915 (8th Cir. 2010) (denying
Danforth’s petition for federal habeas relief).
Danforth is now challenging the use of his conviction as evidence in this case. But
he provides no support for his argument beyond a brief assertion that “the current use of
the conviction in this case is a present violation of Crawford.” This court will not
consider “[a]n assignment of error based on mere assertion and not supported by any
argument or authorities,” unless “prejudicial error is obvious on mere inspection.” State
v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted).
No such error is obvious upon inspection. Aside from his argument’s lack of support,
this court follows “the underlying principle that an adjudication on the merits of an issue
is conclusive, and should not be relitigated.” Loo v. Loo, 520 N.W.2d 740, 744 (Minn.
1994). Insofar as Danforth is attempting to challenge his 1996 conviction once more, the
Minnesota Supreme Court’s denial of Danforth’s Crawford claim is final.
II.
Danforth next challenges the district court’s decision to admit certain evidence at
his hearing. He first argues that the district court erred in considering Dr. Reitman’s
testimony regarding documents he had sent and received while incarcerated, alleging that
this evidence was irrelevant and that its use at the hearing violated his First Amendment
and Minnesota constitutional rights. Generally, “[t]he admission of evidence rests within
the broad discretion of the [district] court and its ruling will not be disturbed unless it is
based on an erroneous view of the law or constitutes an abuse of discretion.” Kroning v.
State Farm Auto. Ins. Co., 567 N.W.2d 42, 45−46 (Minn. 1997) (quotation omitted).
14 Under the special rules applicable to civil commitment proceedings, district courts “may
admit all relevant, reliable evidence . . . without requiring foundation witnesses.” Minn.
Spec. R. Commit. & Treat. Act 15. The commitment statute provides that the district
court “shall admit all relevant evidence at the hearing” and “make its determination upon
the entire record pursuant to the Rules of Evidence.” Minn. Stat. § 253B.08, subd. 7; see
also Minn. Spec. R. Commit. & Treat. Act 23(e). “Relevant evidence” is “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Minn. R. Evid. 401.
Danforth claims that these documents and photographs had no probative value “on
the probability of any molestation” and were irrelevant, and therefore should not have
been admitted. Dr. Reitman testified at the hearing that Danforth had requested several
books about nudity, urology, pediatrics, circumcision, and catheterization from a book
seller, and that Danforth had several photographs of shirtless young boys in his prison
cell. Danforth had also been in correspondence with an agency that, in Dr. Reitman’s
opinion, condoned pedophilia. Dr. Reitman concluded that these materials, in
combination with other factors, led him to believe that Danforth was “actively seeking
pornography,” is aroused by children, and continues to believe that his actions are normal
and healthy. The district court relied on these documents in making its commitment
findings. The district court was tasked with determining whether Danforth has an
inability to adequately control his sexual impulses, Minn. Stat. § 253D.02, subd. 15, and
this evidence had a tendency to make that fact more probable, according to the testimony
15 of Dr. Reitman. While Danforth may disagree with Dr. Reitman’s conclusions, he fails to
rebut the presumption of admissibility and show that the district court abused its
discretion in considering the evidence.
Danforth also asserts that the use of this evidence at the hearing violated his
federal and state free-speech rights. Danforth cites cases that provide the contours of
prison officials’ ability to censor prisoner mail. See, e.g., Thornburgh v. Abbott, 490 U.S.
401, 109 S. Ct. 1874 (1989); Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800 (1974).
The issue at hand, however, is not whether Danforth can have these materials at the
prison, but whether they are admissible at the commitment hearing. In the criminal
context, “[t]he First Amendment does not prohibit the evidentiary use of speech to
establish the elements of a crime or to prove motive.” In re Welfare of S.M.J., 556
N.W.2d 4, 6 (Minn. App. 1996). Here, the district court relied on this evidence in
determining whether Danforth met the required elements for civil commitment as a
person with a sexual psychopathic personality and as a sexually dangerous person.
Danforth has provided no legal authority stating that a district court violates the First
Amendment in doing so, as the “chilling effect” cases he cites are inapposite here. Cf.
Thomas v. Collins, 323 U.S. 516, 539–540, 65 S. Ct. 315, 327 (1945) (analyzing
requirement that speaker register before making lawful speech). Absent a showing that
the evidence was irrelevant or unreliable, S.M.J., 556 N.W.2d at 6, Danforth’s free-
speech challenge is meritless.
16 III.
Danforth challenges the district court’s decision to deny his motion to exclude
actuarial and clinical risk assessment evidence, arguing that this evidence lacked
adequate reliability. The admissibility of scientific evidence is governed by the two-
pronged Frye-Mack standard. State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002).
This court uses separate standards of review for each prong of the Frye-Mack test. Goeb
v. Tharaldson, 615 N.W.2d 800, 815 (Minn. 2000). The first prong of Frye-Mack is
whether the offered evidence is “generally accepted in the relevant scientific
community,” a question of law we review de novo. Id. at 814–15. The second prong is
whether the evidence has “foundational reliability”—that is, whether the offering party
has “establish[ed] that the test itself is reliable and that its administration in the particular
instance conformed to the procedure necessary to ensure reliability.” Id. at 814
(quotation omitted). We review foundational reliability under an abuse of discretion
standard. Id. at 815.
As a matter of law, the clinical and actuarial risk assessments that Danforth
challenges are generally accepted by the Minnesota psychology community. The district
court is required to utilize risk assessment evidence under the Linehan factors used to
evaluate dangerousness, in order to determine “whether a person is highly likely to
engage in future harmful sexual conduct.” Ince, 847 N.W.2d at 24; see also Linehan I,
518 N.W.2d at 614. Dr. Reitman testified that each test he relied upon in making his
prognosis is generally accepted and used among psychologists in Minnesota. The only
17 test directly challenged at the hearing as lacking general acceptance, the SVR-FV, was
eliminated by Dr. Reitman from his analysis and was not relied upon by the district court.
Danforth has failed to show that the district court abused its discretion in admitting
the results of the risk assessments. Dr. Reitman testified that each of the tests he relied
upon has a high level of validity in predicting recidivism. He explained how the tests
were applied to Danforth and his interpretation of their results. Danforth’s counsel
pointed out several potential flaws in Dr. Reitman’s analysis on cross-examination,
including the doctor’s refusal to lower Danforth’s recidivism risk due to his age and his
implementation of Danforth’s criminal history in the tests. Dr. Reitman defended his
analysis against these claims, and the district court was free to exercise its discretion in
weighing the reliability and relevance of the risk assessment evidence. Therefore, the
district court’s decision to credit Dr. Reitman’s testimony and find that the risk
assessment test results had foundational reliability was not an abuse of discretion.
Affirmed.