                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0394

             In the Matter of the Civil Commitment of: Terry Lee Branson.

                                 Filed August 17, 2015
                                       Affirmed
                                     Reilly, Judge

                              Anoka County District Court
                                File No. 02-PR-08-613

Brian C. Southwell, Minneapolis, Minnesota (for appellant Terry Lee Branson)

Tony Palumbo, Anoka County Attorney, Brianne J. Buccicone, Francine Pawelk Mocchi,
Assistant County Attorneys, Anoka, Minnesota (for respondent Anoka County)

      Considered and decided by Worke, Presiding Judge; Reilly, Judge; and

Stoneburner, Judge.*

                        UNPUBLISHED OPINION

REILLY, Judge

      Appellant Terry Lee Branson challenges his commitment as a sexually dangerous

person (SDP) and as a sexual psychopathic personality (SPP) on the grounds that (1) the

district court erred in determining that his conduct was sexually motivated or had sexual

assault as a goal, and (2) the commitment petition violates double jeopardy. We affirm.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                                         FACTS

       Criminal History

       Appellant was born on January 8, 1955, and has a long history of sexual

misconduct, including 20 to 30 sexual assaults and 6 felony convictions for harmful

sexual conduct. The first conviction arose from an incident in August 1976, when

appellant drove to his aunt’s home, threatened her with a knife, and raped her repeatedly

over a period of hours, forcing oral and vaginal sex on her. Appellant raped his aunt in

the presence of her mother-in-law, whom he tied up with nylon stockings, in a seated

position, for the duration of the attack. In February 1977, appellant was convicted of rape

in Hendricks County, Indiana, and sentenced to seven and a half years’ imprisonment.

Appellant was released from prison in July 1980 and moved to Minnesota.

       The second offense occurred in March 1983.         Appellant was living with his

girlfriend and her roommate, V.S. Appellant tied up his girlfriend with her neck, hands,

and feet bound together. Appellant then entered V.S.’s bedroom and raped her vaginally.

After raping her, appellant grabbed V.S.’s arm and head, pulled her hair, and threw her

into his bedroom with his girlfriend. Appellant attempted to force his girlfriend to

perform oral sex on V.S., but she refused. Appellant then forcibly raped V.S. in front of

his girlfriend. The state charged appellant with third-degree criminal sexual conduct.

Appellant admitted that he entered V.S.’s bedroom while she was sleeping, intentionally

confined her without her consent, and prevented her from leaving. Appellant entered a

plea of guilty to the lesser charge of false imprisonment and was sentenced to a 13-month




                                            2
suspended sentence with 90 days in jail and three years on probation. In April 1984,

appellant’s probation was revoked and his 13-month sentence was executed.

      Approximately three months after his release on the false imprisonment charge

and while he was still on probation, appellant committed another violent sex offense. In

November 1983, appellant broke into a woman’s apartment, grabbed her and shoved her

into the wall, pulled her hair, and forced her into the kitchen.      The woman, T.E.,

recognized appellant as someone who had worked for her landlord. Appellant took a 14-

inch knife from the kitchen, held the knife against T.E.’s throat, and ordered her to

undress.   When she refused, appellant pressed the knife tighter to her throat and

threatened to kill her.   Appellant forced T.E. to give him oral sex and raped her.

Appellant then forced T.E. outside and raped her again. Appellant was charged with two

counts of first-degree criminal sexual conduct and pleaded guilty to one count of first-

degree criminal sexual conduct. He was sentenced to a double durational departure of

162 months in prison. We affirmed the sentence on appeal. Branson v. State, 368

N.W.2d 436 (Minn. App. 1985). Appellant was released from prison in November 1992

with an expiration of sentence date of May 1997.

      In December 1993, appellant spent the day drinking and going to different bars.

After closing time, appellant waited outside a bar holding a large knife that he had

brought with him. A female bartender, K.M., came out of the bar and began walking

toward her car. Appellant came up behind her, grabbed her by the hair, and pressed a

knife to her throat. Appellant stated he needed a hostage and threatened to cut her throat

if she did not get in the car. Another employee came out of the bar and pushed appellant


                                            3
hard enough to allow K.M. to run back inside and call the police. When the police

officers arrived, appellant attempted to stab the officer and then threatened to kill himself

and began stabbing himself in the chest and in the throat. The state charged appellant

with two counts of second-degree assault and attempted kidnapping. Appellant pleaded

guilty to the charges and was sentenced to ten years on the attempted kidnapping

conviction and seven years on each of the assault convictions, to be served consecutively.

We reversed the district court’s decision that the kidnapping and assault sentences on

K.M. could be served consecutively and reduced the sentence from 288 months to 204

months. State v. Branson, 529 N.W.2d 1 (Minn. App. 1995), review denied (Minn.

Apr. 18, 1995).

       Treatment History

       Appellant has a long history of treatment for sexual abuse crimes. Between July

1985 and March 1986, appellant had four sessions with a psychologist, to whom he

admitted that he was a recidivist sex offender.         The therapist doubted appellant’s

motivation and viewed him as a “very antisocial personality.” Appellant subsequently

rejected treatment in the sex-offender treatment program.

       Appellant later began the Assessment Phase in the Complex I treatment program

in May 1986. He admitted to a history of 20 to 30 sexual assaults, usually involving rape

or attempted rape of a relative or acquaintance, and confessed that he had no remorse for

his actions. In May 1987, he completed chemical dependency treatment and transferred

to the sex-offender treatment group. He voluntarily left the program in October 1987.

Appellant entered the Transitional Sex Offender Program in August 1991 and asked to be


                                             4
discharged from the program in July 1992, believing he had gone as far as necessary.

However, a therapist evaluating appellant reported that he was at an extremely high risk

to reoffend.

       Following the December 1993 offense, the district court ordered appellant to

participate in sex-offender treatment. Appellant refused to participate in his treatment

and, as a result of his refusal, the state extended his incarceration on four different

occasions. In March and April 1994, Peter Marston, Ph.D., conducted a psychological

evaluation to consider, among other things, whether the December 1993 offense was a

failed attempt to commit another sex offense. Appellant denied the offense was a failed

rape attempt and claimed he was seeking to hijack a car and that it was merely

coincidental that his victim was a female. The evaluator concluded that if appellant had

actually abducted K.M., he may “very well have impulsively decided to rape her.”

Likewise, a psychological evaluator in 2001 concluded that appellant had not

successfully integrated the prevention strategies he learned in treatment and suggested

that appellant would have sexually assaulted K.M. if he had managed to abduct her.

       Current Commitment

       In September 2008, the department of corrections referred appellant to the county

attorney for consideration of Sexually Dangerous Person/Sexual Psychopathic

Personality (SDP/SPP) civil commitment. A recommendation to the commissioner of

corrections from independent legal counsel reached the opinion that: (1) a course of

harmful sexual conduct was present, (2) appellant had a sexual, personality, or other

disorder or dysfunction, (3) appellant showed a lack of adequate control of sexual


                                           5
impulses, and (4) appellant was highly likely to engage in harmful sexual conduct. The

independent legal counsel concluded that there were sufficient grounds to consider filing

a petition seeking to commit appellant as an SDP. The petition, filed in October 2008,

sought to commit appellant as an SPP and an SDP.

       The district court appointed two independent examiners, Dr. James H. Gilbertson,

Ph.D., L.P. and Dr. Thomas Alberg, Ph.D., L.P. Appellant refused to meet with Dr.

Gilbertson, who subsequently based his opinions on an extensive review of appellant’s

records. Appellant did agree to speak with Dr. Alberg. Both examiners determined that

if appellant had successfully abducted K.M., it is highly likely he would have sexually

assaulted her. Dr. Gilbertson concluded that appellant suffered from paraphilia, non-

consent, a trait that overlaps with sexual sadism, based on appellant’s criminal sexual

behavior, his preoccupation with sexual assault fantasies, his admission that he sexually

assaulted 20 to 30 women, and his statements that sexual assault gives him a thrill that

cannot be duplicated in nonviolent sexual activity. Similarly, Dr. Alberg diagnosed

appellant with sexual sadism, in which an individual derives sexual excitement from the

psychological or physical suffering of the victim.       The evaluators concluded that

appellant “manifested a sexual, personality, or other mental disorder or dysfunction that

does not allow him to adequately control his sexual impulses.”

       The district court held a trial in January 2009 and issued a commitment order in

June 2009, concluding that appellant’s conduct in December 1993 “was motivated by his

sexual impulses and was part of a pattern of behavior that had criminal sexual conduct as

a goal,” and therefore met the statutory definition of harmful sexual conduct. The district


                                            6
court found by “clear and convincing evidence” that appellant engaged in a course of

harmful sexual conduct and was “highly likely” to reoffend. The district court concluded

that clear and convincing evidence demonstrates that appellant is both an SDP and an

SPP and committed appellant for treatment in the Minnesota Sex Offender Program

(MSOP).

      Appellant was transported to MSOP in October 2013, following completion of his

criminal sentence. MSOP filed a 60-day report with the district court in December 2013

and the district court set a review hearing date. Psychologist Dr. Gary Hertog testified

that appellant suffers from sexual sadism and continues to meet the statutory factors to

qualify as both an SPP and an SDP. The district court issued its order on January 6,

2015, “indeterminably commit[ing]” appellant for treatment in MSOP.           This appeal

followed.

                                    DECISION

                                            I.

      Appellant argues that the district court erred as a matter of law by determining that

his assault and attempted kidnapping convictions arising from the December 10, 1993

incident were sexually motivated or had sexual assault as a goal. A petition for civil

commitment as an SDP or an SPP must prove the elements of commitment by clear and

convincing evidence. Minn. Stat. § 253D.07, subd. 3 (2014). On appeal, we will not set

aside the district court’s factual findings unless they are clearly erroneous, and we view

the record “in a light most favorable to the district court’s findings.” In re Ramey, 648

N.W.2d 260, 269 (Minn. App. 2002). We also defer to the district court’s opportunity to


                                            7
judge the credibility of the witnesses. Id. However, we review de novo whether there is

clear and convincing evidence in the record to support the district court’s conclusion that

appellant meets the standards for commitment. In re Navratil, 799 N.W.2d 643, 647

(Minn. App. 2011).

       Appellant challenges the district court’s finding that his conduct in December

1993 was sexually motivated or had sexual assault as a goal, as defined by Minn. Stat.

§ 253B.02, subd. 7a (2008).1 ‘“Harmful sexual conduct’ means sexual conduct that

creates a substantial likelihood of serious physical or emotional harm to another.” Minn.

Stat. § 253D.02, subd. 8a (2014). There is a rebuttable presumption that certain

enumerated offenses, including criminal sexual conduct in the first, second, third, or

fourth degrees, “creates a substantial likelihood that a victim will suffer serious physical

or emotional harm.” Id., subd. 7a(b). This rebuttable presumption also applies to other

conduct, including kidnapping and second-degree assault, “[i]f the conduct was

motivated by the person’s sexual impulses or was part of a pattern of behavior that had

criminal sexual conduct as a goal.” Id.


1
  In 2013, Minnesota Statutes chapter 253B, the Minnesota Commitment and Treatment
Act, was amended and many of its provisions that applied to SDP and SPP cases were
recodified in the newly enacted chapter 253D, the Minnesota Commitment and Treatment
Act: Sexually Dangerous Person and Sexual Psychopathic Personalities. See 2013
Minn. Laws ch. 49, § 22, at 229 (recodifying Minn. Stat. § 253B.02, subd. 7a (2012) as
Minn. Stat. § 253D.02, subd. 8a (Supp. 2013)). Although appellant cites to the 2008
version of Minnesota’s civil commitment laws, because the recodification did not change
the substance of the applicable sections, we cite to the most recent version. See Braylock
v. Jesson, 819 N.W.2d 585, 588 (Minn. 2012).



                                             8
       Appellant’s December 1993 crime did not involve criminal sexual conduct and

can only be considered harmful sexual conduct if it was sexually motivated.             Dr.

Gilbertson and Dr. Alberg testified that if appellant had successfully abducted K.M., it is

highly likely he would have sexually assaulted her.        The district court found these

opinions credible. The district court also found that appellant’s assault and kidnapping

convictions were, in fact, “motivated by his sexual impulses and [were] part of a pattern

of behavior that had criminal sexual conduct as a goal,” thus raising the rebuttable

presumption that the victim suffered serious physical or emotional harm. The district

court went on to conclude that clear and convincing evidence demonstrated that appellant

was both an SDP and an SPP.

       Appellant denies that the December 1993 offense was sexually motivated and

claims that he was trying to find transportation home from the bar. However, the record

amply supports the district court’s finding that his crimes constitute harmful sexual

conduct.   The district court carefully identified appellant’s history of six felony

convictions arising out of conduct involving four separate incidents of harmful sexual

conduct, including the sexual assaults committed against his aunt, his girlfriend’s

roommate, and T.E.       These offenses involved both known and unknown victims,

generally occurred when appellant was intoxicated, and involved physical restraints and

threats with a knife. These incidents establish a habitual course of conduct and the 1993

offense followed the same pattern of behavior.

       Appellant also argues that the district court erred in crediting the testimony of the

examiners, Dr. Alberg and Dr. Gilbertson, who found that the December 1993 offense


                                             9
was sexually motivated or part of a pattern of behavior with sexual assault as a goal.

Both examiners concluded that appellant “manifested a sexual, personality, or other

mental disorder or dysfunction that does not allow him to adequately control his sexual

impulses.” Further, both examiners agreed that if appellant had successfully abducted

K.M., it is highly likely he would have sexually assaulted her.

       Appellant argues that caselaw prohibits the district court from speculating on a

chain of events. See, e.g., Matter of McGaughey, 536 N.W.2d 621, 624 (Minn. 1995); In

re Rodriguez, 506 N.W.2d 660, 663 (Minn. App. 1993). But the examiner’s conclusions

were not purely speculative. Appellant has a well-documented history of violent sexual

assaults and his conduct toward K.M. was consistent with his earlier attacks. Appellant

came up behind her, grabbed her by the hair, pressed a knife to her throat, attempted to

force her into the car, and threatened to cut her throat with the knife if she did not

comply.    Although appellant did not sexually harm K.M., a district court “[is] not

required to delay commitment until appellant or someone else was actually harmed, so

long as the danger of appellant’s condition had already become evident.” Matter of

Clements, 440 N.W.2d 133, 136 (Minn. App. 1989) (quotations omitted), review denied

(Minn. June 21, 1989). The district court found that appellant’s behavior toward K.M.

“was motivated by his sexual impulses and was part of a pattern of behavior that had

criminal sexual conduct as a goal,” and the examiners’ testimony supported the district

court’s determination that appellant is an SDP/SPP requiring commitment.        On this

record, we conclude that the district court did not clearly err.




                                              10
                                          II.

      Appellant argues that the district court erred as a matter of law in denying his

motion to dismiss the commitment petition because it violates his right to be free from

double jeopardy under Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997). 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 will be declared

unconstitutional only when absolutely necessary.” State v. Grillo, 661 N.W.2d 641, 644

(Minn. App. 2003) (quotations omitted), review denied (Minn. Aug. 5, 2003).

      Appellant’s challenge is meritless. The double jeopardy clause provides that a

person shall not be “twice put in jeopardy of life or limb” for the same offense.

Hendricks, 521 U.S. at 369, 117 S. Ct. at 2085. “Although generally understood to

preclude a second prosecution for the same offense, the Supreme Court has also

interpreted this prohibition to prevent the state from punishing twice, or attempting a

second time to punish criminally, for the same offense.” Id. (quotation omitted). The

Hendricks decision determined that civil commitment proceedings “do[] not constitute a

second prosecution.” Id., 117 S. Ct. at 2086. Two years prior to Hendricks, our supreme

court likewise determined that civil commitment proceedings do not constitute double

jeopardy because they are remedial rather than punitive in nature. Call v. Gomez, 535

N.W.2d 312, 319-20 (Minn. 1995).

      In In re Linehan, our supreme court reconsidered its stance in light of the

Hendricks decision. 594 N.W.2d 867, 871 (Minn. 1999). The Linehan court firmly

established that “[t]he Supreme Court’s reasoning supports our earlier ruling that the


                                          11
[civil commitment statute] does not contravene the Double Jeopardy and Ex Post Facto

Clauses.” Id. Our supreme court determined that our civil commitment proceedings

shared many elements in common with the statute at issue in Hendricks, including the

fact that both were “in the civil commitment chapters of their statutes; neither requires a

prior criminal conviction; neither includes a scienter requirement for commitment; and

under both acts a person committed is to be released once he or she is sufficiently

rehabilitated and can control his or her sexual impulses.” Id. Thus, the supreme court

concluded that there was no reason to modify its earlier position that civil commitment

proceedings do not expose a defendant to double jeopardy. Id. at 872.

       Appellant argues that, the Linehan decision notwithstanding, the civil commitment

statute is punitive “in reality.” Appellant has not cited to relevant authority in support of

this position. Linehan remains good law in Minnesota and this court is bound by that

decision. See JPMorgan Chase Bank N.A. v. Erlandson, 821 N.W.2d 600, 608 (Minn.

App. 2012) (noting that this court is bound by Minnesota Supreme Court precedent).

       Affirmed.




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