                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-1178

                       In the Matter of the Civil Commitment of:
                         Jesse L. Lee f/k/a Dennis L. Wiesinger

                                Filed January 17, 2017
                                       Affirmed
                                   Halbrooks, Judge


                             Ramsey County District Court
                              File No. 62-P2-93-000304

Lori Swanson, Attorney General, Aaron Winter, Assistant Attorney General, St. Paul,
Minnesota (for appellant Commissioner of Minnesota Department of Human Services)

Mary M. Huot, St. Paul, Minnesota (for respondent Jesse L. Lee)

      Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and

Kirk, Judge.

                        UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant Commissioner of the Minnesota Department of Human Services

challenges the judicial appeal panel’s order granting respondent Jesse L. Lee’s petition

for provisional discharge from the Minnesota Sex Offender Program (MSOP), arguing

that the judicial appeal panel clearly erred by relying on expert witnesses who relied on

inaccurate or untimely facts. We affirm.
                                       FACTS

      In 1976, Lee was civilly committed as a psychopathic personality following

convictions of aggravated kidnapping and sodomy. He was transferred to the MSOP

Supervised Integration Unit in 2007. Lee petitioned to transfer to the MSOP Community

Preparation Services Unit (CPS) in 2010, and he was transferred to the CPS in 2011. By

May 2013, he achieved phase 3 of treatment and stage 3 of programming, the final

respective stages in CPS.

      Lee has participated in off-campus community outings since 2008. He volunteers

in the community weekly and is a mentor in a mentoring program. Lee is currently

taking classes to earn his GED. Neuropsychological assessments identify Lee’s level of

intellectual functioning in the borderline range. While he has participated in several

polygraph examinations, Lee “may not be an appropriate candidate for future polygraph

examinations due to the results of the neuropsychological assessment.” Lee has had an

issue with chemical dependency in the past, which he acknowledges is a factor in his

offending, and he completed chemical-dependency treatment while civilly committed and

attends AA meetings.

      In October 2013, Lee petitioned the special review board (SRB), requesting that he

be provisionally discharged from civil commitment. An individual treatment plan was

developed in November 2013 to address and mitigate some of Lee’s dynamic risk factors.

The SRB held a hearing in May 2014 and recommended granting Lee’s petition. The




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commissioner petitioned for rehearing and reconsideration.1 The judicial appeal panel

held the first-phase hearing in July 2015 and heard testimony from Haley Fox, Ph.D.

Dr. Fox is a former clinical director of MSOP-St. Peter. The commissioner moved to

dismiss Lee’s petition for provisional discharge at the conclusion of the first-phase

hearing. The judicial appeal panel denied the motion and scheduled a second-phase

hearing.

      At the second-phase hearing, the judicial appeal panel heard testimony from Chris

Schiffer, the clinical director of MSOP-St. Peter; Lauren Herbert, Psy.D.; and Mary

Kenning, Ph.D. Schiffer testified about Lee’s treatment need and addressed Lee’s recent

absences from treatment and his compliance with his treatment action plan. Schiffer also

stated that Lee has been routinely directed by females in positions of authority without

issue. Schiffer supports Lee’s provisional discharge and opined that his continuing

treatment needs could be satisfied in the community.

      Dr. Herbert is the forensic-evaluation department director at MSOP. Her opinion

is based on discussions with Lee’s treatment team, actuarial risk-assessment tools, and

1
  When the commissioner files a petition for a rehearing and reconsideration of the SRB’s
recommendation, the committed person seeking provisional discharge “bears the burden
of going forward with the evidence, which means presenting a prima facie case with
competent evidence to show that the person is entitled to the requested relief.” Minn.
Stat. § 253B.19, subd. 2(c) (2016). The proceeding in which a committed person
produces evidence is commonly referred to as a “first-phase hearing.” Coker v. Jesson,
831 N.W.2d 483, 486 (Minn. 2013). If the committed person satisfies his burden, the
opposing party bears the burden of proving by clear and convincing evidence that the
committed person should not be provisionally discharged. Minn. Stat. § 253B.19,
subd. 2(c). The proceeding in which the opposing party attempts to prove that the
discharge petition should be denied is commonly referred to as a “second-phase hearing.”
Coker, 831 N.W.2d at 486. The judicial appeal panel then rules on the petition. Minn.
Stat. § 253B.19, subd. 3 (2016).

                                           3
observations from several interviews. Dr. Herbert initially opined that Lee does not meet

the statutory criteria for provisional discharge. But she later recommended that Lee be

provisionally discharged based on his “progress toward managing his remaining dynamic

risk factors.”

       Dr. Kenning is the court-appointed examiner assigned to this case. She opined

that Lee needs further treatment and supervision in his current setting. Her opinion is

based on a thorough review of the various treatment records and reports, as well as an

interview with Lee. While Dr. Kenning agrees with Dr. Herbert’s risk assessment, she

disagrees with her conclusion.     Dr. Kenning testified that Lee “was on a mildly

deteriorating course” in his treatment.     She also testified that there are no well-

documented treatment-intervention programs for individuals with Lee’s level of

psychopathy and sexual deviance. Dr. Kenning concluded, and the judicial appeal panel

agreed, that Lee’s level of sexual sadism is severe. And because two members of Lee’s

family had died recently, Dr. Kenning also expressed concern that Lee may have

difficulty managing any additional stress in his life. The judicial appeal panel assigned

less weight to Dr. Kenning’s opinion.

       The judicial appeal panel found that Lee requires a low-to-moderate level of

supervision. It also determined that the protective factors identified by Dr. Herbert

“further mitigate [Lee’s] risk for re-offense.”    The judicial appeal panel ultimately

concluded that Lee’s “course of treatment and present mental status indicate that there is

no longer a need for treatment and supervision in his current treatment setting” and

“conditions of [Lee’s] plan will provide a reasonable degree of protection to the public


                                            4
and will enable him to adjust successfully to the community.” It concluded that the

commissioner “failed to establish by clear and convincing evidence that the provisional

discharge should be denied” and granted Lee’s petition for provisional discharge. This

appeal follows.

                                    DECISION

      The commissioner argues that the judicial appeal panel clearly erred by

provisionally discharging Lee because it credited opinions from experts who had

inaccurate or untimely facts. We review judicial appeal panel decisions “for clear error,

examin[ing] the record to determine whether the evidence as a whole sustains the appeal

panels’ findings and not weigh[ing] the evidence as if trying the matter de novo.” Larson

v. Jesson, 847 N.W.2d 531, 534 (Minn. App. 2014) (quotations omitted). We review the

record “in a light most favorable to the [judicial appeal panel’s] findings.” In re Civil

Commitment of Ramey, 648 N.W.2d 260, 269 (Minn. App. 2002), review denied (Minn.

Sept. 17, 2002). “Where the findings of fact rest almost entirely on expert testimony, the

[judicial appeal panel’s] evaluation of credibility is of particular significance.” In re

Knops, 536 N.W.2d 616, 620 (Minn. 1995). A judicial appeal panel clearly errs if it

ignores the “vast weight of the evidence.” Piotter v. Steffen, 490 N.W.2d 915, 920

(Minn. App. 1992), review denied (Minn. Nov. 17, 1992). And an expert witness’s

opinion “must be based on facts sufficient to form an adequate foundation.” Albert Lea

Ice & Fuel Co. v. U.S. Fire Ins., 239 Minn. 198, 203, 58 N.W.2d 614, 618 (1953).

      A judicial appeal panel may provisionally discharge a committed person if it

concludes that “the committed person is capable of making an acceptable adjustment to


                                            5
open society.” Larson, 847 N.W.2d at 534-35 (citing Minn. Stat. § 253D.30, subd. 1(a)

(Supp. 2013)). The judicial appeal panel must consider two factors to determine whether

provisional discharge is appropriate:

                     (1) whether the committed person’s course of
              treatment and present mental status indicate there is no longer
              a need for treatment and supervision in the committed
              person’s current treatment setting; and
                     (2) whether the conditions of the provisional discharge
              plan will provide a reasonable degree of protection to the
              public and will enable the committed person to adjust
              successfully to the community.

Minn. § 253D.30, subd. 1(b) (2014); see also Larson, 847 N.W.2d at 535.

       Here, the commissioner asserts that the vast majority of evidence in the record

demonstrates Lee’s recent pattern of deterioration in his current treatment setting because

(1) his Likert scale scores have been decreasing, (2) he has failed to attend and participate

in treatment, (3) he has failed to complete assigned action plans, and (4) he remains a risk

to the public. We turn to the expert testimonies to determine whether the evidence in the

record supports the commissioner’s assertion.

Dr. Fox’s testimony

       The commissioner argues that Dr. Fox did not offer a current, credible opinion on

Lee’s treatment status because she relied on insufficient facts from a nearly two-year-old

treatment report.     Based in part on Dr. Fox’s testimony, the judicial appeal panel

determined that Lee’s treatment needs would be best addressed in the community. The

judicial appeal panel also summarized Dr. Fox’s testimony that Lee is rule compliant,

follows therapeutic recommendations, and cooperates with his treatment team.



                                             6
       Dr. Fox testified that her recommendation for provisional discharge is based on

discussions with the treatment team and the March 2014 SRB treatment report. But she

also testified that she prepared for the first-phase hearing by reviewing the 2015 annual

treatment report and speaking with Lee’s primary therapist about the areas in his current

treatment plan on which he was currently working. Dr. Fox noted that there had been

recent improvement in the therapeutic alliance and Lee’s ability to monitor and identify

when he gets emotionally triggered. Dr. Fox was aware that Lee complained of treatment

burnout, which she believed underscored a need for more challenges in treatment because

there is only so much that can be done in his current programming. She also testified that

Lee missed several therapy sessions because he had traumatic losses in his family.

Finally, Dr. Fox stated that her opinion takes into consideration Lee’s decreasing Likert

scale scores.

       Because Dr. Fox testified that she did not change her opinion after reviewing the

2015 annual treatment report and receiving recent input from Lee’s treatment team,

Dr. Fox’s opinion before the judicial appeal panel was not based on inaccurate or

untimely facts, and the judicial appeal panel did not clearly err by finding her opinion

credible.

Schiffer’s testimony

       The commissioner also argues that the judicial appeal panel clearly erred by

relying on Schiffer’s testimony regarding Lee’s current treatment needs because Schiffer

relied on an addendum to the October 2015 SRB treatment report that does not

adequately represent Lee’s recent treatment presentation and does not consider Lee’s


                                            7
decreasing Likert scale scores. The judicial appeal panel determined that Schiffer’s

testimony was credible and that Lee has reached the greatest level of reintegration

possible within his current placement.

       Schiffer opined that Lee’s treatment needs could be satisfied in the community,

and he recommended that Lee be provisionally discharged. He testified that his opinion

was based, in part, on the understanding that Lee consistently attended and participated in

treatment and that he was not aware of any unexcused absences within the year that

preceded the second-phase hearing. While the commissioner argues that Lee had at least

seven recent absences from treatment, treatment notes only identify two unexcused

absences. Three of Lee’s absences noted that he was ill, had back pain, or was grieving

the death of his niece. The remaining two stated that Lee was absent but do not identify

whether his absence was excused or unexcused.           Notwithstanding these absences,

Schiffer’s opinion that Lee’s treatment could be managed in the community did not

change even though, more recently, Lee participated minimally in many of his core group

discussions. The judicial appeal panel found that Lee had missed several of his group

sessions because he felt “burned out,” but it credited Schiffer’s testimony that this was a

positive factor because Lee was being transparent about his state of mind.

       Schiffer testified that his opinion takes other factors into consideration, such as

Lee’s failure to comply with certain portions of his action plan. The addendum to the

October 2015 SRB treatment report stated that Lee followed through on his expectations.

Schiffer agreed that Lee’s not following certain portions of his action plan demonstrated




                                            8
a failure to follow through on treatment expectations, but he stated that Lee’s overall

progress was nevertheless accurately outlined in the addendum.

      Lastly, the commissioner argues that Schiffer’s opinion is based on insufficient

facts because Schiffer was not aware that Lee’s Likert scale scores had decreased. While

Schiffer agreed that some of Lee’s scores have decreased, he testified that some have

increased. He also stated that the language in the treatment reports reflects the treatment

team’s expectations of a person in phase 3 of treatment, at which point the treatment team

would be looking for greater advancement and performance. Schiffer testified that,

because Likert scale scores can be misused or misunderstood, he would give them less

weight in forming an opinion.

      We conclude that the judicial appeal panel did not clearly err by finding Schiffer’s

opinion credible. Lee’s recent absences from treatment, decreasing Likert scale scores,

and failure to comply with certain portions of his action plans could demonstrate

deterioration in Lee’s treatment programming. But Schiffer testified that his opinion,

which does not emphasize these factors, did not change even after this information was

presented to him because it is based on Lee’s treatment presentation as a whole.

Dr. Herbert’s testimony

      The commissioner contends the judicial appeal panel clearly erred by relying on

Dr. Herbert’s opinion because she was unaware of Lee’s decreasing Likert scale scores

and recent treatment presentation and therefore lacked an adequate factual foundation for

her opinion. The judicial appeal panel found Dr. Herbert’s opinion credible.




                                            9
       Dr. Herbert testified that, as a forensic evaluator, her role is to opine on the

statutory criteria for provisional discharge. She originally opined that Lee had not met

the criteria for provisional discharge because he demonstrated some hostility toward

women. But her opinion changed in her October 2015 risk-assessment update. At the

second-phase hearing, Dr. Herbert testified that Lee’s treatment needs could be met in the

community and that this “next step seems to be appropriate at this time.”

       Dr. Herbert used the Static-99R risk-assessment test (which measures static risk),

the Stable-2007 test (which assesses “dynamic risk and need”), the Acute-2007 test

(which measures more acute dynamic risks), and the structured professional-judgment

tool (which measures protective factors) to determine whether Lee would be a risk to the

public. Lee scored a three on the Static-99R, which is a low-to-moderate risk. On the

Stable-2007 test, Lee’s original score of five was reduced to four, although both scores

still placed him in the moderate-need category. Lee scored a two on the Acute-2007 for

both sexual and violent recidivism and general recidivism. Dr. Herbert also testified that

Lee “has a high degree of psychopathy” and that his composite score places him in the

high-priority category for sexual and violent recidivism. But Lee’s combined Static-99

and Stable-2007 scores place him in the low-to-moderate risk category. And Dr. Herbert

identified a number of protective factors to further mitigate Lee’s risk. The judicial

appeal panel determined that Lee is in the low-to-moderate nominal-risk category for

sexual recidivism, and it concluded that the protective factors identified by Dr. Herbert

further mitigate Lee’s risk for re-offense.




                                              10
       The commissioner contends that Dr. Herbert’s opinion lacks an adequate factual

foundation because Dr. Herbert did not have Lee’s complete cognitive picture.

Dr. Herbert testified that “having a complete cognitive picture of [Lee] is important to

assess him fully.” But because Dr. Herbert stated that neuropsychological examinations

are outside the scope of risk assessments, the risk assessments alone provided a sufficient

basis for her opinion.

       The commissioner also contends that Dr. Herbert’s lack of knowledge regarding

Lee’s decreasing Likert scale scores and her lack of consideration of Lee’s failure to

complete assigned action plans paint an inaccurate and incomplete picture of his current

treatment presentation. While Dr. Herbert did not know that Lee’s Likert scale scores

have been decreasing, she knew that his scores were still between the satisfactory and

proficient range. And she did not agree that Lee has been on a deteriorating course of

treatment.

       The commissioner further argues that Dr. Herbert’s opinion to now support Lee’s

provisional discharge based on her view that Lee is now managing his hostility toward

women is inconsistent with her unchanged opinion that Lee may lack transparency.

Dr. Herbert testified that Lee’s lack of transparency was one concern that underscored her

recommendation against provisional discharge in 2014.          In her 2015 assessment,

Dr. Herbert noted that Lee’s lack of transparency remains an area of concern, but she

opined that Lee could continue to work on his transparency “as he transitions to a less

secure setting.”   Dr. Herbert did not testify that her concern about Lee’s lack of

transparency was an overriding consideration. But she did testify that Lee’s hostility


                                            11
toward women is mitigated such that the previously documented concern should come off

of the Stable-2007 test. The judicial appeal panel found that Lee “demonstrated an

ability to manage his hostility specifically toward women” and “is open and honest and

does not appear to be hiding anything.”

       Because Dr. Herbert’s opinion is based on accurate facts in the record, we

conclude that the judicial appeal panel did not clearly err by finding Dr. Herbert’s

testimony credible.

Dr. Kenning’s testimony

       The commissioner asserts that the judicial appeal panel clearly erred by assigning

less weight to Dr. Kenning’s opinion because she was the only expert witness with an

adequate factual foundation. Specifically, Dr. Kenning was the only expert witness

whose opinion was based on Lee’s declining Likert scale scores, his absence from

treatment and his noncompliance with assigned action plans, and the feasibility of his

treatment in the community.

       Dr. Kenning opined that Lee should not be provisionally discharged. She testified

that Lee’s scores suggest that his treatment course is mildly deteriorating. She stated that

she expected Lee to be more involved in his treatment, given his stage in programming.

Dr. Kenning also testified about a lack of established, documented methods for treating a

person with Lee’s level of severe sexual sadism. And she stated that the clinicians at

Project Pathfinder, Lee’s assigned community treatment center, have not dealt with a

severe sexual sadist.




                                            12
         The judicial appeal panel acknowledged Dr. Kenning’s opinions but assigned

them less weight. It concluded that Lee does not require further treatment in his current

treatment setting and that outpatient sex-offender treatment is appropriate for him. Our

standard of review requires us to defer to the judicial appeal panel’s role as fact-finder in

its ability to judge the credibility of witnesses. See Ramey, 648 N.W.2d at 269. Because

the judicial appeal panel assigned greater weight to the testimony of Dr. Herbert and

Schiffer and less weight to Dr. Kenning’s testimony, we conclude that the judicial appeal

panel’s determination that Lee is not on a deteriorating course of treatment is not clear

error.

         The commissioner relies on Albert Lea Ice & Fuel and contends that, because the

expert opinions on which the judicial appeal panel relies did not consider Lee’s recent

pattern of deteriorating treatment, their opinions are based on inaccurate or untimely facts

and are, therefore, of little evidentiary value. 239 Minn. at 203, 58 N.W.2d at 618. In

Albert Lea Ice & Fuel, an experienced building contractor testified as an expert witness

that undue pressure on one of the walls of an icehouse caused it to collapse. Id. But the

expert failed to consider another plausible cause of the collapse that was supported by

“strong and convincing testimony” in the record. Id. at 203-04, 58 N.W.2d at 618. Nor

did the expert explain why he did not consider the other plausible option. Id. at 204, 58

N.W.2d at 618. The supreme court concluded that the expert’s opinion was based on an

inadequate factual foundation because the expert failed to explain why he excluded

another plausible cause of the icehouse’s collapse that was supported by strong




                                             13
testimony. Id. Therefore, the opinion had no evidentiary value. Id. at 204-05, 58

N.W.2d at 618-19.

      Here, the experts had factual foundations sufficient to form opinions. Each expert

based his or her opinion on recent discussions with Lee’s treatment team, quarterly and

annual treatment reports, risk assessment reports, and observations from interviews with

Lee. While cross-examination revealed that some of the expert witnesses were not

initially aware of Lee’s decreasing Likert scale scores or that he had recently been

minimally involved in his treatment programming, the record supports the judicial appeal

panel’s determination that this evidence was not strong or convincing and did not

mandate that Lee stay in his current treatment setting. Moreover, the experts concluded

that their opinions were not changed once provided the more recent evidence of Lee’s

treatment presentation.

      We recognize that a different judicial appeal panel may have credited

Dr. Kenning’s opinion and denied Lee’s petition for provisional discharge. But that is

not the standard that governs our review of this matter. Reviewing the record in the light

most favorable to the findings of the judicial appeal panel, we conclude that the evidence

as a whole supports the findings of the judicial appeal panel. Further, because the

judicial appeal panel did not ignore the vast weight of the evidence by crediting the

opinions of Dr. Fox, Schiffer, and Dr. Herbert, its order provisionally discharging Lee

from MSOP is not clear error.

      Affirmed.




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