                         This opinion will be unpublished and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
                                    A16-0529


                       In re the Commitment of: Kevin J. Strong


                               Filed September 6, 2016
                                      Affirmed
                                  Halbrooks, Judge


                            St. Louis County District Court
                                File No. 69VI-PR-15-52

Todd E. Deal, Virginia, Minnesota (for appellant)

Mark S. Rubin, St. Louis County Attorney, Sharon Chadwick, Assistant County
Attorney, Duluth, Minnesota (for respondent county)

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

Muehlberg, Judge.

                        UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant challenges his indeterminate civil commitment, arguing that the district

court erred by finding that he engaged in overt acts that caused or attempted to cause

serious physical harm to others. We affirm.



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

       On May 14, 2015, respondent St. Louis County petitioned for civil commitment of

appellant Kevin J. Strong as mentally ill and dangerous (MID) after concluding that

Strong’s delusional and disturbing sexual beliefs regarding children place his safety and

the safety of others at risk. In support of its petition, the county offered (1) evidence of

past incidents during which Strong engaged in overt acts causing or attempting to cause

serious physical harm to another and (2) examples of Strong’s religious ideations and

fixations on young females.

       The events on which the petition was based span the course of nearly a decade,

beginning when Strong was 14 years old. On April 23, 2000, police apprehended him

hiding inside a church along with another juvenile male. On July 4, 2008, Strong was

apprehended after officers observed him throwing homemade incendiary devices into a

crowd of people at a street dance. He was arrested for disorderly conduct. On July 22,

2008, officers arrested Strong after receiving complaints that he was “hitting on” young

females and giving them homemade incendiary devices.            Officers discovered child

pornography contained on a flash drive he possessed at the time of arrest. Strong was

convicted of felony possession of pornographic material. On October 2, 2008, officers

apprehended Strong after he shot his mother several times with a high-caliber pellet gun.

Strong was convicted of misdemeanor domestic assault.

       Strong has seven felony convictions from 1999 to 2010, including two counts of

first-degree criminal damage to property, third-degree burglary, possession of a

dangerous weapon on school property, fifth-degree controlled-substance crime,


                                             2
possession of pornographic work involving minors, and escape from custody. Strong’s

longest span without arrest was from July 2005 to July 2008. But during this period,

Strong was enrolled in the military from March 2006 to February 2007 and under civil

commitment from April to October 2007.               Strong was again placed under civil

commitment at MCF-Oak Park Heights in 2012 with a release date of September 2015.

       Before his release from confinement at Oak Park Heights, the county

recommended that Strong be committed as MID based on the “pattern of Mr. Strong’s

criminal history, his inability to be treated as a sex offender or for chemical dependency,

and his continued verbalization involving the sacrifice of young girls and his sexual

thoughts of them.” The county was particularly concerned with the latter. Throughout

his years in treatment, Strong continuously expressed a desire to sacrifice young females

in the name of a religion he professes to have created called “Wistika.” Strong believes

that he is “ordained to perform sacrifices of young girls by having sexual intercourse with

them and killing them.”       He has described the process of choosing female victims

between the ages of 6 to 9 by bone size and vaginal depth and has weighed the merits of

wrist-slitting versus blunt-force trauma to accomplish the killings. In addition, Strong

urged his psychiatrist to deliver a letter to the judge in which he requests permission to

sacrifice a girl in order to prove that his belief system is accurate.

       Following a commitment hearing in August 2015, the district court granted the

county’s petition for civil commitment as an MID person. The district court found that

Strong (1) had “engaged in at least one [overt] act causing or attempting to cause serious




                                               3
physical harm to another” and (2) “poses a substantial likelihood of physical harm to

himself or to others.”

       In January 2016, the district court held a final commitment hearing and

determined that Strong continued to meet the criteria for an MID commitment. The

district court found:

                      Since his initial commitment, Respondent has not
              meaningfully participated in treatment to address his
              delusional beliefs and denies any need for treatment services.
              He was unable to identify possible triggers or high risk
              situations that might elicit heightened symptoms. He was
              unable to identify any family or community support systems
              which could provide pro-social personal support. He
              continues to express a view that non-prescribed mood-altering
              chemicals are for rejoicing and affirmed his intention to
              partake in the consumption of such substances when available
              to him, despite the fact that intoxication has played a role in
              many of his prior criminal offenses and is considered an
              ongoing risk factor for acting upon his delusional beliefs.

Based on these findings, the district court determined that there is a continued

“substantial likelihood that [he] will engage in acts capable of inflicting serious harm to

another” and committed Strong for an indeterminate period. This appeal follows.

                                        DECISION

       Strong argues that the district court erred by committing him as MID, asserting

that his actions, while criminal, do not qualify as overt acts for the purpose of

commitment. A district court must order the commitment of a person as MID if it finds

by clear and convincing evidence that the person satisfies the statutory definition. Minn.

Stat. § 253B.18, subd. 1(a) (2014). An MID person is a person:

                        (1) who is mentally ill; and


                                                4
                      (2) who as a result of that mental illness presents a
              clear danger to the safety of others as demonstrated by the
              facts that (i) the person has engaged in an overt act causing or
              attempting to cause serious physical harm to another and (ii)
              there is a substantial likelihood that the person will engage in
              acts capable of inflicting serious physical harm on another.

Minn. Stat. § 253B.02, subd. 17(a) (2014). This court reviews a district court’s civil-

commitment decision to determine whether the district court complied with the statute

and whether the evidence in the record supports the findings of fact. In re Knops, 536

N.W.2d 616, 620 (Minn. 1995). The record is viewed in the light most favorable to the

district court’s decision and findings of fact shall not be set aside unless clearly

erroneous. Id. But this court “review[s] 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 Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).

       Strong concedes that he is mentally ill and “has evidenced a flawed perception of

reality.” He challenges only the district court’s determination that he is dangerous. The

district court concluded that there is clear and convincing evidence that, as a result of his

mental illness, Strong presents a clear danger to the safety of others “as demonstrated by

his having engaged in at least one overt act causing or attempting to cause serious

physical harm to another.” In determining whether a person’s act was intended to inflict

“serious physical harm” so as to support that person’s commitment as MID, the word

“serious” is given its common understanding. In re Kottke, 433 N.W.2d 881, 884 (Minn.

1988); see also Minn. Stat. § 253B.02, subd. 17(a). Thus, while an act that results in a

physical affront does not necessarily meet the requirement of attempting to cause serious



                                             5
physical harm to another, Kottke, 433 N.W.2d at 884, it is not necessary that serious

physical harm actually result from the overt act, Minn. Stat. § 253B.02, subd. 17(a)(2)(i).

         Determining whether Strong is dangerous requires application of a two-part test.

The first element focuses on past harm. The state must prove that Strong committed an

overt act capable of causing serious physical harm to another. Minn. Stat. § 253B.02,

subd. 17(a)(2)(i). Second, the state must prove that “there is a substantial likelihood that

[Strong] will engage in acts capable of inflicting serious physical harm on another.” Id.,

subd. 17(a)(2)(ii).

Past Harm

         April 23, 2000 – Gethsemane Lutheran Church

         Strong argues that the district court erred by finding that he committed overt acts

in furtherance of arson since he was not charged with the crime of arson as a result of this

incident. Thus, he asserts that he did not have the intent to commit any overt acts in

furtherance of arson.

         Officers responded to a complaint from an individual who heard a loud noise and

saw juveniles running near a church. When officers entered the church, they observed

that oil had been poured on floors, doors, walls, furniture, papers, and on several church

robes.    Officers found a burned matchstick next to the altar candles and a box of

matchsticks in Strong’s pocket. The church pastor advised police that church staff do not

use matches to light altar candles.

         When apprehended, officers noted that Strong smelled of alcohol, and Strong

advised them that “God made them do this,” that they “had other things planned,” that


                                              6
“you don’t know who you are messing with,” and that “you will get yours.” During

formal questioning about the incident, Strong claimed not to remember either the events

of that day or the comments he made to officers, citing intoxication as the reason for his

memory lapse.

       Strong does not dispute that he was found inside the church, that he poured oil

throughout the church, that he was found with matches in his pockets, or that the burnt

match found by police next to the altar candles was Strong’s. Strong asserts only that the

district court erred by finding that he was there to commit acts in furtherance of arson

since he was not charged with arson or attempted arson. But “[c]onviction of a crime is

not a prerequisite to commitment as mentally ill and dangerous to the public.” In re

Jasmer, 447 N.W.2d 192, 195 (Minn. 1989). On this record, the district court did not err

in ruling that clear and convincing evidence shows that Strong committed overt acts in

furtherance of arson.

       July 4 & 22, 2008 – Incendiary Devices

       Strong argues that the record does not support a finding that he attempted to cause

serious harm to others when he threw homemade incendiary devices into a crowd of

people gathered for a July 4 street celebration and later gave similar devices to young

children. When evaluating the overt-act requirement, we focus “on the seriousness of the

act and whether it did occur.” Knops, 536 N.W.2d at 620. The focus is solely on those

two questions because the “person’s intent or the outcome of the action is not relevant to

the determination of whether the conduct meets the overt-act requirement.” In re Civil

Commitment of Carroll, 706 N.W.2d 527, 530 (Minn. App. 2005).


                                            7
       On July 4, several officers observed Strong throw incendiary devices into a crowd

of people at a street party. Officers agreed that Strong “seemed to be very excited and

pleased over the frightened reactions of the people in the crowd,” and one officer recalled

that the sound of the explosion from Strong’s device was “far louder than any fireworks I

had heard during the 4th of July weekend.” Two eight-year-old girls reported that later

that same month, Strong gave them incendiary devices, telling the girls to go light them.

Strong threw one of the devices onto a 14-year-old girl’s leg as she was sitting near a

bonfire. The district court did not err by finding that “[t]he use of such devices in a

crowd and the provision of them to young children presented a clear risk of harm.”

       July 22, 2008 – Young Females

       Strong challenges the district court’s finding that he engaged in overt acts by

propositioning underage females because (1) his actions cannot be construed to have

constituted an attempt to engage in criminal sexual conduct with them and (2) there was

no danger of an actual assault because other adults were in close proximity and would

have prevented any attempts.

       The 14-year-old female who reported that Strong had thrown an incendiary device

on her leg also reported that he “hit” on her by calling her “hot” and “sexy.” Officers

received written statements from the two eight-year-old girls who he similarly engaged

with by calling them “pretty” and telling one girl “he really liked her.” When officers

searched Strong upon his arrest, they found a jump drive on which he had stored

pornographic images of very young females, a digital camera, and several small

incendiary devices. Strong had the pornographic images on his person when he engaged


                                            8
in the act of soliciting young females. These facts support the district court’s finding that

“[t]he solicitation activity constitutes an attempt to engage in criminal sexual conduct

with children as young as eight.”

       October 2, 2008 – Shooting of C.S.

       Strong does not dispute that he shot his mother, C.S., in the chest and leg but

asserts that his actions do not qualify as overt acts because he lacked the intent to inflict

serious physical harm upon his mother, his mother suffered no long-term injuries, and the

county failed to prove that he was mentally ill at the time of his attack. As noted in

Carroll, a person’s intent does not control whether the act meets the overt-act

requirement for dangerousness. 706 N.W.2d at 530; see, e.g., Jasmer, 447 N.W.2d at

195-96 (concluding that evidence supported finding of overt act attempting to cause

serious physical harm to another when, without justification, person aimed and fired

shotgun at a neighbor without caring whether neighbor was hit).

       Because intent is not relevant in determining whether Strong’s actions constitute

overt acts and because Strong concedes that he is mentally ill, the focus is on the acts

themselves.1 C.S. called a county social worker the morning of the incident because she

was “really afraid Strong was going to kill [her].” When officers arrived, they observed

applesauce and ketchup splattered on the sidewalk, steps, and porch areas. Inside, they

1
  Strong urges this court to conclude that the district court erred with regard to the
shooting because there was a lack of consensus among medical experts as to whether they
considered the shooting an overt act. But “[t]he district court acts within its discretion in
determining the credibility of expert testimony, and we defer to those assessments.” In re
Civil Commitment of Stone, 711 N.W.2d 831, 839 (Minn. App. 2006), review denied
(Minn. June 20, 2006).


                                             9
found the house in disarray, noting that the kitchen table had been tipped over, dishes

were broken, and three panes had been broken out of C.S.’s bedroom window. Also

inside, officers recovered a .177 caliber Nightstalker pellet gun with a detachable laser

light/flashlight unit, a machine-gun-style Airsoft Firepower gun, and an Airsoft

Firepower handgun, along with related ammunition.

       Strong accused C.S. of “doping him up” by putting medication in his food.

Immediately preceding the attack, Strong kicked her bedroom door and told her, “I have

something to show you.” He then shot her once in the leg with one gun before switching

to the laser-assisted gun and shooting her in rapid succession in the chest. During the

incident, Strong told her, “It’s easier doing it this way.” She recalled him going outside

and yelling, “[Y]ou should have died.” Strong admitted shooting her in the chest, telling

officers, “I think I just unloaded the clip.” Strong admitted to shooting his mother and

rambled about a “violence of action” that he had been trained for in the Army. These

facts suggest that Strong believed he was using lethal force, even if in actuality he was

only using a pellet gun.2 As the district court noted:

              If while experiencing a mental illness, Respondent believed
              he was carrying a weapon capable of deadly force, believed
              he had a reason to use deadly force on a particular person and
              did in fact proceed to discharge that perceived weapon in a
              manner otherwise calculated to cause the death of a person,
              there is no reason to take this conduct as any less of a threat
              than a person using a real firearm to shoot at an imaginary

2
  A previous interaction between Strong and police officers reflect that Strong lacks an
appreciation of the difference between a lethal gun and the pellet gun used to shoot his
mother. On July 6, 2008, officers stopped Strong when they spotted him in public with a
black CO2 handgun in a holster on his hip. Strong told officers, “Someday everyone will
feel my pain” and compared his holstered gun to the officer’s.

                                             10
              threat. Both evidence predisposition to cause serious injury
              and a lack of restraint when presented with a perceived
              opportunity to actually cause such harm. Both involve overt
              acts attempting to cause serious bodily harm.

The record supports a finding that Strong engaged in overt acts attempting to cause harm

to C.S., even if she suffered no long-term physical injuries.

Future Harm

       To satisfy the second element, the state must prove that “there is a substantial

likelihood that the person will engage in acts capable of inflicting serious physical harm

on another.” Minn. Stat. § 253B.02, subd. 17(a)(ii). It is appropriate for the district court

to consider past conduct in determining the likelihood of future danger. See Carroll, 706

N.W.2d at 531 (considering patient’s records, which were “replete with documentation of

violent outbursts and physical assaults”); In re Welfare of Hofmaster, 434 N.W.2d 279,

281 (Minn. App. 1989) (considering patient’s entire history of dangerous acts, including

a stabbing assault on his wife).

       In this case, the district court record contains substantial evidence to support a

determination of future danger. Strong’s dangerous behavior spanned the course of

nearly a decade. Until his appeal, he has consistently denied suffering from a mental

illness. In addition, he was deemed unamenable to treatment, resists medication, and

readily engages in substance abuse despite its effect on his mental state. His psychiatrist

concluded that, without treatment, he will remain fixated on his destructive thoughts with

the ability to act on them if released. Another medical expert noted that Strong’s writings

have become more graphic and violent and have reached a level of concern that Strong



                                             11
would be a danger if released into the general public. Additionally, Strong escaped from

confinement when presented with the opportunity and communicated to mental-health

professionals that he does not intend to abstain from using mood-altering substances upon

release despite those substances making it more likely that he would act on his

“delusional belief system.”

      The record is replete with support to indicate that there is a substantial likelihood

Strong, if released, will engage in acts capable of inflicting serious physical harm on

another—particularly acts involving the harming of young females.             It is of no

consequence that he has not yet done so, primarily because “as expressed by [Strong], his

primary targets of interest are young girls and this category of victim has not been

available to him at the Oak Park Heights Corrections Facility.” The district court’s

conclusion that “[t]here is clear and convincing evidence that because of [Strong]’s

manifestation of his schizophrenic illness, there is a substantial likelihood that he will

engage in acts capable of inflicting serious physical harm on another” is not clearly

erroneous.

      Affirmed.




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