                           This opinion will be unpublished and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
                                      A15-0550

                 In the Matter of the Civil Commitment of: Brian Lee Wilbur.

                                 Filed September 21, 2015
                                         Affirmed
                                       Reyes, Judge

                               Hennepin County District Court
                                 File No. 27MHPR141002

Ron Thorsett, Eden Prairie, Minnesota (for appellant)

Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

      Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and

Larkin, Judge.

                          UNPUBLISHED OPINION

REYES, Judge

      Appellant Brian Lee Wilbur challenges his commitment to the Minnesota sex-

offender program (MSOP) as a sexually dangerous person (SDP) under the Minnesota

Commitment and Treatment Act (the MCTA). Minn. Stat. §§ 253D.01-.36 (2014).

Appellant argues that (1) he does not meet the statutory criteria for commitment as an

SDP and (2) a less-restrictive treatment program is available. We affirm.
                                           FACTS

I.     1987 Sex Offense

       In November 1987, appellant physically assaulted C.W., his then wife, and

sexually assaulted A.M.G., C.W.’s 15-year-old sister who was staying the night at

appellant’s and C.W.’s apartment. He pleaded guilty to one count of fourth-degree

criminal sexual assault and received a 21-month sentence, stayed for five years. The stay

was revoked when appellant was convicted of the 1988 offense described below.

II.    1988 Sex Offense

       In May 1988, appellant sexually assaulted a five-year-old girl, A.P., who lived in

his apartment complex. Appellant pleaded not guilty to second-degree criminal sexual

conduct but was found guilty by a jury. He was sentenced to 36 months served

concurrently with the 21-month sentence he received from his 1987 conviction. While

incarcerated, appellant was evaluated and referred to the transitional-sex-offender

program (TSOP). A report from the TSOP stated that appellant “was minimizing and

justifying his behavior” at first but later “significantly improved in his ability to express

responsibility for his offense.” Appellant was terminated from the TSOP after staff

discovered marijuana in his room. He was paroled in May 1990, and his sentence

expired in May 1991.

III.   1992 Window-Peeping Offense

       In March 1992, neighbors observed a man moving between two windows of a

neighbor’s home. Appellant pleaded guilty to peeping and received a stayed




                                               2
misdemeanor sentence. He was required to attend sex-offender treatment as a part of his

probation, but he failed to do so.

IV.    1997 Sex Offense

       In June 1997, appellant sexually assaulted a 25-year-old woman, C.O., in her

apartment while she was sleeping, unclothed, in her bedroom. Appellant was charged

with second-degree criminal sexual conduct, fourth-degree criminal sexual conduct, first-

degree burglary, and first-degree burglary motivated by or committed in furtherance of

sexual contact or penetration. Appellant denied the charges. A jury found appellant

guilty on all counts, and he was sentenced to 300 months in prison.

V.     Incarceration and Treatment

       In March 2009, appellant was deemed appropriate for MSOP placement.

Appellant initially refused, but accepted after being informed that he would be subject to

further discipline if he did not attend. His initial progress in the program was good, and

staff members generally perceived appellant as a good participant in treatment. However,

appellant began to have repeated disputes with treatment goals and resentment toward

facilitators. In July 2010, appellant decided to drop out of the program. He was charged

with and convicted of medical-treatment refusal, which resulted in an additional 360 days

of extended incarceration.

       In 2014, appellant was referred to Department of Correction (DOC) psychologist

James Olson for possible civil commitment as an SDP or sexual psychopathic personality

(SPP). Olson used two actuarial tools to predict the likelihood of sexual recidivism: the

MnSOST-3.1.2 (MnSOST) and the Static-99R. The MnSOST indicated the probability


                                             3
of sexual recidivism for appellant was 1.96% with a percentile rank of 35.5%, which

placed him in a group of offenders considered at a low likelihood of re-offense. On the

Static-99R, Olson scored appellant as an offender with a high likelihood of sexual re-

offense. Later in 2014, a different DOC committee reassessed appellant and designated

him as a moderate risk level for re-offense.

       With appellant’s 300-month sentence set to expire on March 23, 2015, the state

petitioned for appellant’s commitment as an SPP and SDP. The state eventually

withdrew the petition for commitment as an SPP and only the petition for commitment as

an SDP was tried. The district court appointed forensic psychologist Michael Thompson,

Psy.D., LP, to serve as the district court’s first examiner. Appellant chose the second

examiner, Paul Reitman, Ph.D., LP. During a four-day trial, both examiners concluded

that appellant satisfied the statutory definition of an SDP. The district court committed

appellant to the MSOP as an SDP. This appeal followed.

                                     DECISION

       Appellant asserts that the district court erred by (1) committing appellant as an

SDP and (2) concluding that there were no less-restrictive alternatives to commitment.

Both arguments are addressed below.

I.     The district court did not err by committing appellant as an SDP.

       The elements of commitment must be established by clear and convincing

evidence. See Minn. Stat. § 253D.07, subd. 3. On review, we defer to the district court’s

findings of fact and will not reverse those findings unless they are clearly erroneous. In

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


                                               4
(Minn. Sept. 17, 2002). But 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 Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003). We

review the record in the light most favorable to the district court’s decision. In re Knops,

536 N.W.2d 616, 620 (Minn. 1995). Additionally, when, as here, “the findings of fact

rest almost entirely on expert testimony, the [district] court’s evaluation of credibility is

of particular significance.” Id.

       To be committed as an SDP, an individual must be found to be someone who:

(1) has engaged in a course of harmful sexual conduct; (2) has manifested a sexual,

personality, or other mental disorder or dysfunction; and (3) as a result, is likely to

engage in acts of harmful sexual conduct. Minn. Stat. § 253D.02, subd. 16(a). “Harmful

sexual conduct” is defined as “sexual conduct that creates a substantial likelihood of

serious physical or emotional harm to another.” Id., subd. 8. Here, appellant only

challenges the second and third elements of section 253D.02, subdivision 16(a).

       A.     Sexual, Personality, or other Mental Disorder or Dysfunction

       Appellant disputes the district court’s conclusion that there is clear and convincing

evidence that he suffers from mental disorders which impair his ability to adequately

control his sexual impulses. Appellant’s argument is twofold— first, he challenges the

district court’s finding that he had any mental disorder at all; and second, he challenges

the district court’s finding that he had a mental disorder which does not allow him to

adequately control his sexual impulses.




                                               5
       Appellant argues that the record does not support his diagnoses of paraphilia and

antisocial personality disorder (APD). But both Dr. Thompson and Dr. Reitman

concluded that appellant suffered from sexual paraphilia and APD. Dr. Thompson stated

in his submitted report and at trial that appellant suffers from “Paraphilia Not Otherwise

Specified”1 and specifically applied the criteria for that diagnosis to appellant. Appellant

ignores Dr. Thompson’s clear APD diagnosis and instead points out that Dr. Reitman

first failed to include an APD diagnosis in his report but later did so at trial. But at trial

Dr. Reitman clarified that while he initially doubted whether appellant met the APD

criteria, he changed his mind when he was writing his report, and his failure to include

the diagnosis was simply an oversight. Moreover, Minnesota courts have specifically

upheld the use of disorders such as APD and paraphilia for the purpose of commitment as

an SDP. See In re Linehan, 594 N.W.2d 867, 875 (Minn. 1999) (Linehan IV); In re Civil

Commitment of Navratil, 799 N.W.2d 643, 648 (Minn. App. 2011), review denied (Minn.

Aug. 24, 2011).

       Appellant next argues that there was not clear and convincing evidence that he

lacked adequate control of his sexual impulses. The supreme court has interpreted the

MCTA to require a showing that the person’s disorder “does not allow [him] to

adequately control [his] sexual impulses.” Linehan IV, at 876 (emphasis added); see also

In re Martinelli, 649 N.W.2d 886, 890-91 (Minn. App. 2002) (determining that the

“adequate lack of control” standard and the “‘serious difficulty’ in controlling behavior”


1
 “Paraphilia Not Otherwise Specified” is a disorder that meets the requirements of
paraphilia but does not fall within a listed subcategory, such as pedophilia.

                                               6
standard are the same). The United States Supreme Court later affirmed this position.

Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002) (“It is enough to say that

there must be proof of serious difficulty in controlling behavior.”).

       Here, both court examiners clearly stated that appellant’s disorders prevent him

from adequately controlling his sexual impulses. Dr. Thompson testified that appellant’s

disorders prevent adequate control of his impulses and that his criminal history shows

that he continued to commit sexual offenses even after facing legal sanctions.

Dr. Thompson stated that he will likely always struggle with alcohol, which also plays a

part in his inability to adequately control his impulses. Dr. Reitman agreed that

appellant’s history suggests impulsive behavior and emphasized that appellant’s failure to

receive treatment while imprisoned further demonstrates his inability to control himself.

Accordingly, the district court did not err in determining that there is clear and

convincing evidence that appellant’s disorders do not allow him to adequately control his

sexual impulses.2




2
  Appellant repeatedly makes the argument that the examiners’ diagnoses fail to
distinguish him from a typical recidivist. This argument is based on the Supreme Court’s
opinion in Crane, which states that proof of lack of adequate control “must be sufficient
to distinguish the dangerous sexual offender whose serious mental illness, abnormality,
or disorder subjects him to civil commitment from the dangerous but typical recidivist
convicted in an ordinary criminal case.” 534 U.S. at 413, 122 S. Ct. at 870. But, as the
state points out, the Eighth Circuit has specifically held that the criteria for committing an
individual under the MCTA, taken together, will automatically satisfy the “sufficient to
distinguish” requirement under Crane. Linehan v. Milczark, 315 F.3d 920, 927 (8th Cir.
2003). Therefore, no separate analysis under Crane is required.

                                              7
       B.     Likely to Engage in Acts of Harmful Sexual Conduct

       To be committed as an SDP, appellant must also be likely to engage in acts of

harmful sexual conduct. Minn. Stat. § 253D.02, subd. 16(a)(3). The supreme court has

construed the phrase “likely to engage in acts of harmful sexual conduct” to require a

showing that it is “highly likely” to occur. In re Linehan, 557 N.W.2d 171, 190 (Minn.

1996) (Linehan III), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997),

aff’d on remand, 594 N.W.2d 867 (Minn. 1999). When examining whether an offender

is highly likely to engage in acts of harmful sexual conduct, a district court considers six

factors. Linehan III, 557 N.W.2d at 189 (“We conclude that the guidelines for

dangerousness prediction in [In re Linehan, 518 N .W.2d 609 (Minn. 1994) (Linehan I)]

apply to the SDP Act . . . .”). Those factors are: (1) relevant demographic characteristics;

(2) history of violent behavior; (3) base rate statistics for violent behavior among those

with the individual’s background; (4) sources of stress in the individual’s environment;

(5) the similarity of the individual’s present or future context to the context in which the

individual engaged in harmful sexual conduct in the past; and (6) the individual’s record

in sex therapy programs. Linehan I, 518 N.W.2d at 614. “No single factor is

determinative of this complex issue.” Navratil, 799 N.W.2d at 649. We will not reverse

the district court’s findings unless they are clearly erroneous, and deference is given to

the district court’s credibility determinations. Ramey, 648 N.W.2d at 269.

       In considering the Linehan factors, the district court concluded that “the great

weight of the evidence under the multi-factor analysis suggests that [appellant] is highly

likely to reoffend.” Both examiners concluded that appellant was highly likely to


                                              8
sexually re-offend if not committed. Dr. Thompson specifically addressed each of the six

Linehan factors in his report, while Dr. Reitman provided testimony as to those factors at

trial. Appellant contends that, with the exception of the sixth factor, the record

established that all of the Linehan factors were either neutral or in his favor. We

conclude that the record supports the district court’s assessment of the factors.

              1.     Relevant demographic characteristics

       The district court determined that the first Linehan factor weighed in favor of

appellant because, as Dr. Thompson testified, his age, 49, has been shown to mediate the

risk of re-offense compared to that of a younger person. The district court recognized

that this factor weighs in favor of appellant, and the state agrees.

              2.     History of violent behavior

       Appellant argues that there is no evidence that his past victims were either

threatened with or suffered serious physical harm during his sexual offenses. In addition

to ignoring the physical violence detailed in the police reports, this argument

mischaracterizes the law. This court has held that “the [SDP] statute does not require a

showing of violence.” In re Robb, 622 N.W.2d 564, 573 (Minn. App. 2001), review

denied (Minn. Apr. 17, 2001). Instead, the statute only requires a showing that the

individual “is likely to engage in acts of harmful sexual conduct.” Id. (quoting Minn.

Stat. § 253D.02, subd. 16(a)(3)). And “harmful sexual conduct” is defined in terms of

“serious physical or emotional harm.” Minn. Stat. § 253D.02, subd. 8 (emphasis added).

Here, Dr. Reitman testified that “there’s no question” that the victims likely suffered

“serious emotional and physical harm,” including “post-traumatic stress


                                              9
disorder . . . , neurological impairment . . . , higher risk for psychiatric

disorders, . . . higher risk for substance abuse.” Dr. Thompson agreed that the victims

likely suffered physical and psychological trauma, including acute stress reactions and

post-traumatic stress disorder. The presentence investigation from the 1997 offense

specifically outlined the victim’s physical and emotional harm. The district court did not

clearly err in determining that this factor weighed in favor of commitment.

               3.     Base-rate statistics

       Appellant next contests the base-rate statistics and actuarial tools used to predict

the likelihood of re-offending. Dr. Thompson used three assessment tools: the MnSOST,

the Static-2002R, and the PCL-R. Dr. Thompson’s MnSOST results were low, indicating

only a 2.2% likelihood of re-offense in the next four years. The Static-2002R evaluation

indicated a moderate-high risk of re-offense and a 10-year re-offense rate of 39%.

Dr. Thompson gave appellant a PCL-R score which indicated a high risk of recidivism.

Dr. Reitman used two assessment tools: the Static-99R and the PCL-R. The Static-99R

score indicated that appellant had a moderate-high re-offense risk and the PCL-R score

indicated a high risk of re-offense. And as previously mentioned, DOC psychologist

James Olson also employed the MnSOST and Static-99R to evaluate appellant. Olson’s

results indicated a low likelihood of re-offense on the MnSOST but a high likelihood of

re-offense on the Static-99R.




                                               10
       Appellant argues that only the MnSOST results should be credited and asks this

court to give it greater weight than the other assessment tools.3 But in performing the

Linehan analysis, appellate courts “will not weigh the evidence.” Linehan III, 557

N.W.2d at 189. The supreme court reiterated that the “dangerousness prediction under

[the MCTA] is not simply a matter for statisticians.” Id. at 191. Accordingly, we are not

persuaded by appellant’s argument that the third Linehan factor weighs in his favor and

the district court did not err in ruling as such.

               4.     Sources of stress

       Dr. Thompson indicated that appellant’s vocational training meant that he was a

stronger candidate for employment than most individuals coming out of prison.4

However, Dr. Thompson also noted appellant’s “long-standing issue with authority

figures” and that it could be “quite a problem.” Dr. Thompson further noted that the

issue “runs deep,” as evidenced by appellant’s self-terminated sexual-offender treatment.

Appellant has not shown that the district court clearly erred when it found that this factor

weighed in favor of commitment.




3
  We note that appellant correctly points out that the district court clearly erred in reciting
Dr. Thompson’s MnSOST results. The district court found that Dr. Thompson’s
MnSOST assessment indicated a 35% recidivism rate. In fact, Dr. Thompson’s MnSOST
assessment indicated a 35th percentile rank among offenders, and a re-offense rate much
closer to 2%. However, appellant did not suffer any prejudice from this error because a
number of other assessment tools indicated a moderate-high risk or high risk of re-
offense.
4
  Dr. Reitman did not give significant testimony related to this factor.

                                               11
              5.     Similarity of present or future context to context in which
                     individual engaged in harmful conduct

       Appellant argues that his skill, attitude, and motivation to make a successful

transition into the community all exhibit a different future context than that in which he

engaged in harmful conduct. However, Dr. Thompson reported that because appellant

engaged in harmful conduct in a wide variety of situations with victims of different ages

and relationships, appellant would present a risk of re-offending in almost any situation.

Dr. Thompson also testified that, despite appellant’s sobriety while imprisoned, alcohol

abuse “likely will always be a struggle.” Appellant has not shown that the district court

clearly erred when it found that this factor weighed in favor of commitment.

              6.     Record in sex-therapy programs

       Appellant admits that he has a poor record with sex-therapy programs, but argues

that he is currently amenable to such programs and that he has knowledge of the

program’s treatments as a result of experience and independent study. But appellant cites

no authority for the proposition that current willingness or independent knowledge of

treatment should be included in evaluating an offender’s sex-therapy record. Moreover,

Dr. Thompson testified that appellant’s current willingness to attended therapy is likely a

“bargaining process” and that it is “conditional on the treatment being presented in a

modality (outpatient) that [appellant] agrees with.” Dr. Thompson further questioned

appellant’s amenability to treatment because appellant “admits only minimally that he

engaged in problematic sexual behavior.” Appellant has not shown that the district court

clearly erred in finding that this factor weighed in favor of commitment.



                                             12
        In sum, the record clearly and convincingly supports the district court’s conclusion

that appellant meets the standard for commitment. Appellant’s arguments essentially ask

this court to discredit the testimony of the court examiners and give greater weight to his

own opinions regarding the Linehan factors. Because the district court’s evaluation of

credibility is of particular significance, Knops, 536 N.W.2d at 620, and we are not

allowed to reweigh the evidence, Linehan III, 557 N.W.2d at 189, appellant’s arguments

fail.

II.     The district court did not err by concluding that there were no less-restrictive
        alternatives to commitment.

        Upon a finding that an individual is an SDP, a district court “shall commit the

person to a secure treatment facility unless the person establishes by clear and convincing

evidence that a less restrictive treatment program is available, is willing to accept the

person under commitment, and is consistent with the person’s treatment needs and the

requirements of public safety.” Minn. Stat. § 253D.07, subd. 3. “Under the current

statute, patients have the opportunity to prove that a less-restrictive treatment program is

available, but they do not have the right to be assigned to it.” In re Kindschy, 634

N.W.2d 723, 731 (Minn. App. 2001) (emphasis omitted), review denied (Minn. Dec. 19,

2001). “[T]he burden of proving that a less-restrictive program is available is on the

patient.” Robb, 622 N.W.2d at 574. This court will not reverse a district court’s findings

on the propriety of a treatment program unless its findings are clearly erroneous. Thulin,

660 N.W.2d at 144.




                                             13
       Appellant argues that the district court erred in concluding that a less-restrictive

treatment program is unavailable because he would be on intensive supervised release

(ISR) until 2032. Appellant points out that under ISR, he would be eligible for sex-

offender-treatment programs or a halfway house. But he identifies no specific facility

that “is willing to accept [appellant] under commitment.” See Minn. Stat. § 253D.07,

subd. 3. Instead, appellant relies heavily on the testimony of DOC caseworker Jean

Rudebeck for support that ISR is consistent with appellant’s treatment needs and the

requirements of public safety. But Dr. Reitman testified that the amount and length of

supervision received during ISR would be insufficient. And Dr. Thompson stated that it

would be in the community’s best interest to commit appellant to a secure setting like the

MSOP. The district court credited this testimony in determining that no other sex-

offender program can satisfy the requirements of section 253D.07, subdivision 3.

Appellant again improperly asks this court to make a credibility determination, and we

will not do so. The district court did not clearly err in finding that no less-restrictive

programs were available.

       Affirmed.




                                              14
