                          This opinion will be unpublished and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
                                     A15-0193

             In the Matter of the Civil Commitment of: John Joseph Kotowski.

                                  Filed June 29, 2015
                                       Affirmed
                                     Reilly, Judge

                              Dakota County District Court
                               File No. 19HA-PR-13-710

David A. Jaehne, West St. Paul, Minnesota (for appellant John Joseph Kotowski)

James C. Backstrom, Dakota County Attorney, Helen R. Brosnahan, Jennifer L. Jackson,
Assistant County Attorneys, Hastings, Minnesota (for respondent Dakota County)

         Considered and decided by Larkin, Presiding Judge; Reilly, Judge; and Reyes,

Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

         Appellant John Joseph Kotowski challenges his commitment to the Minnesota sex

offender program (MSOP) as a sexually dangerous person (SDP) and as a sexually

psychopathic personality (SPP) and claims that he received ineffective assistance of

counsel. Because clear and convincing evidence supports appellant’s commitment as

both an SDP and an SPP, and because his counsel was not ineffective, we affirm.
                                           FACTS

       In May 2014, Dakota County petitioned to civilly commit 54-year-old appellant as

an SDP and an SPP. The petition is based partially on appellant’s extensive history of

charged and uncharged criminal offenses.

       Charged Offenses

       In 1974, at age 14, appellant was accused of killing his younger stepsister by

stabbing her to death. He was never petitioned into juvenile court for this offense. From

November 1974 to March 1978, appellant was committed to a treatment center as

Mentally Ill and Dangerous to the Public. Appellant was eventually transferred to the

Minnesota Security Hospital due to a physical conflict with a treatment center resident,

and he stayed there until June 1980.

       On April 1, 1986, at age 26, appellant was charged with first-degree criminal

sexual conduct and extortion for having sex with 17-year-old S.H. after threatening to

show her parents sexually explicit photos if she did not comply with his demands. When

S.H. was 14 or 15 years old, she claimed that appellant made her drink alcohol until she

passed out, had sex with her, and took nude photos of her. The counts were dismissed by

the district court due to insufficient evidence.

       On December 30, 1986, appellant handcuffed and raped 16-year-old R.B. in a

garage at his residence. Appellant then drove R.B. home and threatened to kill her if she

told anyone. Appellant claimed that R.B. offered to exchange sex for cocaine, but he

denied having sexual contact with her. The state charged appellant with first-degree

criminal sexual conduct and extortion.         Appellant pleaded guilty to fourth-degree


                                               2
criminal sexual conduct, and the district court stayed the execution of his 21-month

sentence.

      Between June 28, 1988, and September 1, 1988, appellant conspired to have his

girlfriend killed after she inadvertently threw away two boxes of cocaine. Appellant met

with an undercover agent and provided him with cash, a handgun, and directed the agent

to kill his girlfriend. Appellant denied the conspiracy and claimed that he was trying to

“buy time” for his girlfriend. The state charged appellant with conspiracy to commit

first-degree murder, conspiracy to commit assault, and felon in possession of a handgun.

Appellant pleaded guilty to conspiracy to commit first-degree assault and felon in

possession of a handgun and was committed to the commissioner of corrections for 32.5

months on the conspiracy conviction with 51 months stayed on the possession conviction.

On December 26, 1990, appellant admitted to violating probation and the district court

executed the 51-month sentence with credit for time served.

      In early December 1990, then 33-year-old appellant forced 16-year-old A.W. into

a car, physically assaulted her, forced her to remove her pants, digitally penetrated her

vagina, forced her to perform oral sex on him while driving, took her to his apartment,

brandished a gun at her, forced her to shave her pubic area, and sexually penetrated A.W.

several times.   Appellant kept A.W. in his apartment by binding A.W. with tape

whenever appellant left his apartment. Appellant claimed that A.W. wrote him letters

while he was in prison and that the sexual contact was voluntary. Appellant was charged

with first-degree criminal sexual conduct and false imprisonment. Appellant pleaded




                                           3
guilty to false imprisonment and was committed to the commissioner of corrections for

36 months.

       On October 8, 1997, while A.D. was at appellant’s residence, appellant choked

and threatened to kill A.D. if she did not comply with his orders, causing her physical

injuries. He then orally, anally, and vaginally penetrated her. Appellant put his penis in

her mouth and took photos.       Appellant then took A.D. back to her residence and

threatened to kill her if she told anyone. After A.D. reported appellant, a search of

appellant’s residence revealed a backpack with various lengths of rope, a bottle of liquor,

rolls of tape, a condom, a roll of razor wire, a disposable razor, and an empty firearm

magazine. Appellant denied that any sexual contact occurred between him and A.D. The

state charged appellant with two counts of first-degree criminal sexual conduct and

kidnapping, and a jury found him guilty of all three counts. Appellant was committed to

the commissioner of corrections for 292 months, with a five- to ten-year conditional

release period.

       Uncharged Offenses

       The district court also relied on several uncharged offenses. In 1984, then 25-

year-old appellant engaged in sexual activity with 14-year-old S.H. S.H. was the victim

of the April 1, 1986 charges. During the summer of 1987, appellant provided liquor to

two minor girls, A.W. and B.A.        After the girls reached the point of intoxication,

appellant raped both girls. A few days later, he again sexually assaulted one of the girls.

The offenses were not reported until 1989. On April 22, 1988, appellant took his ex-

girlfriend, L.G., to his apartment, physically assaulted her, held a gun to her throat, tied


                                             4
her hands, shaved her pubic region, and sexually assaulted her vaginally and anally with a

vibrator and his penis. On May 5, 1988, appellant met L.G. after work and pointed a

handgun at her. L.G. ran away. In 1988, appellant sexually assaulted 14-year-old A.W.

after providing her alcohol. He then maintained a sexual relationship with her.

      On October 22 and 24, 2014, the district court held a civil commitment trial. Prior

to the commitment trial, the district court appointed two experts as court examiners:

Michael Thompson, Ph.D., and Mary Kenning, Ph.D. Each expert evaluated appellant

using actuarial and dynamic risk assessment tools to assess whether he satisfied the

criteria for commitment as an SDP and an SPP. Both experts testified that appellant

satisfied the criteria for commitment as both an SDP and an SPP and provided testimony

explaining their conclusions. In addition to their testimony, both experts filed reports

with the court, concluding that appellant satisfies the criteria for commitment as an SDP

and an SPP.

      The district court credited the experts’ testimony and reports and found that

appellant satisfies the requirements for commitment as an SDP and an SPP. He was

ordered to MSOP in Moose Lake. This appeal follows.

                                    DECISION

      A person may be civilly committed as an SDP or an SPP if the petitioner proves

the statutory criteria by clear and convincing evidence. Minn. Stat. § 253D.07, subd. 3

(2014). “Clear and convincing evidence is evidence that is more than a preponderance of

the evidence but less than proof beyond a reasonable doubt.” State v. Jones, 753 N.W.2d

677, 696 (Minn. 2008). This court reviews a district court’s factual findings on the


                                            5
elements of the civil commitment statutes for clear error. In re Civil Commitment of

Stone, 711 N.W.2d 831, 836 (Minn. App. 2006), review denied (Minn. June 20, 2006).

“Where the findings of fact rest almost entirely on expert testimony, the [district] court’s

evaluation of credibility is of particular significance.” In re Knops, 536 N.W.2d 616, 620

(Minn. 1995). But whether the evidence is sufficient to meet the statutory requirements

for commitment is a question of law, which this court reviews de novo. In re Civil

Commitment of Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn.

Aug. 5, 2003).

                                             I.

       An individual is an SDP if he (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 (2014). Appellant only challenges the district court’s findings and

conclusions regarding the third statutory requirement, which is satisfied if a person is

“highly likely” to reoffend by engaging in acts of harmful sexual conduct in the future.

In re Civil Commitment of Ince, 847 N.W.2d 13, 23 (Minn. 2014).

       To determine whether a person is highly likely to reoffend, a district court must

engage in a “multi-factor analysis.” Id. The multi-factor analysis includes consideration

of the following six factors, known as the Linehan factors:

              (a) the person’s relevant demographic characteristics (e.g.,
              age, education, etc.); (b) the person’s history of violent
              behavior (paying particular attention to recency, severity, and
              frequency of violent acts); (c) the base rate statistics for
              violent behavior among individuals of this person’s


                                             6
             background (e.g., data showing the rate at which rapists
             recidivate, the correlation between age and criminal sexual
             activity, etc.); (d) the sources of stress in the environment
             (cognitive and affective factors which indicate that the person
             may be predisposed to cope with stress in a violent or
             nonviolent manner); (e) the similarity of the present or future
             context to those contexts in which the person has used
             violence in the past; and (f) the person’s record with respect
             to sex therapy programs.

Id. at 22 (quoting In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994)). The multi-factor

analysis may include other relevant evidence and information, including the actuarial

assessment evidence used by the experts here. Id. at 24.

      Appellant challenges the district court’s finding regarding the likelihood of him

reoffending on the basis that the court and the experts “double counted” due to their

consideration of both the Linehan factors and actuarial measures. In Ince, the Minnesota

Supreme Court reaffirmed the applicability of the Linehan factors and made it clear that

district courts are required to consider those factors, despite the potential for “factor

repetition.” Id. The Ince court then reviewed the third element of the SDP criteria—

whether an individual is “likely to engage in acts of harmful sexual conduct.” Id. at 20-

21.

      The supreme court began its analysis by rejecting Ince’s argument that “likely”

means “substantially certain” and confirmed its previous interpretation of “likely” to

mean “highly likely.”     Id.   Ince further argued that an overreliance on actuarial

assessment tools permits “double counting” and thereby artificially inflates an offender’s

likelihood to reoffend. Id. at 22. After acknowledging the difficulties facing district

courts in determining whether an individual is highly likely to reoffend, the supreme


                                            7
court noted that the district court is in the best position to weigh each factor and evaluate

the credibility of the witnesses. Id. at 23-24. The supreme court did, however, caution

the district courts

               to be wary of the potential factor repetition that can result
               from considering the Linehan factors in addition to multiple
               actuarial assessments that use different approaches based on
               factors that are the same as or similar to the Linehan factors.
               We do not believe it is necessary to delineate here examples
               in which that repetition can occur. Rather, recognizing that
               the potential for duplication exists, we rely on the ability of
               district courts to weigh the evidence in each case, drawing the
               appropriate conclusions based on consideration of all the
               evidence.

Id. at 24.

       Here, the district court recognized the potential for duplication.        In its factual

findings, the district court cited to appellant’s charged offenses, his uncharged offenses,

his record of institutionalization and infractions, his lack of sex-offender treatment, his

chemical and alcohol dependency and treatment, his mental health evaluations, pertinent

parts of the experts’ testimony, and the experts’ references to double-counting concerns.

And appellant does not challenge the district court’s factual findings. The district court

concluded that there

               is clear and convincing evidence that, as a result of
               [appellant’s] past course of harmful sexual conduct, his
               mental and sexual disorders, and his lack of adequate control
               over his sexual impulses, it is highly likely that [appellant]
               will engage in further acts of harmful sexual conduct and is
               dangerous to others. . . . This is particularly true because of
               [appellant’s] high actuarial risk assessment scores, his
               psychopathy combined with sexual deviance, his long history
               of sexually harmful behavior, his lack of remorse, his
               dynamic risk factors, and his denial of any sexual offenses.


                                             8
The district court further found that neither expert “double counted” when considering

the Linehan factors. Thus, the district court properly considered the Linehan factors.

       Moreover, this court does not second-guess the weight and credibility the district

court gives to the evidence. In re Knops, 536 N.W.2d at 620. And the district court is

free to weigh both actuarial and non-actuarial evidence and draw conclusions from that

evidence as it sees fit. Id.; cf. In re Civil Commitment of Navratil, 799 N.W.2d 643, 649

(Minn. App. 2011), review denied (Minn. Aug. 24, 2011) (stating district courts do not

err by discounting risk assessment tools when good and valid reasons exist). Here, the

district court and both experts determined that the actuarial and non-actuarial evidence is

sufficient to support the determination that appellant is highly likely to offend, and the

district court did not abuse its discretion in relying on the unanimous expert opinions.

       Appellant also contends that because his predicted likelihood of reoffending over

the next ten years is only 48%, he does not satisfy the “highly likely” element of the SPD

statute. Appellant claims that, in order to satisfy this element, the supreme court “clearly

requires something significantly more than 50.1% to reoffend sexually.” The supreme

court in Ince clearly stated that it was not adopting a numeric value to satisfy the “highly

likely” element.    847 N.W.2d at 21-22.         And the Ince court reiterated that the

“dangerousness prediction” is “neither a purely clinical prediction nor simply a matter

for statisticians.” Id. at 23. Accordingly, clear and convincing evidence supports the

district court’s commitment of appellant as an SDP.




                                             9
                                            II.

      An SPP is defined as

              the existence in any person of such conditions of emotional
              instability, or impulsiveness of behavior, or lack of customary
              standards of good judgment, or failure to appreciate the
              consequences of personal acts, or a combination of any of
              these conditions, which render the person irresponsible for
              personal conduct with respect to sexual matters, if the person
              has evidenced, by a habitual course of misconduct in sexual
              matters, an utter lack of power to control the person’s sexual
              impulses and, as a result, is dangerous to other persons.

Minn. Stat. § 253D.02, subd. 15 (2014). Generally, when considering whether a person

has an utter lack of power to control his sexual impulses, the district court considers the

nature and frequency of the sexual assaults, the degree of violence involved, the

relationship between the offender and the victims, the offender’s attitude and mood, the

offender’s medical and family history, the results of psychological and psychiatric testing

and evaluation, and such other factors that bear on the predatory sex impulse and the lack

of power to control it. In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994).1

      Here, appellant contends that the evidence is insufficient to commit him as an SPP

because the evidence was insufficient to commit him as an SDP and the standard to

commit as an SDP is higher. Appellant cites no caselaw in support of his contention and,

as previously discussed, he satisfies the criteria for commitment as an SDP. Appellant’s


1
  The district court may also consider the person’s need for security, chemical
dependency issues, history of flight, and need for sex-offender treatment. See In re Pirkl,
531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995); In re
Irwin, 529 N.W.2d 366, 375 (Minn. App. 1995), review denied (Minn. May 16, 1995); In
re Bieganowski, 520 N.W.2d 525, 529-30 (Minn. App. 1994), review denied (Minn.
Oct. 27, 1994).

                                            10
only challenge under the SPP statute is whether the evidence is sufficient to support the

district court’s conclusion that appellant is dangerous to others because he has an “utter

lack of power” to control his sexual impulses.2 Appellant contends that there is no clear

and convincing evidence that he has “demonstrated an utter lack of power to control his

sexual impulses such that he is dangerous to others.” Appellant argues that he is able “to

turn on and off his antisocial or rule breaking behavior,” and this is evidence of his ability

to control his sexual impulses. Appellant relies on Dr. Thompson’s testimony regarding

appellant’s institutional infractions for support.

        During his testimony, Dr. Thompson noted that appellant has not committed any

institutional infractions since April 2013. Dr. Thompson believed that this hiatus was

due to appellant’s knowledge that his case may be forwarded for civil commitment.

Because of this, Dr. Thompson did state that appellant “has the ability to control his

behavior, he just chooses not to,” but he subsequently testified that he did not think

appellant’s ability to “to turn it off in prison is sufficient to be a sole measure of”

appellant’s ability to control his behavior. And Dr. Thompson’s report concluded that

appellant “possesses an utter lack of power to control his sexual impulses.” Dr. Kenning

testified that appellant has an utter lack of power to control his sexual impulses and based

this conclusion on the nature and frequency of appellant’s sexual assaults, despite the

imposition of sanctions. Thus, this testimony regarding appellant’s ability to control his

behavior while incarcerated does not support appellant’s contention that he has the ability

2
 Because appellant does not challenge any of the other SPP requirements, we will limit
our analysis to only whether appellant has an utter lack of power to control his sexual
impulses.

                                              11
to control his sexual impulses. Accordingly, clear and convincing evidence supports

appellant’s commitment as an SPP.

                                           III.

      Appellant argues that he received ineffective assistance of counsel because his

previous attorney failed to validate the accuracy of the record. Specifically, appellant

claims that he should only have two total convictions, instead of three, because the 1997

convictions were based on conduct involving the same victim.

      We apply the criminal standard for analyzing the effectiveness of counsel in civil

commitment cases. In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987), review

denied (Minn. Mar. 25, 1987). To have a valid ineffective-assistance-of-counsel claim,

appellant must show “that counsel’s representation fell below an objective standard of

reasonableness, and that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Reed v.

State, 793 N.W.2d 725, 733 (Minn. 2010).

      Here, assuming that the district court and experts did erroneously consider an extra

conviction, the consideration of the extra conviction would not have changed the court or

the experts’ conclusions. Even excluding the second conviction from the October 1997

crime, appellant has been convicted of six crimes arising from sexual assaults. There is

no specified number of convictions needed to satisfy the commitment criteria as an SDP

or an SPP. See In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App.

2002) (reiterating that SDP criteria may take into account convictions and other “conduct

amounting to harmful sexual conduct”), review denied (Minn. Sept. 17, 2002). And a


                                           12
district court may consider uncharged incidents of sexual conduct.        See In re Civil

Commitment of Williams, 735 N.W.2d 727, 731 (Minn. App. 2007) (“Incidents

establishing a course of harmful sexual conduct need not be recent and are not limited to

those that resulted in a criminal conviction.”), review denied (Minn. Sept. 26, 2007).

Moreover, the record contains ample evidentiary support of convicted and unconvicted

offenses. Accordingly, a successful challenge to the 1997 convictions by appellant’s

counsel would not have changed the outcome of the civil commitment proceeding.

                                           IV.

       Appellant also appears to challenge his commitment to MSOP for treatment on the

ground that it would not provide him with “fair and effective treatment.” Appellant

presents this argument in his statement of the issues, but he fails to develop the argument

in his brief. Moreover, issues concerning the adequacy of sex-offender treatment are

premature at the time or immediately after civil commitment. Navratil, 799 N.W.2d at

651; In re Civil Commitment of Travis, 767 N.W.2d 52, 58 (Minn. App. 2009).

       Affirmed.




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