                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0951

                        In the Matter of the Civil Commitment of:
                        Stephen Danforth, a/k/a Stephen Rabideau

                                 Filed December 8, 2014
                                        Affirmed
                                      Hooten, Judge

                             Hennepin County District Court
                              File No. 27-MH-PR-13-1092

Roderick N. Hale, Minneapolis, Minnesota (for appellant)

Michael O. Freeman, Hennepin County Attorney, Theresa Couri, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

         Considered and decided by Hooten, Presiding Judge; Connolly, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         In this appeal from an order of civil commitment, appellant argues that the

commitment statute constitutes an unconstitutional            bill of   attainder and is

unconstitutional on other grounds under the United States Constitution and the Minnesota

Constitution. He further contends that the district court erred in admitting evidence of the

results of his risk assessment testing, a prior conviction, and his correspondence and
possession of certain print materials while in prison.        Because we conclude that

appellant’s arguments lack merit under federal and Minnesota precedent, we affirm.

                                         FACTS

       In October 2013, a petition was filed to commit appellant Stephen Danforth as a

person with a sexual psychopathic personality and a sexually dangerous person, as

defined in Minn. Stat. § 253D.02, subds. 15, 16 (Supp. 2013). At the time, Danforth was

serving a prison sentence stemming from a 1996 conviction of first-degree criminal

sexual conduct and was due for supervised release in April 2014.

       Before the commitment hearing, Danforth moved for the exclusion of evidence

regarding his clinical and actuarial risk assessment, his 1996 conviction, and his

correspondence and possession of certain print materials while he was in prison.

Danforth also moved to dismiss the petition on various constitutional grounds, alleging,

inter alia, that the commitment statute violated his substantive and procedural due process

rights and constituted an illegal bill of attainder. Prior to the commitment hearing, the

district court denied Danforth’s motion to exclude evidence, but deferred ruling on his

motion for dismissal of the petition on constitutional grounds.

       The commitment hearing was held on February 24–25, 2014, with court-appointed

psychologist, Dr. Paul Reitman, as the sole witness. Dr. Reitman testified that Danforth

has numerous convictions for the sexual abuse of young children stretching back to the

1970s and was currently serving a prison sentence for first-degree criminal sexual

conduct involving a six-year-old victim.      He further testified that, while in prison,

Danforth had made attempts to procure books with nudity, had been in contact with a


                                             2
media company that condoned pedophilia, and was found to be in possession of

photographs of young boys.       Based upon his psychological testing of Danforth, he

concluded that Danforth has a high risk of recidivism, especially in light of his repeated

refusals to participate in sex offender treatment during his incarceration. On cross-

examination, Danforth’s counsel challenged Dr. Reitman’s opinions regarding Danforth’s

risk of recidivism as determined by his risk assessment testing, asserting that Danforth’s

advanced age of 59 years and stale conviction history from more than a decade earlier did

not support Dr. Reitman’s assessment. Dr. Reitman countered that Danforth’s continued

preoccupation with the nudity of young boys, as demonstrated by his correspondence

seeking books and periodicals with nude boys while in prison, indicated that he was still

at a high risk of recidivism, notwithstanding his age and the fact that his convictions were

committed more than a decade earlier.

       After the commitment hearing, the district court denied Danforth’s motion to

dismiss the commitment petition on constitutional grounds. Based on Dr. Reitman’s

testimony and the exhibits in evidence, the district court found by clear and convincing

evidence that Danforth satisfied the requirements for commitment as a person with a

sexual psychopathic personality under Minn. Stat. § 253D.02, subd. 15, and as a sexually

dangerous person under Minn. Stat. § 253D.02, subd. 16. Danforth appeals from the

commitment order.

                                     DECISION

       To commit someone as a person with a sexual psychopathic personality, the

district court must find: (1) a habitual course of misconduct involving sexual matters; (2)


                                             3
an utter lack of power to control sexual impulses; and (3) dangerousness to others. Minn.

Stat. § 253D.02, subd. 15; In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).

An individual may be committed as a sexually dangerous person if the person: (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.         After a petition for

commitment is filed, the district court holds a hearing at which a court-appointed

examiner testifies, other witnesses can be called and cross-examined, and the district

court receives any relevant documentary evidence. Minn. Stat. §§ 253D.07, subd. 2

(Supp. 2013), 253B.08 (2012 & Supp. 2013). The district court will commit a person to

the secure confinement of the Minnesota Sex Offender Program (MSOP) if it finds clear

and convincing evidence that the person has a sexual psychopathic personality or is a

sexually dangerous person, unless that person establishes his or her suitability for a less-

restrictive treatment program. Minn. Stat. § 253D.07, subd. 3 (Supp. 2013); see also In

re Civil Commitment of Ince, 847 N.W.2d 13, 25–26 (Minn. 2014).

                                             I.

         Danforth brings a number of constitutional challenges to the commitment statute.

We review the constitutionality of a statute de novo. Rew v. Bergstrom, 845 N.W.2d 764,

776 (Minn. 2014). “Minnesota statutes are presumed constitutional and . . . our power to

declare a statute unconstitutional must be exercised with extreme caution and only when

absolutely necessary.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.

1999).     We will uphold a statute unless the challenger can demonstrate beyond a


                                             4
reasonable doubt that the statue is unconstitutional. SooHoo v. Johnson, 731 N.W.2d

815, 821 (Minn. 2007).

                                             A.

       Danforth claims that the commitment statute is a bill of attainder in violation of

state and federal constitutional law because it inflicts punishment upon a group of

individuals identified by virtue of their past conduct.

       A bill of attainder is “a law that legislatively determines guilt and inflicts

punishment upon an identifiable individual without provision of the protections of a

judicial trial.” Council of Indep. Tobacco Mfrs. of Am. v. State, 685 N.W.2d 467, 474

(Minn. App. 2004), aff’d, 713 N.W.2d 200 (Minn. 2006).              Bills of attainder are

unconstitutional under the United States and Minnesota constitutions. U.S. Const. art. I,

§ 10; Minn. Const. art. I, § 11. Before a statute may be declared unconstitutional as a bill

of attainder, it must be shown that (1) the statute singles out or specifies an identifiable

individual or group; (2) the purpose of the statute is punishment; and (3) there is no

judicial trial necessary for the application of the statute. Council of Indep. Tobacco

Mfrs., 685 N.W.2d at 474 (citing Selective Serv. Sys. v. Minn. Pub. Interest Research

Grp., 468 U.S. 841, 847, 104 S. Ct. 3348, 3352 (1984)).

       First, Danforth has failed to show that the civil commitment statute singles out or

specifies an identifiable individual or group of people. In order to constitute a bill of

attainder, the law must designate individuals “by name or described in terms of conduct

which, because it is past conduct, operates only as a designation of particular persons.”

Selective Serv. Sys., 468 U.S. at 847, 104 S. Ct. at 3352 (quotation omitted). In other


                                              5
words, “[a] legislative prohibition is not a bill of attainder if it can be avoided by simply

not engaging in the affected conduct.” Council of Indep. Tobacco Mfrs., 685 N.W.2d at

475.

       Danforth argues that the commitment statute improperly designates him for

commitment based upon his past convictions of criminal sexual conduct and that he is

therefore unable to avoid application of the statute. But while the definitions of “sexual

psychopathic personality” and “sexually dangerous person” in the statute are based in

part upon a person’s past misconduct, more than just past conduct is required before a

person can be found to satisfy these definitions.          The statute also requires the

commitment court to find future dangerousness, coupled with additional factors, and is

intended to “‘limit involuntary civil confinement to those who suffer from a volitional

impairment rendering them dangerous beyond their control.’” Ince, 847 N.W.2d at 23

(quoting In re Linehan (Linehan IV), 594 N.W.2d 867, 873 (Minn. 1999)). A district

court is required to evaluate an offender’s present circumstances and condition in

assessing future dangerousness. See Linehan IV, 594 N.W.2d at 876 n.4 (providing that

civil commitment requires proof that a person “suffers from a current disorder or

dysfunction”).    Because the statute requires proof of a current condition and an

assessment of future dangerousness, not all sexual offenders or persons with a history of

sexual misconduct may be civilly committed under the statute.

       Second, Danforth has failed to show that civil commitment as a person with a

sexual psychopathic personality or as a sexually dangerous person constitutes

“punishment.” The Supreme Court has defined “forbidden punishment” in terms of three


                                             6
questions: “(1) whether the challenged statute falls within the historical meaning of

legislative punishment; (2) whether the statute, viewed in terms of the type and severity

of burdens imposed, reasonably can be said to further nonpunitive legislative purposes;

and (3) whether the legislative record evinces a [legislative] intent to punish.” Selective

Serv. Sys., 468 U.S. at 853, 104 S. Ct. at 3355 (quotation omitted); see also Council of

Indep. Tobacco Mfrs., 685 N.W.2d at 474–75. Danforth argues that the commitment

statute is punishment under all three tests: it constitutes historical punishment, it does not

act to further nonpunitive purposes, and the legislative intent behind its passage was for

“unlimited, indefinite, and probably lifetime-duration preventive detention” for sex

offenders.

       Minnesota courts have consistently held that civil commitment of sex offenders

has dual nonpunitive purposes: “(1) protection of the public, and (2) rehabilitation of the

patient.” In re Civil Commitment of Lonergan, 811 N.W.2d 635, 642 (Minn. 2012).

“These state interests are ‘compelling’ . . . [and] are directly served through the civil

commitment statute because . . . the determination as a ‘sexually dangerous person’

specifically requires findings that the person is likely to reoffend and harm the public.”

Id. (quotations omitted).    Numerous Minnesota decisions have established that the

commitment program is remedial, not punitive, in the context of other constitutional

doctrines. See, e.g., Linehan IV, 594 N.W.2d at 872–76 (concluding that commitment

under the statute requires a finding of volitional impairment and is therefore sufficiently

narrowly tailored to satisfy substantive due process standards); In re Linehan (Linehan

III), 557 N.W.2d 171, 187–88 (Minn. 1996) (finding a prior version of the commitment


                                              7
statute remedial in the context of an ex post facto law challenge); Call v. Gomez, 535

N.W.2d 312, 319–20 (Minn. 1995) (holding that a prior version of the statute was not

punitive as was required to sustain a double jeopardy challenge). Danforth’s arguments

are unpersuasive as to how we should distinguish this case law or how “punishment” is

defined more broadly in the context of attainder.

       Finally, Danforth has failed to show that the commitment statute lacks a judicial

trial. Federal and state case law make clear that the lack of a judicial trial is an element

of a bill of attainder. See Selective Serv. Sys., 468 U.S. at 846–47, 104 S. Ct. at 3352;

Council of Indep. Tobacco Mfrs., 685 N.W. at 474. The bill-of-attainder doctrine is

“grounded in the separation of powers doctrine,” and the usurpation by the legislature of

the judicial role in making determinations of guilt and punishment is the primary concern

of the proscription against bills of attainder. Council of Indep. Tobacco Mfrs., 685

N.W.2d at 474.

       Danforth asserts that the absence of judicial trial is a “pseudo-element” of the

attainder doctrine, and that the judicial procedure underlying civil commitment is

inadequate to save the commitment statute from designation as a bill of attainder.

Danforth cites United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707 (1965), for the

proposition that a jury trial does not inoculate a law from being struck down as a bill of

attainder.   But unlike the law at issue in Brown, where the jury merely needed to

determine that the defendant was a member of the Communist Party to find criminal

guilt, id. at 440, 85 S. Ct. at 1710, the judicial process under the commitment statute

requires reasoned findings by the district court after a trial.


                                               8
       Under the commitment statute, there are significant judicial procedures and

protections in place that delineate how an individual is civilly committed. E.g., Minn.

Stat. §§ 253B.07 (2012 & Supp. 2013) (providing for prepetition screening, petition

requirements, right to counsel, right to second examiner of patient’s choosing, and a

preliminary hearing), .08 (setting out hearing procedure, including right to attend or be

absent, and right to call and cross-examine witnesses). The judiciary, not the legislature,

is ultimately responsible for determining whether to commit an offender. Minn. Stat.

§ 253D.07, subd. 3. In light of the judicial process required by the commitment statute,

Danforth has failed to show any usurpation of the judicial role by the legislature.

       Because Danforth is not able to show beyond a reasonable doubt that the

commitment statute meets any of the three required elements, the statute is not

unconstitutional as a bill of attainder under the United States or Minnesota Constitutions.

                                             B.

       Danforth argues that his civil commitment is an unconstitutional deprivation of his

substantive due process rights under the Fourteenth Amendment.            “[F]reedom from

physical restraint ‘has always been at the core of the liberty protected by the Due Process

Clause from arbitrary governmental action.’” Kansas v. Hendricks, 521 U.S. 346, 356,

117 S. Ct. 2072, 2079 (1997) (quoting Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct.

1780, 1785 (1992)). “Due process requires that the nature of commitment bear some

reasonable relation to the purpose for which the individual is committed.” Foucha, 504

U.S. at 79, 112 S. Ct. at 1785. “Whether a confinement scheme is punitive has been the

threshold question for some constitutional challenges,” including due process challenges.


                                             9
Seling v. Young, 531 U.S. 250, 266, 121 S. Ct. 727, 737 (2001) (citing, inter alia, United

States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095 (1987), which upheld the use of pretrial

detention against a due process challenge). In order to satisfy substantive due process, a

civil-commitment statute must “couple[] proof of dangerousness with the proof of some

additional factor,” in order to “limit involuntary civil confinement to those who suffer

from a volitional impairment rendering them dangerous beyond their control.”

Hendricks, 521 U.S. at 358, 117 S. Ct. at 2080.

      Danforth first argues that the Minnesota commitment statute violates substantive

due process “as applied” because it is punitive in nature and “supersedes the primacy of

criminal law in Minnesota.” But Danforth, who has not or has only recently entered

treatment under the MSOP, is appealing from his initial civil-commitment order. Beyond

conclusory statements that commitment is “preventive detention” and “incapacitation,”

he fails to present any specific facts of his pending commitment or treatment or any other

aspects of the law that support his “as-applied” challenge. Moreover, to the extent that

Danforth is challenging his future treatment in the MSOP without actually having

received treatment yet, his claim is not ripe. See In re Civil Commitment of Travis, 767

N.W.2d 52, 58 (Minn. App. 2009).

      As previously noted, case law has established that the purposes of the commitment

statute are treatment and protection of the public, not punishment. E.g., Lonergan, 811

N.W.2d at 642; Linehan III, 557 N.W.2d at 187–88; Call, 535 N.W.2d at 319–20; see

also Hendricks, 521 U.S. at 361–63, 117 S. Ct. at 2081–83. Moreover, our supreme court

has upheld the commitment statute against a substantive due process challenge by


                                           10
holding that the statute is sufficiently narrowly tailored to satisfy substantive due process.

Linehan IV, 594 N.W.2d at 872–76; see also In re Blodgett, 510 N.W.2d 910, 916 (Minn.

1994). By failing to distinguish his constitutional claims from the holdings in those

decisions, Danforth’s argument is unpersuasive.

       Danforth also contends that the district court’s reliance on risk assessment

evidence violates substantive due process, claiming that such clinical and actuarial testing

does not reliably predict future behavior. However, the use of such evidence at civil

commitment proceedings has been deemed “relevant” when determining whether

commitment is needed. Ince, 847 N.W.2d at 24. District courts are required to evaluate

several factors in assessing future dangerousness, including the person’s history with sex

therapy programs as well as demographic statistics and “base rate statistics for violent

behavior among individuals of the person’s background.” Linehan I, 518 N.W.2d at 614.

“[T]he need for a multi-factor analysis lies in the very purpose for civil commitment,”

and clinical and actuarial risk assessments are a necessary part of a district court’s

“thorough consideration of all relevant evidence” in determining whether to commit a

person. Ince, 847 N.W.2d at 23–24. The supreme court has instructed district courts to

carefully weigh such evidence, in combination with the Linehan factors, in order to draw

appropriate conclusions under the commitment statute. Id. at 24. While he challenges

risk assessment evidence’s predictive power, Danforth has not shown how a district

court’s consideration of this evidence violates substantive due process rights. To the

extent that this court and district courts alike are bound by supreme court precedent, it

appears that Danforth’s arguments to the contrary must fail.


                                             11
                                             C.

       Danforth claims that United States Supreme Court precedent requires the “full

panoply” of procedural due process rights to be provided at civil commitment

proceedings, and alternatively argues that traditional criminal due process protections are

needed because the commitment process is punitive in nature. Danforth largely relies on

Specht v. Patterson, in which the Court held that due process required that Colorado’s

commitment procedure provide various rights to those who would be committed,

including the right to counsel, the right to present witnesses, the right to testify on their

own behalf, the right to cross-examination, and the right to offer evidence. 386 U.S. 605,

610, 87 S. Ct. 1209, 1212 (1967). However, as was explicitly found by the Court in that

case, the previous version of the commitment statute in Minnesota satisfactorily provided

those rights. Id. at 610–11, 87 S. Ct. at 1212–13 (concluding that “[this] case is therefore

quite unlike the Minnesota statute” which provided “procedural safeguards” that were

absent from the Colorado civil commitment statute). The current statute continues to

provide those rights. See Minn. Stat. §§ 253B.07, .08 (stating the various rights available

during the commitment process).

       Each protection that Danforth claims is required by Specht has later been held to

not be required at civil commitment proceedings: the Confrontation Clause does not

apply, In re Irwin, 529 N.W.2d 366, 373 (Minn. App. 1995), proof beyond a reasonable

doubt is not required, Addington v. Texas, 441 U.S. 418, 430–31, 99 S. Ct. 1804, 1811–

12 (1979), and there is no privilege against self-incrimination, Allen v. Illinois, 478 U.S.

364, 374, 106 S. Ct. 2988, 2994–95 (1986). Further, Minnesota case law has firmly


                                             12
established that commitment laws are civil in nature, and courts have refused to apply

criminal procedural standards to civil commitments. See, e.g., In re Commitment of

Rannow, 749 N.W.2d 393, 396–97 (Minn. App. 2008) (applying civil, and not criminal,

procedural requirements to stipulation); Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn.

App. 1999) (providing that the Minnesota Supreme Court has rejected claims that jury

trials are required for commitment proceedings), review denied (Minn. July 28, 1999). In

light of this precedent, Danforth’s procedural due process arguments are unavailing.

                                           D.

      Danforth argues that the district court’s reliance on his 1996 conviction of first-

degree criminal sexual conduct is a violation of his right of confrontation under Crawford

v. Washington, which provided that defendants must be allowed to cross-examine

testimonial witnesses pursuant to the Sixth Amendment’s Confrontation Clause. 541

U.S. 36, 68–69, 124 S. Ct. 1354, 1374 (2004). At Danforth’s 1996 trial, a videotaped

interview with the victim was admitted as evidence because the victim was found

incompetent to testify. Danforth v. State, 761 N.W.2d 493, 495 (Minn. 2009). Danforth

first challenged the conviction on Crawford grounds in a postconviction petition, and our

supreme court denied him relief. Danforth v. State, 718 N.W.2d 451, 454–55 (Minn.

2006). After review and remand by the United States Supreme Court, the Minnesota

Supreme Court ultimately held that Crawford did not apply retroactively to past

convictions and affirmed the denial of Danforth’s postconviction petition. Danforth, 761

N.W.2d at 499–500; see Danforth v. Minnesota, 552 U.S. 264, 288–91, 128 S. Ct. 1029,




                                           13
1045–47 (2008); see also Danforth v. Crist, 624 F.3d 915 (8th Cir. 2010) (denying

Danforth’s petition for federal habeas relief).

       Danforth is now challenging the use of his conviction as evidence in this case. But

he provides no support for his argument beyond a brief assertion that “the current use of

the conviction in this case is a present violation of Crawford.” This court will not

consider “[a]n assignment of error based on mere assertion and not supported by any

argument or authorities,” unless “prejudicial error is obvious on mere inspection.” State

v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted).

No such error is obvious upon inspection. Aside from his argument’s lack of support,

this court follows “the underlying principle that an adjudication on the merits of an issue

is conclusive, and should not be relitigated.” Loo v. Loo, 520 N.W.2d 740, 744 (Minn.

1994). Insofar as Danforth is attempting to challenge his 1996 conviction once more, the

Minnesota Supreme Court’s denial of Danforth’s Crawford claim is final.

                                             II.

       Danforth next challenges the district court’s decision to admit certain evidence at

his hearing. He first argues that the district court erred in considering Dr. Reitman’s

testimony regarding documents he had sent and received while incarcerated, alleging that

this evidence was irrelevant and that its use at the hearing violated his First Amendment

and Minnesota constitutional rights. Generally, “[t]he admission of evidence rests within

the broad discretion of the [district] court and its ruling will not be disturbed unless it is

based on an erroneous view of the law or constitutes an abuse of discretion.” Kroning v.

State Farm Auto. Ins. Co., 567 N.W.2d 42, 45−46 (Minn. 1997) (quotation omitted).


                                             14
Under the special rules applicable to civil commitment proceedings, district courts “may

admit all relevant, reliable evidence . . . without requiring foundation witnesses.” Minn.

Spec. R. Commit. & Treat. Act 15. The commitment statute provides that the district

court “shall admit all relevant evidence at the hearing” and “make its determination upon

the entire record pursuant to the Rules of Evidence.” Minn. Stat. § 253B.08, subd. 7; see

also Minn. Spec. R. Commit. & Treat. Act 23(e). “Relevant evidence” is “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Minn. R. Evid. 401.

       Danforth claims that these documents and photographs had no probative value “on

the probability of any molestation” and were irrelevant, and therefore should not have

been admitted. Dr. Reitman testified at the hearing that Danforth had requested several

books about nudity, urology, pediatrics, circumcision, and catheterization from a book

seller, and that Danforth had several photographs of shirtless young boys in his prison

cell. Danforth had also been in correspondence with an agency that, in Dr. Reitman’s

opinion, condoned pedophilia.       Dr. Reitman concluded that these materials, in

combination with other factors, led him to believe that Danforth was “actively seeking

pornography,” is aroused by children, and continues to believe that his actions are normal

and healthy. The district court relied on these documents in making its commitment

findings.   The district court was tasked with determining whether Danforth has an

inability to adequately control his sexual impulses, Minn. Stat. § 253D.02, subd. 15, and

this evidence had a tendency to make that fact more probable, according to the testimony


                                           15
of Dr. Reitman. While Danforth may disagree with Dr. Reitman’s conclusions, he fails to

rebut the presumption of admissibility and show that the district court abused its

discretion in considering the evidence.

       Danforth also asserts that the use of this evidence at the hearing violated his

federal and state free-speech rights. Danforth cites cases that provide the contours of

prison officials’ ability to censor prisoner mail. See, e.g., Thornburgh v. Abbott, 490 U.S.

401, 109 S. Ct. 1874 (1989); Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800 (1974).

The issue at hand, however, is not whether Danforth can have these materials at the

prison, but whether they are admissible at the commitment hearing. In the criminal

context, “[t]he First Amendment does not prohibit the evidentiary use of speech to

establish the elements of a crime or to prove motive.” In re Welfare of S.M.J., 556

N.W.2d 4, 6 (Minn. App. 1996). Here, the district court relied on this evidence in

determining whether Danforth met the required elements for civil commitment as a

person with a sexual psychopathic personality and as a sexually dangerous person.

Danforth has provided no legal authority stating that a district court violates the First

Amendment in doing so, as the “chilling effect” cases he cites are inapposite here. Cf.

Thomas v. Collins, 323 U.S. 516, 539–540, 65 S. Ct. 315, 327 (1945) (analyzing

requirement that speaker register before making lawful speech). Absent a showing that

the evidence was irrelevant or unreliable, S.M.J., 556 N.W.2d at 6, Danforth’s free-

speech challenge is meritless.




                                            16
                                              III.

       Danforth challenges the district court’s decision to deny his motion to exclude

actuarial and clinical risk assessment evidence, arguing that this evidence lacked

adequate reliability. The admissibility of scientific evidence is governed by the two-

pronged Frye-Mack standard. State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002).

This court uses separate standards of review for each prong of the Frye-Mack test. Goeb

v. Tharaldson, 615 N.W.2d 800, 815 (Minn. 2000). The first prong of Frye-Mack is

whether the offered evidence is “generally accepted in the relevant scientific

community,” a question of law we review de novo. Id. at 814–15. The second prong is

whether the evidence has “foundational reliability”—that is, whether the offering party

has “establish[ed] that the test itself is reliable and that its administration in the particular

instance conformed to the procedure necessary to ensure reliability.”               Id. at 814

(quotation omitted). We review foundational reliability under an abuse of discretion

standard. Id. at 815.

       As a matter of law, the clinical and actuarial risk assessments that Danforth

challenges are generally accepted by the Minnesota psychology community. The district

court is required to utilize risk assessment evidence under the Linehan factors used to

evaluate dangerousness, in order to determine “whether a person is highly likely to

engage in future harmful sexual conduct.” Ince, 847 N.W.2d at 24; see also Linehan I,

518 N.W.2d at 614. Dr. Reitman testified that each test he relied upon in making his

prognosis is generally accepted and used among psychologists in Minnesota. The only




                                               17
test directly challenged at the hearing as lacking general acceptance, the SVR-FV, was

eliminated by Dr. Reitman from his analysis and was not relied upon by the district court.

       Danforth has failed to show that the district court abused its discretion in admitting

the results of the risk assessments. Dr. Reitman testified that each of the tests he relied

upon has a high level of validity in predicting recidivism. He explained how the tests

were applied to Danforth and his interpretation of their results. Danforth’s counsel

pointed out several potential flaws in Dr. Reitman’s analysis on cross-examination,

including the doctor’s refusal to lower Danforth’s recidivism risk due to his age and his

implementation of Danforth’s criminal history in the tests. Dr. Reitman defended his

analysis against these claims, and the district court was free to exercise its discretion in

weighing the reliability and relevance of the risk assessment evidence. Therefore, the

district court’s decision to credit Dr. Reitman’s testimony and find that the risk

assessment test results had foundational reliability was not an abuse of discretion.

       Affirmed.




                                             18
