                         This opinion will be unpublished and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
                                    A14-0795

                        In the Matter of the Civil Commitment of:
                                   Gordon Emil Miles.

                               Filed September 29, 2014
                                       Affirmed
                                  Cleary, Chief Judge

                              Mower County District Court
                               File No. 50-PR-13-1225


Daniel T. Donnelly, Donnelly Law Office, Austin, Minnesota (for appellant Gordon Emil
Miles)

Lori Swanson, Attorney General, Angela Helseth Kiese, Assistant Attorney General,
St. Paul, Minnesota; and

Kristen Nelsen, Mower County Attorney, Austin, Minnesota (for respondent Mower
County)


         Considered and decided by Cleary, Chief Judge; Worke, Judge; and Rodenberg,

Judge.

                        UNPUBLISHED OPINION

CLEARY, Chief Judge

         Appellant Gordon Emil Miles challenges his commitment as a sexual

psychopathic personality and a sexually dangerous person.         He disputes the district

court’s findings that he committed acts of sexual misconduct and the finding that he had
an utter lack of power to control his sexual impulses. He also challenges his commitment

to the Minnesota Sex Offender Program (MSOP), contending that it is not the least

restrictive alternative, and he argues that the program does not offer a realistic

opportunity for meaningful treatment. We affirm.

                                        FACTS

      On June 6, 2013, respondent Mower County filed a petition to commit appellant as

a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP) shortly

before his scheduled release from prison. The district court held a hearing at which

evidence concerning all the relevant factors for commitment as an SPP and SDP was

taken. The following summary relates primarily to the issues appellant raises in this

appeal.

      S., who was married to appellant in 1977, testified that appellant beat her and that

he sexually assaulted her by forcing objects into her vagina.       Appellant’s younger

daughter testified that she observed appellant sexually abuse S. with an object, and that

appellant sexually abused her and her older sister by forcing them to perform oral sex and

to fondle him. The sexual abuse of the younger daughter began prior to her fourth

birthday; the sexual abuse of the older daughter started prior to her ninth birthday.

Appellant’s older daughter testified as to one instance of appellant abusing her; she did

not recall any other incidents but explained that she may have blacked them out.

Appellant denied sexually assaulting S. or his daughters. The district court credited the

testimony by S. and appellant’s daughters.




                                             2
       Appellant’s former sister-in-law testified that in 1979, when she was seven

months’ pregnant, appellant and his friend went to her home and forced oral sex and

intercourse on her. She testified that she complied out of fear for her safety. Appellant

denied committing the offense, contending that he and his sister-in-law had a consensual

affair and that after he broke it off, she reported the sexual assault. Appellant was

charged with two counts of third-degree sexual conduct and the jury acquitted him. His

friend was convicted separately of one count of third-degree sexual conduct.              That

sentencing court described the sister-in-law’s testimony as convincing and, with respect

to appellant’s acquittal, stated that appellant’s attorney had indicated the basis for the not-

guilty verdict was that his sister-in-law had consented, not that the incident did not occur.

The district court at the commitment hearing credited the official record and testimony by

appellant’s sister-in-law and found appellant’s testimony was not credible.

       In March 1985, a homeowner reported that someone had drugged and sexually

assaulted her at a party that her roommates held at her home, although she did not

remember what happened. She had awoken the morning after the party, naked and

covered in her own blood and suffering from severe vaginal and abdominal pain and

cramps. Appellant acknowledged being at the party, but at all times denied committing

any offense and instead asserted that others had sexually assaulted her. Appellant was

convicted of second-degree assault; the use of drugs to facilitate a crime; and first-degree

criminal sexual assault. He was incarcerated until July 16, 1990, and his sentence

expired on January 15, 1993. The district court found the official records credible and

did not find appellant’s testimony credible.


                                               3
       About two months later, in March 1993, appellant approached a six-year-old girl

whose family resided in a trailer park owned by appellant and offered her candy. When

she refused, he threatened to kill her, dragged her behind a nearby trailer, taped her

mouth, and raped her. Her mother testified that she rushed her daughter to the hospital

because she was bleeding heavily from her vaginal area. Physicians discovered abrasions

and serious injuries in and around her vaginal area, requiring surgery at the Mayo Clinic.

Appellant was convicted of three counts of first-degree criminal sexual conduct and

sentenced to 30 years imprisonment. The convictions and sentence were upheld on

appeal. State v. Miles, No. C4-94-1436, 1995 WL 265065 (Minn. App. May 9, 1995),

review denied (Minn. June 29, 1995). At the commitment trial, appellant continued to

deny committing the offense. The district court credited the testimony by the girl’s

mother and the official record and did not find appellant’s testimony credible.

       Dr. James Gilbertson, the court-appointed examiner, and Dr. Rosemary

Linderman, the prepetition examiner respondent then hired as an expert, provided

testimony and other evidence. Dr. Gilbertson diagnosed appellant with sexual abuse of

an adult woman (anger/power/sadistic features rapist typology); sexual abuse of a child;

unspecified paraphilic disorder; and personality disorder, NOS, with antisocial and

borderline traits. Dr. Linderman diagnosed appellant with polysubstance abuse (currently

in remission in a controlled setting) and antisocial personality disorder. Both addressed

the statutory requirements and relevant case-law factors for commitment as SPP and

SDP. Dr. Linderman offered the opinion, in relevant part, that appellant has an utter lack

of power to control his sexual impulses, while Dr. Gilbertson opined it was arguable that


                                             4
appellant does lack such control, stating that some but not all case-law factors were

present. The court found the testimony of the two experts credible and persuasive,

concluding that appellant has an utter lack of power to control his sexual impulses within

the meaning of the SPP statute. The court also concluded that all of the other factors for

commitment as an SPP and SDP were met.

       On the topic of appellant’s future treatment, appellant testified that if not

committed, he planned to reside with relatives in the community, see a doctor and follow

the doctor’s recommendations, and attend AA meetings and find a sponsor, although he

did not feel the latter was necessary.        As to his reoffense prevention plan, he

acknowledged there would be a transition and a lot of adjustments. Upon questioning by

his attorney, he testified that he would participate in a “deniers” group in sex offender

treatment and would also participate in chemical dependency treatment to see what he

could learn.

       Both Dr. Gilbertson and Dr. Linderman offered the opinion that appellant needed

sex offender treatment in an intense and secure program, with MSOP being the only

appropriate placement. They determined that appellant was a danger to society, did not

have an effective relapse prevention plan, and is highly likely to reoffend if released. The

court found that because appellant is highly likely to reoffend sexually without intensive

sex offender treatment, it would be inappropriate to place him in the community. The

district court further found that Dr. Gilbertson’s and Dr. Linderman’s testimony was

credible and persuasive; that treatment in MSOP was an appropriate placement; and that




                                             5
no less restrictive alternatives existed that would meet appellant’s needs and the

requirements of public safety.

       The district court committed appellant as an SPP and an SDP to MSOP. This

appeal followed.



                                      DECISION

       In a petition for commitment as an SPP or SDP, the district court must find that

the standards for commitment are met by clear and convincing evidence. Minn. Stat.

§ 253D.07, subd. 3 (Supp. 2013). “We review the district court’s factual findings under a

clear error standard to determine whether they are supported by the record as a whole.”

In re Civil Commitment of Ince, 847 N.W.2d 13, 22 (Minn. 2014). “We give due

deference to the district court as the best judge of the credibility of witnesses.” In re Civil

Commitment of Crosby, 824 N.W.2d 351, 356 (Minn. App. 2013) (affirming commitment

as SPP and SDP), review denied (Minn. Mar. 27, 2013). When the findings of fact are

based “almost entirely on expert testimony, the district court’s evaluation of credibility is

particularly significant.” Id. (quotation omitted). Legal issues, including whether the

record contains clear and convincing evidence to support the district court’s conclusion

that the standards for commitment were met, are reviewed de novo. Id.

                                              I.

       Appellant asserts that he did not commit any of the acts of sexual misconduct that

the district court found he had committed. He argues that the district court accepted the




                                              6
opinions of the experts as conclusive without considering his testimony in which he

denied committing any of the offenses.

       Commitment as an SPP requires, in relevant part, that the person engaged in “a

habitual course of misconduct in sexual matters.” Minn. Stat. § 253D.02, subd. 15 (Supp.

2013). Commitment as an SDP requires that the person “has engaged in a course of

harmful sexual conduct.” Minn. Stat. § 253D.02, subd. 16 (Supp. 2013).

       The district court made extensive findings in support of its determination that

appellant committed the acts of sexual misconduct based on the record. The court cited

the testimony by witnesses, explaining explicitly why it found each witness’s testimony

credible, and it also relied on official records of appellant’s convictions. The court

considered and discredited appellant’s testimony that he did not commit any of the

offenses. We defer to the district court “as the best judge of the credibility of witnesses.”

Crosby, 824 N.W.2d at 356. We will not set aside the district court’s findings that

appellant committed the sexual offenses at issue because they are supported by clear and

convincing evidence in the record and are not clearly erroneous. See Ince, 847 N.W.2d at

22.

       As to the experts, Dr. Gilbertson and Dr. Linderman based their opinions solely on

appellant’s convictions and left it to the district court to determine whether the sexual

offenses that did not result in convictions had occurred. Both testified that their opinions

would be even stronger should the court find that appellant had committed the offenses

that did not result in convictions. There is no merit to appellant’s argument that the




                                             7
district court relied on the experts’ opinions to the exclusion of his own testimony in

concluding that he committed the sexual offenses in question.

       Appellant next contends that the district court specifically stated that he could not

argue his innocence. The district court’s actual statement to appellant’s counsel was:

“This Court is not in a position to find whether he is innocent of the convicted crime.

That’s what you want this Court to do, and I can’t do it.” The issue arose during

appellant’s testimony about his appellate and post-conviction challenges to his 1993

convictions for first-degree criminal sexual conduct for his offenses against the six-year-

old girl. The district court’s comments occurred after respondent objected to appellant

“relitigating” the matter. The district court sustained the objection on the ground that the

testimony was repetitious because appellant had previously given this testimony.

Evidentiary rulings on “the cumulative nature of the evidence are committed to the sound

discretion of the trial judge and will only be the basis for reversal where that discretion

has been clearly abused.” Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn.

1983). There is no showing that the district court abused its discretion in this ruling.

                                                  II.

       Next, appellant challenges the district court’s finding that he demonstrated an utter

inability to control his sexual impulses. Commitment as an SPP requires, in relevant part,

that “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. Appellant again contends that the




                                              8
district court accepted the opinions of the experts as conclusive without any consideration

of his testimony denying that he had committed sexual offenses.

       Under the commitment statute, the district court, not the expert, must determine

whether the statutory legal standards are met, although the assistance of experts may be

required. See In re Moll, 347 N.W.2d 67, 70 (Minn. App. 1984) (reviewing commitment

as mentally ill). Dr. Linderman offered the opinion that appellant has an utter lack of

power to control his sexual impulses. Dr. Gilbertson found it arguable that appellant has

an utter lack of power to control his sexual impulses because some case-law factors were

present and others were not. As to one of these factors, he noted that he considered only

the two victims whom appellant had been convicted of committing sexual offenses

against, but that if the court found the other sex offenses were proven, as it did, he would

consider the factor met.

       The experts—and the district court—exhaustively addressed the various factors

considered relevant in case law on this issue. See, e.g., In re Blodgett, 510 N.W.2d 910,

915 (Minn. 1994) (listing certain relevant factors). When the findings of fact are based

“almost entirely on expert testimony, the district court’s evaluation of credibility is

particularly significant.” Crosby, 824 N.W.2d at 356. There is no indication that the

district court abused its discretion in relying on the experts’ opinions as to utter lack of

control, and its determination that appellant is utterly unable to control his sexual

impulses was based on all of the evidence in the record, including appellant’s denial that

he committed any of the sexual offenses. The district court’s findings are supported by

clear and convincing evidence in the record.


                                               9
                                              III.

       Appellant also challenges his commitment to MSOP for treatment on the ground

that it would not provide him with a realistic opportunity for meaningful treatment. If the

court finds by clear and convincing evidence that a person is an SPP or SDP, “the 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 respondent under commitment, and is consistent with the person’s

treatment needs and the requirements of public safety.” Minn. Stat. § 253D.07, subd. 3.

“Thus, by statute, the burden of proving that a less restrictive alternative exists rests on”

the committed person. Ince, 847 N.W.2d at 25.

       Appellant did not propose a less restrictive treatment program that was willing to

accept him under commitment and that would be consistent with his treatment needs and

requirements of public safety.     Instead, he testified as to his plans if he were not

committed, in which case he planned to reside with relatives in the community, see a

doctor and follow the doctor’s recommendations, and attend AA and find a sponsor.

Upon questioning from his attorney, he testified that he would participate in a “deniers”

group in sex offender treatment and that he would attend chemical dependency treatment

to see what he could learn. This testimony does not meet the statutory requirements

outlined in section 253D.07, subdivision 3.

       Appellant also contends that the district court failed to make sufficient findings as

to less restrictive treatment options, noting only the testimony by Dr. Gilbertson and

Dr. Linderman that no less restrictive alternatives were available. The supreme court


                                              10
recently addressed the need for and the nature of findings of fact on the availability of a

less restrictive alternative in a commitment as an SDP. See Ince, 847 N.W.2d at 25. “A

constellation of competing concerns are posed by the choice between commitment to a

secure treatment facility or to a less restrictive treatment program,” in particular the

individual’s liberty interests and the state’s interest in public safety.    Id. (quotation

omitted).   Although there is no statutory definition for a less restrictive treatment

program, the supreme court held that the district court must consider “a proposed less

restrictive alternative in light of the objectives of commitment: the patient’s treatment

needs and the requirements of public safety.” Id. at 26 (emphasis added) (quotation

omitted). Appellant did not present evidence of a less restrictive alternative consistent

with his needs and the requirements of public safety to which he could be committed. In

light of the district court’s findings and appellant’s failure to meet his burden of

proposing commitment to a less restrictive alternative, appellant cannot prevail in this

argument.

      Appellant argues for the first time on appeal that his participation in the intensive-

supervised-release program of the department of corrections would provide adequate

safeguards. Because he did not provide this plan to the district court, he cannot raise it

for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); cf. Ince,

847 N.W.2d at 25 (remanding for findings on proposed less restrictive alternative, where

the committed person had provided evidence showing that his treatment needs could be

met with ongoing therapy, intensive supervision through the department of corrections,

and treatment in the outpatient community program).


                                            11
       Appellant argues that the district court erred in concluding respondent met its

burden of proving by clear and convincing evidence that commitment to MSOP would

provide appellant with a realistic opportunity for meaningful treatment, asserting that

those involved in his commitment admitted he will not succeed.             As both parties

acknowledge, “a person may not assert his right to treatment until he is actually deprived

of that treatment.” In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984) (rejecting

claim in SPP appeal), review denied (Minn. Sept. 12, 1984). “Generally, the right to

treatment issue is not reviewed on appeal from a commitment order.” In re Wicks, 364

N.W.2d 844, 847 (Minn. App. 1985), review denied (Minn. May 31, 1985).

       Appellant contends that his situation is distinguishable because Dr. Gilbertson

conceded that he would not be treated as long as he continues to maintain his innocence.

He cites testimony by Dr. Gilbertson that he would accept placement in less restrictive

treatment programs if he were not committed. Further, he argues that Dr. Gilbertson

would not have supported commitment if appellant were innocent of his crimes, as he

asserts.

       Appellant’s summary of Dr. Gilbertson’s testimony is incomplete. Dr. Gilbertson

testified that those who are committed to MSOP are asked to sign a treatment contract

requiring them to take certain responsibility for the acts committed, and that if appellant

refused to sign it, he would be required to “sit.” But Dr. Gilbertson also testified in that

event, he might be transferred to another unit to work on other matters and he would then

be asked “again and again” to sign the treatment contract. It would seem “somewhat




                                            12
incongruous that a sexual offender should be able to prove he is untreatable by refusing

treatment.” Blodgett, 510 N.W.2d at 916. Appellant’s claim fails.

       Finally, appellant contends that based on past precedent, he will never be released

from the program if committed there and that the MSOP program is a prison in the guise

of a treatment program. Similar challenges have been raised in a federal class-action

lawsuit and the federal court recently warned the Minnesota legislature that substantial

changes in the sex offender civil commitment scheme must occur or court intervention

would likely follow. Karsjens v. Jesson, No. 11-3659, 2014 WL 667971, at *28 (D.

Minn. Feb. 20, 2014). In any case, appellant did not raise the issue to the district court or

present evidence on it, so he may not raise this issue for the first time on appeal. See

Thiele, 425 N.W.2d at 582.

       Affirmed.




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