                         This opinion will be unpublished and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
                                    A14-0635

          In the Matter of the Civil Commitment of: Kenneth Melvin Shue, Jr.

                               Filed September 29, 2014
                                       Affirmed
                                   Schellhas, Judge

                             Nobles County District Court
                               File No. 53-PR-13-490

Robert L. Gjorvad, Runchey, Louwagie & Wellman, P.L.L.P., Marshall, Minnesota (for
appellant Kenneth Melvin Shue, Jr.)

Lori Swanson, Attorney General, John D. Gross, Assistant Attorney General, St. Paul,
Minnesota; and

Kathleen Kusz, Nobles County Attorney, Worthington, Minnesota (for respondent
Nobles County)

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

Klaphake, Judge.*

                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant challenges his indeterminate commitment as a sexual psychopathic

personality and a sexually dangerous person, raising evidentiary issues and arguing that

the evidence is insufficient to support his commitment. We affirm.


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

       Respondent Nobles County petitioned to commit appellant Kenneth Shue, Jr. as a

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

Shue’s examination, the district court appointed Drs. Penny Zwecker and Robert Riedel,

the latter at Shue’s request. The county retained Dr. James Gilbertson as an expert

examiner. At trial, Drs. Zwecker, Riedel, and Gilbertson testified, as did Shue’s intensive

supervised release (ISR) agent, Brett Serreyn; Shue’s friend, Larry Lupkes; and two of

Shue’s victims, J.B. and A.P. Shue did not waive his marital privilege, thereby preventing

the county from calling his wife, C.S., to testify. After the trial concluded but before the

district court ruled, the county moved to reopen the record based on Shue’s posttrial

behavior. The district court granted the motion and subsequently also granted the

county’s motion to excuse Shue from the hearing because of his violent behavior.

       At the hearing to reopen the record, the district court received additional

documentary evidence and subsequently concluded that Shue met the criteria for

commitment as an SDP and SPP and indeterminately committed him to the Minnesota

Sex Offender Program (MSOP).

       This appeal follows.

                                     DECISION

Evidentiary Issues

       Minnesota’s commitment act provides that “[t]he court shall admit all relevant

evidence at the hearing” and “shall make its determination upon the entire record

pursuant to the Rules of Evidence.” Minn. Stat. § 253B.08, subd. 7 (2012). In civil


                                             2
commitment proceedings, a set of special rules supersedes any other rules which conflict

with the special rules. Minn. Spec. R. Commit. & Treat. Act 1(a), (b). With respect to

evidence, “[t]he court may admit all relevant, reliable evidence, including but not limited

to the respondent’s medical records, without requiring foundation witnesses.” Id. at 15.

       Shue’s Marital Privilege

       As explained below, Shue argues that the district court violated his marital

privilege by relying on information from C.S.’s statements and past testimony in its

commitment order. “The availability of a privilege established under statutory or

common law is an evidentiary ruling to be determined by the [district] court and reviewed

based on an abuse of discretion standard.” State v. Gianakos, 644 N.W.2d 409, 415

(Minn. 2002). “The determination whether a particular testimonial privilege or exception

exists, however, is a question of law [that an appellate] court reviews de novo.” Id.

       The marital-privilege statute provides:

                    A husband cannot be examined for or against his wife
              without her consent, nor a wife for or against her husband
              without his consent, nor can either, during the marriage or
              afterwards, without the consent of the other, be examined as
              to any communication made by one to the other during the
              marriage.

Minn. Stat. § 595.02, subd. 1(a) (Supp. 2013).

                     The statute has two distinct privileges: (1) the privilege
              to prevent one spouse from testifying against the other during
              their marriage (the marital testimony privilege); and (2) the
              privilege to prevent one spouse from testifying at any time,
              during the marriage or after, concerning confidential
              interspousal communications during the marriage (the marital
              communications privilege).



                                             3
State v. Zais, 805 N.W.2d 32, 37 n.1 (Minn. 2011) (quotations omitted).

      Shue invoked his marital privilege before the commencement of trial, objecting to

C.S.’s testimony at trial and the admission of C.S.’s statements and testimony about three

past incidents involving Shue, as contained in exhibits 6 and 9. The district court

precluded the county from calling C.S. as a witness but received exhibits 6 and 9, subject

to Shue’s objection. The court did not rule on Shue’s objection at that time.1 And, after

trial, without expressly ruling on Shue’s objection, the court relied on information from

exhibits 6 and 9 in its commitment order.

      In paragraph 45 of the commitment order, the district court mentioned information

from C.S.’s prior testimony and her police interviews in connection with Shue’s criminal

proceeding that involved J.P. In the criminal proceeding that involved J.P., Shue did not

assert his marital privilege to prevent C.S. from testifying. In paragraph 76 of the order,

the court mentioned information from C.S.’s prior testimony and her police interviews in

connection with Shue’s criminal proceeding that involved L.J. In the criminal proceeding

that involved L.J., Shue did not assert his marital privilege to prevent C.S. from

testifying. In paragraphs 183 and 184 of the order, the court mentioned information from

police interviews with C.S. in connection with an uncharged incident involving Shue and

Y.G.G.


1
  The transcript reflects that Shue’s attorney stated that he would submit a memorandum
at the end of the case to address Shue’s marital-privilege objection. The district court
noted that it would make a ruling on whether it would consider the objected-to exhibits
“following the filing of memorandum by counsel but [would] not consider those items
until such time as a ruling has been issued.” The parties did submit memoranda on this
issue following trial.

                                            4
       Regarding the admission of C.S.’s past testimony at Shue’s commitment trial,

Shue waived his marital privilege by failing to assert his marital privilege or object to

C.S.’s testimony in the prior trials. See State v. Clark, 296 N.W.2d 372, 376 (Minn. 1980)

(“Since the defendant waived the privilege in the prior proceeding by failing to object,

and the information was made public, there remains no ‘confidence’ to protect no[r]

purpose to serve by exclusion of the same evidence in the current proceeding.”). C.S.’s

police-interview statements were not testimony and did not reveal confidential

interspousal communications and therefore are outside of the scope of the marital

privilege. See State v. Schifsky, 243 Minn. 533, 539–40, 69 N.W.2d 89, 93–94 (1955)

(holding that admission of testimony by officers concerning wife’s statements to them did

not violate section 595.02). We conclude that the district court did not abuse its discretion

by relying on C.S.’s past testimony and statements contained in exhibits 6 and 9, thereby

implicitly overruling Shue’s objection.

       Reopening the Trial Record

       Shue argues that the district court erred by reopening the trial record under Minn.

R. Civ. P. 59.01, which provides that “[a] new trial may be granted to all or any of the

parties and on all or part of the issues for any of the following causes: . . . (d) [m]aterial

evidence newly discovered, which with reasonable diligence could not have been found

and produced at the trial.” He maintains that the county’s rule 59.01(d) motion was

premature because the court had not yet filed its February 24, 2014 commitment order.

We disagree. Rule 59.01 contemplates prejudgment use—“the court may open the

judgment if one has been entered.” Minn. R. Civ. P. 59.01 (emphasis added).


                                              5
       We review for abuse of discretion a district court’s decision to reopen the record

before a judgment is entered. Cf. Johnson v. Lorraine Park Apts., Inc., 268 Minn. 273,

277, 128 N.W.2d 758, 761 (1964) (stating in a case involving a denial of a prejudgment

reopening of the record that “the trial court has broad discretion in determining whether

new evidence justifies a new trial”). We conclude that the district court did not abuse its

discretion by reopening the record before issuing its commitment order.

Shue’s Commitment as SDP and SPP

       Shue argues that the county failed to prove by clear and convincing evidence that

he meets the criteria for commitment as an SDP or an SPP. Clear and convincing

evidence is “more than a preponderance of the evidence but less than proof beyond a

reasonable doubt” and “will be shown where the truth of the facts asserted is ‘highly

probable.’” Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). The clear-and-

convincing-evidence standard is “a relatively high burden of persuasion.” In re Civil

Commitment of Ince, 847 N.W.2d 13, 20 (Minn. 2014). Whether a person meets the

statutory criteria for commitment based on clear and convincing evidence is a question of

law that we review de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994). We

review findings of fact for clear error, Minn. R. Civ. P. 52.01, in the light most favorable

to the district court’s decision, In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). “[T]the

trier of fact is in the best position to determine credibility . . . .” Ince, 847 N.W.2d at 24

(quotation omitted).2


2
 We note that the district court issued its commitment order in this case on February 24,
2014, without the benefit of Ince.

                                              6
       SDP

       To commit someone as an SDP, “the district court must find by clear and

convincing evidence that 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.” Id. at 20 (citing

Minn. Stat. §§ 253B.02, subd. 18c(a), .18, subd. 1, .185, subd. 1 (2012)).3 A finding that a

person is “likely” to engage in acts of harmful sexual conduct “require[s] clear and

convincing evidence that the person is ‘highly likely’ to engage in acts of harmful sexual

conduct.” Id. at 22. ‘“[H]ighly likely’ cannot be defined by a numeric value.” Id. at 21.

       As in Ince, Shue contests only whether he is highly likely to engage in acts of

harmful sexual conduct. See id. at 19 n.2. We therefore begin with “the element of

‘likely’ future harmful sexual conduct as a result of a personality disorder.” Id. at 19.

       In evaluating the likelihood of future harmful sexual conduct, a district court must

engage in a “multi-factor analysis” that considers

              (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
              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

3
  Minn. Stat. § 253B.02, subd. 18c(a), was recodified as Minn. Stat. § 253D.02, subd.
16(a) (Supp. 2013). Minn. Stat. § 253B.185, subd. 1, was recodified as Minn. Stat.
§ 253D.07 (Supp. 2013).

                                              7
              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 Linehan, 518 N.W.2d at 614).

       Shue argues that the district court incorrectly weighed evidence and determined

credibility with regard to expert testimony on whether actuarial studies suggested Shue is

highly likely to reoffend. “[A]ctuarial assessment evidence is relevant to the

determination of whether a person is highly likely to engage in future harmful sexual

conduct.” Id. at 24. But actuarial assessment evidence has not displaced the Linehan

factors because “the dangerousness prediction is neither a purely clinical prediction nor

simply a matter for statisticians.” Id. at 23 (quotations omitted). And “[t]he third Linehan

factor, ‘base rate statistics,’ does not mention the more individualized predictions that can

be drawn from actuarial tools. The term ‘base rate statistics’ refers to recidivism rates for

a particular class . . . .” Id. at 22 n.3 (citation omitted). Instead, actuarial assessments are

relevant evidence to be considered within the Linehan framework, and “with the benefit

of all the relevant and reliable evidence, the district court must make a good faith attempt

to isolate the most important factors in predicting harmful sexual conduct.” Id. at 23

(quotation omitted). Expert testimony regarding actuarial studies therefore is subsumed

within the Linehan factors. Id. at 24–25. “As the trier of fact, the district court will be in

the best position to determine the weight to be attributed to each factor, as well as to

evaluate the credibility of witnesses-a critical function in these cases that rely so heavily

on the opinions of experts.” Id. at 23–24.




                                               8
       Shue challenges the district court’s application of the Linehan factors that resulted

in its finding that Shue is highly likely to reoffend. The district court evaluated the

evidence concerning each Linehan factor and found that Shue is highly likely to reoffend.

Although the court found the expert testimony of Drs. Zwecker and Gilbertson credible,

the court noted in its order that it independently applied the Linehan factors to the

evidence in finding that Shue is highly likely to reoffend. And the court noted that, while

no single Linehan factor is more important than any other, all the factors indicate that

Shue is highly likely to reoffend.

       The district court found that relevant demographic characteristics indicate that

Shue is at a “higher risk” to reoffend, noting Dr. Zwecker’s report, which states that

Shue’s sex, his age, and the fact that he has reoffended after receiving sanctions increase

his risk to reoffend. The court also referenced the testimony of Dr. Gilbertson, who

opined that, under this Linehan factor, Shue’s risk is increased because males have a

higher risk of sexual reoffense and Shue’s mental illness will require constant vigilance

to keep in check. In addition, the court noted that Dr. Riedel stated in his report that Shue

“shares many demographic characteristics that have been shown to be relevant to sexual

offending.” We conclude that the district court did not clearly err by finding that relevant

demographic characteristics show Shue has a high risk to reoffend.

       The district court found that Shue’s history of violent behavior shows a high risk

to reoffend. The court cited Dr. Zwecker’s report, in which she noted that Shue has a

“clear history of violent behavior toward others, both within the context of his sex

offending and in other areas.” The court also noted Dr. Gilbertson’s testimony that this


                                             9
Linehan factor supports an increased risk for Shue because his record is “replete with

violence, both sexual and non-sexual.” And the court quoted from Dr. Riedel’s report, in

which he described Shue’s history as “replete with violence and aggression.” We

conclude that the district court did not clearly err by finding that Shue’s history of violent

behavior indicates that he has a high risk to reoffend.

       The district court found that base-rate statistics also put Shue at a high risk to

reoffend. Dr. Zwecker noted in her report conflicting conclusions between Shue’s Static-

99R score, which places him in the “high risk” category and indicates that he may be

likely to engage in future acts of harmful sexual conduct, and Shue’s MnSOST-3.1

results, which put him in the “moderate risk” category, suggesting that he is not likely to

engage in future acts of harmful sexual conduct. At trial, Dr. Zwecker reviewed In re

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

Aug. 24, 2011), and testified that Shue’s test scores are higher than the base rates,

meaning he has a “moderate to high likelihood of re-offense.” Dr. Gilbertson testified

that Shue’s actuarial scores are greater than the base rate; specifically, Shue’s score of 6

on the Static-99R is higher than the base rate of 2, which places Shue in the high-risk,

high-need group whose members have a predicted recidivism rate of 31% over five years

and 48% over ten years.

       Concerning the base-rate statistics factor, the district court noted Dr. Riedel’s

testimony that, although Shue’s Static-99 score from 2002, when he was released from

prison in Iowa, was lower than it is now, the Iowa Department of Corrections rated Shue

as high risk, and Shue, in fact, did reoffend. In his report, Dr. Riedel gave Shue’s score


                                             10
on the SRA-FV as 2.92, but on cross-examination, Dr. Riedel admitted that he scored

several areas inaccurately on the test and that the new score “would change at least

aspects” of the test. The court noted Dr. Riedel’s testimony that he should not have

included the Stable-2007 test in his report because no one used the test to evaluate Shue,

and the court noted Dr. Riedel’s concession on cross-examination that the 2007

department of corrections study of sexual recidivism, which he mentioned in his report,

was “a definitive statistical study of recidivism” but “doesn’t necessarily relate . . . to the

effectiveness of post-release things,” did not include individuals on probation for sex

offenses, and did not measure lifetime recidivism. The court explained that it did not find

the 2007 study applicable to Shue’s case because the study “is not definitive on the issue

of re-offense, it was not designed to measure base rates, the study only looked at

offenders from 1990 to 2002 and 11 years of information is not included in its results,

and many high risk offenders were not a part of the study.” While we note that some of

the evidence cited by the district court in regard to this factor is actuarial, as opposed to

base-rate, we conclude that the district court did not clearly err by finding that Shue’s

base-rate statistics show he has a high risk to reoffend.

       The district court found that the sources of stress in Shue’s environment indicate

that he is at high risk of reoffense. Dr. Zwecker stated that Shue appears to have a

“limited support network,” which could become a source of stress for him. Dr. Zwecker

opined that Shue is impulsive and will likely become stressed about having to participate

in sex-offender treatment and abstain from illegal chemicals. Dr. Zwecker testified that

Shue’s housing and marriage issues may become sources of stress for him and noted that


                                              11
he has a history of “not reacting well to stress” in both the community and in prison. Dr.

Gilbertson testified that this Linehan factor increases Shue’s risk. Dr. Riedel noted in his

report that he “see[s] some concerns here” and characterized Shue’s release plan as

“sketchy at best.” We conclude that the district court did not clearly err in finding that the

sources of stress in Shue’s environment indicate that he has a high risk to reoffend.

       The district court found that the similarity of Shue’s present and future contexts to

contexts in which he has used violence in the past indicates a high likelihood of

recidivism. Dr. Zwecker noted that Shue plans to live in the same area where he offended

in the past, would have access to the same people whom he victimized in the past, would

likely resume visiting the same places to seek out past victims, and does not have an

adequate support network to keep him from reoffending. Dr. Zwecker testified about her

concerns that Shue would be able to “play the game” with an ISR agent by acting

appropriately when the agent visits and then returning to poor behavior once the agent

leaves. Dr. Gilbertson testified that the similarity of Shue’s present and future contexts to

past contexts increases Shue’s risk. He stated that Shue’s chemical dependency

disinhibits him and noted that Shue has suggested that his sexual energy and arousal

increase when he takes methamphetamines. Dr. Gilbertson characterized Shue’s release

plans as “fairly sketchy.” Dr. Riedel expressed concern in his report that the

acquaintances that Shue has in the area in which he planned to live would not support his

recovery. We conclude that the district court did not clearly err in finding that the

similarity of Shue’s present or future contexts with his past contexts indicates he has a

high risk to reoffend.


                                             12
       The district court found that Shue’s record with respect to sex-offender treatment

indicates an increased likelihood to reoffend. Dr. Zwecker stated that Shue has never

participated in a sex-offender treatment program and he has virtually no knowledge of

treatment principles. Dr. Zwecker expressed concern about Shue’s testimony, indicating

his belief that he does not need sex-offender treatment, although she later testified that he

indicated that he would participate in treatment. Dr. Gilbertson opined that this factor

increases Shue’s risk because Shue does not know any treatment principles that would

help him control his sexual behavior; his chemical-dependency treatment in prison only

would be of minimal help to him, because chemical-dependency and sexual-offender

treatment are so different; and Shue does not understand his sexual triggers, high-risk

situations, or mental illness. We conclude that the district court did not clearly err by

finding that Shue’s history of sex-offender treatment indicates that he has a high risk to

reoffend.

       We conclude that the district court applied the Linehan framework properly and

did not clearly err in its findings. We further conclude that the district court did not err by

committing Shue as an SDP.

       SPP

       Shue argues that the county failed to prove by clear and convincing evidence that

he meets all of the elements of the SPP statute. “Sexual psychopathic personality” 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


                                              13
              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 (Supp. 2013). Shue again argues that the district court

incorrectly weighed evidence and determined credibility regarding expert testimony. We

defer to the district court’s credibility determinations. See Ince, 847 N.W.2d at 23−24.

       The district court found that Shue possesses all four conditions specified in the

SPP statute and that the conditions cause him to act irresponsibly with regard to sexual

matters. Dr. Zwecker observed that Shue has been emotionally unstable while

incarcerated, particularly when he is not taking psychiatric medication, and has made

threats to harm staff. Dr. Zwecker also opined that Shue exhibits impulsive behavior and

pointed to his failure to follow rules while in prison as an example of such behavior. Dr.

Zwecker stated that Shue’s “ability to show good judgment is highly doubtful at the

present time.” She also noted that Shue failed to appreciate the consequences of his

personal acts by demonstrating no concern about the impact of his sexual assaults and by

blaming his victims for his current predicament. The district court also mentioned Dr.

Riedel’s report, wherein he stated that Shue has exhibited all four of the conditions in the

past but that he did not show emotional instability or impulsiveness of behavior when

medicated. The district court discounted Dr. Riedel’s opinion, however, because it

“ignores Shue’s entire history of behavior, places too much emphasis on Shue’s limited

history of taking medications in a controlled setting, and ignores Shue’s history of being



                                            14
non-medication compliant and not being chemical-free while in the community.” We

conclude that the district court did not clearly err in finding that Shue possesses the four

conditions stated in the SPP statute.

       The district court found that Shue engaged in a habitual course of sexual

misconduct. In her report, Dr. Zwecker opined that Shue met this element because “[h]e

has committed sex offenses over a number of years.” She also noted that, in at least one

of the offenses, Shue showed sadistic tendencies. Dr. Gilbertson testified that Shue has

engaged in a habitual course of sexual misconduct because his sexual misconduct

spanned several years and took place even after he was in prison. Although the district

court found that “Dr. Riedel testified that Shue has engaged in a course of harmful sexual

conduct, but not a habitual course of misconduct,” Dr. Riedel testified that, although

Shue does not meet the psychological definition of habituation, he “probably does” meet

the legal definition. The district court found the opinions of Drs. Zwecker and Gilbertson

about Shue’s habitual misconduct to be credible and persuasive. We conclude that the

district court did not clearly err in finding that Shue engaged in a habitual pattern of

harmful sexual conduct.

       The district court found that Shue has an utter lack of power to control his sexual

impulses within the meaning of the SPP statute. In evaluating whether a person meets this

criterion, the district court must consider

              the nature and frequency of the sexual assaults, the degree of
              violence involved, the relationship (or lack thereof) 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


                                              15
              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). The district court refers to the

opinions of Drs. Zwecker and Riedel in addressing this element in its commitment order

but found only Dr. Zwecker’s opinion to be credible. Dr. Zwecker noted that Shue’s

behavior “shows a pattern of victimizing females with whom he is partying and using

chemicals.” The district court found that the nature and frequency of Shue’s sexual

assaults supported a determination that Shue has an utter lack of power to control his

sexual impulses.

       The district court found that the degree of violence involved in Shue’s sexual

assaults also indicates that Shue has an utter lack of power to control his sexual impulses.

The district court relied on Dr. Zwecker’s report, in which she stated that Shue has a

history of violence aside from his sex offenses and that his sexual assaults have included

kidnapping and extreme violence. The district court also found that the relationship

between Shue and his victims supports a finding that Shue has an utter lack of control.

Dr. Zwecker wrote that Shue knew his victims and partied with some of them.

       The district court found that Shue’s attitude and mood “predispose him to sexual

offending.” Dr. Zwecker observed that Shue has exhibited a superficial attitude toward

his sex offenses and has minimized or even denied the offenses. Dr. Zwecker also

remarked that Shue has sought to blame his victims. The district court mentioned Dr.

Riedel’s observation that “[i]t is only within about the last four years that the violence has




                                             16
waned and [Shue] has not had violations relating to violent acting out” but noted that this

observation failed to take into account Shue’s violent behavior in May 2012.

       Regarding Shue’s medical and family history, the district court found only that

“Shue has serious medical issues.” Regarding the results of Shue’s psychological and

psychiatric testing, the district court found that they support the conclusion that Shue

utterly lacks the power to control his sexual impulses. Dr. Zwecker testified that Shue’s

MMPI result showed antisocial behavior and impulsivity that would increase his

likelihood of reoffense. Although the district court relied on Dr. Zwecker’s report and

testimony in finding that Shue has an utter lack of power to control his sexual impulses

within the meaning of the SPP statute, the court clarified that it conducted its own

analysis to make this finding. The district court did not clearly err in finding that Shue

utterly lacks the power to control his sexual impulses.

       The district court found that Shue is dangerous to others. To determine whether an

offender is dangerous to others under the SPP statute, the district court must consider the

same factors analyzed in determining whether an offender is highly likely to reoffend

under the SDP statute. See Linehan, 518 N.W.2d at 614 (admonishing courts to consider

the Linehan factors when determining whether an individual is dangerous to the public).

The analysis above indicates that the district court did not clearly err in finding that Shue

is dangerous to others.

       Although decided after the district court issued its commitment order and after the

parties in this case filed their briefs, we consider the sufficiency of the district court’s

findings in light of In re Civil Commitment of Spicer, ___ N.W.2d ___ (Minn. App.


                                             17
Aug. 18, 2014). The district court committed Spicer as an SDP and SPP. Id., 2014 WL

4056029, at *2. This court concluded that the district court’s findings that Spicer met the

statutory criteria as an SDP were insufficient in three ways. First, we concluded that “the

vast majority of the district court’s findings are not truly findings of fact because they are

merely recitations of the evidence presented at trial,” e.g., the court summarized

statements made by a particular expert. Id. at *6. A district court’s findings are

insufficient if they “‘merely recite[] or summarize[] excerpted portions of testimony of

[the] witnesses without commenting independently either upon their opinions or the

foundation for their opinions or the relative credibility of the various witnesses.’” Id.

(alterations in original) (quoting In re Welfare of M.M., 452 N.W.2d 236, 239 (Minn.

1990)). “Second, of the ‘true findings’ concerning disputed issues, nearly all of them are

stated in a conclusory manner.” Id. Third,

               [t]he district court’s order states that it considered the
               Linehan factors, but the order does not explain what evidence
               the district court found most persuasive or least persuasive,
               which facts the district court found to be most important or
               least important, or which Linehan factors were most
               significant in the ultimate resolution of the case.

Id. at *7. This court identified the same errors by the district court regarding its SPP-

related findings. Id. at *8.

       In this case, the district court also made the first error identified in Spicer—the

vast majority of findings that relate to SDP and SPP statutory criteria are not truly

findings, but rather are recitations of expert trial testimony. But, here, the district court

did not commit the second error identified in Spicer because the court’s findings on each



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challenged statutory criterion are not stated in a conclusory manner. The findings are

detailed and relate specifically to the evidence in the record. And, here, the district court

did not commit the third error committed by the district court in Spicer because the court

identified the expert testimony on which it relied as to each challenged statutory criterion

and each challenged caselaw factor that is relevant to the statutory criteria (e.g., the

Linehan factors) and made independent findings which included reasons for why it did

not credit conflicting expert testimony.

       In sum, because the district court did not abuse its discretion in its evidentiary

rulings and did not clearly err in its findings, and because the evidence is sufficient to

support Shue’s commitment as an SDP and SPP, we affirm Shue’s commitment as an

SDP and SPP.

       Affirmed.




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