                           This opinion will be unpublished and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
                                      A14-0662

               In the Matter of the Civil Commitment of: Hollis John Larson

                                 Filed November 17, 2014
                                        Affirmed
                                      Larkin, Judge

                              Goodhue County District Court
                                 File No. 25-PR-08-559


Hollis John Larson, Moose Lake, Minnesota (pro se appellant)

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

Stephen N. Betcher, Goodhue County Attorney, Red Wing, Minnesota (for respondent)


         Considered and decided by Peterson, Presiding Judge; Hudson, Judge; and Larkin,

Judge.

                          UNPUBLISHED OPINION

LARKIN, Judge

         Appellant, a civilly committed sexually dangerous person, challenges the district

court’s denial of his motion for relief from judgment and a new commitment hearing. He

argues that he no longer meets the criteria for civil commitment because the most recent

edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders does not include one of the diagnoses that was offered in support of his

commitment. We affirm.

                                         FACTS

       In 2008, appellant Hollis John Larson was indeterminately committed to the

Minnesota Sex Offender Program (MSOP) as a sexually dangerous person (SDP). His

commitment was based on the testimony of two court-appointed examiners,

Dr. Rosemary Linderman and Dr. Roger C. Sweet. Both examiners testified that Larson

met the statutory criteria for commitment as an SDP. Linderman diagnosed Larson with,

among other disorders, “Paraphilia – Not Otherwise Specified, Incestual Hebephilia,”

which she described as a “preference to have teenagers, teenage females as victims.”

       Larson appealed, arguing, in part, that the district court lacked subject-matter and

personal jurisdiction and that there was insufficient evidence to support his commitment.

This court affirmed. In re Civil Commitment of Larson, Nos. A08-1188, A08-1486, 2009

WL 1049171 (Minn. App. Apr. 21, 2009), review denied (Minn. June 30, 2009), cert.

denied, 588 U.S. 1029 (Nov. 16, 2009). We rejected Larson’s jurisdictional arguments

and concluded that there was “more than an adequate basis for the district court to

determine that clear and convincing evidence satisfied all three SDP criteria,” including

that Larson “manifests a sexual, personality, or other mental disorder or dysfunction.” Id.

at *2, *4, *5.

       During the next five years, Larson repeatedly challenged his commitment without

success. He moved the district court for relief under Minnesota Rule of Civil Procedure

60.02, and the district court denied his motion. He petitioned the district court for a writ


                                             2
of habeas corpus. The district court dismissed his petition, and this court affirmed.

Larson v. Jesson, No. A10-2214, 2011 WL 2623446 (Minn. App. July 5, 2011). He

petitioned the special review board for a discharge or provisional discharge. A judicial

appeal panel dismissed his petition, and this court affirmed. Larson v. Jesson, 847

N.W.2d 531 (Minn. App. 2014). He moved the district court for relief under rule 60.02

two more times, and the district court denied his motions.

       In February 2013, Larson sent a letter to the district court judge that presided over

his commitment trial, demanding discharge and compensation. Larson claimed that he no

longer met the statutory requirements for civil commitment because the American

Psychiatric Association did not include hebephilia in the fifth edition of its Diagnostic

and Statistical Manual of Mental Disorders (DSM-5).

       And in September 2013, Larson once again moved the district court for relief

under rule 60.02. He asserted that he is entitled to “a new civil commitment hearing to

determine if he, in fact, actually meets the statutorily mandated criteria for indeterminate

civil commitment as a sexually dangerous person.” Larson generally argued that because

hebephilia was not included in the DSM-5, his commitment was based on an improper

diagnosis and therefore was unsupported. Specifically, he argued that the DSM-5’s

exclusion of hebephilia constitutes newly discovered evidence, that Linderman’s

testimony and the committing court’s reliance on it was fraudulent, that his commitment

is void because the committing court lacked subject-matter and personal jurisdiction,1


1
  Larson does not challenge the district court’s subject-matter or personal jurisdiction in
this appeal.

                                             3
that his commitment is no longer equitable because it was based on “a non-existent

mental illness,” and that “extraordinary circumstances” justify relief. The district court

denied Larson’s motion, and Larson appeals.

                                     DECISION

       Larson moved for relief from judgment and a new commitment hearing under

subdivisions (b) through (f) of Minn. R. Civ. P. 60.02. Rule 60.02 provides that a court

may relieve a party from a final judgment, order, or proceeding and may order a new trial

or grant such other relief as may be just for the following reasons:

                     (b) Newly discovered evidence which by due
              diligence could not have been discovered in time to move for
              a new trial pursuant to Rule 59.03;
                     (c) Fraud (whether heretofore denominated intrinsic
              or extrinsic), misrepresentation, or other misconduct of an
              adverse party;
                     (d) The judgment is void;
                     (e) The judgment has been satisfied, released, or
              discharged or a prior judgment upon which it is based has
              been reversed or otherwise vacated, or it is no longer
              equitable that the judgment should have prospective
              application; or
                     (f) Any other reason justifying relief from the
              operation of the judgment.

Minn. R. Civ. P. 60.02. Motions brought under subsections (b) and (c) must be made

“not more than one year after the judgment, order, or proceeding was entered or taken.”

Id. All other motions must be made “within a reasonable time.” Id.

       In In re Civil Commitment of Lonergan, the supreme court determined that the

Minnesota Commitment and Treatment Act, Minn. Stat. ch. 253B, and rule 60.02 “are

not wholly inconsistent” and that “there exists a narrow class of claims that may be



                                             4
brought under Rule 60.02 by a patient indeterminately committed as an SDP.” 811

N.W.2d 635, 643 (Minn. 2012). Specifically, patients may bring rule 60.02 motions that

“do not (1) distinctly conflict with the Commitment Act, or (2) frustrate a patient’s

rehabilitation or the protection of the public.” Id. The party seeking relief under rule

60.02 has the burden of proof. City of Barnum v. Sabri, 657 N.W.2d 201, 205 (Minn.

App. 2003). To prevail, the moving party “must show that a present challenge to an

underlying order would have merit.” Id. at 206.

       Whether a person committed as an SDP may raise a particular claim under rule

60.02 is a legal question this court reviews de novo. Lonergan, 811 N.W.2d at 639. But

this court otherwise reviews a district court’s denial of a rule 60.02 motion for an abuse

of discretion. In re Civil Commitment of Moen, 837 N.W.2d 40, 44-45 (Minn. App.

2013), review denied (Minn. Oct. 15, 2013).

       The district court thoroughly addressed every aspect of Larson’s rule 60.02

motion, including whether it is permissible under Lonergan and whether it was timely.

We focus our review on the district court’s rejection of the motion on the merits. In

refusing to grant Larson relief under rule 60.02, the district court noted that “[n]one of

[Larson’s] arguments have support in either law or fact. He has no chance of prevailing

on the merits of his case.” The district court reasoned, in part, that “even assuming the

hebephilia diagnosis is invalid, the commitment stands because [Larson] still meets the

definition of [an SDP].” For the reasons that follow, we agree with the district court that

Larson’s challenge to his commitment lacks merit and that he therefore has not

established a basis for relief.


                                              5
       Larson argues that because “hebephilia is not a valid diagnosis and [he] has

absolutely no other type of sexual disorder, [he] cannot be diagnosed with any paraphilia,

let alone a paraphilic disorder and therefore [he] did not/does not meet the criteria for

civil commitment and must be given a new commitment hearing.”                But Larson’s

commitment is not based solely on the diagnosis of paraphilia, much less hebephilia.

Linderman testified that Larson has diagnoses of “paraphilia NOS, . . . incestual

hebephilia” and “depressive disorder NOS.” She noted that hebephilia “is not listed in

DSM-IV, but paraphilia NOS is, and that’s usually where it falls under that category.”

However, Linderman further testified that Larson’s “more prominent and primary

diagnosis” is “his antisocial personality disorder.” She stated that Larson also has “other

components of a personality disorder NOS with narcissistic, histrionic, and paranoid

features” and “a significant amount of psychopathy,” which she said “is not yet listed in

DSM-IV” but is “an indisputably strong predictor of general and violent recidivism” and

“a defensible mental abnormality to include on Axis II.”

       Sweet, who Larson chose as his second examiner, also identified personality

disorder as Larson’s primary diagnosis. He testified that Larson has a diagnosis of

dysthymia, “a chronic form of kind of low to moderate grade depression,” but that

Larson’s “primary diagnosis in terms of explaining much of his behavior is personality

disorder.” Sweet stated that he diagnosed Larson with “personality disorder NOS, with

significant antisocial and narcissistic features.”

       In Larson’s first appeal to this court, we held that the evidence provided “more

than an adequate basis for the district court to determine that clear and convincing


                                               6
evidence satisfied all three SDP criteria,” including the second criterion, “that Larson

manifests a sexual, personality, or other mental disorder or dysfunction.” Larson, 2009

WL 1049171 at *4, *5. We noted that both court-appointed examiners opined that

Larson satisfied the criteria for commitment as an SDP; that Linderman diagnosed Larson

with “antisocial personality disorder, personality disorder not otherwise specified (with

narcissistic, histrionic, and paranoid features), and psychopathy”; and that Sweet

diagnosed Larson with “several disorders including personality disorder not otherwise

specified (antisocial/narcissistic).” Id. at *1, *4. We also noted that “[b]oth Linderman

and Sweet testified that Larson’s antisocial and narcissistic personality disorders were

significant factors in their determination.” Id. at *4.

       In sum, this court’s previous determination that the evidence was sufficient to

sustain Larson’s commitment was based on his personality disorders and not on any

sexual disorder (i.e., hebephilia). Thus, even if the DSM-5 calls Linderman’s hebephilia

diagnosis into question, it does not compromise this court’s previous holding that the

evidence clearly and convincingly established that “Larson manifests a sexual,

personality, or other mental disorder or dysfunction” that satisfied the relevant SDP

statutory criterion. Id.

       Larson attempts to cast doubt on his antisocial-personality-disorder diagnosis,

calling it a “non-existent mental illness” and arguing that the United States Supreme

Court has not decided whether a diagnosis of antisocial personality disorder itself is a

sufficiently serious impairment to support civil commitment. But Larson’s submissions

in support of his rule 60.02 motion focused exclusively on his hebephilia diagnosis.


                                              7
Because Larson’s rule 60.02 motion was not based on arguments regarding his antisocial-

personality-disorder diagnosis, such arguments are not properly before this court and we

do not consider them. Beaulieu v. Minn. Dep’t of Human Servs., 825 N.W.2d 716, 724

(Minn. 2013) (rejecting argument without reaching its merits because MSOP patient

failed to adequately raise the issue in the district court).

        We also agree with the district court’s determination that Larson has not shown

any fraud on the court. “Fraud sufficient to vacate a judgment pursuant to [rule] 60.02

occurs when a party intentionally misleads or deceives the court as to material

circumstances.” In re Conservatorship of Bromley, 359 N.W.2d 723, 724 (Minn. App.

1984), review denied (Minn. Mar. 21, 1985).            Larson’s argument that Linderman’s

hebephilia diagnosis is invalid because hebephilia is not included in the DSM-5 may

show reason to question the validity of that particular diagnosis, but it does not show

fraud. See id. There is no evidence that Linderman intentionally misled the committing

court by including hebephilia among Larson’s diagnoses.               In fact, Linderman

acknowledged that hebephilia was not included in the current diagnostic manual at the

time.

        In conclusion, Larson’s argument that his commitment is not supported by a valid

diagnosis lacks merit. Thus, he is not entitled to relief under rule 60.02, and the district

court did not abuse its discretion by denying his request for relief. See City of Barnum,

657 N.W.2d at 206 (stating that to prevail under rule 60.02, the moving party “must show

that a present challenge to an underlying order would have merit”).

        Affirmed.


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