This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-1025

In the Matter of the Civil Commitment of:

Jason Paul Castonguay

Filed December 15, 1999

Affirmed

Peterson, Judge

Beltrami County District Court

File No. P299317

Ryan K. Kieson, Drahos & Young, 1005 Paul Bunyan Drive Northwest, Bemidji, MN 56601 (for appellant Jason Paul Castonguay)

Timothy R. Faver, Beltrami County Attorney, Eric Schieferdecker, Assistant County Attorney, 207 Fourth Street Northwest, Bemidji, MN 56601 (for respondent Beltrami County)

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON

, Judge

Appellant challenges the district court's decision to commit him as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), arguing that (1) the petition for commitment should have been dismissed because it did not meet the requirements of the Minnesota Civil Commitment Act; and (2) there is not clear and convincing evidence demonstrating that he meets the standards for commitment as an SPP or an SDP. We affirm.

FACTS

Appellant Jason Paul Castonguay is a 27-year-old man who has been diagnosed as having three sexual disorders: pedophilia, transvestic fetishism, and voyeurism. He has also been diagnosed as having a severe impulse control disorder and borderline mental deficiency.

In May 1993, appellant grabbed a three-year-old girl in the arcade area of a Bemidji shopping mall and took her into the men's bathroom. While in the bathroom, appellant pulled down the girl's pants and inserted his finger into her vagina. When the girl cried and told him that it hurt, appellant held her upside down by her legs and licked her vagina. When a young man knocked on the door of the bathroom stall, appellant let the girl go, and then he returned to the arcade at the mall. Appellant pleaded guilty to first-degree criminal sexual conduct and was sentenced to a 105-month prison term. Appellant acknowledged that he enjoyed the power and control over the three-year-old as she cried and begged to be let go.

Appellant was due to be released from prison on March 11, 1999, but on March 9, 1999, respondent Beltrami County filed a petition for his commitment as an SPP and an SDP. Attached to the petition was a report from the court-appointed examiner, Dr. Douglas Fox, which concluded:

I do not believe [appellant] meets the statutory requirements for commitment as either a Sexual Psychopathic Personality or as a Sexually Dangerous Person. This is primarily because I do not think he meets the criteria of having an established pattern of sexual offenses which resulted in significant harm to the victims. This should not be interpreted to mean he represents no risk of sexual reoffending. I perceive [appellant] as a highly impulsive individual who has not demonstrated consistent control over his sexual urges. I believe he is at risk to reoffend and strongly recommend placement in a residential treatment program for sexual offenders. If such a program is not available, I would suggest placement in a closely supervised halfway house and concurrent outpatient sex offender treatment.

At the initial commitment hearing, appellant moved to dismiss the commitment petition, arguing that the petition failed to meet the requirements of Minn. Stat. § 253B.07, subd. 2 (1998), because Dr. Fox did not recommend commitment. Respondent was granted a continuance to allow time for a second court-appointed examiner to evaluate appellant. Following an examination of appellant, the second examiner, Dr. James Gilbertson, filed a report concluding that appellant is an SPP and an SDP, and that he needs commitment to treat his sexual disorders.

At the continued commitment hearing, appellant renewed his motion to dismiss the petition. The trial court acknowledged that respondent had not complied with the timelines of the court's order continuing the matter. The court also asked how proceeding would prejudice appellant. Appellant's counsel acknowledged that the only prejudice was in the fact that respondent had not complied with the court's order. Appellant's counsel also indicated that there had been little time to discuss the second report with Dr. Fox. The court offered to grant appellant's counsel more time to discuss the report with Fox, but counsel declined and chose to proceed.

At the continued hearing, both Fox and Gilbertson testified extensively about appellant's condition. Fox testified that appellant did not meet the statutory criteria for commitment as an SPP or SDP. Gilbertson testified that appellant met all the criteria for commitment under both the SPP and the SDP statutes. Following the hearing, the trial court committed appellant for an indeterminate period as an SPP and SDP.

D E C I S I O N

The petitioner must prove by clear and convincing evidence that the standards for commitment are met. Minn. Stat. § 253B.18, subd. 1 (1998). This court will review de novo whether clear and convincing evidence supports each commitment standard. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994). A trial court's findings of fact will not be reversed unless clearly erroneous. In re Monson, 478 N.W.2d 785, 788 (Minn. App. 1991).

I.

Appellant argues that the commitment petition did not meet the requirements of the Minnesota Civil Commitment Act because it was conclusory, unsupported by any factual basis, and not supported by an examiner's opinion recommending commitment. Therefore, he contends, the district court erred by not dismissing the petition.

Minn. Stat. § 253B.07, subd. 2 (1998), provides:

(b) The petition shall set forth the name and address of the proposed patient, the name and address of the patient's nearest relatives, and the reasons for the petition. The petition must contain factual descriptions of the proposed patient's recent behavior, including a description of the behavior, where it occurred, and the time period over which it occurred. Each factual allegation must be supported by observations of witnesses named in the petition. Petitions shall be stated in behavioral terms and shall not contain judgmental or conclusory statements.

(c) The petition shall be accompanied by a written statement by an examiner stating that the examiner has examined the proposed patient within the 15 days preceding the filing of the petition and is of the opinion that the proposed patient is suffering a designated disability and should be committed to a treatment facility. The statement shall include the reasons for the opinion.

We disagree with appellant's contention that the trial court erred by not dismissing the petition. Even though the petition was not initially accompanied by an examiner's statement that appellant should be committed to a treatment facility, such a statement was provided to appellant before the commitment hearing resumed. Appellant's counsel also received extensive medical and prison records. The motion to dismiss was not based on any claim that appellant was unaware of any factual allegations; it was only that the factual allegations had not been reiterated in the petition. Finally, appellant's counsel acknowledged at the beginning of the commitment hearing that the failure to provide the required examiner's statement with the initial petition did not cause any prejudice, and he declined the trial court's offer to grant more time to review the second examiner's report. The trial court properly denied appellant's motion to dismiss. See In re Grafstrom, 490 N.W.2d 632, 636 (Minn. App. 1992) (citing In re Leary, 272 Minn. 34, 39-40, 136 N.W.2d 552, 555-56 (1965)) (petition should not be held insufficient because of technical objections, if patient's rights have been adequately protected).

II.

A "sexually dangerous person" means a person who:(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;(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 as defined in subdivision 7a.

Minn. Stat. § 253B.02, subd. 18c(a) (1998).

Appellant admits that he pleaded guilty to first-degree criminal sexual conduct and that this offense constitutes harmful sexual conduct. He argues, however, that because the other behavioral incidents relied upon by the trial court did not rise to the level of harmful sexual conduct, respondent failed to demonstrate by clear and convincing evidence that he has engaged in a course of harmful sexual conduct. Appellant contends that "course" means a "systematic or orderly succession" or "a sequence." The American Heritage Dictionary of the English Language 430 (3d ed. 1992). Therefore, appellant argues, a single offense is insufficient to establish a course of harmful sexual conduct.

Harmful sexual conduct is "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a) (1998). Under Minn. Stat. § 253B.02, subd. 7a(b), there is a rebuttable presumption that conduct described in statutes that define certain, listed criminal offenses creates a substantial likelihood that the victim will suffer serious physical or emotional harm.

The trial court found that when appellant was 13 years old, his mother caught him having sex with a nine-year-old girl. The trial court also found that this conduct constitutes third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1 (1998), which is one of the criminal offenses listed in Minn. Stat. § 253B.02, subd. 7a(b). Appellant argues that the incident cannot be considered criminal sexual conduct because under Minn. Stat. § 609.055, subd. 1 (1998), a child under 14 is incapable of committing a crime.

It does not matter whether appellant committed a crime during the incident. Under Minn. Stat. § 253B.02, subd. 7a(b), the rebuttable presumption arises when certain described conduct occurs. It is not necessary that the described conduct be criminal or that it results in a conviction. See Monson, 478 N.W.2d at 789 (Minn. App. 1991) ("psychopathic personality statute does not address convictions; it addresses behavior").

Although appellant testified that his mother caught him having sex with a nine-year-old girl when he was 13, he argues on appeal that because there was conflicting testimony about this incident, it is unclear whether the incident occurred. Dr. Fox indicated that appellant told him about this incident but said that it occurred when he was 12. Appellant's mother denied that she caught appellant and the nine-year-old girl. It is apparent from the trial court's finding that it did not believe the mother's testimony. The credibility of a witness is an issue for the trier of fact. State v. Larson, 520 N.W.2d 456, 462 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994).

Appellant was suspended from high school for touching a female student's breast. The trial court found that this conduct constituted fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1 (1998), which is one of the criminal offenses listed in Minn. Stat. § 253B.02, subd. 7a(b). We do not find adequate support in the record for finding that appellant's conduct during this incident is conduct described in Minn. Stat. § 609.345, subd. 1. Appellant testified that he touched the female student's breast, but there is no evidence that the touching was nonconsensual or that appellant used force or coercion to accomplish the touching. The record does not indicate appellant's or the female student's age at the time of the incident. Because the evidence in the record does not demonstrate that appellant's conduct during this incident was conduct described in Minn. Stat. § 609.345, subd. 1, there is not a rebuttable presumption that the victim will suffer serious physical or emotional harm, and the trial court did not separately find that the conduct creates a substantial likelihood of serious physical or emotional harm.

On at least two occasions in 1988 or 1989, appellant burglarized the home of M.S. and stole female underclothes and lingerie. M.S. testified that because of these burglaries, which she suspected appellant committed, she would not allow her 12-year-old daughter to walk home alone from school or to be home alone. M.S. also testified that one of the stolen items, a summer dress, was left next to the driver's door of her automobile several months later.

Appellant argues that the trial court improperly considered these burglaries as part of a course of harmful sexual conduct because there was nobody home when the burglaries occurred and only first-degree burglary raises a rebuttable presumption of harmful sexual conduct. Appellant is correct that only conduct described in Minn. Stat. § 609.582, subd. 1 (1998), (first-degree burglary), raises a presumption of harmful sexual conduct. But the trial court did not rely upon the statutory presumption to find that the burglaries created a substantial likelihood of serious emotional harm. Instead, the trial court found that the burglaries caused serious emotional harm to M.S. and her family.

Under Minn. Stat. § 253B.02, subd. 7a(a), harmful sexual conduct is not limited to conduct to which the rebuttable presumption in Minn. Stat. § 253B.02, subd. 7a(b), applies, and the trial court may find that there has been harmful sexual conduct even though the presumption does not apply. But the record does not support the trial court's finding that the home burglaries caused serious emotional harm to M.S. and her family. M.S. testified that the nature of the articles that were stolen made her and her family very uncomfortable and that the return of the summer dress was very upsetting. She also testified that the family did not receive any sort of counseling for the effects the burglaries had on her family. This testimony demonstrates that M.S. and her family experienced the kind of emotional distress that a family could be expected to suffer as a result of the burglaries, but it does not demonstrate that they suffered serious emotional harm.

Appellant was also involved in a 1990 burglary incident during which he was caught fleeing from the home of a female acquaintance. After catching appellant, police discovered that he had piled women's underwear and swimsuits near the door of the home. The trial court concluded that because a 12-year-old girl lived in the home at the time, the burglary created a substantial likelihood of serious emotional or physical harm.

The record does not support this conclusion. There was no evidence that indicated what effect the burglary had on the residents of the home or that indicated any reason why the 12-year-old girl would be affected by the burglary in an unusually serious way. Consequently, the girl's residence in the home was not, by itself, a sufficient basis to conclude that the burglary created a substantial likelihood of serious emotional or physical harm.

Although we agree with appellant that it was not shown at trial that the incident in high school and the burglary incidents meet the definition of harmful sexual conduct, we do not agree that the trial court erred by concluding that appellant engaged in a course of harmful sexual conduct. As we have already stated, the incident where appellant engaged in sexual intercourse with a nine-year-old girl is presumed to have been harmful sexual conduct and appellant did not rebut the presumption.

More important, however, are two incidents that occurred in a Bemidji shopping mall. In February 1993, appellant spotted three small girls in the arcade area of the mall. When one of the girls stepped away from the other two, appellant grabbed her by the hand and tried to lead her away. One of the other girls then grabbed the girl's other hand and began pulling the other way and yelling. Appellant eventually let go, but he admitted that if he had not been stopped, he would have taken the child to another area and sexually molested her. This incident created a substantial likelihood of serious physical or emotional harm to the victim. But for the fortuitous acts of the second young girl, it is virtually certain that the victim would have been sexually assaulted. Two months later, at the same mall, appellant committed the acts that led to his conviction for first-degree criminal sexual conduct. Appellant does not dispute that this second incident was harmful sexual conduct.

These incidents provide clear and convincing evidence that appellant has engaged in a course of harmful sexual conduct. There was not just one incident; there were three. And the two later incidents were so similar in their modus operandi that they demonstrate a strikingly systematic or orderly succession of events.

Appellant also argues that there was insufficient evidence that he is highly likely to engage in future acts of harmful sexual conduct. See Minn. Stat. 253B.02, subd. 18c(a)(3) (defining "sexually dangerous person" as requiring, in part, that person must be "likely to engage in acts of harmful sexual conduct"); In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (requiring that harmful sexual conduct must be "highly likely"), cert. denied 1999 WL 813716 (U.S. Dec. 6, 1999).

In determining the likelihood of future harm, factors a court must consider include demographics, the person's history of violent behavior, base rate statistics, sources of stress in the person's environment, the similarity of the present or future context to those in which the person has used violence in the past, and sex therapy treatment success. Linehan, 518 N.W.2d at 614 (setting out factors to be considered in psychopathic personality commitment); Linehan, 557 N.W.2d 171, 189 (Minn. 1996) (adopting factors for use in SDP commitment), aff'd, 594 N.W.2d 867 (Minn. 1999).

In finding it highly likely that appellant would engage in future acts of harmful sexual conduct, the trial court weighed both examiners' reports and made numerous findings based on the factors set forth in Linehan. Gilbertson's report assessed the Linehan factors and determined that it was highly probable that appellant would engage in future harmful sexual conduct. Gilbertson's report specifically notes that appellant "remains a young man who is still clearly capable of being sexually aroused and who is strong and mobile." Gilbertson found no "demographic features that would function as inhibitors toward future sexual acting out." In addition to the history of harmful sexual conduct that has already been discussed, the trial court found that appellant engaged in nonconsensual touching of other inmates while in prison and that appellant was discharged from his sex therapy program in prison because he engaged in sexual conduct with another inmate. The trial court found that because of the limitations of the studies that have been done and the fact that no study fits any patient perfectly, base rate statistics weighed only slightly against appellant. Finally, the trial court found that appellant was to be discharged into the community where his prior acts of sexual misconduct occurred and under the same circumstances that the misconduct occurred. Consequently, in the words of Dr. Gilbertson, appellant's "return to the community would be [fraught] with a great number of sizeable stressors and sizeable difficulties in transition and in readjustment." Because very little has changed for appellant, either internally or externally, the trial court found that the similarity between appellant's future context and the past context in which he had used violence weighed against appellant.

In addition to the Linehan factors, the trial court considered other factors when evaluating the likelihood that appellant would engage in future harmful sexual conduct. The court noted that appellant's conduct had escalated over time from shoplifting ladies' underpants to burglary to grabbing small children in a public place. The trial court also found that appellant showed no remorse and, despite sex offender treatment, failed to develop any empathy for his victims. Finally, the court found that despite the fact that a suspended jail sentence for burglary was hanging over his head, appellant twice went to the mall to molest children.

The trial court's findings regarding the Linehan factors and the other factors considered by the court are supported by the record, and the findings support the trial court's conclusion that it is highly probable that appellant will engage in future acts of harmful sexual conduct.

III.

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

Minn. Stat. § 253B.02, subd. 18b (1998).

Citing Dr. Fox's testimony that he does not meet many of the standards necessary to show an utter lack of control, appellant argues that there was insufficient evidence to demonstrate that he has evidenced, by a habitual course of sexual misconduct, an utter lack of power to control his sexual impulses.

Commitment as an SPP requires a showing that the person has evidenced "an utter lack of power to control the person's sexual impulses." Id. The impulse must be "uncontrolled and uncontrollable." Linehan, 518 N.W.2d at 613. The supreme court has set out factors for the district court to consider when determining whether a person has exhibited an utter lack of power to control sexual impulses. In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994). A court should 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 such other factors that bear on the predatory sex impulse and the lack of power to control it.

Id.

The trial court concluded that the incidents that established a course of harmful sexual conduct for purposes of appellant's SDP commitment combined with appellant's sexual misconduct while incarcerated constituted a habitual course of misconduct in sexual matters. The record supports this conclusion. Since his early teenage years, appellant has regularly engaged in sexual misconduct. Much of this misconduct occurred under circumstances where there was a high likelihood of detection.

In his report, Dr. Gilbertson stated:

I find [appellant's] record replete with indications of impulsive behavior and lack of customary standards of good judgment and non-appreciation of the consequences of his acts. I find his sexual acting out history seems to be in response to what has been described as his "high sexual energy" and his deviant sexual interest pattern. He has acted out these sexual impulses in face-to-face sexual contact as well as through theft, both from relatives and strangers. His sexual acting out has continued on, even after correctional sanctions, and even within the confines of a correctional facility.

Based on Dr. Gilbertson's report and testimony, the trial court concluded that appellant "has shown an utter lack of power to control his sexual impulses." Appellant is correct that Dr. Fox testified that he believes appellant does not meet the statutory standard for an utter lack of power to control. But where expert testimony provides conflicting evidence of a psychopathic personality, the trial court must resolve that question of fact. In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984), review denied (Minn. Sept, 12, 1984). The record contains clear and convincing evidence that appellant lacks the ability to control his sexual impulses.

Appellant also contends that because (1) it was not shown that he has had a habitual course of sexual misconduct or a course of harmful sexual conduct, and (2) it was not proven that he has an utter lack of control over his sexual impulses, and (3) a majority of the Linehan factors do not weigh against him, it was inappropriate for the trial court to find that he is dangerous to other persons. Appellant does not support this contention with any argument. Because we have already concluded that the trial court did not err when it concluded that (1) appellant engaged in a habitual course of sexual misconduct, (2) appellant has an utter lack of control over his sexual impulses, and (3) a majority of the Linehan factors weigh against appellant, we conclude that appellant's contention is without merit.

Affirmed.