This opinion will be unpublished and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UNPUBLISHED OPINION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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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).
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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
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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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