This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1151
In the Matter of the Civil Commitment of:
Kerry Mitchell Lenz.
Filed January 8, 2024
Affirmed
Hooten, Judge *
Commitment Appeal Panel
Keith Ellison, Attorney General, Anthony R. Noss, Assistant Attorney General, St. Paul,
Minnesota; and
Karl Schmidt, Benton County Attorney, William V. Faerber, Assistant County Attorney,
Foley, Minnesota (for appellant Minnesota Department of Human Services/Benton
County)
Jennifer L. Thon, Jonathon M. Comuzzi, Jones Law Office, Mankato, Minnesota (for
respondent Kerry Mitchell Lenz)
Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Hooten,
Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
Appellant Commissioner of the Minnesota Department of Human Services
challenges a Commitment Appeal Panel (CAP) order granting respondent Kerry Mitchell
Lenz’s petition for provisional discharge from the Minnesota Sex Offender Program
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
(MSOP), arguing CAP clearly erred in finding the commissioner failed to prove by clear
and convincing evidence that provisional discharge should be denied. We affirm.
FACTS
In May 2015, Lenz was civilly committed to MSOP as a sexually dangerous person
(SDP) and sexual psychopathic personality (SPP). 1 In June 2015, Lenz petitioned for
transfer to the MSOP Community Preparation Services (CPS). 2 In January 2018, CAP
granted Lenz’s transfer to CPS but did not transfer Lenz until September 2020, after Lenz
moved the district court to hold MSOP authorities in contempt of court for failure to
transfer.
In December 2020, Lenz petitioned the Special Review Board (SRB) for provisional
discharge or discharge from his civil commitment, submitting the standard provisional
discharge plan. The SRB held a hearing on the petition in January 2022 and, in February
2022, the SRB majority recommended granting provisional discharge and denying full
discharge.
The commissioner petitioned CAP for rehearing and reconsideration of the SRB’s
recommendation to grant provisional discharge. CAP held a hearing on the petition in May
2023 at which it heard testimony from Lenz, Scott Halvorson, a MSOP reintegration
director, and Dr. Donald Alberg, a court-appointed examiner, and determined that Lenz
1 Lenz appealed commitment and, later, petitioned this court for a writ of mandamus. In
separate orders, this court dismissed Lenz’s appeal as untimely and denied mandamus. In
re Civ. Commitment of Lenz, No. A15-1340 (Minn. App. Sept. 15, 2015) (order); In re Civ.
Commitment of Lenz, No. A15-1447 (Minn. App. Oct. 6, 2015) (order).
2 CPS is a 24/7 non-secure treatment environment that provides programming focused on
deinstitutionalization.
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presented sufficient evidence to allege a prima facie case that he was entitled to provisional
discharge. 3 CAP then heard testimony from Christopher Schiffer, MSOP clinical court
services director, and Dr. Cassandra Lind, department of human services forensic
evaluation department manager.
The parties stipulated that Dr. Alberg, Mr. Schiffer, and Dr. Lind were qualified to
testify as expert witnesses. Dr. Alberg supported Lenz’s provisional-discharge request,
while Mr. Schiffer and Dr. Lind opposed it. Dr. Alberg based his testimony on his
interview with Lenz and review of various records provided by MSOP. Dr. Alberg testified
that he remained in support of Lenz’s provisional-discharge request despite the conflicting
expert testimony.
In July 2023, a CAP majority granted Lenz’s provisional discharge, finding the
commissioner failed to prove by clear and convincing evidence that provisional discharge
should be denied.
The commissioner appeals.
DECISION
We review CAP decisions “for clear error, examining the record to determine
whether the evidence as a whole sustains the CAP’s findings.” In re Civ. Commitment of
Edwards, 933 N.W.2d 796, 803 (Minn. App. 2019), rev. denied (Minn. Oct. 15, 2019). In
applying clear-error review, we “view the evidence in a light favorable to the findings” and
“will not conclude that a fact[-]finder clearly erred unless, on the entire evidence, we are
3 In this appeal, the commissioner does not dispute that Lenz presented a prima facie case
that he is entitled to provisional discharge.
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left with a definite and firm conviction that a mistake has been committed.” In re Civ.
Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021) (quotations and citations
omitted). “[T]he role of an appellate court is not to weigh, reweigh, or inherently reweigh
the evidence when applying a clear-error review; that task is best suited to, and therefore
is reserved for, the fact[-]finder.” Id. at 223. Instead, our role is to review “the record to
confirm that evidence exists to support the decision.” Id. at 222. We must:
fully and fairly consider the evidence, but so far only as is
necessary to determine beyond question that it reasonably
tends to support the findings of the fact[-]finder. When the
record reasonably supports the findings at issue on appeal, it is
immaterial that the record might also provide a reasonable
basis for inferences and findings to the contrary.
Id. at 223 (quotations and citations omitted). Generally, we defer to CAP’s evaluation of
expert testimony. Edwards, 933 N.W.2d at 807 (citing In re Civ. Commitment of
Fugelseth, 907 N.W.2d 248, 256 (Minn. App. 2018), rev. denied (Minn. Apr. 17, 2018)).
We will affirm a CAP decision so long as it is supported by the record as a whole, even if
the evidence is conflicting. See Kenney, 963 N.W.2d at 226-27 (concluding that, despite
conflicting evidence, CAP did not clearly err because its findings were supported by the
record as a whole).
A person civilly committed as an SDP or SPP or both may seek a reduction in
custody by petitioning the SRB for transfer, provisional discharge, or discharge from civil
commitment. Minn. Stat. § 253D.27, subds. 1-2 (2022). The SRB must conduct a hearing
on the petition and issue a recommendation to CAP. Id., subds. 3-4 (2022). The
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commissioner may petition CAP for rehearing and reconsideration of the SRB’s
recommendation. Minn. Stat. § 253D.28, subd. 1(a) (2022).
A person civilly committed as an SDP or SPP or both “shall not be provisionally
discharged unless the committed person is capable of making an acceptable adjustment to
open society.” Minn. Stat. § 253D.30, subd. 1(a) (2022). In determining whether a person
is capable of making such an adjustment, CAP must consider two factors:
(1) whether the committed person’s course of treatment and
present mental status indicate there is no longer a need for
treatment and supervision in the committed person’s current
treatment setting; and
(2) whether the conditions of the provisional discharge plan
will provide a reasonable degree of protection to the public and
will enable the committed person to adjust successfully to the
community.
Id., subd. 1(b) (2022); see also Larson v. Jesson, 847 N.W.2d 531, 535 (Minn. App. 2014).
Once a petitioning party presents a prima facie case that he is entitled to provisional
discharge, the party opposing provisional discharge “bears the burden of proof by clear and
convincing evidence that . . . provisional discharge should be denied.” Minn. Stat.
§ 253D.28, subd. 2(d) (2022); see Larson, 847 N.W.2d at 535 (noting that once the person
petitioning for provisional discharge satisfies the burden of production, the commissioner
bears the “burden of persuasion on the merits of a discharge petition”). Clear and
convincing evidence is “more than a preponderance of the evidence but less than proof
beyond a reasonable doubt.” Limberg v. Mitchell, 834 N.W.2d 211, 218 (Minn. App. 2013)
(quoting Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978)). The standard has been
met “when the truth of the facts asserted is highly probable.” Id. (quotation omitted).
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CAP evaluated the expert testimony and found Dr. Alberg—the expert who
supported Lenz’s provisional-discharge request—“more credible and persuasive” than Mr.
Schiffer and Dr. Lind—the experts who opposed Lenz’s request. We defer to CAP’s
credibility determination and conclude that CAP did not clearly err because the evidence
as a whole supports that Lenz is capable of making an acceptable adjustment to the
community, according to the two statutory factors. Edwards, 933 N.W.2d at 807; Kenney,
963 N.W.2d at 226-27.
Factor 1
First, evidence in the record supports CAP’s finding that Lenz’s course of treatment
and present mental status indicate there is no longer a need for treatment and supervision
in his current treatment setting.
Dr. Alberg opined that Lenz’s treatment needs, including his reintegration needs,
could be adequately met on provisional discharge. In recognizing that reintegration was a
notable treatment need, Dr. Alberg opined that Lenz’s reintegration needs were not being
met and were not likely to be met in his current treatment setting due, in part, to MSOP’s
failure to offer Lenz formal reintegration outings.
While incarcerated, Lenz completed two sex offender treatment programs. Lenz
also completed the InnerChange Freedom Initiative (IFI) program and mentored others in
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the program. 4 Lenz has participated in the MSOP treatment program since 2015 when he
was civilly committed and remains in the second phase of treatment. 5
Since his transfer to CPS in 2020, Lenz has been living in a non-secure setting that
provides programming focused on deinstitutionalization and has gone on dozens of medical
outings in the community. In 2022, Lenz received unaccompanied on-campus privileges
that allow him to walk without a staff escort and escort other clients within designated areas
of the MSOP campus.
Lenz’s MSOP treatment providers have consistently given him “enhanced” or
“satisfactory” matrix scores. 6 Lenz has been described having a “fairly good understanding
of his offense cycle, including his buildup of anger and frustration and his distorted
thoughts of sexual entitlement.” He has also been described as being “transparent in
discussing” his “excitement to violence” and on a “strong [treatment] trajectory” as
evidenced by his “commit[ment] to a healthy lifestyle, . . . cooperat[ion] with his treatment
team, . . . and tak[ing] on leadership positions.”
4 IFI is a faith-based program focused on preparing inmates for reintegration in the
community.
5 The MSOP treatment program is a three-phase program. Lenz was placed in the second
phase almost immediately after his civil commitment due to his previous treatment status
while incarcerated. The second phase “focuses primarily on securing an agreed upon
history of the client’s offending behavior and the factors that contributed to it. Clients are
expected to identify and develop resolution of the issues underlying their offense
behaviors.” The third phase focuses on generalizing those changes so that clients can
transition from the institutional setting to living in community.
6 MSOP matrix factors reflect dynamic risk factors—“psychological vulnerabilities that, in
conjunction with situational triggers, can culminate in sexually abusive actions.” The
factors represent specific treatment targets.
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Further, Lenz has been described as having done “significant treatment work on his
sexual offense patterns and dynamics of sexual offending,” as “accountable for his offense
history,” and as “a positive influence in his therapeutic community, serving as one of three
members appointed to the Community Council and serving as a CREST guide.” 7 MSOP
clinical leadership recommended that Lenz was “at a point in treatment where he [could]
focus on generalizing the changes he has made back to community settings.”
Factor 2
Second, evidence in the record supports CAP’s finding that the conditions of the
standard provisional discharge plan will provide a reasonable degree of protection to the
public and will enable Lenz to adjust successfully to the community.
Dr. Alberg opined that the standard provisional discharge plan would provide a
reasonable degree of protection to the public and enable Lenz to successfully adjust to the
community. Dr. Alberg considered Lenz’s receipt of three CARs and consequent job loss
and opined that Lenz’s behavior was not dangerous or so overwhelming as to outweigh or
nullify his positive treatment progress. Consequently, he believed Lenz could be
provisionally discharged “without undue risk to the community.”
On provisional discharge, Lenz will be required to work on his remaining treatment
needs, as directed by MSOP. Lenz’s living situation and community outings will also be
7 The Community Council is a group of individuals who are considered senior or more
advanced in treatment. This group helps guide the therapeutic community by facilitating
meetings, working with staff, and weighing in on client accountability reports (CARs).
CARs are CPS’s rule infraction system. CREST stands for conflict resolution educational
session training. A CREST guide is a volunteer who is trained in third-party mediation to
help clients resolve conflict.
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limited and monitored by MSOP. For instance, the standard provisional discharge plan
sets forth five tiers of intensive supervision that clients gradually move through based on
MSOP’s review of their treatment progress. During tier 1, Lenz will remain in 24/7 staffed
housing and will not be allowed to go out in the community unsupervised. During tier 2,
Lenz will be allowed to request independent time in the community. However, Lenz will
be actively and passively GPS monitored, and his movements will be pre-approved and
appropriately verified by MSOP. He will also have the opportunity to process his
experiences on outings with his outpatient providers and other community supports. The
standard plan also sets forth processes for addressing violations of the plan conditions to
ensure public safety.
Viewing the evidence in the light most favorable to the findings, deferring to CAP’s
credibility determination, and without reweighing the evidence or reconciling conflicting
evidence, we conclude that the evidence as a whole supports CAP’s finding that Lenz is
capable of making an acceptable adjustment to the community, according to the two
statutory factors. Therefore, it is immaterial that the evidence could also support a contrary
finding. See Kenney, 963 N.W.2d at 223. The commissioner’s arguments essentially ask
us to reweigh conflicting evidence that supports a contrary finding, which we cannot do.
Id. CAP did not clearly err in granting Lenz’s petition for provisional discharge, finding
the commissioner failed to prove by clear and convincing evidence that provisional
discharge should be denied.
Affirmed.
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