In the Matter of the Civil Commitment of: Jeremy Michael Bilder. ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-2192
In the Matter of the Civil Commitment of: Jeremy Michael Bilder
Filed June 1, 2015
Affirmed
Connolly, Judge
Ramsey County District Court
File No. 62-MH-PR-14-176
Alan D. Margoles, Michelle Speeter Margoles, Margoles & Margoles Law Firm, St. Paul,
Minnesota (for appellant)
John J. Choi, Ramsey County Attorney, Stephen P. McLaughlin, Assistant County
Attorney, St. Paul, Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and
Worke, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant argues that (1) civilly committing him to the Minnesota Sex Offender
Program (MSOP) was not the least restrictive alternative under Minn. Stat. § 253D.07,
subd. 3 (2014); (2) the district court erred in committing him as a sexually dangerous
person (SDP) under Minn. Stat. § 253D.92, subd. 16 (2014); (3) the court erred in
committing him as a sexual psychopathic personality (SPP) under Minn. Stat. § 253D.02,
subd. 15 (2014); and (4) the civil commitment and treatment act and MSOP are
unconstitutional, as written and enforced, under the due-process clauses of the Minnesota
and United States Constitutions. We affirm.
FACTS
Appellant Jeremy Bilder has an extensive history of engaging in inappropriate
sexual behavior. In 1995, appellant admitted committing criminal sexual conduct in the
second degree for engaging in sexual activities with his younger brother. Throughout his
early adolescence, appellant engaged in similar incidents for which no delinquency
petitions were filed.
In 2008, the state charged appellant with criminal sexual conduct in the fourth
degree, stemming from appellant’s sexual assault of his former girlfriend while she was
incapacitated. Appellant pleaded guilty to the charged offense. The district court
sentenced appellant to a 24-month stayed prison sentence, with credit for time served,
and a ten-year conditional-release period.
In February 2009, appellant began sex offender treatment at Project Pathfinder.
Project Pathfinder terminated appellant’s treatment on April 30, 2010. After failing this
court-ordered sex offender treatment, appellant’s probation was terminated and his prison
sentence was executed from June 2010 through June 2011. While appellant was in
prison, a prison therapist reported that appellant inappropriately touched her after a one-
on-one therapy session. Appellant was subsequently charged with violating offender
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discipline regulations, including abuse/harassment, disorderly conduct, and assaulting
staff.
On June 13, 2011, appellant began outpatient sex offender treatment at Alpha
House. Appellant was terminated from treatment in February 2012. In September 2012,
appellant began sex offender treatment at Lighthouse Psychological Services. In
November 2012, appellant was suspended from treatment for dating a woman with a
young child and for being at his girlfriend’s home when the child was present, despite his
conditional-release condition that he could not have contact with minors. Appellant was
reincarcerated in February 2013 for violating this condition of conditional release.
Appellant was given a second opportunity to attend treatment at Lighthouse, but was
terminated from treatment in November 2013 for “dishonesty, manipulation, and
demonstrating insufficient growth in the program.” Appellant’s parole agent
recommended that his intensive supervised release be revoked and that he be
incarcerated. Appellant was reincarcerated on November 13, 2013.
In 2014, while he was incarcerated, appellant married M.B., who had a four-year-
old daughter, K.B. On April 14 an investigation specialist for level 3 sex offenders at the
Minnesota Department of Corrections reported her concerns to the Ramsey County
Attorney’s Office about monitored telephone calls between appellant and his wife. She
reported that, after appellant found out that he could be facing civil commitment,
appellant told his wife that he intended to rape her and molest K.B. by digitally
penetrating the child while she slept. Appellant told his wife, “I don’t know why [K.B.]
wants a dad as a pedophile . . . and who’s gonna possibly hurt her when he comes
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home[.]” When his wife asked him why he would hurt K.B., appellant stated “I can’t
promise you that I wouldn’t do anything,” and stated “[i]f I were you, I wouldn’t trust
[K.B.] around me.” Appellant later asked his wife if she would allow him to sexually
abuse K.B. and stated that they could “pretend that [appellant is] the doctor.” Appellant
asked his wife if she would report him if he did it, and she responded “[i]f I don’t know
about it, how can I do that[.]” Appellant responded that he would tell his wife if and
when he molested K.B. K.B. was subsequently removed from the home by Ramsey
County child protection services.
On April 25, 2014, the state filed a petition seeking to commit appellant as an SPP
and SDP under Minn. Stat. § 253D.02, subds. 15, 16 (2014). On August 6-8, the district
court held a trial on this issue. Based on the evidence at trial, the district court issued a
detailed order committing appellant as an SDP and SPP to MSOP for an indeterminate
period of time. 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. “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). We review legal issues, including whether
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the record contains clear-and-convincing evidence to support the district court’s
conclusion that the standards for commitment were met, de novo. Id.I.
Appellant argues that “committing [him] to [MSOP] was not the least restrictive
alternative under Minn. Stat. § 253D.07, [subd.] 3.” We disagree.
The district court will commit a person to the secure confinement of MSOP if it
finds clear-and-convincing evidence that the person is an SPP or is an SDP, 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; see also Ince, 847 N.W.2d at 25-26. “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 contends that “evidence establishes that incarcerating [him] at the
Ramsey County Workhouse with treatment release to [an outpatient] sex offender
treatment program” is a less restrictive means of treatment. The manager of that
outpatient program is a licensed sex offender therapist who has treated over 200 sex
offenders in an outpatient setting. After reviewing the record, he testified that he is
willing to accept appellant into outpatient sex offender treatment. The district court noted
that the manager “believes treatment outside of a prison setting would be more beneficial
for [appellant].” But the district court credited the testimony of a duly qualified forensic
psychologist and court-appointed examiner, who reviewed the manager’s report and
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noted that he failed to provide a risk analysis with respect to appellant’s suitability for
outpatient treatment. We defer to this credibility determination. Crosby, 824 N.W.2d at
356.
Additionally, there is no evidence in the record indicating that the manager
evaluated appellant’s risk of reoffending if he were treated on an outpatient basis, or
whether the Ramsey County Workhouse is currently an option for appellant. In fact, two
court-appointed psychological examiners determined that appellant needs to be treated in
a secure environment. One court-appointed examiner testified that appellant continued to
target M.B. and K.B. even while he was incarcerated, and concluded that, based on this
fact, freedom in the community is inappropriate. He also testified that freedom in the
community is particularly inappropriate because appellant lacks understanding of his
triggers, offense cycles, arousal patterns, coping mechanisms, and grooming patterns
because he never completed treatment. After considering the testimony of the manager
and the court-appointed examiners, the district court concluded commitment was the least
restrictive means of treating appellant because appellant “has shown that he has been
unable to live independently in the community when he is in an unsupervised setting. He
has been unable to comply with the rules and despite repeated warnings had contact with
minors. [Appellant] is unable to comply with the rules while in the community.”
Appellant also claims that Alpha House and Lighthouse are willing to accept him
back into their treatment programs. In letters from 2012 and 2013, before appellant
threatened to molest his stepdaughter, both facilities stated that appellant was welcome to
reapply to their programs. Neither facility stated that appellant has been accepted into its
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program nor made any statement regarding appellant’s amenability to treatment.
Consequently, because appellant has not met his burden of showing that his proffered
alternative treatment options are readily available or consistent with the need for public
safety, we conclude that the district court did not err by concluding that committing
appellant to MSOP was the least-restrictive alternative under Minn. Stat. § 253D.07,
subd. 3.
II.
Appellant argues that the district court erred by committing him as an SDP under
Minn. Stat. § 253D.02, subd. 16. We disagree. To commit an individual as an SDP the
district court must find that he: (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. Minn. Stat.
§ 253D.02, subd. 16.
Appellant first argues that the district court erred by determining that he engaged
in a course of harmful sexual conduct because it failed to make sufficient findings to
support this conclusion. We disagree. There is a rebuttable presumption that conduct
described as criminal sexual conduct in the first through fourth degrees creates a
substantial likelihood that a victim will suffer serious physical or emotional harm. Minn.
Stat. § 253D.02, subd. 8(b) (2014). The district court concluded that appellant engaged
in a course of harmful sexual conduct after finding that he was adjudicated delinquent for
criminal sexual conduct in the second degree in 1995 against his younger brother and
convicted of criminal sexual conduct in the fourth degree against his ex-girlfriend in
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2008. While appellant argues that “[t]he district court found that the two adjudications
for criminal sexual conduct alone are enough to establish ‘a course of harmful sexual
conduct,’” the district court also found that appellant admitted to threatening behavior,
disorderly conduct, and sexual behavior in 2014 while incarcerated for probation
violations, and that appellant committed various offenses that were not prosecuted,
including fondling a neighbor, having sexual relations with the family dog, and engaging
in sexual activity with his older brother.
The evidence in the record supports this conclusion. While in prison, appellant
inappropriately touched a prison therapist and threatened to sexually abuse his
stepdaughter and rape his wife. One court-appointed examiner testified that appellant
admitted to fondling a six-year-old neighbor when he was a teenager, and both court-
appointed examiners testified that appellant suffers from pedophilia. Additionally,
appellant’s mother confirmed that she caught appellant having sexual relations with the
family dog when he was a teenager. We therefore conclude that the district court made
sufficient findings to support its conclusion that appellant has engaged in a course of
harmful sexual conduct.
Appellant also argues that the district court erred in concluding that he is highly
likely to engage in acts of harmful sexual conduct in the future. Again, we disagree. To
determine whether a person is highly likely to reoffend, a district court must engage in a
“multi-factor analysis.” Ince, 847 N.W.2d at 23. The multi-factor analysis includes the
following six factors, which are commonly known as the Linehan factors:
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(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 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.
In re Civil Commitment of Spicer, 853 N.W.2d 803, 807-08 (Minn. App. 2014) (quotation
omitted). “The multi-factor analysis also must include any other type of relevant and
reliable evidence, including evidence derived from actuarial risk assessments and
structured clinical assessments.” Id. (quotation omitted).
Appellant argues that the district court erred because it did not go through the
Linehan factors. We disagree. The district court explicitly went through each Linehan
factor in its order. After going through each factor, the district court concluded that the
state “has proven by clear and convincing evidence that, as a result of [appellant’s] past
course of harmful sexual conduct, his mental disorders, and the resulting impairment of
his ability to control his sexual impulses, it is highly likely that [appellant] will engage in
further harmful sexual conduct if not treated in civil commitment.” Appellant does not
argue that the district court’s findings concerning the Linehan factors were erroneous,
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and issues not briefed on appeal are waived. Melina v. Chaplin, 327 N.W.2d 19, 20
(Minn. 1982). Because the district court properly applied the Linehan factors to
appellant’s case, we conclude that it did not clearly err by committing appellant as an
SDP under Minn. Stat. § 253D.02, subd. 16.
III.
Appellant argues that the district court erred in committing him as an SPP under
Minn. Stat. § 253D.02, subd. 15, because the district court failed to make sufficiently
particular findings of fact regarding its determination. Appellant’s argument is based on
his contention that the district court merely recited the testimony of witnesses without
commenting independently upon their opinions, the foundation for their opinions, or
credibility. We disagree.
To commit someone as a person with a sexual psychopathic personality, the
district court must find: (1) a habitual course of misconduct involving sexual matters;
(2) an utter lack of power to control sexual impulses; and (3) dangerousness to others.
Minn. Stat. § 253D.02, subd. 15; In re Linehan, 518 N.W.2d at 613. The district court,
after indicating that it reviewed the record, stated:
Here, [appellant] has an extensive history of harmful sexual
conduct beginning in the family home as a prepubescent
youth and continuing into his adulthood. As his release from
prison became imminent and he learned that he was being
considered for commitment, he engaged in sexual threats and
comments toward his four-year-old stepdaughter that resulted
in additional sanctions while imprisoned. It is clear from his
history, recent conduct, and the actuarial measures that he is
likely to engage in future acts of sexual misconduct. Whether
he is residing in the community, in a treatment facility, or
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incarcerated, [appellant] has evidenced an utter lack of
control of his sexual impulses.
Appellant does not challenge the veracity of these conclusions or argue that they are not
supported by the record, but rather states that the district court did not engage in its own
fact finding. Although the district court details the testimony of several witnesses, it also
stated that it found that the court-appointed examiners both testified credibly. Because
“[w]e give due deference to the district court as the best judge of the credibility of
witnesses,” Crosby, 824 N.W.2d at 356, and because appellant does not support his
argument with specific instances of error, we conclude that the district court did not err
by committing appellant as an SPP under Minn. Stat. § 253D.02, subd. 15.
IV.
Lastly, appellant argues that the civil commitment statute and MSOP are
unconstitutional. We disagree. We review the constitutionality of a statute de novo.
Rew v. Bergstrom, 845 N.W.2d 764, 776 (Minn. 2014). “Minnesota statutes are
presumed constitutional and . . . our power to declare a statute unconstitutional must be
exercised with extreme caution and only when absolutely necessary.” Hamilton v.
Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). We will uphold a statute
unless the challenger can demonstrate beyond a reasonable doubt that the statute is
unconstitutional. SooHoo v. Johnson, 731 N.W.2d 815, 821 (Minn. 2007).
“[F]reedom from physical restraint has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental action.” Kansas v.
Hendricks, 521 U.S. 346, 356, 117 S. Ct. 2072, 2079 (1997) (quotation omitted). “Due
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process requires that the nature of commitment bear some reasonable relation to the
purpose for which the individual is committed.” Foucha v. Louisiana, 504 U.S. 71, 79,
112 S. Ct. 1780, 1785 (1992). “Whether a confinement scheme is punitive has been the
threshold question for some constitutional challenges,” including due-process challenges.
Seling v. Young, 531 U.S. 250, 266, 121 S. Ct. 727, 737 (2001). In order to satisfy
substantive due process, a civil-commitment statute must “couple[ ] proof of
dangerousness with the proof of some additional factor” in order to “limit involuntary
civil confinement to those who suffer from a volitional impairment rendering them
dangerous beyond their control.” Hendricks, 521 U.S. at 358, 117 S. Ct. at 2080.
Minnesota caselaw has stated that the purposes of the commitment statute are
treatment and protection of the public, as opposed to punishment. See In re Civil
Commitment of Lonergan, 811 N.W.2d 635, 642 (Minn. 2012); Call v. Gomez, 535
N.W.2d 312, 319-20 (Minn. 1995). And the Minnesota Supreme Court has upheld the
commitment statute against substantive due-process challenges by concluding that the
statute is narrowly tailored to satisfy due process. In re Linehan, 594 N.W.2d 867, 872-
76 (1999); see also In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994).
Appellant also argues that the commitment statute violates his substantive due-
process rights by not providing adequate treatment. But this court has previously stated
that issues about the adequacy of sex offender treatment are procedurally premature at the
time of or immediately after civil commitment. In re Civil Commitment of Navratil, 799
N.W.2d 643, 651 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011); In re Civil
Commitment of Travis, 767 N.W.2d 52, 58 (Minn. App. 2009); In re Wicks, 364 N.W.2d
12844, 847 (Minn. App. 1985) (noting that “right-to-treatment issue is not reviewed on
appeal from a commitment order”), review denied (Minn. May 31, 1985). We therefore
conclude that appellant has not met his burden of showing that the commitment and
MSOP statutes are unconstitutional.
Affirmed.
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