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STATE OF MINNESOTA

IN COURT OF APPEALS

C2-98-469

In the Matter of:

Dustin Anton Hamilton Hoium.

Filed August 25, 1998

Affirmed

Lansing, Judge

Freeborn County District Court

File No. P7-97-1104

Chester D. Swenson, Swenson Law Office, 206 South Washington, Albert Lea, MN 56007 (for appellant Hoium)

Hubert H. Humphrey III, Attorney General, Piper Kenney Aafedt, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127

Considered and decided by Lansing, Presiding Judge, Norton, * Judge, and Forsberg, * Judge.

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

LANSING , Judge

The district court committed Dustin Hoium as a sexual psychopathic personality and a sexually dangerous person. Hoium appeals the merits of each indeterminate commitment and the constitutionality of the commitment procedures. The evidence is sufficient to meet the clear and convincing standard on each element of the commitment standard, and the constitutional challenges lack merit. We affirm.

 

FACTS

 

The facts relating to Dustin Hoium's sexual history, sexual offenses, and treatment were stipulated at the commitment hearing and are not in dispute. Hoium, now age 19, was emotionally abused during his early years, and when he was seven years old he was sexually abused by a 13-year-old neighborhood boy over a ten-month period.

Hoium began to engage in sexual misconduct in 1991. He sexually abused approximately 31 victims on 140 occasions prior to entering treatment. The usual victims were boys ranging in age from two years old to 13 years old. The abuse included fondling, fellatio, anal sex, and digital penetration. He also fondled and attempted to have intercourse with several young girls, and when he was 14 he had intercourse with his 15-year-old girlfriend, who became pregnant and gave birth to a child.

At age 14, Hoium pleaded guilty to second-degree criminal sexual conduct after he fondled and performed fellatio on a nine-year-old boy, and the juvenile court adjudicated him delinquent. He entered the Leo Hoffman Center in February 1994 to participate in a residential sex offender treatment program. The facility discharged Hoium after he continued to act out sexually with his peers and was unwilling to make changes in his behavior.

Hoium then resided at a series of correctional facilities where he continued to engage in inappropriate sexual behavior. He transferred to the Mille Lacs Academy to attend a second sex offender program. While there, he engaged in sexual misconduct with other residents and stalked a child while participating in an "off-grounds" trip. The program discharged him as a treatment failure. In January 1997, Hoium was placed at the Sauk Centre correctional facility. Despite learning in March 1997 that he was being evaluated for possible commitment, he continued to act out sexually. The commitment petition was filed in October 1997, and a hearing was held.

The court-appointed examiner, Dr. James M. Alsdurf, a licensed psychologist, testified extensively on Hoium's condition. Hoium also testified, explaining his plans if discharged and describing his recently developed control and empathy. The district court ordered Hoium's initial commitment to the Minnesota Sexual Offender Program (MSOP) as a sexual psychopathic personality and a sexually dangerous person.

MSOP filed a treatment report with the district court for purposes of a review hearing. MSOP concluded Hoium's condition was unchanged and recommended continued treatment at MSOP. The district court ordered that Hoium's initial commitment be made final and indeterminate, and Hoium appeals.

D E C I S I O N

Hoium challenges the district court determination that he meets the standards for commitment as a sexual psychopathic personality (SPP) and sexually dangerous person (SDP). See Minn. Stat. § 253B.02, subd. 18b (Supp. 1997) (SPP); Minn. Stat. § 253B.02, subd. 18c (Supp. 1997) (SDP).

The petitioner must prove that the standards for commitment are met by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (Supp. 1997); see Minn. Stat. § 253B.185, subd. 1 (1996) (providing that provisions of section 253B.l8 apply to SPP and SDP commitments). District court findings of fact will not be reversed unless clearly erroneous. In re Joelson , 385 N.W.2d 810, 811 (Minn. 1986). 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) ( Linehan I ).

Hoium disputes: (1) that his sexual conduct constitutes the requisite course of sexual misconduct required for an SPP and SDP commitment because it is remote in time and not the violent conduct at which SPP and SDP commitments are aimed; (2) that the evidence demonstrates an utter lack of power to control his sexual impulses (required for SPP commitment); (3) that the evidence supports the diagnosis of mental disorders (required for SDP commitment); and (4) that the evidence supports that he is likely to engage in this type of conduct in the future (required for SDP commitment).

I

For commitment under the SPP law, there must be a showing that the person has engaged in a "habitual course of misconduct in sexual matters." Minn. Stat. § 253B.02, subd. 18b. Similarly, for commitment as an SDP under Minn. Stat. § 253B.02, subd. 18c(a)(1) (Supp. 1997), there must be a showing that the person has engaged in a "course of harmful sexual conduct," defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a) (1996).

Hoium's argument that his sexual offenses did not occur recently enough to meet the course-of-sexual-misconduct requirement is not convincing. The acts have all taken place within the last six years, and for significant periods of time before the commitment, Hoium has been in treatment programs or confined. The supreme court has held that a person's criminal history showed a habitual course of sexual misconduct even when the last act of sexual misconduct occurred 17 years before the petition for commitment was filed. Linehan I , 518 N.W.2d at 611, 613. Remoteness does not discount the acts for purposes of determining the course of conduct, but may affect the predictive value when determining the likelihood that the person will engage in harmful acts in the future. Id. at 614 (setting out factors for district court to consider in deciding this factor); see Minn. Stat. § 253B.02, subd. 18b (providing future harm requirement for SPP commitment); Minn. Stat. § 253B.02, subd. 18c(a)(3) (same for SDP commitment).

Conduct supporting an SPP commitment must be "of such an egregious nature that there is a substantial likelihood of serious physical or mental harm being inflicted on the victims." In re Rickmyer , 519 N.W.2d 188, 190 (Minn. 1994) (holding record did not support finding that pedophile's acts of unauthorized sexual "touchings" and "spankings" constituted the kind of injury contemplated by the statute). Similarly, for an SDP commitment, "harmful sexual conduct" is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a).

Hoium claims that his behavior was not sufficiently violent because he did not engage in actions such as choking, wielding a weapon, threatening to kill, or killing his victims. But the district court was required to determine the likelihood of serious physical or emotional harm caused by his conduct. The court credited Dr. Alsdurf's opinion that the type of abusive acts Hoium committed against his young victims, including fondling, fellatio, digital penetration, and anal penetration, using coercion, force, and manipulation, were likely to cause serious emotional harm. Alsdurf testified that the younger the child, the more damaging the abuse, which "contaminates [the child's] sense of himself." The psychological disruption could manifest in a number of ways, including eating disorders, bed-wetting, or depression. Dr. Alsdurf's testimony graphically illustrates the serious emotional harm to which Hoium's young victims were subjected. The district court's determination properly applied the law and was supported by clear and convincing evidence.

II

The supreme court has listed factors that are relevant in considering whether a person has a predatory sex impulse and the utter lack of power to control it. See Minn. Stat. § 253B.02, subd. 18b (setting out requirements for SPP commitment); In re Blodgett , 510 N.W.2d 910, 915 (Minn. 1994) (discussing factors court must consider). In addressing these factors, Hoium asserts that his acts were not physically violent, that he has insight into his sexual behavior, expresses remorse, takes responsibility for his misconduct, and has completed the sex offender program at Sauk Centre.

Dr. Alsdurf extensively addressed each of the factors for identifying an utter lack of power to control sexual impulses and concluded that Hoium was completely uncontrollable while offending. He testified that Hoium's acts were likely to cause serious physical or emotional harm to his victims and that Hoium was cunning and sophisticated in gaining access to his young victims by befriending them and their families. He noted that despite Hoium's claim that over the last six months he gained control over his sexual impulses, even Hoium stated that he was uncertain whether he would reoffend. Alsdurf disputed Hoium's assessment of himself, explaining that Hoium does not have a clear understanding of his history of offending, and his communicated level of empathy does not indicate he has really gained a deep sense of empathy for his victims. He further observed that Hoium has little insight into his behavior and has not finished treatment. He is an untreated sex offender, does not have an adequate treatment plan, and is not yet able to apply the tools and strategies that he has learned to reduce his likelihood of reoffending.

Hoium contends Dr. Alsdurf failed to "take the time" to review records from September through November 1997 showing Hoium completed treatment at Sauk Centre. Alsdurf testified that he reviewed all of the records he received from Hoium, which were current at least through September. In the most recent evaluation, MSOP noted that despite his completion of the Sauk Centre treatment, his former treatment providers concluded that he still presented a high risk of reoffending. The district court had clear and convincing evidence from which to conclude that Hoium exhibited an utter lack of power to control his sexual impulses.

III

Hoium also challenges the district court determination that he suffers from sexual, personality, and other mental disorders. Minn. Stat. § 253B.02, subd. 18c(a)(2) (requiring such determination for SDP commitment). Dr. Alsdurf diagnosed Hoium with pedophilia and personality disorder not otherwise specified, including antisocial personality traits, histrionic traits, and narcissistic personality traits. Dr. Anita Schlank, the clinical director of the MSOP, diagnosed Hoium with paraphilia, not otherwise specified.

Hoium challenges Dr. Alsdurf's diagnosis of pedophilia, contending that a diagnosis of pedophilia for one who is under age 16 is precluded when the sexual offense is committed with a child under the age of 13. Dr. Alsdurf explained that pedophilia, a "remarkably entrenched sexual disorder," is a condition in sexual paraphilia in which the person has an ongoing desire to pursue sexual contact with children. Hoium admittedly had this condition from early adolescence through the present.

Hoium also challenges the testimony by an MSOP social worker at the review hearing as to her explanation of his diagnosis. But it was Dr. Anita Schlank, MSOP clinical director, who diagnosed Hoium with paraphilia not otherwise specified, based on his attraction to adolescent boys and his history of molesting both male and female children. Although Hoium claims the social worker used improper criteria, the social worker specifically deferred to Dr. Schlank's diagnosis.

Hoium also claims that the results of psychological testing showed he was within normal limits and that a test for psychopathy showed his condition did not arise to psychopathy. Dr. Alsdurf explained the significance of the test results and how they supported the seriousness of Hoium's condition. The district court's conclusion that Hoium currently suffers from sexual, personality, and other mental disorders is supported by clear and convincing evidence.

IV

Hoium contends that as to his SDP commitment, the district court did not have clear and convincing evidence from which to conclude he was highly likely to engage in acts of harmful sexual conduct if not permanently confined. See Minn. Stat. § 253B.02, subd. 18b(a)(3). The supreme court has listed several factors that district courts may consider in determining the likelihood that a person subject to an SPP commitment will commit additional harmful conduct. Linehan I , 518 N.W.2d at 614. This court has held these same factors should be considered in cases applying the SDP law. In re Linehan , 544 N.W.2d 308, 314 (Minn. App. 1996), review granted (Minn. Mar. 19, 1996).

Hoium focuses on the arguments that his testing results did not show psychopathy, there was no evidence as to the relevant factors, and that he completed treatment. But the record shows and the district court found that Dr. Alsdurf extensively addressed the relevant factors and found them very significant. Dr. Alsdurf focused on the facts Hoium was only 18 years old and had never been able to control his sexual behavior in the past. The very early structuring of his sexual life around sexually deviant behavior was very significant. His conduct presents a high likelihood of harm. Dr. Alsdurf explained that as to stress, Hoium's limited skills will make it difficult for him to obtain a job and will create stress if he gets out of prison. Hoium copes with stress poorly and admitted he would be two to four times more likely to reoffend if unable to care for himself. He has much social mobility and access to children, he is in a high offending population, and, if released, he would be unsupervised. Hoium is considered untreated by treatment professionals.

The district court concluded that, based on Hoium's past course of harmful sexual conduct, his mental disorders, and his utter lack of power to control his sexual impulses, it is highly likely he will engage in further harmful sexual conduct. This is supported by clear and convincing evidence and is not clearly erroneous.

 

V

 

Hoium also raises constitutional claims, although he acknowledged that he did not raise these issues to the district court. Failure to raise constitutional arguments below precludes consideration on appeals. See In re Welfare of C.L.L. , 310 N.W.2d 555, 557 (Minn. 1981) (appellant may not raise constitutional issue for first time on appeal). Even if Hoium's constitutional claims could be considered, this court has explicitly rejected them. See Linehan II , 544 N.W.2d at 317-18 (upholding SDP statute against substantive due process, equal protection, double jeopardy, and ex post facto challenges); Call v. Gomez , 535 N.W.2d 312, 319-20 (Minn. 1995) (upholding PP commitment against double jeopardy challenge), cert. denied , 117 S. Ct. 772 (1997); Blodgett , 510 N.W.2d at 916-17 (upholding PP law against substantive due process and equal-protection challenges); see also Kansas v. Hendricks , 117 S. Ct. 2072, 2079-86 (1997) (upholding constitutionality of similar sexual predator law against substantive due process, double jeopardy, and ex post facto challenges). These issues are now pending before the Minnesota Supreme Court pursuant to a remand from the United States Supreme Court. In re Linehan , 118 S. Ct. 596 (1997). Until the supreme court decides Linehan II , this court will continue to follow its dictates and find the acts constitutional. Hoium's final argument, that offenses that occurred when he was a juvenile cannot be considered for commitment purposes, does not have a basis in the constitution.

Affirmed.

 

 

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