In the Matter of the Civil Commitment of: Jose Garcia Arellano

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1562

In the Matter of the Civil Commitment of:
Jose Garcia Arellano

Filed March 27, 2017
Affirmed
Ross, Judge

Ramsey County District Court
File No. 62-MH-PR-16-59

Steven R. Kufus, Steven R. Kufus, P.A., St. Paul, Minnesota (for appellant)

John J. Choi, Ramsey County Attorney, Lawrence M. Schultz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Halbrooks, Judge; and Schellhas,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Appellant Jose Arellano s odomized, masturbated, or forced oral sex on his two
adolescent stepsons and other neighborhood boys for about three years beginning in 1991.
The district court convicted Arellano of three counts of criminal sexual conduct and
imprisoned him until 2016, when the state successfully petitioned the district court to
civilly commit him as a sexually dangerous person and a sexual psychopathic personality.
Because we ca nnot conclude that the district court abused its discretion by excluding
2
testimony and because clear and convincing evidence supports the district court’s civil-
commitment findings and conclusion, we affirm the commitment order.
FACTS
Jose Arellano sexual ly assaulted his two stepsons, C.A. and J.A., many times
between 1991 and 1994. He began by making them watch pornographic films and imitate
the acts on each another. He eventually involved himself, forcing the boys to submit to his
oral and anal penetrati on. Arellano video record ed some of his abuse. He also abused
neighborhood boys, including M.E., who reported that Arellano penetrated him anally
many times and would also fondle hi s genitals. M.E.’s younger brother, M.F., recounted
that Arellano had rubbed his pen is against M.F.’s buttocks and fondled M.F.’s penis and
buttocks.
C.A. ran away from home and reported Arellano’s abuse to child protection workers
in 1994. But C.A. soon recanted after Arellano threatened him. In 1996, however, the boys
and their mother reported the abuse and showed police Arellano’s video recordings . The
recording showed Arellano involved in masturbation and oral-penetration incidents in 1992
and 1993.
After the state charged Arellano with multiple counts of criminal sexual conduct,
Arellano pleaded guilty to one count of first -degree criminal sexual conduct against M.E.
and faced a court trial on two counts of first -degree criminal sexual conduct against his
stepsons. The district court found Arellano guilty and imposed consecutive sentences of
182 months, 86 months, and 86 months.
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The state petitioned for Arellano’s civil commitment in January 2016, alleging that
Arellano is a sexually dangerous person and a sexual psychopathic personality . See Minn.
Stat. § 253D.02, subds. 15, 16 (2016) . The district court held a trial on the petition and
received evidence detailing the facts we have just summarized.
The district court also received evidence about Arellano’s education, treatment, and
conduct during his incarceration. It learned that a 1997 sex -offender intake assessment
indicated Arellano’s only partial admissions to his crimes and recommended long -term
intensive treatment and psychoeducational programming. It learned that Arellano had been
terminated from half of his educational courses. It learned that Arellano was ineligible to
enter the sex -offender treatment program because it requires English proficiency and
Arellano missed the opportunities the prison afforded him to improve his English. And it
learned that Arellano had been institutionally disciplined twice for sexual misconduct.
The district court learned from two experts about Arellano’s suitability for release
rather than civil commitment. The experts did not agree. The district court learned from
Dr. Peter Meyers, the expert who favored commitment, that Arellano’s performance on the
Minnesota Sex Offender Screening Tool -3.1.2 (MnSOST) placed him in the 91.40
percentile and at a high risk for re-offense. Only months earlier, another doctor conducted
a MnSOST, which predicted Arellano’s recidivism at 14.11%, and a correctional -
department committee subsequently assigned Arellano a “high” risk level of 3. The district
court learned that the Hare Psychopathy Checklist (Revised-II) indicated a score of 26,
which fell below the categorical cutoff for psychopathy. The Sexual Violence Risk -20
assessment put Arellano in the high-risk category for further sexual violence. And although
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the court learned that the Static -99R assessment returned a “0” score, suggesting that
Arellano is in the “no risk” category , it also received clarifying testimony that this
assessment tool depended on charges and convictions, missing the full range of Arellano’s
multiple victims and multiple offenses. Dr. Meyers provided a thorough Blodgett-factor
analysis, based on In re Blodgett , 510 N.W.2d 910 (Minn. 1994), and a Linehan-factor
analysis, based on Matter of Linehan , 518 N.W.2d 609 (Minn. 1994) . Dr. Meyers
concluded that Arellano met the statutory elements of a sexual psychopathic personality
and a sexually dangerous person.
Another expert , Dr. Thomas Alberg, reached different results using some of the
same evaluative tools and factors, concluding after his thorough review,
I do not believe that [Arellano] meets the criteria to be someone
who demonstrates an utter lack of control of his sexual
behavior and is dangerous to the public. Consequently, I do not
recommend that he be committed as a sexual psychopathic
personality.

He also concluded that Arellano did not meet the criteria to be committed as a sexually
dangerous person.
Arellano’s counsel also examined Dr. Alberg as follows:
Q: [D]id you note whether or not the Department of
Corrections recommended that this matter proceed as a -- on
petitions for a sexually dangerous person or a sexual
psychopathic personality?
A: They did not.

[State]: Objection, Your Honor. I don’t think that’s relevant.

[The Court]: I’ll sustain the objection.
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The record also contains a document entitled, “Recommendation to Commissioner
of Corrections from Independent Legal Counsel.” In it, independent counsel recommended
against a petition seeking to commit Arellano as a sexually dangerous person or sexual
psychopathic personality.
The district court considered the competing expert opinions along with the other
evidence, and we briefly summarize its thorough findings: Arellano never sincerely sought
sex-offender treatment despite having the opportunity to obtain it; he ha s inadequate
control over his sexual impulses ; he is highly likely to engage in future harmful sexual
conduct; he e ssentially refused treatment by denying his offenses occurred and being
unwilling to become proficient in English—a known prerequisite to treatment; he regularly
denied engaging in his offending behavior “until his self -serving statement” to the expert
who testified in his favor; and the expert who believed commitment is fitting offered
opinions that were “strongly supported by the facts in the record and are wei ghed much
heavier than those of” the expert who opposed commitment.
The district court found that Arellano is a sexually dangerous person and a sexual
psychopathic personality, and it ordered him committed indeterminately.
Arellano appeals.
D E C I S I O N
Arellano argues that the district court inappropriately precluded Dr. Alberg from
testifying about a Minnesota D epartment of Corrections (DOC) recommendation
concerning his civil commitment. He also argues that the district court erred by determining
6
that he is a sexually dangerous person and that he is a sexual psychopathic personality. The
arguments do not lead us to reverse the civil-commitment order.
I
During the trial, Arellano’s counsel attempted to ask Dr. Alberg whether the DOC
recommended a petition to commit Arellano, but the district court sustained the state’s
relevance objection. Arellano argues that the district court abused its discretion. The
decision to admit or exclude evidence rests within the district court’s broad discretion, and
we will reverse only if the district court clearly abused that discretion. In re Civil
Commitment of Ramey , 648 N.W.2d 260, 270 (Minn. App. 2002), review denied (Minn.
Sept. 17, 2002). And we will not reverse for a new trial unless the appellant demonstrates
that the error was prejudicial. See In re Robb , 622 N.W.2d 564, 574 (Minn. App. 2001),
review denied (Minn. Apr. 17, 2001).
Before a convicted sex offender is released from prison , the commissioner of
corrections must preliminarily determine whether a petition for commitment is appropriate.
Minn. Stat. § 244.05, subd. 7(a) (2016). The determination “ must be based on a
recommendation of a [DOC] screening committee and a legal review and recommendation
from independent counsel knowledgeable in the legal requirements of the civil
commitment process .” Id. The record contains a DOC risk assessment and a
recommendation from independent legal counsel. But t he state correctly asserts that,
contrary to Arellano’s suggestion, the record does not contain any finding by the DOC that
there was no sufficient basis for commitment. Arellano directs us only to the purported
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recommendation of independent legal counsel. The recommendation of legal counsel is not
the same as a recommendation of the DOC itself. See id.
Arellano argues that the district court’s evidentiary decision deprived him of his
fundamental right to be heard. The first problem with the argument is that the district court
prohibited only Dr. Alberg’s testimony about the DOC’s recommendation ; it was never
asked to admit the actual recommendation. And second, e ven if we were to assume an
abuse of discretion, the district court received Dr. Alberg’s ultimate recommendation not
to commit, and Arellano fails to demonstrate that the admission of any excluded testimony
would have affected the district court’s decision. We decline to reverse on this issue.
II
Arellano challenges the factual bases for the district court’s determination that he is
a sexually dangerous person suitable for indeterminate civil c ommitment. We generally
defer to the district court’s findings of fact, and we will not reverse those findings unless
they are clearly erroneous. Ramey, 648 N.W.2d at 269. This case hangs la rgely on the
testimony of one expert witness in contrast to the testimony of a different expert witness.
We defer to the district court’s credibility determinations, recognizing that its evaluation is
particularly significant when the findings rest “almost entirely on expert testimony.” In re
Civil Commitment of Crosby , 824 N.W.2d 351, 356 (Minn. App. 2013), review denied
(Minn. Mar. 27, 2013). But whether the record contains clear and convincing evidence
supporting civil commitment is reviewed de novo. Id.
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We are satisfied that the district court received sufficient evidence that supports its
fact finding that Arellano is a sexually dangerous person. A “sexually dangerous person”
is one who:
(1) has engaged in a course of harmful sexual conduct as
defined in [ Minnesota Statutes section 253D.02,
subdivision 8];
(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 8.

Minn. Stat. § 253D.02, subd. 16(a). The Minnesota Supreme Court clarified that the statute
“allows civil commitment of sexually dangerous persons who have engaged in a prior
course of sexually harmful behavior and whose present disorder or dysfunction does not
allow them to adequ ately control their sexual impulses , making it highly likely that they
will engage in harmful sexual acts in the future. ” In re Linehan , 594 N.W.2d 867, 876
(Minn. 1999) (emphasis added). Arellano’s arguments focus specifically on whether the
evidence supp orts the finding of his inability to control his sexual impulses and the
likelihood of his future harmful sexual conduct.
Ability to Control Sexual Impulses
Arellano argues that the district court erroneously concluded that Dr. Alberg failed
to offer any opinion about Arellano’s ability to control his sexual impulses. His argument
rests largely on a misunderstanding of the district court’s statements. Arellano highlights
this part of Dr. Alberg’s direct examination:
Q: Now, Dr. Alberg, I’ll cut to the chase. . . . [D]o you have an
opinion . . . as to whether or not Mr. Arellano meets the criteria
9
to be a sexual psychopathic personality or a sexually dangerous
person?
A: I do.

Q: And what is that opinion?
A: My opinion is he does not meet the criteria to be committed
as either one of those classifications.

Q: And, just briefly, what has brought you to that conclusion?
A: Well, with the case of the sexually dangerous person, I think
really the key thing is that I can’t say he’s highly likely to
reoffend. And I think with the sexual psychopathic personality,
I think, again, there’s -- whether he’s highly likely to reoffend
or not feeds very much into whether he has an utter lack of
power to control his sexual impulses, so -- I can’t say that he
has an utter lack of control.

[State]: I’m sorry? The last part?
A: He does not have an utter lack of control.

Arellano’s argument misses the context of t he district court’s finding that “Dr.
Alberg did not opine on this issue.” (Emphasis added.) The district court clarified that it
was addressing sexually dangerous persons, and it presented the applicable Linehan
holding. It correctly noted that “it is unnecessary to establish that [Arellano] is completely
unable to control his sexual impulses,” (emphasis added), see Minn. Stat. § 253D.02, subd.
16(b), and it addressed Arellano’s failure to accept even his need to change. The findings
immediately following this discussion were that Dr. Alberg did not opine on the issue and
that clear and convincing evidence established that Arellano has inadequate control over
his sexual impulses.
The transcript demonstrates that Dr. Alberg ’s summary statement addressed his
assessment of both the sexually -dangerous-person and sexual-psychopathic-personality
standards. He also used the phrase “utter lack of power to control,” a statutory phrase
10
included in the definition of “sexual psychopathic personality ,” not “sexually dangerous
person.” See Minn. Stat. § 253D.02, subd. 15. Linehan addressed an “adequate” control,
rather than an “utter lack” of control. 594 N.W.2d at 876. And t he district court later
addressed the “utter lack of power to control” issue in determining that Arellano is a sexual
psychopathic personality. We are not persuaded that the district court’s challenged finding
is clearly erroneous.
Likelihood of Re-offense
Arellano contends that clear and convincing evidence did not prove that he is highly
likely to engage in future harmful sexual conduct. The supreme court requires the district
court to c onsider the individual’s demographic characteristics, his history of violent
behavior, the base rate statistics for violent behavior among individuals with a similar
background, the sources of stress in his environment, the similarity of present or future
contexts to those in which he used violence pr eviously, and his record in sex -therapy
programs. In re Civil Commitment of Ince , 847 N.W.2d 13, 22 (Minn. 2014) (citing
Linehan, 518 N.W.2d at 614). The district court carefully addressed each factor, covering
the evidence thoroughly.
Arellano focuses on the inconsistent expert assessments analyzing the likelihood of
his re-offense. Each expert gave reasoned assessments tied to his different approach to the
assessment tools. The district court could not equally credit both experts, of course, and
the record informs us that it chose the expert whose explanations were most persuasive on
the interpretation of the data and on the weight of the different compo nents of each
assessment tool. Arellano’s argument boils down mostly to his concern that the district
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court’s findings are based on its crediting of the wrong expert’s opinion. But sitting on
review, we def er to the district court’s determinations of credibility, especially when its
findings rest “almost entire ly on expert testimony.” Crosby, 824 N.W.2d at 356. Our
careful review of the record, including the expert testimony, informs us that ample evidence
supports the district court’s finding of clear and convincing evidence that it is highly likely
that Arellano w ould engage in future harmful sexual conduct if he were not civilly
committed. We therefore affirm the district court’s determination that Arellano is a
sexually dangerous person.
III
Arellano also challenges t he district court ’s determination that he is a sexual
psychopathic personality and that commitment is therefore appropriate. His argument on
this issue faces the same difficulty as the last, as it depends on factual findings and
credibility assessments that generally call for our deference to the district court judge who
received the testimony firsthand. When the evidence about the existence of a psychopathic
personality is conflicting, it raises a question of fact. In re Pirkl , 531 N.W.2d 902, 907
(Minn. App. 1995), review denied (Minn. Aug. 30, 1995). But we ask only whether clear
and convincing evidence supports civil commitment. Crosby, 824 N.W.2d at 356.
A sexual psychopathic personality is someone who has:
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 e videnced, by a habitual
course of misconduct in sexual matters, an utter lack of power
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to control the person ’s sexual impulses and, as a result, is
dangerous to other persons.

Minn. Stat. § 253D.02, subd. 15. Arellano’s challenges address the “habitual co urse of
misconduct” and “utter lack of power to control . . . sexual impulses” requirements.
Habitual Course of Misconduct in Sexual Matters
Arellano argues that “[t]here is no [f]inding of [f]act that [ he] committed any acts
of sexual abuse prior to 1991 nor after 1994.” He claims that the district court improperly
relied on his sexual disciplinary violations. The relevant portion of the district court’s
findings provides as follows:
[Arellano’s] history and behavior while incarcerated by the
[DOC] demonstrate a habitual course of sexual misconduct.
This is shown by his three convictions for the most serious sex
offenses, his sexually assaulting [M.F.] and his institutional
rule violations, including violations of a sexual nature that
resulted in institutio nal punishment. [Arellano’s] targeted
deviancy is children and he had no opportunity to sexually
assault minors while in prison surrounded by adult men.

Arellano argues that the two incidents in prison do not relate back to his sexual abuse of
children. His point is valid. A showing of similar incidents of misconduct or of incidents
that form a pattern can establish a habitual course of misconduct in sexual matters. See,
e.g., Crosby, 824 N.W.2d at 359. But Arellano’s disciplinary violations are dissimilar to
his crimes and would not themselves constitute habitual sexual misconduct.
The state correctly contextualizes the finding, observing that the district court’s
primary basis for its finding was the repeated sexual abuse over a period of years. It is true
that Dr. Alberg characterized the child abuse as “episodic” rather than “habitual,” but the
district court recognized that the abuse spanned years and allegedly included hundreds of
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sexual encounters with the victimized children. And while Arellano thinks it is “important
to note the victims reported [that] the last sexual abuse occurred in June 1994, more than
two years before [his] arrest,” the district court was mindful that Arellano curbed his abuse
only after y ears of continuous assaults and only after his stepson reported the abuse.
Arellano does not explain why the district court was bound to find that hundreds of sex -
abuse episodes involving multiple victim boys over a period of years does not constitute
“habitual” conduct, and no explanation is apparent to us.
Utter Lack of Power to Control Sexual Impulses
Arellano argues that the district court erred by finding that he has an utter lack of
power to control his sexual impulses. To determine whether a person has an utter lack o f
power to control his sexual impulses, the district court should consider multiple factors:
[T]he 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.

In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994). The district court’s Blodgett analysis
covered those factors based on the competing testimony, and it concluded that Arellano
has an utter lack of power to control his impulses. It based this conclusion on its finding
that Arellano demonstrated a lengthy pattern of frequent sexual conduct that included
family members and other children, reasoning, “[Arellano] clearly preys on the weak and
vulnerable.” It also accurately observed that Arellano “takes a victim stance and ha s
historically denied sexual misconduct until his release from prison.”
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Arellano challenges the district court ’s finding that he refused treatment. The
finding rests on Arellano’s “denial of his offenses and his unwillingness to satisfy the
English-proficiency requirement” for treatment. We are unconvinced by Arellano’s
contention that it is “unfair” to characterize his behavior as a refusal of treatment on
account of his being waitlisted for continuing education . Although the record does show
that Arellano was waitlisted rather than enrolled in the English -proficiency course, it also
shows that he was waitlisted because of his own misconduct, which caused his placement
in segregation. The district court had ample reason to surmise that Arellano’s placement
on the waitlist resulted from his own behavior. Arellano does not persuasively challenge
the district court’s alternative basis for concluding that he essentially refused treatment—
his continually denying key aspects of his sex abuse. He also fails to refute the remainder
of the district court’s Blodgett-factor analysis.
Arellano does challenge the district court’s related Irwin analysis, which applies to
individuals with a large gap of time between a petition for commitment and their last act
of sexual misconduct. See In re Irwin , 529 N.W.2d 366, 375 (Minn. App. 1995), review
denied (Minn. May 16, 1995) . The district court considered this gap and found that
Arellano never began or completed sex -offender treatment, that he denied that a problem
existed, and that it was at best debatable whether he began to control his sexual behavior
independently. We are satisfied that the district court adequately addressed the gap and find
that Arellano’s related arguments do not merit further discussion.
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The district court’s ultimate determination is supported by the record and proper
analysis. We therefore affirm the district court’s determination that Arellano is a sexual
psychopathic personality.
Affirmed.