A17-0613

This opinion will be unpublished and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
A17-0558
A17-0613

In the Matter of the Civil Commitment of: Kenrick Allen Shell

Filed August 21, 2017
Affirmed
Rodenberg, Judge

Judicial Appeal Panel
File No. AP16-9019
Hennepin County File No. 27-MH-PR-06-838

Lori Swanson, Attorney General, Heather N. Kjos, Assistant Attorney General, St. Paul,
Minnesota (for appellant Commissioner of Human Services)

Michael Freeman, Hennepin County Attorney, Elizabeth S. Beltaos, Sr. Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County)

Marilyn B. Knudsen, St. Paul, Minnesota (for respondent Kenrick Allen Shell)

Considered and decided by Rodenberg, Presiding Judge; Kirk, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Minnesota Commissioner of Huma n Services challenges the judicial
appeal panel’s grant of provisional discha rge from the Minnesota Sex Offender Program
(MSOP) to respondent Kenrick Allen Shell. We affirm.

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D E C I S I O N
Respondent was judicially committed as a sexually dangerous person in 2007. He
petitioned for provisional discha rge and for discharge in 2015 . A special review board
recommended that respondent be provisionally discharged. A hearing was held before a
judicial appeal panel (panel). The panel found that respo ndent had established a prima
facie case for provisional discha rge. At the hearing, appe llant produced evidence and
expert testimony supporting deni al of respondent’s provisi onal-discharge request. The
panel granted respondent’s petition for provisi onal discharge, and de nied his petition for
discharge. On appeal, appellant argues that the panel failed to make sufficient findings and
erred in concluding that appellant had not shown by clear and conv incing evidence that
provisional discharge should be denied.
We review a judicial appeal panel’s decision for clear error, “examining the record
to determine whether the evidence as a whole sustains the appeal panel’s findings and not
weighing the evidence as if trying the matter de novo.” Larson v. Jesson, 847 N.W.2d 531,
534 (Minn. App. 2014) (quotations omitted). “Findings of fact will not be reversed if the
record as a whole sustains those findings.” Rydberg v. Goodno , 689 N.W.2d 310, 313
(Minn. App. 2004). If the record sustains the findings of the panel, it is immaterial that it
might also support contrary findings. Id. at 314; Piotter v. Steffen, 490 N.W.2d 915, 919
(Minn. App. 1992), review denied (Minn. Nov. 17, 1992). “[T]his court reviews de novo
questions of statutory construc tion and the application of st atutory criteria to the facts
found.” In re Civil Commitment of Kropp , 895 N.W.2d 647, 650 (Minn. App. 2017),
review denied (Minn. June 20, 2017).

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I. The findings are sufficiently particular to permit appellate review.
As an initial matter, appellant argues that the panel failed to make sufficiently
particular findings of fact to enable appella te review because the panel’s findings were
mere recitations of evidence and not meaningfully tied to the panel’s conclusions of law.
Citing In re Civil Commitment of Spicer , 853 N.W.2d 803, 810- 12 (Minn. App. 2014),
appellant argues that the case should be remanded to the panel for further findings.
In Spicer, a district court concluded that the state had met its burden of proving by
clear and convincing evidence that Spicer satisfied the cr iteria for commitment as both a
sexually dangerous person and a sexual psychopathic personality. 853 N.W.2d at 807. On
appeal, we held that the district court’s findings were not sufficient because we were unable
to determine which of the statutory factors the district court considered most significant in
reaching its conclusion, or whic h portions of the experts’ in consistent and contradictory
opinions the district court relied on in making its decisions. Id. at 810-12.
This case is unlike Spicer. In Spicer, the district court concluded that the state had
met its burden of proof by clear and convincing evidence, but we were unable to determine
how it reached that conclusion in light of various inconsistencies. Id. Here, appellant had
the burden of proving, by clear and convincing evidence, that discharge should be denied.
Minn. Stat. § 253D.28, subd. 2( d) (2016). The panel concluded that the burden of proof
was not met. The panel’s findings, though larg ely recitations of the evidence presented,
clearly indicate why appellant failed to carry the burden of proof. The panel tied those
facts to the conclusions of law by stating that it found that the recommendations of the

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clinical leadership and treatment staff, a nd the security provided by the provisional
discharge plan, outweighed the concerns expressed by appellant’s expert witness.
II. The record supports the panel’s conclusi on that appellant had not produced
clear and convincing evidence that provisional discharge should be denied.

Appellant next argues that the panel erroneously concluded that appellant failed to
prove by clear and convincing evidence that th e provisional discharge should be denied.
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).
Appellant was required to prove by clear a nd convincing evidence that respondent
was not “capable of making an acceptable ad justment to open so ciety.” Minn. Stat.
§§ 253D.28, subd. 2(d), .30, subd. 1(a) (2016 ). Appellant could have established this by
proving either (1) respondent needed treatment and supervision in his current setting, or
(2) the provisional discharge plan would not provide a reasonable degree of protection to
the public or allow respondent to adjust successfully to the co mmunity. Minn. Stat.
§ 253D.30, subd. 1(b) (2016).
Appellant argues that the burden of proof was satisfied by evidence which suggests
that respondent needs continued treatment in his current setting for issues concerning his
sexual arousal and emotional instability. Appellant also argues that the evidence supports
a conclusion that respondent would be a risk to the public and unable to successfully adjust
to society if his sexual and psychological issues were unresolved. Appellant relied on the

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expert testimony and report of Dr. Thornton, who recommended that respondent continue
treatment at Community Preparation Servic es until respondent’s arousal patterns were
managed, and until respondent had addressed issues surrounding his sexual preferences
and the causes of his emotional distress. Dr. Thornton did not believe that the provisional-
discharge plan adequately addressed his conc erns regarding the risk to the public and
respondent.
The evidence amply supports the panel’s deci sion to grant provisional discharge.
The MSOP clinical leader ship supported re spondent’s petiti on for provisional
discharge, noting that respondent had succ essfully completed a nine-month arousal-
management program. Respondent exhibite d positive behavior while in the community,
including seeking opportunitie s to expand his support ne twork, self-monitoring, and
utilizing his relapse-prevention plan. The clinical leadership reported that respondent has
also made progress in the area of emotiona l and cognitive distortions management, and
practices mindfulness exercises “for stress reduction and mood management.” The MSOP
clinical leadership, while recognizing that re spondent had continuing areas of treatment
need, recommended “a period of community pl acement where he could continue to work
with a sex offender specific treatment provider to further generalize his treatment gains and
further establish his arousal management practices in the community setting.”
Two licensed psychologists likewise suppor ted provisional discharge. Dr. Mack
acknowledged that respondent continues to ha ve risk factors that need treatment, but
opined that respondent’s “rem aining treatment needs may best be addressed in a
community setting.” The psychol ogist concluded that a residential placement with staff

6
support and security measures would be an appropriate placement for respondent.
Dr. Thompson also believed that a gradual adjustment to society would be appropriate and
that the provisional discharge plan addresse s his concerns about th e type of placement
respondent needed. He opin ed that respondent’s areas of treatment need could be
adequately addressed in an outpatient sex-offender treatment program.
The reintegration director of MSOP te stified concerning the supervision and
treatment requirements for persons who are pr ovisionally discharged. Without opining
about whether respondent was an appropriate candidate for provisional discharge, the
director testified about the security offe red by a provisional-discharge placement at
Zumbro House. The director testified that Zumbro House is a high-security residence with
around-the-clock staff, cameras in common areas , and alarms on exterior doors. He also
testified that persons on provisional discharge are monitored by GPS units. After the panel
issued an order granting provisional discharg e, the order was amended to indicate that
respondent had been accepted for a placement at Zumbro House.
Dr. Thornton’s concerns, in light of the re cord as a whole, do not amount to clear
and convincing evidence that provisional discharge should be denied. The panel opted to
credit other evidence, which supports its conc lusion that appellant failed to demonstrate
that respondent needed continued treatment or supervision in his current setting. Id., subd.
1(b)(1). The record also supports the panel’s conclusion that appellant failed to
demonstrate by clear and convincing evidence that the provisional discharge plan would
not provide a reasonable degree of protection to the public or permit respondent to adjust

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successfully to the community. Id., subd. 1(b)(2). Because the record as a whole supports
the panel’s findings, we affirm.
Affirmed.