A18-0132

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0130
A18-0132

In the Matter of the Civil Commitment of: Thomas Ray Duvall.

Filed July 16, 2018
Affirmed
Randall, Judge*

Judicial Appeal Panel
File No. AP16-9042
Hennepin County District Court
File No. 27-P1-91-034113

Lori Swanson, Attorney General, Michael Everson, Noah A. Cashman, Heather Kjos,
Assistant Attorneys General, St. Paul, Minnesota (for appellant Commissioner of Human
Services)

Michael O. Freeman, Hennepin County Attorney, Theresa Couri, Managing Assistant
County Attorney, John L. Kirwin, Assistant County Attorney, Minneapolis, Minnesota (for
appellant Hennepin County)

William L. Lubov, Golden Valley, Minnesota; and

Michael C. Hager, Minneapolis, Minnesota (for respondent Thomas Ray Duvall)

Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Randall,
Judge.
S Y L L A B U S
On appeal, we review a judicial appeal panel’s order granting provisional discharge
for clear error. We will not reverse the panel’s provisional discharge unless the party

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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opposing discharge proves by clear and convincing evidence that the provisional discharge
should be denied.
O P I N I O N
RANDALL, Judge
In 1991, Thomas Ray Duvall was civilly committed as a “psychopathic personality”
under what was then Minn. Stat. § 526.09 (1990). In 2014, Duvall requested a provisional
discharge from his commitment. A judicial appeal panel 1 granted his request. T he
commissioner of human services and Hennepin County appeal. We conclude the panel did
not err by finding that Duvall satisfied the statutory requirements for provisional discharge.
FACTS
In 1991, Duvall was civilly committed to the Minnesota Security Hospital as a
psychopathic personality un der what was then Minn. Stat. § 526.09 (1990) . Duvall’s
commitment was based on repeated sexual assaults that occurred over thirty years ago .
Duvall’s first known sexual offense occurred in May 1975 , when he and two other males

1 A person committed as a sexually dangerous person or a person with a sexual
psychopathic personality must first seek provisional discharge through a special review
board (SRB). Minn. Stat. § 253B.18, subd. 7 (2016 ). Any aggrieved party may petition
the SRB within seven days to review the revocation. Minn. Stat. § 253B.18, subd. 13
(2016). If an aggrieved party petitions the SRB, the SRB shall “review the circumstance s
leading to the revocation and shall recommend to the commissioner whether or not the
revocation shall be upheld.” Id. To challenge a recommendation of the SRB, the
committed person or the commissioner may petition the judicial appeal panel (SCAP) for
a rehearing and reconsideration of the SRB’s recommendation. See Minn. Stat. § 253D.28,
subd. 1(a) (2016). The judicial appeal panel consists of three judges appointed from acting
judges of the state. See Minn. Stat. § 253B.19 (2016). “A party aggrieved by an order of
the appeal panel may appeal from the decision of the appeal panel to the Court of Appeals
as in other civil cases.” Id., subd. 5.

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raped a 17-year-old girl. On September 4, 1978, Duvall again raped a 17-year-old girl. He
pleaded guilty to criminal sexual conduct in the third degree . Duvall attende d treatment
for approximately three months, left treatment, and was sent to prison. Duvall was released
from prison in September 1980. He was later arrested on February 25, 1981 , after he
attempted to force a woman into his car and threatened her with a knife. Based on this
offense, Duvall was convicted for assault and making terroristic threats. Duvall was
imprisoned and released on March 21, 1982.
On March 24, 1982, Duvall sexually assaulted three girls. Duvall was imprisoned
for these assaults until December 4, 1987. Following his release, Duvall was placed on
supervised release at a sexual-offender treatment program. On December 26, 1987, shortly
after his release from prison, Duvall violently sexually assaulted a 17-year-old girl in her
apartment over a three-hour period. Duvall was sentenced to 240 months of incarceration.
Based on Duvall’s history of sexual misconduct, a detective petitioned the district
court to judicially commit Duvall on January 23, 1991. On April 4, 1991, the Hennepin
County District Court granted the petition for civil commitment and committed Duvall to
the custody of the Minnesota Security Hospital following his prison sentence. The district
court held another hearing pursuant to Minn. Stat. § 253B.19, subd. 2 (1990) , and
indeterminately committed Duvall to the Minnesota Security Hospital to receive treatment
for his sexual aggression. Duvall appealed the district court’s commitm ent order on
September 13, 1991, and we affirmed. In re Duvall, No. C5-91-1799, 1991 WL 276194
(Minn. App. Dec. 31, 1991), review denied (Minn. Mar. 26, 1992).

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Duvall has received treatment at his current treatment location at the Minnesota Sex
Offender Program (MSOP) in S t. Peter since May 3, 2001. Duvall has been in the
community preparation services (CPS) portion of the program since April 8, 2009. CPS
provides treatment for clients who have successfully progressed through all three treatment
phases at MSOP, and includes three stages that provide the client with an increasing level
of accountability while remaining under supervision. Duvall has been in the final stage of
CPS since April 22, 2010.
This final stage of treatment requires Duvall to follow his individual treatment plan,
maintain a community -based support system, demonstrate leadership skills, and prepare
for his provisional discharge and t ransition into the community. Duvall has achieved all
of the privileges that he can obtain during tre atment, regularly participates in supervised,
off-campus visits, and has had no reported issues or incidents f rom his time in the
community. Duvall also participates in a men’s support group at Project Pathfinder that
helps him develop healthy sexual boundaries.
Based on his success in the last stage of his tr eatment, Duvall pet itioned the SRB
for a provisional discharge from his commitment on June 25, 2015. The SRB conducted a
hearing and recommended provisional discharge on March 3, 2016. The Commissioner of
the Minnesota Department of Human Services (commission er) and Hennep in County
(county) objected to the recommendation and requested a hearing before a judicial appeal
panel. The panel held a five-day hearing in April 2017. Duvall called 18 witnesses. Four
MSOP security counselors, two MSOP reintegration specialists, MSO P’s operations
supervisor and MSOP’s reintegration director all testified that Duvall never engaged in

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behavior when he was interact ing with others in the community that led them to be
concerned for Duvall’s or others’ safety. The MSOP employees’ testimony demonstrated
that Duvall has participated in hundreds of community o utings throughout his treatment
and none of the MSOP employees ever witnessed Duvall engage in concerning behavior
when he was in the community. Kristin Dehrkoop, Duvall’s therapist from May 2015 to
December 2016, testified that she supported Duvall’s petition based on her experience as
his therapist. Kristi Mike, Duvall’s therapist from December 2016 to the time of the
hearing, testified that she also supported his petition because he has successfully completed
every phase of treatment offered by MSOP. Timothy Benesch, the director of CPS at
MSOP, testified that Duvall was transparent and had no reported incidents of behavioral
issues. Benesch also stated that he supported Duvall’s petition for provisional discharge.
Others within the community also testified about their interactions with Duvall
throughout his time in treatment. Duvall’s Alcoholics Anonymous sponsor testified that
he had worked with Du vall on his sobriety since 2004 and would continue serving as his
sponsor if he were provisionally discharged. Thomas Jones, a community volunteer at
Project Pathfinder, testified that Duvall has come to “Choosing Healthy Sexual
Boundaries” meetings for three years and facilitates meetings, provides positive feedback,
and does not act with excessive control or leadership during the meetings. Duvall’s
manager at the thrift store where he volunteers testified that Duvall made a positive impact
and was respectful, courteous, reliable, helpful to others, and diligent when volunteering.
Duvall’s brother, Scott Duvall, testified about his relationship with Duvall. He explained
that they speak at least once per week and he intends to stay in Duvall’s life if he is

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provisionally discharged. Christopher Onken, the owner of a group home, testified that the
group home could provide treatment and housing services to Duvall if he were
provisionally discharged. Duvall also testified about his past treatment, current tre atment
setting, and how he intends to treat his sexual issues if he is released. Duvall also called
Dr. Lauren Herbert, the director of the forensic evaluation department in the Department
of Human Services. She testifi ed that she supports Duvall’s petit ion for provisional
discharge based on her psychosexual evaluation of Duvall.
The commissioner called four witnesses. Jerome Brown, a polygraph examiner,
testified that Duvall did not pass polygraph exams that asked him about his transparency
in his sex ual fantasy logs. The commissioner also called Dr. James Alsdurf, the court -
appointed examiner at the hearing. Dr. Alsdurf concluded that Duvall needed continuing
treatment and supervision in his current setting. The state also called two clinical
psychologists as expert witnesses, Dr. Mary Kenning and Dr. Harry Hoberman. They did
not interview Duvall . They conducted “psychosexual evaluations” based on Duvall’s
treatment records and then recommended that his petition f or provision al discharge be
denied.
In January 2018, the judicial appeal panel issued a 40-page order and memorandum
of law granting Duvall’s petition for provisional discharge. The panel concluded that
Duvall no longer required treatment in his current setting and that the provisional discharge
plan provided a reasonable degree of protection to the public. The commissioner and
county appeal.

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ISSUES
I. Did the panel err by concluding the county and commissioner did not prove with
clear and convincing evidence that Duvall’s petition fo r provisional discharge
should be denied?

II. Did the panel make evidentiary errors that warrant reversal?

ANALYSIS
I.

Appellants argue the panel erred by concluding that the county and commissioner
did not prove with clear and convincing evidence th at Duvall’s petition for provisional
discharge should be denied . “A person who is committed as a . . . person with a sexual
psychopathic personality shall not be provisionally discharged unless the committed person
is capable of making an acceptable adjus tment to open society. ” Minn. Stat. § 253D.30,
subd. 1(a) (201 6). In determining whether a provisional discharge is appropriate, the
judicial appeal panel must consider the following 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) (2016).
As the person seeking provisional dischar ge, Duvall had the burden of presenting
“a prima facie case with competent evidence to show that the person is entitled to the
requested relief.” Minn. Stat. § 253D.28, subd. 2(d) (2016). If Duvall meets this burden,

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then the county and commission er bear the burden of proving by clear and convincing
evidence that the provisional discharge should be denied. Id. The parties stipulated at the
judicial-appeal-panel stage that Duvall met his initial burden of presenting a prima facie
case with competent evid ence that he is en titled to relief. At issue before the panel was
whether the county and the commissioner met their burden of proving by clear and
convincing evidence that Duvall’s petition for provisional discharge should be denied.
A. Continuing Need for Treatment
Appellants first argue that the panel ignored evidence that demonstrated that Duvall
has a continuing need for treatment in his current setting, and therefore cannot satisfy Minn.
Stat. § 253D.30, subd. 1(b)(1). We review a panel’s decision for clear error and examine
the record “to determine whether the evidence as a whole sustains the panel’s findings. ”
In re Civil Commitment of Kropp, 895 N.W.2d 647, 650 (Minn. App. 2017), review denied
(Minn. June 20, 2017). We do not reweigh the evidence. Id. We review questions of
statutory construction and the application of statutory criteria to the facts found de novo.
Id.
1. Evidence Supporting Panel’s Decision
We begin our analysis by discussing the evidence that sustains the panel’s finding
that Duvall no longer requires treatment in his current setting. See Minn. Stat. § 253D.30,
subd. 1(b)(1). Duvall has been in the last stage of the CPS portion of his treatment program
since April 2010, wher e he has lived outside the secure perimeter at the St. Peter MSOP
campus. Since leaving the facility, Duvall has not engaged in any behavior that required
him to return to MSOP’s secured facility. In this last stage of treatment, Duvall is required

9
to abide by his individual treatment plan, maintain a community-based support system, act
in a leadership role in the therapeutic community, and prepare for his transition into the
community.
The record demonstrates that Duvall has done just that throughout t he last several
years of his treatment. Duvall engages in supervised off-campus visits multiple times per
week. At the hearing, every testifying MSOP employee who accompanied Duvall on
community outings testified that Duvall did not engage in problematic behavior while on
these outings and did not put himself, the MSOP employees, or the public a t risk. The
MSOP employees described Duvall as a model client. Duvall has also volunteered at a
thrift store for the last eight years. His thrift-store manager described Duvall as respectful,
diligent, and reliable. His manager testified that she has never had concerns for her or
others’ safety while working with him and that he raised the standard for other volunteers.
Duvall has also developed a community support system. Duvall’s sponsor from
Alcoholics Anonymous testified that he has served as Duvall’s sponsor since 2004, Duvall
regularly attends meetings, they speak on a regular basis, and he intends to continue as his
sponsor if Duvall is provisionally discharged. Duvall has also participated in a community
support group called “Choosing Healthy Sexual Boundaries” at Project Pathfinder. A
member of the support group testified that Duvall has attended meetings for three years,
helps facilitate meetings, and provides positive feedback for other members in the group.
In addition, Duvall’s brother, Scott Duvall, testified that he speaks to Duvall on a weekly
basis and intends on staying in Duvall’s life if he is provisionally discharged.

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Duvall has also developed leadership roles throughout the MSOP treatment
program. Duvall’s therapist, Dehrkoop, testified that Duvall act s as a leader inside and
outside of the group . Dr. Herbert testified that Duvall provid es mentorship to those
participating in arousal management, which demonstrates that MSOP trusts him.
Throughout treatment, Duvall has been diagnosed with sexual sadism and antisocial
personality disorder, but he has succeeded in following his treatment progr am. Duvall’s
therapist, Kristi Mike, testified that Duvall has completed every task that was asked of him
throughout treatment. Duvall was required to journal his sexual thoughts and discuss their
prevalence in his treatment on a weekly basis. Duvall continued to report his sexu al
thoughts and fantasies and discuss them during therapy, even though he expressed his
desire to stop journaling.
The evidence demonstrates that Duvall continues to experience intrusive and
deviant sexual thoughts, but that he has learned how to manage his thoughts. Duvall has
taken medication that is typically prescribed to reduce cravings for alcohol and reports that
the medication reduces his sexual preoccupation. Throughout therapy, Duvall has also
learned the difference between healthy and devian t arousal, completed the “Arousal
Management Treatment Programming,” and completed a penile plethysmograph
evaluation to measure his physical arousal to sexual stimuli. The evaluation did not detect
arousal to violence or coercive sexual stimuli involvin g female adults and teenagers.
Duvall testified that he also manages his thoughts through a masturbatory satiation plan,
therapy sessions with his MSOP therapist, Alcoholics Anonymous meetings, and his
Project Pathfinders support group.

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The evidence demonstrates that Duvall succeeded at every stage of MSOP’s
treatment program. Dr. Herbert testified that Duvall received enhanced to proficient
ratings, the two highest available ratings, in the Phase I, II, and III matrix areas in a 2016
sexual violence ris k assessment. Dr. Herbert determined that Duvall would need
continuing treatment because he was considered a high -risk patient on the Static -99
measurement. She ultimately concluded that Duvall would benefit from receiving
community-based treatment so th at he could continue working on his needs while being
exposed to risk.
The evidence in the record supports the panel’s decision that Duvall no longer
requires treatment in his current setting. Duvall has achieved the privileges of his current
treatment plan, maintained a community -based support system, acted in a leadership role
in the therapeutic community, and prepared for his transition into the community. The
panel properly concluded that appellants did not clearly and convincingly prove that Duvall
requires treatment and supervision in his current treatment setting.
2. Reweighing Evidence
Appellants argue that the panel (1) should have given more weight to the testimony
from Dr. Kenning and Dr. Hoberman ; (2) should have given less weight to the MSOP
employees because they were not Duva ll’s treatment providers; (3) failed to consider
evidence of Duvall’s dishonest y; and (4 ) erroneously considered evidence that was not
within the record. In reviewing the panel’s order , we will not reweigh the evid ence, and
“it is immaterial that the record might also provide a reasonable basis for inferences and

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findings to the contrary.” In the Matter of Commitment of Fugelseth, 907 N.W.2d 248, 253
(Minn. App. 2018) (quotation omitted), review denied (Minn. Apr. 17, 2018).
a. Expert Testimony
Appellants contend that the panel erred by giving less weight to Dr. Kenning ’s and
Dr. Hoberman’s testimony because they did not interview Duvall. Dr. Hoberman testified
that Duvall would not participate in an interview with him, but Dr. Kenning did not request
an interview. Appellants contend that the panel could not consider the experts’ inability to
interview Duvall in weighing testimony because Duvall refus ed to be interviewed. To
support this argument, appellants cite to In re Matter of Rice, 410 N.W.2d 907, 910 (Minn.
App. 1987), review denied (Minn. Oct. 28, 1987) . In Rice, this court held t hat a petition
for commitment is not rendered invalid simply because the patient refuses to submit to an
examination, so long as the patient’s refusal was documented. Id. This court reasoned that
“[i]t would be incongruous for us to permit a proposed patient to defeat all commitment
proceedings merely by refusing to be examined.” Id.
We are not persuaded by appellants ’ interpretation of Rice. T he facts of Rice are
unlike the facts here. In Rice, the district court determined that the patient could not avoid
a civil commitment proceeding simply by refusing an i nterview. Id. Here, the state was
not prohibited from moving forward in responding to Duvall’s discharge petition because
he refused an interview. The state was allowed to call Dr. Kenning and Dr. Hoberman ,
even though they did not interview Duvall.
“This court generally will defer to a district court’s evaluation of expert testimony.”
Fugelseth, 907 N.W.2d at 256 (quotation omitted); see also In re Knops, 536 N.W.2d 616,

13
620 (Minn. 1995) (“Where the findings of fact rest almost entirely on expert testimony, the
[district] court’ s evaluation of credibility is of particular significance.”). The panel
explained that it must “apply such opinions against the plethora of records reflecting
Petitioner’s behavioral compliance and reported treatment gains, bo th within the confines
of MSOP and in the community. The evidentiary value of such records and testimony has
been given significant weight in this Panel’s decision with respect to the statut ory
elements.” The panel discounted Dr. Kenning’s opinion that Duvall’s transition should be
more gradual because it concluded that a more gradual transition was not realistic because
Duvall has reached the highest stage of CPS’s treatment program. We conclude the panel
properly weighed the expert testimony of Dr. Kenning and Dr. Hoberman.
b. MSOP Testimony
Appellants next contend that the “panel further erred by improperly grouping all
testifying MSOP employees as members of Duvall’s ‘treatment team,’ when many of these
employees were security or other staff not trained in treating or assessing sex offender s.”
Appellants imply that the panel incorrectly believed all testifying MSOP employees had
training in sex-offender treatment. That implication is not supported by the panel’s order.
In weighing the testimony from various MSOP team members, the panel stated that “while
Petitioner’s treatment team members are intimately familiar with petitioner’s treatment
engagement and gains, they are not qualified to provide an opinion on risk. As such, the
Panel has assigned credibility and weight to their opinions as professionals with historical
knowledge of Petitioner’s MSOP treatment progress.” T he panel specifically articulated
that some MSOP team members were not qualified to give an op inion on Duvall’s risk

14
level, but it credited their testimony based on their direct familiarity with Duvall throughout
his treatment.
c. Relying on Previous Experience
Appellants next argue that the judicial appeal panel improperly relied on its own
experience by stating, “MSOP does not have a history of recommending provisional
discharge for those who are committed to its treatment program” in its order. Appellants
characterize this comment as a judicial finding and contend that the panel gave greater
weight to MSOP’s views based on its perception that MSOP is gen erally unsupportive of
discharge. Again, this assertion mischaracterizes the panel’s order. In analyzing the
recommendations from MSOP employees, the panel stated:
MSOP does not have a histor y of recommending provisional
discharge for those who are committed to its treatment
program. The panel gives great weight to the MSOP
recommendation and support of provisional discharge for Mr.
Duvall. The State of Minnesota has created and developed the
MSOP treatment program. Petitioner has spent seven years in
the last phase of that treatment program. The program now
says that Petitioner has done all that he can do at the MSOP
program and this Panel give [s] deference to the treatment
program’s assessment and recommendations.

This language demonstrates that the panel relied on , among other things, the
recommendations of MSOP employees because Duvall received treatment in the last stage
of MSOP’s program for the last seven years. The state designed and oversaw his treatment
program, and MSOP employees were well-qualified to discuss Duvall, the treatment, and
Duvall’s compliance with those program requirements . The panel did comment on
MSOP’s recommendation history. This was proper and well within the panel’s authority .

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In weighing MSOP’s recommendation, the panel thoroughly articulated legitimate reasons
for its decision to give deference to MSOP’s assessment and recommendations.
d. Dishonesty Evidence
Appellants next argue that the panel did not properly consider evidence of Duvall’s
dishonesty, particularly his failed polygraph exams and the lie he told Dr. Als durf during
an interview. Throughout treatment, Duvall was required to participate in polygraph exams
that asked questions to determine whether he was completely and transparently reporting
his sexual thoughts in his journal. Duvall failed five of the six polygraph exams. In
weighing the exams, the panel “recognize[d] that polygraph validity and credibility is not
universal among experts and that such assessment methods should be considered in the
totality of the circumstances when considering any evidentiary value against the statutory
criteria for provisional discharge.” The panel also relied on Dr. Herbert’s testimo ny
regarding the polygraphs, stating “while the deceptive polygraphs concerned Dr. Herbert
and remain a vital focus for treatment providers, she opined that they do not appear to be a
measure that should deter [Duvall] from transitioning to a less secure s etting.” The panel
reasoned that:
Whether the deceptive polygraphs are the result of actual deceit
by [Duvall], minimization of his deviant thoughts,
minimization of his reaction to the deviant thoughts, unfair
administration of the exam or stress from t he ongoing legal
proceeding, the deceptive polygraphs alone are not sufficient
to preclude provisional discharge. Petitioner can obtain the
necessary treatment to address these issues in an outpatient
setting or by returning for treatment sessions at the MSOP
campus if outpatient providers are unable to provide the
necessary treatment.

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The panel did not view Duvall’s history of deceit in isolation, as appellants suggest.
Instead, the panel carefully weighed the evidence of Duvall’s lack of transparency a gainst
the majority of evidence that supported his release. The panel reasoned that Duvall’s deceit
to Dr. Alsdurf, the failed polygraphs, and his deviant sexual thoughts did not outweigh the
evidence showing that Duvall
demonstrated he can control his be havior and comply with
rules and expectations of MSOP while residing outside the
secure perimeter on the St. Peter Campus and while on escorted
outings in the community. He has been successful in the
reintegration phase of the treatment program for seven years.
Petitioner has achieved all privileges commensurate with his
treatment status. . . . It is unclear how Petitioner’s reintegration
into the community could be more gradual to satisfy Dr.
Kenning’s concern since his placement at CPS does not
provide any additional opportunities for Petitioner to
demonstrate his ability to successfully adjust to the
community.

Appellants’ argument simply goes to their claim that the evidence should have been
weighed differently, but we do not reweigh the evidence. Fugelseth, 907 N.W.2d at 253.
The panel did not err in determining that Duvall’s overall success in treatment outweighs
the evidence of Duvall’s dishonesty.
B. Providing Reasonable Degree of Protection to the Public
Appellants next argue that the provisional discharge plan did not provide a
reasonable degree of protection to the public under Minn. Stat. § 253D.30, subd. 1(b)(2).
On appeal, we do not consider whether the record could support a finding that the
provisional discharge plan does not provide a reasonable degree of protection to the public.
Instead, we consider whether the judicial appeal panel clearly erred by finding that the plan

17
provides a reasonable degree of protection to the public . C.f. Fugelseth, 907 N.W.2d at
256 (“The quest ion is not whether the record could support a finding that [a committed
person] still is dangerous to the public; the question is whether the judicial appeal panel
clearly erred by finding [the committed person] no longer is dangerous to the public.”).
Christopher Onken, the owner of Zumbro House, Inc., confirmed that Duvall is
welcome at Zumbro House and that the facility is equipped to meet Duvall’s needs. Onken
testified that Zumbro House provides twenty -four hour staff and a secured facility. Dr.
Herbert testified that the proposed treatment setting would provide adequate supervision
and ongoing care for Duvall because it included sex-offender treatment from licensed state
officials and accounts for the sexual boundaries support group, Alcoholics An onymous,
and his personal support network. Dr. Herbert testified that under the provisional discharge
plan, Duvall would also be required to chec k-in with staff members and wear a global
positioning system ( GPS) monitor. She discussed that she has no rea son to believe that
Project Pathfinder cannot provide the requisite treatment to Duvall to meet his needs and
ultimately opined that Duvall satisfies the statutory requirements for provisional discharge
from civil commitment. This testimony demonstrates that the record as a whole supports
the panel’s determination that the provisional discharge plan will provide a reasonable
degree of protection to the public and will enable Duvall to adjust successfully to the
community, meeting Minn. Stat. § 253D.30, subd. 1(b)(2) requirements.
Appellants contend that Duvall’s discharge plan is inadequate because it does not
account for his high risk of recidivism and does not specify an outpatient treatment provider
or identify his specific residence location. Appellants first contend that the discharge plan

18
does not provide a reasonable degree of protection to the public because Duvall “poses an
exceptionally high risk of [re-offending].” The panel made multiple factual findings
acknowledging Duvall’s risk of recidivism. It properly considered Dr. Herbert’s testimony
that Duvall’s community -based treatment at Project Pathfinder and interaction with his
vocational supervisors would assist him in avoiding recidivating. The panel was persuaded
because the provisional discharge plan provided for GPS monitoring, 24-hour supervision
from staff at his residence , and restrictions preventing Duvall from leaving his residence
unless accompanied by MSOP staff and with approval from MSOP’s reintegration director.
The record supports the panel’s decision that the provisional discharge plan provides a
reasonable degree of protection to the public.
Appellants next argue that the plan fails to identify a specific treatment center and
does not identify his specific housing address. That is incorrect. The provisional discharge
plan states that Duvall will be released to a setting “that will include, at least in itially, 24
hour staffing and cameras in common areas. ” Onken testified that Zumbro House has
accepted him and pla ns on placing Duvall in its supported apartment facility, but simply
has not yet assigned Duvall to a specific apartment. All that is left is to determine
“apartment 101” rather than “apartment 102.” Appellants try to argue that Project
Pathfinder will not provide adequate treatment for Duvall. To the contrary, Onken testified
that MSOP discussed with him that Project Pathfinder may serve as his treatment provider
if he was provisionally discharged, and a member of Project Pathfinder testified that Duvall
has expressed a desire to continue tr eatment with the group. Additionally, Dr. Herbert
testified that “the identified placement at Project Pathfinder[] would be suitable to provide

19
him with the treatment that he needs . . . [and] [h]e would have other types of supportive
services that are certainly important as well.” Even Dr. Alsdurf acknowledged that Project
Pathfinder would be willing to provide outpatient therapy for Duvall. The evidence in the
record easily demonstrates that the provisional discharge plan will provide an effective
outpatient therapy program at Project Pathfinder. The judicial appeal panel did not err in
determining that Duvall’s provisional discharge plan provides a reasonable degree of
protection to the public and will allow Duvall to adjust successfully to the community.
Minn. Stat. § 253D.30, subd. 1(b)(2).
II.
Appellants next argue that the panel improperly excluded victim testimony and that
this error prejudiced appellants’ ability to demonstrate Duvall’s sexual sadism. At the
hearing, the commissioner moved to amend its witness list so that it could call a former
victim to testify about Duvall’s sexual assault s. The panel denied the motion and
determined that the victim’s testimony would not be relevant to the provisional discharge
statute under Minn . Stat. § 253D.30, subd. 1. The panel instead allowed the victim to
submit a written impact statement under Minn. Stat. § 253D.14, subd. 3 (201 6), which
provides that a victim has the “right to submit a written statement regarding decisions of the
executive director, or special review board,” for an offender requesting provisional discharge.
The panel reasoned that it was not aw are of even one ca se where a victim testified in a
provisional discharge hearing. The panel determined the prejudicial effect of the victim’s
testimony would exceed the probative value, particularly because of media attention to the
case.

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Appellants argue that the panel ab used its discretion by not allowing the victim to
testify. “The decision of whether to admit or exclude eviden ce is within the district court’ s
discretion and will be reversed only if the court has clearly abused its discretion. ” In re Civil
Commitment of Ramey, 648 N.W.2d 260, 270 (Minn. App. 2002). Here, the panel was required
to determine whether Duvall required treatment in his current setting and whether the proposed
discharge plan would adequately protect the public. See Minn. Stat. § 253D.30, subd. 1(b).
The panel did not abuse its discretion by prohibiting a victim from testifying in person about
a crime from thirty years ago in a hearing dedicated to determining whether Duvall requires
treatment in his current setting.
Appellants allege t hat the panel’s decision prohibiting the victim from orally
testifying prevented appellants from fully proving the nature of Duvall’s sexual sadism.
This assertion is not supported by the record and is rejected. The panel allowed the victim
to submit a victim impact statement. Multiple witnesses thoroughly explained Duvall’s
diagnosis of sexual sadism, including Dr. Herbert, Dr. Kenning, Dr. Alsdurf, and Duvall’s
therapists.
D E C I S I O N
After reviewing the record as a whole, we conclude the evidence overwhelmingly
supports the panel’s decision that appellants did not meet their burden of showing by clear
and convincing evidence that the discharge should not have been granted. We affirm the
panel’s order.
Affirmed.