In the Matter of the Civil Commitment of: Willard John Hince

This opinion will be unpublished and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
A18-0252

In the Matter of the Civil Commitment of: Willard John Hince

Filed August 6, 2018
Affirmed
Johnson, Judge

Supreme Court Appeal Panel
File No. AP16-9196

Lori Swanson, Attorney General, Anthony R. Noss, Assistant Attorney General, St. Paul,
Minnesota (for appellant commissioner of the department of human services)

Seamus P. Duffy, Pennington County Attorney, Thief River Falls, Minneso ta (for
Pennington County)

Cheri Templeman, Jill Avery, Templeman Law PLLC, Plymouth, Minnesota (for
respondent Willard John Hince)

Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Willard John Hince is civilly committed as a sexually dangerous person. He
requested a discharge from his commitment. The special review board denied his request
for a full discharge but granted his request for a provisional discharge. After t he
commissioner requested rehearing and reconsideration , the judicial appeal panel granted
his request for a provisional discharge. We affirm.
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FACTS
Hince is a 62-year-old man who was determined to be a sexually dangerous person
(SDP). Hince’s status as an SDP is based on sexual misconduct that occurred
approximately 30 or more years ago , including conduct that was the subject of three
criminal charges, which resulted in two convictions . Hince also engaged in sexual
misconduct toward 15 other women in additional incidents that did not result in criminal
prosecution.
In December 1994, Pennington County petitioned the district court to
indeterminately commit Hince as an SDP. In November 1996, the district court granted
the petition. This court affirmed. See In re Hince, No. C1-97-95, 1997 WL 311662 (Minn.
App. June 10, 1997).
Since his commitment, Hince has been in the Minnesota Sex Offender Program
(MSOP). While in treatment, Hince has been diagnosed with alcohol - and drug -abuse
disorders, though he has been sober since July 1988. He completed a chemical -
dependency-treatment program in December 2014. He also has been diagnosed with anti-
social personality disorder and a paraphilic disorder against non-consenting adult females.
Since March 2014, Hince has been in Phase III of treatment, which is the “transitional
phase of treatment that focuses on deinstitutionalization and community reintegration.” In
December 2015, he was transferred to Community Preparation Se rvices (CPS) . He is
employed part-time at CPS, mowing the lawn and cleaning the lobbies.
In March 2016, Hince petitioned the special review board for a full discharge or a
provisional discharge. In December 2016, the special review board recommended denying
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his request for a full discharge and granting his request for a provisional discharge. The
commissioner petitioned the judicial appeal panel for rehearing and reconsideration with
respect to the issue of provisional discharge.
The jud icial appeal panel held an evidentiary hearing in October 2017. Hince
withdrew his request for a full discharge. He called six witnesses. Frank Weber, a licensed
psychologist and the clinical director of an out -patient treatment program, testified in
support of Hince’s request for a provisional discharge based on his psychosexual
assessment. Dr. Cindy Spielman, a forensic evaluator, testified that Hince demonstrates
accountability for his sexually abusive behavior, that he completed a full -disclosure
polygraph without deception, and that certain dynamic risk factors are no longer a concern.
Dr. Thomas Alberg, a court -appointed examiner, testified that Hince would be able to
receive the sex-offender treatment he needs in an out-patient setting and that a reintegration
specialist should be assigned to Hince to create a more specific provisional-discharge plan.
Hince’s MSOP security counselor, who has worked with Hince for two years, testified that
she has never had any issues with him. Hince ’s former MSOP vocational supervisor
testified that Hince was a “really good worker” and that he never saw Hince argue or fight
with another person while at CPS. Hince also testified on his own behalf.
The commis sioner called two witnesses. Dr. David Tho rnton, an independent
forensic psychologist, testified that Hince should not be granted a provisional discharge.
Christopher Schiffer, the clinical director of MSOP at St. Peter, testified that a provisional
discharge would be premature because Hince continues to need supervision in his current
treatment setting. Schiffer also testified that , whenever the clinical leadership at MSOP
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determines that Hince is ready for a provisional discharge, a reintegration specialist will be
assigned to help him create a provisional-discharge plan.
In December 2017, the judicial appeal panel issued a 21 -page order and
memorandum in which it granted Hince’s petition for a provisional discharge. The
commissioner of human services appeals.
D E C I S I O N
The commissioner argues that the judicial appeal panel erred by concluding that she
failed to prove by clear and convincing evidence that Hince’s petition for a provisional
discharge should be denied.
A person who is committed as an SDP may petition the special review boa rd for a
reduction in custody . Minn. Stat. § 253D.27, subd. 2 (2016). The term “reduction in
custody” includes provisional discharge. Id., subd. 1(b). A person who is committed as
an SDP “shall not be provisionally discharged unless the committed person is capable of
making an acceptable adjustment to open society .” Minn. Stat. § 253D.30, subd. 1(a)
(2016). A judicial appeal panel must consider two statutory criteria:
(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 disc harge
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).

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A person who seeks a provisional discharge from civil commitment bears an initial
burden of production, which requires “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);
see also Coker v. Jesson, 831 N.W.2d 483, 485-86 (Minn. 2013); In re Civil Commitment
of Kropp, 895 N.W.2d 647, 650-51 (Minn. App. 2017), review denied (Minn. June 20,
2017). If the committed person satisfies that burden of production, “the party opposing
provisional discharge bears the burden of proof by clear and convincing evidence that the
. . . provisional discharge should be denied.” Minn. Stat. § 253D.28, subd. 2(d); see also
Coker, 831 N.W.2d at 486; Kropp, 895 N.W.2d at 651.
This court applies a clear -error standard of review to a judicial appeal panel’s
findings of fact by “examining the record to determine whether the evidence as a whole
sustains the panel’s findings.” Kropp, 895 N.W.2d at 650. In doing so, “we do not reweigh
the evidence,” and “it is immaterial that the record might also provide a reasonable basis
for inferences and findings to the contrary.” Id. We apply a de novo standard of review to
issues of statutory interpretation and to a judicial appeal panel’s application of the law to
the facts of a particular case. Id.
In this case, the commissioner contends that the judicial appeal panel made findings
of fact that are not supported by the record because the panel “mischaracterized or ignored
that Dr. Alberg, Dr. Thornton, and Mr. Schiffer all testified they ultimately did not support
Hince’s petition for provisional discharge.” The commissioner further contends that,
because the judicial appeal panel based its decision on an inaccurate or incomplete set of
facts, its ultimate decision is erroneous as a matter of law.
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A.
The commissioner contends that “Dr. Alberg credibly and persuasively testified that
a provisional discharge is not presently appropriate considering the statutory provisional -
discharge criteria.” The commissioner further contends that the panel “did not make any
findings indicating that Dr. Alberg testified against provisional discharge and, instead,
erroneously framed Dr. Alberg’s opinion as supportive of provisional discharge.”
Our review of the evidentiary record reveals that Dr. Alberg’s opinions are nuanced.
His written report states, “Mr. Hince’s current treatment needs would be best served in the
community where he would hav e a better chance to practice his skills and integrate them
into life in a community setting.” The report also states that Hince’s “provisional discharge
plan is sufficient” to provide a reasonable degree of protection to the public and enable him
to successfully adjust to society. Dr. Alberg noted that Hince needs “to develop a more
detailed plan for where he could live, work, and receive treatment” but that “he has not
been able to do so due to not being able to work with a reintegration specialist at this time.”
In his written report, Dr. Alberg recommended that the district court order Hince to begin
to define a more detailed plan with a reintegration specialist “so [ Hince] could be able to
receive a provisional discharge to the community after [it] is sufficiently developed.”
At the evidentiary hearing, Dr. Alberg reiterated in his oral testimony that Hince
could receive the sex-offender treatment he needs in the community, outside of CPS. When
asked by Hince’s attorney whether he supported a provisional discharge, Dr. Alberg stated
that Hince “should be placed in a position where he’s receiving serv ices to formulate a
provisional-discharge plan” with a reintegration specialist. He explained:
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I think by the time, realistically, a full provisional dis charge
plan is put together with all the specifics, it’s going to take
probably six months to a year. So I don’t see anything
happening in the near future. I think it’s beginning, the process
now makes sense, and let all the rest of that develop as it can.

On cross -examination by the commissioner’s attorney , Dr. Alberg testified, “Based on
what the plan is that [Hince has] been able to develop, no, I can’t support a provisional
discharge. I’d like him to be able to develop a plan.”
The judicial appeal panel noted and credited Dr. Alberg’s opinion that “it would be
appropriate for Mr. Hince to continue his treatment in the community.” The panel also
noted and credited Dr. Alberg’s oral testimony that Hince “has considered treatment needs,
need for supervision, and need to comply with supervisory expectation s in developing his
provisional-discharge plan.” The panel agreed with Dr. Alberg’s view that a reintegration
specialist should be appointed but refrained from ordering such relief because of the panel’s
perceived limits on its own authority.
The judicial appeal panel did not misstate Dr. Alberg’s written report or oral
testimony. The panel did not summarize all aspects of Dr. Alberg’s report or testimony,
but there is no requirem ent that it do so. The judicial appeal panel “is free to accept part
and reject part of a witness’s testimony.” Coker, 831 N.W.2d at 492. The panel apparently
determined that the most significant aspect of Dr. Alberg’s report and testimony was his
opinion that Hince’s treatment needs would be best served in the community. Dr. Alberg’s
primary concern was the lack of a well -developed provisional -discharge plan, but that
factor is not determinative. See Kropp, 895 N.W.2d at 652-53 (affirming provisional
8
discharge even though plan lacked specificity as to location of residence). The panel’s
order is not erroneous in its discussion of the evidence offered by Dr. Alberg.
B.
The commissioner contends that Schiffer “credibly and persuasively testi fied
repeatedly that Hince still needs treatment and supervision in his current treatment setting
at this time” and that he also testified that “Hince’s petition is premature and not supported
by MSOP clinical leadership, of which Mr. Schiffer is a member. ” The commissioner
further contends that the panel “ignored Mr. Schiffer’s testimony against Hince’s petition
for provisional discharge and instead erroneously framed his testimony as ultimately
ambivalent about Hince’s request for provisional discharge.”
Schiffer presented his views in two written report s and in oral testimony. His
written report states that , during treatment, Hince is “an active participant who
demonstrates insight into the ‘roots’ of his offending and has made a significant shift
regarding his antisocial behavior.” The report states that Hince is “participating in core
group with increasing frequency, a leader in his core group, and an active mentor.” The
report further states that Hince chooses to participate in sobriety -support meetings,
maintains vocational placements, attends community outings without incident, and
continues to make progress in CPS. But the report states that a provisional discharge would
be “premature” and that Hince “would benefit from continuing in Phase III in the current
setting.” At the hearing, Schiffer testified that “Hince has made some significant progress”
but still needs in -patient treatment supervision to help improve his empathy, lessen his
desire toward power and control, and improve his general intimacy with others. Schiffer
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also testified that Hince needs to complete stage four of Phase III, which includes
provisional-discharge planning.
The judicial appeal panel referred to Schiffer’s opinions in only two portions of its
order. The panel stated that Schiffer testified that Hince “has made significant progress
establishing healthy behaviors, recognizing the triggers of his offense cycle and coping
with those triggers” and that Hince “is respectful to MSOP staff, treats peers with respect,
and follows the policies and procedures of MSOP.” The panel also stated that Schiffer
testified that “if the [panel] ordered provisional discharge, then MSOP would assign a
reintegration specialist to create a provisional discharge plan.”
The judicia l appeal panel did not misstate Schiffer’s written report s or oral
testimony. The panel did not rely on Schiffer’s testimony that a provisional discharge
would be premature. But again, there is no requirement that it do so because the panel “is
free to a ccept part and reject part of a witness’s testimony.” See Coker, 831 N.W.2d at
492. The panel’s order is not erroneous in its discussion of the evidence offered by
Schiffer.
C.
The commissioner contends that Dr. Thornton “credibly and persuasively testified
unequivocally that . . . he opposes the Panel granting Hince’s petition for provisional
discharge” but that “the Panel completely ignored Dr. Thornton’s opinion against
provisional discharge.”
Dr. Thornton testified that Hince continues to need s upervision in his current in -
patient treatment setting. He testified that, although Hince has shown progress, his
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psychopathic traits require providers to view his progress cautiously. He testified that
Hince’s anti-social and sexual-deviance tendencies will get worse in an out-patient setting,
which offers less control and less treatment than his present treatment setting. On cross-
examination by Hince’s attorney, Dr. Thornton could not identify any incidents in the past
five years in which Hince exhibited signs of anti -social urges and sexual deviance.
Dr. Thornton also testified that provisional discharge was “inappropriate at this time”
because Hince’s provisional-discharge plan was too speculative to determine whether it
would be effective.
The judicial appeal panel indicated that it was familiar with Dr. Thornton’s opinions
but did not make findings based on them . The panel noted that Dr. Thornton “did not
interview Mr. Hince” and that “his report was based solely on a review of the records.”
The panel stated that it was “not persuaded by Dr. Thornton’s testimony, compared to other
testimony and records.” The panel noted Dr. Thornton’s opinion that Hince “has
manipulated MSO P staff to believe he will be successful in provisional discharge” but
found that “careful review of the record does not reveal recent incidents involving
manipulative behavior.” The panel also discussed Dr. Thornton’s opinions about
comments Hince made in treatment by stating that Hince “understands that rape thoughts
are unhealthy,” that he “is able to intervene on sexual thoughts,” and that he “is accountable
for his past sexual behavior.”
The judicial appeal panel did not misstate Dr. Thornton’s writ ten report or oral
testimony. The panel did not expressly note Dr. Thornton’s conclusion that Hince should
not receive a provisional discharge, but the panel’s order does not indicate otherwise. Once
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again, there is no requirement that the panel recite a ll aspects of Dr. Thornton’s opinions
because the panel “is free to accept part and reject part of a witness’s testimony.” See
Coker, 831 N.W.2d at 492. The panel’s order is not erroneous in its discussion of the
evidence offered by Dr. Thornton.
D.
The commissioner’s final argument is that the judicial appeal panel erred in its
ultimate decision because that decision is based on inaccurate or incomplete findings of
fact. The commissioner asserts that the testimony of witnesses who opposed a provisional
discharge showed by clear and convincing evidence that Hince should not be provisionally
discharged.
As stated above, the judicial appeal panel did not clearly err in its findings
concerning the written reports and oral testimony of Dr. Alberg, Schiffer , and
Dr. Thornton. The panel’s ultimate finding—that the commissioner did not prove by clear
and convincing evidence that Hince continues to need treatment and supervision in his
current treatment setting and that the conditions of his provisional discharg e will not
provide a reasonable degree of protection to the public and will not enable him to
successfully adjust to the community—must be upheld if “the evidence as a whole sustains
the panel’s findings.” See Kropp, 895 N.W.2d at 650.
The evidentiary rec ord contains sufficient evidence to support the judicial appeal
panel’s ultimate determination that Hince should be provisionally discharged. Dr. Alberg
testified that Hince would be able to receive sex -offender treatment in the community ,
outside of CPS, and that his current treatment needs would be best served in the community
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so that he could integrate his skills. In his report, he stated that Hince showed a willingness
to continue treatment voluntarily and that he “has sufficiently prog ressed to a point where
the community would be protected even if he is in the community.” Spielman testified that
Hince has been accountable for his sexually abusive behavior and for his offenses. In her
report, Spielman stated that, based on her sexual -violence risk assessments, several
dynamic risk factors that were a concern in the past “do not appear to be a present concern
for Mr. Hince.” Hince’s MSOP security counselor testified that Hince demonstr ates
appropriate boundaries, and his former MSOP vocational counselor testified that Hince has
“never had an issue with any vocational placements.”
Based on this evidence and other evidence, t he judicial appeal panel found that
Hince “has made significant progress establishing healthy behaviors,” that he is an active
participant in therapy, that he “has made efforts to demonstrate transparency regarding his
sexual fantasies and appears to have the ability to intervene on sexual thoughts that . . . are
unhealthy,” that he relies on his support network, and that he “us [es] his skills to avoid
deviant thoughts about women.” The judicial appeal panel noted that Hince’s “progress in
treatment demonstrates insight into the cause of his offending” and that “he has made
significant progress . . . recognizing the triggers of his offense cycle and coping with those
triggers.” Appellate courts “do not reweigh the evidence,” and “it is immaterial that the
record might also provide a reasonable basis for inferences and findings to the contrary.”
Kropp, 895 N.W.2d at 650.
In sum, the judicial appeal panel’s findings of fact are not clearly erroneous because
the panel’s decision is supported by evidence in the record. Therefore, the judicial appeal
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panel did not err by finding that the commissioner failed to prove by clear and convincing
evidence that Hince is not entitled to a provisional discharge.
Affirmed.