In the Matter of the Civil Commitment of: Curtis Marcell Smallwood.

This opinion will be unpublished and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
A18-0481

In the Matter of the Civil Commitment of:
Curtis Marcell Smallwood.

Filed September 17, 2018
Affirmed
Johnson, Judge

Judicial Appeal Panel
File No. AP17-9061

Jennifer L. Thon, Steven D. Winkler, Jones Law Office, Mankato, Minnesota (for
appellant)

James Backstrom, Dakota County Attorney, Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent Dakota County)

Lori Swanson, Attorney General, Michael Leonard, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Curtis Marcell Smallwood is civilly committed as a sexually dangerous person. He
petitioned for a transfer or a provisional discharge. The special review board denied his
petition. On rehearing and reconsideration , the judicial appeal panel granted the
commissioner of human services’ motion to dismiss his petition . We conclude that

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Smallwood did not produce evidence sufficient to establish a prima facie case of
provisional discharge. We also conclude that the judicial appeal panel did not clearly err
by concluding that Smallwood did not prove by a preponderance of the evidence that he is
entitled to a transfer. Therefore, we affirm.
FACTS
Smallwood is a 57-year-old man who is civilly committed as a sexually dangerous
person (SDP). When he was in his 20s and 30s, he repeatedly entered women’s homes
without consent and engaged in sexual assaults or attempted sexual assaults, sometimes
while using a knife to threaten his victim. On three occasions, he was convicted of burglary
and sentenced to terms of imprisonment. In 2010, Dakota County petitioned the district
court to civilly commit him as a n SDP. The district court granted the petition, and this
court affirmed. In re Civil Commitment of Smallwood , No. A11-1971, 2012 WL 896439
(Minn. App. Mar. 19, 2012), review denied (Minn. June 27, 2012). Since being committed,
Smallwood has received treat ment in the Minnesota Sex Offender Program (MSOP) at
Moose Lake.
In August 201 6, Smallwood petition ed the special review board for a transfer to
MSOP’s Community Preparation Services program (CPS), a provisional discharge, or a
full discharge. The special review board reviewed, among other things, a treatment report
prepared by Smallwood’s treatment team and a sexual-violence risk assessment prepared
by a forensic psychologist, Jessica Scharf . The treatment report indicated that, although
Smallwood “consistently attended his core groups, community meetings, psycho -
educational modules, and vocati onal programming ,” he “continued to have difficulty

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applying the feedback from his peers, perspective taking, and internalizing treatment” and
was not “transparent in all areas including his sexuality.” The treatment report also
described his intimate and sexual relation ships with women, including an ongoing
telephone relationship with a former MSOP clinician, who was his primary therapist before
her employment was terminated . The treatment report recommended that Smallwood
remain in his current treatment setting at MSOP.
Scharf’s sexual-violence risk assessment of Smallwood indicated many risk factors,
including deviant sexual preference, a lack of capacity for relationship stability, negative
emotionality, significant social influences, sex as coping, general social re jection, lack of
concern for others, excessive sex drive and sex preoccupation, and a lack of cooperation
with supervision. Scharf stated that Smallwood’s “needs are best met within the secure
perimeter, as the environment will afford him the therapeutic support, safety, and structure
required for his daily life.” Scharf concluded that Smallwood does not meet the criteria for
a provisional discharge because he did not provide her with “a well-developed provisional
discharge plan, with the support of reintegration specialists, tailored to his unique risk and
need areas.” Scharf also concluded that Smallwood “does not meet criteria for a transfer
at this time.” Based on these records , t he special review board recommended that
Smallwood’s petition be denied on the ground that both transfer and discharge are
premature.
Smallwood petitioned for rehearing and reconsideration by the judicial appeal panel,
which conducted an evidentiary hearing in December 2017. At the beginning of the
hearing, Smallwood withdre w his request for a full discharge. Smallwood called three

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witnesses: Robert Riedel, who is a court-appointed psychologist, and two employees of the
vocational department of MSOP. Riedel testified that Smallwood has demonstrated
significant improvement in his behavior in the last two or three years by “exhibiting a great
deal of pro -social rather than anti -social behavior,” by participating in two groups that
assist other clients, and by “vigorously” engaging in his treatment. Riedel testified that it
would be appropriate to transfer Smallwood to CPS. Riedel testified that he was “not
opposed to” Smallwood’s request for provisional discharge but did not support it.
Bryan Moe, a ski lls development specialist at MSOP, testified that Smallwood is
easy to get along with and is “a model employee.” Steven Youngs, a security counselor at
MSOP, testified that Smallwood works cooperatively with security staff and does not cause
problems or behave inappropriately. Neither Moe nor Youngs testified about Smallwood’s
clinical progress.
After Smallwood rested his case, the commissioner moved to dismiss his petition.
The judicial appeal panel took the matter under advisement. In January 2018, the judicial
appeal panel issued a written order in which it granted the commissioner’s motion to
dismiss. Smallwood appeals.
D E C I S I O N
Smallwood argues that the judicial appeal panel erred by granting the
commissioner’s motion to dismiss.
A person who is committed as an SDP may petition the special review board for a
reduction in custody . Minn. Stat. § 253D.27, subd. 2 (2016). The term “reduction in
custody” encompasses both provisional discharge and a transfer to CPS. Id., subd. 1(b).

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If a committed person files a petition for reduction in custody, “[t]he special review board
shall hold a hearing” and, thereafter, “shall issue a report with written findings of fact and
shall recommend denial or approval of the petition to the judicial appeal panel.” Id., subds.
3(a), 4. If the special review board recommends denial of the petition, the committed
person “may petition the judicial appeal panel . . . for a rehearing and reconsideration of ”
the special review board ’s recommendation. Minn. Stat. § 253D.28, subd. 1(a) (2016).
The judicial appeal panel generally must hold a hearing within 180 days. Id., subd. 1(b).
If the commissioner wishes to challenge a petitioner’s entitlement to relief after the
petitioner rests his case, the commiss ioner may move to dismis s the petition pursuant to
rule 41.02(b) of the rules of civil procedure. Coker v. Jesson , 831 N.W.2d 483, 4 89-91
(Minn. 2013). That rule provides, in relevant part:
After the plaintiff has completed the presentation of
evidence, the defendant, without waiving the right to offer
evidence in the event the motion is not granted, may move for
a dismissal on the ground that upon the facts and the law, the
plaintiff has shown no right to relief.

Minn. R. Civ. P. 41.02(b).
I. Provisional Discharge

Smallwood first argues that the judicial appeal panel erred by granting the
commissioner’s motion to dismiss with respect to his request for a provisional discharge.
A person who is committed as an SDP “shall not be provisionally discharged unless
[he] is capable of making an acceptable adjustment to open society .” Minn. Stat.
§ 253D.30, subd. 1(a) (2016) . The judicial appeal panel must consider two statutory
criteria:

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(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). A person who seeks a provisional discharge “bears the burden of going
forward with the evidence, which means 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); see also Coker, 831 N.W.2d at 485-86; 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 his 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.
If the commissioner moves to dismiss a petition for provisional discharge pursuant
to rule 41, the judicial appeal panel “may not weigh the evidence or make credibility
determinations.” Coker, 831 N.W.2d at 490. “Instead, the Appeal Panel is required to
view the evidence produced at the first -phase hearing in a light most favorable to the
committed person.” Id. at 491. This court applies a de novo standard of review to a judicial
appeal panel’s grant of a rule 41.02(b) motion to dismiss a request for provisional
discharge. Larson v. Jesson, 847 N.W.2d 531, 534 (Minn. App. 2014).

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In this case, the judicial appeal panel determined that Smallwood “failed to present
a prima facie case with competent evidence to show that he is en titled to provisional
discharge” because he “continues to need treatment and supervision in a secured
environment.” The judicial appeal panel also determined that Smallwood’s proposed
provisional-discharge plan was “insufficient to show that a provisional release would
provide a reasonable degree of protection to the public or enable Petitioner to adjust
successfully to the community.”
Smallwood contends that he presented a prima facie case that he is entitled to
provisional discharge. He contends that Riedel’s testimony is sufficient to prove that he
no longer needs treatment and supervisio n in his current setting. Riedel testified that
Smallwood had made significant improvement in his behavior in the last two or three years
by “exhibiting a great deal of pro-social rather than anti-social behavior,” by participating
in two groups that assist other clients, and by “vigorously” engaging in his treatment. But
Riedel did not testify that Smallwood no longer need s treatment and supervision in his
current treatment setting . Rather, Riedel testified that Smallwood would receive be tter
treatment in his current treatment setting or in CPS, which suggests that he is still in need
of such treatment . Riedel’s testimony does not satisfy Smallwood’s burden to produce
evidence that “ there is no longer a need for treatment and supervision in [his] current
treatment setting .” See Minn. Stat. § 253D.30, subd. 1( b)(1). Furthermore, the o ther
evidence in the record indicates that Smallwood continues to need treatment and
supervision in his current treatment setting. The treatment report states that Smallwood
struggles with some aspects of his treatment and that he should stay with “his current Core

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group with his current clinical team.” Moreover, the risk assessment indicates that
Smallwood suffers from many risk factors and that his “needs are best met within the secure
perimeter.”
Thus, the judicial appeal panel correctly determined that Smallwood did not present
a prima facie case that he is entitled to a provisional discharge.
II. Transfer

Smallwood also argues that the judicial appeal panel erred by granting the
commissioner’s motion to dismiss with respect to his request for a transfer to CPS.
A person who is committed as an SDP may be transferred to CPS only if “ the
transfer is appropriate.” Minn. Stat. § 253D.29, subd. 1(a) (2016). In determining whether
a transfer is appropriate, a judicial appeal panel must consider five factors:
(1) the person’s clinical progress and present
treatment needs;

(2) the need for security to accomplish continuing
treatment;

(3) the need for continued institutionalization;

(4) which facility can best meet the person’s needs;
and

(5) whether trans fer can be accomplished with a
reasonable degree of safety for the public.

Id., subd. 1(b). If a committed person requests a transfer to CPS, he bears both “the burdens
of production and persuasion . . . at the hearing before the judicial appeal panel.” Foster
v. Jesson , 857 N.W.2d 545, 548 (Minn. App. 2014) ; see also Minn. Stat. § 253D.28,
subd. 2(e). Because the committed person bears the burden of persuasion, the judicial

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appeal panel is not required to view his evidence in a light most favorable to him when
considering a motion to dismiss pursuant to rule 41. Foster, 857 N.W.2d at 548.
Accordingly, this court applies a clear-error standard of review to a judicial appeal panel’s
grant of a rule 41.02(b) motion to dismiss a request for a transfer. Id. In applying that
standard, we “examin[e] the record to determine whether the evidence as a whole sustains
the appeal panel[’s] findings.” Larson, 847 N.W.2d at 534 (quotations omitted).
In this case, the judicial appeal panel discussed each of the five statutory factors.
The judicial appeal panel reasoned that the first factor does not support transfer for the
following reasons:
[Smallwood] has yet to pass a polygraph examination which is
concerning to his treatment team. Recently, he has identified
unhealthy dynamics of his relationship with his former primary
therapist, but there is no indication this relationship has ended.
He has made commendable strides in treatment but continues
to need improvement surrounding this relationship, accepting
peer feedback, and internalizing treatment.

The judicial appeal panel reasoned that the second factor does not support transfer because
Smallwood “has a continuing need for security to accomplish his treatment” and “continues
to have unmanaged dynamic risk factors.” The judicial appeal panel reasoned that the third
factor does not support transfer because “[t]he combination of Petitioner’s sexual deviancy
and anti -social personality d isorder, generally create a high risk for recidivism ” and
because “[h]e continues to have unmanaged dynamic factors and tendencies indicating a
need for institutionalization.” The judicial appeal panel reasoned that the fourth factor does
not support tran sfer because Smallwood “ made no objective showing that his current
facility does not meet his needs.” The judicial appeal panel reasoned that the fifth factor

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does not support transfer because Smallwood “presents a high risk of recidivism, and a
transfer to CPS could not be made with a reasonable degree of safety to the public.”
Smallwood contends that the judicial appeal panel clearly erred on the ground that
he would receive the same treatment in CPS as he currently receives at MSOP. Contrary
to Smallwood’s contention, there is evidence in the record that indicates that Smallwood
would receive more appropriate treatment and supervision in his current treatment setting
and that he cont inues to need such treatment. The treatment report indicate s that
Smallwood has made progress but requires continued treatment for his lack of openness
and transparency in acknowledging his sexual history and receiving feedback from peers
as well as his “potential sexual deviancy, sexualized coping, or sexual preoccupation.” The
treatment report recommended that Smallwood continue to receive treatment in his current
setting because he would benefit from “continued work in his current Core group and with
his current clinical team.” The sexual-violence risk assessment stated that Smallwood “has
remaining work to do” and that his “needs are best met within the secure perimeter,” where
he will receive “the therapeutic support, safety, and structure required for his daily life.”
The sexual-violence risk assessment also su ggested that Smallwood may have a “higher
risk for sexual re -offense than average offenders” and concluded that Smallwood should
not be transferred to CPS at this time. In light of this evidence, we conclude that “the
evidence as a whole sustains the appe al panel[’s] findings.” See Larson, 847 N.W. 2d at
534 (quotation omitted).
Thus, the judicial appeal panel did not clearly err by concluding that Smallwood did
not satisfy his burden of persuasion on his request for a transfer to CPS.

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In sum, the judicial appeal panel did not err by granting the commissioner’s motion
to dismiss Smallwood’s petition.
Affirmed.