In the Matter of the Civil Commitment of: Oliver Lenell Dority.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1212

In the Matter of the Civil Commitment of:
Oliver Lenell Dority.

Filed January 14, 2019
Affirmed
Johnson, Judge

Judicial Appeal Panel
File No. AP17-9159

Mary M. Huot, St. Paul, Minnesota (for appellant)

Keith M. Ellison, Attorney General, Aaron Winter, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

John Choi, Ramsey County Attorney, Stephen P. McLauglin, Assistant County Attorney,
St. Paul, Minnesota (for respondent Ramsey County)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and John P.
Smith, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Oliver Lenell Dority is civilly committed as a sexually dangerous person. In 2016,
he was granted a provisional discharge. But his provisional discharge was revoked in 2017
after he violated its conditions. Shortly thereafter, he petitioned the special review board

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

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for a “restructuring” of his provisional discharge. The special review board recommended
that his petition be denied. He requested rehearing and reconsideration by the judicial
appeal panel. After a first -phase evidentiary heari ng, the judicial appeal panel granted a
motion to dismiss his petition. We conclude that the judicial appeal panel did not err
because Dority did not produce evidence during the first-phase hearing that is sufficient to
establish a prima facie case that he is entitled to provisional discharge. Therefore, we
affirm.
FACTS
Dority is a 53-year-old man who is civilly committed as a sexually dangerous person
(SDP). Between the late -1980s and mid-1990s, Dority engaged in sexual assaults or
attempted sexual as saults against four women. On two occasions, he was convicted of
criminal sexual conduct and sentenced to terms of imprisonment. He has several other
non-sexual criminal convictions, including two felony robbery convictions, which resulted
in periods of incarceration. In 2009, Ramsey County petitioned the district court to civilly
commit him as an SDP. The district court granted the petition.
In May 2015, Dority petitioned the special review board for a provisional discharge.
The special review board recommended granting the petition. The judicial appeal panel
set the matter on for a hearing on its own initiative. See Minn. Stat. § 253D.28, subd. 1(c)
(2018). In January 2016, the judicial appeal panel filed an order granting Dority’s petition.
Dority was provisionally discharged to a supervised transitional residence.
In December 2016 , Dority violated a term of his provisional -discharge plan by
making an unscheduled visit to a store. He also violated a term of his provisional-discharge

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plan by adding data services to his cellular telephone. In June 2017, Dority violated a term
of his provisional -discharge plan by meeting a female acquaintance at a hotel for the
purpose of engaging in voluntary sex when his schedule indicated that he would be
elsewhere.
Because of these violations, Dority was asked in July 2017 to voluntarily return to
the Community Preparation Services (CPS) program at the Minnesota Sex Offender
Program (MSOP). He did so. While at CPS, Dority was prompted to disclose several
additional violations , including watching a pornographic movie, gambling , taking
unapproved transportation, visiting unapproved locations, meeting female and male friends
at approved locations without notifying his re-integration specialist, and lying to treatment
providers about his behavior . On August 4, 2017, Dority’s provisional discharge was
formally revoked. On August 10, 2017, MSOP’s executive director documented the
revocation in a report in which she wrote that Dority’s “lack of cooperation with rules and
supervision while he was on provisional discharge and his ongoing inability to be
transparent with his treatment providers continues to present as a risk for public safety.”
The revocation report informed Dority that he was permitted by statute to petition the
special review board within seven days for a review of the revocation. See Minn. Stat.
§ 253D.30, subd. 6 (2018).
Five days later, Dority petitio ned the special review board . He requested a
“restructuring” of his provisional discharge. The special review board reviewed various
records, including a treatment report prepared by Dority’s treatment team and a sexual -
violence risk assessment prepared by a forensic psychologist. The treatment report stated

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that Dority’s behavior while on provisional discharge “indicates he does not yet have the
skills to independently manage his criminal offense related patterns” and that his “repeated
violation behaviors, lack of transparency, and dependency on external control s for
disclosure and challenging his cognitive distortions and maladaptive belief systems
continue to be a concern and further areas of treatment need.” The treatment report also
indicated that the “most effective way for Dority to develop the necessary s kills, and thus
reduce his risk for recidivism, is through active participation in sex offender treatment.”
The treatment report recommended that Dority remain in his current treatment setting at
MSOP. The sexual-violence risk assessment i dentified sever al risk factors, including
general social rejection, negative emotionality, sex as coping, deviant sexual preference,
and cooperation with supervision. The risk assessment also stated that Dority has
“remaining treatment need areas.” The forensic psychol ogist stated that D ority’s
provisional-discharge plan “lacked specificity,” particularly with regard to management of
his high-risk factors, and “could not be adequately assessed” and, thus, concluded that
Dority did not meet the criteria for provisional discharge.
In October 2017 , the special review board recommended that Dority’s petition be
denied. Dority petitioned the judicial appeal panel for rehearing and reconsideration. The
judicial appeal panel conducted a n evidentiary hearing in June 2018. Dority called three
witnesses. He testified first, stating that he has made progress in treatment and that
MSOP’s new Client Provisional Discharge Management and Supervision policy, which
was not available at the time of his first provisional discharge, would allow him to be more
successful if he were provisionally discharged again. Dority also introduced five exhibits,

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including his provisional -discharge-management-and-supervision plan and his relapse -
prevention plan.
Dority’s second witness was Shelby Clethen, a re-entry technician at the transitional
residence where Dority resided while o n provisional discharge , who testified to his
observations of Dority but did not testify about Dority’s clinical progress.
Dority’s third witness was James H. Gilbertso n, Ph.D., a co urt-appointed
psychologist, who had prepared a detailed 22 -page report, which was an exhibit at the
hearing. Dr. Gilbertson’s report noted that he first examined Dority several years earlier
in conjunction with his initial commitment. His report questioned whether Dority “suffers
from a paraphilic disorder ” or, on the other hand, whether “his sexual behavior [is] a
reflection of his antisocial/psychopathic personality traits.” Dr. Gilbertson noted that
Dority has “a high degree of psychopathy.” He further noted that treatment records show
some “positive changes in transparency, openness, and a willingness to discuss his
difficulties” but also leave lingering questions about whether “these changes or his positive
engagement is, yet, another facet of his ability to be charming; compliant, obedient to
institutional rules, but with out basic internal change.” Dr. Gilbertson opined that Dority
“is more likely, in the future, to be involved in criminal non -sexual behavior than in
criminal sexual behavior.” Dr. Gilbertson further opined that “simply ‘retreading’ [Dority]
through the existing modules, with which he has had experience, is not addressing what I
believe to be the critical issue.” Dr. Gilbertson posed certain questions with respect to
Dority’s future treatment, including the question of “what specific treatment focus, tactics,
or strategies can be utilized with a criminalist psychopath . . . that would allow him to be

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available for provisional discharge?” Dr. Gilbertson opined that “continued life within the
secure perimeter and ‘retreading’ the pre vious therapeutic modules may not advance Mr.
Dority’s progress.” He stated, “The emphasis that I believe would serve Mr. Dority’s
treatment progress, and also would be consistent with publi c safety, is a ‘tailored’ and
specialized relapse prevention plan that would address the risk issues repres ented [in] Mr.
Dority.” With respect to whether Dority should be provisionally discharged a second time,
Dr. Gilbertson opined that Dority “does not have a sufficiently structured plan to be
considered for placement in the community” and “any restructured provisional discharge
plan would need to be carefully crafted and, perhaps, highly individually ‘tailored,’ i.e.,
specific physical site, specific escort supervision, more fine-tuned electronic surveillance,
and the creation of ‘external controls’ to offset Mr. Dority’s faulty internal controls, to
address Mr. Dority’s treatment risk/needs.”
At the first -phase hearing, Dr. Gilbertson testified, consistent with his report, that
Dority does not have a sexual-deviance disorder or a paraphilia but that his sexual offenses
“arose primarily from his antisocial personality” and “a criminalistic orientation.” Dr.
Gilbertson explained that this type of sex offender “typically ha[s] far more violent criminal
non-sexual offenses than they do sexual offenses, but [that] they take what they want when
they want it.” Dr. Gilbertson testified that Dority needs to receive treatment and
supervision in his current setti ng to address his antisocial personality disorder with
psychopathic features but that he need not “retread” treatment specific to sexual deviance.
Dr. Gilbertson expressed concern that Dority will “be unnecessarily held far longer than
may be necessary” and opined that “there needed to be a look -ahead to a provisional

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discharge plan” created with the help of professional staff that wou ld allow him to be
successful.
On examination by the commissioner’s attorney, Dr. Gilbertson was asked, “Do you
think that at this time [Dority] continues to need additional treatment i n his current
setting?” He answered, “Yes.” The commissioner’s attorney established that Dr.
Gilbertson stood by the statement i n his written report that Dority does not have “a
sufficiently structured [provis ional discharge] plan.” The commissioner’s attorney also
asked, “And overall, you would conclude today that Mr. Dority is not capable of making
an acceptable adjustment to open society, correct?” Dr. Gilbertson answe red, “That is
correct.” The attorney for Ramsey County asked Dr. Gilbertson, “And there is not
currently the provisional discharge plan that . . . has been identified to you that will provide
a reasonable degree of protection to the public and enable Mr. Dority to adjust successfully
to the community?” Dr. Gilbertson answered, “That is correct.”
After Dority rested his case , the commissioner moved to dismiss Dority’s petition
on the ground that he had not stated a prima facie case that he is entitled to provisional
discharge. The county joined in the motion. In June 2018, the judicial appeal panel filed
an order in which it granted the motion to dismiss. Dority appeals.
D E C I S I O N
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 (2018). If a committed person files
a petition for a reduction in custody, “The special review board shall hold a hearing ” and,
thereafter, “shall issue a report with written findings of fact and shall recommend denial or

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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) (2018).
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) (2018) . The 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
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); 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 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.

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I.
Dority first argues that the judicial appeal panel erred on the ground that it “relied
exclusively on the provisional discharge factors in Minn. Stat. § 253D.30” in considering
his petition for “restructuring of his provisional discharge.” Dority does not flesh out this
argument in his principal brief. At oral argument, his attorney clarified that Dority is
challenging the fact that the judicial appeal panel did not review the decision to revoke his
provisional discharge but, rather, analyzed his eligibility for provisional discharge as if he
had petitioned for provisional discharge for the first time.
The parties agree that Dority is the first person who has been provisionally
discharged from MSOP and then had his provisional discharge revoked. Consequently, he
is the first person to have petitioned the special review board after having had his
provisional discharge revoked. The judicial appeal panel was fully aware of the procedural
history of Dority’s commitment and expressly determined at the outset of the first-phase
hearing that it would treat the petition as any other petition for a provisional discharge.
Two statutory provisions are relevant to Dority’s argument. The fourth paragraph
of subdivision 5 of section 253D .30, which is captioned, “Revocation,” provides, “ An
individual who is revoked from provisional discharge must successfully re -petition the
special review board and judicial appeal panel prior to being placed back on provisional
discharge.” Minn. Stat. § 253D.30, subd. 5(d). In addition, subdivision 6 of section
253D.30, which is captioned, “Appeal,” provides:
Any committed person aggrieved by a revocation
decision or any interested person may petition the special
review board within seven days, exclusive of Saturdays,

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Sundays, a nd legal holidays, after receipt of the revocation
report for a review of the revocation. The matter shall be
scheduled within 30 days. The special review board shall
review the circumstances leading to the revocation and shall
recommend to the judicial appeal panel whether or not the
revocation shall be upheld. The special review board may also
recommend a new provisional discharge at the time of the
revocation hearing.

Minn. Stat. § 253D.30, subd. 6.
The latter provision, subdivision 6, allows a person such as Dority to obtain review
of a revocation of provisional discharge by the special review board. If a person requests
a review of a revocation by the special review board , subdivision 6 requires the special
review board to review the revocation and authorizes the special review board to
recommend “a new provisional discharge.” Id. But subdivision 6 does not expressly
authorize a person to obtain review of a revocation of provisional discharge by the judicial
appeal panel. See id. Subdivision 6 implies that the judicial appeal panel may order a new
provisional discharge if the special review board recommends a new provisional discharge.
See id. But subdivision 6 neither requires nor authorizes the judicial appeal panel to review
the revocation of a provisional discharge if the special review board does not recommend
a new provisional discharge. See id.
In this case, t he special review board did not reco mmend a new provisional
discharge. Accordingly, it was necessary for Dority to “re-petition the special review board
and judicial appeal panel ” for a provisional discharge, as expressly permitted by
subdivision 5(d). Minn. Stat. § 253D.30, subd. 5(d). The requirement that a person such
as Dority “re-petition” the special review board and judicial appeal panel implies that he

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must do so by following the usual requirements of a petition for a reduction in custody.
See Minn. Stat. § 253D.27, subd. 2. Thus, the judicial appeal panel did not err by applying
the criteria in subdivision 1 of section 253D .30, which applies to all petitions for
provisional discharge. See Minn. Stat. § 253D.30, subd. 1. We review the judicial appeal
panel’s decision according to those criteria.
In connection with his first argument, Dority suggests that the judicial appeal panel
erred on the ground that his continuing commitment is inconsistent with his constitutional
rights. See Foucha v. Louisiana , 504 U.S. 71 (1992); Call v. Gomez , 535 N.W.2d 312
(Minn. 1995); In re Blodgett, 510 N.W.2d 910 (Minn. 1994). But Dority did not preserve
such an argument because he did not present it to the judicial appeal panel. This court will
not consider an argument for the first time on appeal if it was not presented to the court or
judicial tribunal wh ose decision is on review . See Thiele v. Stich , 425 N.W.2d 580, 582
(Minn. 1988); Doe 175 v. Columbia Heights Sch. Dist., 842 N.W.2d 38, 42-45 (Minn. App.
2014). Thus, the constitutional issues discussed in Dority’s brief are not properly before
the court.
II.
Dority also argues that the judicial appeal panel erred by granting the motion to
dismiss his petition. He contends that he introduced sufficient evidence to state a prima
facie case that he is entitled to provisional discharge.
If the commissioner wishes to challenge a petitioner’s entitlement to relief after the
petitioner rests his case, the commissioner may move to dismiss the petition pursuant to
rule 41.02(b) of the rules of civil procedure. Coker, 831 N.W.2d at 489-91. Th at rule

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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 fac ts and the law, the
plaintiff has shown no right to relief. ” Minn. R. Civ. P. 41.02(b) . 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 credibili ty determinations.” Coker, 831
N.W.2d at 490-91. “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).
In this case, the judicial appeal panel determined that Dority “failed to sustain his
burden of presenting a prima facie case with competent evidence ” with respect to both
statutory factors. Dority contends that he satisfied his burden of establishing a prima facie
case. We will review the evidence concerning each statutory factor.
A.
The first factor relevant to a provisional discharge is “ 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.” Minn.
Stat. § 253D.30, subd. 1(b)(1).
The judicial appeal panel analyzed the first factor as follows:

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Viewing the evidence in the light most favorable to
Petitioner, Petitioner has failed to provide any competent
evidence that there is no longer a need for treatment and
supervision in his current setting. Absent corroborating
testimony, Petitioner’s testimony alone is not competent
evidence as to the elements for provisional discharge. . . . The
only independent testimony capable of sustaining Petitioner’s
burden is that of Dr. Gilbertson. However, Dr. Gilbertson
opined that Petitioner requires treatment and supervision in his
current setting. Dr. Gilbertson favorably testified that
Petitioner has gained sufficient knowledge in terms of sex
offender speci fic treatment; nevertheless, Petitioner requires
treatment focused on his criminal thinking.

Dority challenges this part of the judicial appeal panel’s decision by contending that
Dr. Gilbertson’s testimony satisfied his burden of producing evidence capab le of proving
the first factor. Dr. Gilbertson’s report and testimony were somewhat favorable to Dority,
and Dr. Gilbertson testified that Dority did not need to “retread” his previous sex-offender
treatment. But Dr. Gilbertson did not testify that Dorit y no longer needs treatment and
supervision in his current treatment setting. Rather, Dr. Gilbertson testified that Dority
“needed certainly to go back and do some treatment” at MSOP to address his anti -social
personality disorder with psychopathic featur es. In addition, Dr. Gilbertson answered in
the affirmative when asked, “Do you think that at this time [Dority] continues to need
additional treatment in his current setting?” Thus, the only evidence in the record on the
first factor indicates that Dority continues to need treatment and supervision in his current
treatment setting.
B.
The second factor relevant to a provisional discharge is “whether the conditions of
the provisional discharge plan will provide a reasonable degree of protection to the pub lic

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and will enable the committed person to adjust successfully to the community .” Minn.
Stat. § 253D.30, subd. 1(b)(2).
The judicial appeal panel analyzed the second factor as follows:
Petitioner has not presented competent evidence that the
conditions of the provisional discharge plan will provide a
reasonable degree of protection to the public or enable him to
adjust successfully to the community. Dr. Gilbertson testified
that Petitio ner’s current provisional discharge plan is
insufficient and would not allow Petitioner’s successful
adjustment. In fact, Dr. Gilbertson testified that any
provisional discharge plan would need to be restructured.
Petitioner requires additional work on r elapse prevention to
reduce his risk and increase his chances of success in the
community.

Dority challenges this part of the judicial appeal panel’s decision by contending that
Dr. Gilbertson testified that he need s a different provisional -discharge plan and that he
himself testified that he is willing to follow a more-structured provisional-discharge plan.
Indeed, Dr. Gilbertson testified that Dority needs a provisional -discharge plan that will
allow him to be successful and that he needs “the help of professional staff” to create one.
Dority testified that he is willing to work with MSOP staff to restructure his previous plan
and to incorporate MSOP’s provisional-discharge policy into his new plan. Although this
evidence suggests that a satisfactory p rovisional-discharge plan is possible, Dority does
not effectively challenge the judicial appeal panel’s determination that his proposed plan
is insufficient.
Dority contends, however, that he “had no knowledge or resources to craft a
provisional discharge [plan] that would address his needs” and that he “was willing to work
with staff to create a plan that would be agreeable .” His contention implicates a statute

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providing that “a provi sional discharge plan shall be developed, implemented, and
monitored by the executive director [of MSOP] in conjunction with the committed person
and other appropriate persons.” Minn. Stat. § 253D.30, subd. 2. Dority does not directly
contend that the ex ecutive director failed to perform her duty in the development of a
provisional-discharge plan, and the record is not well -developed on that factual issue ,
although Dority testified that he prepared his proposed plan without assistance from MSOP
staff. Another statute provides that the judicial appeal panel “may not grant a transfer or
provisional discharge on terms or conditions that were not presented to the special review
board.” Minn. Stat. § 253D.28, subd. 3. The latter statute indicates that the judicial appeal
panel does not have unfettered authority to revise a provisional-discharge plan on rehearing
and reconsideration of a recommendation of the special review board . Id. Rather, the
judicial appeal panel may do so only if the terms and conditions of a provisional-discharge
plan were considered by the special review board. Id. But if the executive director has not
engaged in the requisite development of a provisional -discharge plan, no statute would
prevent the judicial appeal panel fro m remanding the matter back to the special review
board for further development of a satisfactory plan. See Kropp, 895 N.W.2d at 649 (noting
that, after first -phase hearing, judicial appeal panel denied commissioner’s motion to
dismiss and ordered MSOP executive director to work with petitioner to develop
provisional-discharge plan).
In this case, Dority filed his petition only a matter of days after the revocation of his
provisional discharge. It is not difficult to imagine that, in an effort to timely “appeal”
from the revocation of his provisional discharge within the seven days permitted by statute,

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see Minn. Stat. § 253D.30, subd. 6, Dority may not have had adequate time to develop a
provisional-discharge plan on his own. The record does not reflect whether there was
adequate time for collaboration with the executive director during that short period of time.
Nonetheless, because the judicial appeal panel may not revise a petitioner’s proposed plan
to add terms or conditions that “were not presented to the special review board,” see Minn.
Stat. § 253D.28, subd. 3, this court also may not do so. Rather, we are limited to
considering whether the plan or plans that are in the record “will provide a reasonable
degree of protection to the public and will enable the committed person to adjust
successfully to the community.” See Minn. Stat. § 253D.30, subd. 1(b)(2). Based on the
evidence presented by Dority at the first -phase hearing, we must conclude that Dority’s
proposed provisional-discharge plan will not “provide a reasonable degree of protection to
the public [or] enable [him] to adjust successfully to the community .” See Minn. Stat.
§ 253D.30, subd. 1(b)(2).
Thus, the judicial appeal panel did not err by determining that Dority did not present
a prima facie case that he is entitled to provisional discharge and did not err by granting
the motion to dismiss Dority’s petition.
Affirmed.