In the Matter of the Civil Commitment of: Jose Luis Gutierrez.

This opinion will be unpublished and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
A18-1290

In the Matter of the Civil Commitment of:
Jose Luis Gutierrez.

Filed December 24, 2018
Affirmed
Rodenberg, Judge

Ramsey County District Court
File No. 62-MH-PR-17-109

Kathleen K. Rauenhorst, Roseville, Minnesota (for appellant Jose Luis Gutierrez)

John J. Choi, Ramsey County Attorney, Stephen P. McLaughlin, As sistant County
Attorney, St. Paul, Minnesota (for respondent Ramsey County)

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Stauber, Judge.

U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Jose Luis Gutierrez appeals from the district court’ s order indeterminately
civilly committing him as a sexually dangerous person (SDP) and as a sexual psychopathic
personality (SPP). We affirm.

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

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FACTS
Appellant was born in Brooklyn, New York, in 1973. He came to Minnesota in
1996 to avoid prosecution for an assault allegedly committed ag ainst his girlfriend when
he beat her, struck her in the head with closed fists, and bit her. Since 1996, appellant has
continued to commit both violent and sex-related offenses and has spent most of his adult
life either incarcerated or under supervision. Appellant’s con viction history includes
assault, criminal sexual conduct, disorderly conduct, false imp risonment, driving while
impaired (DWI), obstruction of l egal process, and a drug felony . Many of appellant’s
convictions have involved extreme violence toward women.
In 2002, appellant brutally beat and sexually assaulted his the n-girlfriend, H.V.
Appellant locked the apartment door so that H.V. could not leav e. He then repeatedly
punched H.V. in the face and head and sat on her. During the assault, appellant wore gloves
to ensure that he would not injure his hands. Appellant poked H.V. in the nose and ears
with a coat hanger, jabbed her repeatedly with a fork, and clamped each of H.V.’s toes with
a pair of pliers. After tortu ring her, appellant forced H.V. t o look at her bruises in the
mirror, forced H.V. to disrobe, a nd then raped her. Appellant pleaded guilty to felony
assault for this offense. While police were investigating the assault, H.V. reported several
other instances of sexual violence by appellant. H.V. reported that she came home from
work one day and appellant beat her through the night. H.V. re ported that appellant told
her that he would kill her if she was ever unfaithful. H.V. st ated that during another
incident, appellant cinched a belt around her neck.

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In July 2009, appellant picked up a 17-year-old female and forced the girl, M.G.H.,
to stay in the car and then to come into his home. At his home , appellant forced M.G.H.
onto a bed, fondled her, pulled off her clothes, pinned her dow n, and raped her. M.G.H.
asked appellant to stop, and appellant became angry and pulled a handgun out of his closet
and asked M.G.H. if she had ever had a gun pointed at her. M.G .H. was unable to leave
because she feared that if she tried to escape appellant would kill her. M.G.H. was not able
to get free until the next day, when she called police.
In September 2009, appellant thr eatened to shoot, cripple, and kill a different 17-
year-old female. That same month, J.L.P., a 16-year-old female , reported that she met
appellant, gave him her phone number and, on several occasions, snuck out of her home to
have sex with him. On one occasion, appellant became angry, hit J.L.P., and threatened to
kill her.
Appellant pleaded guilty to crimin al sexual conduct, terroristi c threats, and false
imprisonment charges for the 2009 offenses against the three te enagers, and received
concurrent sentences.
The state filed its petition to commit appellant as SDP and SPP in August 2017.
Appellant was then serving three executed felony sentences. Dr. Andrea Lovett prepared
a prepetition report, and the co urt appointed two examiners. D r. Peter Meyers was
appointed by the court to examine appellant, and Dr. Thomas Alb erg was appointed as
appellant’s requested second examiner. All three examiners determined that appellant has
a high degree of psychopathy and paraphilia and that his history of sexual violence renders

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him extremely likely to commit further sexual violence. At trial, all three examiners agreed
that appellant meets both the SDP and SPP criteria.
Dr. Alberg’s report included that appellant’s history includes domestic assault,
terroristic threats, violation of orders for protection, and fi fth-degree assault. The report
also noted that appellant has a history of dating adolescent women, and that appellant “has
openly admitted to an attraction to ‘much younger females.’”
Dr. Meyers’s report also summarized appellant’s sexual history and his violent
offenses. Dr. Meyers determined that appellant meets the diagnostic criteria for antisocial
personality disorder and is a psychopath. Dr. Meyers also determined that appellant meets
the criteria for sexual sadism, a paraphilia that is difficult to treat.
Before the civil commitment trial, appellant moved the district court to stay the
commitment proceedings. Appellant argued that he should not be placed in the Minnesota
Sex Offender Treatment Program (MSOP) because the program is lacking in structure and
because he was not given the opportunity to participate in effective sex-offender treatment
during his previous incarceratio ns. Appellant also claimed tha t his attorney was not
adequately trained to represen t him, and that her appointment v iolated his rights. The
district court denied appellant’s motion.
The district court held a civil commitment trial in April 2018. During the trial, J.K.,
a special investigator for the Department of Corrections (DOC), testified that she reviewed
a March 2016 email that appellant sent H.V. (a previous victim and girlfriend) while he
was incarcerated. In the email, appellant told H.V., “I no longer feel bad for crashing your
b---h a-- all them yrs ago! . . . So u got wat u deserved. . . . I pray to Satan u catch AIDS,

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n die slow.” J.K. testified th at, although appellant had taken several anger-management
classes, it did not appear that he had applied those principles to his life.
Drs. Lovett, Meyers, and Alberg also testified. Dr. Lovett tes tified that “it is
abundantly clear that [appellant] is a very substantial risk to other people.” Drs. Alberg
and Meyers testified that each believes appellant meets the criteria for SDP and SPP.
Appellant also testified. Most of appellant’s testimony involved explaining that he
pleaded guilty to previous offenses to “get [them] out of the way” and that he had admitted
to the offenses because his lawyers told him to do so. He deni ed raping H.V., and denied
using pliers, a hanger, and a fork to torment her. Appellant c alled three other witnesses,
who spoke of their relationship with him, but none offered testimony relating to appellant’s
criminal history or whether appellant satisfied the statutory criteria for commitment. The
district court indeterminately committed appellant to the MSOP as SDP and SPP.
This appeal followed.
D E C I S I O N
A person may be civilly committed as SDP or SPP if the statutory criteria are proved
by clear and convincing evidence. Minn. Stat. § 253D.07, subd. 3 (2018). We review a
district court’s factual findings on the elements of the civil commitment statutes for clear
error. In re Civil Commitment of Stone, 711 N.W.2d 831, 836 (Minn. App. 2006), review
denied (Minn. June 20, 2006). “Where the findings of fact rest almos t entirely on expert
testimony, the [district] court’s evaluation of credibility is of particular significance.” In
re Knops, 536 N.W.2d 616, 620 (Minn. 1995). But whether the evidence i s sufficient to
meet the statutory requirements for commitment is a question of law, which we review de

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novo. In re Civil Commitment of Crosby, 824 N.W.2d 351, 356 (Minn. App. 2013), review
denied (Minn. Mar. 27, 2013).
Appellant argues that the evidence is insufficient to commit hi m as SDP and SPP,
because he only has one conviction for criminal sexual conduct. But appellant provides no
legal citation or analysis to supp ort his assertion that one cr iminal-sexual-conduct
conviction is insufficient to support commitment. See State v. Krosch , 642 N.W.2d 713,
719 (Minn. 2002) (stating that because appellant’s pro se supplemental brief contained “no
argument or citation to legal authority in support of the alleg ations” those arguments are
waived); State v. Ture, 632 N.W.2d 621, 632 (Minn. 2001) (noting that appellant failed to
provide any authority or argument to support several of his cla ims and therefore those
claims were waived); State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (“Where
a defendant asserts error, but fa ils to address the error in hi s appellate brief, the issue is
deemed waived.”), review denied (Minn. Aug. 5, 1997). We nevertheless interpret
appellant’s argument to be that the evidence to support his commitment is insufficient.
I. The evidence supports the dis trict court’s determination tha t appellant is a
sexually dangerous person.

A person may be committed as SDP if the person “(1) has engaged in a course of
harmful sexual conduct . . . ; (2) has manifested a sexual, per sonality, or other mental
disorder or dysfunction . . . ; and (3) as a result, is likely to engage in acts of harmful sexual
conduct.” Minn. Stat. § 253D.02, subd. 16(a) (2018). The statute does not require the state
to prove that the person has an inability to control his sexual impulses. Id., subd. 16(b)
(2018). In order to commit a person as SDP, there must be clear-and-convincing evidence

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that the person is highly likely to engage in future acts of ha rmful sexual conduct. See In
re Civil Commitment of Ince, 847 N.W.2d 13, 20-22 (Minn. 2014).
A. Course of harmful sexual conduct
In order to commit appellant as SDP, the district court must first find that appellant
has engaged in a course of harmful sexual conduct. Harmful sexual conduct is defined as
“sexual conduct that creates a substantial likelihood of serious physical or emotional harm
to another.” Minn. Stat. § 253D.02, subd. 8(a) (2018). A “cou rse of conduct” is defined
by its ordinary meaning, which is a “systemic or orderly succes sion; a sequence.” In re
Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn. App. 2002) (quotation omitted),
review denied (Minn. Sept. 17, 2002).
Appellant argues that the offens es included in his criminal hi story do not meet the
criteria for a course of sexual misconduct, again because he ha s only one conviction for
criminal sexual conduct. He also argues that, although he has previous felony convictions
for assaulting women with whom he was in a sexual relationship, we should not take those
convictions into account because appellant did not assault those women for the purpose of
having sex with them.
The record does not support either of appellant’s arguments. The district court
found that appellant’s “previous crimes are relevant to [a] cou rse of sexual misconduct
because they both involved sexual relationships with teenaged g irls, who [appellant] had
just recently met, intertwined with extreme violence toward the [victims] which evidence
[appellant’s] escalating pattern of sexual violence towards you ng females.” The record
supports the district court’s de termination. The record eviden ces a course of harmful

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misconduct, and appellant has con tinued to commit such offenses when not incarcerated.
See In re Robb, 622 N.W.2d 564, 573-74 (Minn. App. 2001) (noting that the exi stence of
a period in which a person has not committed sex offenses does not preclude a
determination that he engaged in a course of sexual misconduct) , review denied (Minn.
Apr. 17, 2001).
The fact that appellant’s convict ions include only one for crim inal sexual conduct
is of little consequence. What matters here is what appellant did. The district court
correctly and properly took into account the totality of appell ant’s criminal history. See
Stone, 711 N.W.2d at 837 (“An examination of whether an offender eng aged in a course
of harmful sexual conduct takes into account both conduct for w hich the offender was
convicted and conduct that did not result in a conviction.”). The record supports the district
court’s determination that a course of harmful sexual conduct is present.
B. Manifestation of a sexual, personality, or mental disorder
The second element of the SDP determination requires a district court to find that
the person has manifested a sexual, personality, or other menta l disorder or dysfunction.
Minn. Stat. § 253D.02, subd. 16(a)(2).
Appellant does not dispute the district court’s conclusion that he manifests a
qualifying disorder. Instead, he argues that despite his diagnoses for paraphilia, personality
disorders, and substance-abuse disorder, he is able to manage his sexual impulses, because
he has committed “only one crime against a woman for the purpos e of having sexual
contact with her.” Three psychologists concluded that appellant has a sexual, personality,
or other mental disorder. Those experts diagnosed appellant wi t h p a r a p h i l i a , s a d i s m ,

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personality disorders, substance disorders, and concluded that appellant exhibits a high
degree of psychopathy. The record contains no contrary expert opinion.
Dr. Lovett explained that appella nt’s sexual misconduct continu ed from 1998 to
2009, despite appellant’s multiple convictions and incarceratio ns. She noted that
appellant’s “character pathology likely exacerbates his lack of adequate control over his
sexual behavior by causing him to: (1) disregard the wishes, r ights, and feelings of other
people; (2) experience anger a nd emotional dysregulation; and, (3) focus on meeting his
own needs and desires—including sexual desires—without consider ing the
appropriateness, legality, or impact of his actions on others.” Dr. Meyers reported that
appellant is highly likely to sexually reoffend because appellant has “zero insight into the
harm that he has caused his victims.” Dr. Alberg similarly con cluded that appellant’s
paraphilia and personality disorder combined with his history r ender him highly likely to
commit further sexual crimes. The record supports the district court’s determination
concerning the second SDP element
C. Likelihood of engaging in act s of harmful sexual misconduct
Finally, the district court must determine whether appellant is likely to engage in
acts of harmful sexual conduct. Minn. Stat. § 253D.02, subd. 1 6(a)(3). To determine
whether a person is highly likely to reoffend, a district court must engage in a multi-factor
analysis. See Ince, 847 N.W.2d at 22-23. The multi-factor analysis includes consideration
of
(a) the person’s relevant demographic characteristics . . . ;
(b) the person’s history of violent behavior . . . ; (c) the ba se
rate statistics for violent behavior among individuals of this

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person’s background . . . ; (d) the sources of stress in the
environment . . . ; (e) the similarity of the present or future
context to those contexts in which the person has used violence
in the past; and (f) the person’s record with respect to sex-
therapy programs.

Id. at 22 (quoting In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994)). The multi-factor
analysis may include other relev ant evidence and information, a nd includes the actuarial
assessment evidence used by the experts. Id. at 23-24. No single factor is determinative.
In re Civil Commitment of Navratil, 799 N.W.2d 643, 649 (Minn. App. 2011).
All three experts agreed that appellant is highly likely to eng age in harmful sexual
misconduct. Dr. Lovett testified that appellant “has continued to rely on both the thought
and behavioral patterns that characterized his substantial crim inal and violent behavior in
the past.” Appellant’s scores on various actuarial assessments place him in the above-
average-risk range for reoffending. Dr. Alberg testified that “psychopaths are highly likely
to continue to reoffend” because they “tend to be people who ar e not deterred very much
by outside forces.”
The district court addressed the Linehan factors and determined that appellant is
highly likely to engage in future harmful sexual conduct. The record supports the district
court’s conclusion. Appellant has a lengthy history of threate ning and violent behavior,
and he has a limited history of employment due in part to an extensive history of arrest and
incarceration. Three experts opined that appellant is an above -average risk for further
sexual harm. Appellant twice had the opportunity to participate in sex-offender treatment
while he was incarcerated. Appellant violated program rules and was terminated from the
program on two occasions. As a result, appellant remains an untreated sex offender.

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The district court’s findings that appellant meets the SDP criteria are well-supported
by the record. As the district court noted, appellant has continued to commit violent, sex-
related offenses, and his convictions and incarcerations have not deterred him. The district
court credited the expert testimony and determined that “all re ports and testimony of the
three doctors are clear, credible, and convincing.” See Crosby, 824 N.W.2d at 356; see
also Knops, 536 N.W.2d at 620 (stating that due regard is given to a dist rict court’s
credibility determinations, and that the district court’s evalu ation of the credibility of an
expert witness is significant w hen the findings of fact rest al most exclusively on the
expert’s testimony). The record supports the district court’s determination that there is
clear-and-convincing record evidence to show that appellant meets the SDP criteria.
II. The evidence supports the district court’s determination th at appellant meets
the sexual-psychopathic-personality criteria.

A sexual psychopathic personality is statutorily defined as
the existence in any person of such conditions of emotional
instability, or impulsiveness of behavior, or lack of customary
standards of good judgment, or failure to appreciate the
consequences of personal acts, or a combination of any of these
conditions, which render the person irresponsible for personal
conduct with respect to sexual matters, if the person has
evidenced, by a habitual course of misconduct in sexual
matters, an utter lack of power to control the person’s sexual
impulses and, as a result, is dangerous to other persons.

Minn. Stat. § 253D.02, subd. 15 (2018). To commit someone as a person with a sexual
psychopathic personality, the district court must find (1) an habitual course of misconduct
involving sexual matters, (2) an utter lack of power to control sexual impulses, and
(3) dangerousness to others. Id.; Linehan, 518 N.W.2d at 613.

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Appellant again argues that, because he only has a single crimi nal sexual conduct
conviction, an habitual course o f misconduct is not present. T he record strongly refutes
appellant’s argument. Despite m ultiple incarcerations and conv ictions, appellant has
continued to commit violent assaults and sex-related offenses against women. His repeated
sexual violence toward women and his generalized criminal behav ior show an habitual
course of misconduct.
Similarly, concerning the second element, appellant argues that , because he only
has one criminal sexual conduct conviction, he is able to contr ol his sexual impulses.
Appellant’s pattern of assaults evidence that he is someone who “fixate[s] on following
through with his behavior and im pulsively follows through regar dless of the
consequences.” Dr. Meyers’s repor t pointed to the fact that ap pellant’s sexual-offense
cycle has elicited a “knee jerk” response, as he seeks out female victims who lack maturity
and whom he can manhandle and subdue. The record supports the district court’s finding
that “[n]o measures or interventions cause him to cease his harmful behavior.”
A person is dangerous to others and subject to commitment as
a sexual psychopathic personality when the person’s pattern of
sexual misconduct (1) creates a substantial likelihood of
physical or emotional harm to others, and (2) is likely to recur
because of an utter lack of power to control sexual impulses.

In re Kindschy , 634 N.W.2d 723, 732 (Minn. App. 2001) (quotation omitted), review
denied (Minn. Dec. 19, 2001). In determining if a person is “dangerous to others,” courts
must consider (1) the nature and frequency of the sexual assaults, (2) the degree of violence
involved, (3) the relationship between the offender and the vic tims, (4) the offender’s
attitude and mood, (5) the offende r’s medical and family histor y , ( 6 ) t h e r e s u l t s o f

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psychological and psychiatric tes ting and evaluation, and (7) o ther relevant factors that
bear on the predatory sex impulse and lack of power to control it. In re Blodgett , 510
N.W.2d 910, 915 (Minn. 1994).
Appellant argues that he is not d angerous because he has tried to compete sex-
offender treatment and has pleaded guilty and completed his sentences. The district court
found, in part, that (1) appellant continues to sexually reoffe nd despite repeated criminal
sanctions and treatment; (2) once appellant starts his sexual-violence cycle, he is unable to
stop; (3) there is a wide range of victims, including teenagers largely unknown to appellant;
(4) appellant fails to remove himself from situations where he is likely to reoffend, and
(5) his last three victims fit his pattern of actively seeking out and preying upon young and
vulnerable females. Finally, the district court determined tha t appellant continued to
commit offenses even while in prison, finding that he re-victimized one of his victims after
a commitment petition was filed. The record supports the district court’s findings.
Dr. Alberg’s report stated that appellant had begun to assault women in his early
20s and, that, although he was not charged with sexual assaults in every incident, there was
a sexual component to all of the offenses and appellant continued to reoffend while in the
community. Dr. Alberg’s report al so stated that appellant’s of fenses have involved a
significant degree of violence—“his victims have ranged from a girl he just met, to his
s p o u s e , t o p e o p l e h e l i v e d w i t h a n d p e o p l e [ h e d a t e d ] . ” D r . M eyers reached a similar
conclusion in his report, stating that, because appellant meets the criteria for psychopathy
and sexual sadism, he is even more likely to reoffend “because [appellant] is not inhibited
by pain and torture,” he poses an even greater risk for sexual recidivism. Dr. Lovett’s

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report initially indicated that appellant possibly met the Blodgett factors, but at trial her
testimony revealed that she believed it was clear that, after review, appellant is dangerous
and unable to control his impulses.
The reports and trial testimony support the district court’s fi ndings that appellant
meets the statutory criteria for SPP. The district court prope rly determined that appellant
meets the statutory criteria for commitment as both SDP and SPP.
Affirmed.