In the Matter of the Civil Commitment of: Daniel Leroy Patten.

This opinion will be unpublished and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
A18-1464

In the Matter of the Civil Commitment of: Daniel Leroy Patten.

Filed February 4, 2019
Affirmed
Reyes, Judge

Aitkin County District Court
File No. 01-PR-17-186

Jennifer L. Thon, Steven D. Wi nkler, Warren J. Maas, Jones Law Office, Mankato,
Minnesota (for appellant Daniel Leroy Patten)

Keith Ellison, Minnesota Attorney General, Angel Helseth Kiese, Assistant Attorney
General, St. Paul, Minnesota; and

Jim Ratz, Aitkin County Attorney, Aitkin, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Connolly, J udge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges his commitment to the Minnesota Sex Offend er Program
(MSOP) as a sexually dangerous person (SDP) and sexual psychopathic personality (SPP),
arguing that the district court erred in determining that: (1) he was highly likely to reoffend
with harmful sexual conduct and (2) he has the requisite mental disorder or dysfunction.

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Appellant also argues that the dis trict court should have addre ssed his constitutional
challenge to the discharge criteria. We affirm.
FACTS
Appellant Daniel Leroy Patten is a 58-year-old man who has a significant criminal
history and has spent most of his adult life incarcerated. He also has a lengthy history of
sexual misconduct, exhibiting predatory impulses since he was a teenager, which escalated
as he got older. While many of the incidents of sexual miscond uct were not charged,
appellant has admitted to them over time as a part of his treat ment. In addition to the
juvenile and uncharged offenses, appellant’s three criminal con victions are worth briefly
noting.
In 1978, when appellant was 18, he and a friend abducted a wom an, S.P.B., who
saw them hitchhiking and picked them up. Appellant threated S.P.B. with a knife, forced
her into the trunk, and groped her breasts and genitals. S.P.B. was able to escape and call
law enforcement. Appellant pleaded guilty to kidnapping in 1979. When describing this
offense at his commitment hearing, appellant admitted that, had his friend not been there,
he would have raped S.P.B.
In 1983, when appellant was out on parole from his previous of fense, he raped an
adult woman, V.L.C., orally, anally, and vaginally. Appellant threatened her with a knife
and taped her wrists together dur ing the assault. A jury found appellant guilty of three
counts of criminal sexual conduc t i n t h e f i r s t d e g r e e , a n d t h e district court sentenced
appellant to 95 months in prison. During his commitment trial, appellant admitted to this
offense, stating that, at the time, he “really wanted to control her” and make her his slave.

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In December 1990, while appellant was released on furlough sta tus, he committed
his most recent offense. Appella nt kidnapped, at gunpoint, L.L .S. and her two adult
daughters from a gas station. Appellant forced L.L.S. to perform oral sex on him and shot
her in the eye with a pellet gun. He forced her two daughters to perform oral sex on him,
promising to take L.L.S. to the hospital if they did. Eventually, the daughters were able to
escape and take L.L.S. to a hosp ital, where she had multiple su rgeries and ultimately
required a prosthetic eye. In J une 1991, a jury found appellan t guilty of first-degree
attempted murder, first-degree assault, two counts of second-de gree assault, three counts
of kidnapping, four counts of first-degree criminal sexual cond uct, and first-degree
burglary. In describing the offenses at his commitment hearing, appellant testified that his
thoughts at the time were, “I’m going to dominate all three of these women.”
In September 2017, Aitkin Co unty (the county) filed a petition to have appellant
committed as an SDP and SPP. Th e district court assigned a fir st examiner, Dr. Peter
Marston, who submitted his report in December 2017.1 In his report, Dr. Marston opined
that appellant met the criteria for both an SDP and SPP, diagno sing appellant with sexual
sadism, antisocial-personality disorder, and chemical-use disorder (alcohol and cannabis).
The district court held a civil-commitment court trial on February 20-22, 2018. The
court heard testimony from MSOP Reintegration Director Scott Ha lvorson, Dr. Marston,
DOC Supervised Release Agent Aric Welle, and appellant.

1 Appellant refused to participate in an interview with Dr. Marston, so his report was based
on the available documentation. Appellant also declined to retain a second examiner.

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On July 5, 2018, the district court issued its findings of fact, conclusions of law, and
order for judgment. The district court recounted appellant’s history of sexual and criminal
behavior. In making its decision, the court found it:
highly inappropriate to place Respondent in the community.
Respondent is highly likely to reoffend sexually without sex
offender treatment and has an utter lack of power to control his
sexual impulses. Respondent needs sex offender treatment in
a secure program. The MSOP program is the best placement
for Respondent at this time, c onsidering its ability to help
Respondent learn certain essentia l concepts and demonstrate
that he can live by those concep ts through a gradual release
i n t o t h e c o m m u n i t y . R e s p o n d e n t i s a t a r i s k l e v e l a n d i s a
danger to society at this time.

The district court concluded that clear and convincing evidence supported appellant’s
commitment as both an SDP and S PP and indeterminately committed appellant to the
MSOP at Moose Lake. This appeals follows.
D E C I S I O N
A person may be civilly committed as an SDP or SPP if the count y proves the
statutory criteria by clear and convincing evidence. Minn. Stat. § 253D.07, subd. 3 (2018).
“We review the district court’s factual findings under a clear error standard to determine
whether they are supported by the record as a whole,” In re Civil Commitment of Ince, 847
N.W.2d 13, 22 (Minn. 2014), and view the record in the light most favorable to the findings,
In re Civil Commitment of Spicer, 853 N.W.2d 803, 807 (Minn. App. 2014). But whether
the evidence is sufficient to meet the statutory requirements for commitment is a question
of law, which this court reviews de novo. In re Civil Commitment of Martin, 661 N.W.2d
632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).

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Because “the commitment determination . . . is a difficult task often requiring
consideration of a voluminous and complex record followed by a careful balancing of all
the relevant facts,” the district court is in the best position to weigh the evidence and assess
credibility. Ince, 847 N.W.2d at 23-24 (quotations omitted). Consequently, “[w] e give
due deference to the district court as the best judge of the cr edibility of witnesses,” In re
Civil Commitment of Crosby , 824 N.W.2d 351, 356 (Minn. App. 2013), review denied
(Minn. Mar. 27, 2013)
I. The district court did not err in committing appellant as an SDP.
Appellant argues that the district court erred in committing him as an SDP because
(1) he does not presently have the requisite sexual, antisocial, or mental disorder and (2) the
record does not support the finding that he is highly likely to reoffend. We are not
persuaded.
A person may be committed as an SDP if the person: (1) has engaged in a course of
harmful sexual conduct; (2) has manifested a sexual, personality, or other mental disorder
or dysfunction; and (3) as a result, is likely to engage in act s of harmful sexual conduct.
Minn. Stat. § 253D.02, subd. 16( a)(1)-(3) (2018). The SDP stat ute 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 an SDP, there must be clear and convincing
evidence that a person is “highly likely” to engage in future acts of harmful sexual conduct.
Ince, 847 N.W.2d at 21. Appellant stipulated that he engaged in a habitual course of sexual
misconduct, so the only issue on appeal is whether elements two and three were satisfied
by sufficient evidence.

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A. The county presented sufficien t evidence to establish that appellant has
the required sexual, personality, or mental disorder.

Appellant argues that the second element for commitment as an S DP is not met
because the record does not support the finding that appellant has a sexual, personality, or
other mental dysfunction. We disagree.
The district court found “by clea r and convincing evidence, tha t [appellant] has
manifested a sexual, personality, or other mental disorder or d ysfunction” based on the
diagnoses by the court-appointed examiner, Dr. Marston. At tri al, Dr. Marston testified
that appellant has a sexual, personality, or other mental disorder, within the meaning of the
statute. Dr. Marston diagnosed appellant with three different disorders.
Dr. Marston diagnosed appellant w ith sexual sadism, based on hi s pattern of
offenses that included “the dom ination and humiliation of victi ms and causing them pain
and suffering that is fused with anger and hostility.” Dr. Mar ston opined that appellant’s
second and third convicted offenses definitely involved this level of violence coupled with
domination. Appellant admitted that during his two most recent offenses, his goal was to
“dominate” and “control” his female victims.
The district court agreed with Dr. Marston’s diagnoses, crediting his testimony that
appellant has manifested sexual sadism, antisocial-personality disorder, and alcohol- and
cannabis-use disorder. Appellant argues that, because his offe nses occurred nearly 30
years ago, there is no evidence that he currently presents with symptoms of any disorder.
However, as Dr. Marston explaine d, particularly with reference to sexual sadism, “it’s

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generally considered to be a . . . very long-term type of disorder, and so . . . once someone
exhibits this . . . one begins to conclude . . . that this is probably a lifetime disorder.”
The record, including appellant’s criminal history and Dr. Mars ton’s diagnoses,
supports the district court’s finding that appellant has a mental disorder sufficient to satisfy
the second element of the SDP statute.
B. The county presented suffici ent evidence to establish that a ppellant is
highly likely to reoffend.

Appellant challenges the district court’s finding that element three of the SDP statute
was satisfied, arguing that the record does not indicate that he is highly likely to reoffend.
We disagree.
To determine whether a person is highly likely to reoffend, a d istrict court must
engage in a “multi-factor analysis.” Ince, 847 N.W.2d at 23. The multi-factor analysis
includes consideration of the following six factors, known as the Linehan factors:
(1) the person’s relevant demographic characteristics (e.g., age,
education, etc.); (2) the person’s history of violent behavior
(paying particular attention to recency, severity, and frequency
of violent acts); (3) the base rate statistics for violent behavior
among individuals of this person’s background ( e.g., d a t a
showing the rate at which rapists recidivate, the correlation
between age and criminal sexual activity, etc.); (4) the sources
of stress in the environment ( cognitive and affective factors
which indicate that the person may be predisposed to cope with
stress in a violent or nonviolent manner); (5) the similarity o f
the present or future context to those contexts in which the
person has used violence in the p a s t ; a n d ( 6 ) t h e p e r s o n ’ 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 an d includes the actuarial-

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assessment evidence used by the experts. Id. at 24. No single factor is determinative of
this issue. In re Civil Commitment of Navratil, 799 N.W.2d 643, 649 (Minn. App. 2011).
The district court addressed the Linehan factors, and found Dr. Marston’s analysis
persuasive. The first factor is the person’s demographic chara cteristics. Dr. Marston
explained that appellant’s age does decrease his relative risk of reoffending under this
factor. However, Dr. Marston also reported that appellant had an increased risk to reoffend
here because he has never devel oped a satisfactory relationship w i t h a f e m a l e , h a s n o
family or other type of support system in place, and has no his tory of meaningful
participation in society, such as maintaining employment.
The second factor, the person’s history of violent behavior, i ndicated appellant’s
risk to reoffend due to the extreme severity of his past offens es. Dr. Marston explained
that appellant has been confined since his 1990 offense in which he exhibited “profoundly
extreme physical violence and profoundly extreme sexual violence.”
The third factor, base-rate statistics for violent behavior, also demonstrated a risk to
reoffend based on Dr. Marston’s finding that appellant’s “deviant sexual orientation, sexual
sadism, in combination with his psychopathy multiplicatively in c r e a s e s h i s r i s k . ” D r .
Marston referenced the Static-99R actuarial tool, which placed appellant at a well-above-
average risk to reoffend.
Fourth, the sources of stress in the environment indicated app ellant’s danger to
reoffend because, as Dr. Marston reported, as a level-three sex offender, appellant would
have difficulty developing relatio nships and finding employment and housing. The fact

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that appellant had no relapse-pr evention plan or planned method s to manage his sexual
impulses also significantly increased his risk of reoffending.
The fifth Linehan factor, the similarity of the present or future contexts to th ose in
which the person used violence in the past, also indicated a hi gh likelihood of reoffense
due to appellant’s very large victim pool (adult females). Dr. Marston reported that
appellant would be restricted by the Intensive Supervised Release period of one year and
an additional 11 to 12 years of supervised release, but appella nt would not face any
particular restraints in terms of his access to victims.
T h e l a s t Linehan factor, the person’s record wit h respect to offender treatment
programs, also demonstrated appellant’s high likelihood to reof fend because he has not
completed sex-offender treatment since he reoffended. Dr. Marston noted that “there is no
reason to believe that [appellant’s] proclivities for violent s ex offending are any different
than they were 27 years ago, particularly when he has continued to show the same kind of
defiance, litigiousness and grossl y unreasonable behavior that he has exhibited routinely
in the past and when he never followed through to demonstrate w ith any consistency that
anyone should draw a different conclusion.”
All of these findings are well supported by the record, includ ing Dr. Marston’s
testimony, the report prepared b y prepetition screener Dr. Love t t , a n d t h e D O C
psychologist. As appellant admits, all three examiners used the Static-99R test to evaluate
his risk of reoffending, and all three found that appellant’s s cores indicated a “well above
average risk.” In his testimony, Dr. Marston in particular noted that appellant’s reoffending
“so quickly after his release” was the most salient factor that indicated appellant’s extreme

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risk to reoffend. The district court credited this testimony, and the court’s evaluation of
the credibility of expert witness is particularly significant w hen the findings of fact rest
almost exclusively on the expert’s testimony. In re Knops, 536 N.W.2d 616, 620 (Minn.
1995).
Because the third element is also supported by sufficient evidence, the district court
did not err in finding that ther e is clear and convincing evide nce that appellant meets the
statutory criteria for commitment as an SDP.
II. The district court did not e rr in committing appellant as an SPP.

Appellant argues that the distr ict court erred in committing hi m as an SPP. We
disagree.
In order to be committed as an SPP, the county must prove by c lear and convincing
evidence that appellant has: (1) such conditions of emotional instability, impulsiveness of
behavior, lack of customary standards of good judgment, or fail ure to appreciate the
consequences of personal acts; (2) a habitual course of misconduct in sexual matters; (3) an
utter lack of power to control his sexual impulses; and, as a result (4) is dangerous to other
persons. Minn. Stat. §253D.02, subd. 15 (2018).
The Minnesota Supreme Court has distinguished between the SPP statute and the
SDP statute. See In re Linehan, 594 N.W.2d 867, 875 (Minn. 1999). The SPP statute
requires an “utter inability” to control sexual impulses. Id. In contrast, the SDP statute is
aimed at the person who retains “enough control to plan, wait, and delay the indulgence of
their maladies until presented with a high probability of success.” Id.

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Appellant’s argument here seems to be that, if he did not meet the criteria for SDP,
he cannot meet the heightened standard of “utter inability.” Generally, when considering
whether a person has an utter lack of power to control his sexual impulses, the district court
considers: (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) the results of
psychological and psychiatric test ing and evaluation; and (7) s uch other factors that bear
on the predatory sex impulse and the lack of power to control it. In re Blodgett, 510 N.W.2d
910, 915 (Minn. 1994).
In applying the first Blodgett factor, Dr. Marston’s report stated that appellant’s
three sexual-offense convictions began by abducting women from their cars, first when he
was eighteen. His offenses then escalated from sexual groping i n t h e f i r s t o f f e n s e , t o
multiple forced sexual acts in the second, and then to “brutal sadistic violence” with
multiple victims in the third offense. Dr. Marston noted that appellant committed the last
two offenses within just a few days after his release, the first time on parole, and the second
time while on furlough for a job search.
With respect to the second factor, the degree of violence, Dr. Marston explained that
appellant’s behavior was threatening and terrifying to all of t he victims in his three
offenses. Dr. Marston reported th a t “ a l l v i c t i m s i n t h e t h r e e incidents were severely
traumatized as indicated in the descriptions. There is a stunn ing absence of apparent
empathy or statements of remorse in the record.”

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In addressing the third factor, the relationship or lack thereof between the offender
and victim, Dr. Marston noted that all of appellant’s adult vic tims were strangers, and he
abducted and threatened them with extreme violence.
Dr. Marston found the fourth f actor, the offender’s attitude and mood, reflected in
appellant’s “extreme impulsivene ss and complete failure to cons ider risks and
consequences.” Dr. Marston agai n noted that “[h]is anger towar d women and the
extremely cruel, violent, sadistic behavior in his last offense, in particular, was profound.”
The fifth factor, the results of testing and evaluation, also i ndicated a risk to
reoffend. Dr. Marston reported that the Minnesota Sex Offender Screening Tool (MnSost-
3.1.2) indicated a risk level of “moderate” and the Static-99R reported a “well above
average” risk.
These findings were corroborated by Dr. Lovett’s report, as wel l as the DOC
psychologist’s report. The district court credited the reports and trial testimony and agreed
with Dr. Marston’s evaluation. Sufficient evidence supports the district court’s conclusion
that the county proved by clear and convincing evidence that ap pellant should be
committed as an SPP.
III. The district court did not err in refusing to hear appella nt’s constitutional
challenge to the discharge criteria.

Appellant contends that the dist rict court erred in finding tha t his constitutional
challenge to the discharge criteria was premature, arguing that, “as a matter of substantive
due process, the discharge criteria in Minn. Stat. § 253D.31 are unconstitutional.” We are
not persuaded.

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I n Call v. Gomez, the supreme court explicitly held that the discharge criteria are to
be applied to “persons committed as psychopathic personalitie s,” 535 N.W.2d 312, 318
(Minn. 1995) (emphasis added). Appellant has provided no autho rity for the contention
that it is proper to apply or analyze the discharge criteria at the initial commitment stage.
The district court correctly limited its ruling to the commitment proceeding before it.
Appellant further argues that, if he currently meets the criter ia required for
discharge, he cannot be committed, citing Gomez. This is a different argument than what
he made before the district court, and it is therefore forfeite d because “an undecided
question is not usually amenable to appellate review.” Hoyt Inv. Co. v. Bloomington
Commerce & Trade Ctr. Assocs., 418 N.W.2d 173, 175 (Minn. 1988).
Affirmed.