In the Matter of the Civil Commitment of: Terry Lee Branson

This opinion will be unpublished and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
A18-1532

In the Matter of the Civil Commitment of:
Terry Lee Branson

Filed March 11, 2019
Affirmed
Johnson, Judge

Judicial Appeal Panel
File No. AP17-9178

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

Anthony C. Palumbo, Anoka County Attorney, Anne M. Zimmerman , Assistant County
Attorney, Anoka, Minnesota (for respondent Anoka County)

Keith Ellison , Attorney General, R.J. Detrick, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Terry Lee Branson is civilly committed as a sexually dangerous person and a sexual
psychopathic personality. He petitioned for a transfer, a provisional discharge, or a full
discharge. The special review board recommended that his petition be denied. He
requested rehearing and reconsideration by the judicial appeal panel with respect to his

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requests for a provisional discharge or a full discharge . After the first phase of an
evidentiary hearing, the judicial appeal panel granted a motion to dismiss his petition. We
conclude that the judicial appeal panel did not err because Branson did not produce
evidence during the first-phase hearing that is sufficient to establish a prima facie case that
he is entitled to a provisional discharge or a full discharge. Therefore, we affirm.
FACTS
Branson is a 64-year-old man who is civilly committed as a sexually dangerous
person (SDP) and a sexual psychopathic personality (SPP). Between 1976 and 1993,
Branson was convicted of six felonies arisi ng from four separate incidents of criminal
sexual conduct or sex-related assaults. Branson has admitted to treatment providers that
he has committed 20 to 30 sexual assaults or attempted sexual assaults.
In the late 1980s, Branson participated in a priso n-based sex -offender tr eatment
program for 17 months before he withdrew. In 1991, he started a prison-based sex-offender
treatment program and completed an after-care program following his release from prison.
In the early 2000s, Branson refused to participate in a prison-based sex-offender treatment
program on four occasions.
In 2008, Anoka County petitioned for his commitment as an SDP and an SPP. The
Anoka County District Court granted the petition in 2009 and ordered his initial
commitment. In October 2013, Branson was released from prison and transferred to the
Minnesota Sex Offender Program (MSOP). The district court later conducted a review
hearing, and the district court ordered his indeterminate commitment in January 2015.
Since arriving at MSOP, Branson has refused to participate in sex-offender treatment.

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In January 2017, Branson petitioned the special review board for a transfer to
Community Preparation Services (CPS), a provisional discharge, or a full discharge from
MSOP. The special review board reviewed various records, including a report prepared
by Branson’s treatment team and a sexual-violence risk assessment prepared by a forensic
psychologist. The treatment report stated that Branson’s petition was “premature” and that
Branson “has not demonstrated he has gained any knowledge or skills related to his sexual
offending to indicate he is capable of managing his risk for re -offense.” It further stated
that Branson has “portrayed no intent to follow MSOP policy and procedures” and
described Branson as a “nonparticipant” in treatment and “resistant to meeting with
treatment staff.” Similarly, the risk assessment stated that Branson “continues to require
treatment for his sexual sadism disorder and antisocial personality disorder” an d has
significant risks for re-offending. It further stated that “there is no indication Mr. Branson
resolved the underlying issues related to his sexual offending” and that his “current risk
and remaining treatment needs . . . indicate he continues to pose a danger to the public, and
requires inpatient treatment and supervision.” The risk assessment concluded that Branson
does not meet the criteria for a transfer, a provisional discharge, or a full discharge.
In November 2017, the special review board re commended that Branson’s petition
be denied. Branson petitioned the judicial appeal panel for rehearing and reconsideration.
The judicial appeal panel held a n evidentiary hearing in June 2018. At the beginning of
the hearing, Branson withdrew his reques t for a transfer to CPS but proceeded with his
requests for a provisional discharge or a full discharge. Branson called one witness, Nadia

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Donchenko, Psy.D., a court-appointed psychologist, who had prepared a detailed 13 -page
report, which was admitted into evidence at the hearing.
Dr. Donchenko’s report agreed with Branson’s previous psychological diagnoses
and stated that Branson’s sexual sadism and alcohol -use disorder were of “primary and
continued concern” and that he may also meet the criteria for narcissistic personality
disorder. Dr. Donchenko agreed with Branson’s scores on two psychometric assessments
administered in September 2017, which indicated that Branson is at an above-average risk
for sexual re-offense as a result of several static and dynamic risk factors. She expressed
particular concern about one of the risk factors, deviant sexual preference, due to the
circumstances of Branson’s sexual assaults, and stated, “ There is no evidence his deviant
arousal pattern and preferences have diminished as Mr. Branson is not transparent and has
refused to cooperate with sex offender treatment.” Dr. Donchenko stated further that it
“would be ill-advised to consider a less secure treatment setting” for Branson because of
his threats of self -harm. She concluded in her report that Branson “continues to require
sex offender and chemical health treatments” and that Branson “has chosen to refuse
participation in the very services that would provide him an avenue to discharge.” Dr.
Donchenko further concluded in her report that Branson’s condition remains “unchanged”
and that “there is no documentation to suggest his risk to the community has been reduced
since the initial commitment.”
At the first -phase he aring, Dr. Donchenko ’s testimony was consistent with her
report, although she clarified that she believes sexual sadism is a more precise diagnosis
than a generalized diagnosis of paraphilic disorder. She testified that Branson’s records

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show that he meets the criteria for sexual sadism and that his co ntinued hostility toward
women supports this diagnosis. When asked on direct examination whether Branson’s
hostility presently creates sexual arousal, which is an element of sadism, Dr. Donchenko
could not say, stating only that Branson is unwilling to ta lk about sexual arousal. Dr.
Donchenko testified about one incident of inappropriate behavior by Branson at MSOP but
stated that she was not aware of any others. Concerning Branson’s risk for recidivism, Dr.
Donchenko reiterated her opinion that Branson is at risk for re-offending but stated that,
although his last crime in 1993 was sexually motivated, he has not committed a sex crime
or, to her knowledge, engaged in any overtly sexual violence since 1983.
With regard to treatment, Dr. Donchenko testified that Branson is “untreated” and
“has not addressed the root cause s of what had led him to offend to begin with” and has
not “modified his behaviors in any way.” She stated that Branson’s needs “can certainly
be met within MSOP” but pointed to Branson’s unwillingness to cooperate and his lack of
treatment progress. She further testified that Branson “requires the treatment that can be
offered at MSOP” and that she did not know of any settings in which his behaviors could
be managed better than M SOP. Dr. Donchenko stated that Branson did n ot provide her
with a discharge -prevention plan, a relapse -prevention plan , or any other written
documentation. Dr. Donchenko ultimately opined that Branson does not meet any of the
statutory criteria for eithe r a full discharge or a provisional discharge and that Branson is
not “inclined to provide the information” necessary to determine whether he would be able
to adjust to open society.

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Branson did not testify on his own behalf. He did not submit a provisional-discharge
plan to the judicial appeal panel. After Branson rested his case, the commissioner of human
services moved to dismiss Branson’s petition on the ground that he had not stated a prima
facie case that he is entitled to a provisional discharge or a full discharge. The county
joined in the motion. In July 2018, the judicial appeal panel filed a six-page order in which
it granted the motion to dismiss. Branson appeals.
D E C I S I O N
Branson argues that the judicial appeal panel erred by granting the motion to dismiss
his petition with respect to his request for a provisional discharge or a full discharge.
A person who is committed as an SDP or an SPP may petition the special review
board for a reduction in custody . Minn. Stat. § 253D.27, subd. 2 (2018). A person
committed as an SDP or an SPP “shall not be provisionally discharged unless the
committed person is capable of making an acceptable adjustment to open society.” Minn.
Stat. § 253D.30, subd. 1(a) (2018). The judicial appeal panel must consider two statutory
factors:
(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).

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Similarly, a person committed as an SDP or an SPP “shall not be [fully] discharged
unless . . . the committed person is capable of making an acceptable adjustment to open
society, is no longer dangerous to the public, and is no longer in need of treatment and
supervision.” Minn. Stat. § 253D.31 (2018). In determining whether a full discharge is
appropriate, the special review board and judicial appeal panel must consider whether
“specific conditions exist to provide a reasonable degree of protection to the public and to
assist the committed person in adjusting to the community.” Id. “If the desired conditions
do not exist, the discharge shall not be granted.” Id.
In a proceeding before the judicial appeal panel on a petition for a provisional
discharge or a full discharge, the petitioner “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) (2018);
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). This burden is merely a burden of production. Coker, 831 N.W.2d at 486. If the
petitioner satisfies the burden of production at the first -phase hearing before the judicial
appeal panel, “the party opposing discharge or provisional discharge bears the burden of
proof by clear and convincing evidence that the discharge or 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 wishes to challenge a petitioner’s entitlement to relief after the
petitioner rests his case, the c ommissioner may move to dismiss the petition pursuant to

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rule 41.02(b) of the rules of civil procedure. Coker, 831 N.W.2d at 489-91. That rule
provides, in relevant part: “After the plaintiff has completed the presentation of evidence,
the defendant, wit hout 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) ; see also Coker, 831
N.W.2d at 490-91 (holding that subsequent sentences of rule 41.02(b) do not apply to
proceedings before judicial appeal panel because of conflict with commitment statute). If
the commissioner moves to dismiss a petition pursuant to rule 41.02(b), the judicial appeal
panel “may not weigh the evidence or make credibility 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 petition for a reduction in custody . Larson v. Jesson , 847
N.W.2d 531, 534 (Minn. App. 2014).
Branson’s arguments for rever sal with respect to his request for a provisional
discharge are the same as his arguments for reversal with respect to his request for a full
discharge. Because the criteria for a provisional discharge are more lenient than the criteria
for a full discharge, we will begin by analyzing whether the evidence introduced by
Branson at the first -phase hearing is sufficient to satisfy his burden of production with
respect to a provisional discharge.
As stated above, a person committed as an SDP or an SPP may obtain a provisional
discharge only if he “is capable of making an acceptable adjustment to open society.”

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Minn. Stat. § 253D.30, subd. 1(a). That question must be answered based on two factors:
“(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).
In this case, the judicial appeal panel concluded that, viewing the evidence in the
light most favorable to Branson, he “has not produced any competent evidence to meet his
initial burden of establishing a prima facie case for provisional discharge, and he cannot
avoid judgment as a matter of law.” The judicial appeal panel noted that Branson “only
offered the court appointed examiner’s report and testimony” and that the examiner did not
support a provisional discharge. The ju dicial appeal panel also point ed to Branson’s lack
of a provisional-discharge plan.
Branson contends that he is entitled to a provisional discharge because he does not
need treatment for a sexual disorder or a paraphilia and is not likely to re -offend. He
contends that his diagnoses and Dr. Donchenko’s conclusions are inaccurate because they
are based on an outdated historical record rather than his current functioning and that “a
causal connection between the conduct involved in [his] offenses and sexual arousal . . . is
pure speculation.” The county responds by contending that Branson’s failure to cooperate
with assessments and treatment should not be construed as evidence that he no longer has
a sexual disorder requiring treatment.

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The only evidence Branson presented at the first-phase hearing concerning whether
he has a continued need for treatment and supervision at MSOP was Dr. Donchenko’s
report and testimony. Dr. Donchenko determined that Branson is untreated, that he
continues to require sex-offender treatment, and that he “has chosen to refuse participation
in the very services that would provide him an avenue to discharge.” Dr. Donchenko
acknowledged that Branson’s offenses were long ago but stated that “there is no
documentation to suggest his risk to the community has been reduced since the initial
commitment.” Dr. Donchenko also stated that it “would be ill -advised to consider a less
secure treatment setting” and that Branson “requires the treatment that can be offered at
MSOP.” Although Branson now challenges the diagnoses and assessments underlying Dr.
Donchenko’s conclusion s, he did not provide any evidence at the first -phase hearing to
contradict them. Thus, the only evidence in the record on the first factor indicates that
Branson continues to need treatment and supervision in his current treatment setting.
Furthermore, there is no evidence in the record that Branson presented a provisional-
discharge plan to the judicial appeal panel during the first -phase hearing. A provisional-
discharge plan is “a necessary step before the judicial appeal panel could even begin to
consider a provisional discharge.” Larson, 847 N.W.2d at 536. Thus, Branson also failed
to meet his burden of production with respect to the second factor.
Therefore, the judicial appeal panel did not err by determining that Branson did not
present a prima facie case that he is entitled to a provisional discharge. In light of that
conclusion, we need not separately analyze the question whether Branson satisfied his

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burden of production with respect to his request for a full discharge, which is governed by
more rigorous criteria. See id. at 535-36.
In sum, the judicial appeal panel did not err by granting the motion to dismiss
Branson’s petition.
Affirmed.