In the Matter of the Civil Commitment of: Fitzgerald Calvin Stewart.

This opinion will be unpublished and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
A18-1556

In the Matter of the Civil Commitment of:
Fitzgerald Calvin Stewart.

Filed February 4, 2019
Affirmed
Cleary, Chief Judge

Sherburne County District Court
File No. 71-PR-17-39

Jennifer L. Thon, Steven D. Wi nkler, Warren J. Maas, Jones Law Office, Mankato,
Minnesota (for appellant Fitzgerald Calvin Stewart)

Keith Ellison, Attorney General, Noah A. Cashman, Assistant Attorney General, St. Paul,
Minnesota; and

Kathleen Heaney, Sher burne County Attorney, Elk River, Minnesot a (for respondent
Sherburne County)

Considered and decided by Cl eary, Chief Judge; Reilly, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Fitzgerald Calvin Stewart challenges his commitment a s a s e x u a l l y
dangerous person (SDP) and a se xual psychopathic personality (S PP), arguing that the
district court erred in finding that he possesses a mental diso rder or dysfunction. We
affirm.

2
FACTS
Appellant Stewart was indeterminately committed as an SDP and SPP in July 2018.
Since 1982, Stewart has committed both violent and sex-related offenses; he has spent the
majority of his adult life incar cerated. His non-sexual crimin al history includes: fourth-
degree assault; terroristic threats; robbery; armed robbery; ag gravated battery of a peace
officer; and residential burglary.
In 1982, at the age of 19, Stewart was convicted of contributi ng to the sexual
delinquency of a minor in Illinois. At the civil commitment trial, Stewart testified that he
and his then-girlfriend, who was 15 years old at the time, were in a consensual sexual
relationship, and that her mother informed police of the sexual relationship. Stewart
testified that, at the time of the incident, he did not know th at their sexual relationship
violated the law.
In 1987, Stewart, 23 years old, approached Y.T., 19 years old, and her friend at a
payphone in Chicago. Stewart asked them for change for one dollar, and indicated that the
dollar was on the front seat of his truck. Y.T. walked to the vehicle with Stewart, and he
pulled a knife and forced her into the vehicle. Stewart drove to an alley, removed Y.T.’s
clothing, and sexually assaulted her both vaginally and anally. Stewart was convicted of
two counts of aggravated criminal sexual assault and one count of aggravated battery. At
the civil commitment trial, Stewart testified that the encounter was consensual, but that he
had tricked Y.T. into having sex in exchange for cocaine.
In 2011, St. Cloud police respon ded to a report that an adult male had sexually
assaulted M.N.B., an 11-year-old male. M.N.B. told police that he went to stay at a friend’s

3
house. M.N.B.’s friend lived with his mother, father, brothers , and grandfather. The
grandfather was later identified as Stewart. M.N.B. reported t hat he was in the basement
watching television when Stewart touched M.N.B.’s stomach under his shirt. When
M . N . B . a s k e d S t e w a r t w h a t h e w a s doing, Stewart responded that h e w a n t e d t o s e e i f
M.N.B. was hot or “something.” S tewart then unbuckled M.N.B.’s belt, unbuttoned and
reached inside his pants, and touc hed M.N.B.’s penis. Stewart placed both of his hands
and mouth on M.N.B.’s penis. M.N.B. pushed Stewart’s hands off, ran upstairs, and called
his mother to pick him up. A jury acquitted Stewart of first-degree criminal sexual conduct,
but found him guilty of second-de gree criminal sexual conduct. During the civil
commitment trial, Stewart denied the offense.
In November 2012, while in pris on for his offense against M.N.B., Stewart entered
sex-offender treatment. A few d ays after arriving, Stewart inf ormed his mentor that he
intended to push the boundaries of the treatment staff. The ne xt day, Stewart falsely
accused his therapist of calling him a racial epithet. Stewart compared the false accusation
against his therapist to, what he believed to be, the false acc usation against him regarding
his conviction for sexually assaulting M.N.B. After approximately one month in treatment,
Stewart’s therapist noted that he indicated a desire to leave t he program, but was hesitant
because he would be incarcerated f or one more year for failure to follow treatment
directives. By the end of Decem ber 2012, Stewart was terminate d from the treatment
program due to his conduct in hitting a peer, failing to complete a restorative justice project,
confronting correctional officers, making indirect threats, and threatening other peers.

4
A petition was filed to commit St ewart as an SDP in December 2017. A few months
later, the petition was amended to also request that Stewart be committed as an SPP. The
district court appointed Dr. Paul Reitman to serve as the first court-appointed examiner.
At Stewart’s request, the court appointed Dr. Robert Riedel to serve as the second court-
appointed examiner. The state r etained Dr. James Alsdurf as it s expert. Dr. Alsdurf was
unable to interview Stewart for his report because Stewart refused the interview.
The district court held a civil-commitment trial in April 2018 . During the trial,
Dr. Reitman, Dr. Riedel, Dr. Alsdurf, and Stewart testified. D r. Reitman and Dr. Alsdurf
opined that Stewart satisfied the statutory criteria for SDP an d SPP commitment.
Dr. Riedel opined that Stewart satisfied the statutory criteria for SDP commitment, but not
SPP commitment because he believed that Stewart exhibited a significant, but not an utter,
lack of power to control his sexual impulses. In June 2018, th e district court filed a 55-
page order in which it concluded that Stewart satisfied the cri teria for SDP and SPP
commitment and ordered that Stewart be indeterminately committed to the Minnesota Sex
Offender Program. This appeal followed.
D E C I S I O N
A person may be civilly committed as an SDP or SPP if the stat utory criteria are
proved by clear and convincing ev idence. Minn. Stat. § 253D.07 , subd. 3 (2018). We
review a district court’s factual findings on the elements of t he 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 credibil ity is of particular

5
significance.” In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). But whether the evidence
is sufficient to meet the statutory requirements for commitment is a question of law, which
we review de novo. 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 finding that Stewart satis fied the statutory
criteria for SDP commitment.

A person may be committed as an SDP if the person “(1) has enga ged 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 enga ge in acts of harmful sexual
conduct.” Minn. Stat. § 253D.02, subd. 16(a) (2018). When committing an individual as
an SDP, the statute does not require the state to prove that th e person has an inability to
control his sexual impulses. Minn. Stat. § 253D.02, subd. 16(b) (2018). But the individual
must have a “present disorder or dysfunction [that] does not al low [him] to adequately
control [his] sexual impulses.” In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999).
Stewart challenges the second element—the manifestation of a sexual, personality,
or other mental disorder or dysfunction that does not allow him to control his sexual
impulses. Stewart argues that the district court clearly erred in finding that he manifests a
mental disorder or dysfunction be cause the district court did n ot credit any one expert’s
diagnosis over the others. Stewart further asserts that the re cord does not support the
district court’s finding that he is unable to control his sexua l impulses as a result of a
disorder or dysfunction.

6
Here, the district court found that all three examiners determined that Stewart has a
mental, sexual, or personality disorder or dysfunction. The di strict court also found that
Stewart’s “entire record reflect s lack of adequate control of h is sexual impulses” and he
will “satisfy his sexual impulse s whenever he has the opportuni ty.” Specifically, the
district court found that Stewart has multiple sexual deviances and a personality disorder
with antisocial traits. The dis trict court found that due to t hese disorders, Stewart has
“serious difficulty” in controlling his sexually harmful behavior.
The district court’s findings are supported by the record. In Dr. Reitman’s report,
h e c o n c l u d e d t h a t S t e w a r t m e e t s the diagnostic criteria for Per sonality Disorder with
Paranoid, Antisocial, and Narcissistic Traits, Anxiety Disorder, Paraphilia, Sexual Sadism,
and possible Substance Abuse. Dr. Reitman noted in his report, and testified at trial, that
“[a]ll of these diagnoses singular ly and in combination contrib ute to [Stewart]’s sexual
acting out.” On cross-examination, Dr. Reitman explained that “Personality Disorder” is
a category of disorders and Stewart’s Personality-Disorder diagnosis could also fall under
Personality Disorder, Not Otherwis e Specified, with antisocial and narcissistic traits.
Stewart argues that this is a fictitious diagnosis, as it is no t included in the fifth edition of
the American Psychia tric Association’s Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013) (DSM-5). But the language “not otherwise specified” has merely
been replaced in the latest editi on with the language “other sp ecified disorder” and
“unspecified disorder.” Id. at 15-16.
Dr. Riedel diagnosed Stewart with Antisocial Personality Disorder with Narcissistic
Features. In explaining his diagnosis at trial, Dr. Riedel testified that Stewart has failed to

7
conform to societal norms, engaged in deceitfulness as reflected in his repeated lying, use
of aliases, and conning of others for personal profit, and disp lays impulsivity, irritability,
aggressive behaviors, and a lack of remorse. Dr. Riedel furthe r testified that although
Stewart was not formally diagnosed with a conduct disorder prio r t o t h e a g e o f 1 5 , a s
required for a diagnosis of Antisocial Personality Disorder, there is evidence in Stewart’s
record to support the existence of such a conduct disorder.1
Dr. Alsdurf similarly concluded that Stewart satisfies the diag nostic criteria for
Antisocial Personality Disorder, Ru le Out Substance Abuse Disor der, and Rule Out
Paraphilia Not Otherwise Specified. In his report, Dr. Alsdurf opined that Stewart is
“entrenched in his personality [di sorder] and such a disorder r aises his risk for re-
offending.” Dr. Alsdurf further noted that Stewart has never e ngaged in sex offender
treatment, “exhibits pervasive denial” about past events, and “has no insight into his sexual
offending.”
Although the three experts disagreed as to Stewart’s diagnosis, there is no evidence
that this disagreement detracts from the conclusions of each expert that Stewart manifests
a sexual, personality, or other mental disorder or dysfunction, and as a result is likely to
engage in acts of harmful sexual conduct. The record contains clear and convincing
evidence that Stewart meets this element, and the district cour t did not err in determining
that Stewart satisfied the SDP criteria.

1 Stewart also contends that the diagnoses provided by the court -appointed experts lack
support in the record. But this argument is unpersuasive given that an expert may rely on
facts or data not in evidence to p rovide a basis for his or her opinions. Minn. R. Evid.
703(a).

8
II. The district court did not err in finding that Stewart sati sfied the statutory
criteria for SPP commitment.

A sexual psychopathic persona lity 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 . . . .

Minn. Stat. § 253D.02, subd. 15 (2018).
Stewart argues that the distric t court erred in determining that he manifests the four
statutory conditions rendering him irresponsible for personal conduct with respect to sexual
matters. He contends that in order to find that he has manifes ted one of these four
conditions, the district court was required to find the presenc e of a mental disorder. For
this proposition, Stewart cites State ex rel. Pearson v. Pr obate Court of Ramsey County ,
287 N.W. 297 (Minn. 1939). But Pearson, decided in 1939, narrowed the construction of
a predecessor statute to include only those individuals “who, b y a habitual course of
misconduct in sexual matters, have evidenced an utter lack of power to control their sexual
impulses and who, as a result, are likely to attack or otherwis e inflict injury, loss, pain, or
other evil on the objects of their uncontrolled and uncontrollable desire.” Id. at 302. This
narrowed construction of the SPP statute has been applied and reaffirmed by the Minnesota
Supreme Court. In re Linehan , 518 N.W.2d 609 (Minn. 1994) (applying Pearson
construction of the SPP statute); In re Blodgett , 510 N.W.2d 910 (Minn. 1994) (holding
that the SPP statute is constitutional and reaffirming Pearson construction of statute), cert.
denied, 513 U.S. 849, 115 S. Ct. 146 (Oct. 3, 1994). This narrowed c onstruction of the

9
SPP statute does not support the contention that the statute re quires a finding of a mental
disorder or dysfunction.
Stewart also argues, citing Blodgett, that caselaw requires a finding of volitional
dysfunction, in addition to a fi nding of a mental disorder or d ysfunction. However,
Blodgett states that “[t]he psychopathic personality statute identifies a volitional
dysfunction which grossly impairs judgment and behavior with re spect to the sex drive.”
510 N.W.2d at 915. The court further explained, “Whatever the explanation or label, the
‘psychopathic personality’ is an identifiable and documentable violent sexually deviant
condition or disorder.” Id. (footnote omitted). Accordingly, Blodgett suggests that the
ultimate SPP determination identifies the volitional dysfunction. See id.
Here, the district court found that Stewart possessed all four conditions specified in
the SPP statute and that the conditions render him irresponsibl e with regard to sexual
matters. Dr. Reitman observed that Stewart has been emotionally unstable his entire life.
Dr. Reitman also opined that Stewart exhibits impulsive behavio r in his lifestyle and
inability to self-intervene with r egard to his impulsivity. Co nsidering Stewart’s offense
history, Dr. Reitman testified that he lacks standards of good j u d g m e n t a n d h a s n e v e r
appreciated the consequences of his acts because even while in prison, he failed to learn
from the consequences of his behavior. Similarly, Dr. Riedel t estified that Stewart is
emotionally unstable and “almost presents as bipolar.” Dr. Rie del opined that Stewart’s
records show that he is impulsive, indifferent to standards of good judgment, and has no
appreciation for the consequences of his actions. While Dr. Al sdurf opined that Stewart
has some emotional instability, he stated in his report that St ewart is “most certainly”

10
impulsive given his offense history. Dr. Alsdurf’s report also observed that Stewart’s
history of sexual offenses illustrates a lack of good judgment, including his failure to meet
treatment expectations. Dr. Alsdurf further noted that Stewart not only fails to appreciate
the consequences of his actions, but also “reframes them as hav ing not occurred.” The
district court found that the e xpert witnesses were in “virtual unanimity” that these
conditions render Stewart irresponsible for his conduct with respect to sexual matters. The
record supports the district court’s findings, and the district court did not err in determining
that Stewart satisfied the SPP criteria.
Affirmed.