In the Matter of the Civil Commitment of: Chester Lee Grauberger.

This opinion will be unpublished and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
A18-1790

In the Matter of the Civil Commitment of:
Chester Lee Grauberger.

Filed April 22, 2019
Affirmed
Halbrooks, Judge

Lincoln County District Court
File No. 41-PR-17-117

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

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

Glen A. Petersen, Lincoln County Attorney, Tyler, Minnesota (for respondent Lincoln
County)

Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges his conviction as a sexually dangerous person (SDP) on the
grounds that the district court erred in determining that he meets the criteria for
commitment and that he received ineffective assistance of counsel. We affirm.

2
FACTS
On March 18, 1985, appellant Chester Lee Grauberger was adjudicated delinquent
of first-degree criminal sexual conduct after he admitted to sexually abusing two family
members. He has since been accused of sexual assault on multiple occasions. In 1991,
S.P.L. reported that Grauberger approached her at a party, grabbed her left breast, and later
pushed her down a flight of stairs. The police interviewed Grauberger. He confirmed that
he confronted S.P.L. at t he party, but denied grop ing her and indicated that he had
accidentally knocked her down the stairs. No charges were brought as a result of the
incident. On December 30, 1995, G.K.H. reported that Grauberger had sexually assaulted
her. She told the police that earlier in the ni ght she and Grauberger had engaged in
consensual sexual activity. But when she attempted to leave, he grabbed her from behind,
choked her, punched her in the back, and forced her to have sexual intercourse. G.K.H.
later refused to give a taped statement. As a result, no charges were brought.
On July 8, 1996, P.L.N. reported that she had been sexually assaulted by an intruder.
She reported that an intruder entered her home, walked over to the couch where she was
sleeping, and began sexually assaulting her. The intruder told P.L.N. not to make any noise
because her daughter was sleeping on the couch beside her. After the intruder sexually
assaulted her, he asked P.L.N. for money and then left. P.L.N. ran to her neighbor’s house
and was later transpor ted to the hospital for a sexual -assault examination. P.L.N. was
unable to identify the assailant, and the DNA sample recovered during the examination did
not initially result in a match.

3
On April 18, 1997, a witness reported that a woman, J.S.W., was being sexually
assaulted in an alley. When law enforcement arrived on the scene, J.S.W. was disheveled
and naked below her waist, and her face was covered in blood. She pointed at Grauberger,
who was standing nearby, and identified him as the assailant. Grauberger was arrested ,
and J.S.W. was taken to the hospital. She suffered a fractured nose, a closed head injury,
and a skull fracture. Grauberger was charged with two counts of first -degree criminal
sexual conduct, two counts of second-degree crimina l sexual conduct, third -degree
criminal sexual conduct, fourth -degree criminal sexual conduct, and third -degree assault.
A jury found him guilty of all counts. The district court sentenced him to 258 months in
prison, a triple upward departure . Grauberg er appealed, and this court affirmed his
convictions and sentence. State v. Grauberger , No. C5 -98-1034 (Minn. App. Mar. 23,
1999), review denied (Minn. May 18, 1999).
As a result of the conviction s, Grauberger was required to provide a DNA sample
for the convicted sex-offender database. His DNA matched the sample obtained in 1996
during P.L.N.’s sexual -assault examination. Grauberger was subsequently charged and
convicted of third -degree criminal sexual c onduct related to the assault of P.L.N. and
sentenced to 116 months in prison . He received an upward departure based on the
vulnerability of the victim and the fact that it occurred in the victim’s home.
On February 18, 2018, respondent Lincoln County petition ed to civilly commit
Grauberger as an SDP. On May 7-9, the district court held a commitme nt hearing. The
district court heard testimony from three experts: Linda Marshall, Ph.D., L.P.; Robert
Riedell, Ph.D., L.P.; and Peter Marston, Ph.D., L.P. The district court also heard testimony

4
from G.K.H., S.M.N., J.S.W., support persons and people who had worked with
Grauberger while he was incarcerated, and Grauberger. Following the commitment
hearing, the district court determined that Grauberger me ets the criteria for civil
commitment as an SDP because he ha s engaged in a course of harmful sexual conduct,
manifests a sexual, personality, or other mental disorder, and as a result, is likely to engage
in acts of harmful sexual conduct. The district cour t ordered that Grauberger be
indeterminately committed as an SDP to the Minnesota Sex Offender Program (MSOP).
Grauberger filed a posttrial motion , alleging that he received ineffective assistance
of counsel, requesting a new trial based on “irregularities,” and requesting that new counsel
be appointed on appeal because of the ineffective-assistance-of-counsel claim. The district
court denied Grauberger’s motion f or a new trial and claim of ineffective assistance of
counsel but granted his request that new counsel be appointed for appeal. This appeal
follows.
D E C I S I O N
I.
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 acts of harmful sexual
conduct.” Minn. Stat. § 253D.02, subd. 16(a) (2018). The state is not r equired 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 the

5
person is highly likely to engage in future acts of har mful sexual conduct. In re Civil
Commitment of Ince, 847 N.W.2d 13, 20 (Minn. 2014).
We review for clear error a district court’s factual findin gs on the elements of the
civil-commitment statute. In re Civil Commitment of Stone, 711 N.W.2d 831, 836 (Minn.
App. 2006), review denied (Minn. June 20, 2006). When the findings of fact are based
almost 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 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).
The first e lement that the district court m ust find is that Grauberger engaged in a
course of harmful sexual conduct. Minn. Stat. § 253D.02, subd. 16(a)(1). 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
“course of conduct” is defined by its ordinary meaning, which is a “systemic or orderly
succession; 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).
The civil-commitment statute provides that certain convictions create a rebuttable
presumption that the conduct that led to the conviction constitutes harmful sexual conduct.
Minn. Stat. § 253D.02, subd. 8(b) (2018). Grauberger was adjudicated delinquent of first-
degree criminal sexual conduct for sexually assaulting two members of his family ,
convicted of first -degree criminal sexual conduct for sexually assaulting J.S.W., and

6
convicted of third-degree criminal sexual conduct for sexually assaulting P.L.N. All three
convictions create a rebuttable presumption that Grauberger engaged in harmful sexual
conduct. Id. And all three experts opined that Grauberger had engaged in a course of
harmful sexual conduct and that his conviction s alone are sufficient to establish the
element.
Grauberger argues that the record does not support the determination that he
engaged in a course of harmful sexual conduct. In determining that the element had been
established, the district court found that all three experts consistently testified that
Grauberger has engaged in a course of harmful sexual conduct. But Grauberger argues
that because the experts disagreed in other aspects of their testimon y, the district court’s
finding that their testimony was consistent is clearly erroneous. He contends that the
determination is not based on sufficiently particularized findings because the di strict
court’s findings merely recite testimony. An order must be based on “sufficiently
particular findings of fact on the key issues.” In re Civil Commitment of Spicer , 853
N.W.2d 803, 810 (Minn. App. 2014). It is insufficient for a district court to merely
summarize or recite testimony without commenting on the relative credibility of the
witnesses or tying the findings to the conclusions of law. Id. at 810-11.
Grauberger contends that, because the district court merely recited the expert s’
testimony and failed to resolve the conflicting testimony, the finding that he engaged in a
course of harmful sexual conduct is clearly erroneous. We disagree. The district court was
sufficiently particular in explaining what testimony it was relying on to determine whether

7
Grauberger had engaged in a course of harmful sexual conduct. In making its findings on
this element, the district court first found:
The Court finds that this element is vi rtually
uncontested as all three psychologists rendered an opinion that
based on Grauberger’s convictions alone he possesses a course
of harmful sexual conduct under the SDP statute. The Court
finds by clear and convincing evidence that Grauberger
possesses a course of harmful sexual conduct in sexual matters.

The district court next noted that all three experts “agreed that Grauberger’s conduct
created a substantial likelihood of serious physical or emotional harm” and that all three
had “training, education, and experience that provide a basis” to provide an opinion on the
subject. The district court later found that all three testified that , using only Grauberger’s
convicted offenses, “he still meets the criteria of a course of harmful sexual conduct for
purposes of the SDP statute.” Finally, the district court found that the opinions of the three
experts were “credible and persuasive with respect to Grauberger’s course of harmful
sexual conduct within the meaning of the SDP statute.” Accordingly, th e district court’s
order explains the testimony that it found persuasive and the basis for finding it
persuasive—the experts’ training and experience and consistent overall opinion s. On this
record, the district court’s order sufficiently explains the basis for its ultimate conclusion
that Grauberger engaged in a course of harmful sexual conduct.
Grauberger next argues that the evidence is insufficient to establish that he is highly
likely to reoffend in the future. To determine whether a person is highly likely to reoffend,
a district court must engage in a “multi -factor analysis.” Ince, 847 N.W.2d at 23. The

8
multi-factor analysis includes consideration of the following six factors, known as the
Linehan factors:
(a) the person’s relevant demographic characteristics (e.g., age,
education, etc.); ( b) the person’s history of violent behavior
(paying particular attention to recency, severity, and frequency
of violent acts); (c) the base rate statistics for violent behavior
among individuals of this person ’s background ( e.g., data
showing the rate at which rapists recidivate, the correlation
between age and criminal sexual activity, etc.); (d) 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 v iolent or nonviolent manner); (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 analysis may include other relevant evidence and information, including the
actuarial-assessment evidence used by the experts. Id. at 24. The supreme court has
determined that an individual is “highly likely” to reoffend if it would be “difficult, if not
impossible, for the person to control his dangerous behavior.” Id. at 20 (quotation omitted).
The term “highly likely” cannot be defined by a specific num eric value. Id. 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 made findings related to each of the six Linehan factors. The
district court found that bo th Dr. Marshall and Dr. Marston “credibly and persuasively
opined and testified that Grauberger meets the final criterion for commitment under the
SDP statute, by concluding that Grauberger is highly likely to engage in acts of harmful
sexual conduct in th e future and is dangerous to other persons.” Grauberger argues that

9
this finding, and the findings related to the Linehan factors, are insufficiently particular
because the district court found Dr. Marshall and Dr. Marston to be credible without
reconciling their inconsistent testimony and did not make “true findings” relating to several
of the Linehan factors.
Grauberger asserts that the findings do not address the actuarial assessments utilized
or what evidence the district court relied on in determining that Grauberger is highly likely
to reoffend. But the district court found that all three experts utilized the Static -99R
actuarial tool and that all three scored Grauberger as a +6 , placing him in the well-above-
average risk group. The district court explicitly found that Dr. Riedel’s testimony on his
scoring of the Static -99R was not credible or persuasive “based on his failure to follow
scoring guidelines by not including any of the risk estimates or indicating what normative
sample group he is using.” The district court found Dr. Marshall and Dr. Marston credible
based in part on their application of “actuarial risk tools.”
Grauberger argues that the record does not support the district court ’s reliance on
the testimony of Dr. Marshall and Dr. Marston because the district court failed to reconcile
the fact that they had different results on various assessments. He points out that
Dr. Marshall and Dr. Marston placed him in different assessment groups when conducting
the Static -99R but reached the same conclusion. But the district court found that
Dr. Marston explained that “he used the routine sample group because the risk percentage
difference is negligible when you reach such a high s core.” Thus, the district court did
reconcile the differe nce in scoring. And while Grauberger asserts that the results of his
PCL-R are inconsistent, the district court explained that “when a standard error o f

10
measurement is applied . . . [D]octors Marshall and Marston have similar scores within the
confidence interval of the instrum ent.” Accordingly, the scores are not in conflict.
Grauberger also argues that , if the district court had factored in an actuarial assessment,
then it would have to give “less weight or no weight to some of the Linehan factors due to
overlap.” The district court found that Dr. Marshall and Dr. Marston “took steps to ensure
that they were not engaged in factor repetition” and included this fact in determining that
they were credible.
Grauberger relies on Spicer to support his assert ion that the district court failed to
make sufficiently particular findings of fact. 853 N.W.2d at 809. In Spicer, the district
court generally found that the opinions of two of the experts were “more credible and
persuasive” than the opinion of a third. Id. at 810. This court determined that the “district
court cannot satisfy its obligation to find facts with particularity by simply adopting in toto
the opinions of a particular expert.” Id. We then noted that the two experts who were
deemed credible disagreed in important aspects of their testimony. Id. at 810-11. We
observed that, based on the “conclusory nature” of the district court’s findings of fact on
the expert evidence, we could not ascertain which portions of the conflicting expert
testimony the district court relied on. Id. at 811.
Here, the district court reconciled the seemingly inconsistent testimony of
Dr. Marshall and Dr. Marston. As discussed above, the district court made findings
explaining why Grauberger was placed in different assessment groups during the
Static-99R and why that fact did not impact the assessment. And the district court noted
that the doctors’ scoring on another assessment fell within the same overall range.

11
Importantly, both Dr. Marshall and Dr. Marston ulti mately opined that Grauberger me ets
the statutory criteria for commitment. On this record, the district court made sufficiently
particular findings that explain what evidence it was relying on in making its ultimate
determination.
Finally, Grauberger argues that he cannot be considered “highly likely” to reoffend
because both Dr. Marshall and Dr. Marston opined that his estimated likelihood of re -
offense is approximately 41%. But the supreme court has held the determination “cannot
be defined by a nu meric value.” Ince, 847 N.W.2d at 2 1. Both Dr. Marshall and
Dr. Marston opined that Grauberger is highly likely to reoffend. Accordingly, the numeric
value assigned by Dr. Marshall and Dr. Marston is insufficient to render the finding clearly
erroneous. We conclude that the record supports the district court’s determination that
Grauberger meets the statutory criteria for commitment as an SDP under Minn. Stat.
§ 253D.02, subd. 16.
II.
Grauberger contends that he received ineffective assistance of coun sel. A
committed person has the statutory right to assistance of counsel in commitment
proceedings. See Minn. Stat. § 253D.20 (2018). During the commitment proceedings, the
attorney shall: (1) consult with the person before any hearings; (2) “be given adequate time
and access to records to prepare for all hearings; (3) continue to represent the person
throughout any proceedings under this chapter unless released as counsel by the court; and
(4) be a vigorous advocate on behalf of the person.” Id.

12
We apply the criminal standard for analyzing the effectiveness of counsel in civil -
commitment cases. In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987), review denied
(Minn. Mar. 25, 1987). Grauberger must therefore show “that counsel’s representation fell
below an objective standard of reasonableness, and that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Reed v. State, 793 N.W.2d 725, 733 (Minn. 2010) (quotation omitted). There
is a strong presumption that counsel’s “performance fell within a wide range of reasonable
assistance.” State v. Lahue , 585 N.W.2d 785, 789 (Minn. 1998). Claims of ineffective
assistance of counsel that raise mixed questions of fact and law are reviewed de novo. State
v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
Grauberger asserts that he received ineffective assistance of counsel because , prior
to this case, his trial counsel had never represented a client in a civil-commitment hearing.
Grauberger acknowledges that an attorney may provide adequate representation in a novel
field through study, but argues that, because of the complex nature and expedited timeline
of a civil-commitment proceeding, his trial counsel did not have enough time to become
sufficiently proficient in the area of the law. Inexperience alone cannot be a basis to
establish ineffective assistance of counsel. Swaney v. State , 882 N.W.2d 207, 218 n.7
(Minn. 2016).
Grauberger also argues that his trial counsel failed to adequately communicate with
him and that the attorney’s trial strategy should not be given deference. Generally, we
defer to trial counsel’s trial strategy. Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).
Grauberger asserts that this court should not defer to the choice of trial strategy because it

13
was without reason. Grauberger contends that trial counsel made a significant error in not
recalling him to further explain his testimony about the incident with G.K.H. During direct
examination, Grauberger explained that , during the incident , he “wasn’t thinking of it as
sexual assault. I didn’t think of it as forcing her. I certainly can see where she felt that
way now.” He also stated that “looking at the position that she must have felt like she was
in I believe that she probably felt like she had no choice.” He argues that it was a critical
mistake that he was not recalled to clarify that he did not view G.K.H. as a victim. But
despite his current contention that he could have clarified that he does not consider G.K.H.
to be a victim, Grauberger plainly stated that he understood why she felt like she had no
choice but to engage in sexual intercourse with him. And while the district court considered
his conduct against G.K.H., the main focus when addressing his course of harmful sexual
conduct was on the incidents that resulted in convictions. Thus, the decision likely had
very little, if any, impact on the outcome of the proceeding.
Grauberger also challenges trial counsel’s decision not to call certain witnesses. He
asserts that trial counsel should have called his prior therapist to testify. He argues that
doing so would have provided important information about his progress in treatment, his
past, and how his past affected his thinking. Which witnesses to call falls within the scope
of trial strategy that is generally not reviewed. State v. Nicks, 831 N.W.2d 493, 516 (Minn.
2013). And as the county notes, the therapist that trial counsel called was actually
Grauberger’s present the rapist, who was familiar with his case and had completed two
progress reviews for him. Moreover, the notes of Grauberger’s prior therapist were
received into evidence. Because trial counsel called a therapist with knowledge of

14
Grauberger’s case and prese nt needs and submitted the information from the previous
therapist, the trial strategy was reasonable. Id. On this record, Grauberger has failed to
establish that he received ineffective assistance of counsel.
Affirmed.