In the Matter of the Civil Commitment of: Thomas Ladon Webber.

This opinion will be unpublished and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
A18-1815

In the Matter of the Civil Commitment of: Thomas Ladon Webber.

Filed March 18, 2019
Affirmed
Reilly, Judge

Judicial Appeal Panel
File No. AP17-9172

Michael C. Hager, Minneapolis, Minnesota (for appellant)

Keith Ellison, Attorney General, Brett O’Neill Terry, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Michael O. Freeman, Hennepin County Attorney, Carolyn A. Peterson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent county)

Considered and decided by Reilly, Presiding Judge; Bratvold, Judge; and
Kalitowski, Judge.*
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges a judicial appeal panel’s dismissal of his petition for a
reduction in custody and argues that the Minnesota Commitment and Treatment Act
violates his constitutional rights. We affirm.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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FACTS
Appellant Thomas Ladon Webber (Webber) is indeterminately committed as a
Sexual Psychopathic Personality (SPP) and a Sexually Dangerous Person (SDP). Webber
has a history of violent sexual offenses against female adolescents (ages 13 to 17).
In 1991, Webber was charged with two counts of third -degree criminal sexual
conduct after a 15-year-old female reported that Webber pinned her to the floor in her home
and raped her. Webber pleaded guilty to third-degree criminal sexual conduct and received
an 18-month prison sentence that was stayed on conditions of probation for five years.
In 1993, Webber was charged with first -degree criminal sexual conduct after a 17-
year-old victim reported that Webber put his arm around her th roat, knocked her
unconscious, c arried her to his car , drove her to a lake and raped her. A medical
examination of the victim confirmed contusions and bruises on her body and abrasions in
her vaginal area. Webber pleaded guilty to third-degree criminal sexual conduct, the stay
of his 18-month sentence from 1991 was revoked , and the district court sentenced him to
64 months in prison.1
Early in his prison term, Webber was interviewed for admission to sex offender
treatment at the Lino Lakes prison. Because he refused to discuss his offenses, he was
considered unamenable to treatment and was not admitted. Webber later entered the

1 Also in 1993, before being imprisoned for the sexual assaults, Webber was arrested and
charged with possession of a firearm by a felon. In May 1994, Webber pleaded guilty to
the charge and was sentenced to 17 months in prison, to be served concurrently w ith his
criminal sexual conduct sentences.

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treatment program and apparently began to progress, passing into “Phase II” and eventually
“Phase III” of the program. He continued treatment until his release in March 1997.
In 2001, Webber was charged with third -degree criminal sexual conduct for
sexually assaulting a nother 17-year-old girl ,2 and two counts of fourth -degree criminal
sexual conduct for inappropriately touching the inner thigh and vagin a of a 13 -year-old
girl, and for touching the vagina of a 14 -year-old girl. The district court found Webber
guilty of four crimes: (1) third-degree criminal sexual conduct for the incident with the 17-
year-old victim; (2) fourth -degree criminal sexual con duct for the incid ent with the 13 -
year-old victim; (3) false imprisonment for the incident with the 14-year-old victim; and
(4) failure to register as a sex offender. The district court sentenced Webber to prison for
a total of 88 months. Because Webber refused to discuss the offenses and denied
committing them, he was not admitted to sex offender treatment during his incarceration.
In May 2007, the district court committed Webber to the Minnesota Sex Offender
Program (MSOP), concluding that he satisfied the requirements for commitment as a SDP
and SPP. The district court later granted the state’s petition for indeterminate commitment.
In 2009 , Webber appealed his indeterminate commitment, and this court affirmed the
district court’s determination.
In 2017, Webber petitioned the special review board (SRB) for a transfer to
community preparation services (CPS), provisional discharge, or full discharge. The SRB

2 The 17 -year-old victim reported that Webber entered the bathroom where she was
bathing, reached in the bathwater and inserted his finger into her vagina. As the girl was
drying off, Webber grabbed her legs, dig itally penetrated her vagina again, and then put
his mouth on her vagina and kept it there while she attempted to push him away.

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recommended denying provisional discharge and full discharge but granting transfer to
CPS. The Commissioner of Minnesota Department of Human Services (Commissioner)
and Hennepin County (county) filed a timely petition for rehearing and reconsideration of
the SRB Findings of Fact and Recommendation that recommended transfer. Webber was
permitted to file a late petition for rehearing and reconsideration of the SRB’s
recommendation to deny provisional or full discharge.
In June 2018, the Judicial Appeal Panel ( appeal panel) held the hearing. During
Webber’s case -in-chief, he called three witnesse s to testify: (1) Sharon Green, CEO of
Peace of Hope, Inc. 3; (2) Cheryl Bradford, Webber’s mother; and (3) Dr. Adam Gierok,
the court-appointed examiner. Dr. Gierok evaluated Webber and believed that Webber met
criteria for (1) other specific paraphilic disorder based on his offending against individuals
who were nonconsenting, and (2) other specific personality disorder based on the presence
of fairly significant antisocial traits. Based upon his assessments and observations, Dr.
Gierok testified that We bber did not meet the statutory criteria for provisional or full
discharge. However, due to Webber’s scores on multiple risk assessments and his
participation and engagement in treatment, Dr. Gierok testified that Webber met the
statutory criteria for tra nsfer to CPS. Dr. Gierok admitted that Webber continues to
disagree with his offending history and denies using force. Dr. Gierok explained that an
indication of deception on two of Webber’s polygraphs “shows the development of a

3 Green works at a nonprofit that supports incarcerated individuals and knows Webber
through her church. She testified that sh e has not ever been involved in treating sex
offenders. She does not support Webber continuing in sex offender treatment at MSOP.

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pattern or a persistence of an inability to acknowledge or to apparently be open about
certain aspects of his offending history.” Dr. Gierok admitted that the recommendation for
transfer was a “close call.”
At the close of Webber’s case -in-chief, the Commissioner moved to dismis s the
petition for provisional discharge and discharge pursuant to Minnesota Rule of Civil
Procedure 41.02(b) and Minnesota Statutes section 253D.28 (2018), and the county joined
in the motion. The appeal panel granted the Commissioner’s motion, finding that Webber
did not meet his prima facie burden of production.
The Commissioner then proceeded to present its case-in-chief on the issue of
transfer. The Commissioner called three witnesses during its case-in-chief including
Michelle Sexe, Operations Manager of CPS; Peter Puffer, Clinic Director of Moose Lake
MSOP; and Dr. Jennifer Tippett, a forensic evaluator for the Minnesota Department of
Human Services. Sexe testified that the CPS facility is designed to provide MSOP clients
with reintegration opportu nities before living in the community. The CPS facility is not
secure and does not have razor wire, locked doors, or security cameras in the clients’ rooms.
Puffer testified that MSOP does not support Webber’s petition for transfer to CPS because
Webber is in the middle of Phase II of the three -phase treatment program and self -
monitoring, thinking errors, and sexuality all remain areas of need. Puffer explained that
Webber had remaining treatment needs in the area of sexuality, including the completi on
of a penile plethysmograph (PPG) and Webber indicated deception on his full disclosure
of sexual history polygraph. Though Webber has been using daily journals, Webber has

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not completed iceberg journals 4 as preferred by MSOP. Dr. Tippett evaluated Webber,
spoke to Webber’s primary therapist, reviewed medical records, and used actuarial tools to
complete a sexual violence risk assessment (SVRA). Dr. Tippett testified that Webber
does not meet the statutory criteria for transfer to CPS.
On October 5, 2018, the appeal panel issued an order denying Webber’s petition in
its entirety. The appeal panel determined that Webber did not establish, by a preponderance
of the evidence, that a transfer was appropriate under Minn. Stat. § 253D.28, subd. 2(e).
Webber now appeals.5
D E C I S I O N
I. The appeal panel properly denied appellant’s petition for transfer.
The Minnesota Commitment and Treatment Act: Sexually Dangerous Persons and
Sexual Psychopathic Personalities (MCTA), Minn. Stat. §§ 253D.01 –.36 (2018), governs
discharge proceedings of a person committed as SDP or SPP. A person who is committed
as an SDP or SPP may petition the SRB for a reduction in custody. Minn. Stat. § 253D.27,
subd. 2. The term “reduction in custody” includes a provisional discharge, a full discharge,
or a transfer out of a secure treatment facility . Id., subd. 1(b). If the SRB recommends a
reduction in custody, the county attorney of the county from which the person would be

4 Iceberg journaling is described as an exercise where clients identify both surface -level
and underlying causes to their actions and behaviors.
5 Although Webber’s petition to the appeal panel also included a request for provisional
discharge or full discharge , Webber’s brief does not provide an argument as to why the
appeal panel’s dismissal of Webber’s request for discharge was erroneous. We do not
decide issues that have not been adequately briefed. State Dep’t of Labor & Indus. v. Wintz
Parcel Drivers, Inc. , 558 N.W.2d 480, 480 (Minn. 1997). Therefore, this opinion only
addresses the appeal panel’s dismissal of Webber’s request for transfer.

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committed or the Commissioner may petition the judicial appeal panel for reconsideration
of the SRB’s recommendation. Id. at § 253D.28, subd. 1(a).
A person who is committed as an SPP or SDP may be transferred to CPS only if
“the transfer is appropriate.” Id. at § 253D.29, subd. 1(a) . In determining whether a
transfer is appropriate, a judicial appeal panel must consider five factors:
(1) the person’s clinical progress and present treatment needs;

(2) the need for security to accomplish continuing treatment;

(3) the need for continued institutionalization;

(4) which facility can best meet the person’s needs; and

(5) whether transfer can be accomplished with a reasonable degree
of safety for the public.

Id., subd. 1(b). If a committed person requests a transfer to CPS, he bears both “the burdens
of production and persuasion . . . at the hearing before the judicial appeal panel.” Foster
v. Jesson , 857 N.W.2d 545, 548 (Minn. App. 2014); see also Minn. Stat. § 253D.28,
subd. 2(e) (“A party seeking transfer . . . must establish by a preponderance of the evidence
that transfer is appropriate.”).
Generally, this court reviews decisions by a judicial appeal panel for clear error,
“examin[ing] the record to determine whether the evidence as a whole sustains the appeal
panels’ findings” and not “weigh[ing] the evidence as if trying the matter de novo.” Larson
v. Jesson, 847 N.W.2d 531 (Minn. App. 2014) (citing Jarvis v. Levine, 364 N.W.2d 473,
474 (Minn. App. 1985) (quotation omitted); Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn.
App. 1992), review denied (Minn. Nov. 17, 1992)). This court reviews de novo the

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application of the facts to the statutory criteria. In re Civil Commitment of Kropp, 895
N.W.2d 647, 650 (Minn. App. 2017), review denied (Minn. June 20, 2017).
Here, the appeal panel made findings of fact based on the evidence presented at the
hearing and concluded that Webber failed to establish by a preponderance of the evidence
that transfer was appropriate. Webber does not argue that there was clear error in the appeal
panel’s factual findings or that the appeal panel improperly applied the statutory criteria to
its factual findings. Instead, Webber raises three arguments regarding the appeal panel’s
transfer decision.
First, Webber argues that the SRB ’s and the inde pendent examiner ’s
recommendations were not properly weighed by the appeal panel . This argument is
unavailing because on review this court does not reweigh evidence, but instead looks to
see if the evidence as a whole supports the appeal panel ’s conclusion. See In re Civil
Commitment of Duvall, 916 N.W.2d 887, 892, 894 (Minn. App. 2018), review denied (Sept.
18, 2018) (“In reviewing the panel’s order, we will not reweigh the evidence.”); In re Civil
Commitment of Fugelseth , 907 N.W.2d 248, 253 (Minn. App. 2018) (noting that “it is
immaterial that the record might also provide a reasonable basis for inferences and findings
to the contrary”) (quotation omitted), review denied (Minn. Apr. 17, 2018).
Second, Webber argues that the appeal panel should have considered Webber’s time
spent in treatment when making its transfer determination. However, this argument is
likewise unavailing because time spent in treatment is not on the statutorily enumerated
list of factors for the appeal panel’s consideration. See Minn. Stat. § 253D.29, subd. 1(b)

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(providing that the judicial appeal panel must consider five factors in a transfer
determination, none of which is regarding the individual’s time spent in treatment).
Third, Webber argues that it was not shown that he could not address his treatment
needs at CPS. However, t his is not the question at hand. Rather, the statutory criteria
requires that the appeal panel examine “which facility can best meet the person’s needs.”
Minn. Stat. § 253D.29, subd. 1(b). The appeal panel was “convinced” that Webber’s
current placement is the best facility to meet his needs. The appeal panel made very
detailed findings in this case. The appeal panel relied on the expert opinions of Dr. Tippett
and Mr. Puffer. The appeal panel cited to Dr. Tippett’s SVRA report which provided:
Despite this clinical progress, it appears evident that
[Webber] has remaining treatment needs, primarily in the areas
of sexuality and problem solving. . . . [Webber’s] ability or
unwillingness to explore this arousal, in tandem with an
absence of objective measures of sexual arousal/inte rests and
possible dishonesty regarding his sexual offending, leaves a
gap in important aspects of his overall offending cycle.

The appeal panel also considered the SRB’s treatment report, which indicated transfer to
CPS was premature:
In light of continuing treatment needs . . . and the role
aggression played in his sexual offending, it is the opinion of
the MSOP clinical leadership that [Webber’s] petition for any
reduction in custody is considered premature at this time.

The appeal panel thoroughly weighed the evidence for and against transfer in its order,
writing:
[Webber] has not completed sex offender treatment and
is in the middle stage of Phase II of the three -phase treatment
program at MSOP. . . . Dr. Tippett opined that [Webber] does
not meet the statutory criteria for a transfer to CPS, given

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[Webber’s] remaining treatment needs, as well as his need for
security. In her testimony, Dr. Tippett also opined that
[Webber’s] current facility is the best facility to meet his needs.

Although Dr. Gierok supported [Webber’s] request for
a transfer to CPS, he admitted that it was a “close call.” Dr.
Gierok stated that [Webber] has remaining treatment needs.
Additionally, Dr. Gierok testified that he would like [Webber]
to participate in a PPG and full disclosure polygraph.

. . .

The Panel has weighed the evidence and is persuaded
by the expert opinions of Dr. Tippett and Mr. Puffer. The Panel
is convinced that [Webber’s] current placement i s the best
facility to meet his ongoing treatment needs. The Panel also
concludes that [Webber’s] current placement is at the facility
which can best meet the need for security to accomplish
[Webber’s] continuing treatment. Additionally, [Webber]
requires continued institutionalization. . . . [T] he Panel is not
confident that a transfer can be made with a reasonable degree
of safety for the public.

Based upon our review of the record, we affirm the appeal panel ’s determination that
transfer was not appropriate in this case.
II. The MCTA does not violate appellant’s due-process rights.

Webber appears to argue that the three-phase treatment program violates his
constitutional right to due process. We note that Webber did not raise this argument to the
SRB or the appeal panel, and even if it were properly before this court, it is without merit.
We review a question of a statute’s constitutionality de novo. SooHoo v. Johnson,
731 N.W.2d 815, 821 (Minn. 2007). The party challenging the constitutional validity of a
statute must demonstrate that it is unconstitutional beyond a reasonable do ubt. Assoc.
Builders & Contractors v. Ventura , 610 N.W.2d 293, 299 (Minn. 2000). We presume a

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statute to be constitutional and will not declare one unconstitutional unless absolutely
necessary. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).
The supreme court upheld the constitutionality of the MCTA in Call v. Gomez, 535
N.W.2d 312 (Minn. 1995). The court held that a civilly committed person’s due-process
rights are protected by procedural safeguards including the ability to petition for transfer
or discharge, periodic review, and the right to competent medical care and treatment. Id.
at 318-319. This court is bound by the supreme court’s interpretation of a statute. State v.
Rohan, 834 N.W.2d 223, 227 (Minn. App. 2013), review denied (Minn. Oct. 15, 2013).
And the Eighth Circuit has rejected both facial and as -applied challenges to the MCTA in
Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017). Therefore, Webber’s argument fails.
Affirmed.