In the Matter of the Civil Commitment of: Anthony Bruce Eberhardt

This opinion will be unpublished and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
A18-2143

In the Matter of the Civil Commitment of: Anthony Bruce Eberhardt

Filed May 20, 2019
Affirmed
Connolly, Judge

Commitment Appeal Panel
File No. AP17-9167

Jeffrey Edblad, Isanti County Attorney, Shila A. Walek Hooper, Chief Deputy Isanti
County Attorney, Cambridge, Minnesota (for Isanti County)

Keith Ellison, Attorney General, James Clark, Assistant Attorney General, St. Paul,
Minnesota (for appellant Commissioner of Human Services)

Carrie A. Doom, McKinnis & Doom, P.A., C ambridge, Minnesota (for respondent
Anthony B. Eberhardt)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and
Bjorkman, Judge.

U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the order of the commitment appeal panel (Panel) granting
respondent’s petition for provisional discharge, arguing that the Panel clearly erred by failing

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to consider one of appellant’s witnesses and improperly discrediting one of appellant’s
expert witnesses based on respondent’s refusal to be interviewed. Because the evidence
supports the Panel’s decision, we affirm.
FACTS
Respondent Anthony Bruce Eberhardt , 56, has engaged in harmful acts of sexual
conduct against eight female victims—seven adults and one 11-year-old girl—all of whom
were strangers. He has two criminal-sexual-conduct convictions for offenses at age 18 and
three criminal-sexual-conduct convictions for offenses at age 22. He also acknowledges
three additional uncharged sexual assaults or attempts at age 22. Eberhardt was repeatedly
incarcerated as a result of these and other offenses , but he has not committed a sexual
offense since 1984. After being released from incarceration in 2000, Eberhardt lived in the
community for about five years without committing a sexual offense.
In 2005, following an executive order for review of all level 3 sex offenders in the
community, Isanti County (C ounty) petitioned for Eberhardt’s commitment as a sexually
dangerous person (SDP) and a sexual psychopathic personality (SPP).1 In 2006, the district
court granted the petition and Eber hardt was indeterminately civilly committed to the
Minnesota Sex Offender Program (MSOP) as an SDP and an SPP. Eberhardt is currently
in the final phase of the three-phase treatment program at MSOP.
In 2016, the Panel granted Eberhardt’s req uest for tra nsfer to community
preparation services (CPS) at MSOP, where he is currently in Stage 2 of the four -stage

1 This was not pursuant to the commission of a new sexual offense , but due to his failure
to register as a predatory offender.

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CPS reintegration program. He has not advanced further due to four rule violations in
2017: (1) he provided prescription medication to a peer; (2) he engaged in “code talking”
with his mother on the phone; (3) he participated in a prohibited three-way phone call; and
(4) he brought his self-administered medication to work with him.
In 2017, Eberhardt petitioned the special review b oard (SRB) for provisional
discharge or full discha rge and presented a provisional discharge plan. Appellant
Commissioner of Minnesota Dep artment of Human Services (C ommissioner) and the
County opposed Eberhardt’s petition. 2 The SRB recommended granting Eberhardt’s
petition for provisional discharge, but denying the pet ition for full discharge. The
Commissioner petitioned the Panel for rehearing and reconsideration of the SRB’s
recommendation for provisional discharge.
The Panel conducted a two-phase hearing. During the first-phase hearing, the Panel
received seven exhibits from Eberhardt and 21 exhibits from the C ommissioner. It heard
testimony from Eberhardt; Nicole Elsen, Ph.D., LP; Rachel Mack, Psy.D, LP, DHS
Forensic Evaluator; Paul Reitman, Ph.D., LP; and Davi d Robinson, Eberhardt’s primary
therapist. During the second-phase hearing, the P anel received fou r additional exhibits
from the Commissioner and one additional exhibit from Eberhardt. It heard testimony from
Scott Halvorson, Reintegration Director; David Thornton, Ph.D., LP; Christopher Schiffer,
MA, LP, Clinical Director; and George Komaridis, Ph.D., LP. Following the hearings, the
Panel granted Eberhardt’s request for provisional discharge. The Commissioner appeals.

2 Although the County opposed Eberhardt’s petition, it is not a party on this appeal.

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D E C I S I O N
We review the Panel’s decision for clear error, examining the record to determine
whether the ev idence as a whole sustains the P anel’s findings. Larson v. Jesson , 847
N.W.2d 531, 534 (Minn. App. 2014). We do not reweigh the evidence. Id. If the evidence
as a whole sustains the Panel’s findings, “it is immaterial that the record might also provide
a reasonable basis for inferences and findings to the contrary. ” Piotter v. Steffen , 490
N.W.2d 915, 919 (Minn. App. 1992), (quoting Johnson v. Noot , 323 N.W.2d 724, 728
(Minn. 1982)), review denied (Minn. Nov. 17, 1992).
A person who is committed as an SDP or an SPP may petition the SRB for a
reduction in custody. Minn. Stat. § 253D.27, subd. 2 (2018). 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) (2018). A person who is committed as an SDP or an SPP
“shall not be provisionally disch arged unless the committed person is capable of making
an acceptable adjustment to open society.” Minn. Stat. § 253D.30, subd. 1(a) (2018). In
determining whether to grant a provisional discharge, the Panel must consider two statutory
criteria:
(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 w ill 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) (2018).

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In a proceeding before the P anel on a petition for a provisional 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). This burden is merely a
burden of production. Coker v. Jesson, 831 N.W.2d 483, 486 (Minn. 2013). In considering
such a motion, the Panel “may not weigh the evidence or make credibility determinations,”
but instead must view the evidence in a light most favorable to the committed pers on. Id.
at 490-91. “The proceeding in which a committed person produces evidence is commonly
referred to as a ‘first-phase hearing.’” Id. at 486.
If a committed person satisfies his burden of production at the “first-phase hearing,”
the proceeding moves to a “second-phase hearing.” Id. At this phase, the party opposing
the petition “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). The clear-
and-convincing evidence standard requires “more than a preponderance of the evidence
but less than proof beyond a reasonable doubt.” In re Civil Commit ment of Kropp , 895
N.W.2d 647, 654 (Minn. App. 2 017) (quotation omitted), review denied (Minn. June 20,
2017).
There is considerable evidenc e in the record to support the P anel’s determinations
that (1) there is no longer a need for treatment and supervisi on in Eberhardt’s current
treatment setting and (2) the conditions of the provisional discharge plan will provide a
reasonable degree of protection to the public. See Minn. Stat. § 253D.30, subd. 1(b).

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Of the nine witnesses who testified, five were in favor of provisional discharge, two
opposed provisional discharge, and two were neutral. A review of their testimony shows
that Dr. Mack, Dr. Reitman, and Dr. Komaridis explicitly concluded Eberhardt me ets the
statutory criteria for provisional discharge ; Dr. Thornton concluded that he does not; and
Dr. Elsen made no comment about whether he does . Additionally, E berhardt’s an d
Robinson’s testimony support provisional discharge, Schiffer’s testimony does not support
provisional discharge, and Halvorson’s testimony was neutral.
A. Evidence Supporting the Panel’s Decision
Dr. Mack conducted a sexual -violence-risk assessment of Eberhardt in 2017 and
updated it in 2018. She conducted a clinical interview of Eberhardt, reviewed records, and
corresponded with collateral sources , including Eberhardt’s psychologist , primary
therapist, and reintegration director. She used actuarial tools and other risk measurements
to aid in her assessment. Dr. Mack noticed numerous improvements in Eberhardt since the
2017 assessment: Eberhardt participated in reintegration activities and community outings,
developed a re offense prevention plan, completed ch emical-dependency treatment, and
was participating consistently in arousal-management aftercare. Dr. Mack concluded that
Eberhardt meets the statutory criteria for provisional discharge. She found Eberhardt’s
current treatment needs are best suited to an outpatient program and that the provisional
discharge plan is sufficient to protect the public safety.
Dr. Reitman, whom Eberhardt retained as an expert, concluded that Eberhardt meets
the statutory criteria for provisional discharge. Dr. Reitman emphasized that Eberhardt has
been at MSOP for 13 years and has not committed a sexual offense in approximately 34

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years, five of which were spent living in the community. Dr. Reitman found that Eberhardt
is not at risk for committing a sexual offense and has made significant progress in
treatment. Dr. Reitman concluded that Eberhardt’s current treatment needs can be met in
an outpatient setting and that intensive supervised release is sufficient to protect public
safety.
Although Dr. Komaridis concluded in his June 2018 report that Eberhardt did not
meet the statutory criteria for provisional discharge , he concluded in his October 2018
report that Eberhardt does meet the criteria. Komaridis reviewed records, interviewed
Eberhardt, and communicated with Eberhardt’s treatment providers. He noted that
Eberhardt’s treatment team initially opposed the request for provisional discharge, but that
half the team now supported it, while the other half was more conservative but did not
oppose it. Dr. Komaridis’s current concern is Eberhardt’s potential risk to violate rules,
not to act out sexually. Dr. Komaridis concluded that Eberhardt meets the statutory criteria
for provisional discharge and all the data shows Eberhardt is working hard to change and
is a low risk to reoffend sexually.
Robinson, Eberhardt’s primary thera pist, has had contact with him at least every
other day since September 2016. Robinson testified that Eberhardt completed the arousal-
management and chemical -dependency treatment and attends Narcotics Anonymous
meetings. He noted that Eberhardt is “a lea der in core group,” “always a very active
participant,” “very supportive of his p eers,” and “attentive to his treatment goals.”
Robinson testified that Eberhardt is involved in the MSOP mentoring program and is on
the community council that oversees confl ict resolution. Robinson also noted that

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Eberhardt is the only one of his clients who has been requested by a clinician to help mentor
others. Robinson testified that Eberhardt has “clear insight” of his triggers and has been
“transparent regarding his sexuality.” Robinson testified that Eberhardt worked to expand
his support network and has the support of his family and peers. Robinson noted that his
current concerns are not about Eberhardt’s sexually deviant thinking, but about his rule
breaking. H owever, he also testified that Eberhardt has gained insight into his rule -
breaking behaviors through his active involvement in the intimacy program.
Eberhardt’s testimony supports the finding that he no longer needs to receive
treatment and supervision in his current setting. He testified about his past actions,
including his sexual offenses and criminal activities. While at MSOP, he has completed
arousal-management and chemical -dependency programs and different modules to work
through his triggers. He explained some of what he has learned in treatment such as insight
into his shortcomings in the area of intimacy. He took responsibility for his rule-breaking
behaviors and explained that he has learned the importance of obeying even small rules.
He testified that he has both a provisional discharge plan and a relapse-prevention plan.
Halvorson testified generally about the structure of the MSOP reintegration process,
which includes five tiers through which individuals on provisional d ischarge progress .
Halvorson testified that he helps clients develop a provisional discharge plan incl uding
assistance finding housing. He also testified that there is a very high level of supervision
of individuals on provisional discharge and they must submit to drug testing, comply with
the conditions of their re lease, and remain active global position ing system (GPS).

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Halvorson’s testimony supports the conclusion that Eberhardt would have a high level of
supervision if provisionally discharged.
Dr. Elsen testified that Eberhardt completed the arousal-management program and
created an aftercare plan. Dr. Elsen authored the report following Eberhardt’s penile
plethysmograph (PPG) assessment and testified that the PPG indicated “no clinical
significant response ;” she made no findings of Eberhardt using s uppression in that
assessment. She also testified that it is not part of her job to opine regarding whether a
client should be provisionally discharged and made no statement about whether Eberhardt
meets the statutory criteria.
B. Schiffer’s Testimony
Schiffer was the clinical director at MSOP, but became the clinical court services
director the day before testifying. He testified that the program’s position is that
provisional discharge is premature at this time. Schiffer testified about concerns with rule
violations, including Eberhardt’s internal and external motivations and whether he is
committed to following rules long -term. But Schiffer also testified that Eberhardt has
“been largely successful in terms of living a more responsible life, earning his way, [and]
being recognized as a helpful and productive person in the workplace.” Schiffer testified
that Eberhardt’s current treatment program would best address his needs regarding rule
violations and deceptive behaviors.
The Commissioner first contends that the Panel clearly erred by ignoring Schiffer’s
opinions and making no factual findings on his recommendations or testimony. Schiffer
is listed as a witness, but is not otherwise mentioned in the P anel’s order. The

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Commissioner relies on Edina Cmty. Lutheran Church v. State , 673 N.W.2d 517, 523
(Minn. App. 2004), to argue that the Panel must make factual findings “sufficient to permit
meaningful appellate review” and on State v. White to argue that by ign oring Schiffer’s
opinions, the Panel abdicated its duty to weigh and resolve conflicting evidence regarding
whether Eberhardt shou ld be provisionally discharged. See State v. White , 357 N.W.2d
388, 390 (Minn. App. 1984) (“We are also guided by the principle that the factfinder must
choose between conflicting factual accounts and determine the credibility, reliability, and
weight given to witnesses’ testimony.”). Neither Edina Cmty. Lutheran Church nor White
suggests that failure to make certain factual findings or credibility determinations regarding
a witness constitutes clear error , a nd t he C ommissioner cites no authority for that
proposition.
Furthermore, the record does not establish that the Panel failed to consider Schiffer’s
testimony. “It is well to bear in mind that on appeal error is never presumed. It must be
made to appear affirmativel y before there can be reversal. ” White v. Minnesota Dep’t of
Nat. Res. , 567 N.W.2d 724, 734 (Minn. App. 1997) (quoting Waters v. Fiebelkorn , 13
N.W.2d 461, 464 -65 ( Minn. 1944)). Although the P anel did not explicitly address
Schiffer’s testimony in its order, it addressed his concerns about Eberhardt’s rule violations
and belief that those would be best addressed in CPS. It is clear that the Panel considered
the rule violations when it granted provisional discharge because they are mentioned
throughout the factual findings and the analysis:
The Panel does not find the rule violations from 2017
predictive although [Eberhardt] will need to remain vigilant
that he abides by all the conditions of his provisional discharge

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and the reintegration agents’ rules. The MSOP reintegration
system is desi gned with a high degree of structure and
supervision with a gradual step down, [so] that it will enable
[Eberhardt] to adjust successfully to the community.

While it would have been preferable for the Panel to make findings and credibility
determinations on all the testimony presented, particularly the testimony that conflicts with
its decision, the Panel’s decision not to do so here was not clear error.
C. Dr. Thornton’s Opinion
The C ommissioner next argues that the P anel clearly erred by discounting
Dr. Thornton’s opinions because he did not have the opportunity to interview Eberhardt.
Dr. Thornton was retained as an expert by the C ommissioner. Eberhardt declined to be
interviewed by him, but Dr. Thornton testified that he had sufficient information to form
an opinion because he spoke with Eberhardt’s primary therapist and clinical supervisor,
reviewed his MSOP records, and used actuarial tools.
Dr. Thornton emphasized his concern with Eberhardt’s antisocial personality
disorder, rule breaking, and deceptive behavior. He testified that Eberhardt was deceiving
his treatment team to the point where it “thinks overly highly of him.” Dr. Thornton also
warned against drawing inferences from Eberhardt’s most recent PPG results showing “no
significant response to any of the stimuli .” Dr. Thornton did no t find the proposed
provisional discharge plan sufficient and concluded that Eberhardt was unsuitable for
provisional discharge based on his lack of transparency and rule violations.
The P anel credited Dr. Komaridis’s testimony and opinion ove r Dr. Thornton’s ,
explaining that,

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Dr. Thornton and Dr. Komaridis were both helpful in
assisting the Panel in understanding the risk, but Dr. Thornton
did not have an opportunity to interview [Eberhardt] and
discounted the treatment team too readily. Dr. Thornton also
did not take into consideration the high degree of structure and
control that will be exerted by the reintegration agents.

We generally defer to the Panel’s evaluation of expert testimony. Matter of Civil
Commitment of Duvall , 916 N.W.2d 887, 895 (Minn. App. 2018), review denied (Minn.
Sept. 18, 2018). Dr. Mack, Dr. Reitman, and Dr. Komaridis concluded that Eberhardt
meets the statutory criteria for provisional discharge. Dr. Thornton concluded that he does
not. We defer to the Panel’s evaluation and conclude that the Panel did not clearly err in
weighing the expert testimony in favor of provisional discharge. See id.
Relying on Rice, the Commissioner contends, “The Panel should not give an expert
opinion less weight due to a committed persons’ refusal to meet with the ex pert.” See
Matter of Rice, 410 N.W.2d 907, 910 (Minn. App. 1987) (“It would be incongruous for us
to permit a proposed patient to defeat all commitment proceedings merely by refusing to
be examined.”), review denied (Minn. Oct. 28, 1987). But this misinterprets Rice, which
is also factually distinguishable. Rice involved a petition for commitment as a chemically
dependent person, not a discharge petition for an SDP or an SPP. Id. at 909. “In Rice, the
district court determined that the patient co uld not avoid a civil commitment proceeding
simply by refusing an interview.” Duvall, 916 N.W.2d at 895. Similarly, the
Commissioner was not prohibited from moving forward in responding to Eberhardt’s
discharge petition because Eberhardt refused an inter view. The Commissioner was
allowed to call Dr. Thornton although he had not interviewed Eberhardt.

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Nevertheless, we share the C ommissioner’s concern that a committed individual
may refuse to be interviewed by the Commissioner’s expert witness in an attempt to receive
some benefit. We remind the P anel that an individual’s refusal to be interviewed by such
a witness should in no way be held against the state or the Commissioner or weigh in favor
of that individual. However, it appears the Panel here discredited Dr. Thornton’s opinion
because he “discounted the treatment team too readily” and did not consider the high degree
of structure provid ed during provisional discharge , not because he did not meet with
Eberhardt.3
Because the ev idence as a whole sustains the P anel’s conclusion that Eberhardt
meets the statutory criteria for provisional discharge, we discern no error. See Larson, 847
N.W.2d at 534. Therefore, we affirm.
Affirmed.

3 The Commissioner also argues that the above-listed errors caused the Panel to erroneously
conclude that the C ommissioner failed to show by clear and convincing evidence that
Eberhardt’s petition for provisional discharge should be denied. But as we conclude that
the Panel did not err, we do not address this argument.