A19-0239

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0194
A19-0239

In the Matter of the Civil Commitment of: Steven Loren Edwards.

Filed July 22, 2019
Reversed
Larkin, Judge

Commitment Appeal Panel
File No. AP18-9025

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

James Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for appellant Dakota County)

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

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold,
Judge.

S Y L L A B U S
This court does not apply de novo review to a commitment appeal panel’s decision
on the merits of a petition for a reduction in custody under Minn. Stat. § 253D.27 (2018),
unless the panel has ordered dismissal under Minn. R. Civ. P. 41.02(b). Instead, we review
such a decision for clear error, examining the record to determine whether the evidence as
a whole sustains the panel’s findings.

2
O P I N I O N
LARKIN, Judge
Appellants challenge an order of a commitment appeal panel (CAP) 1 granting, in
part, respondent’s petition for a reduction in custody under Minn. Stat. § 253D.27. Because
the evidence as a whole provides insufficient support for the CAP’s findings in support of
respondent’s transfer out of a secure treatment facility, we reverse.
FACTS
Respondent Steven Loren Edwards is a 47-year-old man with a history of alleged
and proven criminal sexual conduct. In December 2000, a woman reported that respondent
tried to rape her in a gas-station restroom. Respondent denied the allegation, and the state
did not file charges. In July 2001, a woman reported that respondent masturbated in front
of her and touched her breasts. Respondent admitted that conduct, but the state did not file
charges. Also in July 2001, respondent physically and sexually assaulted a 15 -year-old
girl. He was later convicted of second-degree criminal sexual conduct for that offense. In
September 2001, respondent held a pair of scissors to the neck of a 16-year-old girl, forced
her to perform oral sex on him, and penetrated her vaginally and anally. He was convicted
of kidnapping and first-degree criminal sexual conduct for that offense.

1 We refer to the entity formerly known as the supreme court appeal panel or judicial appeal
panel as t he commitment appeal panel . See Minn. Stat. § 253D.28, subd. 1(a) (2018)
(providing for review by “the judicial appeal panel established under section 253B.19,
subdivision 1”); Minn. Stat. § 253B.19, subd. 1 (2018) (providing that the supreme court
shall establish an appeal panel).

3
In October 2011, respondent was civilly committed as a sexually dangerous person
(SDP) under the Minnesota Commitment and Treatment Act: Sexually Dangerous Persons
and Sexual Psy chopathic Personalities (MCTA: SDP/SPP), Minn. Stat. §§ 253D.01 -.36
(2018).2 In May 2012, his indeterminate commitment at the Minnesota Sex Offender
Program (MSOP) was finalized. Since August 2013, respondent has been in Phase II of
MSOP’s three -phase treatment program. Since 2016, respondent’s participation in
treatment has been sporadic. In May 2017, respondent stopped participating in treatment,
with the exception of a conflict-resolution program. Respondent started participating in
treatment again in July 2018.
In June 2017, respondent petitioned the special review board (SRB) for transfer to
community preparation services (CPS), provisional discharge, or full discharge. See Minn.
Stat. § 253B.18, subd. 4c (2018) (establishing special review board); Minn. Stat. § 253D.27
(setting forth procedure by which persons civilly committed as sex offenders may petition
the special review board for a “reduction in custody,” which means transfer out of a secure
treatment facility, a provisional discharge, or a discharge from commitment) . Appellants
Minnesota Commissioner of Human Services (the commissioner) and Dakota County (the
county) opposed respondent’s petition. The SRB recommended that respondent’s request

2 We note that when respondent was committed, SDP/SPP commitments were governed
by the Minnesota Commitment and Treatment Act (MCTA). See Minn. Stat. §§ 253B.01-
.24 (2010 & Supp. 2011). In 2013, the legislature amended the MCTA by removing
provisions regarding SDP and SPP commitments from chapter 253B and moving them to
a new chapter 253D, entitled the “Minnesota Commitment and Treatment Act: Sexually
Dangerous Persons and Sexual Psychopathic Personalitie s.” 2013 Minn. Laws ch. 49,
§§ 1-22, at 210-31. Because there are no substantive differences between the two, we cite
to the current statutory provisions.

4
for provisional and full discharge be denied, but recommended that respondent’s request
for transfer to CPS be granted. The commissioner petitioned the CAP for rehearing and
reconsideration on the issue of transfer, and respondent petitioned the CAP for rehearing
and reconsideration on the issues of provisional and full discharge. See Minn. Stat.
§ 253D.28, subd. 1 (authorizing petition to the CAP for rehearing and reconsideration of a
recommendation of the SRB under section 253D.27).
In September 2018, the CAP heard the matter . At the beginning of the hearing,
respondent withdrew his request for full discharge, leaving the transfer and provisional-
discharge issues before the CAP. Respondent presented testimony from CPS Operations
Manager Michelle Sexe and Forensic Evaluator Jennifer Tippett, Psy.D., in support of his
request for a reduction in custody. See Minn. Stat. § 253D.28, subd. 2(d) (stating that a
petitioner seeking provisional discharge bears the burden of going forward with the
evidence). Sexe provided general information about CPS and did not opine regarding
whether transfer was appropriate. Dr. Tippett opined that respondent meets the statutory
criteria for transfer to CPS. Respondent withdrew his request for provisional discharge at
the close of his evidence.
After respondent presented his case, the c ommissioner moved to dismiss
respondent’s petition under Minn. R. Civ. P. 41.02(b), and the CAP denied the motion .
The commissioner then presented testimony from MSOP Clinical Director Peter Puffer ,
M.A., L.P., and court-appointed examiner Mary Kenning, Ph.D., L.P. Puffer testified that
MSOP clinical leadership believes that a transfer to CPS would be premature. Dr. Kenning
opined that respondent does not meet the statutory criteria for transfer to CPS.

5
The CAP granted respondent’s request for transfer to CPS. The commissioner and
the county appeal.3
ISSUES
I. Does this court apply de novo review to a CAP’s decision on the merits of a
petition for a reduction in custody under Minn. Stat. § 253D.27?
II. Did the CAP err by granting respondent’s petition for transfer to CPS?

ANALYSIS
I.
Appellants argue that this court should reverse because the CAP erred in concluding
that respondent met his burden to show that transfer to CPS should be granted. Appellants
alternatively argue that this court should remand because the CAP did not provide
sufficient factual findings to enable this court to effectively review the CAP’s application
of the relevant statutory criteria de novo.
We begin by addressing the standard that applies to our review of a CAP’s decision
on the merits of a petition for a reduction in custody under Minn. Stat. § 253D.27 .
Appellants contend that our review is de novo. An “appeal de novo” is one in which “the
appellate court uses the [lower tribunal’s] record but reviews the evidence and law without
deference to the [lower tribunal’s] rulings.” Black’s Law Dictionary 117 (10th ed. 2014).

3 The commissioner and the county filed separate appeals. The county did not file a brief,
but joined in the commissioner’s arguments. Respondent also filed an appeal. This court
consolidated all three appeals. Later, respondent voluntarily withdrew his appeal.

6
Appellants argue that this court applies de novo review because a CAP’s decision
on the merits of a petition for a reduction in custody is based on the application of statutory
criteria to facts found. Appellants rely on two unpublished decision s of this court as
support.4 Unpublished opinions of this court are not precedential. Minn. Stat. § 480A.08,
subd. 3 (2018); see Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993)
(noting that although persuasive, “[t]he legislature has unequivocally provided that
unpublished opinions are not precedential”). However, respondent agrees that our standard
of review is de novo, citing In re Civil Commitment of Kropp for the proposition that this
court applies de novo review to a CAP’s application of law to the facts of a particular case.
895 N.W.2d 647, 650 (Minn. App. 2017), review denied (Minn. June 20, 2017).
The parties’ suggestion that this court should review the CAP’s ultimate decision
on the merits of respondent’s petition de novo is inconsistent with language in this court’s
published opinions indicating that we do not apply de novo review. But we recognize that
language in some of those opinions mentions de novo review. We therefore take this
opportunity to clarify our standard of review.5

4 See In re Civil Commitment of Kerkhoff, No. A18-1191, 2019 WL 178875, at *2 (Minn.
App. Jan. 14, 2019); Rousseau v. Ludeman, No. A07-1756, 2008 WL 570915, at *2 (Minn.
App. Mar. 4, 2008).
5 At oral argument, appellants noted that the appropriate standard of review is not disputed
by the parties and offered to provide supplemental briefing regarding that issue.
Identification of the appropriate standard of review is an issue in every appeal. See Minn.
R. Civ. App. P. 128.02, subd. 1(d) (providing that the formal brief of the appellant shall
contain an argument that includes “the contentions of the party with respect to the issues
presented” and “the applicable standard of appellate review for each issue”). After
consideration by the panel, we decline to order supplemental briefing for two reasons.
First, both parties included a discussion of the standard of review in the initial bri efing.
Second, we will not delay our decision in this expedited appeal for supplemental briefing.

7
We begin with a review of the relevant caselaw. In Johnson v. Noot, the Minnesota
Supreme Court reviewed a CAP’s decisions regarding requests for full discharge from two
individuals committed as mentally ill and dangerous. 323 N.W.2d 724, 725 (Minn. 1982);
see Minn. Stat. § 253B.18 (2018) (describing process for the civil commitment of persons
as mentally ill and dangerous); Minn. Stat. § 253B.18, subd. 7 (providing for provisional
discharge); Minn. Stat. § 253B.18, subd. 15 (providing for full discharge). The supreme
court described the applicable standard of review as follows:
The final issue we address is whether the [CAP’s]
findings in either 81 -460 or 81 -696 were clearly erroneous.
The function of this court is not to weigh the evidence as if
trying the matter de novo, but to determine from an
examination of the record if the evidence as a whole sustains
the [CAPs’] findings. If it does so, it is immaterial that the
record might also provide a reasonable basis for inferences and
findings to the contrary.

Johnson, 323 N.W.2d at 728 (emphasis added).
Later, in Jarvis v. Levine , this court applied the standard of review from Johnson
when reviewing a CAP’s order denying a request for transfer from a person committed as
mentally ill and dangerous. 364 N.W.2d 473, 473-74 (Minn. App. 1985); see Minn. Stat.
§ 253B.18, subd. 6 (providing for transfer). We explained the standard of review as
follows:
The [CAP] will be reversed only if [its] decision was clearly
erroneous. This court will not weigh the evidence as if trying
the matter de novo, but must examine the record to determine

See Minn. Stat. § 253B.23, subd. 7 (2018) (stating that commitment appeals must be heard
within 90 days after service of notice of appeal ); see also Minn. Stat. § 253D.03 (stating
that the provisions of Minn. Stat. § 253B.23 generally apply to commitments under MCTA:
SDP/SPP).

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whether “the evidence as a whole sustains the [CAPs’]
findings.”

Jarvis, 364 N.W.2d at 474 (emphasis added) (quoting Johnson, 323 N.W.2d at 728).
Then, i n Larson v. Jesson , this court indicated that the standard of review from
Jarvis applies when this court reviews a CAP’s order denying a petition for full or
provisional discharge by a person committed as a n SDP. 847 N.W.2d 531, 534 (Minn.
App. 2014). In Larson, the CAP dismissed the petition for discharge under Minn. R. Civ.
P. 41.02(b). Id. at 533-34. This court explained our standard of review as follows:
Larson challenges the [CAP’s] dismissal of his request
for a discharge or a provisional discharge from MSOP. As a
threshold matter, we must determine the appropriate standard
for our review. Generally, this court reviews decisions by a
[CAP] for clear error, “ examining the record to determine
whether the evidence as a w hole sustains the [CAPs’]
findings” and not “weighing the evidence as if trying the
matter de novo.” Jarvis v. Levine , 364 N.W.2d 473, 474
(Minn. App. 1985) (quotation omitted). But we hold that when
a [CAP] dismisses a petition under Minn. R. Civ. P. 41.02(b),
the appropriate standard of appellate review is de novo.

Id. at 534 (emphasis added) (citation omitted); see Minn. R. Civ. P. 41.02(b) (“After the
plaintiff has completed the presentation of evidence, the defendant . . . may move for a
dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to
relief.”); Coker v. Jesson, 831 N.W.2d 483 , 489-91 (Minn. 2013) (explaining applic ation
of Minn. R. Civ. P. 41.02(b) in a proceeding before a CAP).
Although this court stated, in Larson, that it generally will not apply de novo review
to a CAP’s decision on a petition for a reduction in custody, this court subsequently used
language that might suggest otherwise in Kropp. In that case, we reviewed a CAP’s order

9
granting a request for provisional discharge from a person committed as an SDP and an
SPP, and we described our standard of review in accordance with Larson as follows:
This court reviews a [CAP’s] decision for clear error,
examining the record to determine whether the evidence as a
whole sustains the [CAP’s] findings. In this review, we do not
reweigh the evidence as if trying the matter de novo . If the
evidence as a whole sustains the [CAP’s] findings, it is
immaterial that the record might also provide a reasonable
basis for inferences and findings to the contrary.

Kropp, 895 N.W.2d at 649-50 (emphasis added) (citations omitted). But we also included
the following language, which raises the possibility of de novo review: “However, this
court reviews de novo questions of statutory construction and the application of statutory
criteria to the facts found. ” Id. This court’s reference to de novo review of questions of
statutory construction is unremarkable. See In re Welfare of Children of J.L.G. , 924
N.W.2d 9, 14 (Minn. App. 2018) (“This court reviews questions of statutory interpretation
de novo.”). But this court’s reference to de novo revie w of the application of statutory
criteria to facts found could be read to suggest—for the first time—that we apply de novo
review to a CAP’s decision on the merits of a petition for a reduction in custody. For the
three reasons that follow, our statement in Kropp should not be read to endorse de novo
review.
First, such a reading would be inconsistent with our statement in Larson, as well as
the supreme court’s decision in Johnson on which it was based, that we generally do not
weigh the evidence as if trying the matter de novo when reviewing a CAP’s decision on a
petition for a reduction in custody. This court honored that principle when reviewing the
CAP’s decision in Kropp by deferring to the CAP’s reliance on certain testimony in support

10
of provisional discharge. 895 N.W.2d at 654-55. Such deference is inconsistent with de
novo review. See Black’s Law, supra, at 117 (defining “appeal de novo” as an appeal in
which the appellate court “reviews the evidence and law without deference to the [lower
tribunal’s] rulings”).
Second, although this court has cited the standard of review set forth in Kropp when
reviewing CAP decisions on the merits of petitions for a reduction in custody, its opinions
do not reflect de novo review . For example, in In re Civil Commitment of Fugelseth, this
court reviewed a CAP’s order for full discharge of a person committed as a n SDP and an
SPP. 907 N.W.2d 248, 250 (Minn. App. 2018), review denied (Minn. Apr. 17, 2018). This
court cited Kropp for the standard of review, stating:
This court applies a clear -error standard of review to a
[CAP’s] findings of fact by examining the record to determine
whether the evidence as a whole sustains the [CAP’s] findings.
In doing so, we do not reweigh the evidence, and it is
immaterial that the record might also provide a reasonable
basis for inferences and findings to the contrary. In addition,
we apply a de novo standard of review to issues of statutory
interpretation and to a [CAP’s] application of the law to the
facts of a particular case.

Id. at 253 (emphasis added) (quotations omitted).
Consistent with that statement, this court applied de novo review to a n issue of
statutory construction. Id. at 253-55. But when reviewing the CAP’s decision on the merits
of the petition for a reduction in custody, we deferred to the CAP’s asses sment of the
evidence, stating:
The commissioner further contends that, in lig ht of the
[CAP’s] erroneous understanding of the factual record, she did
prove by clear and convincing evidence that Fugelseth still is

11
dangerous to the public. This contention is contrary to the
principles that we do not reweigh the evidence and that it is
immaterial that the record might also provide a reasonable
basis for inferences and findings to the contrary. The question
is not whether the record could support a finding that Fugelseth
still is dangerous to the public; the question is w hether the
[CAP] clearly erred by finding that Fugelseth no longer is
dangerous to the public. The [CAP] considered conflicting
evidence and determined that Herbert’s testimony was entitled
to more weight than Kunkel’s testimony. This court generally
will defer to a district court’s evaluation of expert testimony.

Id. at 256 (first emphasis added) (quotations and citation omitted).
And in In re Civil Commitment of Duvall, another case involving review of a CAP’s
decision on a petition for a reduction in custody in the SDP/SPP context , we stated, “On
appeal, we review a [CAP ’s] order granting provision al discharge for clear error. ” 916
N.W.2d 887, 889-90 (Minn. App. 2018), review denied (Minn. Sept. 18, 2018). Although
we cited Kropp for the principle that our review of the application of statutory criteria to
facts found is de novo, we also said, “ We review a [CAP’s] decision for clear error and
examine the record to determine whether the evidence as a whole sustains the [CAP’s]
findings. We do not r eweigh the evidence .” Id. at 892-93 (emphasis added) (quotation
omitted). We then rejected argument s that the CAP should have give n more weight to
certain testimony and less weight to other testimony, as well as arguments that it failed to
consider certain evidence, reasoning, “In reviewing the [CAP’s] order, we will not reweigh
the evidence, and it is immaterial that the record might also provide a reasonable basis for
inferences and findings to the contrary.” Id. at 894 (quotation omitted).
This court’s refusal to reweigh the evidence before the CAP s in Fugelseth and
Duvall, as well as its statements that it was immaterial that the records might have provided

12
a reasonable basis for inference s and findings contrary to the CAP s’ decisions, is
inconsistent with de novo review, which would not have given any deference to the CAPs’
decisions. See Black’s Law, supra, at 117.
Third, although an appellate court generally reviews the application of statutory
criteria to facts found de novo, that principle is not applied to every application of statutory
criteria. For example, we do not apply de novo review to a district court’s child-custody
determination, which is based on an applica tion of statutory criteria. See Minn. Stat.
§ 518.17, subd. 3(a)(3) (2018) (“In determining custody, the court shall consider the best
interests of each child . . . .”); id., subd. 1(a) (2018) (“In evaluating the best interests of the
child for purposes o f determining issues of custody . . . , the court must consider and
evaluate all relevant factors, including” 12 statutorily enumerated factors). Instead, “[t]he
[district] court’s determination of the ultimate best -interests issue will be affirmed unless
it constitutes an abuse of the [district] court’s discretion or the [district] court rationale
suggests an erroneous application of law.” Vangsness v. Vangsness, 607 N.W.2d 468, 475
(Minn. App. 2000).6
Moreover, i n Kropp, this court relied on State v. Bunde, 556 N.W.2d 917, 918
(Minn. App. 1996), for the principle that the application of statutory criteria to facts found
is reviewed de novo. 895 N.W.2d at 650. Bunde is a case in which this court relied on a
statutory standard governing police conduct to determine whether an officer acted

6 At oral argument in this case, respondent suggested that the appropriate standard of
review might be “more of an abuse of discretion.” We leave open for another day the
question of whether the abuse-of-discretion standard should apply to a CAP’s evaluati on
of the factors that must be considered when ruling on a petition for a reduction in custody.

13
unlawfully by arresting a person outside of the officer’s jurisdiction. 556 N.W.2d at 918-
19. This court’s decision in Bunde relied, in turn, on State v. Favors, 482 N.W.2d 226, 227
(Minn. App. 1992), review denied (Minn. Mar. 26, 1992). Id. at 918. In Favors, this court
applied de novo review to determine whether an action was timely commenced under the
applicable statute of limitations. 482 N.W.2d at 227. Neither Bunde nor Favors dealt with
statutes that require the weighing of factors when determining whether statutory criteria
are met, as is the case here. See Minn. Stat. § 253D.29, subd. 1(b) (requiring consideration
of five factors when determining whether a transfer “is appropriate”).
For all of these reasons, we do not read Kropp to mean that this court applies de
novo review to a CAP’s decision on the merits of a petition for a reduction in custody ,
unless the CAP has ordered dismissal under Minn. R. Civ. P. 41.02(b). See Johnson, 323
N.W.2d at 728 (stating that “[t]he function of this court is not to weigh the evidence as if
trying the matter de novo”). Instead, we review such a decision for clear error, examining
the record to determine whether the evidence as a whole sustains the CAP’s findings. We
do not reweigh the evidence as if trying the matter de novo. If the evidence as a whole
sustains the CAP’s findings in support of its decision, it is immaterial that the record might
also provide a reasonable basis for inferences and findings to the contrary. In sum, we will
not reverse a CAP ’s decision on a petition for a reduction in custody so long as the
underlying findings are supported by the evidence as a whole.
II.
We now turn to appellant s’ argument that the CAP erred in concluding that
respondent met his burden to show that transfer to CPS should be granted.

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“A person who is committed as [an SDP] . . . shall not be transferred out of a secure
treatment facility unless the transfer is appropr iate. Transfer may be to other treatment
programs under the commissioner’s control.” Minn. Stat. § 253D.29, subd. 1(a). The
following factors must be considered when evaluating a transfer request:
(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). “A party seeking transfer under section 253D.29 must establish by a
preponderance of the evidence that the transfer is appropriate.” Minn. Stat. § 253D.28,
subd. 2(e).
In granting respondent’s request for transfer, the CAP explained,
The [CAP] has considered all the evidence presented in
this case. Dr. Tippett’s opinion is well -supported and the
[CAP] finds that CPS is the best facility to meet [respondent’s]
treatment needs. The need for security to accomplish
[respondent’s] continuing treatment is not needed at the same
level of his current facility and CPS w ill provide adequate
security. Although [ respondent] requires continued
institutionalization, he will progress in treatment with the
deinstitutionalization opportunities offere d at CPS.
Additionally the [CAP] finds that a transfer can be made with
a reasonable degree of safety for the public.7

7 We note that a lthough more detailed findings would have provided greater insight into
the CAP’s reasoning and are therefore preferred, the CAP’s findings are adequate to enable
review in this case under the standard set forth above.

15
Dr. Tippett provided the majority of the evidence supporting those findings. As to
that evidence, the record shows that Dr. Tippett interviewed respondent and used actuarial
risk tools to assess his risk of reoffending. Dr. Tippett did not diagnose respondent with a
sexual disorder.8 Dr. Tippett opined that “[respondent’s] sexual assault of two adolescent
females . . . is best accounted for by his personality disorder and chronic substance abuse.”
Dr. Tippett noted that respondent does not have “remaining treatme nt need in areas of
sexuality,” that he completed a full disclosure polygraph, which indicated no deception ,
and that he re ported 11 years of sobriety . Dr. Tippett was “struck with [respondent’s]
insight and [his] ability to self reflect.”
According to Dr. Tippett,
[Respondent] made the decision to disengage from treatment
and . . . remained heavily engaged in the therapeut ic
community and becoming a CREST guide, which is a conflict
resolution program. He also worked on a large -scale craft
project collaboratively with a number of other clients.

He was noted to speak up in community meetings to
counsel others to practice emo tional regulation and other . . .
prosocial management tools.

However, Dr. Tippett also recognized that “ [h]istorically [respondent] had great
difficulty following rules and policies and maintaining what we call behavioral control. As
he has progressed i n treatment he has demonstrated an increased ability to follow those

8 Respondent has been diagnosed with: antisocial personality disorder, posttraumatic stress
disorder (provisional), “[e] ncounter for mental -health services for perpetrator of
nonparental child sexual abuse,” cocaine-use disorder, alcohol-use disorder, cannabis-use
disorder, amphetamine -type substance-use disorder, and problems related to other legal
circumstances.

16
rules and understand why the procedures are there.” She testified that “[g]iven his lack of
time in the community in a constructive manner it will be very important for him to have a
slow and controlled reintegration into the community” and that she was “not aware of any
opportunities for reintegration work at ” his current treatment facility. Dr. Tippett opined
that respondent’s treatment needs can be met at CPS because “[i]t provides hi m with
continued inpatient intensive treatment for the factors which we have discussed . . . , but it
also adds in the more accountable and treatment savvy peers, prosocial group, as well as
reintegration possibilities as he progresses and does well.” She also opined that a transfer
to CPS can be accomplished with a reasonable degree of safety for the public.
The CAP obviously found Dr. Tippett’s opinion persuasive, and this court
“generally [defers] to a district court’s evaluation of expert testimony .” Fugelseth, 907
N.W.2d at 256 (quotation omitted). But we also examine the record to determine whether
the evidence as a whole sustains the CAP’s findings. We therefore cannot ignore evidence
from Dr. Tippett that speaks against transfer. For example, Dr. Tippett gave respondent a
score of six on the Static-2002R, which places him in the above-average risk category.
Dr. Tippett gave respondent a score of five on the Stati c-99R, which indicate s an above-
average risk for sexual reoffense when compared to a typical offender. Dr. Tippett agreed
that respondent’s treatment participation in th e past few years has been “on and off.”
Moreover, Dr. Tippett reported, “When looking at a transfer, of concern is [respondent’s]
propensity to break rules. The degree to which he has engaged in rule breaking behavior
has decreased over the years, although he is still given to difficulty in this area.” Dr. Tippett
testified that “there continue to be difficulties with intimacy and other things which we’ve

17
talked about, emotional regulation, which would necessitate further treatment.” She also
testified that “[respondent] tends to struggle with prosocial problem solving, both
historically and he still has difficulty currently.”
Other witnesses echoed the concerns raised by Dr. Tippett. For example, MSOP
Clinical Director Peter Puffer testified that the MSOP clinical leadership does not support
respondent’s request for transfer because he has issues with “mistrust ,” “sexuality,” and
“developing healthy appropriate relationships with other people,” and because he does not
demonstrate insight about “the dynamics that underlie the actual sexual abuse of other
people.” According to Puffer, respondent “is a Phase II client who has not demonstrated
actively that he has an understanding of why he committed the offenses that he committed.”
After interviewing respondent and reviewing his records, court-appointed examiner
Dr. Kenning d id not support the petition for transfer. Dr. Kenning was involved in
respondent’s initial commitment proceeding and has “k nown him for a long time.”
Dr. Kenning explained that respondent still needs the external controls, security, and
structure provided at his current treatment facility. Like Dr. Tippett, Dr. Kenning gave
respondent a score of six on the Static-2002R, which places him in the above-average risk
category. Dr. Kenning testified that respondent’s risk for recidivism is “pretty high,”
noting that he falls between “above average [and] well above average.”
As to Dr. Tippett’s acknowledgment that respondent’s participation in treatment has
been “on and off,” the record indicates that he participated in treatment from 2011 to 2014,
and then stopped attending. Dr. Kenning report ed that respondent “returned to groups in
April 2016 and by the second half of the year he was participating consistently. However,

18
he attended only individual therapy, refusing modules and core group meetings from
January 2017 to April 2017.” Respondent again stopped participating in treatment from
May 2017 until July 2018. Puffer testified, “[T]here’s a pattern of him attending groups
again somewhat sporadically and with varying levels of participation.” Puffer explained,
“For the period of time when [respondent] wasn’t attending, he wasn’t attending the six
hours of core groups or the modules. More recently he requested to not be placed in a
particular module that his treatment team had identified for him . He did not want to
attend.”
As to Dr. Tippett’s concern regar ding respondent’s history of violating program
rules, Dr. Kenning testified that he “continues to exhibit antisocial behavior,” “has a very
strong problem with rules and regulation s,” and has a “history of dysfunctional coping.”
Dr. Kenning also noted con cerns with respondent’s “grievance based thinking.” She
testified that he “has quite a collection of poor-me stories.” When asked to elaborate, she
explained, “Well, I think they’re the things that cause his wrangles with staff. He tends to
see himself as the person who’s poorly treated in those interactions and doesn’t seem to
have much insight into his contributions to those things.”
The record documents respondent’s issues with staff and peers. In February 2016,
respondent punched a peer for alleg edly grabbing one of his compact discs. In October
2016, respondent reportedly swore at staff. In April 2017, respondent verbally assaulted
one of his therapists. Respondent was upset because there was an error regarding one of
his offenses in a mental-health report. After he experienced difficulty trying to change the
report, respondent yelled homophobic slurs at the therapist who made the error .

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Dr. Kenning testified, “ [Respondent] has a long history of . . . reacting to things that he
considers to be errors in his report, so this [incident with the therapist] is not an isolated
incident; this has happened multiple times.”
When CPS Operations Manager Michelle Sexe was asked about the characteristics
of a patient who is successful at CPS, she responded,
[D]efinitely being a voice of the therapeutic community
meeting; having developed internal controls to follow the
rules; being able to confront their peers when they are not
following the rules, and if that does not work it would require
that they let staff know that another client is struggling;
working collaboratively with the—all treatment staff at CPS.

Sexe voiced concern regarding the transfer to CPS of any individual who has a history of
verbal aggression toward staff.
In sum, although the record supports the CAP’s finding that, in theory, respondent
will have deinstitutionalization opportunities at CPS ,9 it also shows that respondent’s
participation in treatment has been inconsistent, that he continues to have treatment needs
related to the antisocial personality d isorder that accounts for his sexual offenses, that he
has had difficulty complying with the rules and expectations of his current treatment
program, and that he has engaged in p hysically and verbally aggressive behavior. This
record does not support the CAP’s finding s that CPS is the best facility to meet
respondent’s needs, that less security is necessary to accomplish respondent’s continuing
treatment, that CPS will provide adequat e security, that respondent will progress in

9 Sexe testified that a Phase II client such as respondent may not go into the community
unless the CPS director were to depart from the program design.

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treatment at CPS, or that a transfer can be made with a reasonable degree of safety for the
public.
Again, this court generally defers to the CAP’s evaluation of expert testimony such
as Dr. Tippett’s. Fugelseth, 907 N.W.2d at 256 . But, as the supreme court noted in
Johnson, a reviewing court must “determine from an examination of the record if the
evidence as a whole sustains the [CAP’s] findings.” 323 N.W.2d at 728. And unlike other
cases in which this court has affirmed the CAP’s grant of a petition for a reduction in
custody, in this case, the evidence as a whole does not support the CAP’s findings. See
Duvall, 916 N.W.2d at 894 (noting that petitioner “ achieved the privileges of his current
treatment plan, maintained a community -based support system, acted in a leadership role
in the therapeutic community, and prepared for hi s transition into the community”);
Fugelseth, 907 N.W.2d at 256 (noting that the petitioner “has a low risk of recidivism, has
had privileges in the community on a regular basis without incident, has a strong support
network, and has completed all recommended treatment programming”).
D E C I S I O N
Because the evidence as a whole does not support the CAP’s findings, the CAP
erred by granting respondent’s request for transfer. We therefore reverse.
Reversed.