In the Matter of the Civil Commitment of: Rodney Jon Heginger.

This opinion will be unpublished and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
A19-0615

In the Matter of the Civil Commitment of: Rodney Jon Heginger.

Filed September 16, 2019
Affirmed
Ross, Judge

Commitment Appeal Panel
File No. AP18-9018

Keith Ellison, Attorney General, Ali P. Afsharjavan, Assistant Attorney General, St. Paul,
Minnesota (for appellant Minnesota Commissioner of Human Services)

Mark A. Ostrem, Olmsted County Attorney, Michael E. Davis, Senior Assistant County
Attorney, Rochester, Minnesota (for appellant Olmsted County)

Michael J. Biglow, Biglow Law Offices, Minneapolis, Minnesota (for respondent Rodney
Jon Heginger)

Considered and decided by Ross, Presiding Judge; Reilly, Judge; and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Sexually dangerous person Rodney Heginger is indeterminately civilly committed
to the Minnesota Sex Offender Program. The commitment appeal panel granted Heginger’s
petition for transfer to community preparation services after an expert testified that transfer
would best facilitate his continued treatment. The commissioner of human services appeals,
arguing that the panel’s factual findings on Heginger’s petition are inadequate for appellate
review and that the panel clearly erred by granting the petition. Because the panel’s
2
findings explain that, among other things, it credited the opinion of the expert who
supported Heginger’s transfer, the findings are sufficient for our review. Because the
record as a whole supports the panel’s decision that transfer is appropriate, we affirm.
FACTS
The district court civilly committed Rodney Heginger to the Minnesota Sex
Offender Program (MSOP) indeterminately in 2009 as a sexually dangerous person
following a series of sexually abusive offenses, including fondling foster siblings as a child
and repeatedly sexually abusing preteen girls as an adult.
Heginger responded positively to treatment, moving to phase two of the program in
2013. In May 2017, he petitioned for either a full or provisional discharge or for a
transfer to community preparation services. The special review board recommended that
Heginger’s petition be denied in full, reasoning that, although Heginger was a consistent
treatment participant and made progress, his petition was premature.
Heginger asked the commitment appeal panel to reject the board’s recommendation.
He withdrew his requests for full and provisional discharge and limited his request to a
transfer to community preparation services. Heginger relied principally on evidence from
Dr. Anne Pascucci, an expert risk assessor who unequivocally supported his request .
Dr. Pascucci had initially assessed Heginger’s risk in 2014 and was impressed by the
progress he made by December 2017. She opined that nearly all of Heginger’s
dynamic-need areas had been managed. She discussed his improvement in managing his
negative emotions, compulsive behavior, and deviant sexual interest s. She was persuaded
that Heginger had addressed his problems with social rejection by becoming a program
3
unit representative and engaging in peer-conflict resolution. She considered his successes
in vocational programming and money management to be protective factors. Dr. Pascucci
was also encouraged by Heginger’s age-appropriate relationship with an adult female and
his regular contact with his family. She concluded that Heginger is ready for placement at
community preparation services, where he can practice applying the skills he has developed
in a less restrictive environment.
The commissioner challenged Heginger’s evidence, presenting testimony f rom
Michelle Sexe, the community preparation services operations m anager, Christopher
Schiffer, the MSOP clinical court services director, and Dr. Elisa Carr, MSOP’s forensic
evaluator. Sexe explained that the community preparation services building is an unsecured
facility where Heginger would be outfitted with a GPS device and monitored with cameras.
Schiffer opined that Heginger’s transfer would be premature because he had not been
transparent about his sexual fantasies about children. Dr. Carr believed that transfer would
be inappropriate. She explained that her opinion rested more on Heginger’s static risk
factors (that is, his past criminal behavior) than his current circumstances.
The panel granted Heginger’s petition for transfer to community preparation
services. It found Dr. Pascucci’s opinion credible and supported by the evidence, and it
found that Heginger had shown by a preponderance of the evidence that his transfer was
appropriate.
The commissioner appeals.
4
D E C I S I O N
The commissioner raises two issues, arguing that the panel’s findings are
insufficient for appellate review and that the panel clearly erred by granting the transfer
petition. Neither argument is convincing.
I
We do not agree that the panel’s findings are insufficient for appellate review. When
determining whether a n order permits meaningful appellate review, we ask whether it
identifies the facts found to be true and upon which the decision is based. In re Civil
Commitment of Spicer, 853 N.W.2d 803, 811 (Minn. App. 2014).
The order passes this test. Its evidentiary and logical rationale is immediately
apparent. It credits Dr. Pascucci’s opinion that Heginger’s transfer to community
preparation services is the appropriate course for his treatment, and it explains why:
The [CAP] has considered all the evidence presented in
this case. Dr. Pascucci testified credibly and her opinion is
well-supported by the facts in this case. [Heginger] has made
substantial progress in treatment and has insight into his
treatment needs. Although he continues to have remaining
treatment needs, those treatment needs can be addressed at
CPS and the [CAP] finds that CPS is the best facility to meet
[Heginger’s] treatment needs. [Heginger’s] continued progress
in treatment is unlikely to change his static risk scores on
actuarial tools. Furthermore, Dr. Pascucci testified that
[Heginger] has protective factors to help mitigate his risk
factors. The [CAP] finds that the need for security to
accomplish [Heginger’s] continuing treatment can be provided
at CPS. Although [Heginger] requires continued
institutionalization, he will progress in treatment with the
deinstitutionalization opportunities offered at CPS. Although
the [CAP] heard testimony regarding [Heginger’s] need for
supervision, no evidence was presented that [Heginger]
presents a flight risk or may abscond and the [CAP] finds that
5
a transfer can be made with a reasonable degree of safety for
the public.

The panel’s findings sufficiently explain that the basis for its decisi on is Dr. Pascucci’s
opinion.
The commissioner contends that crediting Dr. Pascucci’s opinion is not sufficient
to meet the standard for particularized findings that we described in Spicer. The
commissioner’s argument takes language in Spicer out of context. In Spicer, we reviewed
a district court civil-commitment order in which the district court seemingly found two
experts entirely credible. Id. at 810–11. But crediting the experts’ opinions in their
entireties was illogical because the opinions contradicted each other and one suffered from
internal inconsistencie s. Id. We explained that we were “unable to determine which
portions of which experts’ opinions the district court relied on when making findings of
fact and conclusions of law.” Id. at 811. We reversed, reasoning that the district court
needed to comment separately on each expert opinion and discuss their relative credibility
to specifically find the facts that were in dispute. Id. at 810. This case does not present the
problem we faced in Spicer. The panel credited Dr. Pascucci’s opinion alone, and that
opinion unequivocally supports the panel’s decision. We have no difficulty understanding
the panel’s findings for our review.
II
We are also satisfied that the panel’s decision to grant Heginger’s transfer petition
was supported by the weight of the evidence, based on the panel’s credibility assessment.
We review the panel ’s transfer decision for clear error, determining whether the record
6
supports its findings. In re Civil Commitment of Edwards, __ N.W.2d __, __, 2019 WL
3294765, at *6 (Minn. App. July 22, 2019), pet. for review filed (Minn. Aug. 21, 2019).
We refrain from reweighing the evidence, we defer to the panel’s credibility findings, and
we will affirm the transfer decision if the evidence as a whole supports the findings. Id. at
*5–6.
Before determining whether to grant a petition for transfer to a less restrictive
setting, the panel must find by a preponderance of the evidence that transfer is appropriate
in light of five factors: the committed person’s clinical progress and treatment needs; the
need for security to the person’s continuing treatment; the need for institutionalization; the
best facility for the person’s needs; and the transfer’s impact on public safety. Minn. Stat.
§ 253D.29, subd. 1(b) (2018). Our review of the record satisfies us that the panel’s finding
that Heginger met his burden on these factors was sufficiently supported by the evidence
as a whole.
The commissioner points to evidence supporting a contrary conclusion on each of
the statutory factors. But the suggestion that “the record might also provide a reasonable
basis for inferences and findings” contrary to the panel’s findings is immaterial. Edwards,
2019 WL 3294765, at *5 (emphasis omitted) (quoting In re Civil Commitment of Fugelseth,
907 N.W.2d 248, 256 (Minn. App. 2018), review denied (Minn. Apr. 17, 2018)). We ask
only whether the panel clearly erred in its findings, deferring to the fact-finder’s evaluation
of expert testimony. Id. We recognize that the evidence suggesting that Heginger was not
entirely transparent about his deviant sexual interests and concerns about his criminal
history might have supported a less favorable finding about his reoffense risk. But these
7
facts face competing evidence that the panel found more persuasive. We will not reweigh
the evidence on appeal as if we sit as fact-finders. The record as a whole su pports the
panel’s finding that Heginger’s transfer to community preparation services is appropriate.
Affirmed.