In the Matter of the Civil Commitment of: Christopher Scott Malz.

This opinion will be unpublished and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
A19-0966

In the Matter of the Civil Commitment of: Christopher Scott Malz.

Filed December 16, 2019
Affirmed
Reyes, Judge

Blue Earth County District Court
File No. 07-PR-18-873

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

Keith Ellison, Attorney General, John D. Gross, Assistant Attorney General , St. Paul,
Minnesota; and

Pat McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent State)

Considered and decided by Florey, Presiding Judge; Reyes, Judge; and Smith, Tracy
M., Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this direct appeal from his indeterminate commitment as a sexually dangerous
person ( “SDP”) and a sexual psychopathic personality ( “SPP”), appellant argues that
(1) existing caselaw about risk assessments is outdated because it fails to acknowledge
recent improvements and should be overturned; (2) this record does not support committing

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appellant as an SDP or an SPP under current law ; and (3) the district court’s findings of
fact are insufficient to support his commitment. We affirm.
FACTS
Appellant Christopher Scott Malz has an extensive chemica l-dependency history
prior to 2002, out-of-the-home-placement history, and juvenile and adult criminal history.
He also struggles with a pornography addiction that includes child pornography and
erotica.
At the age of 17, appellant began living with 14-year-old M.B. The couple had three
children together, including a daughter, S.A.M. Appellant repeatedly sexually assaulted
M.B. and S.A.M. No charges were filed against appellant for his offenses against M.B.
Appellant began showing S.A.M. pornographic images when she was five years old.
His abuse progressed to fondling her, performing oral sex on her, forcing her to perform
oral sex on him, and eventually anally raping her. In total, appellant assaulted S.A.M.
anywhere from seven to 35 times. The State of Minnesota charged appellant with six first-
degree criminal -sexual-conduct counts for his offenses against S.A.M. A jury found
appellant guilty of all charges in 2003, resulting in a 144-month sentence.
Appellant has been in and out of outpatient sex-offender treatment since 2003. He
had intermittent participation in sex-offender treatment due to his expulsion for breaking
the rules by watching child pornography, having unsupervised contact with a minor female,
failing to register as a predatory offender, and spending time in local parks. As a result, he
had his release from prison revoked a number of times. Most recently, in 2017, the
Hearings and Release Unit terminated appellant’s release following the discovery of

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images and text files detai ling child erotica and pornography, as well as internet searches
for child pornography. A t several points during his sex -offender-treatment process, staff
opined that appellant presented a moderate to high level of risk for reoffense.
On May 1, 2018, Blue Earth County filed a petition to commit appellant as both an
SDP and an SPP. The district court held a hearing to determine whether to civilly commit
appellant as an SDP or an SPP. Three psychologists testified. Pursuant to Minn. Stat.
§ 253B.07, subd. 3 (2018), the district court appointed two psychologists, Drs. Marshall
and Kenning, as court examiners. The county retained Dr. Linderman to conduct a record
review and a prepetition-screening report. Dr. Marshall recommended civilly committing
appellant as both an SDP and an SPP. Drs. Linderman and Kenning testified that appellant
did not meet the criteria for civil commitment as either an SDP or an SPP.
The district court considered caselaw factors and conflicting expert testimony from
the three psychologists, who employed an array of actuarial and risk-assessment tools and
clinical judgment. The district court also conducted its own analysis and relied heavily on
additional factors identified by Dr. Marshall as having a high association with sex-offense
recidivism: sexual deviance, antisocial behavior, and supervision violations. The district
court determined that appellant met the statutory criteria for civil commitment as an SDP
and an SPP by clear and convincing evidence. As a result, the district court indeterminately
committed appellant to the Minnesota Sex Offender Program (MSOP). This appeal
follows.

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D E C I S I O N
I. We decline to adopt a new test and instead follow binding precedent.

Appellant urges us to adopt a new test deemphasizing caselaw factors in favor of
actuarial and risk -assessment tools. Appellant argues that req uiring experts to consider
caselaw factors forces them to engage in clinical judgment, which is less empirically valid
than actuarial and risk-assessment tools. Appellant also argues that experts should have
the flexibility to update the methodology of their risk assessments according to the newest
and most accurat e practices because static case law factors become outdated as
methodology develops. We re ject the argument that we should disregard precedential
caselaw.
The Minnesota Supreme Court recently reaffirmed its direction to district courts to
apply the Linehan factors1 and engage in a multi -factor analysis to determine whether a
person meets the elements of an SDP. In re Civil Commitment of Ince, 847 N.W.2d 13, 23
(Minn. 2014). This court “is bound by supreme court precedent.” State v. Curtis , 921
N.W.2d 342, 346 (Minn. 2018). “[T]he task of extending existing law falls to the supreme
court or the legislature, but it does not fall to this court.” Tereault v. Palmer, 413 N.W.2d
283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). The role of this court
is to correct errors made by the district court, not to change the law. Lake George Park,

1 See In re Linehan (Linehan III), 557 N.W.2d 171, 1 78, 189 (Minn. 1996), vacated and
remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d on remand, 594 N.W.2d 867 (Minn.
1999) (providing six factors for district courts to consider in analyzing whether a person
meets the criteria to be committed as an SDP).

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L.L.C. v. IBM Mid-Am. Emps. Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998),
review denied (Minn. June 17, 1998).
II. The record contains sufficient evidence to allow for meaningful appellate
review.

Appellant argues that the district court failed to explain why it found specific
evidence persuasive and failed to meaningfully tie its findings o f fact to conclusions of
law. Appellant’s argument lacks merit.
Particularized findings of fact are necessary to enable appellate review, to ensure
that the district court properly applied the law , and to assure the parties that the district
court fairly considered and decided the issues. See Reyes v. Schmidt, 403 N.W.2d 291, 293
(Minn. App. 1987). This court in Spicer identified three factors to consider in determining
whether we can undertake meaningful appellate review: (1) whether the district court ’s
findings merely recited witness testimony; (2) whether the district court’s findings were
conclusory; and (3) whether the district court meaningfully tied its findings to the ultimate
conclusions of law. In re Civil Commitment of Spicer , 853 N.W.2 d 803, 810 -11 (Minn.
App. 2014), review denied (Minn. Aug. 25, 2015).
First, the district court did not just recite testimony. Rather, the district court’s
findings of fact reveal a careful and thorough analysis of appellant’s individual history, the
caselaw factors, and the actuarial and risk -assessment tools. Second, the district court’s
findings were not conclusory because this court can “identify the facts that the district court
has determined to be true and the facts on which the district court’s decision is based.”
Spicer, 853 N.W.2d at 811 (citations omitted ). Finally, the district court ’s findings are

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meaningfully tied to its conclusions of law. For example, the district court reviewed
Dr. Marshall’s reasoning and explained why it agreed with her decision to weigh specific
factors more heavily than actuarial and risk-assessment results.
Appellant also challenges the district court’s analysis of the Linehan factors. The
supreme court cautioned that a district court simply reviewing the Linehan factors without
indicating the significance of each factor in its analysis does not allow for meaningful
appellate review. Ince, 847 N.W.2d at 24. Here, the district court addressed each Linehan
factor, commented on its relevance and persuasiveness, and compared the factors to the
results of the actuarial and risk assessments. We conclude that its findings are sufficiently
particularized to allow for meaningful appellate review.
III. Clear and convincing evidence supports the district court’s decision to commit
appellant as an SDP and an SPP.

Appellant contends that the state failed to prove by clear and convincing evidence
the basis for committing him because the more empirically valid caselaw and actuarial risk-
assessment tools do not show that he met the statutory elements for an SDP or an SPP. We
are not persuaded.
We undertake a de novo review to determine whether clear and convincing evidence
supports the district court’s conclusion that appellant meets the standards for commitment
as an SDP and an SPP. Id. at 23; Spicer, 853 N.W.2d at 807. We apply “a clear -error
standard of review to the district court’s findings of fact and review[] the record in the light
most favorable to the findings of fact.” Spicer, 853 N.W.2d at 807. Finally, w e defer to
the district court’s credibility determinations and its resolution of conflicting evidence. In

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re Knops, 536 N.W.2d 616, 620 (Minn. 1995). The district court may credit the testimony
of one expert witness over others. Minn. R. Civ. P. 52.01 (“[D]ue regard shall be given to
the opportunity of the trial court to judge the credibility of the witnesses.”); see Minn. Spec.
R. Commit. & Treat. Act 1(b) (noting that commitment rules suspend civil rule application
only to the extent commitment rules conflict with civil rules). The district court may also
weigh both actuarial and non-actuarial evidence and draw conclusions from that evidence,
so long as its conclusions are supported by the record. Ince, 847 N.W.2d at 23-24.
A. SDP

To commit a person as an SDP, the state must prove by clear and convincing
evidence that the person has (1) engaged in a course of har mful sexual conduct;
(2) 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), .07, subd. 3 (2018). Appellant only disputes the third element , which the supreme
court has interpreted to mean “highly likely” to reoffend. Linehan III, 557 N.W.2d at 180.
District courts must consider the six Linehan factors in their analysis of the third SDP
element:
(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 environ ment (cognitive and affective factors
which indicate that the person may be predisposed to cope with
stress in a violent or nonviolent manner); (e) the similarity of
the present or future context to those contexts in which the

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person has used violence in the past; and (f) the person’s record
with respect to sex therapy programs.

In re Linehan (Linehan I), 518 N.W.2d 609, 614 (Minn. 1994) . The supreme court also
encourages district courts to think more broadly and to consider and weigh any factors
important for predicting harmful sexual conduct. Ince, 847 N.W.2d at 23-24. We conclude
that the record supports t he district court’s analysis of the six Linehan factors, which
appellant does not challenge.
The district court discounted the actuarial and risk -assessment tools, but it did not
disregard them. More importantly, the fact that actuarial assessment tools suggested
appellant did not pose a high risk of reoffense is not dispositive. The Ince court affirmed
the district court’s decision to consider mo re than just actuarial and risk -assessment tools
by stating that “‘highly likely’ cannot be defined by a numeric value.” Ince, 847 N.W.2d
at 21, 23; see also In re Civil Commitment of Navratil, 799 N.W.2d 643, 649 (Minn. App.
2011) (affirming a district court’s discounting of risk-assessment tools in favor of other
factors), review denied (Minn. Aug. 24, 2011) . The district court properly engaged in a
multi-factor analysis in concluding that appellant met the third SDP element of “highly
likely” to reoffend. See Ince, 847 N.W.2d at 21.
The district court found Dr. Marshall’s opinion that appellant met the SDP factors
to be more persuasive than either Drs. Kenning or Linde rman because it agreed with
Dr. Marshall’s emphasis on the applicable caselaw factors. Furthermore, the district court
noted that it strongly considered appellant’s history of sexual offending, sexual deviance,
antisocial behavior, and poor history of complying with supervision. It explained why it

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placed greater weight on certain fac tors even if the actuarial and risk -assessment tools
considered them, noting that the tools failed to account adequately for individualized
circumstances. Furthermore, it discounted Dr. Kenning’s conclusion in part because she
testified that five of the six Linehan factors exacerbated appellant’s risk for reoffense, but
still concluded that appellant was not highly likely to reoffend. The district court disagreed
with the decision of Drs. Kenning and Linderman to place less importance on the caselaw
factors. The district court concluded that five of six Linehan factors suggested that
appellant is highly likely to reoffend. In sum, the record provides clear and convincing
evidence to support both the district court’s assessment of the Linehan factors and its
conclusion that appellant meets the criteria for commitment as an SDP.
B. SPP

Appellant also contends that there is insufficient evidence to commit him as an SPP.
We disagree.
To commit a person as an SPP, the state must prove by clear and convincing
evidence that the person (1) has such “conditions of emotional instability ,” impulsive
behavior, “lack of customary standards of good judgment ,” “failure to appreciate the
consequences of personal acts, or a combination of any of these condi tions, which render
the person irresponsible for personal conduct with respect to sexual matters ”; (2) has “a
habitual course of misconduct in sexual matters”; (3) has “an utter lack of power to control”
his sexual impulses; and (4) as a result , is dangerous to other persons. Minn. Stat.
§ 253D.02, subd. 15. Appellant only disputes only the third element.

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The supreme court and this court have identified numerous caselaw factors that help
clarify whether a person has an “utter lack of power to control” his sexual impulses. The
district court
considers the nature and frequency of the sexual assaults, the
degree of violence involved, the relationship [] between the
offender and the victims, the offender’s attitude and mood, the
offender’s medic al and family history, the results of
psychological and psychiatric testing and evaluation, and such
other factors that bear on the predatory sex impulse and the
lack of power to control it.

In re Blodgett , 510 N.W.2d 910, 915 (Minn. 1994). Other caselaw factors include the
person’s need for security, chemical-dependency issues, history of flight, and need for sex-
offender treatment. See In re Pirkl , 531 N.W.2d 902, 907 -08 (Minn. App. 1995), review
denied (Minn. Aug. 30, 1995); In re Irwin , 529 N.W.2d 366, 375 (Minn. App. 1995),
review denied (Minn. May 16, 1995); In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn.
App. 1994), review denied (Minn. Oct. 27, 1994).
The district court here considered the above caselaw factors and determined that
they supported the conclusion that appellant has an utter lack of power to control his sexual
impulses. The record establishes that appellant offended against two victims many times
and that the severity of his offenses increased over time. He has offended against people
in his family, including the mother of his daughter and his daughter. Appellant failed to
complete sex-offender treatment or abide by the conditions of his release. He also failed
to keep himself from engaging in h igh-risk behaviors that wo uld otherwise lead to
reoffense, such as viewing child pornography and having unsupervised contact with

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underage females. And, at the time of his sex -offense conviction, appellant threatened
suicide if not removed from the general prison population.
Importantly, appellant denied having a problem with impulse control, but testified
that he knew what he was doing was wrong yet still continued. Appellant also denied being
addicted to pornography, but admitted that he uses it as a coping mechanism despit e
acknowledging that he should avoid it because it played a part in his sex offenses.
Dr. Marshall testified that appellant met the “utter lack” element. The record provides clear
and convincing evidence to support the district court’s conclusion that appellant should be
committed as an SPP and as an SDP.
Affirmed.