In the Matter of the Civil Commitment of: Reginald Eddie McKinley.

This opinion will be unpublished and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
A20-0810

In the Matter of the Civil Commitment of:
Reginald Eddie McKinley.

Filed November 9, 2020
Affirmed
Segal, Chief Judge

Commitment Appeal Panel
File No. AP19-9114

Kathleen K. Rauenhorst, Ra uenhorst & Associate, P.A., Roseville, Minnesota (for
appellant Reginald Eddie McKinley)

Keith Ellison, Attorney Genera l, Molly Beckius, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

John J. Choi, Ramsey Coun ty Attorney, Timothy Carey, Assistant County Attorney,
St. Paul, Minnesota (for respondent Ramsey County)

Considered and decided by Segal, Chief Judge; Hooten, Judge; and Gaïtas, Judge.
U N P U B L I S H E D O P I N I O N
SEGAL, Chief Judge
Appellant challenges the denial of his petition for a provisional or full discharge
from his indeterminate civil commitment to the Minnesota Sex Offender Program as a
sexually dangerous person. Be cause appellant failed to make out a prima facie case to
support his petition, we affirm.

2
FACTS
Appellant Reginald Eddie Mc Kinley committed a series of violent sexual assaults.
McKinley was committed in 2008 on an indeterminate basis to the Minnesota Sex Offender
Program (MSOP) as a sexually dangerous person (SDP). McKinley appealed the
commitment and this court affirmed.1 In re Civil Commitment of McKinley, No. A08-2062,
2009 WL 1182545 (Minn. App. May 5, 2009), review denied (Minn. Jun. 30, 2009).
McKinley was transferred to the MSOP before he had co mpleted his prison term.
In March 2009, McKinley was sent back to prison for possessing homemade alcohol. He
was returned to the MSOP in September 2009. By 20 13, McKinley had advanced from
Phase I to Phase II of the three phases of treatment. In November 2017, however,
McKinley stopped meaningful pa rticipation in treatment. In December 2017, McKinley
was accused of assaulting his roommate and, in January 2018, he was sent back to prison
because he was not participating in treatment. McKinley’s prison sentence expired six
months later and he was returned to the MSOP where he, again, refused to participate in
treatment.
In July 2018, McKinley petitioned the Special Review Board (SRB) for a transfer
or a provisional or full discharge from the MSOP. McKinley provided the SRB with a
written statement asserting that he did not have a sexual disorder, that the existing
diagnoses of him were incorrect or stale or both, and that he was not dangerous to the

1 In addition, this court had previously affirmed his most recent criminal conviction for the
sexual assault of an eight-year-old victim. State v. McKinley, No. C7-00-1263, 2001 WL
506530 (Minn. App. May 15, 2001).

3
public. After a hearing, the SRB recommende d denying McKinley’s requests for relief.
McKinley then sought review by the Commitment Appeal Panel (CAP).
The CAP-appointed psychologist who ev aluated McKinley prepared a 37-page
report diagnosing McKinley with five personality disorders: (a) other specified paraphilic
disorder (rape/non-consensual females) in a controlled environment; (b) three “severe”
disorders related to McKinley’s abuse of chemicals, each of which is in sustained remission
while he is in a controlled environment; and (c) other specified personality disorder with
antisocial and narcissistic features. The report notes that McKinley has failed to participate
in treatment since 2017 and “is adamant that he no longer is in need of any form of
treatment, especially sex offender treatment.” The report goes on to state that
[McKinley] has . . . demonstrated and articulated that he is not
open to additional sex offender or chemical dependency
treatment despite clearly demo nstrated continued treatment
need areas; . . . failed to fully understand his sexual offense
cycle and dynamics; and . . . fa iled to generate a relapse
prevention plan or provisio nal discharge plan despite
petitioning for release from MSOP and understanding the
requirements of such, including the basic necessities of
treatment participation, rela pse prevention plans, and the
importance and necessity of MSOP-approved relapse and
discharge plans.

The evaluation concludes: “The undersigned does not support either a [t]ransfer to
[Community Preparation Services, a less st ructured treatment program], provisional
discharge, or discharge from Mr. McKinley’s commitment as SDP. . . . [His] risk of sexual
recidivism is in the Above Average to Well Above Average range.”

4
At the hearing before the CAP, McKinley withdrew his request for a transfer. As
exhibits, McKinley submitted the evaluation a nd the written statement he had previously
submitted to the SRB. In his testimony, McKinley disputed the evaluator’s diagnosis and
claimed that he no longer needed treatment. He also argued that, at his age of 62, he was
no longer dangerous. With regard to a provisional discharge plan, McKinley testified that
he wanted to start a painting business and live with a sister or a friend. McKinley failed to
provide any clinical opinions in support of his petition.
At the close of McKinley’s case, the Commissioner of Human Services moved the
CAP, under Minn. R. Civ. P. 41.02(b), to dismiss McKinley’s petition on the grounds that
he failed to make out a prima facie case. Ramsey County joined the motion. The CAP
granted the joint motion to di smiss McKinley’s petition, ruling that he failed to produce
competent evidence sufficient to make out a prima facie case for either full or provisional
discharge. McKinley appeals.
D E C I S I O N
In an appeal before the CAP, the Minn esota Supreme Court has made it clear that
“the committed person bears the burden of going forward with the evidence, which means
presenting a prima facie case with competent ev idence to show that the person is entitled
to the requested relief.” Coker v. Jesson , 831 N.W.2d 483, 48 5-86 (Minn. 2013)
(quotations, citations, and footnote omitted); see also Larson v. Jesson, 847 N.W.2d 531,
535 (Minn. App. 2014). The burden is one of production. Coker, 831 N.W.2d at 485-86.
Only if the committed person satisfies this burden of production, does the party opposing

5
the petition need to come forward with clear and convincing evidence that the discharge or
provisional discharge should be denied. Id.
If the committed person fails to make out a prima facie case, it is appropriate to
dismiss the petition at the close of the comm itted person’s case under Minn. R. Civ. P.
41.02(b). Coker, 831 N.W.2d at 488; Larson, 847 N.W.2d at 535. “[W]hen a judicial
appeal panel dismisses a petition under Minn. R. Civ. P. 41.02(b), the appropriate standard
of appellate review is de novo.” Larson, 847 N.W.2d at 534.
I.
We turn first to the issue of a provisional discharge. The relevant factors to consider
in evaluating a petition for a provisional discharge of a person committed as an SDP are:
(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
will provide a reasonable degree of protection to the public and
will enable the committed person to adjust successfully to the
community.

In re Civil Commitment of Kropp, 895 N.W.2d 647, 650 (Minn. App. 2017) (quoting Minn.
Stat. § 253D.30, subd. 1(b) (2016)), review denied (Minn. June 20, 2017). To withstand a
motion to dismiss a petition for failure to present a prima facie case, the committed person
must provide competent evidence on both factors. Coker, 831 N.W.2d at 490-91.
On the first factor, the ne ed for ongoing treatment, McKinley’s evidence consisted
only of his own opinion that his diagnoses were not correct and that he was not in need of

6
treatment. The CAP characterized McKinley ’s evidence, we believe correctly, as
conclusory and unsupported. Conclusory allegations are insufficient to make out a prima
facie case. In re Civil Commitment of Poole , 921 N.W.2d 62, 68-69 (M inn. App. 2018).
Thus, the dismissal can be affirm ed for failing to make out a prima facie case on the first
factor.
We also conclude that McKinley failed to produce competent evidence with regard
to the second factor, whether the committed person’s proposed provisional discharge plan
“will provide a reasonable degree of protection to the public and will enable the committed
person to adjust successfully to the community.” Minn. Stat. § 253D.30, subd. 1(b).
Providing “a provisional discharge plan is a necessary step before [a CAP can] even begin
to consider a provisional discharge.” Larson, 847 N.W.2d at 536.
Similar to his evidence on the first facto r, McKinley’s evidence on this factor
consisted only of his own testimony about starting a painting business and living with his
sister or a friend. He put forward no evidence, clinical or otherwise, to address either public
safety or a plan for successful adjustment. Moreover, as concluded in the evaluator’s
report, McKinley failed to participate in the very treatment that might allow him to better
control his impulses. For example, the evaluator noted that the use of alcohol or drugs was
a factor in the sexual assaults that caused his commitment. Yet, the records indicate that
“he has yet to discuss the relationship of his chemical use with that of his sexual offending
behavior” and “is not open to additional . . . chemical dependency treatment.”

7
We thus conclude that McKinley failed to satisfy his burden of producing competent
evidence on either factor to be considered in granting a petition for a provisional discharge
and the CAP did not err in granting the motion to dismiss his petition.
II.
Because “the criteria for a provisional disc harge are more lenien t than the criteria
for a [full] discharge,” a failure to make out a prima facie case for a provisional discharge
is fatal to a petition for a full discharge. Larson, 847 N.W.2d at 535-36. As such, we do
not need to separately address McKinley’s appeal of the dismissal of his petition for a full
discharge.
Affirmed.