In the Matter of the Civil Commitment of: Carl Joseph Vachon aka Carl William Huntress, Jr.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0945

In the Matter of the Civil Commitment of:
Carl Joseph Vachon aka Carl William Huntress, Jr.

Filed January 4, 2021
Affirmed
Johnson, Judge

Commitment Appeal Panel
File No. AP19-9156

Carl Joseph Vachon, St. Peter, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Drew D. Bredeson, Assistant Attorney General, St. Paul,
Minnesota (for respondent commissioner of Human Services)

Charles Hanson, Brown County Attorney, Jill M. Jensen, Deputy Brown County Attorney,
New Ulm, Minnesota (for respondent Brown County)

Considered and decided by Johnson, Pr esiding Judge; Larkin, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Carl Joseph Vachon (also known as Carl William Huntress Jr.) is civilly committed
as a sexually dangerous person and a sexual psychopathic personality. He petitioned for a
transfer. The special review board denied his petition. On rehearing and reconsideration,
the commitment appeal panel granted the commissioner of human services’ motion to
dismiss the petition. We conclude that the commitment appeal panel did not clearly err by

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finding that Vachon did not prove by a prepon derance of the evidence that a transfer is
appropriate. Therefore, we affirm.
FACTS
Vachon is a 67-year old man who is civ illy committed as a sexually dangerous
person (SDP) and a sexual psychopathic personality (SPP). Vachon has a history of sexual
misconduct that includes multiple criminal convictions and multiple terms of
imprisonment. His most recent conviction was in 1997, when he pleaded guilty in Brown
County to second-degree criminal sexual conduct and admitted to sexually assaulting a six-
year-old girl. In 2002, he was indeterminately committed by the Brown County District
Court. Since being committed, Vachon has received treatment in the Minnesota Sex
Offender Program (MSOP) at Moose Lake.
In October 2018, Vachon petitioned the sp ecial review board for a transfer to
MSOP’s Community Preparatio n Services program (CPS). The special review board
reviewed, among other things, a treatment repor t prepared by Vachon’s treatment team.
The treatment report indicated that Vachon had “made significant treatment progress
during the last year” but that “questions remain regarding whether sexual arousal to
prepubescent minors remains as a treatment concern” and “the degree to which arousal to
coercion and violence plays a role in his life.” The treatment report concluded that
Vachon’s petition for transfer is “premature” and recommended that Vachon remain in his
current treatment setting at MSOP.
The special review board also reviewed a sexual-violence risk assessment prepared
by a forensic evaluator, Elisa Carr. The repo rt noted Vachon’s progress in treatment but

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stated that his progress was in the “early stages.” Carr’s report also stated that Vachon still
needed to improve by sharing more information with his treatment providers, being more
transparent, developing better arousal-m anagement techniques , implementing such
techniques, and developing be tter self-management skills. Carr’s report stated that
Vachon’s needs “are best met within the secure perimeter, as the environment will afford
him the therapeutic support, safe ty, and structure required as he continues to integrate
treatment gains into his daily life” and that a change in his treatment team with a transfer
to CPS “could disrupt Mr. Vachon’s treatment progress.”
The special review panel recommended th at Vachon’s petition be denied on the
ground that transfer is premature. Vachon petitioned for rehearing and reconsideration by
the commitment appeal panel. The commitmen t appeal panel conducted an evidentiary
hearing in April 2020. Vachon called three witnesses: Kelly Meyer, an MSOP employee
who leads the arousal-management program; Amanda Powers, a clinical forensic
psychologist who was the court-appointed examiner; and himself.
Meyer testified that she has known Vachon fo r five years and that he had completed
two-thirds of MSOP’s arousal-management program, which is designed to address
patients’ sexual deviance and pr omote their interest in hea lthy sexuality. Meyer testified
that Vachon was “completing everything required of him” in the program and that he has
been improving in his transparency and openness. But Meyer noted that Vachon still had
work to do regarding his “ongoing minimizations and denials.”
Powers testified that Vachon is ma king progress in the arousal-management
program and that a transfer would be disruptive. Powers testified that Vachon still requires

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“intensive treatment intervention” and that he continues to be at a high risk to reoffend.
Powers testified that Vachon has not worked through his se xual-victimization issues and
that he needs to complete hi s treatment in MSOP at Moose Lake before he will be ready
for CPS.
Vachon testified about his upbringing and his difficult childhood. He testified that
he has improved with respect to transparency during his treatment. He testified that he
previously avoided his feelings but now understands that he must talk about his feelings to
overcome his shame, embarrassment, and feelings of inadequacy. Vachon testified that he
understands that he will need arousal-management therapy for the rest of his life.
After Vachon rested his case, the commi ssioner moved to dismiss the transfer
petition. The commitment appeal panel took the matter under advisement. In May 2020,
the commitment appeal panel issued a written order in which it granted the commissioner’s
motion to dismiss. Vachon appeals.
DECISION
Vachon argues that the commitment appeal panel erred by granting the
commissioner’s motion to dismiss.
A person who is committed as an SDP ma y petition the special review board for a
reduction in custody. Minn. Stat. § 253D.27, subd. 2 (2018 ). The term “reduction in
custody” encompasses a transfer to CPS. Id., subd. 1(b). If a committed person files a
petition for a reduction in custody, “[t]he specia l review board shall hold a hearing” and,
thereafter, “shall issue a report with written findings of fact and shall recommend denial or
approval of the petitio n to the judicial appeal panel.” Id., subds. 3(a), 4. If the special

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review board recommends denial of the petition, the commi tted person “may petition the
judicial appeal panel . . . for a rehearing and reconsideration of” the special review board’s
recommendation. Minn. Stat. § 253D.28, subd. 1(a) (2018). The judicial appeal panel
generally must hold a hearing within 180 days. Id., subd. 1(b).
A person who is committed as an SDP ma y be transferred to CPS only if “the
transfer is appropriate.” Minn. Stat. § 253D.29, subd. 1(a) (2018). In determining whether
a transfer is appropriate, the judicial appeal panel must consider five factors:
(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). If a committed person requests a transfer to CPS, he bears both “the burdens
of production and persuasion . . . at the hearing befo re the judicial appeal panel.” Foster
v. Jesson , 857 N.W.2d 545, 548 (Minn. App. 2014); see also Minn. Stat. § 253D.28,
subd. 2(e) (2018).
If the commissioner wishes to challenge a petitioner’s entitlement to relief after the
petitioner rests his case, the commissioner ma y move to dismiss the petition pursuant to
rule 41.02(b) of the rules of civil procedure. Coker v. Jesson , 831 N.W.2d 483, 489-91
(Minn. 2013); Foster, 857 N.W. at 548. That rule provides, in relevant part:

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After the plaintiff has completed the presentation of evidence,
the defendant, without waiving th e right to offe r evidence in
the event the motion is not granted, may move for a dismissal
on the ground that upon the facts and the law, the plaintiff has
shown no right to relief.

Minn. R. Civ. P. 41.02(b). Because the committed person bears the burden of persuasion,
the commitment appeal panel is not required to view his evidence in a light most favorable
to him when considering a motion to dismiss pursuant to rule 41. Foster, 857 N.W.2d at
548. Accordingly, this court applies a clea r-error standard of review to a commitment
appeal panel’s grant of a rule 41.02(b) mo tion to dismiss a request for a transfer. Id. In
applying that standard, we “examin[e] the re cord to determine whet her the evidence as a
whole sustains the appeal panel[’]s findings.” Larson v. Jesson , 847 N.W.2d 531, 534
(Minn. App. 2014) (quotations omitted).
In this case, the commitment appeal pa nel addressed each of the five statutory
factors. The commitment appeal panel reasone d that the first factor supports transfer
because Vachon “has been ma king significant progress in tr eatment” and his “overall
engagement and clinical progress in treatment has experienced marked improvement.” The
commitment appeal reasoned that the second factor supports transfer because Vachon
“does not need the current level of security to accomplish continuing treatment.” But the
commitment appeal panel reasoned that the thir d factor does not support transfer because
Vachon “still requires the current level of institutionalization and structure.” The
commitment appeal panel reasoned that the fourth factor does not support transfer because
“CPS is not the best facility to meet his current treatment needs” and Vachon “still requires
the current level of institutionalization and structure.” The commitment appeal panel

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reasoned that the fifth factor does not support transfer because Vachon’s “unmitigated risk
to reoffend” means that “transfer cannot be accomplished . . . with a reasonable degree of
safety for the public.”
The commitment appeal panel conclude d that, overall, Vachon “failed to
demonstrate by a preponderance of the evidence that transfer to a less restrictive facility is
appropriate at this time.” The commitment appeal panel commented that Vachon “has
lowered his treatment interfering factors and developed positive coping skills, but now . . .
has some hard work to do in Phase II of the sex offender treatment at MSOP.” Finally, the
commitment appeal panel expressed its hope that Vachon “will not become discouraged”
but, rather, “will keep on the positive treatment trajectory that Dr. Carr noted.”
Vachon’s argument has three parts. First, he contends that the record does not
sustain the findings of the commitment appeal panel with respect to the five statutory
factors. Because the commitment appeal pane l reasoned that the first and second factors
support transfer, we focus on the remaining fa ctors. Contrary to Vachon’s contentions,
there is evidence in the record that supports the panel’s reasoning with respect to the third
and fourth factors. Powers testified that Vachon would receive more appropriate treatment
and supervision in his current treatment setting and that he continues to need such
treatment. Specifically, Powers testified th at Vachon’s current stage of progress is
inconsistent with being ready for CPS, and she testified further that Vachon needs to be in
a structured environment when going through the arousal-management program.
Furthermore, there is evidence in the record that supports the panel’s reasoning with respect
to the fifth factor. The sexual-violence risk assessment stated that Vachon would have a

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higher risk for sexually re-o ffending than the average offe nder, which supports a finding
that a transfer could not be accomplished with a reasonable degree of safety for the public.
Second, Vachon contends that the commi tment appeal panel placed too much
weight on static risk factors, which he is unable to change through therapy, when it stated
that he has an “unmitigated risk to reoffend.” The panel’s order states that it received
Carr’s risk assessment as an exhibit, but the order does not discuss the assessment in detail,
let alone refer to static factors. The panel’s statement concerning “unmitigated” risk could
just as well refer to dynamic factors. There is no indication in the panel’s order that it
clearly erred by placing too much emphasis on the evidence of Vachon’s static risk factors.
Third, Vachon contends that the evid ence as a whole does not support the
commitment appeal panel’s orde r and that he satisfied his burden of persuasion on the
ultimate issue. Vachon ’s multi-faceted challenge to the panel’s findings essentially asks
this court to reweigh the evidence and sec ond-guess the factfinder’s assessment of the
evidence, which is inconsistent with the applicable clear-erro r standard of review. Also,
Vachon was the only witness at the hearing who testified that transfer is appropriate.
Powers opined that transfer is not appropriate at this time and provided detailed testimony
that is consistent with her opinion. In light of all of the evidence, the commitment appeal
panel did not clearly err by finding that Vachon did not satisfy his burden of persuasion.
In sum, the commitment appeal panel did not err by granting the commissioner’s
motion to dismiss Vachon’s petition for transfer.
Affirmed.