In the Matter of the Civil Commitment of: Brad Ronald Stevens.

This opinion is nonprecedential except as provided by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
A21-0270

In the Matter of the Civil Commitment of: Brad Ronald Stevens.

Filed August 30, 2021
Affirmed
Reyes, Judge

Commitment Appeal Panel
File No. AP19-9157

Brad Ronald Stevens, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Emily B. Anderson, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Stephen F. O’Keefe, Goodhue County Attorney, Erin L. Kuester, Assistant County
Attorney, Red Wing, Minnesota (for respondent Goodhue County)

Considered and decided by Reyes, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant argues that a Commitment Appeal Panel (the CAP)1 erred by dismissing
his petition for provisional discharge or full discharge from civil commitment as a sexually
dangerous person (SDP) to the Minnesota Sex Offender Program (MSOP) . He further

1 We refer to the entity formerly known as the supreme court appeal panel, or statutorily as
the judicial appeal panel, as the CAP. See Minn. Stat. § 253D.28, subd. 1(a) (2020 )
(providing for review by “the judicial appeal panel established under section 253B.19,
subdivision 1”).
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argues that the CAP lacked subject-matter jurisdiction over this case and that he received
ineffective assistance of counsel. We affirm.
FACTS
Appellant Brad Ronald Stevens was indeterminately civilly committed as an SDP
in 2005 following several sexual -assault convictions between 1993 and 2003. In re
Commitment of Stevens , No. A15 -2054, 2016 WL 3376062, at *1 (Minn. App. June 20,
2016). When appellant failed to participate in sex-offender treatment, he was incarcerated.
He returned to the MSOP in 2014 when his criminal sentence expired.
In September 2018, a ppellant petitioned the Special Review Board (SRB) for a
transfer to community preparation services , provisional discharge, or full discharge from
his civil commitment . Respondents Minnesota Commis sioner of Human Services and
Goodhue County opposed appellant’s petition. In October 2019, the SRB recommended
that appellant’s petition be denied . The next month, appellant petitioned the CAP for
rehearing and reconsideration of his provisional-discharge and discharge petitions. Due to
delays caused by the COVID-19 pandemic, the CAP held a first-phase hearing on October
2 and 9, 2020. With the assistance of counsel, appellant submitted hundreds of pages of
materials and called three witnesses at the first-phase hearing.
Appellant submitted a self-authored “SRB report.” Much of this report consists of
appellant’s legal and factual arguments, including assertions that he engages in prosocial
behavior, does not require treatment, participates in Scientology courses instead of
MSOP’s treatment program, and does not suffer from a mental illness or sexual disorder.
The exhibits attached to appellant’s SRB report include: (1) records from his clinical
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supervisor, social worker Nicole Vaino, and his MSOP unit supervisor, Brian Ninneman,
recounting appellant’s good behavior; (2) records showing appellant’s progress in the Five
Tier Program, a new MSOP program which rewards good behavior; (3) treatment records
showing appellant’s participation in some individual treatment; and (4) various
psychological examinations and reports.
The psychological evaluations attached to appellant’s SRB report show that
clinicians at MSOP diagnosed him with other specified paraphilic disorder (OSPD), other
specified personality disorder with antisocial and narcissistic traits, and alcohol-, cannabis-
and cocaine-use disorders. One evaluator, Dr. Robert Riedel, concluded in his 2016 report
that appellant had a low likelihood of reoffending. In an updated report in 2017, Dr. Riedel
notes that appellant has a “five -year recidivism rate of 10.1” which is “above average for
Minnesota released sex offenders,” but appellant could not be considered “likely” or
“highly likely” to reoffend. Dr. Riedel rejected a full discharge but supported provisional
discharge.
Aside from his SRB report, a ppellant submitted the affidavit of Dr. Frederick
Winsmann. Dr. Winsmann states that an OSPD diagnosis, absent a specifier, is not a valid
mental disorder. Dr. Winsmann opines that other diagnoses, such as “personality disorder
not otherwise specified” with what Dr. Winsmann describes as “ad hoc variations of
behaviors,” should likewise not be accepted.
Appellant also submitted to the CAP an up dated self -authored SRB report,
discharge plan, and provisional discharge plan, all dated September 8, 2020 . The CAP
accepted the updated SRB report but did not receive the discharge plan or provisional -
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discharge plan into evidence. Finally, a ppellant submitted letters of support from his
relatives and a member of the Church of Scientology.
Appellant c alled three witnesses: MSOP C linical Director Katherine McDowell,
Mr. Ninneman, and court-appointed examiner Dr. Christine Bowerman.
Ms. McDowell testified that appellant refused to participate in group treatment and
that appellant had not “participated [in treatment] in a manner that would suggest progress
towards amenability to treatment needs.”
Mr. Ninneman testified that he supervised the unit where appellant lived and that
appellant displayed prosocial beh avior, was a positive influence, achieved tier five , the
highest tier, on MSOP’s Five Tier program, and helped with conflict resolution on the unit.
Dr. Bowerman testified to the followi ng: that appellant’s treatment needs include
identifying dynamic risk factors;2 that appellant’s refusal to participate in treatment limits
the information available to determine whether his dynamic risk factors have increased or
decreased over time; that she diagnosed appellant with narcissistic personality disorder
with antisocial features, but not a sexual disorder; that appellant has not addressed his risk
factors sufficiently to justify reduction in c ustody; and that appellant’s proposed
provisional-discharge plan was “almost verbatim” the standard provisional-discharge-plan
conditions and would not sufficiently protect the public.

2 Ms. McDowell explained that dynamic risk factors are those that can change over time,
such as social network, living circumstances, commitment to work, and involvement in
leisure activities. Static risk factors are those that a person cannot change, such as offense
history and past behavior. And protective factors are those that reduce the person’s overall
risk.
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At the conclusion of appellant’s evidence, respondents moved to dismiss appellant’s
petition under Minn. R. Civ. P. 41.02(b), arguing that he failed to establish a prima facie
case for provisional discharge or full discharge. The CAP granted respondents’ motion to
dismiss. This appeal follows.
DECISION
I. The CAP has subject-matter jurisdiction over this matter.
Appellant argues that the CAP lacked subject -matter jurisdiction over this case
because he no longer has a mental illness. We disagree.
A tribunal has subject -matter jurisdiction if it has the “authority to hear and
determine a particular class of actions” and “the particular issues the court assume s to
decide.” Irwin v. Goodno, 686 N.W.2d 878, 880 (Minn. App. 2004) (quotations omitted)
(concluding CAP erred by dismissing committed person’s petition for lack of subject -
matter jurisdiction). We review de novo whether a tribunal has subject-matter jurisdiction.
Id.
The CAP is authorized by statute to hear petitions of involuntarily committed
persons for rehearing and reconsideration of the SRB’s recommendations on reduction of
custody petitions. See Minn. Stat. § 253D.27-.31 (2020). Appellant’s petition to the CAP
as an involuntarily committed person for rehearing and reconsideration of the SRB’s
recommendation and the particular arguments he raises regarding provisional discharge
and full discharge fall specifically within that statutory authority. And the CAP’s statutory
authority enables it to determine whether a committed person ’s status, regardless of
whether the person has a validly diagnosed mental illness, warrants reduction in custody.
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Minn. Stat. §§ 253D.29, subd. 1(a), .30, subd. 1(a), & .31. Therefore, the CAP had subject-
matter jurisdiction to consider this type of action and these particular issues.
II. Standard of review

A person civilly committed as an SDP may seek a reduction in custody by
petitioning for transfer, provisional dis charge, or full discharge. Minn. Stat. § 253D.29-
.31 (2020). The person first files a petition with the SRB, which conducts a hearing and
issues a recommendation to the CAP. Minn. Stat. § 253D.27, subd. 2 (2020). The person
may seek rehearing and recon sideration of the SRB’s recommendation by petitioning the
CAP. Minn. Stat. § 253D.28, subd. 1 (2020). CAP hearings typically proceed in two
stages. The CAP holds a first -phase hearing during which the civilly committed person
bears the burden of production of “presenting a prima facie case with competent evidence
to show that the person is entitled to” discharge or provisional discharge. Larson v. Jesson,
847 N.W.2d 531, 535 (Minn. App. 2014) (quotation omitted). To make a prima facie case,
the petitioner must produce “ sufficient, competent evidence that, if proven, would entitle
the petitioner to [the] relief” he seeks. Coker v. Jesson, 831 N.W.2d 483, 485 -86 (Minn.
2013). If the petitioner satisfies that burden, the CAP next holds a second -phase hearing
at which the respondent bears the burden of proving “by clear and convincing evidence
that the discharge or provisional discharge should be denied.” Id. (quotation omitted).
After the first-phase hearing, the respondent may move to dismiss the petition under
Minn. R. Civ. P. 41.02(b) if it believes that the petitioner has not made a prima facie case
for relief. Id. In considering a motion to dismiss under rule 41.02(b), the CAP may not
weigh evidence or make credibility assessments. Id. It must view the evidence in the light
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most favorable to the petitioner. Id. However, “[c]onclusory assertions by a committed
person,” standing alone, are insufficient to avoid dismissal under rule 41.02(b). In re Civil
Commitment of Poole, 921 N.W.2d 62, 69 (Minn. App. 2018), review denied (Minn. Jan.
15, 2019). This court reviews de novo the CAP’s dismissal of a full -discharge or
provisional-discharge petition. Id.
III. The CAP did not err by dismissing appellant’s petition for provisional
discharge.

Appellant argues that he provided sufficient evidence that, if proved, would make a
prima facie case that he is entitled to provisional discharge and asserts that the CAP erred
by failing to view his evidence in the light most favorable to him. We disagree.
“A civilly committed person shall not be provisionally discharged unless [he] is
capable of making an acceptable adjustment to open society.” Minn. Stat. § 253D.30, subd.
1(a). Two factors inform the CAP’s decision whether to grant provisional discharge:
(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 discha rge plan
will provide a reasonable degree of protection to the public
and will enable the committed person to adjust successfully to
the community.

Id., subd. 2(b) (emphasis added).
A. Need for treatment and supervision
Here, appellant submitted no evidence that outpatient treatment can meet his needs.
It is undisputed that appellant has not participated in sex-offender treatment. Additionally,
he is diagnosed with narcissistic personality disorder , which contributed to his sexual -
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offending behavior. Dr. Bowerman testified that appellant needs inpatient treatment and
supervision to discern and address his treatment needs, that the record contains no evidence
that outpatient treatment would adequately meet appellant’s needs, and that treatment in a
secure setting is the most appropriate treatment option for appellant.
Appellant argues that the record demonstrates his present prosocial mental status
and good behavior. We commend appellant for his achievements and good behavior while
at MSOP. But general good behavior alone does not satisfy appellant’s burden , which is
to present evidence demonstrating that he no longer needs treatment and supervision in his
current setting . The record contains no evidence that appellant has identified his risk
factors or accepted them as such, let alone obtained and progressed in treatment for them.
Rather, both Dr. Bowerman and Ms. McDowell testified that appellant remains in need of
treatment and supervision.
Appellant argues that he engages in alternative treatment, including meeting
individually with a primary therapist , and takes Scientology courses. But nothing in the
individual-therapy records indicates that appellant no longer needs treatment in his current
setting. To the contrary, his MSOP therapists conclude that he needs further treatment in
his current setting. And appellant’s uncorroborated, conclusory assertion that Scientology
courses address his risk factors cannot satisfy his burden. Poole, 921 N.W.2d at 69.
Relying on Dr. Winsmann’s affidavit stating that OSPD without specifier and
personality disorder without specifier are not valid diagnoses, a ppellant argues that he no
longer needs treatment because he does not have a mental or sexual disorder. But
Dr. Bowerman diagnosed appellant with narcissistic personality disorder, which she
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opined contributed to his sexual offending in the past and remains an issue for appe llant.
Dr. Winsmann’s affidavit does not address this diagnosis. Thus, even accepting Dr.
Winsmann’s affidavit, the record does not support appellant’s argument that he does not
have a mental or sexual disorder.
Finally, appellant argues that the CAP failed to view the evidence in the light most
favorable to him. Specifically, he argues that the CAP should have accepted Dr. Riedel’s
report and Mr. Ninneman’s testimony. But even accepting their testimony, neither one
addressed the relevant factors that the CAP must consider for determining whether to grant
provisional discharge or full discharge. We therefore conclude that the CAP did not err by
determining that appellant failed to make a prima facie case that he no longer needs
treatment and supervision.
B. Provisional-discharge plan
Because a prima facie case for a provisional discharge must address both factors of
Minn. Stat. § 253D.30, subd. 1(b), appellant’s failure to make a prima facie case on the
first factor is fatal to his petition for provisional discharge. In the interest of completeness,
however, we address the second factor. See In re Welfare of Children of M.L.S. , ___
N.W.2d. ___, ___ (Minn. App. Jun. 28, 2021) (addressing question in interests of
completeness); see generally Minn. R. Civ. App. P. 103.04 (allowing appell ate court to
address questions in interest of justice).
Here, Dr. Bowerman testified that appellant’s provisional-discharge plan would not
provide sufficient protection to the public. There is no evidence to counter
Dr. Bowerman’s testimony on this point. No other witness opined on this matter, and
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appellant’s conclusory statements to the contrary cannot satisfy his burden. Poole, 921
N.W.2d at 69. A ppellant did not offer an outpatient treatment plan as part of his
provisional-discharge plan. Similarly, he offered no evidence that the behaviors making
him dangerous to the public have been reduced. We therefore conclude that appellant
failed to carry his burden to provide evidence that, if proved, would demonstrate that his
provisional-discharge plan adequately protects the public.
Appellant argues that Dr. Bowerman ’s conclusion is deficient because she did not
review his updated provisional-discharge plan that he had submitted to the CAP .
Assuming appellant is referring to th e September 8, 2020 updated provisional-discharge
plan,3 his argument fails. The CAP “may not grant . . . provisional discharge on terms or
conditions that were not presented to the [SRB].” Minn. Stat. § 253D.28, subd. 3 (2020).
The SRB did not review appellant’s updated plan because he submitted it 11 months after
the SRB made its recommendation. Because he did not timely submit the updated plan to
the SRB, neither Dr. Bowerman nor the CAP could have reviewed it at the time of the
CAP’s decision.
Appellant also relies on letters of support from relatives and the Church of
Scientology to argue that his provisional-discharge plan adequately protects the public and
will assist his transition to society. These letters show that appellant has support in place
if he is released from MSOP. But they do not demonstrate that appellant’s provisional-

3 Appellant references two updated plans in his briefing: one dated July 4, 2019 and another
dated September 8, 2020. In this context, it appears he is referring to the September plan.
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discharge plan sufficiently protects the public or that appellant’s dangerousness has been
reduced.
In sum, appellant failed to make a prima facie case for provisional discharge , and
the CAP therefore did not err by dismissing his petition under Minn. R. Civ. P. 41.02(b).
IV. The CAP did not err by dismissing appellant’s petition for full discharge.
Appellant asserts that: (1) he no longer needs treatment because he has no sexual
disorder, his diagnosed mental disorder does not impact his behavior, and his present
mental status s hows he does not need treatment and (2) he is no longer a danger to the
public because he has low risk -of-recidivism scores and has shown good behavior at
MSOP. We are not persuaded.
A person committed as an SDP “shall not be discharged unless . . . the committed
person is capable of making an acceptable adjustment to open society, is no longer
dangerous to the public, and is no longer in need of treatment and supervisi on.” Minn.
Stat. § 253D.31. But “the criteria for a provisional discharge are more lenient than the
criteria for a [full] discharge.” Larson, 847 N.W.2d at 535-36. Therefore, the committed
person’s failure to make a prima facie case for provisional discharge means that he cannot
succeed on his petition for full discharge. Id. at 536. Because appellant failed to make a
prima facie case for provisional discharge, we conclude that he likewise failed to make a
prima facie case for full discharge.

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V. Appellant’s ineffective-assistance-of-counsel claim is not properly before this
court.

Appellant argues that he received ineffective assistance of counsel because his
attorney failed to submit the correct records to the CAP. The commissioner4 argues that
appellant’s ineffective-assistance-of-counsel claim is not properly before this court. We
agree with the commissioner.
We generally do not address issues not presented to nor considered by the lower
court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Appellant raised his ineffective-
assistance-of-counsel claim in a motion to the district court under Minn. R. Civ. P. 60.02
brought concurrently with this appeal. As a result, the CAP did not consider or determine
his ineffective-assistance-of-counsel claim. This claim is therefore not properly before this
court, and we decline to address it.
Affirmed.

4 Respondent Goodhue County did not file a brief in this appeal.