In the Matter of the Civil Commitment of: Christopher Michael Kapol.

This opinion is nonprecedential except as provided by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
A23-0032

In the Matter of the Civil Commitment of: Christopher Michael Kapol.

Filed July 3, 2023
Affirmed
Reyes, Judge

Stearns County District Court
File No. 73-PR-22-1282

Tucker L. Isaacson, Bradshaw & Bryant, P.L.L.C., Waite Park, Minnesota (for appellant)

Janelle P. Kendall, Stearns County Attorney, Nathan S. Crowe, Assistant County Attorney,
St. Cloud, Minnesota (for respondent Stearns County Human Services)

Considered and decided by Ross , Presiding Judge; Bjorkman, Judge ; and Reyes ,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant argues that the district court erred by determining that (1) he met the
statutory criteria as a sexual psychopathic personality (SPP) and a sexually dangerous
person (SDP) when the only examiner who testified and filed a report stated that he
satisfied neither definition and (2) he failed to present clear and convincing evidence of the
availability of a less-restrictive placement . We affirm.

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FACTS
In July 2022, respondent Stearns County Human Services petitioned for civil
commitment of appellant Christopher Michael Kapol as an SPP and an SDP . Minn.
Stat. §§ 253D.02, subds.15, .16 (2020). Four months later, the district court
indeterminately committed appellant to the Minnesota Commissioner of Human Services
for treatment in the Minnesota Sex Offender Program (MSOP) , as a person who is an SDP
and SPP.
Prior sexual misconduct history
Appellant has a long history of sexual misconduct. In May 2005, the state of
Minnesota charged appellant, then 12 years old, with two counts of first -degree criminal
sexual conduct against a three-year-old whom he was ba bysitting. The victim disclosed to
her mother that appellant touched her vaginal area, penetrated her vagina with his finger
and performed oral -penile penetration. Appellant later admitted that he tried to put his
penis in the victim’s vagina. Appellant admitted the allegations . The district court
adjudicated appellant as delinquent for first-degree criminal sexual conduct, placed him on
indeterminate probation, and ordered him to complete treatment at Mille Lacs Academy.
In October 2005, Mille Lacs Academy reported to the St. Cloud Police Department
that appellant had admitted to staff on multiple occasions that he had sexually abused his
five-year-old cousin in May 2005. An officer met with appellant who admitted that, w hile
babysitting his cousin, he forcibly placed his penis in her mouth, on her vagina, and on her
buttocks. Appellant sexually assaulted his cousin several times and tried to tie her to a
table once. He admitted to two counts of first -degree criminal sex ual conduct, and the
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district court adjudicated him as a delinquent. During his disposition hearing, the district
court found that appellant had a high risk to reoffend. As a result, it ordered him to continue
treatment at Mille Lacs Academy, register as a predatory offender, abstain from substance
use, submit to random testing, have no contact with victim , have no unsupervised contact
with minors, attend school, follow rules at home, pay restitution, and remain law abiding.
In May 2006, the district court adjudicated appellant as delinquent for fourth-degree
criminal sexual conduct against a 13 -year-old girl knowing or having reason to know that
the victim was “mentally impaired, mentally incapacitated, or physically helpless” and who
was the daughter o f his father’s girlfriend. The offense took place a year before and
appellant admitted that, while the victim slept, he “stuck his penis into her butt and sucked
on her breast.”1
In November 2009, appellant admitted to fourth- degree and fifth -degree criminal
sexual conduct. On the day of the offense, the victim went to appellant’s residence to visit
his sister. Appellant and his male friend arrived at the residence intoxicated. A short time
later, appellant “cornered the victim in the kitchen and began kissing her lips, cheeks, neck
and upper chest area.” The victim told him to stop but he refused. Instead, appellant
“trapped her in a bedroom by wedging a knife into the door, held her down . . . on the bed
and kissed her” in various places, “touched her breasts and buttocks, and tried to reach into
her pants.” The victim repeatedly told appellant “no,” yelled for help, and tried to get

1 As of 2010, appellant continued to report having fantasies about this victim. In his
predisposition report, appellant also admitted to performing anal sex on one other victim
and told his cousin to “make out” with him.
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away. The district court stayed a 24 -month commitment to the Commissioner of
Corrections until his 21st birthday contingent upon a successful completion of a sex-
offender treatment program at Minnesota Correctional Facility (MCF) -Red Wing. It also
ordered that appellant complete any recommended aftercare and comply with probation
conditions. While incarcerated, appellant blamed the victim for his incarceration and had
plans to physically harm and kill her, including kidnapping, raping, and disposing of her
body in a specific location. Appellant also reported having thoughts of acting violently
towards the female staff at the facility, including telling his case manager that he wanted
to have sex with the case manager’s children.
In January 2014, appellant, now an adult, pleaded guilty to felony domestic assault
against his then- girlfriend in June 2013. Appellant “pushed his pregnant girlfriend’s face
against his, squeezed her cheeks together, and covered her nose and mouth with his other
hand.” The victim reported not being able to breathe for ten to 20 seconds. He then pulled
a blanket over her head and pulled it tight to her face. Later in the evening, appellant tried
“to put dish soap in her mouth, pushed her into the side of the couch and bent her backwards
over it, pushing her shoulders down and holding her there for approximately one minute.”
The district court sentenced appellant to a 21 -month stayed prison sentence and five years
of supervised probation. Appellant later violated this probation by forcing sexual
intercourse with the victim.
In August 2018, appellant pleaded guilty to third-degree criminal sexual conduct for
an offense that occurred in April 2014. During the offense, appellant forced the victim to
have sexual intercourse with him when he pushed the victim down, pushe d her legs apart,
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and penetrated her. The district court sentenced appellant to 27 months in prison.
Following the sentence, appellant was accepted into the MSOP at the Moose Lake
Correctional Facility . In February 2021, appellant was transferred to the Sex Offender
Treatment Program (SOTP) at MCF -Lino Lakes.
Prior unadjudicated sexual misconduct.
Appellant also admitted to the following sexual misconduct:
1) Appellant placed his penis in his brother’s anus when
his brother was four or five years old.

2) Appellant tried to unbutton his sister’s friend’s pants
while she slept.

3) Between 1999 and 2004, appellant had sexual contact
with his cousin, who was between the ages of six and
twelve, about fifteen times. This included making out
and touching her vaginal area which he reported were
all consensual.

4) Appellant forced the mother of one of his children to
have sexual intercourse without consent.

5) In a 2019 treatment session, appellant disclosed that he
could possibly have had 30 extra victims.

6) In October 2019, he participated in a sex- offender
assessment and disclosed he had previously engaged in
seeking out a person to rape, raping a stranger, using a
weapon during a sexual assault, and forcing the victim
to engage in sexual activity. T he assessment also
showed that appellant minimized his thoughts about
committing rape and endorsed sexual haras sment ,
frottage, voyeurism, strangling or blocking a person’s
nose and mouth during sexual activity, and engaging in
sexual activity without consent.

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Commitment hearing
The district court held a commitment hearing on September 14, 2022. Before the
hearing, it appointed Dr. Linda Marshall, Ph.D., as the examiner . As the court examiner,
Dr. Marshall completed a psychological evaluation of appellant’s psychological status
regarding commitment to determine whether he met the criteria for commitment as an SPP
or SDP on September 9, 2022, and testified at trial. 2 Dr. Marshall’s report stated:
Based upon a thorough review of [appellant’s] records
and an interview with him there appears to be sufficient criteria
to commit him as a sexually dangerous person and sexual
psychopathic personality. However, upon closer examination
more specifically this interview and recent treatment records[,]
it is now felt that [appellant] does not meet the threshold for
SPP or SDP.

At trial, Dr. Marshall opined that he “def initely” met the criteria for SDP, “but not
everything with [] SPP.” The district court expressed that it was “very unclear how and
why Dr. Marshall came to this conclusion despite her report indicating that [appellant]
meets the criteria for commitment a s both as an SDP and SPP.” The district court asked
Dr. Marshall to clarify her position. Dr. Marshall responded:
I am not supporting commitment for SDP or SPP. . . . [A]nd
the reason I’m not supporting it is [because] . . . he does meet
the criteria maybe for SDP, but as I stated in my report, I think
he has gained significant knowledge in treatment, he has
insight, and I felt that was noteworthy.

While the district court found Dr. Marshall’s testimony to be credible, it did not
agree with “all her opinions and legal conclusions.” The district court determined that clear

2 Dr. Marshall conducted her interview with appellant via zoom on August 19, 2022.
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and convincing evidence supported that appellant met the criteria for SPP and SDP and
committed appellant to a secure treatment facility. This appeal follows.
DECISION
I. The district court did not err by determining that appellant met the criteria for
commitment as an SPP and SDP.

Appellant argues that the district court erred by adjudicating him an SPP and SDP
when the only examiner in the case testified that appellant did not meet the standard for
SPP or SDP. We are not persuaded.
“[W]e review legal issues de novo, including whether the record contains clear and
convincing evidence to support the district court’s conclusion that [appellant] meets the
standard for civil commitment.” In re Civ. Commitment of Crosby , 824 N.W.2d 351, 356
(Minn. App. 2013) (affirming commitment as SPP and SDP), rev. denied (Minn. Mar. 27,
2013). The clear-error standard “is a review of the record to confirm that evidence exists
to support the decision.” In re Civ. Commitment of Kenney , 963 N.W.2d 214, 222 ( Minn.
2021). We give due deference to the district court as the best judge of the credibility of
witnesses. See id. at 223. “As the trier of fact, the district court will be in the best position
to determine the weight to be attributed to each factor, as well as to evaluate the credibility
of witnesses—a critical function in these cases that rely so heavily on the opinions of
experts.” In re Civ. Commitment of Ince, 847 N.W.2d 13, 23-24 (Minn. 2014). If a district
court determines that clear and convincing evidence supports commitment as an SPP or an
SDP, the district court must commit the person to a secure treatment facility. Minn.
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Stat. § 253D.07, subd. 3 (2020). Because appellant challenges the district court’s
determination that he met t he criteria for SPP and SDP, we address both statutes in turn.
A. The record supports the district court’s determination for SPP.
“A person may be committed as an SPP based on clear and convincing proof that
[they] (1) ha[ve] engaged in a habitual course of misconduct in sexual matters; (2) ha[ve]
an utter lack of power to control their sexual impulses; and (3) [are], therefore, dangerous
to others.” In re Kindschy, 634 N.W.2d 723, 732 (Minn. App. 2001) , rev. denied (Minn.
Dec. 19, 2001) (citing Minn. Stat. § 253D.02, subd. 15). Moreover, a person “who has
uncontrollably committed numerous sexual assaults involving vaginal penetration, oral
sexual contact, and the use of physical restraint on eight juvenile females meets the
standard for indeterminate commitment as a [n] [SPP].” In re Preston, 629 N.W.2d 104,
106 (Minn. App. 2001).
The district court also considers the following factors in determining whether a
person has an utter lack of power to control sexual impulses: (1) “the nature a nd frequency
of the sexual assaults,” (2) “the degree of violence involved,” (3) “the relationship (or lack
thereof) between the offender and the victims,” (4) “the offender’s attitude and mood,”
(5) “the offender’s medical and family history,” (6) “the re sults of psychological and
psychiatric testing and evaluation,” (7) and any “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).
Here, the record supports the distr ict court’s determination that appellant met the
criteria for SPP. First, appellant has engaged in a habitual course of sexual assault,
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consisting of five adjudications or criminal convictions of criminal sexual misconduct over
the course of nine years along with uncharged disclosed sexual misconduct. He also
reported possibly having 30 more victims. His victims included males and females, adults
and children, peers and younger children. Appellant has shown a pattern of sexually
assaulting people over w hom he has had an advantage, either by virtue of age, strength, or
authority.
Second, the record supports that appellant has shown an utter lack of power to
control sexual impulses. Appellant’s sexually offending behavior has been ongoing from
childhood through young adulthood. Dr. Marshall’s report noted that “during [appellant’s]
offending, he [showed] an utter lack of power to control his offending behaviors” despite
being on probation and having interventions. His five sexual adjudications or crimi nal
convictions show his lack of power to control his sexual impulse as well.
The Blodgett factors also support the district court’s determination. First, the nature
and frequency of the sexual assaults was continuous for nine years. As mentioned above ,
appellant has five sex -related offenses and reported that he may have possibly 30 more
victims. Dr. Marshall found that appellant exhibited a pattern of “using force and violence
to obtain sexual gratification.” The record shows that appellant tried to tie a five-year-old
victim to a table, forced a victim into a bedroom with him and prevented the victim from
leaving. He also sexually penetrated his girlfriend without consent and disclosed wanting
to harm and kill a prior victim.
Appellant’s relationships with his victims have ranged from a babysitter to romantic
or familial relationships. He has “historically struggled to express empathy for his victims
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and take responsibility for his behavior” and admitted recently that his sexual assaults were
coping mechanisms for his challenging family history with his father being absent, having
a mother who struggled with chemical -dependency issues, and being sexually abused as a
child.
Appellant’s psychological testing reveals a “well above average risk of s exual
reoffending.” The MnSOST-4 test places him at a “moderate risk of having another sexual
offense conviction within a four -year period.” 3 And the Static -99R test shows a “well
above average risk of being charged or convicted of another sexual offens e.”
As a result, ample evidence in the record supports the district court’s determination
that appellant met the criteria for SPP.
B. The record supports the district court’s determination for SDP.
Minnesota law defines a n SDP as a person who (1) “has engaged in a course of
harmful sexual conduct” within the meaning of Minn. Stat. § 253D.02, subd. 8(a) (Supp.
2021); (2) “has manifested a sexual, personality, or other mental disorder or dysfunction” ;
and (3) “ is likely to engage in harmful sexual conduct ” as defined in subdivision 8(a).
Kindschy, 634 N.W.2d at 730 (citing Minn. Stat. § 253D.02, subd. 16).
“Harmful sexual conduct” is “sexual conduct that creates a substantial likelihood of
serious physical or emotional harm to a nother.” Minn. Stat. § 253D.02 subd. 8(a). “An
examination of whether an offender engaged in a course of harmful sexual conduct takes
into account both conduct for which the offender was convicted and conduct that did not

3 Appellant was assessed and scored on several standard statistical -probability tools
designed to predict recidivism in sex offenders.
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result in a conviction.” In re Civil Commitment of Stone , 711 N.W.2d 831, 837 (Minn.
App. 2006), rev. denied (Minn. Jun. 20, 2006) (citation omitted). “[T]he incidents that
establish the course [of conduct] will have occurred over a period of time and need not be
recent.” Id. (citation omitted).
As for the likelihood that appellant would engage in future dangerous behavior, a
district court should consider the following factors: (1) “the person’s relevant demographic
characteristics”; (2) “the person’s history of violent behavior”; ( 3) “the base rate statistics
for violent behavior among individuals of this person’s background”; (4) “the sources of
stress in the environment”; (5) “the similarity of the present or future context to those
contexts in which the person has used violence i n the past”; and (6) “the person’s record
with respect to sex therapy programs.” Matter of Linehan, 518. N.W. 2d 609, 614 (Minn.
1994). These factors support the district court’s determination that appellant is likely to
engage in future dangerous behavior.
First, the district court found clear and convincing evidence that appellant has
engaged in harmful sexual misconduct from the age of 12 to the age of 21. The record
shows that his victim’s ages ranged from as young as three years old to young adults.
Appellant has engaged in sexual conduct against his family members, including his brother
and his female cousins. Additionally, he engaged in sexual conduct with young children
he babysat, who lived in his home or visited. Appellant’s adjudications of first-degree
criminal sexual conduct and fourth- degree criminal sexual conduct also create a rebuttable
presumption that his conduct created a substantial likelihood that his victims suffered
serious physical or emotional harm. Minn. Stat. § 253D.02 subd. 8(b) (Supp. 2021) .
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Appellant did not rebut or dispute the statutory presumption. Additionally, Dr. Marshall
concluded that appellant has engaged in a course of harmful sexual conduct.
Second, the district court found that appellant has exhibited sexual, personality, and
other mental disorders. The record shows that appellant has been diagnosed with
oppositional defiant disorder, depressive disorder, attention- deficit/hyperactivity disorder
(ADHD), parent/child relational problems, cyclothymic disorder, post -traumatic-stress
disorder (PTSD), history of child abuse, reading disorder, written language disorder,
conduct disorder, sexual abuse as a child, adjustment disorder, sexual abuse of children
and adolescents, cannabis -use disorder, alcohol -use disorder, paraphilia, anti social
personality disorder, bipolar disorder, and anxiety disorder.
Third, the district court found that appellant is prone to engage in future acts of
harmful sexual conduct. The record shows that appellant is a 30- year-old male who has a
long history of impulsivity, emotional dysregulation, sexual deviance, and aggressive
behaviors. He has an extensive history of violent behavior and has been adjudicated or
convicted of five sexual offenses between 2005 and 2018. The MnSOST -4 showed a
“moderate risk for having another sexual offense conviction within a four-year period” and
the Static-99R showed a “well above average risk of being charged with or convicted of
another sexual offense .” Additionally, appellant has reoffended while being under
supervision and treatment and when released to the community.
Appellant argues that, because Dr. Marshall testified that appellant did not meet the
criteria for commitment, and the district court had nothing to weigh Dr. Marshall’s opinion
against, it should have followed her recommendation. His argument is misguided.
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Dr. Marshall’s testimony and report were not the only evidence received at the
commitment hearing. The district court also considered appellant’s prior evaluations, sex-
offender-treatment records, and records from appellant’s prior convictions and
adjudications. Nevertheless, the district court carefully weighed the evidence Dr. Marshall
presented along with all the other evidence.
The district court first reviewed Dr. Marshall’s report. In her report she stated,
“there appears to be sufficient criteria to commit him” but then later reported “upon closer
examination it is now felt that [appellant] does not meet the threshold for SPP.”
Dr. Marshall explained that, while appellant does have a cour se of sexual offending that
spans several years, “he has now developed insight and understanding of the dynamics of
his offending, demonstrated accountability for his sexual offending behaviors, done well
in sex offender treatment, and has some protective factors.” The district court also
considered Dr. Marshall’s testimony that, appellant definitely met the criteria for SDP but
not everything with SPP. The district court even asked Dr. Marshall to clarify her position
because it seemed “unclear” how “Dr. Marshall came to this conclusion despite her report
indicating that [appellant] meets the criteria for commitment as both as an SDP and SPP.”
Dr. Marshall explained that appellant had “gained significant knowledge in treatment.”
While the district court found Dr. Marshall’s testimony credible, it did not agree
with all her opinions and legal conclusions. We have stated that “when evidence as to the
existence of a psychopathic personality is in conflict, the question is one of fact to be
determined by the [district] court upon all the evidence.” In re Martenies, 350 N.W.2d
470, 472 (Minn. App. 1984), rev. denied (Minn. Sep. 12, 1984). The district court here
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was in the best position to evaluate the credibility of Dr. Marshall and decide what weight
to accord evidence on this issue. See Ince, 847 N.W.2d at 23-24. The record therefore
supports the district court’s determination that appellant met the criteria for SDP when
Dr. Marshall opined to a different conclusion.
II. The district court did not err by determining that appellant failed to
demonstrate by clear and convincing evidence that a less-restrictive alternative
to a secure treatment met his treatment needs and the requirements of public
safety.

Appellant argues that, even if the district court did not err by determining that
appellant met the criteria for commitment as an SPP and SDP, he provided clear and
convincing evidence that a less -restrictive alternative was available at the time of his
commitment. We are not convinced.
In applying the clear-error standard of review, appellate courts (1) view the evidence
in the light most favorable to the findings; (2) do not reweigh the evidence; (3) do not find
their own facts; and (4) do not reconcile conflicting evidence. Kenney, 963 N.W.2d at 221-
22. “When the record reasonably supports the findings at issue on appeal, it is immaterial
that the record might also provide a reasonable basis for inferences and findings to the
contrary.” Id. at. 223 (quotation omitted).
A person oppos ing commitment does not have the right to be placed in a less -
restrictive treatment program. Kindschy, 634 N.W.2d at 731. Rather, they must prove by
clear and convincing evidence that a program is available, willing to accept them, and will
meet their treatment needs and the public’s need for safety. Minn. Stat. § 253D.07, subd.
3. We will not reverse a district court’s finding on the availability of a less -restrictive
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treatment program unless it is clearly erroneous. In re Thulin, 660 N.W.2d 140, 144 (Minn.
App. 2003).
Here, the district court agreed with appellant that there “may be a less restrictive
program than commitment, such [as] an intensive outpatient sex offender treatment
program” but determined that appellant failed to provide alternatives to commitment that
are available or willing to accept him. Appellant testified that he would be willing to
participate in the Emergence program which consists of one-on-one individual therapy over
the phone either once a week or every two weeks . He also mentioned having a relapse -
prevention plan and planned to get a job with his brother . But Dr. Marshall noted that
appellant needs ongoing sex- offender treatment and safeguards to protect the community
if he is released. Dr. Marshall’s report also mentioned that appellant could continue sex-
offender treatment at CORE, a sex -offender treatment program, but did not know for
certain. However, the district court did not receive any more information about the CORE
program, how it would meet appellant’s or the public’s needs, or whether the program
would even accept appellant. The record therefore supports the district court’s
determination that appellant has not proved by clear and convincing evidence that a less -
restrictive program is available or willing to accept him.
Affirmed.