In the Matter of the Civil Commitment of: Rodrick Dean Pouncy, 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This opinion is nonprecedential except as provided by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
A23-1744

In the Matter of the Civil Commitment of: Rodrick Dean Pouncy, Jr.

Filed May 13, 2024
Affirmed
Bjorkman, Judge

Anoka County District Court
File No. 02-PR-22-687

Jennifer L. Thon, Jonathan M. Comuzzi, Jones Law Office, Mankato, Minnesota (for
appellant Rodrick Pouncy, Jr.)

Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Ellen Lavigne, Assistant County
Attorneys, Anoka, Minnesota (for respondent Anoka County)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bjorkman,

Judge.

NONPRECEDENTIAL OPINION

BJORKMAN, Judge

Appellant challenges his indeterminate civil commitment as a sexually dangerous

person (SDP) and a sexual psychopathic personality (SPP), arguing that the district court

clearly erred in finding that he (1) “engaged in a course of harmful sexual conduct,”

(2) demonstrated a “habitual course of misconduct,” (3) is “highly likely to reoffend,” and

(4) is “dangerous to others.” Because the record supports the district court’s factual

determinations, we affirm.
 FACTS

Appellant Rodrick Dean Pouncy, Jr. committed numerous domestic assaults and

seven reported sexual assaults between 2014 and 2022. The State of Minnesota charged

him with four sexual-assault offenses in separate proceedings; all four proceedings were

suspended because Pouncy was found incompetent under Minn. R. Crim. P. 20.01. The

sexual assaults became increasingly violent. While the first incidents involved unwanted

touching and kissing (consistent with fifth-degree criminal sexual conduct), later incidents

involved nonconsensual sexual intercourse with minors (consistent with third-degree

criminal sexual conduct), and most recently forced sexual intercourse accompanied by

death threats and violent behavior including strangulation (consistent with first-degree

criminal sexual conduct). All of Pouncy’s sexual-assault victims were vulnerable because

of their age, cognitive disabilities, or both.

Four of Pouncy’s charged domestic assaults 1 involved the same victim and at least

five other reported incidents were not charged. These incidents of domestic assault have

resulted in orders for protection, no-contact orders, and harassment restraining orders.

Pouncy has violated these orders, but prosecutions have been dismissed or suspended due

to his incompetency. In sum, Pouncy had at least two reported sexual or domestic assaults

every year from 2014 until he was jailed in 2022. 2

1
All of Pouncy’s charged domestic-assault offenses were dismissed or the proceedings
were stayed due to Pouncy’s incompetency.
2
Pouncy also has two prior assault charges, one that was dismissed in 2015 for
incompetency and one that was dismissed in 2022 “in the interests of justice.” And he has
a pending felony motor-vehicle theft charge. Since going to jail in 2022, Pouncy has

2
 Pouncy has a very low IQ 3 and has been diagnosed with an intellectual development

disorder, a personality disorder that affects his impulse control, paraphilic disorder with

sexual sadism and coercive paraphilia traits, and a cannabis-use disorder. His participation

in treatment to address his sexual impulses and aggressive behaviors has been minimal and

inconsistent, due in large part to his low cognitive function. Pouncy has been under the

guardianship of his mother since he turned 18 in 2016.

In January 2023, respondent Anoka County petitioned for Pouncy to be civilly

committed as an SDP and an SPP. Two doctors testified at the May trial, the pre-petition

examiner retained by the county, Dr. Michael Thompson, MSW, Psy.D., L.P., and the

court-appointed examiner, Dr. Tyler Dority, Ph.D., L.P. 4 Both doctors reviewed Pouncy’s

extensive record and conducted standard actuarial assessments, and Dr. Dority interviewed

Pouncy. Both doctors opined that Pouncy meets the statutory requirements for civil

commitment as an SDP and an SPP. The district court expressly found the doctors’ shared

opinion “credible, supported, and persuasive.”

Four of Pouncy’s victims also testified, providing details regarding his conduct and

the harm it caused them. Two of the victims, E.J.T. and L.R.B., testified that Pouncy

strangled them during the course of the sexual assault. And the district court received 25

assaulted multiple corrections officers and made threats to kill, harm, and “blow up” other
officers.
3
Pouncy has an IQ between 40 and 60.
4
The parties stipulated that both doctors have the experience and training to offer relevant
expert testimony. Pouncy did not ask the district court to appoint a second examiner.

3
exhibits, including the doctors’ written reports and other records from Pouncy’s various

criminal incidents and failed treatments. The district court found that clear and convincing

evidence establishes that Pouncy meets the criteria for commitment as an SDP pursuant to

Minn. Stat. § 253D.02, subd. 16 (2022), and an SPP pursuant to Minn. Stat. § 253D.02,

subd. 15 (2022). The court also determined that there is no less-restrictive alternative to

commitment to the Minnesota Sexual Offender Program (MSOP) that will meet Pouncy’s

treatment needs and ensure public safety.

Pouncy appeals.

DECISION

A person may be civilly committed as an SDP or an SPP if the county proves the

statutory commitment criteria by clear and convincing evidence. Minn. Stat. § 253D.07,

subd. 3 (2022). We review a district court’s factual findings regarding the criteria for clear

error. In re Civ. Commitment of Stone, 711 N.W.2d 831, 836 (Minn. App. 2006), rev.

denied (Minn. June 20, 2006). Under this standard, we view the evidence in a light most

favorable to the findings, do not reweigh the evidence, and do not resolve conflicting

evidence. In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-22 (Minn. 2021). But

whether the evidence meets the statutory requirements for commitment is a question of

law, which we review de novo. In re Civ. Commitment of Crosby, 824 N.W.2d 351, 356

(Minn. App. 2013), rev. denied (Minn. Mar. 27, 2013).

An SDP is a person who: (1) “has engaged in a course of harmful sexual conduct”;

(2) “has 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.

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§ 253D.02, subd. 16. An SPP is a person who (1) has “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 conditions, which

render the person irresponsible for personal conduct with respect to sexual matters”; (2) has

“an utter lack of power to control” his sexual impulses, as evidenced by “a habitual course

of misconduct in sexual matters”; and (3) “as a result, is dangerous to other persons.” Id.,

subd. 15.

If a district court determines that the statutory commitment criteria have been

proven,

the court shall commit the person to a secure treatment facility
unless the person establishes by clear and convincing evidence
that a less restrictive treatment program is available, is willing
to accept the [person] under commitment, and is consistent
with the person’s treatment needs and the requirements of
public safety.

Minn. Stat. § 253D.07, subd. 3.

Pouncy only challenges the district court’s SDP findings that he (1) “engaged in a

course of harmful sexual conduct” and (2) is “highly likely to reoffend”; and its SPP

findings that he (1) exhibited “a habitual course of misconduct in sexual matters” and (2) is

“dangerous to others.” 5 Because of the similarities between the SDP and SPP statutory

criteria, we consider the first challenged findings from each commitment standard together;

5
Pouncy does not dispute the district court’s findings of fact regarding the other
commitment criteria. And he does not challenge the district court’s determination that
there is no less-restrictive alternative to commitment to MSOP.

5
and, separately, we consider the second challenged findings from each statutory criteria

together.

I. The district court did not clearly err by finding that Pouncy engaged in “a
course of harmful sexual conduct” and exhibited “a habitual course of
misconduct in sexual matters.”

SDP Findings

“Harmful sexual conduct” is defined as “sexual conduct that creates a substantial

likelihood of serious physical or emotional harm to another.” Minn. Stat. § 253D.02,

subd. 8(a) (2022). It is presumed that the conduct described in the statutes establishing

criminal sexual conduct in the first and third degrees meets this definition. Minn. Stat.

§ 253D.02, subd. 8(b) (2022) (establishing a rebuttable presumption). Repeated incidents

of such conduct may constitute a “course” even if they did not occur recently, and “the

existence of a period in which a person has not committed sex offenses does not preclude

a determination that he engaged in a course of sexual misconduct.” Stone, 711 N.W.2d at

834-35, 837-39 (reported aggressive interactions with young girls every 1-3 years

constituted a course of harmful sexual conduct). In determining whether a person engaged

in a course of harmful sexual conduct, courts consider “both conduct for which the [person]

was convicted and conduct that did not result in a conviction.” Id. at 837.

Pouncy broadly contends that the record does not support the challenged findings.

And he takes particular issue with the district court’s findings that he strangled victims

E.J.T. and L.R.B., pointing to Dr. Thompson’s testimony that he would expect some kind

of bruising or effect on the person’s vocal cords, which neither victim presented. None of

Pouncy’s arguments persuade us to reverse.

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 First, the absence of strangulation marks does not—in and of itself—make the

district court’s strangulation findings clearly erroneous. Both E.J.T. and L.R.B. testified

that Pouncy strangled them. E.J.T., the victim of the charged first-degree criminal-sexual-

conduct offense, recounted Pouncy strangling her with both hands for 30 seconds.

Likewise, L.R.B. testified that Pouncy choked her with both hands, consistent with prior

statements she made to a doctor that she was strangled with a “ten-out-of-ten grip.”

Dr. Thompson’s testimony that he would have expected some kind of bruising or effect on

E.J.T.’s vocal cords and some kind of mark on L.R.B. is evidence that the district court

was entitled to consider. 6 But the court was not bound to credit any particular evidence—

even expert testimony. See Kenney, 963 N.W.2d at 224-25 (explaining that the fact-finder

is not bound by expert testimony, even when uncontradicted). Rather, the district court

weighed the competing evidence as to strangulation, which was uniquely its task as the

finder of fact. In re Civil Commitment of Ince, 847 N.W.2d 13, 23-24 (Minn. 2014) (“As

the trier of fact, the district court [is] in the best position . . . to evaluate the credibility of

witnesses—a critical function in [civil-commitment] cases that rely so heavily on the

opinions of experts.”).

Moreover, even if the district court clearly erred by finding that Pouncy strangled

two of his victims, ample other evidence supports a finding that his conduct harmed his

sexual-assault victims. See Minn. Stat. § 253D.02, subd. 8(a) (defining “harmful sexual

6
Dr. Dority offered no opinion regarding E.J.T.’s lack of bruising or other marks of
strangulation. As to L.R.B., Dr. Dority testified that he would expect some physical
evidence if a person were strangled over several hours.

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conduct” as “sexual conduct that creates a substantial likelihood of serious physical or

emotional harm to another”). All four testifying victims described the harm they

experienced as a result of Pouncy’s acts and death threats, including physical pain and the

fear and trauma they have lived with since the incidents occurred. And Dr. Thompson

opined that the overall record demonstrates that Pouncy engaged in harmful sexual

conduct.

Second, the record defeats Pouncy’s argument that the district court misapplied the

law by finding that he engaged in sexual conduct that created “likely” physical or emotional

harm to others when Minn. Stat. § 253D.02, subd. 8(a), requires a finding that the sexual

conduct created a “substantial likelihood of serious physical or emotional harm to another.”

A careful review of the district court’s findings shows that it applied the correct standard.

It is true that the district court uses the adjective “likely,” in some of its findings. But each

time it does so, it follows up with a reference to the “substantial likelihood” standard. For

example, in paragraph 254 of its order, the district court “finds the testimony and

supporting evidence regarding the pending 3rd degree criminal sexual conduct charge

related to L.R.B. . . . proves that such conduct is likely to cause substantial physical or

emotional harm.” But the paragraph concludes with the statement “this incident has a

substantial likelihood of creating serious or emotional harm.”

Finally, Pouncy does not point to any other specific findings of fact as lacking record

support and cites no legal authority for his general assertion that the district court

misapplied the law. We do not presume error on appeal. Loth v. Loth, 35 N.W.2d 542,

546 (Minn. 1949). Rather, the appellant must show that the district court erred. Potter v.

8
Potter, 27 N.W.2d 784, 786 (Minn. 1947). Absent such a showing, we do not consider an

appellant’s arguments. See Christie v. Est. of Christie, 911 N.W.2d 833, 837-38 n.4 (Minn.

2018) (stating that arguments without analysis or citation to legal authority are waived);

State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.

1997) (declining to consider an inadequately briefed question); In re Civ. Commitment of

Kropp, 895 N.W.2d 647, 653 (Minn. App. 2017) (applying Wintz in a civil-commitment

matter), rev. denied (Minn. June 20, 2017).

In sum, the district court made supported findings that Pouncy engaged in the

requisite “sexual conduct that has created a substantial likelihood of serious physical or

emotional harm to another.” See Minn. Stat. § 253D.02, subd. 8(a).

SPP Findings

Under the SPP statute, Pouncy only meets the commitment criteria if he exhibited

“a habitual course of misconduct in sexual matters.” Minn. Stat. § 253D.02, subd. 15.

Pouncy again broadly argues that the record does not support the district court’s finding

that he exhibited a habit of sexual misconduct. The extensive record, including Pouncy’s

charged and uncharged conduct, defeats this contention. Any discrepancies in the accounts

of his misconduct can be attributed to any number of circumstances: victims who are

vulnerable due to their young age and cognitive disabilities, Pouncy’s own cognitive

function, the passage of time, and the impact of trauma on a person’s ability to recall an

event. Based on our careful review of the record, we discern no clear error by the district

court in finding that Pouncy exhibited a habitual course of sexual misconduct for the same

reasons he meets the harmful-sexual-conduct criterion of the SDP statute.

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II. The district court did not clearly err by finding that Pouncy is “highly likely to
reoffend” and is “dangerous to others.”

SDP Findings

To be committed as an SDP, clear and convincing evidence must establish that a

person “is likely to engage in acts of harmful sexual conduct” as a result of sexual or other

mental disorder or dysfunction. Minn. Stat. § 253D.02, subd. 16; see In re Linehan, 544

N.W.2d 308, 318 (Minn. App. 1996) (Linehan II) (“[T]he statute’s term ‘likely’ requires

future misconduct to be ‘highly likely.’”), aff’d, 557 N.W.2d 171 (Minn. 1996), vacated

and remanded sub nom., Linehan v. Minnesota, 522 U.S. 1011 (1997), aff’d on remand,

594 N.W.2d 867 (Minn. 1999) (affirming appellant’s civil commitment under SDP statute).

In evaluating the likelihood that an individual will engage in future harmful sexual

conduct, district courts consider:

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

In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (Linehan I); see In re Linehan, 557

N.W.2d 171, 189 (Minn. 1996) (Linehan III) (applying these factors to SDP case). We

note that the Linehan factors may overlap with factors accessed by other actuarial risk-

10
assessment tools. Indeed, our supreme court has acknowledged this possibility and

cautioned district courts “to be wary of the potential for factor repetition.” Ince, 847

N.W.2d at 24. But the supreme court affirmed its reliance “on the ability of district courts

to weigh the evidence in each case, drawing the appropriate conclusions based on

consideration of all the evidence.” Id.

Pouncy first argues that the district court erred by crediting the doctors’ testimony

regarding his base-rate statistics because both acknowledged errors in scoring one of the

risk-assessment tools, the Static-99R. The Static-99R is an actuarial risk-assessment tool

that ranks a sexual offender’s relative recidivism risk based on ten objective factors. It is

objectively scored “based on unchanging, enduring factors, called static factors, correlated

with long-term re-offense rates of similar sexual offenders with the same score.” A

person’s total score correlates to five risk categories ranging from very low risk (-3 through

-2) to well-above average risk (6+). Both doctors scored Pouncy in the well-above average-

risk category.

Dr. Thompson scored Pouncy as a 7. At trial, he admitted this score was incorrect

because he included one point for prior nonsexual violence convictions when in fact

Pouncy had been charged but not convicted of such offenses due to his incompetency.

Dr. Thompson further explained that Pouncy’s corrected score of 6 still placed him in the

highest risk category. And he opined “with a degree of certainty customary in the field of

psychology” that regardless of the error in the Static-99R scoring, Pouncy meets the criteria

for civil commitment.

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 As to Dr. Dority, Pouncy seems to take issue with both the Static-99R score he

calculated and a reference in his written report to whether placement in an institution

should be considered based on Pouncy’s own need for protection and care as a vulnerable

adult. Dr. Dority directly addressed the scoring error, stating that it does not alter his

opinion that Pouncy meets the statutory commitment criteria. And Pouncy does not explain

how the single reference to another potential reason for placing Pouncy in a treatment

facility undermines Dr. Dority’s analysis or supports his bald assertion that Dr. Dority’s

opinions are “inconsistent and equivocal.” See State v. Bursch, 905 N.W.2d 884, 889

(Minn. App. 2017) (“Arguments are forfeited if they are presented in a summary and

conclusory form, do not cite to applicable law, and fail to analyze the law claiming that

errors of law occurred.”); Joelson v. O’Keefe, 594 N.W.2d 905, 909 (Minn. App. 1999)

(declining to address appellant’s challenge to district court’s SPP findings in the absence

of supporting argument or authority), rev. denied (Minn. July 28, 1999).

Ultimately, the district court determined, “To the extent [Dr. Dority’s] scores varied

or might be revised, [Pouncy’s] risk level remains in the highest, or second highest, risk

levels.” We defer to the district court as the fact-finder to make these credibility

determinations. See In re Civ. Commitment of Ramey, 648 N.W.2d 260, 270 (Minn. App.

2002) (“The district court [has] the advantage of hearing the witnesses personally and

judging their relative credibility. A reviewing court generally defers to the district court in

matters of witness credibility.”), rev. denied (Minn. Sept. 17, 2002).

Pouncy next asserts that the district court’s analysis includes impermissible factor

repetition. This argument is unavailing. In its order, the district court explained that “the

12
Linehan factors are useful in considering the evidence of risk,” and gave particular weight

to:

(i) [Pouncy’s] increasing age, over time, at the time of the
charged offenses demonstrating that [Pouncy] has not aged out
of amassed sufficient life experiences so as [to] cease
reoffending . . . ; (ii) [Pouncy’s] relative lack of education;
(iii) [Pouncy’s] history of violence toward the victims
including the use of violence to perpetrate the offenses and
continued violence and threats thereafter; . . . (iv) and the
recency and severity in which [Pouncy] used violence
(including strangulation, spitting in one victim’s mouth, and
threatening to kill the victim during the course of vaginal rape)
. . . ; and (vi) [Pouncy’s] demonstrated lack of success in sex
offender related programming . . . .

But the court stated that it did not “base its ruling solely on the Linehan factors.” And it

acknowledged “the potential, when considering the various types of evidence, for ‘factor

repetition.’” Indeed, the district court expressly stated that it “discounted its reliance on

Linehan factors potentially duplicative of that incorporated in the various actuarial tools,

including, for example [Pouncy’s] demographics (age), history of violence, and record with

respect to sex offender therapy program[s].”

The record does not persuade us to disturb the district court’s detailed and

comprehensive findings of fact. The commitment determination is a “difficult task” that

requires district court’s to carefully balance the relevant facts gleaned from a “voluminous

and complex” record. Linehan III, 557 N.W.2d at 191. We give great deference to the

district court’s weighing of evidence relevant to whether an individual is highly likely to

engage in harmful sexual conduct. Ince, 847 N.W.2d at 23. We see no clear error in the

13
district court’s finding that Pouncy is highly likely to engage in future harmful sexual

conduct.

SPP Findings

Under the SPP statute, the district court found Pouncy is dangerous to others “for

the same reasons” that he is highly likely to commit future sexual harm. Pouncy’s low IQ

that requires a guardianship, history of engaging in conduct that resulted in at least two

charges of sexual and domestic assault each year from 2014 to 2022, the increasingly

violent nature of his conduct, and his continued inability to stand trial due to incompetency

all support this finding.

Based on our careful review of the record, we conclude that the district court did

not err by finding that Pouncy poses a danger to others.

Affirmed.

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