In the Matter of the Civil Commitment of: Terry Lee Branson. ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0394
In the Matter of the Civil Commitment of: Terry Lee Branson.
Filed August 17, 2015
Affirmed
Reilly, Judge
Anoka County District Court
File No. 02-PR-08-613
Brian C. Southwell, Minneapolis, Minnesota (for appellant Terry Lee Branson)
Tony Palumbo, Anoka County Attorney, Brianne J. Buccicone, Francine Pawelk Mocchi,
Assistant County Attorneys, Anoka, Minnesota (for respondent Anoka County)
Considered and decided by Worke, Presiding Judge; Reilly, Judge; and
Stoneburner, Judge.*
UNPUBLISHED OPINION
REILLY, Judge
Appellant Terry Lee Branson challenges his commitment as a sexually dangerous
person (SDP) and as a sexual psychopathic personality (SPP) on the grounds that (1) the
district court erred in determining that his conduct was sexually motivated or had sexual
assault as a goal, and (2) the commitment petition violates double jeopardy. We affirm.
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
FACTS
Criminal History
Appellant was born on January 8, 1955, and has a long history of sexual
misconduct, including 20 to 30 sexual assaults and 6 felony convictions for harmful
sexual conduct. The first conviction arose from an incident in August 1976, when
appellant drove to his aunt’s home, threatened her with a knife, and raped her repeatedly
over a period of hours, forcing oral and vaginal sex on her. Appellant raped his aunt in
the presence of her mother-in-law, whom he tied up with nylon stockings, in a seated
position, for the duration of the attack. In February 1977, appellant was convicted of rape
in Hendricks County, Indiana, and sentenced to seven and a half years’ imprisonment.
Appellant was released from prison in July 1980 and moved to Minnesota.
The second offense occurred in March 1983. Appellant was living with his
girlfriend and her roommate, V.S. Appellant tied up his girlfriend with her neck, hands,
and feet bound together. Appellant then entered V.S.’s bedroom and raped her vaginally.
After raping her, appellant grabbed V.S.’s arm and head, pulled her hair, and threw her
into his bedroom with his girlfriend. Appellant attempted to force his girlfriend to
perform oral sex on V.S., but she refused. Appellant then forcibly raped V.S. in front of
his girlfriend. The state charged appellant with third-degree criminal sexual conduct.
Appellant admitted that he entered V.S.’s bedroom while she was sleeping, intentionally
confined her without her consent, and prevented her from leaving. Appellant entered a
plea of guilty to the lesser charge of false imprisonment and was sentenced to a 13-month
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suspended sentence with 90 days in jail and three years on probation. In April 1984,
appellant’s probation was revoked and his 13-month sentence was executed.
Approximately three months after his release on the false imprisonment charge
and while he was still on probation, appellant committed another violent sex offense. In
November 1983, appellant broke into a woman’s apartment, grabbed her and shoved her
into the wall, pulled her hair, and forced her into the kitchen. The woman, T.E.,
recognized appellant as someone who had worked for her landlord. Appellant took a 14-
inch knife from the kitchen, held the knife against T.E.’s throat, and ordered her to
undress. When she refused, appellant pressed the knife tighter to her throat and
threatened to kill her. Appellant forced T.E. to give him oral sex and raped her.
Appellant then forced T.E. outside and raped her again. Appellant was charged with two
counts of first-degree criminal sexual conduct and pleaded guilty to one count of first-
degree criminal sexual conduct. He was sentenced to a double durational departure of
162 months in prison. We affirmed the sentence on appeal. Branson v. State, 368
N.W.2d 436 (Minn. App. 1985). Appellant was released from prison in November 1992
with an expiration of sentence date of May 1997.
In December 1993, appellant spent the day drinking and going to different bars.
After closing time, appellant waited outside a bar holding a large knife that he had
brought with him. A female bartender, K.M., came out of the bar and began walking
toward her car. Appellant came up behind her, grabbed her by the hair, and pressed a
knife to her throat. Appellant stated he needed a hostage and threatened to cut her throat
if she did not get in the car. Another employee came out of the bar and pushed appellant
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hard enough to allow K.M. to run back inside and call the police. When the police
officers arrived, appellant attempted to stab the officer and then threatened to kill himself
and began stabbing himself in the chest and in the throat. The state charged appellant
with two counts of second-degree assault and attempted kidnapping. Appellant pleaded
guilty to the charges and was sentenced to ten years on the attempted kidnapping
conviction and seven years on each of the assault convictions, to be served consecutively.
We reversed the district court’s decision that the kidnapping and assault sentences on
K.M. could be served consecutively and reduced the sentence from 288 months to 204
months. State v. Branson, 529 N.W.2d 1 (Minn. App. 1995), review denied (Minn.
Apr. 18, 1995).
Treatment History
Appellant has a long history of treatment for sexual abuse crimes. Between July
1985 and March 1986, appellant had four sessions with a psychologist, to whom he
admitted that he was a recidivist sex offender. The therapist doubted appellant’s
motivation and viewed him as a “very antisocial personality.” Appellant subsequently
rejected treatment in the sex-offender treatment program.
Appellant later began the Assessment Phase in the Complex I treatment program
in May 1986. He admitted to a history of 20 to 30 sexual assaults, usually involving rape
or attempted rape of a relative or acquaintance, and confessed that he had no remorse for
his actions. In May 1987, he completed chemical dependency treatment and transferred
to the sex-offender treatment group. He voluntarily left the program in October 1987.
Appellant entered the Transitional Sex Offender Program in August 1991 and asked to be
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discharged from the program in July 1992, believing he had gone as far as necessary.
However, a therapist evaluating appellant reported that he was at an extremely high risk
to reoffend.
Following the December 1993 offense, the district court ordered appellant to
participate in sex-offender treatment. Appellant refused to participate in his treatment
and, as a result of his refusal, the state extended his incarceration on four different
occasions. In March and April 1994, Peter Marston, Ph.D., conducted a psychological
evaluation to consider, among other things, whether the December 1993 offense was a
failed attempt to commit another sex offense. Appellant denied the offense was a failed
rape attempt and claimed he was seeking to hijack a car and that it was merely
coincidental that his victim was a female. The evaluator concluded that if appellant had
actually abducted K.M., he may “very well have impulsively decided to rape her.”
Likewise, a psychological evaluator in 2001 concluded that appellant had not
successfully integrated the prevention strategies he learned in treatment and suggested
that appellant would have sexually assaulted K.M. if he had managed to abduct her.
Current Commitment
In September 2008, the department of corrections referred appellant to the county
attorney for consideration of Sexually Dangerous Person/Sexual Psychopathic
Personality (SDP/SPP) civil commitment. A recommendation to the commissioner of
corrections from independent legal counsel reached the opinion that: (1) a course of
harmful sexual conduct was present, (2) appellant had a sexual, personality, or other
disorder or dysfunction, (3) appellant showed a lack of adequate control of sexual
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impulses, and (4) appellant was highly likely to engage in harmful sexual conduct. The
independent legal counsel concluded that there were sufficient grounds to consider filing
a petition seeking to commit appellant as an SDP. The petition, filed in October 2008,
sought to commit appellant as an SPP and an SDP.
The district court appointed two independent examiners, Dr. James H. Gilbertson,
Ph.D., L.P. and Dr. Thomas Alberg, Ph.D., L.P. Appellant refused to meet with Dr.
Gilbertson, who subsequently based his opinions on an extensive review of appellant’s
records. Appellant did agree to speak with Dr. Alberg. Both examiners determined that
if appellant had successfully abducted K.M., it is highly likely he would have sexually
assaulted her. Dr. Gilbertson concluded that appellant suffered from paraphilia, non-
consent, a trait that overlaps with sexual sadism, based on appellant’s criminal sexual
behavior, his preoccupation with sexual assault fantasies, his admission that he sexually
assaulted 20 to 30 women, and his statements that sexual assault gives him a thrill that
cannot be duplicated in nonviolent sexual activity. Similarly, Dr. Alberg diagnosed
appellant with sexual sadism, in which an individual derives sexual excitement from the
psychological or physical suffering of the victim. The evaluators concluded that
appellant “manifested a sexual, personality, or other mental disorder or dysfunction that
does not allow him to adequately control his sexual impulses.”
The district court held a trial in January 2009 and issued a commitment order in
June 2009, concluding that appellant’s conduct in December 1993 “was motivated by his
sexual impulses and was part of a pattern of behavior that had criminal sexual conduct as
a goal,” and therefore met the statutory definition of harmful sexual conduct. The district
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court found by “clear and convincing evidence” that appellant engaged in a course of
harmful sexual conduct and was “highly likely” to reoffend. The district court concluded
that clear and convincing evidence demonstrates that appellant is both an SDP and an
SPP and committed appellant for treatment in the Minnesota Sex Offender Program
(MSOP).
Appellant was transported to MSOP in October 2013, following completion of his
criminal sentence. MSOP filed a 60-day report with the district court in December 2013
and the district court set a review hearing date. Psychologist Dr. Gary Hertog testified
that appellant suffers from sexual sadism and continues to meet the statutory factors to
qualify as both an SPP and an SDP. The district court issued its order on January 6,
2015, “indeterminably commit[ing]” appellant for treatment in MSOP. This appeal
followed.
DECISION
I.
Appellant argues that the district court erred as a matter of law by determining that
his assault and attempted kidnapping convictions arising from the December 10, 1993
incident were sexually motivated or had sexual assault as a goal. A petition for civil
commitment as an SDP or an SPP must prove the elements of commitment by clear and
convincing evidence. Minn. Stat. § 253D.07, subd. 3 (2014). On appeal, we will not set
aside the district court’s factual findings unless they are clearly erroneous, and we view
the record “in a light most favorable to the district court’s findings.” In re Ramey, 648
N.W.2d 260, 269 (Minn. App. 2002). We also defer to the district court’s opportunity to
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judge the credibility of the witnesses. Id. However, we review de novo whether there is
clear and convincing evidence in the record to support the district court’s conclusion that
appellant meets the standards for commitment. In re Navratil, 799 N.W.2d 643, 647
(Minn. App. 2011).
Appellant challenges the district court’s finding that his conduct in December
1993 was sexually motivated or had sexual assault as a goal, as defined by Minn. Stat.
§ 253B.02, subd. 7a (2008).1 ‘“Harmful sexual conduct’ means sexual conduct that
creates a substantial likelihood of serious physical or emotional harm to another.” Minn.
Stat. § 253D.02, subd. 8a (2014). There is a rebuttable presumption that certain
enumerated offenses, including criminal sexual conduct in the first, second, third, or
fourth degrees, “creates a substantial likelihood that a victim will suffer serious physical
or emotional harm.” Id., subd. 7a(b). This rebuttable presumption also applies to other
conduct, including kidnapping and second-degree assault, “[i]f the conduct was
motivated by the person’s sexual impulses or was part of a pattern of behavior that had
criminal sexual conduct as a goal.” Id.
1
In 2013, Minnesota Statutes chapter 253B, the Minnesota Commitment and Treatment
Act, was amended and many of its provisions that applied to SDP and SPP cases were
recodified in the newly enacted chapter 253D, the Minnesota Commitment and Treatment
Act: Sexually Dangerous Person and Sexual Psychopathic Personalities. See 2013
Minn. Laws ch. 49, § 22, at 229 (recodifying Minn. Stat. § 253B.02, subd. 7a (2012) as
Minn. Stat. § 253D.02, subd. 8a (Supp. 2013)). Although appellant cites to the 2008
version of Minnesota’s civil commitment laws, because the recodification did not change
the substance of the applicable sections, we cite to the most recent version. See Braylock
v. Jesson, 819 N.W.2d 585, 588 (Minn. 2012).
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Appellant’s December 1993 crime did not involve criminal sexual conduct and
can only be considered harmful sexual conduct if it was sexually motivated. Dr.
Gilbertson and Dr. Alberg testified that if appellant had successfully abducted K.M., it is
highly likely he would have sexually assaulted her. The district court found these
opinions credible. The district court also found that appellant’s assault and kidnapping
convictions were, in fact, “motivated by his sexual impulses and [were] part of a pattern
of behavior that had criminal sexual conduct as a goal,” thus raising the rebuttable
presumption that the victim suffered serious physical or emotional harm. The district
court went on to conclude that clear and convincing evidence demonstrated that appellant
was both an SDP and an SPP.
Appellant denies that the December 1993 offense was sexually motivated and
claims that he was trying to find transportation home from the bar. However, the record
amply supports the district court’s finding that his crimes constitute harmful sexual
conduct. The district court carefully identified appellant’s history of six felony
convictions arising out of conduct involving four separate incidents of harmful sexual
conduct, including the sexual assaults committed against his aunt, his girlfriend’s
roommate, and T.E. These offenses involved both known and unknown victims,
generally occurred when appellant was intoxicated, and involved physical restraints and
threats with a knife. These incidents establish a habitual course of conduct and the 1993
offense followed the same pattern of behavior.
Appellant also argues that the district court erred in crediting the testimony of the
examiners, Dr. Alberg and Dr. Gilbertson, who found that the December 1993 offense
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was sexually motivated or part of a pattern of behavior with sexual assault as a goal.
Both examiners concluded that appellant “manifested a sexual, personality, or other
mental disorder or dysfunction that does not allow him to adequately control his sexual
impulses.” Further, both examiners agreed that if appellant had successfully abducted
K.M., it is highly likely he would have sexually assaulted her.
Appellant argues that caselaw prohibits the district court from speculating on a
chain of events. See, e.g., Matter of McGaughey, 536 N.W.2d 621, 624 (Minn. 1995); In
re Rodriguez, 506 N.W.2d 660, 663 (Minn. App. 1993). But the examiner’s conclusions
were not purely speculative. Appellant has a well-documented history of violent sexual
assaults and his conduct toward K.M. was consistent with his earlier attacks. Appellant
came up behind her, grabbed her by the hair, pressed a knife to her throat, attempted to
force her into the car, and threatened to cut her throat with the knife if she did not
comply. Although appellant did not sexually harm K.M., a district court “[is] not
required to delay commitment until appellant or someone else was actually harmed, so
long as the danger of appellant’s condition had already become evident.” Matter of
Clements, 440 N.W.2d 133, 136 (Minn. App. 1989) (quotations omitted), review denied
(Minn. June 21, 1989). The district court found that appellant’s behavior toward K.M.
“was motivated by his sexual impulses and was part of a pattern of behavior that had
criminal sexual conduct as a goal,” and the examiners’ testimony supported the district
court’s determination that appellant is an SDP/SPP requiring commitment. On this
record, we conclude that the district court did not clearly err.
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II.
Appellant argues that the district court erred as a matter of law in denying his
motion to dismiss the commitment petition because it violates his right to be free from
double jeopardy under Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997). We
review the constitutionality of a statute de novo. Rew v. Bergstrom, 845 N.W.2d 764,
776 (Minn. 2014). “Minnesota statutes are presumed constitutional and will be declared
unconstitutional only when absolutely necessary.” State v. Grillo, 661 N.W.2d 641, 644
(Minn. App. 2003) (quotations omitted), review denied (Minn. Aug. 5, 2003).
Appellant’s challenge is meritless. The double jeopardy clause provides that a
person shall not be “twice put in jeopardy of life or limb” for the same offense.
Hendricks, 521 U.S. at 369, 117 S. Ct. at 2085. “Although generally understood to
preclude a second prosecution for the same offense, the Supreme Court has also
interpreted this prohibition to prevent the state from punishing twice, or attempting a
second time to punish criminally, for the same offense.” Id. (quotation omitted). The
Hendricks decision determined that civil commitment proceedings “do[] not constitute a
second prosecution.” Id., 117 S. Ct. at 2086. Two years prior to Hendricks, our supreme
court likewise determined that civil commitment proceedings do not constitute double
jeopardy because they are remedial rather than punitive in nature. Call v. Gomez, 535
N.W.2d 312, 319-20 (Minn. 1995).
In In re Linehan, our supreme court reconsidered its stance in light of the
Hendricks decision. 594 N.W.2d 867, 871 (Minn. 1999). The Linehan court firmly
established that “[t]he Supreme Court’s reasoning supports our earlier ruling that the
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[civil commitment statute] does not contravene the Double Jeopardy and Ex Post Facto
Clauses.” Id. Our supreme court determined that our civil commitment proceedings
shared many elements in common with the statute at issue in Hendricks, including the
fact that both were “in the civil commitment chapters of their statutes; neither requires a
prior criminal conviction; neither includes a scienter requirement for commitment; and
under both acts a person committed is to be released once he or she is sufficiently
rehabilitated and can control his or her sexual impulses.” Id. Thus, the supreme court
concluded that there was no reason to modify its earlier position that civil commitment
proceedings do not expose a defendant to double jeopardy. Id. at 872.
Appellant argues that, the Linehan decision notwithstanding, the civil commitment
statute is punitive “in reality.” Appellant has not cited to relevant authority in support of
this position. Linehan remains good law in Minnesota and this court is bound by that
decision. See JPMorgan Chase Bank N.A. v. Erlandson, 821 N.W.2d 600, 608 (Minn.
App. 2012) (noting that this court is bound by Minnesota Supreme Court precedent).
Affirmed.
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