In the Matter of the CIVIL COMMITMENT OF Gary George SPICER

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2120
In the Matter of the Civil Commitment of: Gary George Spicer.
Filed August 18, 2014
Affirmed in part, reversed in part, and remanded
Johnson, Judge
Sherburne County District Court
File No. 71-PR-13-8
Lori Swanson, Attorney General, John D. Gross, Assistant Attorney General, St. Paul,
Minnesota; and
Kathleen A. Heaney, Sherburne County Attorney, Elk River, Minnesota (for respondent)
Ryan B. Magnus, Jennifer Thon, Jones and Magnus, Attorneys at Law, Mankato,
Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Rodenberg, Judge; and
Crippen, Judge.
SYLLABUS
The district court’s findings of fact lack particularity and do not adequately
demonstrate the district court’s consideration of the factors relevant to determining
whether appellant satisfies the criteria for commitment as an SDP or an SPP.

Retired judge of the Minnesota Court of Appeals, serving by appointment
pursuant to Minn. Const. art.VI, § 10.
OPINION
JOHNSON, Judge
The district court granted a petition to civilly commit Gary George Spicer as a
sexually dangerous person (SDP) and a sexual psychopathic personality (SPP). On
appeal, Spicer primarily challenges the district court’s findings of fact with respect to
both of the legal bases of his commitment. We conclude that the district court’s findings
lack particularity and do not adequately demonstrate the district court’s consideration of
the factors relevant to determining whether Spicer satisfies the criteria for commitment as
an SDP or an SPP. We also conclude that the district court did not err with respect to an
issue concerning the admissibility of the evidence. Therefore, we affirm in part, reverse
in part, and remand for further findings and for further consideration of the applicable
legal issues.
FACTS
Spicer is a 50-year-old man whose civil commitment is based in significant part on
three prior convictions of criminal sexual conduct.
In 2005, Spicer pleaded guilty in Sherburne County to one count of fifth-degree
criminal sexual conduct based on his admission that he sexually assaulted a step-
daughter, R.S., in 2004, when she was 19 years old, and one count of attempted fifth-
degree criminal sexual conduct based on his admission that he attempted to sexually
assault a friend of T.S., another step-daughter, in 2004, when she was 15 years old. The
district court pronounced sentences of one year of imprisonment and 180 days of
imprisonment, respectively, but stayed imposition of the sentences and placed Spicer on
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probation. As conditions of his probation, the district court ordered Spicer to complete a
sex-offender treatment program and to refrain from any unsupervised contact with girls.
In 2012, Spicer pleaded guilty in Sherburne County to one count of fourth-degree
criminal sexual conduct based on his admission that he sexually assaulted another step-
daughter, E.R., in 2011, when she was 22 years old. The district court imposed an
executed sentence of 24 months of imprisonment and ordered that Spicer be evaluated for
civil commitment before his release from prison.
Spicer’s civil commitment also is based, in part, on multiple incidents of sexual
misconduct that did not result in criminal prosecution. Spicer disclosed information
about these incidents during sex-offender treatment and testified about them at trial.
According to his own testimony, Spicer engaged in sexual contact with T.S. on 10 to 20
occasions when she was between two and four years old. He did so by placing his penis
in her mouth, ejaculating onto her face, touching her vagina with his penis, and touching
her vagina with his mouth. Spicer also engaged in sexual contact with R.S. on
approximately five occasions starting in 1990, when she was five years old, and on six
occasions throughout her teen years, in addition to the sexual assault of R.S. for which he
was criminally prosecuted. Spicer also engaged in sexual contact with another 15-year-
old friend of T.S. in 2004 by repeatedly touching her breasts.
In January 2013, Sherburne County petitioned the district court to civilly commit
Spicer as an SDP and an SPP. The district court appointed two psychologists, Thomas
Alberg, Ph.D., and Mary Kenning, Ph.D. The county retained Peter Marston, Ph.D., as
an expert witness. Each psychologist submitted a written report before trial. Dr. Alberg
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and Dr. Marston opined that Spicer satisfies the criteria for commitment both as an SDP
and an SPP. Dr. Kenning, however, opined that Spicer does not satisfy the criteria for
commitment as an SDP. Dr. Kenning did not offer an opinion as to whether Spicer
satisfies the criteria for commitment as an SPP.
A four-day trial was held in May 2013. The district court heard testimony from
the three psychologists, Spicer, his former wife, and his intensive-supervised-release
agent. In September 2013, the district court issued a 79-page order in which it concluded
that Spicer satisfies the criteria for commitment as both an SDP and an SPP, granted the
county’s petition, and ordered that Spicer be committed indefinitely to the custody of the
commissioner of human services. In October 2013, Spicer moved for a new trial, seeking
more particular findings; the district court denied the motion. Spicer appeals.
ISSUES
I. Did the district court err by concluding that Spicer is an SDP?
II. Did the district court err by concluding that Spicer is an SPP?
III. Did the district court err by allowing the county to bring one of the victims
of Spicer’s criminal sexual conduct into the courtroom so that the district court could
observe her?
ANALYSIS
I.
Spicer argues that the district court erred by concluding that he satisfies the criteria
for commitment as an SDP.
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The county has the burden of proving the necessary facts by clear and convincing
evidence. Minn. Stat. §§ 253B.18, subd. 1(a), .185, subd. 1(a) (2012). On appeal, this
court applies a clear-error standard of review to the district court’s findings of fact and
reviews the record in the light most favorable to the findings of fact. Minn. R. Civ. P.
52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re Civil Commitment of
Navratil, 799 N.W.2d 643, 647 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011).
We apply a de novo standard of review to the question whether the facts found by the
district court satisfy the statutory criteria for commitment, which is a question of law. In
re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I).
A.
A person is an SDP if he:
(1) has engaged in a course of harmful sexual
conduct as defined in [section 253B.02,] subdivision 7a;
(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 as defined in subdivision 7a.
Minn. Stat. § 253B.02, subd. 18c(a) (2012). The third statutory requirement is satisfied if
a person is “highly likely” to reoffend by engaging in acts of harmful sexual conduct in
the future. In re Civil Commitment of Ince, 847 N.W.2d 13, 22 (Minn. 2014).
In this case, Spicer does not challenge the district court’s findings with respect to
the first and second requirements of the SDP statute. He argues only that the district
court erred with respect to the third requirement by finding that he is highly likely to
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reoffend. To determine whether a person is highly likely to reoffend, a district court must
engage in a “multi-factor analysis.” Id. at 23. The multi-factor analysis includes the
following six factors, which are commonly known as the Linehan factors:
(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.
Id. at 22 (quoting Linehan I, 518 N.W.2d at 614). The multi-factor analysis also must
include any other type of “relevant and reliable evidence,” including evidence derived
from actuarial risk assessments and structured clinical assessments. Id. at 23-24. But a
district court must “be wary of the potential factor repetition that can result from
considering the Linehan factors in addition to multiple actuarial assessments that use
different approaches based on factors that are the same as or similar to the Linehan
factors.” Id. at 24.
B.
As is typical in cases of this type, the experts in this case utilized a battery of
psychological assessments to guide their professional analysis of Spicer’s likelihood of
reoffending. Each of the experts used the Static-99R actuarial risk assessment in
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conjunction with the SRA-FV assessment. Together, these two assessments produce a
statistical prediction of a person’s likelihood of reoffending based on both static and
dynamic risk factors. In addition, each of the experts also used a variety of structured
clinical assessments that identify whether certain dynamic risk factors for reoffending are
present, such as sexual deviance, psychopathy, and past supervision failures. All three
experts agree that the actuarial risk assessment indicates that Spicer has a 24%
probability of reoffending over his lifetime. The experts disagree, however, about the
weight to give to this statistical probability.
Dr. Alberg testified that Spicer’s likelihood of reoffending is higher than indicated
by this statistical probability because it does not account for certain dynamic factors that
increase his likelihood of reoffending. Specifically, Dr. Alberg cited Spicer’s inability to
follow through on the terms of his conditional release, his inability to self-regulate, and
the general instability in his lifestyle. Based on the result of the actuarial assessment and
these additional factors, Dr. Alberg opined that Spicer is highly likely to reoffend
sexually.
Dr. Marston wrote in his report that Spicer’s likelihood of reoffending is higher
than indicated by the actuarial assessment. Dr. Marston testified that Spicer’s probability
of reoffending should be increased based on dynamic factors such as his “multiple
paraphilic interests” as well as his “moderately high psychopathic personality and
intellectual brightness.” Based on these additional factors, Dr. Marston wrote in his
report that Spicer is highly likely to reoffend. But Dr. Marston later testified that Spicer’s
likelihood of reoffending is less than “more likely than not.”
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Dr. Kenning wrote in her report that Spicer’s likelihood of reoffending is not
higher than 24%. Dr. Kenning testified that the Static-99R assessment, when used in
conjunction with the SRA-FV assessment, already accounts for all relevant dynamic
factors. Accordingly, Dr. Kenning opined that Spicer is not highly likely to reoffend.
The district court found “Drs. Alberg and Marston’s opinions more credible and
persuasive [than] Dr. Kenning’s opinion.” The district court concluded by finding that “it
is highly likely that Mr. Spicer will engage in further harmful sexual conduct and he is
dangerous to others.”
C.
Spicer contends that the district court erred by failing to make sufficiently
particular findings of fact.
The supreme court has discussed the minimum requirements of district court
findings in sex-offender commitment cases on two occasions. In Linehan I, the district
court concluded that the appellant was an SPP based on a conclusory finding that he
“shows an utter lack of power and ability to control his sexual impulses.” 518 N.W.2d at
613. The district court had relied on the testimony of two experts, who testified
inconsistently as to whether the appellant could control his behavior. Id. In light of the
conflicting evidence, the supreme court stated, “It is not enough” for a district court to
use language from the SPP multi-factor test “in a conclusory fashion.” Id. at 614.
In Ince, the district court concluded that the appellant was an SDP based on the
testimony of one expert, whom the district court found to be “particularly persuasive and
convincing.” 847 N.W.2d at 18. The district court stated in its order that it accepted this
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expert’s testimony and, unless otherwise noted, rejected the testimony of the experts who
did not agree with the first expert. Id. But the first expert’s testimony was inconsistent
on the issue whether the appellant was highly likely to reoffend. Id. at 24-25. In light of
the conflicting evidence, the supreme court stated that a district court may not “simply
review[] the Linehan factors after largely accepting [one expert’s opinions] without
indicating the significance of any of those factors within the context of a multi-factor
analysis.” Id. at 24. The supreme court remanded with instructions to the district court to
“comprehensively consider all relevant, reliable evidence” within the context of a multi-
factor analysis. Id. at 24.
Linehan I and Ince are consistent with the supreme court’s caselaw concerning
findings of facts in other contexts. For example, in Rosenfeld v. Rosenfeld, 311 Minn. 76,
249 N.W.2d 168 (1976), a case concerning child custody, the supreme court held that a
district court “must make written findings which properly reflect its consideration” of the
relevant statutory factors. Id. at 82, 249 N.W.2d at 171. The supreme court noted that
custody determinations are given deferential treatment by appellate courts and that,
therefore, it is “especially important that the basis for the court’s decision be set forth
with a high degree of particularity if appellate review is to be meaningful.” Id. (quotation
omitted). The supreme court reasoned that requiring more particular findings would
“(1) assure consideration of the statutory factors by the family court; (2) facilitate
appellate review of the family court’s custody decision; and (3) satisfy the parties that
this important decision was carefully and fairly considered by the family court.” Id.
Following Rosenfeld, this court has reversed and remanded in custody cases if a district
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court’s findings on the relevant facts are insufficient. See, e.g., Reyes v. Schmidt, 403
N.W.2d 291, 293 (Minn. App. 1987); Schaapveld v. Schaapveld, 398 N.W.2d 72, 75
(Minn. App. 1986); Bjerke v. Wilcox, 384 N.W.2d 250, 252 (Minn. App. 1986). The
supreme court also has stated, in cases involving a termination of parental rights, that a
district court’s findings of fact must “provide insight into which facts or opinions were
most persuasive of the ultimate decision.” See, e.g., In re Welfare of M.M., 452 N.W.2d
236, 239 (Minn. 1990). We find these opinions from other contexts helpful in
interpreting the requirements of Linehan I and Ince.
D.
In this case, the district court issued a 79-page order. The order consists of 11
paragraphs describing the procedural history of the case, 317 paragraphs of findings of
fact, 10 paragraphs of conclusions of law, and 4 paragraphs that specify the relief
awarded to the petitioner. The findings of fact are organized in sections with sub-
headings such as “Childhood and Military Service,” “Financial Condition,” “Medical
History,” and “Sexual and Marital History.” In each of these sections, the order
painstakingly chronicles Spicer’s life experiences. It appears that the findings of
historical fact in these sections are largely undisputed. The order continues with 6
paragraphs that describe Spicer’s testimony, 14 paragraphs that describe the testimony of
lay witnesses, and 80 paragraphs that describe the testimony and written opinions of the
expert witnesses. Included in these findings are 16 paragraphs that relate to the six
Linehan factors. The order reflects a considerable degree of effort and care on the part of
the district court judge.
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Nonetheless, Spicer is correct in arguing that the district court’s order does not
make sufficiently particular findings of fact on the key issues. The district court’s
findings in this case are insufficient for three reasons.
First, the vast majority of the district court’s findings are not truly findings of fact
because they are merely recitations of the evidence presented at trial. For example, in
paragraph 294, the district court found as follows:
Dr. Alberg testified that Mr. Spicer’s age does not lower his
risk because he has already offended at an age where risk
should have been reduced, he has an unstable relationship
history, and some antisocial behavior. Dr. Marston testified
that Mr. Spicer’s age does not reduce his risk because
research has shown that pedophiles often do not have a
decrease in their sex drive as they age. . . . Dr. Kenning
opined that Mr. Spicer’s gender increases his risk of re-
offense.
This court previously has stated that findings beginning with phrases such as “‘petitioner
claims,’ ‘according to petitioner’s application,’ and ‘respondent asserts,’” are not “true
findings.” Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989). This is so because
a district court’s “recitation of what others have observed is not a finding of fact that
those observations are true.” Hassing v. Lancaster, 570 N.W.2d 701, 703 (Minn. App.
1997). Accordingly, it is insufficient for a district court to “merely recite[] or
summarize[] excerpted portions of testimony of [the] witnesses without commenting
independently either upon their opinions or the foundation for their opinions or the
relative credibility of the various witnesses.” M.M., 452 N.W.2d at 239. Our review of
the district court’s order reveals a relatively small number of paragraphs in which the
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district court actually finds facts rather than recites evidence, but most of those findings
relate to factual issues that are not in dispute.
Second, of the “true findings” concerning disputed issues, nearly all of them are
stated in a conclusory manner. For example, after reciting the experts’ testimony, the
district court stated that it found “Drs. Alberg and Marston’s opinions more credible and
persuasive that Dr. Kenning’s opinion.” A district court cannot satisfy its obligation to
find facts with particularity by simply adopting in toto the opinions of a particular expert.
See Ince, 847 N.W.2d at 24. The problem with such an approach is illustrated by the fact
that the experts’ opinions in this case are varied and sometimes inconsistent. For
example, the opinion of Dr. Alberg was not identical to the opinion of Dr. Marston.
Also, Dr. Marston opined in writing that Spicer is “highly likely” to reoffend, but he also
testified that Spicer’s likelihood of reoffending is less than “more likely than not.”
Dr. Marston’s testimony is not only internally inconsistent, but his latter statement
appears to reflect a degree of uncertainty that is below the supreme court’s “highly
likely” standard. See Ince, 847 N.W.2d at 21-22. Because of the conclusory nature of
the district court’s findings of fact concerning matters of expert evidence, we are unable
to determine which portions of which experts’ opinions the district court relied on when
making findings of fact and conclusions of law.
Third, the district court’s findings of fact are not meaningfully tied to its
conclusions of law. The district court’s order states that it considered the Linehan
factors, but the order does not explain what evidence the district court found most
persuasive or least persuasive, which facts the district court found to be most important or
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least important, or which Linehan factors were most significant in the ultimate resolution
of the case. In the context of sex-offender commitment cases, the supreme court has
stated that a district court must explain “the significance of any of [the Linehan] factors
within the context of a multi-factor analysis.” See id. at 24. Likewise, in the child-
custody context, if a district court fails to sufficiently explain the connection between its
findings and its conclusions, a remand is required. See, e.g., Maxfield v. Maxfield, 452
N.W.2d 219, 221 (Minn. 1990); Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App.
1993), review denied (Minn. Jan. 28, 1994). If there are inconsistent facts or testimony in
the record, as in this case, such an explanation is particularly important. See Ince, 847
N.W.2d at 24-25.
For the foregoing reasons, the district court’s findings are insufficient. See Ince,
847 N.W.2d at 24-25; Linehan I, 518 N.W.2d at 614. In reaching this conclusion, we
recognize that a district court’s responsibility in a case such as this one is a “difficult
task,” in significant part because of a “voluminous and complex” record. Ince, 847
N.W.2d at 23 (quotation omitted). We also recognize that our conclusion is somewhat
counterintuitive in light of the length and scope of the district court’s order. But the sheer
volume of information contained in the district court’s order is not determinative. Even a
long order may be insufficient if it does not permit meaningful appellate review. An
order does not permit meaningful appellate review if it does not identify the facts that the
district court has determined to be true and the facts on which the district court’s decision
is based. See Ince, 847 N.W.2d at 21-22; Linehan I, 518 N.W.2d at 614; see also M.M.,
452 N.W.2d at 239; Rosenfeld, 311 Minn. at 82, 249 N.W.2d at 171.
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In many ways, the insufficiency of the district court’s findings appears to be a
product of the manner in which the case was presented by the parties. In our judicial
experience, it has become common in sex-offender commitment cases for counsel to
submit an exceedingly large volume of information and materials, which tends to add
complexity to an already-complex case and to set a pattern for further proceedings in that
particular case. In this case, the county’s petition is 39 pages long, consisting of 186
paragraphs. After the presentation of evidence, the county submitted a 78-page document
containing 359 paragraphs of proposed findings and 8 paragraphs of conclusions of law.
Spicer’s counsel simultaneously submitted a 38-page document containing 125
paragraphs of proposed findings. Most of the parties’ proposed findings are phrased as
mere recitations of evidence. Our comparison of the parties’ submissions and the district
court’s order reveals that the district court did not adopt either party’s proposal verbatim.
Yet it is no surprise that the district court’s order is similar to the parties’ submissions in
style, length, and detail. The county’s responsive brief appears to suggest that the length
of the district court’s order is a reason why the district court should be affirmed.
In our view, the manner of practice reflected in this case is to be avoided. A
preoccupation with large quantities of detailed information often tends to obscure, rather
than to reveal, the essential facts of a case. The district court’s fact-finding task is made
more difficult, not less difficult, when counsel submit hundreds of paragraphs of
proposed findings of facts. In very few cases are such a large number of facts actually
pertinent to a district court’s legal analysis and the ultimate decision. In most cases,
including this one, the submission of a large number of proposed findings tends to
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frustrate any effort to make a distinction between the most-important facts, which are apt
to turn the case one way or the other, and the less-important facts.
Therefore, we reverse and remand to the district court for further findings and
further consideration of the issue whether Spicer is “‘highly likely’ to engage in acts of
harmful sexual conduct.” See id. at 22.
II.
Spicer also argues that the district court erred by concluding that he satisfies the
criteria for commitment as an SPP. To commit a person as an SPP, a petitioner is
required to prove, by clear and convincing evidence, that a person “has evidenced, by a
habitual course of misconduct with respect to sexual matters, an utter lack of power to
control the person’s sexual impulses and, as a result, is dangerous to other persons.”
Minn. Stat. § 253B.02, subd. 18b; see also Minn. Stat. §§ 253B.18, subd. 1(a), .185,
subd. 1(a).
Spicer contends that the district court erred by finding that he has an utter lack of
power to control his sexual impulses. Spicer asserts that the SPP standard is a higher
standard than the SDP standard. The district court’s findings that relate specifically to
the SPP issue are similar to the findings that relate specifically to the SDP issue. For
essentially the same reasons, the district court erred by not making more particular
findings on the issues relevant to whether Spicer is a SPP. Thus, we reverse and remand
the SPP issue to the district court for further findings and further consideration.
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III.
Spicer last argues that the district court erred by allowing E.R., one of the step-
daughters whom he previously had sexually abused, to enter the well of the courtroom
and appear before the district court. After Spicer testified, the county requested
permission to bring E.R. before the district court so that the district court could observe
E.R. and her behavior. Spicer objected. The district court stated in its final order that it
allowed the courtroom appearance “because [Spicer’s] testimony raised questions about
E.R.’s intellectual capabilities and socialization abilities.”
E.R.’s appearance in the courtroom, along with her mother, A.S., is reflected in the
trial transcript as follows:
THE COURT: Good morning. Can you tell me your
names?
[A.S.]: I’m [A.S.].
E.R.: (No audible response.)
THE COURT: You don’t want to tell me? You don’t
have to. . . . [I]s there anything you do want to tell me?
E.R.: (Shaking head.)
THE COURT: You don’t have to. That’s not a
problem. You don’t have to. Thank you for coming in.
Spicer frames the issue as a matter of the admissibility of evidence. See State v.
Walen, 563 N.W.2d 742, 749 (Minn. 1997). He contends that the district court erred
because the probative value of E.R.’s courtroom appearance was substantially
outweighed by the danger of unfair prejudice. Relevant evidence “may be excluded if its
16
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” Minn. R. Evid. 403. “Unfair prejudice
under rule 403 is not merely damaging evidence, even severely damaging evidence;
rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party
an unfair advantage.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005). “The decision
of whether to admit or exclude evidence is within the district court’s discretion and will
be reversed only if the court has clearly abused its discretion.” In re Civil Commitment of
Ramey, 648 N.W.2d 260, 270 (Minn. App. 2002), review denied (Minn. Sept. 17, 2002).
In this case, E.R.’s courtroom appearance had some probative value because it had
a tendency to demonstrate her diminished intellectual and social capabilities, which
would tend to indicate a lack of capacity to consent to sexual conduct with Spicer. The
risk of unfair prejudice was low because the courtroom appearance occurred in the
context of a court trial. The supreme court has stated that “excluding relevant evidence at
a bench trial on the grounds of unfair prejudice is in a sense ridiculous” because “there is
comparatively less risk that [a] district court judge, as compared to a jury of laypersons,
would use the evidence for an improper purpose or have his sense of reason overcome by
emotion.” State v. Burrell, 772 N.W.2d 459, 467 (Minn. 2009) (quotation omitted).
Accordingly, it does not appear that the probative value of the courtroom appearance was
substantially outweighed by the risk of unfair prejudice.
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Thus, the district court did not abuse its discretion by allowing the county to
present E.R. to the district court in a brief courtroom appearance for the purpose of
allowing the district court to observe her.
DECISION
The district court did not err by granting the county’s request to bring a person
into the courtroom to allow the district court to observe the person. But the district court
erred by not making findings of fact that are sufficiently particular to permit meaningful
appellate review. Therefore, we reverse and remand to the district court for further
findings and further consideration of the issues relevant to the county’s claims that Spicer
is an SDP and an SPP.
Affirmed in part, reversed in part, and remanded.
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