Minnesota Lawyer
The Minnesota Court of Appeals has reversed the civil commitment of a man a District Court judge deemed sexually dangerous, ruling that the judge erred and misapplied the law.
Judge Jennifer L. Frisch
But the court’s unpublished opinion denies the request of appellant Anthony John Dentz, 25, of Elk River, for an outright reversal. It instead remands the case back to Dakota County.
“Although the District Court made clearly erroneous findings and misapplied the law to determine that Dentz is highly likely to engage in harmful sexual conduct in the future,” Court of Appeals Judge Jennifer L. Frisch wrote for a unanimous panel, “we cannot say that the county failed to produce evidence sufficient to support such a finding. Remand is therefore appropriate.”
Dakota County Attorney James Backstrom declined to comment on the case. Appellant’s attorney Daniel S. Kufus said an appeal is under consideration but no decision has been made.
Dentz was convicted in 2015 of gross misdemeanor fifth-degree sexual conduct for having sex with a 15-year-old after contacting her via social media.
Over the next two years, he was convicted on subsequent charges that he electronically solicited minors and possessed child pornography. A 2016 charge of electronically communicating about sex conduct with a child was dismissed.
Dentz was released from prison in February 2019. He subsequently violated probation by accessing pornographic materials, by engaging in sexually explicit conversations and soliciting a photograph from an underage girl and by accessing the internet. He also got booted from a sex-offender program while on probation.
In December 2019, Dakota County petitioned to have him civilly committed.
A court-appointed psychologist, Dr. Mary Kenning, examined Dentz and found he had several psychological disorders and was likely to continue committing “non-contact” offenses through internet and social media communications.
But she also found he was not violent and that his risk level did not warrant civil commitment in the Minnesota Sex Offender Program, which generally deals with violent offenders.
On July 29, 2020, Dakota County District Court Judge Michael J. Mayer ruled that Dentz is sexually dangerous, disregarding the psychologist’s report and testimony.
“This Court does not consider the viewing and possession of child pornography to be a victimless crime,” Mayer wrote in his order. “While it is not at the extreme end of the violent crime continuum, it certainly falls within the scope of violent crime.”
Public safety requires treatment under confinement, Mayer ruled. He then ordered Dentz civilly committed to the Department of Human Services.
Dentz’s appeal followed.
Clear errors
Frisch’s Jan. 19 opinion was joined by Court of Appeals Chief Judge Susan Segal and Judge Carol Hooten. Their ruling finds that Mayer made several clear errors in granting the county’s commitment petition.
First, Mayer misapplied the law by finding that Dentz’s prior criminal convictions “raise the presumption that the victims sustained serious physical and/or emotional harm, which the respondent has failed to rebut.” Dentz’s behavior constituted harmful sexual conduct as defined in Minn. Stat. § 253D.02, Subd. 8, Mayer ruled.
No, it doesn’t, Frisch’s ruling says.
The statute contains a list of specific crimes that constitute a rebuttable course of harmful sexual conduct, including first- through fourth-degree criminal sexual conduct. Other qualifying crimes include murder, manslaughter and arson, among others, if motivated by sexual impulse or committed as part of a pattern of behavior for which sexual crime is the objective.
None of Dentz’s convictions are on that list, Kufus argued during Dec. 16 oral arguments. Assistant Dakota County Attorney Heather Pipenhagen conceded that point, agreeing with Judge Hooten that the mistake meant Mayer might have improperly shifted the burden of proof.
“It certainly appears that way,” Pipenhagen said at oral arguments. “It raises an idea for everyone, I think, that the court perhaps improperly applied that statutory presumption.”
Kufus further argued that the county failed to prove that Dentz is “highly likely” to engage in future harmful sexual conduct—a finding necessary for sex-offender civil commitment.
He also argued that Mayer clearly erred by finding that his client viewed child pornography while on supervised release, so a presumption of harm related to that conduct was misapplied.
Here, too, the Court of Appeals agreed—but only in part.
It agreed that Mayer found Dentz highly likely to engage in future harmful conduct, based in substantial part on his “history of harmful behavior.” That finding is premised on the same misreading of law that resulted in the erroneous presumption of serious harm to the victims, the court ruled.
Mayer also mistakenly stated that Dentz viewed child porn while on probation, Kufus argued.
That never happened, the Court of Appeals agreed. Instead, Dentz had viewed adult pornography. While that violated terms of his probation, it did not support Mayer’s presumption-of-harm finding, the panel ruled.
Both of those errors undercut the judge’s ruling that Dentz is highly likely to commit harmful sexual conduct in the future, the court ruled.
No proof needed
However, the court disagreed with Kufus that the county failed to demonstrate a likelihood of future harmful conduct.
At oral argument, Kufus said the county never produced evidence of actual harm. That, he said, should result in outright reversal because it precludes the District Court from finding on remand that Dentz engaged in a course of harmful sexual conduct.
Not so, the court ruled. The statutory definition of “harmful sexual conduct” requires no proof of actual harm, the court ruled; it merely requires a substantial likelihood of future harm.
“And where the county presented evidence regarding the underlying bases for Dentz’s prior crimes, we cannot say that the record precludes the District Court from finding that Dentz’s conduct ‘create[d] a substantial likelihood of serious physical or emotional harm’ to others,” Frisch writes, citing statute.
Kufus also argued that the judge improperly overruled his only expert witness in the case, undercutting the “clear and convincing” burden of proof the judge needed to put Dentz on civil commitment.
The lawyer said no case law suggests that is permissible. The only on-point precedential cases, he said, involve conflicting evidence from multiple experts, the attorney argued.
Here, the court made a determination that, while included in an unpublished opinion, might become influential in future cases.
Pipenhagen had argued that judges need not demure to experts when making decisions in such cases. She said that in Dentz’s case, the judge considered more than just Kenning’s expert opinion, she argued. He also considered the so-called Linehan factors and the unique facts of the case.
In the end, she said, Mayer simply disagreed with his expert’s opinion.
“I guess the issue I’m having,” Judge Hooten said to the prosecutor at oral arguments, “is when does a judge basically get to substitute his or her own judgment for that of the only expert testifying?”
“My answer to that is always,” Pipenhagen said. “The judge always can reject the opinion of the expert.” She conceded, however, that it rarely happens.
The Court of Appeals’ ruling reflects agreement with Pipenhagen on that score. “As a threshold matter, we discern no error in the rejection of the evaluator’s ultimate conclusion by the District Court,” the panel ruled.
The District Court judge’s job, the ruling says, is to weigh the Linehan factors, determine the credibility of the evaluator’s testimony and set forth any reasons for diverging from an expert’s appraisal. Here, the court ruled, Mayer did that.
Mayer found that Dentz’s youth increased his risk of re-offense—a Linehan factor finding that was supported by psychologist’s report. His findings based on statistical and actuarial risk analysis, likewise, are supported by clear and convincing evidence, the court found. Several tests scored Dentz as posing a high or greater-than-average risk of re-offense, though at least one found the opposite.
In the end, the panel ruled that “the District Court was not bound to credit the evaluator’s ultimate conclusion over other evidence.”
Accordingly, the court reversed and remanded for further proceedings consistent with its opinion.
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