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In re Civil Commitment of Wagner

Court of Appeals of Minnesota

December 2, 2013

In the Matter of the Civil Commitment of: Thomas Scott Wagner.

UNPUBLISHED OPINION

Dakota County District Court File No. 19HA-PR-10-387.

Thomas Scott Wagner, Moose Lake, Minnesota (pro se appellant).

James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Hastings, Minnesota (for respondent Dakota County).

Considered and decided by Cleary, Chief Judge; Kalitowski, Judge; and Kirk, Judge.

KALITOWSKI, Judge.

In this appeal from his indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP), appellant Thomas Scott Wagner argues that (1) newly discovered evidence warrants reversal of his commitment order and (2) the evidence is insufficient to demonstrate that he meets the statutory criteria for commitment. We affirm.

DECISION

The district court shall civilly commit a person under the Minnesota Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic Personalities if it finds by clear and convincing evidence the need for commitment. Minn. Stat. §§ 253D.01, .07, subd. 3 (Supp. 2013).[1] Whether there is clear and convincing evidence in the record to support commitment is a question of law, which this court reviews de novo. In re Thulin, 660 N.W.2d 140, 144 (Minn.App. 2003). Findings of fact will not be set aside unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). The record is viewed in the light most favorable to the district court's decision. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). This court defers to the district court's role as fact-finder and its opportunity to assess witness credibility. In re Civil Commitment of Ramey, 648 N.W.2d 260, 269 (Minn.App. 2002), review denied (Minn. Sept. 17, 2002). "Where the findings of fact rest almost entirely on expert testimony, the [district] court's evaluation of credibility is of particular significance." Thulin, 660 N.W.2d at 144 (quotation omitted). The district court "shall make its determination upon the entire record." Minn. Stat. § 253B.08, subd. 7 (2012).

I.

Appellant argues that the release of the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5) constitutes newly discovered evidence and warrants a reversal of his civil commitment order. He contends that under the DSM-5 he no longer has the sexual, personality, or mental disorder that is required for commitment under the SDP and SPP statutes. We disagree.

Because this is appellant's direct appeal of his civil commitment as an SPP and an SDP, this court's review is limited to the arguments and matters presented and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating an appellate court will consider only those matters and theories presented to and considered by the district court). Because appellant did not argue his newly discovered evidence at the district court, his argument is not properly before this court, and we will not consider this argument for the first time on appeal. See Carter v. Anderson, 554 N.W.2d 110, 113 (Minn.App. 1996) (refusing to consider a Minn. R. Civ. P. 60.02 argument for the first time on appeal), review denied (Minn. Dec. 23, 1996).

Moreover, even if we were to consider appellant's argument that the DSM-5 constitutes newly discovered evidence, it is without merit. Appellant claims that the personality and sexual disorders he was previously diagnosed with by expert examiners have been removed, revised, or are no longer applicable under the DSM-5.

Three experts, Dr. Linderman, Psy.D., L.P., Dr. Kenning, Ph.D., L.P., and Dr. Gilbertson, Ph.D., L.P., all diagnosed appellant with axis II antisocial personality disorder and with axis I paraphilia. Furthermore, Dr. Linderman and Dr. Kenning diagnosed appellant with axis I voyeurism, and Dr. Gilbertson stated that appellant has a paraphilia with a voyeuristic focus. Thus, although the DSM-5 now distinguishes between a paraphilia and a paraphilic disorder, the criteria for personality disorders and voyeurism diagnoses did not substantially change. Therefore, appellant's newly discovered evidence argument fails because ...


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