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In re Civil Commitment of Duvall

Court of Appeals of Minnesota

July 16, 2018

In the Matter of the Civil Commitment of: Thomas Ray Duvall.

          Judicial Appeal Panel File No. AP16-9042 Hennepin County District Court File No. 27-P1-91-034113

          Lori Swanson, Attorney General, Michael Everson, Noah A. Cashman, Heather Kjos, Assistant Attorneys General, St. Paul, Minnesota (for appellant Commissioner of Human Services)

          Michael O. Freeman, Hennepin County Attorney, Theresa Couri, Managing Assistant County Attorney, John L. Kirwin, Assistant County Attorney, Minneapolis, Minnesota (for appellant Hennepin County)

          William L. Lubov, Golden Valley, Minnesota; and Michael C. Hager, Minneapolis, Minnesota (for respondent Thomas Ray Duvall)

          Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Randall, Judge.


         On appeal, we review a judicial appeal panel's order granting provisional discharge for clear error. We will not reverse the panel's provisional discharge unless the party opposing discharge proves by clear and convincing evidence that the provisional discharge should be denied.


          RANDALL, JUDGE [*]

         In 1991, Thomas Ray Duvall was civilly committed as a "psychopathic personality" under what was then Minn. Stat. § 526.09 (1990). In 2014, Duvall requested a provisional discharge from his commitment. A judicial appeal panel[1] granted his request. The commissioner of human services and Hennepin County appeal. We conclude the panel did not err by finding that Duvall satisfied the statutory requirements for provisional discharge.


         In 1991, Duvall was civilly committed to the Minnesota Security Hospital as a psychopathic personality under what was then Minn. Stat. § 526.09 (1990). Duvall's commitment was based on repeated sexual assaults that occurred over thirty years ago. Duvall's first known sexual offense occurred in May 1975, when he and two other males raped a 17-year-old girl. On September 4, 1978, Duvall again raped a 17-year-old girl. He pleaded guilty to criminal sexual conduct in the third degree. Duvall attended treatment for approximately three months, left treatment, and was sent to prison. Duvall was released from prison in September 1980. He was later arrested on February 25, 1981, after he attempted to force a woman into his car and threatened her with a knife. Based on this offense, Duvall was convicted for assault and making terroristic threats. Duvall was imprisoned and released on March 21, 1982.

         On March 24, 1982, Duvall sexually assaulted three girls. Duvall was imprisoned for these assaults until December 4, 1987. Following his release, Duvall was placed on supervised release at a sexual-offender treatment program. On December 26, 1987, shortly after his release from prison, Duvall violently sexually assaulted a 17-year-old girl in her apartment over a three-hour period. Duvall was sentenced to 240 months of incarceration.

         Based on Duvall's history of sexual misconduct, a detective petitioned the district court to judicially commit Duvall on January 23, 1991. On April 4, 1991, the Hennepin County District Court granted the petition for civil commitment and committed Duvall to the custody of the Minnesota Security Hospital following his prison sentence. The district court held another hearing pursuant to Minn. Stat. § 253B.19, subd. 2 (1990), and indeterminately committed Duvall to the Minnesota Security Hospital to receive treatment for his sexual aggression. Duvall appealed the district court's commitment order on September 13, 1991, and we affirmed. In re Duvall, No. C5-91-1799, 1991 WL 276194 (Minn.App. Dec. 31, 1991), review denied (Minn. Mar. 26, 1992).

         Duvall has received treatment at his current treatment location at the Minnesota Sex Offender Program (MSOP) in St. Peter since May 3, 2001. Duvall has been in the community preparation services (CPS) portion of the program since April 8, 2009. CPS provides treatment for clients who have successfully progressed through all three treatment phases at MSOP, and includes three stages that provide the client with an increasing level of accountability while remaining under supervision. Duvall has been in the final stage of CPS since April 22, 2010.

         This final stage of treatment requires Duvall to follow his individual treatment plan, maintain a community-based support system, demonstrate leadership skills, and prepare for his provisional discharge and transition into the community. Duvall has achieved all of the privileges that he can obtain during treatment, regularly participates in supervised, off-campus visits, and has had no reported issues or incidents from his time in the community. Duvall also participates in a men's support group at Project Pathfinder that helps him develop healthy sexual boundaries.

         Based on his success in the last stage of his treatment, Duvall petitioned the SRB for a provisional discharge from his commitment on June 25, 2015. The SRB conducted a hearing and recommended provisional discharge on March 3, 2016. The Commissioner of the Minnesota Department of Human Services (commissioner) and Hennepin County (county) objected to the recommendation and requested a hearing before a judicial appeal panel. The panel held a five-day hearing in April 2017. Duvall called 18 witnesses. Four MSOP security counselors, two MSOP reintegration specialists, MSOP's operations supervisor and MSOP's reintegration director all testified that Duvall never engaged in behavior when he was interacting with others in the community that led them to be concerned for Duvall's or others' safety. The MSOP employees' testimony demonstrated that Duvall has participated in hundreds of community outings throughout his treatment and none of the MSOP employees ever witnessed Duvall engage in concerning behavior when he was in the community. Kristin Dehrkoop, Duvall's therapist from May 2015 to December 2016, testified that she supported Duvall's petition based on her experience as his therapist. Kristi Mike, Duvall's therapist from December 2016 to the time of the hearing, testified that she also supported his petition because he has successfully completed every phase of treatment offered by MSOP. Timothy Benesch, the director of CPS at MSOP, testified that Duvall was transparent and had no reported incidents of behavioral issues. Benesch also stated that he supported Duvall's petition for provisional discharge.

         Others within the community also testified about their interactions with Duvall throughout his time in treatment. Duvall's Alcoholics Anonymous sponsor testified that he had worked with Duvall on his sobriety since 2004 and would continue serving as his sponsor if he were provisionally discharged. Thomas Jones, a community volunteer at Project Pathfinder, testified that Duvall has come to "Choosing Healthy Sexual Boundaries" meetings for three years and facilitates meetings, provides positive feedback, and does not act with excessive control or leadership during the meetings. Duvall's manager at the thrift store where he volunteers testified that Duvall made a positive impact and was respectful, courteous, reliable, helpful to others, and diligent when volunteering. Duvall's brother, Scott Duvall, testified about his relationship with Duvall. He explained that they speak at least once per week and he intends to stay in Duvall's life if he is provisionally discharged. Christopher Onken, the owner of a group home, testified that the group home could provide treatment and housing services to Duvall if he were provisionally discharged. Duvall also testified about his past treatment, current treatment setting, and how he intends to treat his sexual issues if he is released. Duvall also called Dr. Lauren Herbert, the director of the forensic evaluation department in the Department of Human Services. She testified that she supports Duvall's petition for provisional discharge based on her psychosexual evaluation of Duvall.

         The commissioner called four witnesses. Jerome Brown, a polygraph examiner, testified that Duvall did not pass polygraph exams that asked him about his transparency in his sexual fantasy logs. The commissioner also called Dr. James Alsdurf, the court-appointed examiner at the hearing. Dr. Alsdurf concluded that Duvall needed continuing treatment and supervision in his current setting. The state also called two clinical psychologists as expert witnesses, Dr. Mary Kenning and Dr. Harry Hoberman. They did not interview Duvall. They conducted "psychosexual evaluations" based on Duvall's treatment records and then recommended that his petition for provisional discharge be denied.

         In January 2018, the judicial appeal panel issued a 40-page order and memorandum of law granting Duvall's petition for provisional discharge. The panel concluded that Duvall no longer required treatment in his current setting and that the provisional discharge plan provided a reasonable degree of protection to the public. The commissioner and county appeal.


         I. Did the panel err by concluding the county and commissioner did not prove with clear and convincing evidence that Duvall's petition ...

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