This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-0635

In the Matter of the Civil Commitment of: Kenneth Melvin Shue, Jr.

Filed September 29, 2014

Affirmed

Schellhas, Judge

Nobles County District Court

File No. 53-PR-13-490

Robert L. Gjorvad, Runchey, Louwagie & Wellman, P.L.L.P., Marshall, Minnesota (for 

appellant Kenneth Melvin Shue, Jr.)

Lori Swanson, Attorney General, John D. Gross, Assistant Attorney General, St. Paul,

Minnesota; and

Kathleen Kusz, Nobles County Attorney, Worthington, Minnesota (for respondent 

Nobles County)

Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and 

Klaphake, Judge.

*

 

U N P U B L I S H E D O P I N I O N

SCHELLHAS, Judge

Appellant challenges his indeterminate commitment as a sexual psychopathic 

personality and a sexually dangerous person, raising evidentiary issues and arguing that 

the evidence is insufficient to support his commitment. We affirm.

 

*

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
2

FACTS

Respondent Nobles County petitioned to commit appellant Kenneth Shue, Jr. as a 

sexually dangerous person (SDP) and a sexual psychopathic personality (SPP). For 

Shue’s examination, the district court appointed Drs. Penny Zwecker and Robert Riedel, 

the latter at Shue’s request. The county retained Dr. James Gilbertson as an expert 

examiner. At trial, Drs. Zwecker, Riedel, and Gilbertson testified, as did Shue’s intensive 

supervised release (ISR) agent, Brett Serreyn; Shue’s friend, Larry Lupkes; and two of 

Shue’s victims, J.B. and A.P. Shue did not waive his marital privilege, thereby preventing

the county from calling his wife, C.S., to testify. After the trial concluded but before the 

district court ruled, the county moved to reopen the record based on Shue’s posttrial 

behavior. The district court granted the motion and subsequently also granted the 

county’s motion to excuse Shue from the hearing because of his violent behavior.

At the hearing to reopen the record, the district court received additional 

documentary evidence and subsequently concluded that Shue met the criteria for 

commitment as an SDP and SPP and indeterminately committed him to the Minnesota 

Sex Offender Program (MSOP).

This appeal follows.

D E C I S I O N

Evidentiary Issues

Minnesota’s commitment act provides that “[t]he court shall admit all relevant 

evidence at the hearing” and “shall make its determination upon the entire record 

pursuant to the Rules of Evidence.” Minn. Stat. § 253B.08, subd. 7 (2012). In civil 
3

commitment proceedings, a set of special rules supersedes any other rules which conflict 

with the special rules. Minn. Spec. R. Commit. & Treat. Act 1(a), (b). With respect to 

evidence, “[t]he court may admit all relevant, reliable evidence, including but not limited

to the respondent’s medical records, without requiring foundation witnesses.” Id. at 15. 

Shue’s Marital Privilege

As explained below, Shue argues that the district court violated his marital 

privilege by relying on information from C.S.’s statements and past testimony in its 

commitment order. “The availability of a privilege established under statutory or 

common law is an evidentiary ruling to be determined by the [district] court and reviewed 

based on an abuse of discretion standard.” State v. Gianakos, 644 N.W.2d 409, 415 

(Minn. 2002). “The determination whether a particular testimonial privilege or exception 

exists, however, is a question of law [that an appellate] court reviews de novo.” Id.

The marital-privilege statute provides:

A husband cannot be examined for or against his wife 

without her consent, nor a wife for or against her husband 

without his consent, nor can either, during the marriage or 

afterwards, without the consent of the other, be examined as 

to any communication made by one to the other during the 

marriage.

Minn. Stat. § 595.02, subd. 1(a) (Supp. 2013). 

The statute has two distinct privileges: (1) the privilege 

to prevent one spouse from testifying against the other during 

their marriage (the marital testimony privilege); and (2) the

privilege to prevent one spouse from testifying at any time, 

during the marriage or after, concerning confidential 

interspousal communications during the marriage (the marital 

communications privilege). 
4

State v. Zais, 805 N.W.2d 32, 37 n.1 (Minn. 2011) (quotations omitted).

Shue invoked his marital privilege before the commencement of trial, objecting to 

C.S.’s testimony at trial and the admission of C.S.’s statements and testimony about three 

past incidents involving Shue, as contained in exhibits 6 and 9. The district court 

precluded the county from calling C.S. as a witness but received exhibits 6 and 9, subject 

to Shue’s objection. The court did not rule on Shue’s objection at that time.1 And, after 

trial, without expressly ruling on Shue’s objection, the court relied on information from 

exhibits 6 and 9 in its commitment order. 

In paragraph 45 of the commitment order, the district court mentioned information 

from C.S.’s prior testimony and her police interviews in connection with Shue’s criminal 

proceeding that involved J.P. In the criminal proceeding that involved J.P., Shue did not 

assert his marital privilege to prevent C.S. from testifying. In paragraph 76 of the order,

the court mentioned information from C.S.’s prior testimony and her police interviews in 

connection with Shue’s criminal proceeding that involved L.J. In the criminal proceeding

that involved L.J., Shue did not assert his marital privilege to prevent C.S. from 

testifying. In paragraphs 183 and 184 of the order, the court mentioned information from 

police interviews with C.S. in connection with an uncharged incident involving Shue and 

Y.G.G.

 

1

The transcript reflects that Shue’s attorney stated that he would submit a memorandum 

at the end of the case to address Shue’s marital-privilege objection. The district court 

noted that it would make a ruling on whether it would consider the objected-to exhibits 

“following the filing of memorandum by counsel but [would] not consider those items 

until such time as a ruling has been issued.” The parties did submit memoranda on this 

issue following trial.
5

Regarding the admission of C.S.’s past testimony at Shue’s commitment trial, 

Shue waived his marital privilege by failing to assert his marital privilege or object to 

C.S.’s testimony in the prior trials. See State v. Clark, 296 N.W.2d 372, 376 (Minn. 1980) 

(“Since the defendant waived the privilege in the prior proceeding by failing to object, 

and the information was made public, there remains no ‘confidence’ to protect no[r]

purpose to serve by exclusion of the same evidence in the current proceeding.”). C.S.’s 

police-interview statements were not testimony and did not reveal confidential 

interspousal communications and therefore are outside of the scope of the marital 

privilege. See State v. Schifsky, 243 Minn. 533, 539–40, 69 N.W.2d 89, 93–94 (1955) 

(holding that admission of testimony by officers concerning wife’s statements to them did 

not violate section 595.02). We conclude that the district court did not abuse its discretion

by relying on C.S.’s past testimony and statements contained in exhibits 6 and 9, thereby 

implicitly overruling Shue’s objection.

Reopening the Trial Record

Shue argues that the district court erred by reopening the trial record under Minn. 

R. Civ. P. 59.01, which provides that “[a] new trial may be granted to all or any of the 

parties and on all or part of the issues for any of the following causes: . . . (d) [m]aterial 

evidence newly discovered, which with reasonable diligence could not have been found 

and produced at the trial.” He maintains that the county’s rule 59.01(d) motion was 

premature because the court had not yet filed its February 24, 2014 commitment order.

We disagree. Rule 59.01 contemplates prejudgment use—“the court may open the 

judgment if one has been entered.” Minn. R. Civ. P. 59.01 (emphasis added).
6

We review for abuse of discretion a district court’s decision to reopen the record 

before a judgment is entered. Cf. Johnson v. Lorraine Park Apts., Inc., 268 Minn. 273, 

277, 128 N.W.2d 758, 761 (1964) (stating in a case involving a denial of a prejudgment 

reopening of the record that “the trial court has broad discretion in determining whether 

new evidence justifies a new trial”). We conclude that the district court did not abuse its 

discretion by reopening the record before issuing its commitment order.

Shue’s Commitment as SDP and SPP

Shue argues that the county failed to prove by clear and convincing evidence that 

he meets the criteria for commitment as an SDP or an SPP. Clear and convincing 

evidence is “more than a preponderance of the evidence but less than proof beyond a 

reasonable doubt” and “will be shown where the truth of the facts asserted is ‘highly 

probable.’” Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). The clear-andconvincing-evidence standard is “a relatively high burden of persuasion.” In re Civil 

Commitment of Ince, 847 N.W.2d 13, 20 (Minn. 2014). Whether a person meets the 

statutory criteria for commitment based on clear and convincing evidence is a question of 

law that we review de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994). We 

review findings of fact for clear error, Minn. R. Civ. P. 52.01, in the light most favorable 

to the district court’s decision, In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). “[T]the 

trier of fact is in the best position to determine credibility . . . .” Ince, 847 N.W.2d at 24

(quotation omitted).2

 

2 We note that the district court issued its commitment order in this case on February 24, 

2014, without the benefit of Ince.
7

SDP

To commit someone as an SDP, “the district court must find by clear and 

convincing evidence that the person: (1) has engaged in a course of harmful sexual 

conduct; (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.” Id. at 20 (citing 

Minn. Stat. §§ 253B.02, subd. 18c(a), .18, subd. 1, .185, subd. 1 (2012)).3 A finding that a 

person is “likely” to engage in acts of harmful sexual conduct “require[s] clear and 

convincing evidence that the person is ‘highly likely’ to engage in acts of harmful sexual 

conduct.” Id. at 22. ‘“[H]ighly likely’ cannot be defined by a numeric value.” Id. at 21.

As in Ince, Shue contests only whether he is highly likely to engage in acts of 

harmful sexual conduct. See id. at 19 n.2. We therefore begin with “the element of 

‘likely’ future harmful sexual conduct as a result of a personality disorder.” Id. at 19. 

In evaluating the likelihood of future harmful sexual conduct, a district court must 

engage in a “multi-factor analysis” that considers

(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 

 

3 Minn. Stat. § 253B.02, subd. 18c(a), was recodified as Minn. Stat. § 253D.02, subd. 

16(a) (Supp. 2013). Minn. Stat. § 253B.185, subd. 1, was recodified as Minn. Stat. 

§ 253D.07 (Supp. 2013).
8

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, 518 N.W.2d at 614). 

Shue argues that the district court incorrectly weighed evidence and determined 

credibility with regard to expert testimony on whether actuarial studies suggested Shue is

highly likely to reoffend. “[A]ctuarial assessment evidence is relevant to the 

determination of whether a person is highly likely to engage in future harmful sexual 

conduct.” Id. at 24. But actuarial assessment evidence has not displaced the Linehan

factors because “the dangerousness prediction is neither a purely clinical prediction nor 

simply a matter for statisticians.” Id. at 23 (quotations omitted). And “[t]he third Linehan

factor, ‘base rate statistics,’ does not mention the more individualized predictions that can 

be drawn from actuarial tools. The term ‘base rate statistics’ refers to recidivism rates for 

a particular class . . . .” Id. at 22 n.3 (citation omitted). Instead, actuarial assessments are 

relevant evidence to be considered within the Linehan framework, and “with the benefit 

of all the relevant and reliable evidence, the district court must make a good faith attempt 

to isolate the most important factors in predicting harmful sexual conduct.” Id. at 23 

(quotation omitted). Expert testimony regarding actuarial studies therefore is subsumed 

within the Linehan factors. Id. at 24–25. “As the trier of fact, the district court will be in 

the best position to determine the weight to be attributed to each factor, as well as to 

evaluate the credibility of witnesses-a critical function in these cases that rely so heavily 

on the opinions of experts.” Id. at 23–24.
9

Shue challenges the district court’s application of the Linehan factors that resulted 

in its finding that Shue is highly likely to reoffend. The district court evaluated the 

evidence concerning each Linehan factor and found that Shue is highly likely to reoffend.

Although the court found the expert testimony of Drs. Zwecker and Gilbertson credible, 

the court noted in its order that it independently applied the Linehan factors to the 

evidence in finding that Shue is highly likely to reoffend. And the court noted that, while 

no single Linehan factor is more important than any other, all the factors indicate that 

Shue is highly likely to reoffend.

The district court found that relevant demographic characteristics indicate that 

Shue is at a “higher risk” to reoffend, noting Dr. Zwecker’s report, which states that 

Shue’s sex, his age, and the fact that he has reoffended after receiving sanctions increase 

his risk to reoffend. The court also referenced the testimony of Dr. Gilbertson, who 

opined that, under this Linehan factor, Shue’s risk is increased because males have a 

higher risk of sexual reoffense and Shue’s mental illness will require constant vigilance 

to keep in check. In addition, the court noted that Dr. Riedel stated in his report that Shue 

“shares many demographic characteristics that have been shown to be relevant to sexual 

offending.” We conclude that the district court did not clearly err by finding that relevant 

demographic characteristics show Shue has a high risk to reoffend.

The district court found that Shue’s history of violent behavior shows a high risk 

to reoffend. The court cited Dr. Zwecker’s report, in which she noted that Shue has a 

“clear history of violent behavior toward others, both within the context of his sex 

offending and in other areas.” The court also noted Dr. Gilbertson’s testimony that this 
10

Linehan factor supports an increased risk for Shue because his record is “replete with 

violence, both sexual and non-sexual.” And the court quoted from Dr. Riedel’s report, in 

which he described Shue’s history as “replete with violence and aggression.” We 

conclude that the district court did not clearly err by finding that Shue’s history of violent 

behavior indicates that he has a high risk to reoffend.

The district court found that base-rate statistics also put Shue at a high risk to 

reoffend. Dr. Zwecker noted in her report conflicting conclusions between Shue’s Static99R score, which places him in the “high risk” category and indicates that he may be 

likely to engage in future acts of harmful sexual conduct, and Shue’s MnSOST-3.1 

results, which put him in the “moderate risk” category, suggesting that he is not likely to 

engage in future acts of harmful sexual conduct. At trial, Dr. Zwecker reviewed In re 

Civil Commitment of Navratil, 799 N.W.2d 643 (Minn. App. 2011), review denied (Minn. 

Aug. 24, 2011), and testified that Shue’s test scores are higher than the base rates, 

meaning he has a “moderate to high likelihood of re-offense.” Dr. Gilbertson testified 

that Shue’s actuarial scores are greater than the base rate; specifically, Shue’s score of 6 

on the Static-99R is higher than the base rate of 2, which places Shue in the high-risk, 

high-need group whose members have a predicted recidivism rate of 31% over five years 

and 48% over ten years.

Concerning the base-rate statistics factor, the district court noted Dr. Riedel’s 

testimony that, although Shue’s Static-99 score from 2002, when he was released from 

prison in Iowa, was lower than it is now, the Iowa Department of Corrections rated Shue 

as high risk, and Shue, in fact, did reoffend. In his report, Dr. Riedel gave Shue’s score 
11

on the SRA-FV as 2.92, but on cross-examination, Dr. Riedel admitted that he scored 

several areas inaccurately on the test and that the new score “would change at least 

aspects” of the test. The court noted Dr. Riedel’s testimony that he should not have 

included the Stable-2007 test in his report because no one used the test to evaluate Shue, 

and the court noted Dr. Riedel’s concession on cross-examination that the 2007 

department of corrections study of sexual recidivism, which he mentioned in his report,

was “a definitive statistical study of recidivism” but “doesn’t necessarily relate . . . to the 

effectiveness of post-release things,” did not include individuals on probation for sex 

offenses, and did not measure lifetime recidivism. The court explained that it did not find 

the 2007 study applicable to Shue’s case because the study “is not definitive on the issue 

of re-offense, it was not designed to measure base rates, the study only looked at 

offenders from 1990 to 2002 and 11 years of information is not included in its results, 

and many high risk offenders were not a part of the study.” While we note that some of 

the evidence cited by the district court in regard to this factor is actuarial, as opposed to 

base-rate, we conclude that the district court did not clearly err by finding that Shue’s 

base-rate statistics show he has a high risk to reoffend.

The district court found that the sources of stress in Shue’s environment indicate 

that he is at high risk of reoffense. Dr. Zwecker stated that Shue appears to have a 

“limited support network,” which could become a source of stress for him. Dr. Zwecker 

opined that Shue is impulsive and will likely become stressed about having to participate 

in sex-offender treatment and abstain from illegal chemicals. Dr. Zwecker testified that 

Shue’s housing and marriage issues may become sources of stress for him and noted that 
12

he has a history of “not reacting well to stress” in both the community and in prison. Dr. 

Gilbertson testified that this Linehan factor increases Shue’s risk. Dr. Riedel noted in his 

report that he “see[s] some concerns here” and characterized Shue’s release plan as 

“sketchy at best.” We conclude that the district court did not clearly err in finding that the 

sources of stress in Shue’s environment indicate that he has a high risk to reoffend.

The district court found that the similarity of Shue’s present and future contexts to 

contexts in which he has used violence in the past indicates a high likelihood of 

recidivism. Dr. Zwecker noted that Shue plans to live in the same area where he offended 

in the past, would have access to the same people whom he victimized in the past, would 

likely resume visiting the same places to seek out past victims, and does not have an 

adequate support network to keep him from reoffending. Dr. Zwecker testified about her 

concerns that Shue would be able to “play the game” with an ISR agent by acting 

appropriately when the agent visits and then returning to poor behavior once the agent 

leaves. Dr. Gilbertson testified that the similarity of Shue’s present and future contexts to 

past contexts increases Shue’s risk. He stated that Shue’s chemical dependency 

disinhibits him and noted that Shue has suggested that his sexual energy and arousal 

increase when he takes methamphetamines. Dr. Gilbertson characterized Shue’s release 

plans as “fairly sketchy.” Dr. Riedel expressed concern in his report that the 

acquaintances that Shue has in the area in which he planned to live would not support his 

recovery. We conclude that the district court did not clearly err in finding that the 

similarity of Shue’s present or future contexts with his past contexts indicates he has a 

high risk to reoffend.
13

The district court found that Shue’s record with respect to sex-offender treatment 

indicates an increased likelihood to reoffend. Dr. Zwecker stated that Shue has never 

participated in a sex-offender treatment program and he has virtually no knowledge of 

treatment principles. Dr. Zwecker expressed concern about Shue’s testimony, indicating 

his belief that he does not need sex-offender treatment, although she later testified that he 

indicated that he would participate in treatment. Dr. Gilbertson opined that this factor 

increases Shue’s risk because Shue does not know any treatment principles that would 

help him control his sexual behavior; his chemical-dependency treatment in prison only 

would be of minimal help to him, because chemical-dependency and sexual-offender 

treatment are so different; and Shue does not understand his sexual triggers, high-risk 

situations, or mental illness. We conclude that the district court did not clearly err by

finding that Shue’s history of sex-offender treatment indicates that he has a high risk to 

reoffend.

We conclude that the district court applied the Linehan framework properly and 

did not clearly err in its findings. We further conclude that the district court did not err by

committing Shue as an SDP.

SPP

Shue argues that the county failed to prove by clear and convincing evidence that 

he meets all of the elements of the SPP statute. “Sexual psychopathic personality” is 

defined as

the existence in any person of such conditions of emotional 

instability, or impulsiveness of behavior, or lack of customary 

standards of good judgment, or failure to appreciate the 
14

consequences of personal acts, or a combination of any of 

these conditions, which render the person irresponsible for 

personal conduct with respect to sexual matters, if the person 

has evidenced, by a habitual course of misconduct in 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. § 253D.02, subd. 15 (Supp. 2013). Shue again argues that the district court 

incorrectly weighed evidence and determined credibility regarding expert testimony. We 

defer to the district court’s credibility determinations. See Ince, 847 N.W.2d at 23−24. 

The district court found that Shue possesses all four conditions specified in the 

SPP statute and that the conditions cause him to act irresponsibly with regard to sexual 

matters. Dr. Zwecker observed that Shue has been emotionally unstable while 

incarcerated, particularly when he is not taking psychiatric medication, and has made 

threats to harm staff. Dr. Zwecker also opined that Shue exhibits impulsive behavior and 

pointed to his failure to follow rules while in prison as an example of such behavior. Dr.

Zwecker stated that Shue’s “ability to show good judgment is highly doubtful at the 

present time.” She also noted that Shue failed to appreciate the consequences of his 

personal acts by demonstrating no concern about the impact of his sexual assaults and by 

blaming his victims for his current predicament. The district court also mentioned Dr. 

Riedel’s report, wherein he stated that Shue has exhibited all four of the conditions in the 

past but that he did not show emotional instability or impulsiveness of behavior when 

medicated. The district court discounted Dr. Riedel’s opinion, however, because it 

“ignores Shue’s entire history of behavior, places too much emphasis on Shue’s limited 

history of taking medications in a controlled setting, and ignores Shue’s history of being 
15

non-medication compliant and not being chemical-free while in the community.” We 

conclude that the district court did not clearly err in finding that Shue possesses the four 

conditions stated in the SPP statute.

The district court found that Shue engaged in a habitual course of sexual 

misconduct. In her report, Dr. Zwecker opined that Shue met this element because “[h]e 

has committed sex offenses over a number of years.” She also noted that, in at least one 

of the offenses, Shue showed sadistic tendencies. Dr. Gilbertson testified that Shue has 

engaged in a habitual course of sexual misconduct because his sexual misconduct 

spanned several years and took place even after he was in prison. Although the district 

court found that “Dr. Riedel testified that Shue has engaged in a course of harmful sexual 

conduct, but not a habitual course of misconduct,” Dr. Riedel testified that, although 

Shue does not meet the psychological definition of habituation, he “probably does” meet 

the legal definition. The district court found the opinions of Drs. Zwecker and Gilbertson 

about Shue’s habitual misconduct to be credible and persuasive. We conclude that the 

district court did not clearly err in finding that Shue engaged in a habitual pattern of 

harmful sexual conduct.

The district court found that Shue has an utter lack of power to control his sexual 

impulses within the meaning of the SPP statute. In evaluating whether a person meets this 

criterion, the district court must consider

the nature and frequency of the sexual assaults, the degree of 

violence involved, the relationship (or lack thereof) between 

the offender and the victims, the offender’s attitude and 

mood, the offender’s medical and family history, the results 

of psychological and psychiatric testing and evaluation, and 
16

such other factors that bear on the predatory sex impulse and 

the lack of power to control it.

In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994). The district court refers to the 

opinions of Drs. Zwecker and Riedel in addressing this element in its commitment order

but found only Dr. Zwecker’s opinion to be credible. Dr. Zwecker noted that Shue’s 

behavior “shows a pattern of victimizing females with whom he is partying and using 

chemicals.” The district court found that the nature and frequency of Shue’s sexual 

assaults supported a determination that Shue has an utter lack of power to control his 

sexual impulses. 

The district court found that the degree of violence involved in Shue’s sexual 

assaults also indicates that Shue has an utter lack of power to control his sexual impulses. 

The district court relied on Dr. Zwecker’s report, in which she stated that Shue has a 

history of violence aside from his sex offenses and that his sexual assaults have included 

kidnapping and extreme violence. The district court also found that the relationship 

between Shue and his victims supports a finding that Shue has an utter lack of control. 

Dr. Zwecker wrote that Shue knew his victims and partied with some of them.

The district court found that Shue’s attitude and mood “predispose him to sexual 

offending.” Dr. Zwecker observed that Shue has exhibited a superficial attitude toward 

his sex offenses and has minimized or even denied the offenses. Dr. Zwecker also 

remarked that Shue has sought to blame his victims. The district court mentioned Dr. 

Riedel’s observation that “[i]t is only within about the last four years that the violence has 
17

waned and [Shue] has not had violations relating to violent acting out” but noted that this 

observation failed to take into account Shue’s violent behavior in May 2012.

Regarding Shue’s medical and family history, the district court found only that 

“Shue has serious medical issues.” Regarding the results of Shue’s psychological and 

psychiatric testing, the district court found that they support the conclusion that Shue 

utterly lacks the power to control his sexual impulses. Dr. Zwecker testified that Shue’s 

MMPI result showed antisocial behavior and impulsivity that would increase his 

likelihood of reoffense. Although the district court relied on Dr. Zwecker’s report and 

testimony in finding that Shue has an utter lack of power to control his sexual impulses 

within the meaning of the SPP statute, the court clarified that it conducted its own 

analysis to make this finding. The district court did not clearly err in finding that Shue 

utterly lacks the power to control his sexual impulses.

The district court found that Shue is dangerous to others. To determine whether an 

offender is dangerous to others under the SPP statute, the district court must consider the 

same factors analyzed in determining whether an offender is highly likely to reoffend 

under the SDP statute. See Linehan, 518 N.W.2d at 614 (admonishing courts to consider 

the Linehan factors when determining whether an individual is dangerous to the public). 

The analysis above indicates that the district court did not clearly err in finding that Shue 

is dangerous to others.

Although decided after the district court issued its commitment order and after the

parties in this case filed their briefs, we consider the sufficiency of the district court’s 

findings in light of In re Civil Commitment of Spicer, ___ N.W.2d ___ (Minn. App. 
18

Aug. 18, 2014). The district court committed Spicer as an SDP and SPP. Id., 2014 WL 

4056029, at *2. This court concluded that the district court’s findings that Spicer met the 

statutory criteria as an SDP were insufficient in three ways. First, we concluded that “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,” e.g., the court summarized 

statements made by a particular expert. Id. at *6. A district court’s findings are 

insufficient if they “‘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.’” Id. 

(alterations in original) (quoting In re Welfare of M.M., 452 N.W.2d 236, 239 (Minn. 

1990)). “Second, of the ‘true findings’ concerning disputed issues, nearly all of them are 

stated in a conclusory manner.” Id. Third, 

[t]he 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 

least important, or which Linehan factors were most 

significant in the ultimate resolution of the case.

Id. at *7. This court identified the same errors by the district court regarding its SPPrelated findings. Id. at *8.

In this case, the district court also made the first error identified in Spicer—the 

vast majority of findings that relate to SDP and SPP statutory criteria are not truly 

findings, but rather are recitations of expert trial testimony. But, here, the district court 

did not commit the second error identified in Spicer because the court’s findings on each 
19

challenged statutory criterion are not stated in a conclusory manner. The findings are 

detailed and relate specifically to the evidence in the record. And, here, the district court 

did not commit the third error committed by the district court in Spicer because the court 

identified the expert testimony on which it relied as to each challenged statutory criterion

and each challenged caselaw factor that is relevant to the statutory criteria (e.g., the 

Linehan factors) and made independent findings which included reasons for why it did 

not credit conflicting expert testimony.

In sum, because the district court did not abuse its discretion in its evidentiary 

rulings and did not clearly err in its findings, and because the evidence is sufficient to 

support Shue’s commitment as an SDP and SPP, we affirm Shue’s commitment as an 

SDP and SPP.

Affirmed.