This opinion is nonprecedential except as provided by
                         Minn. R. Civ. App. P. 136.01, subd. 1(c).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A23-1151

                        In the Matter of the Civil Commitment of:
                                  Kerry Mitchell Lenz.

                                  Filed January 8, 2024
                                        Affirmed
                                     Hooten, Judge *

                                Commitment Appeal Panel

Keith Ellison, Attorney General, Anthony R. Noss, Assistant Attorney General, St. Paul,
Minnesota; and

Karl Schmidt, Benton County Attorney, William V. Faerber, Assistant County Attorney,
Foley, Minnesota (for appellant Minnesota Department of Human Services/Benton
County)

Jennifer L. Thon, Jonathon M. Comuzzi, Jones Law Office, Mankato, Minnesota (for
respondent Kerry Mitchell Lenz)

         Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Hooten,

Judge.

                           NONPRECEDENTIAL OPINION

HOOTEN, Judge

         Appellant Commissioner of the Minnesota Department of Human Services

challenges a Commitment Appeal Panel (CAP) order granting respondent Kerry Mitchell

Lenz’s petition for provisional discharge from the Minnesota Sex Offender Program


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

Minn. Const. art. VI, § 10.
(MSOP), arguing CAP clearly erred in finding the commissioner failed to prove by clear

and convincing evidence that provisional discharge should be denied. We affirm.

                                        FACTS

       In May 2015, Lenz was civilly committed to MSOP as a sexually dangerous person

(SDP) and sexual psychopathic personality (SPP). 1 In June 2015, Lenz petitioned for

transfer to the MSOP Community Preparation Services (CPS). 2 In January 2018, CAP

granted Lenz’s transfer to CPS but did not transfer Lenz until September 2020, after Lenz

moved the district court to hold MSOP authorities in contempt of court for failure to

transfer.

       In December 2020, Lenz petitioned the Special Review Board (SRB) for provisional

discharge or discharge from his civil commitment, submitting the standard provisional

discharge plan. The SRB held a hearing on the petition in January 2022 and, in February

2022, the SRB majority recommended granting provisional discharge and denying full

discharge.

       The commissioner petitioned CAP for rehearing and reconsideration of the SRB’s

recommendation to grant provisional discharge. CAP held a hearing on the petition in May

2023 at which it heard testimony from Lenz, Scott Halvorson, a MSOP reintegration

director, and Dr. Donald Alberg, a court-appointed examiner, and determined that Lenz


1 Lenz appealed commitment and, later, petitioned this court for a writ of mandamus.  In
separate orders, this court dismissed Lenz’s appeal as untimely and denied mandamus. In
re Civ. Commitment of Lenz, No. A15-1340 (Minn. App. Sept. 15, 2015) (order); In re Civ.
Commitment of Lenz, No. A15-1447 (Minn. App. Oct. 6, 2015) (order).
2 CPS is a 24/7 non-secure treatment environment that provides programming focused on

deinstitutionalization.

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presented sufficient evidence to allege a prima facie case that he was entitled to provisional

discharge. 3 CAP then heard testimony from Christopher Schiffer, MSOP clinical court

services director, and Dr. Cassandra Lind, department of human services forensic

evaluation department manager.

       The parties stipulated that Dr. Alberg, Mr. Schiffer, and Dr. Lind were qualified to

testify as expert witnesses. Dr. Alberg supported Lenz’s provisional-discharge request,

while Mr. Schiffer and Dr. Lind opposed it. Dr. Alberg based his testimony on his

interview with Lenz and review of various records provided by MSOP. Dr. Alberg testified

that he remained in support of Lenz’s provisional-discharge request despite the conflicting

expert testimony.

       In July 2023, a CAP majority granted Lenz’s provisional discharge, finding the

commissioner failed to prove by clear and convincing evidence that provisional discharge

should be denied.

       The commissioner appeals.

                                         DECISION

       We review CAP decisions “for clear error, examining the record to determine

whether the evidence as a whole sustains the CAP’s findings.” In re Civ. Commitment of

Edwards, 

, 803 (Minn. App. 2019), rev. denied (Minn. Oct. 15, 2019). In

applying clear-error review, we “view the evidence in a light favorable to the findings” and

“will not conclude that a fact[-]finder clearly erred unless, on the entire evidence, we are


3 In this appeal, the commissioner does not dispute that Lenz presented a prima facie case

that he is entitled to provisional discharge.

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left with a definite and firm conviction that a mistake has been committed.” In re Civ.

Commitment of Kenney, 

, 221 (Minn. 2021) (quotations and citations

omitted). “[T]he role of an appellate court is not to weigh, reweigh, or inherently reweigh

the evidence when applying a clear-error review; that task is best suited to, and therefore

is reserved for, the fact[-]finder.” Id. at 223. Instead, our role is to review “the record to

confirm that evidence exists to support the decision.” Id. at 222. We must:

              fully and fairly consider the evidence, but so far only as is
              necessary to determine beyond question that it reasonably
              tends to support the findings of the fact[-]finder. When the
              record reasonably supports the findings at issue on appeal, it is
              immaterial that the record might also provide a reasonable
              basis for inferences and findings to the contrary.

Id. at 223 (quotations and citations omitted). Generally, we defer to CAP’s evaluation of

expert testimony.     Edwards, 933 N.W.2d at 807 (citing In re Civ. Commitment of

Fugelseth, 

, 256 (Minn. App. 2018), rev. denied (Minn. Apr. 17, 2018)).

We will affirm a CAP decision so long as it is supported by the record as a whole, even if

the evidence is conflicting. See Kenney, 963 N.W.2d at 226-27 (concluding that, despite

conflicting evidence, CAP did not clearly err because its findings were supported by the

record as a whole).

       A person civilly committed as an SDP or SPP or both may seek a reduction in

custody by petitioning the SRB for transfer, provisional discharge, or discharge from civil

commitment. Minn. Stat. § 253D.27, subds. 1-2 (2022). The SRB must conduct a hearing

on the petition and issue a recommendation to CAP. Id., subds. 3-4 (2022).               The




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commissioner may petition CAP for rehearing and reconsideration of the SRB’s

recommendation. Minn. Stat. § 253D.28, subd. 1(a) (2022).

       A person civilly committed as an SDP or SPP or both “shall not be provisionally

discharged unless the committed person is capable of making an acceptable adjustment to

open society.” Minn. Stat. § 253D.30, subd. 1(a) (2022). In determining whether a person

is capable of making such an adjustment, CAP must consider two factors:

              (1) whether the committed person’s course of treatment and
              present mental status indicate there is no longer a need for
              treatment and supervision in the committed person’s current
              treatment setting; and

              (2) whether the conditions of the provisional discharge plan
              will provide a reasonable degree of protection to the public and
              will enable the committed person to adjust successfully to the
              community.

Id., subd. 1(b) (2022); see also Larson v. Jesson, 

 (Minn. App. 2014).

       Once a petitioning party presents a prima facie case that he is entitled to provisional

discharge, the party opposing provisional discharge “bears the burden of proof by clear and

convincing evidence that . . . provisional discharge should be denied.” Minn. Stat.

§ 253D.28, subd. 2(d) (2022); see Larson, 

 (noting that once the person

petitioning for provisional discharge satisfies the burden of production, the commissioner

bears the “burden of persuasion on the merits of a discharge petition”).           Clear and

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

beyond a reasonable doubt.” Limberg v. Mitchell, 

 (Minn. App. 2013)

(quoting Weber v. Anderson, 

 (Minn. 1978)). The standard has been

met “when the truth of the facts asserted is highly probable.” 

 (quotation omitted).


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       CAP evaluated the expert testimony and found Dr. Alberg—the expert who

supported Lenz’s provisional-discharge request—“more credible and persuasive” than Mr.

Schiffer and Dr. Lind—the experts who opposed Lenz’s request. We defer to CAP’s

credibility determination and conclude that CAP did not clearly err because the evidence

as a whole supports that Lenz is capable of making an acceptable adjustment to the

community, according to the two statutory factors. Edwards, 933 N.W.2d at 807; Kenney,

963 N.W.2d at 226-27.

       Factor 1

       First, evidence in the record supports CAP’s finding that Lenz’s course of treatment

and present mental status indicate there is no longer a need for treatment and supervision

in his current treatment setting.

       Dr. Alberg opined that Lenz’s treatment needs, including his reintegration needs,

could be adequately met on provisional discharge. In recognizing that reintegration was a

notable treatment need, Dr. Alberg opined that Lenz’s reintegration needs were not being

met and were not likely to be met in his current treatment setting due, in part, to MSOP’s

failure to offer Lenz formal reintegration outings.

       While incarcerated, Lenz completed two sex offender treatment programs. Lenz

also completed the InnerChange Freedom Initiative (IFI) program and mentored others in




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the program. 4 Lenz has participated in the MSOP treatment program since 2015 when he

was civilly committed and remains in the second phase of treatment. 5

       Since his transfer to CPS in 2020, Lenz has been living in a non-secure setting that

provides programming focused on deinstitutionalization and has gone on dozens of medical

outings in the community. In 2022, Lenz received unaccompanied on-campus privileges

that allow him to walk without a staff escort and escort other clients within designated areas

of the MSOP campus.

       Lenz’s MSOP treatment providers have consistently given him “enhanced” or

“satisfactory” matrix scores. 6 Lenz has been described having a “fairly good understanding

of his offense cycle, including his buildup of anger and frustration and his distorted

thoughts of sexual entitlement.” He has also been described as being “transparent in

discussing” his “excitement to violence” and on a “strong [treatment] trajectory” as

evidenced by his “commit[ment] to a healthy lifestyle, . . . cooperat[ion] with his treatment

team, . . . and tak[ing] on leadership positions.”




4  IFI is a faith-based program focused on preparing inmates for reintegration in the
community.
5 The MSOP treatment program is a three-phase program. Lenz was placed in the second

phase almost immediately after his civil commitment due to his previous treatment status
while incarcerated. The second phase “focuses primarily on securing an agreed upon
history of the client’s offending behavior and the factors that contributed to it. Clients are
expected to identify and develop resolution of the issues underlying their offense
behaviors.” The third phase focuses on generalizing those changes so that clients can
transition from the institutional setting to living in community.
6 MSOP matrix factors reflect dynamic risk factors—“psychological vulnerabilities that, in

conjunction with situational triggers, can culminate in sexually abusive actions.” The
factors represent specific treatment targets.

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       Further, Lenz has been described as having done “significant treatment work on his

sexual offense patterns and dynamics of sexual offending,” as “accountable for his offense

history,” and as “a positive influence in his therapeutic community, serving as one of three

members appointed to the Community Council and serving as a CREST guide.” 7 MSOP

clinical leadership recommended that Lenz was “at a point in treatment where he [could]

focus on generalizing the changes he has made back to community settings.”

       Factor 2

       Second, evidence in the record supports CAP’s finding that the conditions of the

standard provisional discharge plan will provide a reasonable degree of protection to the

public and will enable Lenz to adjust successfully to the community.

       Dr. Alberg opined that the standard provisional discharge plan would provide a

reasonable degree of protection to the public and enable Lenz to successfully adjust to the

community. Dr. Alberg considered Lenz’s receipt of three CARs and consequent job loss

and opined that Lenz’s behavior was not dangerous or so overwhelming as to outweigh or

nullify his positive treatment progress.     Consequently, he believed Lenz could be

provisionally discharged “without undue risk to the community.”

       On provisional discharge, Lenz will be required to work on his remaining treatment

needs, as directed by MSOP. Lenz’s living situation and community outings will also be


7 The Community Council is a group of individuals who are considered senior or more

advanced in treatment. This group helps guide the therapeutic community by facilitating
meetings, working with staff, and weighing in on client accountability reports (CARs).
CARs are CPS’s rule infraction system. CREST stands for conflict resolution educational
session training. A CREST guide is a volunteer who is trained in third-party mediation to
help clients resolve conflict.

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limited and monitored by MSOP. For instance, the standard provisional discharge plan

sets forth five tiers of intensive supervision that clients gradually move through based on

MSOP’s review of their treatment progress. During tier 1, Lenz will remain in 24/7 staffed

housing and will not be allowed to go out in the community unsupervised. During tier 2,

Lenz will be allowed to request independent time in the community. However, Lenz will

be actively and passively GPS monitored, and his movements will be pre-approved and

appropriately verified by MSOP.        He will also have the opportunity to process his

experiences on outings with his outpatient providers and other community supports. The

standard plan also sets forth processes for addressing violations of the plan conditions to

ensure public safety.

       Viewing the evidence in the light most favorable to the findings, deferring to CAP’s

credibility determination, and without reweighing the evidence or reconciling conflicting

evidence, we conclude that the evidence as a whole supports CAP’s finding that Lenz is

capable of making an acceptable adjustment to the community, according to the two

statutory factors. Therefore, it is immaterial that the evidence could also support a contrary

finding. See Kenney, 963 N.W.2d at 223. The commissioner’s arguments essentially ask

us to reweigh conflicting evidence that supports a contrary finding, which we cannot do.

Id. CAP did not clearly err in granting Lenz’s petition for provisional discharge, finding

the commissioner failed to prove by clear and convincing evidence that provisional

discharge should be denied.

       Affirmed.




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