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Hearing held on Sleepy Eye sex offender probation violation

Kotten refuses polygraph tests in treatment programs

NEW ULM — A Sleepy Eye man who pleaded guilty in 2013 to soliciting sex from a minor online may face jail time for failing to complete a court-ordered sex offender treatment program.

After nearly four hours of testimony at a probation violation hearing for a 27-year-old Timothy I. Kotten, Brown County District Court Judge Robert Docherty took the case under advisement Thursday night.

Kotten, 28999 CR 27, Sleepy Eye, had pleaded guilty in 2013 to a charge of felony electronic solicitation of a child after chatting online with a police officer he thought was an underage juvenile. He was fined $2,080, placed on three years supervised probation and sentenced to 15 days in the Brown County Jail.

Kotten’s probation conditions included successful completion of an outpatient sex offender treatment program, no contact with females under age 18 unless he is with an approved supervisor, probation agent or treatment provider. He was ordered to submit to polygraph examinations as directed.

A Minnesota Department of Corrections probation agent testified Thursday that Kotten entered an outpatient sex offender treatment program in Mankato twice but did not complete the program.

The agent said she contacted Kotten about the need to complete the program and that he contacted several other treatment programs but did not enroll in any of them to her knowledge.

Representing himself, Kotten said he could not complete sex offender program expectations.

“I contacted Central Minnesota Mental Health Center on Jan. 21, 2016 and they declined to have me in the program,” Kotten said. “They wanted a polygraph (lie detector test) completed which is unconstitutional.”

Kotten was notified of his probation violation for not completing the treatment program. He appealed the case to the Minnesota Court of Appeals.

Kotten argued that the record did not support the district court’s revocation of his stay of adjudication. He argued among other things, that the required sex offender treatment included a polygraph requirement, violating his Fifth Amendment privilege against self-incrimination.

Minnesota Court of Appeals Judge John Rodenberg opined on June 27, 2016 that it was within the district court’s discretion to revoke Kotten’s stay of adjudication, saying the court had clear and convincing evidence of violation of conditions in its findings.

The district court found that Kotten violated his stay of adjudication conditions and the polygraph requirement did not violate his privilege against self incrimination.

Kotten testified several times Thursday that the sex offender treatment program he enrolled in and others he considered violated his personal privacy and offended him.

At one point, Kotten said an investigating officer aided and abetted the felony electronic solicitation of a child to which he pleaded guilty.

“I see no evidence the investigating officer aided and abetted the offense,” Judge Docherty said.

The original incident occured on March 21, 2013, when a Brown County Sheriff’s Office investigator got a call from a Renville County officer who said he contacted a male, later identified as Kotten, in a Yahoo chat room, according to the complaint.

The officer was investigating Internet Crimes Against Children (ICAC) Task Force cases when the chat room discussions happened. Chat room discussion included Kotten asking the officer if she would lie with him in bed, according to court documents.

In October 2014, while Kotten was on probation, a probation violation report was filed, alleging Kotten was terminated from the CORE Professional Services sex offender treatment program in Mankato for failing to make adequate progress. His deficiencies including having unauthorized contact with a minor male, having prohibited Internet access, and failing to be “open and honest” about his past offending behaviors, according to court documents.

Kotten re-entered the program, but was again terminated from CORE for failing to make progress in treatment and for viewing sexually-explicit material on his cell phone. Kotten signed an amended probation agreement stating he would enter a different treatment program.

Kotten’s brother Glen, a Sleepy Eye private practice attorney, testified that the image his brother viewed on his cellphone was of a woman in fitness clothing.

“It was not sexually explicit at all,” Glen Kotten said. “It was something you’d see on any TV show.”

After attending his initial appointment with Turning Point Psychological Services, Kotten cancelled his follow-up appointment and indicated he was no longer interested in treatment.

Kotten’s Minnesota Department of Corrections Agent testified that all DOC-approved sex offender treatment options require polygraph examinations to understand the individual’s sexual history and offenses to ensure they are not currently offending or placing themselves in high-risk situations.

Brown County Assistant Attorney Paul Gunderson said he agreed with a recommendation from Kotten’s DOC agent that he be committed to the Minnesota Department of Corrections because he is a danger to the public.

“I agree with the agent that Kotten was given multiple treatment opportunities since September 2014 when he was sentenced, but failed to complete treatment,” Gunderson said. “Kotten said he was discharged from treatment unfairly. He sought out other programs but was very nit-picky about what he didn’t like.”

Kotten said he was not given instructions on how to pass a polygraph test.

“I have a valid right not to enter into a program contingent on taking a test that is arbitrary,” Kotten said. “I have been law abiding since going on probation more than three years ago. I didn’t even get a speeding ticket. I have already been punished for the offense. I was repeatedly called a liar in treatment with no evidence to show it.”

Docherty said he would rule on the case as soon as possible.

Fritz Busch can be e-mailed at fbusch@nujournal.com1

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