Binder v. Whitetail

2013 ND 143, 835 N.W.2d 827, 2013 WL 4606024, 2013 N.D. LEXIS 146
CourtNorth Dakota Supreme Court
DecidedAugust 29, 2013
DocketNo. 20120452
StatusPublished
Cited by9 cases

This text of 2013 ND 143 (Binder v. Whitetail) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Binder v. Whitetail, 2013 ND 143, 835 N.W.2d 827, 2013 WL 4606024, 2013 N.D. LEXIS 146 (N.D. 2013).

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Nelson Whitetail, Sr., appeals from an order finding he is a sexually dangerous individual and civilly committing him to the care, custody and control of the Department of Human Services. We affirm, concluding the district court did not err in finding the State established by clear and convincing evidence that Whitetail is a sexually dangerous individual.

I

[¶ 2] In 1988 Whitetail was convicted of two counts of gross sexual imposition. The victims were his girlfriend’s two female children who were ages 3 and 5 at the time of the offenses. Whitetail was sentenced to 5 years in prison with 2 years suspended for 4 years. In 1997 Whitetail pled guilty to 6 counts of gross sexual imposition. As part of the plea agreement, 52 other counts of gross sexual imposition dating back to 1991 were dismissed. The victims were the same children he had earlier victimized leading to his 1988 conviction. Whitetail was sentenced to a total of 20 years in prison.

[¶ 3] Whitetail was scheduled to be released from prison in August 2012 and to be placed on parole until March 2013. Before Whitetail’s scheduled release from prison, the State brought this petition to civilly commit Whitetail as a sexually dangerous individual under N.D.C.C. ch. 25-03.3. Two experts with different opinions whether Whitetail qualified as a sexually dangerous individual under the statutory requirements submitted reports and testified at the hearing. Whitetail also testified. The district court found there was clear and convincing evidence that Whitetail is a sexually dangerous individual and committed him to the care, custody and control of the Department of Human Services.

[829]*829II

[¶ 4] WMtetail’s sole argument on appeal is that the district court erred in civilly committing him because there was not clear and convincing evidence that he is a sexually dangerous individual.

[¶ 5] Before a person can be committed as a sexually dangerous individual, the State must show by clear and convincing evidence that: 1) the individual has engaged in sexually predatory conduct; 2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; 3) the condition makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others; and 4) the individual has serious difficulty controlling his behavior. See In re Voisine, 2010 ND 17, ¶ 9, 777 N.W.2d 908; N.D.C.C. § 25-03.3-01(8). We review civil commitments of sexually dangerous individuals under a modified clearly erroneous standard, and we will affirm the district court’s decision unless the court’s order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence. Voisine, at ¶ 8. Claims that a court improperly relied on the opinion of one expert instead of another challenge the weight the evidence was assigned, not the sufficiency of the evidence, and this Court will not second-guess credibility determinations made by the court in sexually dangerous individual proceedings. See In re J.T.N., 2011 ND 231, ¶ 8, 807 N.W.2d 570.

[¶ 6] If a court finds a person is a sexually dangerous individual, N.D.C.C. § 25-03.3-13 requires that the individual be placed in an appropriate treatment facility or program which “must be the least restrictive available treatment facility or program necessary to achieve the purposes of this chapter.” The determination of the least restrictive treatment available is initially made by the executive director of the Department, but the individual may challenge his continued commitment if the statutory requirements are being violated. See In re P.F., 2008 ND 37, ¶ 24, 744 N.W.2d 724; see also Whelan v. A.O., 2011 ND 26, ¶ 7, 793 N.W.2d 471; In re G.R.H., 2006 ND 56, ¶¶ 22, 27, 711 N.W.2d 587.

[¶ 7] There is no dispute that the first two elements for determining whether a person is a sexually dangerous individual have been satisfied. Whitetail’s 1988 and 1997 convictions establish he engaged in sexually predatory conduct. Dr. Jennifer Krance, the State’s expert witness, diagnosed Whitetail with Paraphilia NOS (Pedophilia and Hebephilia) and an antisocial personality disorder with narcissistic features. Dr. Robert Riedel, Whitetail’s expert witness, diagnosed Whitetail with “R/O Dysthymic Disorder,” a history of alcohol and cannabis dependence in long term remission in a controlled environment, a history of sexual abuse both as a perpetrator and a victim, and “R/O Antisocial Personality Disorder.” Both experts testified that their respective diagnoses meet the criteria for a condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction.

[¶ 8] The expert opinions differed on the question whether Whitetail was likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. Dr. Riedel testified that Whitetail scored a +2 on the Static 99-R and a +5 on the MnSOST-R, indicating a low probability of reoffending. Although acknowledging that this Court ruled to the contrary in In re M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473 (N.D.C.C. § 25-03.3-13 “allows experts to use the fullness of their [830]*830education, experience and resources available to them” in determining whether individual is a threat to society), Dr. Riedel suggested the use of actuarial test scores is the best technique for determining a person’s likelihood to reoffend. Dr. Riedel pointed to Whitetail’s successful completion of sexual offender treatment programs at the prison, once following his 1988 conviction and the other following his 1997 conviction, as further lessening his likelihood of reoffending. Dr. Riedel noted Whitetail’s lack of major “write ups” and his achievements during his second incarceration. Dr. Riedel acknowledged that Whitetail’s actuarial numbers after his first imprisonment would have also indicated a low risk of reoffending, but he also maintained the current likelihood of Whitetail reoffending was “minuscule.”

[¶ 9] Dr. Kranee stated in her report that Whitetail’s diagnosis in itself indicated he was likely to reoffend:

It is concluded that a nexus exists linking Mr. White Tail’s [sic] Personality Disorder to his sexual offending in that his pattern of sexually predatory conduct is characterized by predatory offending, impulsivity, deceitfulness, aggression and a lack of remorse for his victims. It is widely accepted that the best predictor of future behavior is past behavior. Given that Mr. White Tail [sic] has a history of engaging in sexual contact with minor females, it is likely that his paraphilia in combination with his personality disorder will lead him to engage in future acts of sexually predatory conduct. However, the behaviors prompted by either of these diagnoses alone would also likely lead him to engage in sexually predatory conduct.

Dr. Kranee noted in her report that Whitetail’s score of 21 on the Psychopathy Checklist-Revised (PCL-R) “indicate[s] that he is unusually detached, cold, grandiose, manipulative, willing to lie, and lacking in empathy and remorse,” and that “[t]hese traits make it highly likely that he will act in ways that harm others with little or no regard for their feelings or welfare, possibly including in a sexually offensive manner.” Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 ND 143, 835 N.W.2d 827, 2013 WL 4606024, 2013 N.D. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/binder-v-whitetail-nd-2013.