Enget v. J.T.N.

2011 ND 231, 807 N.W.2d 570, 2011 N.D. LEXIS 220

• Court: North Dakota Supreme Court
• Decided: December 13, 2011
• Docket: No. 20110067
• Status: Published

Opinions

CROTHERS, Justice.

[¶ 1] J.T.N. appeals a district court order finding he remains a sexually dangerous individual and denying his petition for discharge from the North Dakota State Hospital. J.T.N. argues the district court erred by determining he remains a sexually dangerous individual. We affirm.

I

[¶ 2] In February 2005, the State petitioned to commit J.T.N. as a sexually dangerous individual under N.D.C.C. ch. 25-03.3. J.T.N. was committed to the State Hospital in July 2005. He petitioned for discharge in June 2006. His petition was denied in November 2006. J.T.N. filed a second petition for discharge in October 2007 and withdrew the petition in April 2008. J.T.N. filed a third petition for discharge in January 2009 and withdrew that petition in September 2009. In February 2010, J.T.N. filed the petition at issue in this appeal. The district court held a two-day hearing in November 2010.

[¶ 3] At the hearing, the State called two witnesses, Dr. Robert Lisota, a State Hospital psychologist, and Michelle Richardson, a State Hospital employee. Dr. Lisota testified J.T.N. remained a sexually dangerous individual. Richardson testified she found J.T.N. naked in his room one night during her midnight and 1:00 am rounds and wrote-up J.T.N. for flashing. J.T.N. called five witnesses, Dr. Robert Riedel, an independent psychologist appointed by the district court, and Dr. Terence Campbell, Dr. Stacey Benson, Dr. Luis Rosell and Dr. Joseph Plaud, four psychologists hired by J.T.N. All five of J.T.N.’s experts testified J.T.N. was not a sexually dangerous individual. In February 2011, the district court issued an order finding J.T.N. remained a sexually dangerous individual and continuing his commitment.

II

[¶ 4] “At a discharge hearing, the State has the burden of proving by clear and convincing evidence that the committed individual remains a sexually dangerous individual.” Matter of Midgett, 2010 ND 98, ¶ 7, 783 N.W.2d 27. To meet its burden, the State must prove three statutory elements and establish an additional constitutional requirement that is not a fourth element, but “is a part of the definition of a ‘sexually dangerous individual.’ ” Id. at ¶ 9. Section 25-03.3-01(8), N.D.C.C., defines a “sexually dangerous individual” as:

“an individual [1] who is shown to have engaged in sexually predatory conduct and [2] who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction [3] that 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.”

[¶ 5] In addition, in accordance with the plain language of the statute and to address constitutional due process concerns, this Court

“construe[s] the definition of a sexually dangerous individual to mean that proof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in the ordinary criminal case.”

Matter of G.R.H., 2006 ND 56, ¶ 18, 711 N.W.2d 587.

[¶ 6] This Court applies a “modified clearly erroneous” standard of review to commitments of sexually dangerous individuals under N.D.C.C. ch. 25-03.3. Midgett, 2010 ND 98, ¶ 6, 783 N.W.2d 27.

“We will affirm a trial court’s order denying a petition for discharge unless it is induced by an erroneous view of the law or we are firmly convinced it is not supported by clear and convincing evidence. In reviewing the trial court’s order, we give great deference to the court’s credibility determinations of expert witnesses and the weight to be given their testimony. The trial court is the best credibility evaluator in cases of conflicting testimony and we will not second-guess the court’s credibility determinations.”

Matter of Wolff, 2011 ND 76, ¶5, 796 N.W.2d 644 (internal quotations and citations omitted). “When witnesses give conflicting testimony, we do not decide to believe a witness different from the one believed by the district court.” Hill v. Weber, 1999 ND 74, ¶ 12, 592 N.W.2d 585. “A fact finder need not believe the greater number of witnesses.” Id.

Ill

[¶ 7] J.T.N. argues the district court erred by denying his discharge petition because five of the six experts testified he is not a sexually dangerous individual. He does not contest the findings that he engaged in sexually predatory conduct and that he has an antisocial personality disorder. He argues the findings that he is likely to engage in further acts of sexually predatory conduct and that he has serious difficulty controlling his behavior were clearly erroneous. The State responds that the district court’s findings were supported by clear and convincing evidence.

[¶ 8] Claims that a district 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. Matter of Hehn, 2008 ND 36, ¶ 22, 745 N.W.2d 631. Because “[ejvaluation of credibility where evidence is conflicting is solely a trial court function[,]” this Court will not reweigh expert testimony. Id. at ¶ 23 (quoting Alumni Ass’n v. Hart Agency, Inc., 283 N.W.2d 119, 121 (N.D.1979)). We consistently have declined to “second-guess the credibility determinations made by the trial court” in sexually dangerous individual proceedings. Hehn, at ¶ 23. See Wolff, 2011 ND 76, ¶¶ 5, 13-14, 796 N.W.2d 644; Interest of G.L.D., 2011 ND 52, ¶¶ 5-10, 795 N.W.2d 346; Matter of A.M., 2010 ND 163, ¶¶ 19-21, 787 N.W.2d 752; Matter of Hanenberg, 2010 ND 8, ¶¶ 17-18, 777 N.W.2d 62; Matter of T.O., 2009 ND 209, ¶¶ 8-11, 776 N.W.2d 47; Matter of Vantreece, 2009 ND 152, ¶¶ 4, 18, 771 N.W.2d 585; Matter of A.M., 2009 ND 104, ¶¶ 10, 20, 766 N.W.2d 437; Matter of R.A.S., 2009 ND 101, ¶ 10, 766 N.W.2d 712; Matter of G.R.H., 2008 ND 222, ¶¶ 7, 11, 758 N.W2d 719; Matter of M.D., 2008 ND 208, ¶¶ 7, 11, 757 N.W.2d 559; Hehn, at ¶¶ 22-24. “We have further explained that a choice between two permissible views of the weight of the evidence is not clearly erroneous.” Wolff, at ¶ 14.

A

[¶ 9] J.T.N. argues the district court erred by finding he is likely to engage in further acts of sexually predatory conduct. “[T]he phrase ‘likely to engage in further acts of sexually predatory conduct’ as used in N.D.C.C. § 25-03.3-13 means that the respondent’s propensity towards sexual violence is of such a degree as to pose a threat to others.” Interest of M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473. To determine whether the element is met, experts and courts may “use the fullness of their education, experience and resources available to them in order to determine if an individual poses a threat to society.” Matter of Voisine, 2010 ND 17, ¶ 14, 777 N.W.2d 908 (quoting M.B.K., at ¶ 18). “[A]ll relevant conduct should be considered.” Voisine, at ¶ 14.

[¶ 10] To determine whether J.T.N. was likely to engage in further acts, the district court specified that it “did take in all relevant conduct.” The district court organized J.T.N.’s relevant conduct under three headings: (1) history of offenses, (2) recent conduct and treatment and (3) actuarial testing. Under history of offenses, the district court listed several instances of J.T.N.’s sexual conduct as a juvenile and as an adult, including convictions for gross sexual imposition and sexual assault, instances of sexually predatory conduct not resulting in criminal charges and probation violations due to prohibited sexual conduct. Under recent conduct and treatment, the district court noted J.T.N.’s violations of State Hospital rules, his lack of progress in treatment and his waiver of his 2009 review hearing. The rules violations included possessing a cellular telephone containing pictures of a naked woman’s torso, possessing a hand drawing of a woman in lingerie, exposing himself to Richardson and causing a “near riot” by urging other patients not to participate in treatment. Concerning J.T.N.’s treatment, the district court noted J.T.N. was in the lowest level of treatment, was in the highest security area, did not fully cooperate when he attended treatment and believed he did not need sex offender treatment. Finally, under actuarial testing, the district court stated,

“All of the professionals engaged in actuarial testing of [J.T.N.]. The purpose of this actuarial testing is an attempt to objectively quantify the risk of reoffend-ing. The actuarial tests used were the Static-99R as well as the MnSOST-R actuarial test. These tests were not used by all of the experts....

“The experts presented varying percentage estimations as to the likelihood of [J.T.N.] reoffending within a given period of time. This testimony was based mainly upon the Static-99R actuarial as the experts tended to agree the MnSOST recidivism rate estimates were not accurate. However, the experts who administered the tests did seem to agree that the classification and/or categorization of the offender as reached by those tests were accurate. [J.T.NJ’s actuarial scores on the Static-99R, whether a 6 or a 7, ranked him in the high category of risk for recidivism. Likewise, of the three experts who scored [J.T.N.] on the MnSOST-R, he also fell into the high risk category.”

All of the factors cited by the district court were supported by the testimony or the report of at least one psychiatrist testifying at J.T.N.’s discharge hearing.

[¶ 11] After citing the relevant factors, the district court explained its finding that J.T.N. was likely to engage in further acts of sexually predatory conduct:

“It is believed by the Court that the above factors show, by a clear and convincing evidence, that [J.T.NJ’s condition makes him likely to engage in further acts of sexually predatory conduct which constitutes a danger to the physical or mental health or safety of others. In looking at the past history of [J.T.N.] it is evident that, since approximately age 11, [J.T.N.] has had no extended period of time, when he has been free from confinement, in which [he] has not been engaged in some sort of sexually inappropriate conduct. [J.T.N.j’s sexually inappropriate conduct ranges from the highly inappropriate kissing of a 13 year old girl by a 20 year old man, to Gross Sexual Imposition findings when [J.T.N.] was young. [J.T.N.] has proven, time and time again, that he is unable to control his impulses and urges without severe restrictions being placed on his freedom. Whether this is the result of a paraphilia diagnosis or an antisocial personality diagnosis, the condition still manifests itself in sexual offenses. Therefore, the Court relies on those offenses as set forth in the prior history as an indicator of the predicted conduct of [J.T.N.] if he were simply released without any supervision.

“The experts who testified on [J.T.N.j’s behalf indicate that the Court should not rely on the juvenile offenses. The argument of these experts is that the prior conduct of [J.T.N.] is not a predictor of his future conduct now that he is an adult.

“There are two problems with this theory. First, [J.T.N.] committed a number of these inappropriate acts while he was between the ages of 18 and 20. Even when [J.T.N.] was faced with revocation of his probation, within 24 hours of bonding out on a probation revocation allegation, he reoffended.

“Secondly, even if you were to accept the premise of these experts as being true, the recent conduct of [J.T.N.] indicates that he cannot control his actions and that he is likely to reoffend. [J.T.N.] has had repeated violations of rules while in the secure confines of the North Dakota State Hospital. These violations include violations which are sexual in nature. Specifically, [J.T.N.] possessed a cell phone with pornographic material on it and further, on two separate occasions within one hour of each other, [J.T.N.] exposed himself to a female worker at the State Hospital. These are in addition to the other indications of [J.T.N.j’s lack of control such as the incident where he urged other residents to be noncompliant.

“In addition to those two factors there is a third concern present.... Specifically, [J.T.N.] is presently at the lowest level of treatment possible in the Sex Offender Treatment Program and is at the most restrictive level concerning his own personal freedoms at the State Hospital. ...

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“The experts who testified on behalf of [J.T.N.] indicated that further treatment would not be productive or, alternatively, substantially decrease the likelihood of [J.T.N.] reoffending. Dr. Rosell testified that [J.T.N.] could be simply growing tired of the same stage of treatment over and over and that there would be no light at the end of the tunnel. However, Dr. Rosell stated in his written report that treatment participation also decreases [J.T.N.j’s risk. Dr[.J Riedel also testified that [J.T.N.] knows what Sexual Offender Treatment entails. Essentially, he implied that [J.T.N.] already has the tools he needs to be successful. However, Dr. Riedel did acknowledge that completion of treatment was not left to the decision of the participant.

“The Court finds more credible Dr. Lisota’s opinion that ‘There is no reason to believe that in the absence of intensive treatment, a personality disorder would cease to exist after it has been conclusively diagnosed.’ It makes even less sense to the Court that [J.T.NJs argument (i.e. treatment is unnecessary) is to be believed when [J.T.N.] through his experts indicates that, if released, [J.T.NJs plan would be to voluntarily go to treatment to lessen the risk of reof-fending.

“In addition to these factors, the Court relies on the actuarial test results to the extent that they classify, consistently, the risk of [J.T.N.] reoffending as being high. While the experts seem to be in two different camps with respect to the percentage of risk of reoffense of [J.T.N.], they all concurred that it was a high risk. Given the other factors of risk in terms of past history of [J.T.N.], the recent conduct of [J.T.N.] while at the North Dakota State Hospital, and the lack of any treatment progression by [J.T.N.], the Court finds that an exact quantification of percentage risk of reof-fending is not useful nor necessary for a determination in this matter.

“Accordingly, once again, the Court finds that the State has satisfied [its] burden of proving that, by clear and convincing evidence, [J.T.NJs condition makes him likely to engage in further acts of sexually predatory conduct which constitutes a danger to the physical or mental health or safety of others.”

[¶ 12] The district court gave more weight to Dr. Lisota’s testimony and report than it gave to the testimony and reports of J.T.N.’s experts. The district court made detailed findings, including credibility determinations and references to the evidence relied on. See Interest of L.D.M., 2011 ND 25, ¶ 6, 793 N.W.2d 778. We conclude the district court’s finding that J.T.N. was likely to engage in further acts of sexually predatory conduct was not clearly erroneous because we are not firmly convinced the finding was not supported by clear and convincing evidence.

B

[¶ 13] J.T.N. argues the district court erred by finding he has serious difficulty controlling his behavior. To determine whether an individual has serious difficulty in controlling behavior, all relevant conduct may be considered. As the United States Supreme Court explained in Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002),

“ ‘[Inability to control behavior’ will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.”

• [¶ 14] To support its finding that J.T.N. had serious difficulty controlling his behavior, the district court relied on J.T.N.’s recent conduct and treatment. The district court stated,

“The final requirement in the committal process is for the State to prove, by clear and convincing evidence, that [J.T.N.] has serious difficulty controlling his behavior. The Court relies on those actions of [J.T.N.] as set forth immediately above which outlines [J.T.NJs conduct while a patient at the State Hospital. The outline of those actions show[s] that [J.T.N.] has continued to engage in noncompliant behavior which is not only of a disruptive nature, it is also sexually explicit in nature. These actions occur in an environment in which [J.T.N.] is under constant supervision. The possession of cell phones, the possession of pornography on the cell phones, the inciting of a riot, the sleeping in the nude and flashing the staff person and other allegations of inappropriate touching show that he cannot control his behaviors. Furthermore, his unwillingness to participate in treatment is further evidence [J.T.N.] is unable to control his own actions if nothing more than to satisfy those requirements that have been clearly set forth to him that would allow him to progress in a positive manner. However, other than attending group, [J.T.N.] has been completely noncompli-ant in making any progress towards obtaining the treatment goals set for him by the staff at the State Hospital. Rather, [J.T.N.] participates only to the extent that he wants to.

“Further, it concerns the Court greatly that [J.T.N.] does not believe himself to be a sexually dangerous individual nor does he believe himself to be in need of any treatment. This is in spite of the fact that he proposes, as part of his assurance to the Court that he is no danger upon being released, that he will participate in treatment.... Given that he has serious difficulty controlling his behavior in the very restrictive environment of the State Hospital, the Court believes that he will have even less ability to control his behavior once all restrictions have been lifted. Accordingly, the Court finds, by clear and convincing evidence, that the State has shown that [J.T.N.] has serious difficulty controlling his behavior.”

[¶ 15] In its analysis, the district court referenced allegations of inappropriate touching not previously mentioned in the order. As with the other factors relied on by the district court, the allegations were supported by evidence in the record, specifically, testimony by Dr. Lisota regarding an incident during which J.T.N. conducted a “simulated pat-down” on a State Hospital employee. As in its determination that J.T.N. was likely to engage in further acts of sexually predatory conduct, the district court made detailed findings based on evidence in the record to support its finding J.T.N. has serious difficulty controlling his behavior. We conclude the district court’s finding was not clearly erroneous because we are not firmly convinced that it was not supported by clear and convincing evidence.

IV

[¶ 16] J.T.N. argues the district court applied an erroneous view of the law for three reasons. First, he argues the statement in the district court order “that the ‘plain statutory language applicable to this situation clearly indicates that a personality disorder satisfies the second test under the statute’ ... is in direct contrast with this Court’s decision in Midgett, which stated a ‘diagnosis of antisocial personality disorder alone is not sufficient to establish a connection between the disorder and future dangerousness.’ ” 2010 ND 98, ¶ 24, 783 N.W.2d 27. While J.T.N. correctly asserts an antisocial personality disorder cannot be the sole basis for finding an individual has serious difficulty in controlling behavior, he takes the district court order out of context. The language quoted by J.T.N. appears in the order under the heading, “Presence of a Congenital or Acquired Condition that is Manifested by a Sexual Disorder, a Personality Disorder or other Mental Disorder.” J.T.N.’s antisocial personality disorder was not the basis of the district court’s finding that J.T.N. has serious difficulty controlling his behavior. Rather, the district court stated the personality disorder satisfied the statutory requirement that J.T.N. “ha[d] a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction.” N.D.C.C. § 25-03.3-01(8). J.T.N.’s argument that the district court improperly relied on his antisocial personality disorder to support its finding that he has serious difficulty controlling his behavior is without merit.

[¶ 17] Next, J.T.N. argues the district court misapplied the law by “rel[ying] on those offenses as set forth in the prior history as an indicator of the predicted conduct of [J.T.N.] if he were simply released without any supervision.” J.T.N. asserts, “This goes against this Court’s decision that these hearings do not involve prior proceedings, but rather require the State to bear the burden of proving by clear and convincing evidence that J.T.N. remains a sexually dangerous individual at this time. [Interest of M.D., 1999 ND 160, ¶¶ 29-30, 598 N.W.2d 799].” J.T.N.’s assertion is not supported by M.D. and is contrary to N.D.C.C. ch. 25-03.3. In M.D., the appellant argued the evidence presented at his commitment hearing was insufficient to show he was likely to engage in further acts of sexually predatory conduct. Id. at ¶ 36. This Court held the finding was supported by sufficient evidence, including a prior conviction and probation violation. Id. at ¶ 37. Further under N.D.C.C. § 25-03.3-15, “[notwithstanding any other provision of law, in any proceeding pursuant to this chapter, evidence of prior sexually predatory conduct or criminal conduct, including a record of the juvenile court, is admissible.” J.T.N.’s argument the district court improperly relied on his prior offenses is without merit.

[¶ 18] Finally, J.T.N. argues the district court erroneously relied on his actuarial test scores. We have stated that “[t]he raw scores provided through diagnostic tools should not overshadow the ultimate diagnoses and opinions of the expert witnesses.” Interest of P.F., 2006 ND 82, ¶ 22, 712 N.W.2d 610. However, the district court did not err by considering J.T.N.’s raw scores as one of many factors supporting its conclusion that J.T.N. remains a sexually dangerous individual. All three of J.T.N.’s arguments fail. The district court did not apply an erroneous view of the law in determining J.T.N. remains a sexually dangerous individual.

V

[¶ 19] We affirm the district court order denying J.T.N.’s petition for discharge and continuing his commitment as a sexually dangerous individual.

[¶ 20] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ„ concur.