State v. G.L.D.

2011 ND 52, 795 N.W.2d 346, 2011 WL 987914
CourtNorth Dakota Supreme Court
DecidedMarch 22, 2011
DocketNo. 20100230
StatusPublished
Cited by17 cases

This text of 2011 ND 52 (State v. G.L.D.) 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
State v. G.L.D., 2011 ND 52, 795 N.W.2d 346, 2011 WL 987914 (N.D. 2011).

Opinion

KAPSNER, Justice.

[¶ 1] G.L.D. appeals from a district court order denying his petition for discharge from treatment as a sexually dangerous individual after the court found he remains a sexually dangerous individual. G.L.D. argues the district court erred in deciding the State proved by clear and convincing evidence that he remains a sexually dangerous individual. We hold the court’s finding that G.L.D. remains a sexually dangerous individual is not clearly erroneous, and we affirm the order.

I

[IT 2] G.L.D. was incarcerated in 1996 after a conviction for gross sexual imposi[348]*348tion. As his release date approached, the State petitioned to commit him for treatment as a sexually dangerous individual under N.D.C.C. ch. 25-03.3, and in June 2007, he was committed to the custody of the executive director of the Department of Human Services for treatment. In October 2008, G.L.D. petitioned for discharge from treatment. Dr. Lynne Sullivan, a psychologist at the State Hospital, evaluated G.L.D. in October 2008, and she concluded he continued to be a sexually dangerous individual and recommended he remain in the custody of the Department. The court appointed Dr. Joseph Plaud, an independent psychologist, to perform an independent evaluation of G.L.D. At G.L.D.’s request and because Dr. Plaud had not completed his independent evaluation, the court twice continued the hearing on G.L.D.’s petition for discharge from treatment. After the court denied a third request for a continuance, the court granted G.L.D.’s motion to withdraw that petition for discharge. Dr. Plaud thereafter submitted a January 5, 2010, evaluation, in which he concluded G.L.D. was not a sexually dangerous individual. G.L.D. then filed this petition for discharge from treatment. Dr. Robert Lisota, a psychologist at the State Hospital, evaluated G.L.D. in February 2010, and concluded G.L.D. remains a sexually dangerous individual.

[¶ 3] At evidentiary hearings on G.L.D.’s petition for discharge, the district court heard testimony from Dr. Lisota, Dr. Plaud, and Dr. Sullivan and admitted into evidence the reports by Dr. Lisota and Dr. Plaud. The court thereafter denied G.L.D.’s petition for discharge from treatment, finding by clear and convincing evidence he continues to be a sexually dangerous individual. The court found G.L.D. “continues to have a congenital or acquired condition manifested by a sexual disorder, a personality disorder or other mental disorder making it likely he will engage in further acts of sexually predatory conduct” and specifically identified his disorders as “paraphilia and anti-social personality disorder.” The court also relied on “the high scores on the actuarial risk assessment instruments and the finding of a high degree of [p]sychopathy” to find G.L.D.’s “condition makes [him] likely to engage in further acts of sexually predatory conduct meaning [his] propensity toward sexual violence is of such a degree as to pose a threat to others.” The court further found G.L.D. has serious difficulty in controlling his behavior as evidenced by his “two convictions for sexual offenses and two dismissals or acquittals of sexual offenses between these two convictions and his prison time; he continues to have difficulty following rules and has not completed any sex offender treatment that could reduce his risk to re-offend.”

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. Section 25-03.3-01(8), N.D.C.C., defines a “sexually dangerous individual” as:

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

We have construed that statutory definition of a sexually dangerous individual in conjunction with Kansas v. Crane, 534 U.S. 407, 412-14, 122 S.Ct. 867, 151 [349]*349L.Ed.2d 856 (2002), and substantive due process to require the State to prove the committed individual has serious difficulty controlling his or her behavior. Matter of G.R.H., 2006 ND 56, ¶ 18, 711 N.W.2d 587. Under Crane and requirements for substantive due process, the definition of a sexually dangerous individual requires a connection between the disorder and dangerousness, including evidence showing the person has serious difficulty controlling his or her behavior, which distinguishes a sexually dangerous individual from the dangerous but typical recidivist in an ordinary criminal case. G.R.H., at ¶ 18.

[¶ 5] We review civil commitments of sexually dangerous individuals under a modified clearly erroneous standard of review. Midgett, 2010 ND 98, ¶ 6, 783 N.W.2d 27. In reviewing a district court’s order denying a petition for discharge, we give great deference to the court’s credibility determinations of expert witnesses and the weight to be given their testimony. Matter of Rush, 2009 ND 102, ¶ 14, 766 N.W.2d 720. We will affirm a district 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. Midgett, at ¶ 6.

Ill

[¶ 6] G.L.D. argues the district court erred in deciding he remains a sexually dangerous individual under N.D.C.C. ch. 25-03.3. He relies on the opinion and testimony of his expert, Dr. Plaud, to argue the State failed to show he suffers from any diagnosable sexual disorder or he has serious difficulty controlling his sexual behavior. He asserts the State did not prove he poses any greater threat than an ordinary recidivist in a typical criminal ease. The State responds G.L.D.’s history is full of examples showing he cannot control his behavior on any level. The State argues the district court did not clearly err in rejecting Dr. Plaud’s opinion and in accepting Dr. Lisota’s opinion.

[¶ 7] Dr. Lisota’s February 2010, report stated G.L.D. “has a long and stable history with regard to ‘serious difficulty’ controlling his behavior” and he “is currently facing [mjenacing ... and [sjimple [ajssault ... charges for assaulting [state hospital] staff.” Dr. Lisota’s report stated G.L.D. was a 47 year-old male who had been incarcerated since 1996 for his most recent conviction for gross sexual imposition. G.L.D.’s records report at least 50 criminal charges against him since he was 15, including charges for four sexual offenses and numerous other assault and terrorizing charges. Dr. Lisota noted a woman identified as G.L.D.’s girlfriend reported at least six different assaults by him, including some allegations of “sexual assault on an otherwise willing partner.” According to Dr. Lisota, the four other cases involving criminal charges for sexual behavior “all ... emphasize physical violence to induce compliance.” Dr. Lisota stated it was “reasonable to conclude [G.L.D.] derives some satisfaction from forcing sexual activity on non-consenting individuals” and his conduct was “consistent with a paraphilic coercive disorder” or “rape paraphilia” and was also “consistent with the inference of sexual sadism.” Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 ND 52, 795 N.W.2d 346, 2011 WL 987914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gld-nd-2011.