Wamstad v. Loy

2015 ND 92, 862 N.W.2d 500, 2015 WL 1912922

• Court: North Dakota Supreme Court
• Decided: April 28, 2015
• Docket: 20140111
• Status: Published

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Garrett Alan Loy appealed from an order civilly committing him as a sexually dangerous individual. We affirm.

I

[¶ 2] In 2004, Loy was convicted of gross sexual imposition. In 2005, Loy pleaded guilty to a separate charge of gross sexual imposition and his probation from his 2004 conviction was revoked. Loy was sentenced to ten years in custody with five years suspended for the 2004 conviction, and sentenced to ten years in custody with five years suspended for the 2005 conviction, to be served consecutively. Loy was also required to complete the Intensive Sex Addiction Treatment Program. He was evaluated for referral to the North Dakota Department of Corrections and Rehabilitation’s sex offender treatment program, and completed the low intensity program in 2006, as well as the intensive offender treatment program in 2012. Prior to his release, the North Dakota Department of Corrections and Rehabilitation did not recommend civil commitment. However, Dr. Lisa Peterson evaluated Loy and was concerned he could become involved in further acts of sexual misconduct following release based upon Loy’s inability to control his hyper-sexuality and his future access to potential victims. Dr. Peterson recommended transitional treatment with gradual reintegration into the general populace.

[¶ 3] The State filed a petition to involuntarily commit Loy as a sexually dangerous individual. Prior to the commitment hearing, Dr. Lynne Sullivan submitted an evaluation to the district court on behalf of the State, determining Loy suffers from hypersexuality and other specified para-philic disorder, hebephilia. The diagnosis concluded Loy was at a high risk of engaging in further acts of sexually predatory conduct.

[¶ 4] Prior to the commitment hearing, Loy was found indigent and was granted a court-appointed attorney. Loy moved for appointment of an independent mental health evaluator as an indigent, which was also granted. Loy later dismissed his court-appointed counsel and hired private counsel. The district court required Loy provide a financial affidavit based on his ability to hire private counsel, and found Loy had $2,800 in assets and ordered him to pay $2,700 toward the expense of his independent evaluation. Loy moved to substitute the court-appointed evaluator with his own independent evaluator, which was denied.

[¶ 5] Dr. Gregory Volk was appointed by the district court to provide an independent evaluation of Loy. Dr. Volk diagnosed Loy with other specified paraphilic disorder, hebephilia, unspecified depressive disorder, and other specified personality disorder (histrionic, self-defeating, antisocial, and borderline features). Dr. Volk concluded Loy had a moderate to high level of risk to reoffend, but if appropriate levels of supervision could be maintained in the community of his residence and he was actively engaged in a solution-focused, strength based program that address the underlying causes of his sexually inappropriate behaviors, it was likely Loy could make an adequate adjustment in the community.

[¶ 6] Dr. Sullivan and Dr. Volk testified during the commitment hearing. At the time of Dr. Sullivan’s testimony, her license with the North Dakota State Board of Psychologist Examiners was under probation. Loy moved to prohibit Dr. Sullivan’s testimony arguing she was not a qualified expert witness. The district court denied the motion. Dr. Volk testified that Loy’s failure to partially pay Dr. Volk for Loy’s independent evaluation indicated a raised risk level in disobeying a court order. Loy moved to exclude Dr. Volk’s testimony as an expert witness due to alleged bias. The motion was denied. Loy moved to allow Rodney Ireland, a person currently committed as a sexually dangerous individual, testify about the treatment received at the North Dakota State Hospital. The motion was also denied by the district court.

[¶ 7] The district court determined there was clear and convincing evidence Loy remains a sexually dangerous individual and ordered that he be committed to the custody of the North Dakota Department of Human Services. The district court specifically stated Loy’s failure to pay Dr. Volk as a sign of increased risk was not a pivotal factor in determining whether Loy should be released, and amended its prior order deleting his requirement to pay for the independent evaluation.

[¶ 8] On appeal, Loy argues the district court erred in allowing the testimony of Dr. Sullivan and Dr. Volk as expert witnesses, erred in denying Loy the right to choose an independent evaluator at the State’s expense, erred in denying Loy’s witness from testifying about treatment conditions, and erred in finding clear and convincing evidence exists that he remains a sexually dangerous individual.

II

[¶ 9] Commitment proceedings for sexually dangerous individuals are civil proceedings. In re M.D., 1999 ND 160, ¶ 27, 598 N.W.2d 799. This Court reviews the civil commitment of sexually dangerous individuals under a modified clearly erroneous standard of review, and 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. In re Hehn, 2013 ND 191, ¶ 7, 838 N.W.2d 469. In reviewing a commitment order, “we give great deference to the court’s credibility determinations of expert witnesses and the weight to be given their testimony.” In re Wolff, 2011 ND 76, ¶ 5, 796 N.W.2d 644.

[¶ 10] The State must prove by clear and convincing evidence the committed individual remains a sexually dangerous individual. N.D.C.C. § 25-03.3-18(4); In re G.L.D., 2014 ND 194, ¶9, 855 N.W.2d 99. To prove a person remains a sexually dangerous individual, the State must prove:

(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; and (3) the disorder makes the individual likely to engage in farther acts of sexually predatory conduct.

Id. The State must also prove a constitutionally required element that the individual has “serious difficulty controlling his behavior.” Id. at ¶ 10.

III

[¶ 11] Loy argues the district court erred in allowing Dr. Lynne Sullivan to testify as a qualified expert witness because her licensure was under probation. A “qualified expert” in an action civilly committing a sexually dangerous individual means “an individual who has an expertise in sexual offender evaluations and who is a psychiatrist or psychologist trained in a clinical program and licensed pursuant to this state’s law or a psychologist approved for exemption by the North Dakota board of psychologist examiners.” N.D.C.C. § 25-03.3-01(4). An expert witness is also defined as “a witness who is qualified as an expert by knowledge, skill, experience, training, or education” who “may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” N.D.R.Ev. 702.

[¶ 12] It is not disputed that Dr. Sullivan was licensed by the North Dakota State Board of Psychologist Examiners. A licensure subject to probation does not nullify the license, and Dr. Sullivan meets both the statutory and evidentiary standard required to testify. Her probationary status is an issue of weight and credibility as to her testimony, and not an issue of admissibility. The district court did not abuse its discretion in admitting Dr. Sullivan as a qualified expert witness.

IV

[¶ 13] Loy argues the district court erred by denying him the right to have an independent examination be performed by a qualified expert at no expense. After a finding of probable cause to believe the respondent is a sexually dangerous individual, North Dakota requires an evaluation be conducted by an expert to determine “whether the respondent has a congenital or acquired condition that is manifested by a sexual disorder, personality disorder, or other mental disorder or dysfunction that makes the respondent likely to engage in further acts of sexually predatory conduct.” N.D.C.C. § 25-03.3-11. “[A] respondent may retain an expert to perform an evaluation or testify on the respondent’s behalf,” and in the case of an indigent respondent, “the court shall appoint a qualified expert to perform an examination or participate in the commitment proceeding on the respondent’s behalf.” N.D.C.C. § 25-03.3-12. The statute does not give an indigent respondent the right to choose the independent evaluator. In re B.V., 2006 ND 22, ¶ 18, 708 N.W.2d 877.

[¶ 14] Loy was originally granted indigent status, and Dr. Volk was appointed by the district court to perform an independent examination on Loy’s behalf. Pri- or to submission of Dr. Volk’s evaluation with the district court, Loy’s indigent status was amended due to his retention of private counsel and submission of a financial affidavit indicating the ability to partially pay $2,700 toward the evaluation’s costs. Loy moved to substitute Dr. Volk with another independent evaluator. The district court denied the motion and received Dr. Volk’s evaluation that same day. Dr. Volk’s evaluation did not indicate any reference to Loy’s inability to pay for the evaluation as a risk factor. At the hearing, Dr. Volk did testify that Loy’s inability to pay for the evaluation indicated a raised risk assessment due to his failure to follow a court order.

[¶ 15] Unlike court-appointed counsel for an indigent respondent, North Dakota makes no provision for recoupment of costs associated with an independent examination. See N.D.C.C. § 25-03.3-09(3), (4). The district court’s order requiring partial payment by Loy for his independent evaluation was based on an erroneous view of the law. However, the district court’s final order did not require Loy provide payment for the independent evaluation. The record does not indicate Loy provided any payment for Dr. Volk’s evaluation, and Loy’s indigent status remained in effect. Because Loy remained indigent throughout the proceedings, Loy did not retain a right to choose an independent evaluator paid by the State, and the district court’s prior order requiring payment was harmless and did not affect a substantial right.

V

[¶ 16] Loy argues the district court erred in allowing Dr. Volk to testify as a qualified expert witness due to his alleged bias against Loy. The district court’s order referenced Dr. Volk’s testimony as follows:

Dr. Volk indicated that the Respondent’s failure to comply with a court order to partially pay for the independent evaluation he had requested indicated to him a raised risk level, as it indicated a continuing lack of responsibility, and that that irresponsibility was new post-report information. The court determines, however, that this factor is not pivotal in determining whether or not the Respondent should be released at this time for continued monitoring and further sex offender treatment, or whether he needs additional in-patient sex offender treatment prior to release.

[¶ 17] We have previously held that issues regarding an alleged violation of professional ethics or rules of a profession, including conflicts of interests, have no bearing on the admissibility of an expert witnesses’s testimony, but rather affect the weight given that opinion. In re O.H.W., 2009 ND 194, ¶ 9, 775 N.W.2d 73. The rules governing admission of expert testimony envision generous allowance of its use if the witness is shown to have some degree of expertise in the field in which they are to testify, and if the testimony assists the trier of fact to understand the evidence or determine a fact in issue and is qualified as an expert, it will be accepted. Id. at ¶ 13. As stated above, the district court’s assessment of witness credibility is granted deference, and the district court’s discretion in admitting expert testimony will not be reversed unless the district court abuses its discretion by acting in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id. at ¶¶ 15-16.

[¶ 18] The district court found Dr. Volk’s testimony at the hearing was apparently shaped in part by an outstanding debt allegedly owed by Loy to Dr. Volk. However, this concerns the weight of Dr. Volk’s testimony, and the district court order clearly indicates the alleged conflict was not a pivotal factor in the final decision. The district court did not abuse its discretion by allowing Dr. Volk to testify.

VI

[¶ 19] Loy argues the district court erred by denying Mr. Rodney Ireland from testifying at Loy’s hearing. Rule 401, N.D.R.Ev., provides: “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” “Irrelevant evidence is not admissible.” Rule 402, N.D.R.Ev. A respondent found to be a sexually dangerous individual is placed in the care of the North Dakota Executive Director of the Department of Human Services, and placement of the respondent in an appropriate facility is left to the discretion of the executive director. N.D.C.C. §§ 25-08.3-01(2), 25-08.3-13. This can include an out-of-state facility. See N.D.C.C. § 25-03.3-17(3). The four elements at issue in a commitment hearing do not include whether the State has provided adequate treatment at the North Dakota State Hospital. Inadequate treatment in one state facility would not be grounds to release a respondent. A district court is required to commit the respondent to the care of the executive director, and the executive director is charged with placing the respondent in an appropriate facility. N.D.C.C. § 25-03.3-13. Testimony as to the quality of treatment at a specific facility is premature. Treatment had not yet been received by Loy, and the issue before the district court is only whether to commit Loy into the custody of the North Dakota Department of Human Services. The district court did not abuse its discretion by excluding Mr. Ireland’s testimony.

VII

[¶ 20] Loy argues the district court erred in determining the State had satisfied its burden of proving by clear and convincing evidence that he remains a sexually dangerous individual. This argument is based on Dr. Sullivan’s lack of an in-person interview of Loy, her failure to diagnose Loy under a specific psychological exam using specific metrics, her alleged erroneous diagnosis of Loy, and Dr. Volk’s testimony and evaluation supporting Ley’s transition back into society.

[¶21] Here, evidence supports a conclusion that the State proved by clear and convincing evidence that Loy continues to be a sexually dangerous individual. Dr. Sullivan’s lack of a personal interview does not bar her diagnosis, and goes to the weight of the evidence and not its admissibility. See In re J.M., 2013 ND 11, ¶¶ 11-13, 826 N.W.2d 315. Under the factors, Loy was found to have previously engaged in sexually predatory conduct. Both expert witnesses diagnosed Loy with having a congenital or acquired condition that is manifested by a sexual, personality, or other mental disorder or dysfunction making him likely to engage in further acts of sexually predatory conduct. Both experts diagnosed Loy with hebephilia as well as other specified personality disorders. The manner in which Dr. Sullivan diagnosed Loy would go to the credibility of the evidence, not its admissibility, and both expert witnesses agreed in the results of the examinations using methodology accepted in the profession. Dr. Sullivan’s diagnosis, reviewing the entire record, supports Loy’s diagnosis of hypersexuality due to his actions, history, and difficulty controlling his behavior, and indicated Loy is at serious risk for reoffending. Dr. Volk’s initial report rated Loy as moderate to high risk of reoffense, and that he had difficulty controlling his sexual impulses. Based on the record, the district court’s determination is not clearly erroneous.

VIII

[¶22] We affirm the district court’s civil commitment order.

[¶ 23] DALE V. SANDSTROM and LISA FAIR McEVERS, JJ., concur.