Lawyer v. J.M.(In re J.M.)

• Decision Date: 16 May 2019
• Docket Number: No. 20180278,20180278
• Parties: In the MATTER OF J.M. Julie A. Lawyer, Burleigh County State’s Attorney, Petitioner and Appellee v. J.M., Respondent and Appellant
• Court: North Dakota Supreme Court

927 N.W.2d 422

In the MATTER OF J.M.

Julie A. Lawyer, Burleigh County State’s Attorney, Petitioner and Appellee

v.J.M., Respondent and Appellant

No. 20180278

Supreme Court of North Dakota.

Filed May 16, 2019

Julie A. Lawyer, Burleigh County State’s Attorney, Bismarck, ND, petitioner and appellee.

Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.

VandeWalle, Chief Justice.

[¶1] J.M. appealed from a district court order denying his petition for discharge and continuing his commitment as a sexually dangerous individual. He argues the State did not prove by clear and convincing evidence his antisocial personality disorder

and sexual disorder were likely to result in a serious difficulty in controlling his behavior. On this record we conclude the State did not establish clear and convincing evidence of a nexus between J.M.’s disorder and his sexual dangerousness to others. We reverse.

I

[¶2] J.M. was civilly committed as a sexually dangerous individual in October 2005 at the end of his incarceration for a 2001 conviction for gross sexual imposition involving a nine-year-old victim. J.M. has unsuccessfully petitioned for discharge several times and has appealed his commitment on four prior occasions. See Interest of J.M. , 2006 ND 96, 713 N.W.2d 518 ; Matter of J.M. , 2011 ND 105, 799 N.W.2d 406 ; In re J.M. , 2013 ND 11, 826 N.W.2d 315 ; In re J.M. , 2014 ND 118, 859 N.W.2d 929.

[¶3] In this case, J.M. filed a petition for discharge in June 2017. At the December 1, 2017 hearing, the district court heard testimony from the State Hospital’s expert, Dr. Byrne, and J.M.’s independent evaluator, Dr. Benson. In his testimony, Dr. Byrne stated J.M. was likely to engage in further acts of sexually predatory conduct based on actuarial tests and his review of J.M.’s records. Dr. Byrne also found J.M.’s diagnoses are linked to a serious difficulty in controlling his behavior. During her testimony, Dr. Benson testified J.M. was not likely to engage in sexually predatory conduct and no longer met the criteria for a sexually dangerous individual. Dr. Benson based her testimony on interviews with J.M. and his family, actuarial tests, and dynamic factors.

[¶4] The district court also received testimony about an incident where J.M. threw a rock at another resident and an altercation with another resident investigated by the State Hospital. The experts disagreed on what these incidents represented about J.M.’s likelihood to engage in further acts of sexually predatory conduct. However, both Dr. Byrne and Dr. Benson stated that aggression remained an issue for J.M. Additionally, the court received evidence of behavioral write-ups J.M. received for writing negative comments about other residents in his journal and withdrawing twelve dollars more than he was allowed to from the ATM. Nothing in the record suggests J.M. did anything inappropriate with the money.

[¶5] Quoting from Dr. Byrne’s report, the district court found J.M. continues to be a sexually dangerous individual under N.D.C.C. ch. 25-03.3 and denied J.M.’s application for discharge.

II

[¶6] Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard. In Interest of Tanner , 2017 ND 153, ¶ 4, 897 N.W.2d 901. This Court will affirm a district court’s order denying a petition for discharge unless it is induced by an erroneous view of the law or this Court is firmly convinced it is not supported by clear and convincing evidence. Id . This Court gives "great deference to the court’s credibility determinations of expert witnesses and the weight to be given their testimony." Id. In cases of conflicting testimony, the district court is the best credibility evaluator. In re Hehn , 2008 ND 36, ¶ 23, 745 N.W.2d 631.

[¶7] When a committed individual petitions for discharge, the State must prove by clear and convincing evidence the petitioner is still a sexually dangerous individual. N.D.C.C. § 25-03.3-18(4). The State must prove three statutory elements to show the petitioner remains a sexually dangerous individual:

[1] [the individual] engaged in sexually predatory conduct and [2] 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.

N.D.C.C. § 25-03.3-01(8).

[¶8] The State must also meet substantive due process requirements by proving the individual has serious difficulty in controlling his behavior. Tanner , 2017 ND 153, ¶ 5, 897 N.W.2d 901. Consistent with the United States Supreme Court ruling in Kansas v. Crane , 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), we interpret the definition of a sexually dangerous individual to require "proof of a nexus between the requisite disorder and dangerousness to encompass 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." Interest of Carter , 2019 ND 67, ¶ 4, 924 N.W.2d 112. Neither our case law, nor Kansas v. Crane , "require the conduct evidencing the individual’s serious difficulty in controlling his behavior to be sexual in nature." In re Wolff , 2011 ND 76, ¶ 7, 796 N.W.2d 644.

[¶9] Constitutional considerations require a causal connection between the disorder and the lack of control which would likely result in future sexually predatory conduct. Tanner , 2017 ND 153, ¶ 5, 897 N.W.2d 901. Non-sexual conduct demonstrating an individual’s serious difficulty in controlling behavior may also be considered. Id . at ¶ 5. However, "[t]he presence of a mental disorder or condition alone does not constitute clear and convincing evidence an individual is likely to engage in further acts of sexually predatory conduct." In Interest of Nelson , 2017 ND 152, ¶ 7, 896 N.W.2d 923. "The description of the characteristics of such mental disorder also does not alone constitute proof of serious difficulty in controlling behavior." Id ."The evidence must clearly show the antisocial personality disorder

is likely to manifest itself in a serious difficulty in controlling sexually predatory behavior." J.M. , 2006 ND 96, ¶ 10, 713 N.W.2d 518.

[¶10] The district court must find the State has proven all elements by clear and convincing evidence. In re Johnson , 2016 ND 29, ¶ 4, 876 N.W.2d 25. In its order, the court must state the specific factual findings upon which its legal conclusions are based. Id ."The court errs, as a matter of law, when its findings are insufficient or do not support its legal conclusions." Id .

[¶11] J.M. concedes the State met its burden on the first two prongs of N.D.C.C. § 25-03.3-01(8). Under the first prong of N.D.C.C. § 25-03.3-01(8), the district court took judicial notice of J.M.’s prior convictions of Corruption of a Minor against a 15 year old girl in 1998 and Gross Sexual Imposition against a 9 year old girl in 2001. See J.M. , 2006 ND 96, ¶ 2, 713 N.W.2d 518. The court also found clear and convincing evidence J.M. suffers from a sexual disorder, though the experts differed on their specific diagnoses.

[¶12] On appeal, J.M. contends the State failed to prove by clear and convincing evidence that he is likely to engage in further acts of sexually predatory conduct and has serious difficulty controlling his behavior. "We have recognized the phrase ‘likely to engage in further acts of sexually predatory conduct’ under N.D.C.C. § 25-03.3-01(8), means the individual’s propensity towards sexual violence is of such a degree as to pose a threat to others." Tanner , 2017 ND 153, ¶ 6, 897 N.W.2d 901 (quoting Matter of Rubey , 2011 ND 165, ¶ 5, 801 N.W.2d 702 ).

[¶13] In addressing the third prong in its order, the district court recognized the improvements J.M. made in treatment but found J.M. is likely to engage in further acts of sexually predatory conduct and has serious difficulty controlling his behavior. The court based its findings on actuarial tests administered by both Dr. Byrne and Dr. Benson, Dr. Byrne’s testimony on J.M.’s sexual disorder, and dynamic factors considered in Dr. Byrne’s report. Those dynamic factors included an incident of J.M. throwing a rock at another State Hospital resident and an altercation with a resident that led to J.M. being temporarily moved to the hospital’s most secure unit. In its findings, the court specifically identified the numerous actuarial tests performed by both experts which placed J.M. in above average, well above average, or high risk categories for reoffending.

[¶14] This Court "defer[s] to a district court’s determination that an individual has serious difficulty controlling behavior when it is supported by specific findings demonstrating the difficulty." Johnson , 2016 ND 29, ¶ 5, 876 N.W.2d 25. The State bears the burden of showing the risk posed by J.M. is distinguishable "from the dangerous but typical recidivist in the ordinary criminal case" by clear and convincing evidence. Wolff , 2011 ND 76, ¶ 7, 796 N.W.2d 644. Here, the district court’s order did not provide specific findings demonstrating J.M. is any more dangerous than other released convicts. J.M.’s scores on actuarial tests are not enough to require J.M.’s continued commitment. "A certain test score ... does not make an individual automatically committable." Hehn , 2008 ND 36, ¶ 21, 745 N.W.2d 631 (quoting Interest of P.F. , 2006 ND 82, ¶ 29, 712 N.W.2d 610 ). "A psychological test cannot act as a substitute for independent judicial review." Id .

[¶15] The district court also found a nexus existed between J.M.’s disorder and a difficulty controlling his behavior based on J.M.’s diagnosis, Dr. Byrne’s report, and dynamic factors. In its order, the court quoted Dr. Byrne’s report where he discussed J.M.’s...