Erickson v. Voisine (In re Interest of Voisine), 20190155

• Decision Date: 18 December 2019
• Docket Number: No. 20190155,20190155
• Citation: 936 N.W.2d 544
• Parties: In the INTEREST OF Raymond VOISINE, Ladd R. Erickson, State’s Attorney, Petitioner and Appellee v. Raymond J. Voisine, Respondent and Appellant
• Court: North Dakota Supreme Court

936 N.W.2d 544

In the INTEREST OF Raymond VOISINE,

Ladd R. Erickson, State’s Attorney, Petitioner and Appellee

v.Raymond J. Voisine, Respondent and Appellant

No. 20190155

Supreme Court of North Dakota.

Filed December 18, 2019

Ladd Erickson, State’s Attorney, Washburn, ND, for petitioner and appellee.

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

Crothers, Justice.

[¶1] Raymond Voisine appeals from a district court order finding he remains a sexually dangerous individual. He argues the district court erred by (1) granting the State’s request for continuance, (2) not holding a hearing within 365 days of the previous report or within a calendar year, (3) allowing the State to file and rely on an expert’s report that was filed late, and (4) finding by clear and convincing evidence that Voisine remains a sexually dangerous individual. The dispositive issue is whether clear and convincing evidence exists establishing Voisine remains a sexually dangerous individual. We reverse.

I

[¶2] "In 2004, Voisine was incarcerated after he pled guilty to gross sexual imposition for acts involving a six-year-old victim." Interest of Voisine , 2018 ND 181, ¶ 2, 915 N.W.2d 647. In Voisine , at ¶¶ 2-4, this Court discussed the underlying facts leading to his incarceration and subsequent commitment as a sexually dangerous individual:

"Voisine [was, at that time,] a 65-year-old male with four adult children, R.V., P.P., H.M. and L.K. In 2003, an officer with the North Dakota Bureau of Criminal Investigation executed a search warrant on Voisine’s home for an unrelated firearms charge. During the search, the officer found sexually explicit photographs under the pillow on Voisine’s bed. The photographs pictured H.M., one of Voisine’s three adult daughters. DNA analysis was performed and established with over 99.99 percent certainty that Voisine fathered two children with H.M.

"In light of Voisine’s incestuous relations, interviews were conducted with his acquaintances. Voisine’s grandson reported that when he was 6 or 7 years old, he was forced to stroke

Voisine’s penis for 5 to 10 minutes. The ex-husband of H.M. reported that Voisine threatened him with a firearm and fathered a child with P.P., Voisine’s adult daughter. Voisine’s ex-wife reported that Voisine beat and threatened her while they were married. The current boyfriend of Voisine’s ex-wife reported that Voisine’s children were sexually abused when they were minors. Voisine’s daughter, L.K., reported that she was born to a 17-year-old mother who was impregnated by a 34-year-old Voisine. L.K. also reported that Voisine physically abused her when she was young and that she once walked in on Voisine unzipping his pants behind a naked and bent-over H.M. L.K. later denied stating H.M. was naked.

"Following the investigation, Voisine was charged with gross sexual imposition for sexual contact with his 6- or 7-year-old grandson and with promoting obscenity to a minor for allegedly showing pornography to a second, 9- or 10-year-old grandson who was also Voisine’s son. Voisine pled guilty to gross sexual imposition, and the promotion of obscenity charge was dismissed. He was incarcerated, and upon his release in 2008, the State petitioned to commit him as a sexually dangerous individual. The State alleged that in addition to the sexual contact underlying Voisine’s gross sexual imposition conviction, that Voisine sired three children with two of his daughters, that Voisine sexually abused his daughters as minors, that Voisine conceived a child with a 16-year-old girl in Maine and that Voisine promoted obscenity to a minor by showing pornography to his 9- or 10-year-old grandson/son.

"After he was released from custody, the district court revoked his probation for failing to complete sex offender treatment while incarcerated. In a post-conviction proceeding, his probation revocation was reversed.

Voisine v. State , 2008 ND 91, ¶ 17, 748 N.W.2d 429. The State petitioned to commit Voisine for treatment as a sexually dangerous individual, which the district court subsequently granted. This Court reversed and remanded the case for further proceedings in [In re] Voisine , 2010 ND 17, ¶ 15, 777 N.W.2d 908, and after further proceedings summarily affirmed an order committing Voisine for treatment. Interest of Voisine , 2010 ND 241, ¶ 1, 795 N.W.2d 38."

[¶3] The district court denied his subsequent petitions for discharge from commitment, which were affirmed on appeal. See Interest of Voisine , 2018 ND 181, ¶ 1, 915 N.W.2d 647 ; Interest of Voisine , 2016 ND 254, ¶ 24, 888 N.W.2d 781 ; Interest of Voisine , 2014 ND 178, ¶ 2, 859 N.W.2d 930 ; Interest of Voisine , 2012 ND 250, ¶ 1, 823 N.W.2d 786. This Court also affirmed a district court order denying post-conviction relief. Voisine v. State , 2014 ND 98, ¶ 2, 859 N.W.2d 930.

[¶4] On October 9, 2018, Voisine requested a discharge hearing. On October 17, 2018, the hearing was scheduled for February 1, 2019. On January 30, 2019, the State requested a continuance. Voisine objected to the continuance. On January 31, 2019, the district court continued the hearing until March 25, 2019. After the hearing, the district court found Voisine remained a sexually dangerous individual. Voisine appeals.

II

[¶5] This Court reviews civil commitments of sexually dangerous individuals under a modified clearly erroneous standard, and the district court’s decision will be affirmed unless it is induced by an erroneous view of the law, or we are firmly convinced the decision is not supported by clear and convincing evidence. Matter of R.A.S. , 2019 ND 169, ¶ 5, 930 N.W.2d 162 (citing Interest of Tanner , 2017 ND 153, ¶ 4, 897 N.W.2d 901 ). Great deference is given to the district court’s credibility determinations of expert witnesses and the weight given to their testimony. Voisine , 2018 ND 181, ¶ 5, 915 N.W.2d 647 (citing Tanner , at ¶ 4 ; Matter of Wolff , 2011 ND 76, ¶ 5, 796 N.W.2d 644 ).

[¶6] "At a discharge hearing, the State must prove by clear and convincing evidence that the committed individual remains a ‘sexually dangerous individual’ under N.D.C.C. § 25-03.3-18(4)." Voisine , 2018 ND 181, ¶ 6, 915 N.W.2d 647 (citing Matter of Hehn , 2015 ND 218, ¶ 5, 868 N.W.2d 551 ). Under N.D.C.C. § 25-03.3-01(8), the State must prove three elements:

"(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 further acts of sexually predatory conduct."

Voisine , at ¶ 6 (citing Tanner, 2017 ND 153, ¶ 4, 897 N.W.2d 901 ). "Further, ‘the United States Supreme Court held that in order to satisfy substantive due process requirements, the individual must be shown to have serious difficulty controlling his behavior.’ " Voisine , at ¶ 6 (citing Matter of Hehn , 2008 ND 36, ¶ 19, 745 N.W.2d 631 ); Kansas v. Crane , 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). "We therefore construe ‘sexually dangerous individual’ as meaning ‘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.’ " Voisine , at ¶ 6 (citing Wolff , 2011 ND 76, ¶ 7, 796 N.W.2d 644 (quoting Interest of J.M. , 2006 ND 96, ¶ 10, 713 N.W.2d 518 )).

III

[¶7] Voisine challenges the court’s findings on statutory prongs two and three, and the "serious difficulty" factor required under Kansas v. Crane , 534 U.S. at 413, 122 S.Ct. 867.

[¶8] "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.’ " Matter of J.M. , 2019 ND 125, ¶ 14, 927 N.W.2d 422 (citing In re Johnson , 2016 ND 29, ¶ 5, 876 N.W.2d 25 ). Here, the finding that Voisine remains a sexually dangerous individual was not supported by clear and convincing evidence.

[¶9] The State bears the burden of showing by clear and convincing evidence the risk posed by Voisine is distinguishable "from the dangerous but typical recidivist in the ordinary criminal case." J.M. , 2019 ND 125, ¶ 14, 927 N.W.2d 422 (citing Wolff , 2011 ND 76, ¶ 7, 796 N.W.2d 644 ). Notably, the burden is not whether an individual remains the same as previous reviews. Regarding the Crane factor, "[w]hile the court may rely on actions that are non-sexual in nature, ‘[t]he evidence must clearly show ... a serious difficulty in controlling sexually predatory behavior.’ " J.M. , at ¶ 16 (citing In the Interest of J.M. , 2006 ND 96, ¶ 10, 713 N.W.2d 518 ). "Lack of progress in treatment alone is insufficient to meet this requirement for commitment." Voisine , 2018 ND 181, ¶ 21, 915 N.W.2d 647 (McEvers, J., concurring specially, VandeWalle, C.J., joined) (citing Johnson , 2016 ND 29, ¶ 7, 876 N.W.2d 25 (emphasis in original)).

[¶10] Two witnesses testified at the discharge hearing. Dr. Benson, Voisine’s Independent Examiner, testified Voisine did not meet the second or third prongs, or the serious difficulty factor, and therefore Voisine was not a sexually dangerous individual. Dr. Byrne concluded Voisine met the second, third and serious difficulty factor, and remains a sexually dangerous individual.

[¶11] The district court largely relied on Dr. Byrne’s testimony and report. Regarding the Crane factor, the district court found "Voisine has not made any progress in his treatment and that he has not demonstrated that he would be able or willing to control his behavior if he were to be released into the community." The court’s "serious difficulty" conclusion also was based on evidence Voisine has poor peer relations, refuses to admit to his offenses, has a lack...