In re J.M., 20050383.

• Decision Date: 11 May 2006
• Docket Number: No. 20050383.,20050383.
• Citation: 713 N.W.2d 518,2006 ND 96
• Parties: In the Interest of J.M. Cynthia M. Feland, Petitioner and Appellee v. J.M., Respondent and Appellant.
• Court: North Dakota Supreme Court

713 N.W.2d 518

2006 ND 96

In the Interest of J.M. Cynthia M. Feland, Petitioner and Appellee v. J.M., Respondent and Appellant.

No. 20050383.

Supreme Court of North Dakota.

May 11, 2006.

COPYRIGHT MATERIAL OMITTED

Susan Schmidt, Bismarck, N.D. for respondent and appellant.

Cynthia M. Feland, Assistant State's Attorney, Bismarck, N.D. for petitioner and appellee.

MARING, Justice.

[¶ 1.] J.M. appeals from an October 28, 2005, order committing him as a sexually dangerous person. J.M. argues the trial court erred by not dismissing the petition for commitment on the grounds the commitment hearing was not held within sixty days after the finding of probable cause. He also argues there was not sufficient evidence presented to commit him as a sexually dangerous person. We affirm.

I

[¶ 2] On December 28, 1998, J.M. pled guilty to corruption of a minor involving a sexual act committed on a minor victim. On August 22, 2001, J.M. pled guilty to gross sexual imposition involving a nine-year-old child and was sentenced to ten years with the North Dakota Department of Corrections, with five years suspended. On March 23, 2005, the State petitioned to commit J.M. as a sexually dangerous person. A preliminary hearing on the petition was held on March 29, 2005. The trial court found probable cause existed to believe that J.M. is a sexually dangerous person and ordered an evaluation to be completed at the North Dakota State Hospital within sixty days.

[¶ 3] On April 13, 2005, the State moved to transfer J.M. from the State Hospital back to the North Dakota State Penitentiary until he completed his sentence in November 2005. The trial court granted the motion on April 14, 2005. J.M. was not notified of this motion and had no opportunity to respond.

[¶ 4] On July 19, 2005, J.M. moved to dismiss the petition for commitment asserting that a commitment hearing had not been held within sixty days after the finding of probable cause, as required under N.D.C.C. § 25-03.3-13. The trial court denied J.M.'s motion, relying on its discretion under N.D.C.C. § 25-03.3-13 to extend the sixty-day limit upon a showing of good cause. A commitment hearing was scheduled for September 8, 2005, but, at the State's request, was rescheduled for September 28, 2005.

[¶ 5] Evaluations of J.M. by two experts were completed at the North Dakota State Hospital and filed with the trial court on September 6, 2005. J.M. requested an independent examination and his request was granted. J.M. also moved for a continuance to allow the independent expert time to conduct an evaluation. As a result, the commitment hearing was again rescheduled, this time for October 21, 2005. The State moved for another continuance. The hearing was finally held October 26, 2005.

[¶ 6] At the commitment hearing, clinical psychologists Joseph Belanger, Ph.D., and Rosalie Etherington, Ph.D., testified that J.M. suffered from antisocial personality disorder and was likely to commit sexually predatory activity in the future. Following the testimony, the trial court found J.M. was a sexually dangerous person and committed him to the North Dakota State Hospital for treatment.

[¶ 7] On appeal, J.M. argues the petition for commitment should have been dismissed because the commitment hearing was not held within sixty days of the finding of probable cause. He also argues the evidence presented at the commitment hearing was insufficient to support his commitment as a sexually dangerous person.

II

[¶ 8] J.M. argues the State did not meet its burden of presenting sufficient evidence to commit him as a sexually dangerous person.

[¶ 9] Commitment as a sexually dangerous person is governed by N.D.C.C. ch. 25-03.3. Involuntary commitment of an individual is authorized when the State can establish by clear and convincing evidence that the individual is a sexually dangerous individual. N.D.C.C. § 25-03.3-13. A sexually dangerous individual is one who:

[I]s shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction 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). Thus, commitment of an individual as sexually dangerous requires the State to establish by clear and convincing evidence:

(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 which constitute a danger to the physical or mental health or safety of others.

In the Matter of G.R.H., 2006 ND 56, ¶ 6, 711 N.W.2d 587.

[¶ 10] In In the Matter of G.R.H., our Court upheld the commitment of a person diagnosed with antisocial personality disorder as a sexually dangerous individual. 2006 ND 56, 711 N.W.2d 587. Recognizing, as the United States Supreme Court did in Kansas v. Crane, that constitutional considerations require proof that the individual's disorder or dysfunction in some way causes that individual serious difficulty in controlling his or her behavior, our Court stated:

[W]e construe 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. We conclude that nexus between the requisite disorder and future dangerousness satisfies the due process requirements of Crane.

2006 ND 56, ¶ 18, 711 N.W.2d 587; see also Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). A diagnosis of antisocial personality disorder does not, per se, establish a nexus between the requisite disorder and future dangerousness. The evidence must clearly show the antisocial personality disorder is likely to manifest itself in a serious difficulty in controlling sexually predatory behavior.

[¶ 11] In reviewing a trial court's order committing an individual as sexually dangerous, this Court applies a modified clearly erroneous standard and will affirm unless the order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence. In re M.D., 1999 ND 160, ¶ 34, 598 N.W.2d 799.

[¶ 12] The evidence in the record clearly and convincingly establishes that J.M. has engaged in sexually predatory conduct. Sexually predatory conduct is defined at N.D.C.C. § 25-03.3-01(9). Relevant in this case, that definition includes engaging in a sexual act or sexual contact with another individual if the victim is less than fifteen years old or the victim is a minor and the actor is an adult. N.D.C.C. § 25-03.3-01(9)(a)(4) and (7). J.M. pled guilty in 1998 to corruption of a minor involving a sexual act committed on a minor victim after he had sexual intercourse with a fifteen-year-old girl. J.M. was eighteen at the time of the encounter. J.M. also pled guilty in 2001 to gross sexual imposition after admitting he had digitally penetrated a nine-year-old girl.

[¶ 13] The evidence in the record also clearly and convincingly establishes that J.M. has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction and that the disorder makes J.M. likely to engage in further acts of sexually predatory conduct. At the commitment hearing, both clinical psychologists testified that they had diagnosed J.M. with a severe antisocial personality disorder that would make it difficult for him to, in the future, avoid reengaging in sexually predatory conduct.

[¶ 14] In this case, Dr. Belanger testified that the diagnosis of antisocial personality disorder was "extremely germane" to a determination of whether J.M. should be committed as a sexually dangerous person:

Because this isn't a garden variety antisocial personality disorder. This is someone who by the severity of the antisocial personality disorder has also buttressed not just by the overwhelming score overall on the PCL-R 2nd Edition, he's at the 99 percentile overall. But if you look at the tacit factors and facet score of the PCL-R, particularly factor 1, these would be strong evidence if one were to ask questions out of Kansas v. Crane, which is, Does [sic] the requisite mental condition create a diminishment of volitional capacity such as the individual would have serious difficulty in conforming his conduct to the code of laws? The answer would be yes, because seven out of seven on the antisocial personality disorder, because a score of 34 overall on the PCL-R 2nd Edition makes him 99 percentile, because an extremely high tacit one score and extremely high facet one score, these are exactly the measures that were taken in the Newman Labs and other zones where people have researched psychopathy as showing an underlying deficit in response modulation. He has got the same scores as those individuals. They have shown clear unequivocal laboratory evidence of a deficit in response modulation. That's the best operational you are going to get of diminishment of volitional capacity; and therefore I find it very important to underlining [sic] considerations of the Court that it is a personality disorder that makes him likely to engage.

Dr. Etherington's conclusion was also that J.M.'s antisocial personality disorder made him likely to engage in future predatory conduct, based both on her own diagnosis and J.M.'s scores on the MnSOST, Static 99, and RRASOR actuarial assessment tools.

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