In re MBK

• Citation: 639 N.W.2d 473,2002 ND 25
• Decision Date: 20 February 2002
• Docket Number: No. 20010108.,20010108.
• Parties: In the Interest of M.B.K. Brian D. Grosinger, Petitioner and Appellee, v. M.B.K., Respondent and Appellant.
• Court: United States State Supreme Court of North Dakota

639 N.W.2d 473

2002 ND 25

In the Interest of M.B.K.

Brian D. Grosinger, Petitioner and Appellee, v. M.B.K., Respondent and Appellant.

No. 20010108.

Supreme Court of North Dakota.

February 20, 2002.

Brian D. Grosinger, Assistant State's Attorney, Mandan, ND, for petitioner and appellee.

Wayne D. Goter, Goter Law Office, Bismarck, ND, for respondent and appellant.

Jean R. Mullen, Assistant Attorney General, Attorney General's Office, Bismarck, ND, for amicus curiae.

VANDE WALLE, Chief Justice.

[¶ 1] M.B.K. appealed from an order committing him to the care, custody, and control of the executive director of the North Dakota Department of Human Services for treatment as a sexually dangerous person. M.B.K. contends the State failed to establish he was "likely to engage in further acts of sexually predatory conduct" as required for commitment by N.D.C.C. § 25-03.3-13, and as a result, the evidence was insufficient to sustain the order of commitment. We conclude the district court's order was sufficiently supported by the evidence. Therefore, we affirm.

I

[¶ 2] M.B.K. was convicted by his plea of guilty to a class B felony of Gross Sexual Imposition in district court. M.B.K. was sentenced to six years imprisonment, of which three years were suspended upon certain conditions. As M.B.K.'s release date drew near, the State filed a petition alleging M.B.K. is a sexually dangerous individual within the definition of Chapter 25-03.3 of the North Dakota Century Code and, as a result, he should be civilly committed.

[¶ 3] The district court conducted a preliminary hearing on the petition for committal, and found probable cause to believe M.B.K. was a sexually dangerous individual. Upon this finding, the district court ordered M.B.K. to be transported to the North Dakota State Hospital for evaluation.

[¶ 4] At the State Hospital Joseph Belanger, a psychologist, and Joanne Roux, a psychiatrist, both employed by the executive director of the North Dakota Department of Human Services at the State Hospital, evaluated M.B.K. Additionally, M.B.K. exercised his right under the Chapter to request an independent evaluator. Accordingly, Myron J. Veenstra, a psychologist employed by the executive director at the Northeast Human Service Center, conducted a third evaluation.

[¶ 5] At the hearing on the petition, testimony from each of the three evaluators was received. The trial court found the individual opinions of these experts were supported by the record. Accordingly, the district court found by clear and convincing evidence M.B.K. is a sexually dangerous individual. As a result, the district court, as required by N.D.C.C. § 25-03.3-13, for committal as a sexually dangerous person, committed M.B.K. to the care, custody, and control of the executive director of the North Dakota Department of Human Services.

[¶ 6] M.B.K. asserts the State failed to establish he was "likely to engage in further acts of sexually predatory conduct" as required by N.D.C.C. § 25-03.3-13 for commitment of a sexually dangerous person, and as a result, the evidence was insufficient to sustain the order of commitment.

[¶ 7] All three experts based their opinions upon interviews each conducted with M.B.K., a review of M.B.K.'s history, and a review of the results of a battery of risk assessment tests. All three experts ultimately diagnosed M.B.K. with the disorder of Pedophilia, Non-exclusive, Opposite Sex, as well as an Anti-Social Personality Disorder. Additionally, all three of the experts agreed M.B.K. is likely to engage in further acts of sexually predatory conduct. Dr. Belanger and Dr. Roux agreed that M.B.K.'s disorders would predispose any individual to further acts of sexually predatory conduct, even in the absence of the risk factors unique to M.B.K., which were analyzed by the risk assessment tests. At least one of the experts, Dr. Belanger, reasoned M.B.K.'s risk of re-offending was better than 50%, or more likely than not.

[¶ 8] The risk assessment inventories were relied upon by all three experts, though Dr. Veenstra thought some of the results were too high because some events in M.B.K.'s past were included that Dr. Veenstra would not have included. The tests used were the Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR), the Static-99, the Violence Risk Appraisal Guide (VRAG), and the Psychology Check List Revised (PCL-R). The results of the RRASOR placed M.B.K. at a 37% risk of re-offending within ten years. The results of the VRAG placed M.B.K. at an 82% risk of committing some kind of violent offense within 10 years. The PCL-R placed M.B.K. at a 37% risk of re-offending among all male prison inmates and at a 52% risk of re-offending among male forensic patients. The results of the Static-99 placed M.B.K. at a 39% risk of reoffending within five years, 45% risk of reoffending within ten years, and 52% risk of re-offending within fifteen years.

II

[¶ 9] Our standard of review for appeals from commitments of sexually dangerous individuals under N.D.C.C. ch. 25-03.3 is "a modified clearly erroneous" standard. In the Interest of M.D., 1999 ND 160, ¶ 34, 598 N.W.2d 799. That is, we affirm a trial court's order of committal "unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence." Id.

[¶ 10] Section 25-03.3-13, N.D.C.C., provides in part:

An individual may not be committed [as a sexually violent individual] unless evidence is admitted establishing that at least two experts have concluded the individual 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.

[¶ 11] Therefore, the State must produce two experts to independently establish two elements: (1) that the respondent has some sort of disorder and (2) that disorder makes him or her "likely to engage in further acts of sexually predatory conduct."

[¶ 12] It is clear the State produced two experts and M.B.K. produced a third, and all concluded M.B.K. "has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes [him] likely to engage in further acts of sexually predatory conduct." N.D.C.C. § 25-03.3-13. M.B.K. contends, however, the phrase "likely to engage," as used in N.D.C.C. ch. 25-03.3 is unclear, and should be construed by this Court to mean "much more likely than not" rather than merely likely. It is M.B.K.'s position that such a definition would raise the standard sufficiently so he would escape committal.

[¶ 13] Our legislature has not defined what "likely to engage" means, so we are to interpret its meaning. As we have explained by undertaking statutory interpretation:

Our primary goal is to ascertain legislative intent. We look first to the language of the statute. We read statutes as a whole to give meaning to each word and phrase, whenever fairly possible. If the language is clear and unambiguous, the legislative

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