In re E.W.F.
| Decision Date | 26 June 2008 |
| Docket Number | No. 20080037.,20080037. |
| Citation | 2008 ND 130,751 N.W.2d 686 |
| Parties | In the Matter of E.W.F. Cass County State's Attorney, Petitioner and Appellee v. E.W.F., Respondent and Appellant. |
| Court | North Dakota Supreme Court |
Ryan J. Younggren (argued), Assistant State's Attorney, Fargo, ND, for petitioner and appellee.
Richard E. Edinger (argued), Fargo, ND, for respondent and appellant.
[¶ 1] E.W.F. appeals an order denying his petition for discharge from commitment as a sexually dangerous individual. We affirm.
[¶ 2] In 1994, E.W.F., then twenty-one years old, molested his five-year-old niece. He pled guilty to gross sexual imposition on September 14, 1995 and was sentenced to prison. On September 1, 1998, he was committed to the North Dakota State Hospital ("State Hospital") as a sexually dangerous individual.
[¶ 3] From 1999 to 2006, E.W.F. waived his statutory right to annually petition for discharge from the State Hospital. On September 20, 2007, E.W.F. petitioned for discharge, and a hearing was conducted on January 3, 2008. Dr. Lynne Sullivan, a State Hospital staff psychologist, testified as an expert witness for the State. Based on Dr. Sullivan's review of E.W.F.'s prior evaluations conducted in 1995, 1998, and 2006, along with current reports of E.W.F.'s behavior at the State Hospital, Dr. Sullivan testified E.W.F. still suffers from two sexual disorders, paraphelia not otherwise specified, and pedophilia. Dr. Sullivan prepared a Sexually Dangerous Individual Annual Re-evaluation Report ("Annual Report") in September 2007, which also contained the annual interview she conducted with E.W.F. in 2007. The State filed the Annual Report with the clerk of district court prior to the January 2008, hearing for discharge under N.D.C.C. § 25-03.3-17(2). The Annual Report, filed with the district court on September 27, 2007, was not served upon E.W.F. or his counsel. The Annual Report was not offered by the State at the hearing.
[¶ 4] The Annual Report indicated E.W.F. had not completed sex offender treatment. The Annual Report stated E.W.F. had not made notable progress in the sex offender treatment program and had, in fact, regressed in his treatment, having moved up to stage three in the five-stage treatment program at one point, but regressed back to stage one at the time of the Annual Report. The Annual Report also noted E.W.F. had conducted himself inappropriately with female staff at the State Hospital, allegedly stalking one female employee. Dr. Sullivan's Annual Report further provides that, while E.W.F. no longer shows strong inclinations toward nonconsenting sexual fantasies that he had in the first years of the sex offender treatment program, E.W.F. still has propensities toward stalking and admits to deviant sexual fantasies. E.W.F. discussed his desire to indecently expose himself at the State Hospital, but wished such behavior would not get him in trouble. Dr. Sullivan testified about the contents of the Annual Report at the January 2008, hearing on the discharge petition. Dr. Sullivan further testified E.W.F.'s behavior, coupled with his sexual disorders and failure to progress in the sex offender treatment program, made E.W.F. likely to engage in further acts of sexually predatory conduct.
[¶ 5] E.W.F. testified at the hearing, stating he had spent nine years in the sex offender treatment program, he did not feel additional treatment was necessary, and that if released, he would not reoffend. He did, however, admit to stalking a female State Hospital staff member within the previous year. E.W.F. underwent an independent evaluation prior to the hearing, but did not offer the written evaluation or the testimony of the evaluating psychologist at the hearing.
[¶ 6] After considering the testimony of Dr. Sullivan and E.W.F., the district court found E.W.F. continues to be a sexually dangerous individual and denied E.W.F.'s petition for discharge on January 9, 2008.
[¶ 7] E.W.F. appeals the district court order denying his petition for discharge, arguing the State failed to prove by clear and convincing evidence that E.W.F. is likely to engage in further acts of sexually predatory conduct. E.W.F. further argues his substantive due process rights were violated, alleging his commitment serves as an unconstitutional mechanism for punishing his underlying criminal conviction.
[¶ 8] "Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard and will be affirmed unless the district court's 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." Matter of Hehn, 2008 ND 36, ¶ 17, 745 N.W.2d 631 (quoting Matter of Midgett, 2007 ND 198, ¶ 6, 742 N.W.2d 803) (internal quotations omitted).
[¶ 9] Chapter 25-03.3, N.D.C.C., which governs the commitment of sexually dangerous individuals, requires the State to prove, by clear and convincing evidence, three elements before an individual may be committed:
engaged in sexually predatory conduct and [2] who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that [3] 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.
[¶ 10] The phrase "`likely to engage in further acts of sexually predatory conduct' means the individual's propensity towards sexual violence is of such a degree as to pose a threat to others." Matter of Hehn, at ¶ 19 (citing Interest of M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473; Matter of G.R.H., 2006 ND 56, ¶ 16, 711 N.W.2d 587). In addition to the three requirements contained in the plain language of the statute, the United States Supreme Court has held that substantive due process rights require the individual facing commitment must be shown to have serious difficulty controlling his behavior. Matter of Hehn, at ¶ 19 (citing Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002)). This additional consideration is necessary to distinguish a sexually dangerous individual from the "`dangerous but typical recidivist convicted in an ordinary criminal case.'" Id. (quoting Crane, at 413, 122 S.Ct. 867).
[¶ 11] E.W.F. does not contend the State failed to meet its burden on the first two prongs of the statute. He engaged in a prior act of sexually predatory conduct when he committed gross sexual imposition in 1994, satisfying the first prong of N.D.C.C. § 25-03.3-01(8). He does not dispute Dr. Sullivan's finding that he has two sexual disorders, paraphelia not otherwise specified, and pedophilia, which meet the criteria under the second prong of N.D.C.C. § 25-03.3-01(8). E.W.F. instead argues the State failed to prove, by clear and convincing evidence, that he is likely to engage in further acts of sexually predatory conduct.
[¶ 12] E.W.F.'s argument is premised on the fact that the State did not offer, during the course of the hearing on the petition for discharge, Dr. Sullivan's written report. Thus, E.W.F. argues, the State could not have met its burden. E.W.F. is incorrect in his assertion.
[¶ 13] Under N.D.C.C. §§ 25-03.3-17 and 25-03.3-18, which govern post-commitment proceedings, discharge, and petitions for discharge, the State is not required to present the written report or evaluation during the hearing itself. Rather, N.D.C.C. § 25-03.3-17(2) requires that the State annually conduct "an examination of that individual's mental condition" and that the "report regarding the examination must be provided to the court that committed the individual." (Emphasis added). The State is not required to submit the report to the defendant, nor is the State required to offer the report during the hearing. The State complied with the statutory requirements under N.D.C.C. § 25-03.3-17(2) when State Hospital staff psychologist Dr. Sullivan completed E.W.F.'s annual evaluation in September 2007 and submitted the report to the committing court on September 27, 2007. Thus, even though the State did not offer and admit the Annual Report during the hearing, the Annual Report is part of the record and readily available for the district court's review, because it was filed with the district court under the clear direction of the statute.
[¶ 14] Similarly, N.D.C.C. § 25-03.3-18, which speaks specifically to petitions for discharge and the procedures that must follow, has no requirement for offering a written report at a petition for discharge hearing. Section 25-03.3-18(1), N.D.C.C., provides the committed individual must annually be afforded "written notice that the individual has a right to petition the court for discharge[,]" the written notice must "explain to the committed person when the committed person has a right to a hearing on the petition[,]" and the written "notice must inform the committed person of the rights this chapter affords the committed person at a discharge hearing." Section 25-03.3-18(3), N.D.C.C., further provides the State "may have the committed individual evaluated by experts chosen by the state[,]" and the "committed individual is entitled to have an expert of the committed individual's choice conduct an evaluation." Section 25-03.3-18(4), N.D.C.C., requires the State to show, by clear and convincing evidence, that the committed individual remains a sexually dangerous individual, but does not require the State to submit a written evaluation as part of this burden.
[¶ 15] Dr. Sullivan's detailed testimony provided the State with the evidence required to meet its burden of proof. E.W.F.'s prior gross sexual imposition conviction, along with Dr. Sullivan's testimony that E.W.F. suffers from two sexual disorders, E.W.F. has not completed sex offender treatment, and E.W.F. still engages inappropriate sexual behavior while in treatment, making E.W.F....
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