In the Matter of Jeffrey Keith Wolff.Birch P. Burdick v. Wolff

• Decision Date: 12 April 2011
• Docket Number: No. 20100290.,20100290.
• Citation: 796 N.W.2d 644,2011 ND 76
• Parties: In the Matter of Jeffrey Keith WOLFF.Birch P. Burdick, State's Attorney, Petitioner and Appelleev.Jeffrey Keith Wolff, Respondent and Appellant.
• Court: North Dakota Supreme Court

796 N.W.2d 644

2011 ND 76

In the Matter of Jeffrey Keith WOLFF.Birch P. Burdick, State's Attorney, Petitioner and Appellee

v.Jeffrey Keith Wolff, Respondent and Appellant.

No. 20100290.

Supreme Court of North Dakota.

April 12, 2011.

Birch P. Burdick, State's Attorney, Fargo, N.D., petitioner and appellee.Richard E. Edinger, Fargo, N.D., for respondent and appellant.MARING, Justice.

[¶ 1] Jeffrey Keith Wolff appeals from a trial court order denying his petition for discharge from commitment as a sexually dangerous individual. He argues the trial court erred in finding the State proved by clear and convincing evidence he has serious difficulty controlling his behavior. We affirm.

I

[¶ 2] In April 2006, the trial court found Wolff to be a sexually dangerous individual and committed him to the care, custody, and control of the executive director of the Department of Human Services. In May 2010, Wolff filed a petition for discharge and requested a hearing. Dr. Lynne Sullivan, a licensed psychologist at the North Dakota State Hospital, completed an annual evaluation of Wolff and recommended his continued commitment on the ground Wolff remains a sexually dangerous individual who has serious difficulty controlling his behavior and who is likely to engage in further acts of sexually predatory conduct. Per Wolff's request, the trial court appointed Dr. Robert Riedel, a licensed psychologist, to complete an independent evaluation of Wolff. Dr. Riedel evaluated Wolff and recommended his discharge from commitment, opining Wolff was unlikely to re-offend if released.

[¶ 3] The trial court held a discharge hearing on July 20, 2010, and heard testimony from both experts. Dr. Sullivan testified that Wolff had committed sex offenses in the past, that he suffers from antisocial personality disorder with borderline traits and from substance abuse, and that he is likely to engage in further acts of sexually predatory conduct. Dr. Riedel agreed with Dr. Sullivan on Wolff's past sex offenses and his antisocial personality disorder diagnosis. However, contrary to Dr. Sullivan, Dr. Riedel testified Wolff is not likely to re-offend if discharged from commitment.

[¶ 4] The trial court issued its findings of fact, conclusions of law, and order for continued commitment on August 9, 2010. The court found the State proved by clear and convincing evidence Wolff remains a sexually dangerous individual and, accordingly, denied his petition for discharge. Wolff timely appealed.

II

[¶ 5] “We review civil commitments of sexually dangerous individuals under a modified clearly erroneous standard of review.” Whelan v. A.O., 2011 ND 26, ¶ 5, 793 N.W.2d 471. “We will affirm a trial court's order denying a petition for discharge unless it is induced by an erroneous view of the law or we are firmly convinced it is not supported by clear and convincing evidence.” Id. In reviewing the trial court's order, we give great deference to the court's credibility determinations of expert witnesses and the weight to be given their testimony. Id. The trial court is the best credibility evaluator in cases of conflicting testimony and we will not second-guess the court's credibility determinations. Matter of Hanenberg, 2010 ND 8, ¶ 9, 777 N.W.2d 62.

[¶ 6] At a discharge hearing, the State has the burden of proving by clear and convincing evidence the committed individual remains a sexually dangerous individual. Matter of Midgett, 2009 ND 106, ¶ 6, 766 N.W.2d 717. A sexually dangerous individual is one who (1) has engaged in sexually predatory conduct; (2) has a sexual, personality, or other mental disorder; and (3) is likely to engage in further acts of sexually predatory conduct as a result of his disorder. N.D.C.C. § 25–03.3–01(8).

[¶ 7] In addition to the three statutory requirements, to satisfy substantive due process, the State must also prove the committed individual has serious difficulty controlling his behavior. Midgett, 2009 ND 106, ¶ 6, 766 N.W.2d 717; see also Kansas v. Crane, 534 U.S. 407, 412–13, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). Recognizing, as the United States Supreme Court did in Kansas v. Crane, that constitutional considerations require a connection between the disorder and the lack of control, we have stated:

We 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.

Interest of J.M., 2006 ND 96, ¶ 10, 713 N.W.2d 518; Crane, 534 U.S. at 412–13, 122 S.Ct. 867. We have further explained that a diagnosis of antisocial personality disorder alone does not establish a nexus between the requisite disorder and future dangerousness. Interest of J.M., at ¶ 10. Rather, the evidence presented by the State must clearly show the antisocial personality disorder is likely to manifest itself in a serious difficulty in controlling one's behavior. Id. Neither Kansas v. Crane nor our case law, however, require the conduct evidencing the individual's serious difficulty in controlling his behavior to be sexual in nature. See Crane, 534 U.S. at 412–13, 122 S.Ct. 867 (holding the Constitution only requires proof of serious difficulty in controlling behavior); Matter of R.A.S., 2009 ND 101, ¶ 19, 766 N.W.2d 712 (explaining that in order to continue an individual's commitment, North Dakota's statute does not require proof of conduct sexual in nature after the individual's initial commitment). To the extent Wolff argues our decision in Interest of J.M., 2006 ND 96, ¶ 10, 713 N.W.2d 518, should be read to require proof of an individual's serious difficulty in controlling his behavior be sexual in nature, we now clarify that not to be true.

III

[¶ 8] On appeal, Wolff does not dispute that he previously engaged in sexually predatory conduct or that he has been diagnosed with a personality disorder that meets the criteria under the second prong of N.D.C.C. § 25–03.3–01(8). Rather, he argues the trial court erred in denying his petition for discharge because the State failed to prove by clear and convincing evidence Wolff has serious difficulty controlling his behavior. Specifically, Wolff contends the State failed to establish a nexus between his antisocial personality disorder and his future dangerousness. We disagree.

[¶ 9] The trial court found the State proved by clear and convincing evidence Wolff has serious difficulty controlling his behavior, “even in a structured setting such as the North Dakota State Hospital.” To support its finding, the trial court listed a number of acts committed by Wolff since his last evaluation, which indicate he has serious difficulty controlling his behavior. In particular, the trial court noted Wolff has acted inappropriately toward hospital staff, has violated the rules of his treatment program, has made minimal progress in his sex offender treatment, has shown no empathy for his victims, and has psychopathic traits, which make him “impulsive, sensation seeking, irresponsible, and violative of social and legal norms.” The court explained:

Wolff's chart was reviewed for progress since his last evaluation. He has been rude to staff and has yelled profanities at them. He has displayed an explosive temper. He at times has refused to attend treatment group or has been prohibited from attending due to his attitude.

...

By his own admission Wolff acknowledges that women are nothing more than objects to him.... He showed no empathy for his victim and referred to the person he victimized as overweight and mentally slow and just “a piece of ass.” He admitted to inappropriately acting out in a sexual manner with a peer. His therapist noted that his attitude and sarcasm remain unchanged and that he was not progressing in treatment.

...

He makes minimal progress in his treatment.... As of yet he has not adequately participated in the course of Intensive Sex Offender Treatment that would mitigate his statistically high-risk [to...