McBeth v. Hehn (In re Hehn)

• Decision Date: 25 August 2015
• Docket Number: No. 20140430.,20140430.
• Citation: 868 N.W.2d 551
• Parties: In the Matter of Darl John HEHN. Ronald W. McBeth, Richland County State's Attorney, Petitioner and Appellee, v. Darl John Hehn, Respondent and Appellant.
• Court: North Dakota Supreme Court

868 N.W.2d 551

In the Matter of Darl John HEHN.

Ronald W. McBeth, Richland County State's Attorney, Petitioner and Appellee

v.Darl John Hehn, Respondent and Appellant.

No. 20140430.

Supreme Court of North Dakota.

Aug. 25, 2015.

Jonathan R. Byers, Special Assistant State's Attorney, Bismarck, N.D., for petitioner and appellee.

Jonathan L. Green, Wahpeton, N.D., for respondent and appellant.

Opinion

KAPSNER, Justice.

[¶ 1] Darl Hehn appeals from an order denying his petition for discharge from civil commitment as a sexually dangerous individual. We conclude Hehn waived his issue on appeal asserting statutory and constitutional violations on grounds the North Dakota State Hospital allegedly withheld treatment and was precluded from asserting a due process violation based on the State Hospital's failure to provide witnesses and other evidence. We further conclude the district court erred in requiring Hehn to remain handcuffed during an annual discharge hearing, but the error was harmless. We affirm.

I

[¶ 2] In 1997, Hehn pleaded guilty to two counts of gross sexual imposition and one count of terrorizing. In 2003, Hehn was released from prison on supervised probation but his probation was subsequently revoked, and he was returned to prison in 2004. In 2006, Hehn was committed to the North Dakota State Hospital as a sexually dangerous individual, and this Court affirmed the commitment. In re Hehn, 2008 ND 36, 745 N.W.2d 631. In 2010, Hehn petitioned for release from civil commitment, and the district court denied his petition. This Court reversed and remanded for additional findings. In re Hehn, 2011 ND 214, ¶¶ 8–9, 806 N.W.2d 189. The district court made findings on remand and again denied his petition, and we summarily affirmed the order. In re Hehn, 2012 ND 191, ¶ 1, 821 N.W.2d 385.

[¶ 3] In 2011, Hehn filed a second petition for discharge. While his second petition was pending, Hehn also filed a letter with the district court requesting an annual review, which the court treated as a third petition. The district court denied his second petition, which we affirmed on appeal. See In re Hehn, 2013 ND 191, ¶¶ 11, 19, 838 N.W.2d 469. We also held that the district court did not err in denying Hehn a hearing on his third petition for discharge “until twelve months had passed since his last discharge hearing.” Id. at ¶ 18.

[¶ 4] In December 2013, Hehn filed another petition requesting a discharge hearing. On August 14 and 15, 2014, the district court held an evidentiary hearing on Hehn's petition for discharge. In November 2014, the court denied his petition, finding he continues to be a sexually dangerous individual. The court found clear and convincing evidence that Hehn had engaged in sexually predatory conduct; has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; was likely to engage in future sexually predatory acts; and has serious difficulty controlling his behavior. The court specifically found a nexus between Hehn's disorder and the likelihood of re-offense and found Hehn would have serious difficulty controlling his behavior in a less restrictive environment.

II

[¶ 5] Commitment proceedings for sexually dangerous individuals are civil proceedings. In re M.D., 1999 ND 160, ¶¶ 27–31, 598 N.W.2d 799. At a discharge hearing the State must prove by clear and convincing evidence the committed individual remains a “sexually dangerous individual.” N.D.C.C. § 25–03.3–18(4) ; In re Hehn, 2013 ND 191, ¶ 8, 838 N.W.2d 469. To prove a committed individual remains a “sexually dangerous individual,” the State must show:

(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.

In re Thill, 2014 ND 89, ¶ 5, 845 N.W.2d 330. “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.” In re E.W.F., 2008 ND 130, ¶ 10, 751 N.W.2d 686 (quotation marks omitted). In addition to the three statutory elements, the State must also prove the constitutionally required element that the individual has “serious difficulty controlling his behavior.” Id.; see also Kansas v. Crane, 534 U.S. 407, 412–14, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). To comport with substantive due process requirements, this Court has:

construe[d] 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.

In re G.R.H., 2006 ND 56, ¶ 18, 711 N.W.2d 587 (emphasis added); see also Crane, at 412–14, 122 S.Ct. 867. This Court has held the conduct demonstrating an individual's “serious difficulty in controlling behavior” need not be sexual in nature. In re Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644.

[¶ 6] This Court reviews the civil commitment of sexually dangerous individuals under a modified clearly erroneous standard of review. Hehn, 2013 ND 191, ¶ 7, 838 N.W.2d 469. “We will affirm a district 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 order, “[this Court] give[s] great deference to the [district] court's credibility determinations of expert witnesses and the weight to be given their testimony.” Wolff, 2011 ND 76, ¶ 5, 796 N.W.2d 644. The district court is “the best credibility evaluator in cases of conflicting testimony and we will not second-guess the court's credibility determinations.” Id.

[¶ 7] Here, Hehn has not raised an issue on appeal specifically challenging the district court's findings that he remains a “sexually dangerous individual” or that he has “serious difficulty in controlling behavior.” Rather, he argues: 1) the State Hospital's withholding of sex offender treatment as punishment for his misconduct, while civilly committed, violates his statutory right to treatment, his right to substantive due process under the Fourteenth Amendment, and his right to be free from cruel and unusual punishment under the Eighth Amendment; and 2) the district court's failure to order the State Hospital to provide witnesses and other evidence, and failure to make individual findings before requiring him to remain handcuffed during the annual discharge hearing, violates his procedural due process rights under the Fourteenth Amendment.

III

[¶ 8] Hehn contends the State Hospital withheld sex offender treatment as punishment for his misconduct while civilly committed in violation of his statutory right to treatment, his right to substantive due process under the Fourteenth Amendment, and his right to be free from cruel and unusual punishment under the Eighth Amendment. Hehn argues that he has been civilly committed since 2006 and the State Hospital has denied him treatment for the majority of that time, contravening the requirement of treatment in the least restrictive manner under N.D.C.C. § 25–03.3–13. Hehn argues the State Hospital's application of N.D.C.C. ch. 25–03.3 has rendered his civil commitment “punitive” by “completely” denying him treatment under confinement conditions that constitute cruel and unusual punishment.

[¶ 9] The State responds that Hehn has raised new constitutional challenges on appeal that he did not raise in the district court. The State asserts there is no record the State Hospital withheld treatment from Hehn and the evidence shows that although treatment is available to him, he has refused to follow basic rules that allow the State Hospital to maintain discipline. The State contends that Hehn has been demoted to the lowest treatment stage and has had to repeat assignments because of his behavior and that Hehn admitted intentionally violating the law while at the State Hospital to go back to prison. The State contends Hehn's own conduct has resulted in him not advancing in treatment.

[¶ 10] We have said that “[w]hen a party fails to raise an issue before the district court, even a constitutional issue, we generally will not address the issue on appeal.”

In re R.A.S., 2008 ND 185, ¶ 12, 756 N.W.2d 771. Further, “[a] party must do more than submit bare assertions to adequately raise constitutional issues.” Id. (quoting E.W.F., 2008 ND 130, ¶ 21, 751 N.W.2d 686 ).

[¶ 11] Here, Hehn reserved and then waived making an opening statement at the discharge hearing. The parties submitted their closing arguments to the district court in writing, and Hehn did not assert in his closing argument that the State Hospital had withheld treatment from him or that the alleged withholding of treatment violated his statutory and constitutional rights. Rather, he argued the State had failed to establish that he had hebephilia, or that such a diagnosis exists; that he is likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others; and that he would have difficulty controlling his behavior.

[¶ 12] Hehn also argued there were lesser restrictive means for treating his borderline personality disorder

with antisocial traits that did not require his continued commitment and he should be released to a less restrictive and less stressful environment to undergo therapy for this disorder. While he conceded having “some outbursts” at the State Hospital, he contended “that is the very nature of his disorder.” Nonetheless, Hehn did not argue in the district...