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In re G.R.H.

December 16, 2008

IN THE MATTER OF G.R.H.
JOHN P. VAN GRINSVEN III, WARD COUNTY STATE'S ATTORNEY, PETITIONER AND APPELLEE
v.
G.R.H., RESPONDENT AND APPELLANT



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable William W. McLees, Judge.

The opinion of the court was delivered by: Sandstrom, Justice

AFFIRMED.

[¶1] G.R.H. appeals a district court order denying his petition for discharge from commitment as a sexually dangerous individual. We affirm the order.

I.

[¶2] In 2004, G.R.H. was civilly committed as a sexually dangerous individual, and we affirmed the district court's commitment order. Matter of G.R.H., 2006 ND 56, ¶ 1, 711 N.W.2d 587. In August 2005, while this Court was reviewing G.R.H.'s initial commitment, he requested a discharge hearing, but no action was taken pending receipt of our decision. In August 2006, G.R.H. again requested a discharge hearing, which was held in December 2006. Following that hearing, the district court found that clear and convincing evidence showed G.R.H. remained a sexually dangerous individual. In October 2007, G.R.H. again requested a discharge hearing, and one was held in March 2008. The district court appointed Dr. Robert G. Riedel as G.R.H.'s independent expert evaluator. On behalf of the State, Dr. Lincoln D. Coombs conducted a sexually dangerous individual annual reevaluation of G.R.H.

[¶3] The two experts disagreed as to whether G.R.H. remained a sexually dangerous individual. Dr. Coombs concluded G.R.H. remained a sexually dangerous individual on the basis of an interview with G.R.H. and the reevaluation of G.R.H.'s prior psychological evaluations. Dr. Coombs arrived at either an equal or higher risk of reconviction and rearrest than Dr. Riedel. In addition to G.R.H.'s previous antisocial personality disorder, Dr. Coombs diagnosed G.R.H. with paraphilia not otherwise specified hebephilia, defining hebephilia as the sexual attraction to adolescents, on the basis of new information G.R.H. revealed about having had sexual relations with several other adolescent females not previously known.

[¶4] Conversely, Dr. Riedel testified G.R.H. was not a sexually dangerous individual. Dr. Riedel based his conclusion on the scores of several risk assessment instruments, a two-and-a-half hour interview with G.R.H., and his review of all G.R.H.'s State Hospital records, including all the records that were available from the State Penitentiary. The battery of actuarial tests included the Kaufman Test of Educational Achievement, the Woodcock-Johnson Test of Cognitive Abilities, the Clarke Sexual History Questionnaire, the Personality Assessment Inventory, the RRASOR, the Static-99, the MnSost-R, and the PCL-R2nd. Dr. Riedel diagnosed G.R.H. with "psychoactive substance abuse," provisional and in long-term remission in a controlled setting, and found personality disorder not otherwise specified with some borderline, antisocial, narcissistic, schizophrenic-like behavior, and paranoid features. He explained that a diagnosis of "psychoactive substance abuse" means the person abuses more than one substance that has a psychological effect. Dr. Riedel acknowledged during his testimony, however, that he did not give much attention to the information about the additional victims, because he was of the impression they were not adolescents. He conceded that if the victims' ages were correct, a diagnosis of sexual perversion of sexual attraction to adolescents would be more justified.

[¶5] Following the March 2008 hearing, the district court denied G.R.H.'s petition for discharge, finding the State had proven by clear and convincing evidence that G.R.H. continued to be a sexually dangerous individual. G.R.H. contends the district court erred in finding that he met the second and third prongs of a sexually dangerous individual definition in N.D.C.C. § 25-03.3-01(8).

[¶6] The district court had jurisdiction of the discharge hearing under N.D. Const. art. VI, § 8, and N.D.C.C. § 25-03.3-02. The appeal from the order was timely under N.D.C.C. § 25-03.3-19. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 25- 03.3-19.

II.

[¶7] Applying a modified clearly erroneous standard of review, we affirm a district court order denying a petition for discharge from commitment as a sexually dangerous individual 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. Matter of E.W.F., 2008 ND 130, ¶ 8, 751 N.W.2d 686. Section 25-03.3-18(4) of the North Dakota Century Code requires the State to prove by clear and convincing evidence that the committed individual remains a sexually dangerous individual, which means proving the individual: "

[has] 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 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). In Kansas v. Crane, 534 U.S. 407, 413 (2002), the United States Supreme Court concluded that commitment as a sexually dangerous individual cannot constitutionally be sustained without determining that the person to be committed has serious difficulty in controlling his or her behavior. Therefore, consistent with N.D.C.C. § 1-02-38(1), we have construed the definition of a sexually dangerous individual to require that there must be a nexus between the disorder and dangerousness, proof of which encompasses evidence showing the individual has serious difficulty in controlling his behavior, which suffices to distinguish a sexually dangerous individual from other dangerous persons. E.W.F., at ¶ 10. All sexually predatory conduct, including that which did not result in a charge or conviction, may be considered under a N.D.C.C. § 25-03.3-01(8) analysis. Interest of P.F., 2006 ND 82, ¶ 20, 712 N.W.2d 610. In cases of conflicting testimony, the district court is the best credibility evaluator. Matter of Hehn, 2008 ND 36, ¶ 23, 745 N.W.2d 631. "It is not the function of this Court to second-guess the credibility determinations made by the trial court." Id.

A.

[¶8] G.R.H. argues the State failed to provide clear and convincing evidence showing he has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction. Dr. Coombs diagnosed G.R.H. with the sexual distortion of sexual attraction to adolescents. According to Dr. Coombs' reevaluation report, this diagnosis had been considered by both original evaluators in 2004, but it was thought there was insufficient evidence to establish it. Dr. Coombs testified additional evidence had now surfaced supporting such a diagnosis-during his reevaluation, G.R.H. had admitted to twelve additional female adolescent victims five years or more his junior at the time of victimization, nine of whom he counted were after G.R.H.'s release from his first prison term for sexual offense against an adolescent. In addition to the offenses for which he had been convicted, G.R.H. has admitted to having had sexual contact with a 13- and a 14-year-old girl when he was 19; a 17-year-old girl when he was 24; a 13-, a 14-, a 16-, and two 17-year-old girls when he was 25; and a 16-year-old girl when he was 27. In Dr. Coombs' opinion, G.R.H.'s sexual contact with nine adolescent girls after his release from prison for his gross sexual imposition conviction indicates a serious difficulty in controlling his behavior. The record shows that even Dr. Riedel-the independent evaluator-who initially disagreed, conceded that if the recently disclosed adolescent female victims' ages were correct, the move from the rule-out level to the diagnostic level of hebephilia would be more justified. At the hearing, he acknowledged he did not give much attention to the information about these additional victims because he was of the impression they were not adolescents.

[ΒΆ9] Dr. Coombs also testified G.R.H.'s two convictions for failure to register as a sex offender are further indicators of G.R.H.'s difficulty in controlling his behavior. Further, in his reevaluation report, Dr. Coombs noted G.R.H. presents a tolerant attitude toward sex-offending by breaking the treatment rules, by engaging in sexual contact with his visitors, and by placing sex-line calls in order "to alleviate boredom, boost his ego or address his loneliness and depression." The report further provides G.R.H. had said that he targeted teens because of his low self-esteem. Although G.R.H.'s current treatment notes did not reveal an interest in adolescent sexual ...


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