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In re A.M.

June 17, 2009

IN THE MATTER OF A.M.
CYNTHIA M. FELAND, ASSISTANT BURLEIGH COUNTY STATE'S ATTORNEY, PETITIONER AND APPELLEE
v.
A.M., RESPONDENT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

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

AFFIRMED.

[¶1] A.M. appeals a district court order denying his petition for discharge from commitment as a sexually dangerous individual. Because the State proved by clear and convincing evidence that A.M. remains a sexually dangerous individual, we conclude the district court did not clearly err in denying A.M.'s petition. We affirm.

I.

[¶2] In 1999, A.M. was found to be a sexually dangerous individual and was civilly committed to the North Dakota State Hospital for treatment. At the time, A.M.'s diagnoses included pedophilia, sexually attracted to both sexes, nonexclusive type; fetishism; and antisocial personality disorder. Initial sexually dangerous individual evaluations had determined A.M. was at high risk for sexual and/or violent recidivism. A.M.'s probability of recidivist sexually predatory conduct had also been estimated through actuarial risk assessment instruments and the Psychopathy Checklist-Revised (PCL-R). A.M. continually waived his right to an annual discharge hearing until 2007. In August 2007, A.M. requested a discharge hearing under N.D.C.C. § 25-03.3-18.

[¶3] On June 17, 2008, the district court held a discharge hearing. The court heard testimony from two licensed psychologists: Dr. Lynn Sullivan from the North Dakota State Hospital, who had conducted sexually dangerous individual annual re-evaluations of A.M., and Dr. Robert G. Riedel, whom the court appointed as A.M.'s independent expert evaluator. The two experts disagreed on whether A.M. remained a sexually dangerous individual.

[¶4] Dr. Sullivan testified that she reviewed A.M.'s charts in preparing her annual report filed with the court in September 2007 and in preparation for her testimony. Dr. Sullivan testified she had previously interviewed A.M. in July 2006 in preparing a prior annual review, but only met briefly with A.M. in September 2007, at which time A.M. declined to be interviewed. In her report and testimony, Dr. Sullivan concluded that A.M. remained a sexually dangerous individual and should remain committed for treatment.

[¶5] Dr. Riedel testified he reviewed A.M.'s extensive medical and psychological charts, interviewed A.M., and administered a set of psychometric tests. Dr. Riedel testified that he administered the Kaufman Test of Educational Achievement, the Woodcock-Johnson Test of Cognitive Abilities, the Personality Assessment Inventory for Adults, and the Clark Sexual History Questionnaire, in addition to the PCL-R2nd, the MnSOST-R, the RRASOR, and the Static-99. On the basis of the actuarial tests, his review of the file, and his clinical judgment, Dr. Riedel opined that A.M. is at a moderate risk of re-offending and that he has more concerns about A.M.'s lack of independent living skills than of A.M.'s sexually re-offending.

[¶6] Following the June 2008 hearing, after considering the testimony of the two experts and the record, the district court found the State had shown by clear and convincing evidence that A.M. continues to be a sexually dangerous individual as defined in N.D.C.C. ch. 25-03.3 and denied A.M.'s petition for discharge.

[¶7] 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.

[¶8] This Court applies a modified clearly erroneous standard of review and will 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 G.R.H., 2008 ND 222, ¶ 7, 758 N.W.2d 719; Matter of E.W.F., 2008 ND 130, ¶ 8, 751 N.W.2d 686. Section 25-03.3-18(4), N.D.C.C., places the burden of proof on the State to prove by "clear and convincing evidence that the committed individual remains a sexually dangerous individual." "Sexually dangerous individual" is defined as: [A]n individual who is shown to have [1] engaged in sexually predatory conduct and who [2] 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. It is a rebuttable presumption that sexually predatory conduct creates a danger to the physical or mental health or safety of the victim of the conduct. For these purposes, mental retardation is not a sexual disorder, personality disorder, or other mental disorder or dysfunction.

N.D.C.C. § 25-03.3-01(8). 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." Interest of M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473. "This definition prevents a contest over percentage points and the results of other actuarial tools, and allows experts to use the fullness of their education, experience and resources available to them in order to determine if an individual poses a threat to society." Id.

[¶9] Additionally, consistent with the United States Supreme Court's opinion in Kansas v. Crane, 534 U.S. 407, 413 (2002), we construe the definition of a "sexually dangerous individual" to require 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." Matter ...


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