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In re Rush

June 17, 2009

IN THE MATTER OF LORING REIL SKY RUSH
CHRISTOPHER D. GRIFFIN, ASSISTANT STATE'S ATTORNEY FOR GRAND FORKS COUNTY, PETITIONER AND APPELLEE
v.
LORING REIL SKY RUSH, RESPONDENT AND APPELLANT



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Joel D. Medd, Judge.

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

AFFIRMED.

[¶1] Lorin Reil Sky Rush appealed from a district court order committing him to the custody of the North Dakota Department of Human Services as a sexually dangerous individual. We affirm the order for civil commitment, holding the district court properly found a nexus between Rush's disorders and sexual dangerousness, that the court properly interpreted the evidence presented at the commitment hearing, and that the court did not commit reversible procedural error by failing to set aside sufficient time during Rush's first commitment hearing.

I.

[¶2] In May of 2007, Rush entered a plea agreement after he was charged with sexual assault for having sexual intercourse with a 15-year old girl when he was 18 years old. The initial report of the incident noted that the victim accused Rush of using force; however, he was eventually charged with a class C felony which considered only that the female was a juvenile and not whether the intercourse was consensual. Rush was sentenced to serve five years with three years suspended, and five additional years of probation. He was also required to register as a sex offender for a period of ten years.

[¶3] On June 17, 2008, shortly before Rush was scheduled to be released from custody, the State filed a petition to civilly commit him as a sexually dangerous person under N.D.C.C. ch. 25-03.3. In the petition, the State cited both the incident for which he was then incarcerated, as well as a prior sexual assault charge he received when he was a juvenile and had offensive contact with another minor. The State also noted a period of time he spent in a juvenile institution following his earlier offense, during which he displayed sexually inappropriate behavior toward other juveniles in the facility. The petition also listed several non-sexual offenses committed by Rush, including theft, burglary, minor in possession or consumption of alcohol, and three incidents of violating release conditions. The petition cited a review conducted by a doctor with the North Dakota State Hospital who recommended there was sufficient risk that Rush would engage in further sexually predatory conduct to warrant a formal civil commitment evaluation. On June 23, 2008, the district court found there was probable cause that Rush was a sexually dangerous individual, and ordered him transferred to the North Dakota State Hospital for the evaluation requested by the State.

[¶4] On August 11, 2008, Dr. Lynne Sullivan of the North Dakota State Hospital issued her evaluation report determining that Rush was a sexually dangerous individual. Dr. Sullivan found that Rush suffered from an alcohol abuse disorder and antisocial personality disorder, both of which she found contributed to his sexual offenses. Dr. Sullivan also conducted a series of risk assessment tests to determine Rush's likelihood of sexual recidivism. Dr. Sullivan scored Rush with a 4 on the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR), indicating a 49% chance of re-offending within ten years. Rush scored a 9 on the Static-99 test, which indicates a 52% chance of re-offending within 15 years. Dr. Sullivan next used the Minnesota Sex Offense Screening Test, Revised (MnSOST-R), on which Rush scored a 12 plus, indicating a 54% chance of re-offending within six years. Finally, Dr. Sullivan administered the Psychopathy Checklist-Revised (PCL-R) test, on which she found that Rush scored a 34, which put him at the 99 percentile among adult male patients, meaning that he is "more psychopathic than 99 percent of the 1,246 North American male adult forensic psychiatric patients that [the PCL-R] was normed on." Dr. Sullivan also found that Rush lacked empathy and does "not have an adequate cognitive understanding of others' experiences and how he is impacting them." On this point Dr. Sullivan specifically noted the report that the victim of his most recent sexual assault repeatedly stated "no" and "stop" during the encounter, while he asked her "why" and did not stop. Dr. Sullivan concluded her report by stating, with a "reasonable degree of scientific certainty," that Rush was likely to engage in further acts of sexually predatory conduct, and was thus a sexually dangerous individual.

[¶5] Dr. Sullivan would later testify that she had some prior knowledge of Rush before she performed her evaluation of him. While Rush was in a juvenile detention center after his first sexual offense, he was treated by a therapist named Deon Mehring who later served as a practicum student at the North Dakota State Hospital in 2006, and then as Dr. Sullivan's intern from October of 2007 to October of 2008. In 2006, Mehring discussed with Dr. Sullivan an unnamed patient Mehring had treated several years before at a juvenile center, who she "knew at the time . . . would be back, that he would commit another sex offense." Later, when Mehring became aware of a group of individuals coming to the State Hospital for civil commitment evaluations and noted Rush's name, she identified him to Dr. Sullivan as the individual she had previously spoken about.

[¶6] The civil commitment hearing was originally scheduled for August 19, 2008. However, Rush requested, and was granted, permission to have an independent psychological evaluation conducted, and the hearing was rescheduled for October 2, 2008. The independent evaluation was compiled by Dr. Robert Riedel, who stated that there was "little difference" between his results and those compiled by Dr. Sullivan. Dr. Riedel agreed that Rush had antisocial personality disorder and an alcohol problem, both of which contributed to a higher expectation of sexual recidivism. Dr. Riedel also diagnosed Rush with the sexual disorder paraphilia, NOS, non-consent. In applying the various assessment tests, Dr. Riedel scored Rush with a 4 on the RRASOR, and a 6 on the Static-99, which matched the findings of Dr. Sullivan. On the MnSOST-R, Dr. Riedel scored Rush with a 9, which represented a 54% chance of re-offending within six years, and a 32 on the PCL-R. Dr. Riedel later testified that, when there is a combination of paraphilia diagnosis and a score over 25 on the PCL-R, there is a risk of sexual recidivism that is greater than the risk assessment instruments can estimate. However, Dr. Riedel generally found that Rush was a "close call" as to whether he would sexually re-offend, as the majority of the assessment tests placed his chances of recidivism in the 50% range. Dr. Riedel concluded there was a nexus between Rush's diagnosed disorders and his sexual offenses; however, Dr. Riedel recommended outpatient treatment over inpatient treatment, as Rush would be under close supervision and continuing sex offender treatment, had completed chemical dependency treatment, and had a support system outside the hospital.

[¶7] The hearing for civil commitment began on October 2, 2008. During Dr. Sullivan's testimony, the court noted that it had scheduled another hearing for the afternoon. The court and Rush's counsel agreed to take the witnesses out of order, as Dr. Riedel had flown in from Florida to testify. The court had Dr. Sullivan temporarily step down, and Dr. Riedel gave his full testimony before the court was forced to adjourn due to time constraints. The court rescheduled the rest of the hearing for October 20, during which Dr. Sullivan concluded her testimony by telephone. On November 13, 2008, the district court issued its order, committing Rush to the custody and control of the North Dakota Department of Human Services.

II.

[¶8] Rush argues the district court erred when it ordered him to be committed as a sexually dangerous individual, contending the court failed to cite evidence of a nexus between his disorders and sexual dangerousness.

[¶9] In reviewing civil commitments of sexually dangerous individuals, this Court uses a modified clearly erroneous standard and will affirm the district court's decision unless the court's order is induced by an erroneous view of the law, or this Court is convinced the order is not supported by clear and convincing evidence. In re Midgett, 2007 ND 198, ¶ 6, 742 N.W.2d 803. The State has the burden of proving, by clear and convincing evidence, that the individual engaged in sexually predatory conduct, and has a congenital or acquired condition that is manifested by a sexual disorder, personality disorder, or other mental disorder which makes that individual likely to engage in further acts of sexually predatory conduct which constitutes a danger to the physical or mental health or safety of others. N.D.C.C. § 25-03.3-01(8). There must be a causal relationship or nexus between the individual's disorder and dangerousness, which indicates the individual's mental disorder is linked to an inability to control behavior, and which would therefore likely result in further sexually predatory conduct. In re G.R.H., 2006 ND 56, ¶ 17, 711 N.W.2d 587. Such a nexus is necessary to distinguish a dangerous sexual offender whose disorder would subject him or her to civil commitment from the "dangerous but typical" recidivist in the ordinary criminal case. Id. at ¶ 18.

[¶10] In addition to the requirement that the State establish such a nexus, the district court must specifically state in its memorandum opinion the facts upon which its ultimate conclusion is based. In re R.A.S., 2008 ND 185, ¶ 8, 756 N.W.2d 771; see also N.D.R.Civ.P.52(a) ("[T]he court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment."). "This Court cannot review a district court's decision when the court does not provide any indication of the evidentiary and theoretical basis for its decision because [this Court is] left to speculate what evidence was considered and whether the law was properly applied." R.A.S., 2008 ND 185, ¶ 8, 756 N.W.2d 771. Detailed findings, including credibility ...


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