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In re R.A.S.

June 17, 2009

IN THE MATTER OF R.A.S.
CASS COUNTY STATE'S ATTORNEY, APPELLEE
v.
R.A.S., APPELLANT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

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

AFFIRMED.

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

I.

[¶2] In February 2004, the State of North Dakota petitioned to have R.A.S. committed as a sexually dangerous individual. At the commitment proceeding, the district court heard testimony from several witnesses including Dr. Belanger and Dr. Etherington. In August 2004, the district court entered an order committing R.A.S. to the care, custody, and control of the executive director of the Department of Human Services as a sexually dangerous individual according to N.D.C.C. ch. 25-03.3. Matter of R.A.S., 2008 ND 185, ¶ 2, 756 N.W.2d 771. R.A.S. did not appeal the initial order of commitment.

[¶3] R.A.S. petitioned for discharge under N.D.C.C. § 25-03.3-18 in October 2007. Id. at ¶ 3. The district court held a discharge hearing in January 2008. Id. At the commitment proceeding, the State's expert witness, Dr. Lynne Sullivan, and R.A.S.'s expert witness, Dr. James H. Gilbertson, testified. Id. Dr. Sullivan testified R.A.S. remains a sexually dangerous individual, and she recommended R.A.S. remain committed. Id. Dr. Gilbertson testified R.A.S. was not likely to engage in further acts of sexually predatory conduct. Id. On January 15, 2008, the district court entered an order denying R.A.S.'s petition for discharge, holding "[t]he State has shown by clear and convincing evidence that [R.A.S.] remains a sexually dangerous individual as defined in N.D.C.C. § 25-03.3-01."

[¶4] R.A.S. appealed to this Court, asserting "the State did not prove by clear and convincing evidence that he [was] likely to engage in further acts of sexually predatory conduct[.]" R.A.S., 2008 ND 185, ¶ 1, 756 N.W.2d 771. This Court reversed the district court order and remanded the case to the district court for detailed findings of fact and conclusions of law to support the district court's order denying R.A.S.'s petition for discharge. Id. at ¶ 10.

[¶5] On December 2, 2008, the district court entered an order denying R.A.S.'s petition for discharge. In its order, the district court made explicit findings detailing the conduct of R.A.S. and how that conduct related to the criteria for establishing a sexually dangerous individual. R.A.S. appeals this order, asserting the State failed to prove by clear and convincing evidence that he is likely to engage in further acts of sexually predatory conduct and contending the district court order is not supported by clear and convincing evidence that R.A.S. has serious difficulty controlling his behavior.

II.

[¶6] At a discharge hearing, the State has the burden to prove by clear and convincing evidence that the individual remains a sexually dangerous individual. N.D.C.C. § 25-03.3-18(4). To meet this burden, the State is required to show the individual:

[1] engaged in sexually predatory conduct and [2] who 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.

N.D.C.C. § 25-03.3-01(8). We have held 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." Matter of E.W.F., 2008 ND 130, ¶ 10, 751 N.W.2d 686 (citation omitted).

[¶7] Under the third prong of N.D.C.C. § 25-03.3-01(8), the district court found:

The most disputed part of the hearing involved the third prong, whether [R.A.S.] is likely to engage in further acts of sexually predatory conduct. Dr. Sullivan testified quite emphatically that [R.A.S.] is likely to so engage in further acts of sexually predatory conduct. Dr. Sullivan not only reviewed the initial scoring of the various psychometric tests performed by [R.A.S.], but also rescored those tests herself. The results from the initial examiners (Dr.'s Etherington and Bel[]anger) and Dr. Sullivan's re-scoring of those instruments are remarkably consistent (unlike the results of the scoring of Dr. Gilbertson). Dr. Sullivan credibly testified that [R.A.S.] has an elevated risk of reoffending. In fact, Dr. Sullivan ...


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