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In re O.H.W.

November 17, 2009

IN THE MATTER OF O.H.W.
CASS COUNTY STATE'S ATTORNEY, PETITIONER AND APPELLEE
v.
O.H.W., RESPONDENT AND APPELLANT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.

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

AFFIRMED.

[¶1] O.H.W. appeals the district court order finding he remains a sexually dangerous individual and denying his petition for discharge from the North Dakota State Hospital. We affirm, concluding that the district court did not abuse its discretion in admitting the State's expert opinion testimony and that the district court's denial of O.H.W.'s petition for discharge was supported by clear and convincing evidence and was not induced by an erroneous view of the law.

I.

[¶2] O.H.W. was committed to the North Dakota State Hospital as a sexually dangerous individual in 2005. His diagnosis was pedophilia and antisocial personality disorder. O.H.W.'s commitment was based on his molestation of two 13-year-old boys, his alleged rape of a 42-year-old woman, his sexual assaults of a four-year-old girl and a six-year-old girl and his rape of a developmentally disabled adult female.

[¶3] O.H.W. petitioned for release from the State Hospital in 2008. Prior to his discharge hearing, O.H.W. was evaluated by Dr. Lincoln Coombs, a psychologist designated by the State, and by Dr. Robert Riedel, a psychologist chosen by O.H.W. The time frame covered by Dr. Coombs' evaluation included one or two months during which Dr. Coombs was one of O.H.W.'s treating psychologists.

[¶4] At the discharge hearing, the only evidence presented was Dr. Coombs' report and testimony. He testified that O.H.W.'s diagnosis of pedophilia should be discontinued, but that O.H.W. continued to be affected by antisocial personality disorder. The continued diagnosis was based on O.H.W.'s failure to follow rules, his deceitfulness about past sex offenses, his impulsivity, his aggression toward peers and staff, his lack of remorse for injuring his victims and his irresponsibility regarding his sex offending treatment. Dr. Coombs also opined that O.H.W.'s rescored risk assessment instrument scores were very high, indicating high risk for reoffending and that antisocial personality disorder "is known to be a pathway towards sexual offending in the future."

[¶5] Following the discharge hearing, O.H.W. filed a motion to strike Dr. Coombs' report and testimony and requested judgment as a matter of law. The district court denied O.H.W.'s motion and denied his petition for discharge, finding the report and testimony of Dr. Coombs proved by clear and convincing evidence O.H.W. continued to be a sexually dangerous individual.

II.

[¶6] After commitment, a sexually dangerous individual has a right to petition for discharge. N.D.C.C. § 25-03.3-18(1). At a discharge hearing, the State must prove by "clear and convincing evidence that the committed individual remains a sexually dangerous individual." N.D.C.C. § 25-03.3-18(4). A sexually dangerous individual is one "who is shown to have engaged in sexually predatory conduct and who 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. 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).

[¶7] An individual is likely to engage in further acts of sexually predatory conduct when their "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. In addition to the statutory requirements for categorization as a sexually dangerous individual, this Court requires 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 of G.R.H., 2008 ND 222, ¶ 7, 758 N.W.2d 719; see also Kansas v. Crane, 534 U.S. 407, 413 (2002). Determining whether an individual is a sexually dangerous individual allows for consideration of all sexually predatory conduct, "including conduct not resulting in a charge or conviction." Matter of A.M., 2009 ND 104, ¶ 10, 766 N.W.2d 437.

A.

[ΒΆ8] O.H.W. argues the district court erred in denying his petition for discharge because the State did not prove by clear and convincing evidence that he remained a sexually dangerous individual. O.H.W. contends the district court improperly admitted the report and testimony of Dr. Coombs, who O.H.W. asserts violated the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct by acting as both O.H.W.'s evaluating and treating psychologist. ...


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