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In re Hanenberg

January 12, 2010

IN THE MATTER OF JAMES K. HANENBERG
CASS COUNTY STATE'S ATTORNEY, PLAINTIFF AND APPELLEE
v.
JAMES K. HANENBERG, DEFENDANT 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: Sandstrom, Justice.

AFFIRMED.

[¶1] James Hanenberg appeals a district court's order involuntarily committing him as a sexually dangerous individual. He argues the State did not prove by clear and convincing evidence that he has serious difficulty controlling his behavior. We affirm.

I.

[¶2] Hanenberg was convicted of corruption or solicitation of a minor in March 2006. He was sentenced to imprisonment and scheduled to be released on November 18, 2008, when five years' supervised probation was to begin. On November 14, 2008, the Cass County State's Attorney petitioned to commit Hanenberg as a sexually dangerous individual under N.D.C.C. ch. 25-03.3. The district court found probable cause to believe Hanenberg was a sexually dangerous individual and transferred him to the North Dakota State Hospital for further evaluation. A commitment hearing was held in April 2009. Dr. Lynne Sullivan, a North Dakota State Hospital staff psychologist, testified on behalf of the State. Dr. Robert Riedel, a private forensic psychologist, performed an independent medical examination of Hanenberg and testified on his behalf.

[¶3] Dr. Sullivan diagnosed Hanenberg with paraphilia not otherwise specified, hebephilia; paraphilia not otherwise specified, non-consent; voyeurism; fetishism; frotteurism; paraphilia not otherwise specified, zoophilia; alcohol dependence with physiological dependence; and antisocial personality disorder. She testified Hanenberg is likely to engage in further acts of sexually predatory conduct and is at an extremely high risk of sexual reoffense. She also testified Hanenberg has serious difficulty controlling his behavior.

[¶4] Dr. Riedel agreed Hanenberg has engaged in sexually predatory conduct and has a mental disorder. He testified "it is arguable" whether Hanenberg is likely to engage in further acts of sexually predatory conduct. He disagreed that Hanenberg would have serious difficulty controlling his behavior if released under supervised probation.

[¶5] The district court found Hanenberg is a sexually dangerous individual. On appeal, Hanenberg argues the State did not prove by clear and convincing evidence that he has serious difficulty controlling his behavior. He argues that for the next four and a half years, he will be on supervised probation, which means he could be subject to house arrest, residence at a halfway house, twenty-four-hour electronic monitoring, participation in an intensive supervised program, and participation in comprehensive sex offender treatment.

[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 25-03.3-02. The appeal 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] We apply "a modified clearly erroneous" standard of review to commitments of sexually dangerous individuals, Matter of G.R.H., 2006 ND 56, ¶ 8, 711 N.W.2d 587, and will affirm a district court's commitment order unless the order is induced by an erroneous view of the law or we are firmly convinced the order is not supported by clear and convincing evidence. Id.

[¶8] Chapter 25-03.3 of the North Dakota Century Code authorizes the involuntary civil commitment of a sexually dangerous individual. The Century Code defines a sexually dangerous individual 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.

N.D.C.C. § 25-03.3-01(8). Additionally, the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 413 (2002), held commitment as a sexually dangerous individual cannot constitutionally be sustained without determining the person to be committed has serious difficulty controlling his or her behavior. Matter of G.R.H., 2008 ND 222, ¶ 7, 758 N.W.2d 719. Therefore, consistent with N.D.C.C. § 1-02-38(1), this Court has construed the definition of a sexually dangerous individual to require a nexus between the disorder and dangerousness, including evidence showing ...


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