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In re Voisine

January 26, 2010

IN THE MATTER OF RAYMOND J. VOISINE
STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
RAYMOND J. VOISINE, DEFENDANT AND APPELLANT



Appeal from the District Court of Sheridan County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

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

REVERSED AND REMANDED.

[¶1] Raymond J. Voisine appeals the district court order finding him a sexually dangerous individual and committing him to the care, custody and control of the Department of Human Services. We reverse and remand, concluding the district court made a legal error by finding that incest between consenting adults falls within the statutory definition of sexually predatory conduct and by omitting findings related to the first and second prongs of the analysis used to determine if Voisine is a sexually dangerous individual.

I.

[¶2] Voisine is a 65-year-old male with four adult children, R.V., P.P., H.M. and L.K. In 2003, an officer with the North Dakota Bureau of Criminal Investigation executed a search warrant on Voisine's home for an unrelated firearms charge. During the search, the officer found sexually explicit photographs under the pillow on Voisine's bed. The photographs pictured H.M., one of Voisine's three adult daughters. DNA analysis was performed and established with over 99.99 percent certainty that Voisine fathered two children with H.M.

[¶3] In light of Voisine's incestuous relations, interviews were conducted with his acquaintances. Voisine's grandson reported that when he was 6 or 7 years old, he was forced to stroke Voisine's penis for 5 to 10 minutes. The ex-husband of H.M. reported that Voisine threatened him with a firearm and fathered a child with P.P., Voisine's adult daughter. Voisine's ex-wife reported that Voisine beat and threatened her while they were married. The current boyfriend of Voisine's ex-wife reported that Voisine's children were sexually abused when they were minors. Voisine's daughter, L.K., reported that she was born to a 17- year-old mother who was impregnated by a 34-year-old Voisine. L.K. also reported that Voisine physically abused her when she was young and that she once walked in on Voisine unzipping his pants behind a naked and bent-over H.M. L.K. later denied stating H.M. was naked.

[¶4] Following the investigation, Voisine was charged with gross sexual imposition for sexual contact with his 6- or 7-year-old grandson and with promoting obscenity to a minor for allegedly showing pornography to a second, 9- or 10-year-old grandson who was also Voisine's son. Voisine pled guilty to gross sexual imposition, and the promotion of obscenity charge was dismissed. He was incarcerated, and upon his release in 2008, the State petitioned to commit him as a sexually dangerous individual. The State alleged that in addition to the sexual contact underlying Voisine's gross sexual imposition conviction, that Voisine sired three children with two of his daughters, that Voisine sexually abused his daughters as minors, that Voisine conceived a child with a 16-year-old girl in Maine and that Voisine promoted obscenity to a minor by showing pornography to his 9- or 10-year-old grandson/son.

[¶5] At his preliminary hearing, Voisine denied fathering two of H.M.'s children and denied having sexual contact with H.M. The district court found probable cause to detain Voisine, and a commitment hearing was set for May 29, 2009. Prior to the commitment hearing, Voisine was evaluated by Dr. Lynne Sullivan, a psychologist at the North Dakota State Hospital. Dr. Sullivan opined that Voisine's high level of psychopathy and sexual deviance make it highly likely he will engage in further sexually predatory conduct and that Voisine is a sexually dangerous individual. Voisine was also evaluated by Dr. Edward Kelly, a forensic psychiatrist from the University of Washington. Dr. Kelly opined Voisine's standard risk assessment scores indicate Voisine is not a sexually dangerous individual.

[¶6] The reports and testimony of Dr. Sullivan and Dr. Kelly were presented at Voisine's commitment hearing. Following the hearing, the district court ordered Voisine committed to the care, custody and control of the Department of Human Services. In the commitment order, the district court stated,

"The Court finds that incest between a father and one or more of his daughters is sexually predatory conduct as it involves a gross breach of the duty a parent has to provide for the welfare of his children, a parent being in a position to influence or manipulate his children.

"The fact that [Voisine] has committed incest with one or more of his daughters and has had sexual contact with one or more of his grandchildren/grandsons, and the fact he is support [sic] by his immediate family in this sexually predatory conduct causes the Court to find that [Voisine] has engaged in sexually predatory conduct and that it is a near certainty that he will once again engage in sexually predatory conduct without institutional treatment."

[¶7] Voisine timely filed this appeal.

II.

[ΒΆ8] Voisine argues the district court erred in committing him as a sexually dangerous individual. "This Court reviews civil commitments of sexually dangerous individuals under a modified clearly erroneous standard, and we will affirm the district court's decision unless the court's order is induced by an erroneous view of the law, or we are firmly convinced the order is not ...


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