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In re Maedche

August 31, 2010

IN THE INTEREST OF THOMAS MAEDCHE
LLOYD C. SUHR, ASSISTANT STATE'S ATTORNEY, PETITIONER AND APPELLEE
v.
THOMAS MAEDCHE, RESPONDENT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge. AFFIRMED.

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

[¶1] Thomas Maedche appeals a district court order involuntarily committing him as a sexually dangerous individual. He argues that North Dakota's civil commitment statute is void for vagueness and that self-incrimination and due process guarantees preclude the use of his treatment-related disclosures in a civil commitment proceeding. We affirm.

I.

[¶2] Maedche was convicted of indecent exposure after exposing himself and masturbating in front of a nine-year-old girl during a sleepover at a hotel. After the district court accepted Maedche's guilty plea, he submitted to sex offender risk assessment as part of the pre-sentence investigation report. The screening tools indicated a high risk of re-offense. Maedche also underwent a psychological evaluation during which he denied the conduct alleged during the sleepover. He also denied sexual attraction to children and engaging in any atypical sexual behavior in adulthood. The evaluating psychologist, Edward Kehrwald, Ph.D., had access to Maedche's records, which reflected inappropriate sexual activity with a neighbor girl in 1993 (when Maedche was a pre-teen) and the sexual assault of three girls in 1995. Maedche self-reported one past sexually-related incident with young girls when he was approximately twelve years old, but he was not clear about what had occurred. Dr. Kehrwald did not recommend an evaluation for civil commitment, but instead recommended outpatient treatment, closely supervised probation, and long-term monitoring or community aftercare. Dr. Kehrwald also recommended a polygraph examination to clarify the offense and his denial of conduct. Lincoln Coombs, Psy.D., a forensic psychologist at the North Dakota State Hospital, also reviewed Maedche's records and did not recommend an evaluation for civil commitment. Dr. Coombs wrote that despite Maedche's high scores on the risk assessment instruments, Maedche had been convicted of only one non-contact sexual offense as an adult.

[¶3] Maedche was released from the Burleigh County Detention Center in November 2008 and reported to his probation officer the next day. During the meeting, Maedche admitted exposing himself in front of the nine-year-old girl at the sleepover. He stated he had always been attracted to young girls. While on probation, Maedche attended outpatient sex offender therapy.

[¶4] In January 2010, Maedche submitted to a pre-polygraph interview and polygraph examination, as required by his treatment and probation conditions. During the pre-polygraph interview, he disclosed previously unknown sexual contact with minors that had occurred when he was an adult. The disclosures "filled in a time frame" about which his probation officer had previously been unaware. The probation officer watched a recording of the interview and testified about its contents at the probable cause hearing. He testified that during the interview, Maedche admitted to and provided details of indecent exposure and molestation of young children as well as his theft and purchase of girls' and women's underwear for sexual gratification. Maedche stated he searches for "non-nude" pornography on the Internet, which refers to photographs of children who are not nude but who are posed suggestively. Finally, Maedche was asked during the pre-polygraph interview whether, given the opportunity, he would take sexual advantage of someone in his care or custody if he knew no one would find out. After initially responding no, Maedche stated, "And I knew I would get away with it? Yes, I would. I have no doubt in my mind right now that I would. Right now I'm hoping the treatment changes that." The polygraph examiner scored Maedche's polygraph examination as inconclusive--neither conclusively deceptive nor truthful.

[¶5] In February 2010, shortly after the interview and polygraph examination, the State petitioned to commit Maedche as a sexually dangerous individual. After a hearing, the district court found probable cause to believe Maedche may be a sexually dangerous individual and ordered an evaluation. Maedche was evaluated by Robert Lisota, Ph.D., a forensic psychologist at the North Dakota State Hospital, and by Stacey Benson, Psy.D., an independent forensic psychologist. Each completed a report and testified before the district court at the treatment hearing. The two psychologists disagreed as to whether Maedche met the statutory definition of a sexually dangerous individual.

[¶6] Dr. Lisota diagnosed Maedche with pedophilia, exhibitionism, fetishism, a history of alcohol and cannabis abuse, and antisocial personality disorder. He concluded Maedche met the statutory definition of a sexually dangerous individual. Dr. Benson diagnosed Maedche with pedophilia and antisocial personality disorder. She disagreed that Maedche met the statutory definition of a sexually dangerous individual, because she saw no evidence that he had serious difficulty controlling his behavior since his release from incarceration and because she concluded Maedche was not likely to engage in further acts of sexually predatory conduct. The district court concluded Maedche is a sexually dangerous individual and committed him to the care, custody, and control of the executive director of the Department of Human Services.

[¶7] Maedche appeals, arguing that N.D.C.C. ch. 25-03.3 is unduly vague and subject to employment in an arbitrary or discriminatory manner and that self-incrimination and due process guarantees preclude the use of a sex offender's treatment-related disclosures in a civil commitment proceeding.

[¶8] 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.

[¶9] 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. We 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.

[¶10] Chapter 25-03.3 of the North Dakota Century Code authorizes the involuntary civil commitment of a sexually dangerous individual. A sexually dangerous individual is defined 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 is unconstitutional unless the person is found to have serious difficulty controlling his or her behavior. Matter of Hanenberg, 2010 ND 8, ¶ 8, 777 N.W.2d 62. Therefore, consistent with N.D.C.C. § 1-02-38(1), we have construed the definition of a sexually dangerous individual to require a connection between the disorder and dangerousness, including evidence showing the person has serious difficulty controlling his behavior, which distinguishes a sexually dangerous individual from other dangerous persons. Id.

[¶11] All sexually predatory conduct may be considered when determining whether someone is a sexually dangerous individual, including conduct not resulting in a charge or conviction. Matter of A.M., 2009 ND 104, ¶ 10, 766 N.W.2d 437. The district court is the best credibility evaluator in cases of conflicting testimony, and we will not second-guess its credibility findings. Id.

[ΒΆ12] Maedche does not argue the district court was clearly wrong in concluding he is a sexually dangerous individual on the basis of the evidence presented, and he does not dispute the statutory definition was met. Instead, he argues: N.D.C.C. ch. 25-03.3 is unduly vague and subject to employment in an arbitrary or discriminatory manner; and self-incrimination and "due process" guarantees ...


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