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In re Whitetail

Supreme Court of North Dakota

August 29, 2013

In the Interest of Nelson G. Whitetail, Sr. Jessica J. Binder, State's Attorney, Petitioner and Appellee
v.
Nelson G. Whitetail, Sr., Respondent and Appellant

Appeal from the District Court of Mercer County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

Jessica Jo Binder, State's Attorney, petitioner and appellee.

Kent M. Morrow, for respondent and appellant.

OPINION

VandeWalle, Chief Justice.

[¶ 1] Nelson Whitetail, Sr., appeals from an order finding he is a sexually dangerous individual and civilly committing him to the care, custody and control of the Department of Human Services. We affirm, concluding the district court did not err in finding the State established by clear and convincing evidence that Whitetail is a sexually dangerous individual.

I

[¶ 2] In 1988 Whitetail was convicted of two counts of gross sexual imposition. The victims were his girlfriend's two female children who were ages 3 and 5 at the time of the offenses. Whitetail was sentenced to 5 years in prison with 2 years suspended for 4 years. In 1997 Whitetail pled guilty to 6 counts of gross sexual imposition. As part of the plea agreement, 52 other counts of gross sexual imposition dating back to 1991 were dismissed. The victims were the same children he had earlier victimized leading to his 1988 conviction. Whitetail was sentenced to a total of 20 years in prison.

[¶ 3] Whitetail was scheduled to be released from prison in August 2012 and to be placed on parole until March 2013. Before Whitetail's scheduled release from prison, the State brought this petition to civilly commit Whitetail as a sexually dangerous individual under N.D.C.C. ch. 25-03.3. Two experts with different opinions whether Whitetail qualified as a sexually dangerous individual under the statutory requirements submitted reports and testified at the hearing. Whitetail also testified. The district court found there was clear and convincing evidence that Whitetail is a sexually dangerous individual and committed him to the care, custody and control of the Department of Human Services.

II

[¶ 4] Whitetail's sole argument on appeal is that the district court erred in civilly committing him because there was not clear and convincing evidence that he is a sexually dangerous individual.

[¶ 5] Before a person can be committed as a sexually dangerous individual, the State must show by clear and convincing evidence that: 1) the individual has engaged in sexually predatory conduct; 2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; 3) the condition 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; and 4) the individual has serious difficulty controlling his behavior. See In re Voisine, 2010 ND 17, ¶ 9, 777 N.W.2d 908; N.D.C.C. § 25-03.3-01(8). We review 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 supported by clear and convincing evidence. Voisine, at ¶ 8. Claims that a court improperly relied on the opinion of one expert instead of another challenge the weight the evidence was assigned, not the sufficiency of the evidence, and this Court will not second-guess credibility determinations made by the court in sexually dangerous individual proceedings. See In re J.T.N., 2011 ND 231, ¶ 8, 807 N.W.2d 570.

[¶ 6] If a court finds a person is a sexually dangerous individual, N.D.C.C. § 25-03.3-13 requires that the individual be placed in an appropriate treatment facility or program which "must be the least restrictive available treatment facility or program necessary to achieve the purposes of this chapter." The determination of the least restrictive treatment available is initially made by the executive director of the Department, but the individual may challenge his continued commitment if the statutory requirements are being violated. See In re P.F., 2008 ND 37, ¶ 24, 744 N.W.2d 724; see also Whelan v. A.O., 2011 ND 26, ¶ 7, 793 N.W.2d 471; In re G.R.H., 2006 ND 56, ¶¶ 22, 27, 711 N.W.2d 587.

[¶ 7] There is no dispute that the first two elements for determining whether a person is a sexually dangerous individual have been satisfied. Whitetail's 1988 and 1997 convictions establish he engaged in sexually predatory conduct. Dr. Jennifer Krance, the State's expert witness, diagnosed Whitetail with Paraphilia NOS (Pedophilia and Hebephilia) and an antisocial personality disorder with narcissistic features. Dr. Robert Riedel, Whitetail's expert witness, diagnosed Whitetail with "R/O Dysthymic Disorder, " a history of alcohol and cannabis dependence in long term remission in a controlled environment, a history of sexual abuse both as a perpetrator and a victim, and "R/O Antisocial Personality Disorder." Both experts testified that their respective diagnoses meet the criteria for a condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction.

[¶ 8] The expert opinions differed on the question whether Whitetail was likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. Dr. Riedel testified that Whitetail scored a on the Static 99-R and a on the MnSOST-R, indicating a low probability of reoffending. Although acknowledging that this Court ruled to the contrary in In re M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473 (N.D.C.C. § 25-03.3-13 "allows experts to use the fullness of their education, experience and resources available to them" in determining whether individual is a threat to society), Dr. Riedel suggested the use of actuarial test scores is the best technique for determining a person's likelihood to reoffend. Dr. Riedel pointed to Whitetail's successful completion of sexual offender treatment programs at the prison, once following his 1988 conviction and the other following his 1997 conviction, as further lessening his likelihood of reoffending. Dr. Riedel noted Whitetail's lack of major "write ups" and his achievements during his second incarceration. Dr. Riedel acknowledged that Whitetail's actuarial numbers after his first imprisonment would have also indicated a low risk of reoffending, but he also maintained the current likelihood of Whitetail reoffending was "minuscule."

[¶ 9] Dr. Krance stated in her report that Whitetail's diagnosis in itself indicated he was likely to reoffend:

It is concluded that a nexus exists linking Mr. White Tail's [sic] Personality Disorder to his sexual offending in that his pattern of sexually predatory conduct is characterized by predatory offending, impulsivity, deceitfulness, aggression and a lack of remorse for his victims. It is widely accepted that the best predictor of future behavior is past behavior. Given that Mr. White Tail [sic] has a history of engaging in sexual contact with minor females, it is likely that his paraphilia in combination with his personality disorder will lead him to engage in future acts of sexually predatory conduct. However, the behaviors prompted by either of these diagnoses alone would also likely lead him to engage in sexually predatory conduct.

Dr. Krance noted in her report that Whitetail's score of 21 on the Pyschopathy Checklist-Revised (PCL-R) "indicate[s] that he is unusually detached, cold, grandiose, manipulative, willing to lie, and lacking in empathy and remorse, " and that "[t]hese traits make it highly likely that he will act in ways that harm others with little or no regard for their feelings or welfare, possibly including in a sexually offensive manner." Dr. Krance further stated in her report that Whitetail's completion of sexual offender treatment programs at the prison did not lessen his likelihood of reoffending:

Mr. White Tail [sic] completed sex offender treatment on two separate occasions (1990 and 2012). However, this cannot be considered a protective factor against further acts of sexually predatory conduct given the fact he went on to sexually reoffend against the same victims whom he had offended against during his 1988 conviction. While Mr. White Tail [sic] may be able to verbalize understanding of his risks and interventions for sexually offensive behavior, he has demonstrated in the past that he is unable or unwilling to put that understanding into practice when placed within an unstructured environment.

[¶ 10] Dr. Riedel opined that Whitetail does not have serious difficulty controlling his behavior because "he has not had any sexual or any other kind [of] acting out since the instant offense so I think the best conclusion is that he currently is exhibiting an adequate amount of control." Dr. Krance disagreed:

While it appears Mr. White Tail [sic] has not demonstrated serious difficulty controlling his sexual behavior while at NDSP, this must be interpreted within the context of an artificial treatment environment. For example, if an individual demonstrates "serious difficulty" in the treatment setting, it is logical to conclude that their behavior would not improve in a less restrictive environment. Conversely, if an individual does not demonstrate "serious difficulty" in a residential treatment setting, it cannot be inferred this will generalize to a community setting without actual exposure to such a setting.
Mr. White Tail [sic] was given an opportunity to control his sexual behavior within the community upon release from NDSP on July 23, 1990, after completion of sex offender treatment. However, Mr. White Tail [sic] proceeded to place himself in a high risk environment by resuming his relationship with the mother of his two female victims from the 1988 GSI convictions. He sexually reoffended against both female victims and the sexual acts progressed from fondling and oral sex to sexual intercourse. Mr. White Tail [sic] was later brought up on charges that were dismissed with prejudice through plea agreement. These charges reflected that Mr. White Tail [sic] began sexually reoffending roughly six months upon release from prison (January 1991 to September 1996) while on probation. Mr. White Tail [sic] acknowledged in treatment he would have continued sexually offending against his female victims had he not been caught. His behaviors over the years are indicative of serious difficulty controlling his behavior and it would be important for him to demonstrate an ability to do so in a less restrictive environment before being released, once again, to the community.

[¶ 11] Dr. Riedel recommended that Whitetail be released but that "the Court consider extended supervision which would lower his chances of recidivism even more tha[n] the currently very low estimates and this would provide him with more direction and support services as well." Whitetail testified about the reasons for his "write ups" at the prison and said he would be willing to be placed on extended supervision upon release. Dr. Krance recommended commitment and testified about the possibility of "outpatient civil commitment" where people reside in a "transitional living facility" on the grounds of the State Hospital before being released to the community.

[ΒΆ 12] In finding Whitetail is a sexually dangerous individual, the district court explained in ...


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