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In re Graham

Supreme Court of North Dakota

September 25, 2013

In the Interest of Matthew Graham, Eric Hetland, State's Attorney, Petitioner and Appellee
v.
Matthew Graham, Respondent and Appellant

Appeal from the District Court of Kidder County, South Central Judicial District, the Honorable Cynthia Feland, Judge.

Eric Bruce Hetland, Kidder County State's Attorney, for petitioner and appellee.

Justin Jacob Vinje, for respondent and appellant.

OPINION

Crothers, Justice.

[¶ 1] Matthew Graham appeals from a district court order denying his petition for discharge from civil commitment as a sexually dangerous individual. We reverse and remand, concluding the district court erred in extending res judicata to the question whether a committed individual has a congenital or acquired condition manifested by a sexual disorder, personality disorder or other mental disorder or dysfunction.

I

[¶ 2] Graham was adjudicated a delinquent child on April 20, 2004 based on an August 27, 2002 incident in which he french-kissed and exposed his penis to a five-year-old. Graham was fourteen at the time. The number of sexual offenses he committed remains unclear, but during his psychological evaluations, he acknowledged offenses against six minors. Graham spent several years in programs for minor sex offenders before being committed on October 17, 2007 to the North Dakota State Hospital as a sexually dangerous individual.

[¶ 3] Graham petitioned for discharge in late 2008 and received an order for continued commitment on December 9, 2009. Graham's 2010 discharge petition was denied on July 27, 2011. Most recently, Graham petitioned for discharge in August 2012, which was denied on March 7, 2013.

[¶ 4] During Graham's 2011 annual review hearing, Robert Lisota, Ph.D., a State Hospital psychologist, and James Gilbertson, Ph.D., an independent psychologist, filed reports and testified. The experts agreed Graham engaged in sexually predatory conduct but disagreed to whether Graham has a congenital or acquired condition manifested by a sexual disorder, a personality disorder or other mental disorder or dysfunction, and to whether he has difficulty controlling his behavior and is likely to engage in further acts of sexually predatory conduct.

[¶ 5] Dr. Lisota found Graham suffered from pedophilia and personality disorder. Dr. Gilbertson challenged those diagnoses as "too soft." He found Graham did not suffer from an underlying mental condition that would cause him to be unable to control his sexual impulses in a way that he likely will reoffend. After considering both Dr. Lisota's and Dr. Gilbertson's opinions, the district court found that Graham suffered from a congenital or acquired condition manifested by a personality, sexual or mental disorder, that he is likely to reoffend and that he has difficulty controlling his behavior.

[¶ 6] During Graham's 2013 annual review hearing, Dr. Gilbertson again filed a report and testified. Like in 2011, Dr. Gilbertson disagreed to whether Graham has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder or other mental disorder or dysfunction, and to whether he has difficulty controlling his behavior and is likely to engage in further acts of sexually predatory conduct.

[¶ 7] In 2013, Dr. Gilbertson specifically challenged Graham's original diagnoses of pedophilia and personality disorder. The district court cut short Dr. Gilbertson's testimony regarding the second element because he presented no new evidence anything had changed affecting Graham's diagnoses. The district court found that absent new facts, Graham's diagnoses were res judicata because they were the subject of three unappealed district court orders. It cited In re J.G. to extend res judicata to the second element of the sexually dangerous individual four-step analysis. 2013 ND 26, 827 N.W.2d 341 (finding that whether J.G. engaged in sexually predatory conduct was res judicata and not subject to challenge). The district court concluded Graham remained a sexually dangerous individual because nothing changed since the last adjudication and because Graham's own expert admitted that if the first three factors were met, those factors establish he has serious difficulty controlling his behavior and is likely to reoffend.

II

[¶ 8] Graham argues the district court erred in extending res judicata to the second element of the sexually dangerous individual analysis and N.D.C.C. § 25-03.3-18(4) requires the state to prove at every hearing a committed individual has a congenital or acquired condition that is manifested by ...


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