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In re Rubey

Supreme Court of North Dakota

October 22, 2013

In the Matter of Larry Gene RUBEY.
v.
Larry Gene Rubey, Respondent and Appellant. Ladd R. Erickson, State's Attorney, Petitioner and Appellee

Page 447

Ladd Ronald Erickson, State's Attorney, Washburn, ND, for petitioner and appellee.

Gregory Ian Runge, Bismarck, ND, for respondent and appellant.

CROTHERS, Justice.

[¶ 1] Larry Gene Rubey appeals from a district court order limiting the presentation of evidence at his discharge hearing and from a district court order denying his petition for discharge from civil commitment as a sexually dangerous individual. Rubey argues the district court erred in restricting the evidence and finding he remained a sexually dangerous individual. We affirm the district court's order that Rubey remained a sexually dangerous individual and deny Rubey's requested relief on the evidentiary limitation.

I

[¶ 2] Rubey was convicted of gross sexual imposition in 1988. In 1999, he was convicted of gross sexual imposition and two counts of corruption or solicitation of a minor. Rubey received a twelve-year prison sentence, which this Court affirmed.

Page 448

State v. Rubey, 2000 ND 119, 611 N.W.2d 888. The State petitioned to commit Rubey as a sexually dangerous individual prior to Rubey's release. Rubey was committed as a sexually dangerous individual in August 2010, and this Court affirmed. In re Rubey, 2011 ND 165, 801 N.W.2d 702. Rubey petitioned for discharge in June 2011. The district court found in October 2011 he remained a sexually dangerous individual and denied his petition for discharge. This Court affirmed that decision. In re Rubey, 2012 ND 133, 818 N.W.2d 731.

[¶ 3] Rubey petitioned for discharge on September 24, 2012. The State moved to limit the scope of the annual review. The district court granted the State's motion in limine, limiting the scope of the hearing to whether Rubey remains a sexually dangerous individual and allowing additional evidence if it shows something changed since the last annual review.

[¶ 4] Rubey's discharge hearing occurred on February 15, 2013. The State's expert, Dr. Lynne Sullivan, and Rubey's independent evaluator, Dr. Stacey Benson, agreed Rubey engaged in sexually predatory conduct and has a congenital or acquired condition manifested by a sexual disorder, personality disorder or other mental disorder or dysfunction. The two experts disagreed whether Rubey was likely to engage in further acts of sexually predatory conduct and whether he has serious difficulty in controlling his behavior.

[¶ 5] Dr. Sullivan recognized the average risk of reoffending decreases at age sixty, but emphasized the statistic is an average, which she believed did not include Rubey. Dr. Sullivan testified Rubey was still in the first phase of a four-phase treatment program, the same phase he was in during his previous adjudication. Dr. Sullivan concluded that Rubey posed a high risk of sexually offensive behavior in the short term and that he would have serious difficulty controlling his behavior. Dr. Benson believed Rubey was unlikely to reoffend because his risk assessment dropped from high to moderate, he turned age sixty, his multiple sclerosis decreased sexual functioning, he showed empathy toward others in treatment and he did not act out sexually since his previous hearing. The district court found Dr. Sullivan's opinion more convincing than Dr. Benson's and concluded Rubey remained a sexually dangerous individual. Rubey's discharge petition was denied.

II

A

[¶ 6] Rubey argues the district court erred in imposing an evidentiary limitation. He asserts the district court erred in finding he remains a sexually dangerous individual because he is not likely to engage in further acts of predatory conduct and does not have difficulty controlling his behavior.

[¶ 7] " [This Court] review[s] a district court's decision on a motion in limine for an abuse of discretion." State v. Lutz, 2012 ND 156, ¶ 3, 820 N.W.2d 111 (quotation omitted). " A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner or if it misinterprets or misapplies the law." Id. " However, the exclusion of evidence by a motion in limine does not dispense with the need for the proponent of evidence to make an offer of proof so the trial court can consider the proffered evidence in the context of other evidence presented during trial." Williston Farm Equip., Inc. v. Steiger Tractor, Inc., 504 N.W.2d 545, 550 (N.D.1993). The party challenging the exclusion of evidence must offer proof demonstrating prejudice from the restriction. Perius v. Nodak Mut. Ins. Co., 2012 ND 54, ¶ 6, 813 N.W.2d 580.

Page 449

These showings create the required record for appellate review. Gorsuch v. Gorsuch, 392 N.W.2d 392, 394 (N.D.1986). This Court is unable to review the issue absent such an offer of proof. Id.

[¶ 8] " We review civil commitments of sexually dangerous individuals under a modified clearly erroneous standard of review." Interest of G.L.D., 2011 ND 52, ¶ 5, 795 N.W.2d 346. " We will affirm a district court's order denying a petition for discharge unless it is induced by an erroneous view of the law or we are firmly convinced it is not supported by clear and convincing evidence." Id. " [W]e give great deference to the court's credibility determinations of expert witnesses and the weight to be given their testimony." Id.

[¶ 9] At a commitment proceeding, the State must prove by clear and convincing evidence the person is a sexually dangerous individual. N.D.C.C. § 25-03.3-13. When a committed individual petitions for discharge, the State must prove by clear and convincing evidence three statutory elements and establish an additional constitutional requirement to satisfy substantive due process requirements. N.D.C.C. § 25-03.3-18(4); In re Vantreece, 2009 ND 152, ¶ 6, 771 N.W.2d 585.

[¶ 10] The statutory elements are:

" an individual [1] who is shown to have engaged in sexually predatory conduct and [2] who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction [3] that 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). To comport with the language of the statute and constitutional substantive due process concerns, this Court:

" construe[s] the definition of a sexually dangerous individual to mean that proof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in the ordinary criminal case."

Matter of G.R.H., 2006 ND 56, ¶ 18, 711 N.W.2d 587. The fourth step is a constitutionally required inquiry whether the individual has difficulty controlling his behavior. In re E.W.F., 2008 ND 130, ¶ 10, 751 N.W.2d 686.

B

[¶ 11] Rubey argues the district court erred in restricting the presentation of evidence to the third and fourth elements of the sexually dangerous individual analysis. He concedes the first element is res judicata. In the Matter of J.G., 2013 ND 26, ¶ 11, 827 N.W.2d 341. Rubey contends the district court should not have precluded him from presenting evidence on the second element. The State contends that the first two prongs of the sexually dangerous individual analysis are res judicata because they were established in a previous hearing and that the parties should limit their presentation of evidence to the third and fourth elements.

[¶ 12] Before this Court can determine whether the limitation was an abuse of discretion, the proponent of excluded evidence must make an offer of proof to the trial court and show prejudice from the restriction. N.D.R.Ev. 103(a)(2); Perius, 2012 ND 54, ¶ 6, 813 N.W.2d 580. Rubey's expert's testimony was limited on several occasions, and each time Rubey

Page 450

failed to make an offer of proof. Nor did Rubey present evidence in either instance showing why the testimonial issues should be determined differently. Gorsuch, 392 N.W.2d at 394. As to presenting evidence on element two, Rubey recognized during the motion in limine hearing that Dr. Benson's report does not touch on the first or second element. In his brief to this Court, he conceded Drs. Sullivan and Benson agree Rubey meets element two. Without an offer of proof and in light of Dr. Benson's report being ...


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