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In re Loy

Supreme Court of North Dakota

April 28, 2015

In the Matter of Garrett Alan Loy; Haley Wamstad, Grand Forks County Assistant State's Attorney, Petitioner and Appellee
v.
Garrett Alan Loy, Respondent and Appellant

Page 501

[Copyrighted Material Omitted]

Page 502

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.

Haley L. Wamstad, Assistant State's Attorney, Grand Forks, ND, for petitioner and appellee.

Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.

Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Lisa Fair McEvers.

OPINION

Page 503

VandeWalle, Chief Justice.

[¶1] Garrett Alan Loy appealed from an order civilly committing him as a sexually dangerous individual. We affirm.

I

[¶2] In 2004, Loy was convicted of gross sexual imposition. In 2005, Loy pleaded guilty to a separate charge of gross sexual imposition and his probation from his 2004 conviction was revoked. Loy was sentenced to ten years in custody with five years suspended for the 2004 conviction, and sentenced to ten years in custody with five years suspended for the 2005 conviction, to be served consecutively. Loy was also required to complete the Intensive Sex Addiction Treatment Program. He was evaluated for referral to the North Dakota Department of Corrections and Rehabilitation's sex offender treatment program, and completed the low intensity program in 2006, as well as the intensive offender treatment program in 2012. Prior to his release, the North Dakota Department of Corrections and Rehabilitation did not recommend civil commitment. However, Dr. Lisa Peterson evaluated Loy and was concerned he could become involved in further acts of sexual misconduct following release based upon Loy's inability to control his hypersexuality and his future access to potential victims. Dr. Peterson recommended transitional treatment with gradual reintegration into the general populace.

[¶3] The State filed a petition to involuntarily commit Loy as a sexually dangerous individual. Prior to the commitment hearing, Dr. Lynne Sullivan submitted an evaluation to the district court on behalf of the State, determining Loy suffers from hypersexuality and other specified paraphilic disorder, hebephilia. The diagnosis concluded Loy was at a high risk of engaging in further acts of sexually predatory conduct.

[¶4] Prior to the commitment hearing, Loy was found indigent and was granted a court-appointed attorney. Loy moved for appointment of an independent mental health evaluator as an indigent, which was also granted. Loy later dismissed his court-appointed counsel and hired private counsel. The district court required Loy provide a financial affidavit based on his ability to hire private counsel, and found Loy had $2,800 in assets and ordered him to pay $2,700 toward the expense of his independent evaluation. Loy moved to substitute the court-appointed evaluator with his own independent evaluator, which was denied.

[¶5] Dr. Gregory Volk was appointed by the district court to provide an independent evaluation of Loy. Dr. Volk diagnosed Loy with other specified paraphilic disorder, hebephilia, unspecified depressive disorder, and other specified personality disorder

Page 504

(histrionic, self-defeating, antisocial, and borderline features). Dr. Volk concluded Loy had a moderate to high level of risk to reoffend, but if appropriate levels of supervision could be maintained in the community of his residence and he was actively engaged in a solution-focused, strength based program that address the underlying causes of his sexually inappropriate behaviors, it was likely Loy could make an adequate adjustment in the community.

[¶6] Dr. Sullivan and Dr. Volk testified during the commitment hearing. At the time of Dr. Sullivan's testimony, her license with the North Dakota State Board of Psychologist Examiners was under probation. Loy moved to prohibit Dr. Sullivan's testimony arguing she was not a qualified expert witness. The district court denied the motion. Dr. Volk testified that Loy's failure to partially pay Dr. Volk for Loy's independent evaluation indicated a raised risk level in disobeying a court order. Loy moved to exclude Dr. Volk's testimony as an expert witness due to alleged bias. The motion was denied. Loy moved to allow Rodney Ireland, a person currently committed as a sexually dangerous individual, testify about the treatment received at the North Dakota State Hospital. The motion was also denied by the district court.

[¶7] The district court determined there was clear and convincing evidence Loy remains a sexually dangerous individual and ordered that he be committed to the custody of the North Dakota Department of Human Services. The district court specifically stated Loy's failure to pay Dr. Volk as a sign of increased risk was not a pivotal factor in determining whether Loy should be released, and amended its prior order deleting his requirement to pay for the independent evaluation.

[¶8] On appeal, Loy argues the district court erred in allowing the testimony of Dr. Sullivan and Dr. Volk as expert witnesses, erred in denying Loy the right to choose an independent evaluator at the State's expense, erred in denying Loy's witness from testifying about treatment conditions, and erred in finding clear and ...


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