Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.
Jonathan R. Byers, Special Assistant State's Attorney, Bismarck, N.D., for petitioner and appellee.
Jonathan L. Green, Wahpeton, N.D., for respondent and appellant.
Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Gerald W. VandeWalle, C.J. I concur in the result. Dale V. Sandstrom. Opinion of the Court bye Kapsner, Justice.
Carol Ronning Kapsner, Justice.
[¶1] Darl Hehn appeals from an order denying his petition for discharge from civil commitment as a sexually dangerous individual. We conclude Hehn waived his issue on appeal asserting statutory and constitutional violations on grounds the North Dakota State Hospital allegedly withheld treatment and was precluded from asserting a due process violation based on the State Hospital's failure to provide witnesses and other evidence. We further conclude the district court erred in requiring Hehn to remain handcuffed during an annual discharge hearing, but the error was harmless. We affirm.
[¶2] In 1997, Hehn pleaded guilty to two counts of gross sexual imposition and one count of terrorizing. In 2003, Hehn was released from prison on supervised probation but his probation was subsequently revoked, and he was returned to prison in 2004. In 2006, Hehn was committed to the North Dakota State Hospital as a sexually dangerous individual, and this Court affirmed the commitment. In re Hehn, 2008 ND 36, 745 N.W.2d 631. In 2010, Hehn petitioned for release from civil commitment, and the district court denied his petition. This Court reversed and
remanded for additional findings. In re Hehn, 2011 ND 214, ¶ ¶ 8-9, 806 N.W.2d 189. The district court made findings on remand and again denied his petition, and we summarily affirmed the order. In re Hehn, 2012 ND 191, ¶ 1, 821 N.W.2d 385.
[¶3] In 2011, Hehn filed a second petition for discharge. While his second petition was pending, Hehn also filed a letter with the district court requesting an annual review, which the court treated as a third petition. The district court denied his second petition, which we affirmed on appeal. See In re Hehn, 2013 ND 191, ¶ ¶ 11, 19, 838 N.W.2d 469. We also held that the district court did not err in denying Hehn a hearing on his third petition for discharge " until twelve months had passed since his last discharge hearing." Id. at ¶ 18.
[¶4] In December 2013, Hehn filed another petition requesting a discharge hearing. On August 14 and 15, 2014, the district court held an evidentiary hearing on Hehn's petition for discharge. In November 2014, the court denied his petition, finding he continues to be a sexually dangerous individual. The court found clear and convincing evidence that Hehn had engaged in sexually predatory conduct; has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; was likely to engage in future sexually predatory acts; and has serious difficulty controlling his behavior. The court specifically found a nexus between Hehn's disorder and the likelihood of re-offense and found Hehn would have serious difficulty controlling his behavior in a less restrictive environment.
[¶5] Commitment proceedings for sexually dangerous individuals are civil proceedings. In re M.D., 1999 ND 160, ¶ ¶ 27-31, 598 N.W.2d 799. At a discharge hearing the State must prove by clear and convincing evidence the committed individual remains a " sexually dangerous individual." N.D.C.C. § 25-03.3-18(4); In re Hehn, 2013 ND 191, ¶ 8, 838 N.W.2d 469. To prove a committed individual remains a " sexually dangerous individual," the State must show:
(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; and (3) the disorder makes the individual likely to engage in further acts of sexually predatory conduct.
In re Thill, 2014 ND 89, ¶ 5, 845 N.W.2d 330. " The phrase 'likely to engage in further acts of sexually predatory conduct' means the individual's propensity towards sexual violence is of such a degree as to pose a threat to others." In re E.W.F., 2008 ND 130, ¶ 10, 751 N.W.2d 686 (quotation marks omitted). In addition to the three statutory elements, the State must also prove the constitutionally required element that the individual has " serious difficulty controlling his behavior." Id.; see also Kansas v. Crane, 534 U.S. 407, 412-14, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). To comport with substantive due process requirements, this Court has:
construe[d] 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 ...