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In re Whitetail

Supreme Court of North Dakota

August 25, 2015

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 J. Binder, State's Attorney, Stanton, ND, for petitioner and appellee.

Kent M. Morrow, Bismarck, ND, for respondent and appellant.

Daniel J. Crothers, Lisa Fair McEvers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice. Kapsner, Justice, dissenting.

OPINION

Page 834

Daniel J. Crothers, Justice.

[¶1] Nelson Whitetail, Sr., appeals from an order denying his petition for discharge as a sexually dangerous individual. Whitetail argues the district court erred by finding clear and convincing evidence exists that he is likely to engage in further acts of sexually predatory conduct and by finding it lacked authority to order his release subject to supervision. We affirm.

I

[¶2] Whitetail was committed as a sexually dangerous individual by court order

Page 835

on December 21, 2012. Whitetail appealed the commitment order, which we affirmed. In re Whitetail, 2013 ND 143, 835 N.W.2d 827. On February 6, 2014, Whitetail filed a petition for discharge under N.D.C.C. § 25-03.3-18. An evaluation was completed and submitted by Dr. Robert D. Lisota, a psychologist at the North Dakota State Hospital. Dr. Lisota concluded Whitetail is likely to engage in further acts of sexually predatory conduct. An independent evaluation was completed and submitted by another psychologist, Dr. Robert G. Riedel. Dr. Riedel concluded Whitetail is not likely to engage in further acts of sexually predatory conduct. At the September 15, 2014 hearing, the court heard testimony from Dr. Lisota, Dr. Riedel and Whitetail. The district court found Whitetail continues to be a sexually dangerous individual under N.D.C.C. ch. 25-03.3. The district court denied Whitetail's petition for discharge and ordered continued commitment. Whitetail appeals.

II

[¶3] " A 'modified clearly erroneous' standard of review is employed by this Court when reviewing the civil commitment of sexually dangerous individuals under N.D.C.C. ch. 25-03.3." In re Johnson, 2015 ND 71, ¶ 4, 861 N.W.2d 484 (citing Matter of J.T.N., 2011 ND 231, ¶ 6, 807 N.W.2d 570).

" We will affirm a trial 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. In reviewing the trial court's order, we give great deference to the court's credibility determinations of expert witnesses and the weight to be given their testimony. The trial court is the best credibility evaluator in cases of conflicting testimony and we will not second-guess the court's credibility determinations."

In re Wolff, 2011 ND 76, ¶ 5, 796 N.W.2d 644 (citations and quotation marks omitted).

III

[¶4] " Commitment as a sexually dangerous person is governed by N.D.C.C. ch. 25-03.3. Involuntary commitment of an individual is authorized when the State can establish by clear and convincing evidence that the individual is a sexually dangerous individual. N.D.C.C. § 25-03.3-13." In re J.M., 2006 ND 96, ¶ 9, 713 N.W.2d 518. Under N.D.C.C. § 25-03.3-01(8), a sexually dangerous individual is one who:

" [I]s shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction 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."

Commitment of an individual as sexually dangerous requires the State to prove:

" (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 which constitute a danger to the physical or mental health or safety of others."

In re G.R.H., 2006 ND 56, ¶ 6, 711 N.W.2d 587.

[¶5] Whitetail argues the district court erred by concluding clear and convincing evidence exists that Whitetail is likely to engage in further acts of sexually

Page 836

predatory conduct. " 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 Rubey, 2012 ND 133, ¶ 8, 818 N.W.2d 731 (citations and quotation marks omitted). " Substantive due process requires proof that the individual facing commitment has serious difficulty controlling his behavior." Id.

[¶6] Whitetail argues whether he is likely to engage in further acts of sexually predatory conduct must focus on his future risk and not his past failures. Whitetail notes his score on the Static-99R is two, representing a moderate-low risk of reoffending and his score on the STABLE 2007 is moderate risk for reoffending. However, we have explained, " The importance of independent judicial decision-making means the judge, rather than the test scores or the psychologists who create them, is the ultimate decision-maker." In re Hehn, 2008 ND 36, ¶ 21, 745 N.W.2d 631. Actuarial tests are only one factor used to determine whether an individual is likely to engage in further acts of sexually predatory nature. See In re J.T.N., 2011 ND 231, ¶ 18, 807 N.W.2d 570. " Under the third prong of the commitment analysis, evaluating psychologists can 'use the fullness of their education, experience and resources available to them in order to determine if an individual poses a threat to society.'" In re Voisine, 2010 ND 17, ¶ 14, 777 N.W.2d 908 (quoting In re M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473). " This standard applies equally to experts and courts alike, and its inclusive nature leads us to conclude that all relevant conduct should be considered under this prong of the analysis." Id.

[¶7] Here, the experts differed on whether Whitetail is likely to engage in further acts of sexually predatory conduct. Dr. Riedel's report focused on Whitetail's actuarial numbers. Dr. Riedel testified based upon Whitetail's actuarial numbers and his current medical condition, " [Whitetail] has a minuscule chance of reoffending." Dr. Lisota, explaining Whitetail's relevant conduct, reported:

" Mr. [Whitetail's] sexual offending has been persistent across time, with re-offenses despite previous sanctions including prison time and 'successful' completion of intensive sex offender treatment in prison. The fact that he has been reconvicted for a sexual offense after 'successfully' completing intensive sex offender treatment in DOCR is at the least problematic in that it is indicative that treatment has actually not been successful in [] helping him to control his behavior [in] the past. This further reflects a serious, long-standing problem with controlling his impulses and sexual behavior.
. . . .
" It is concluded that a nexus exists linking the Antisocial Personality Disorder with Narcissistic Features to Mr. [Whitetail's] sexual offending in that his pattern of sexually predatory conduct is characterized by predatory offending, impulsivity, deceitfulness, and a lack of remorse for his victims. Given that Mr. [Whitetail] has a history of more than one sexual (or sexually-motivated) offense against under-age females, it is likely that his personality disorder in combination with his paraphilia will lead him to engage in recidivist sexually ...

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