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In re Olson

Supreme Court of North Dakota

February 16, 2017

In the Interest of Danny Robert Nelson Lonnie Olson, State's Attorney, Petitioner and Appellee
v.
Danny Robert Nelson, Respondent and Appellant

         Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan John Foughty, Judge. REMANDED.

          Lonnie Olson, State's Attorney, petitioner and appellee.

          David D. Dusek, for respondent and appellant.

          OPINION

          Kapsner, Justice.

         [¶ 1] Danny Nelson appeals from a district court order civilly committing him as a sexually dangerous individual. We conclude the district court's findings are inadequate to permit appellate review. While retaining jurisdiction under N.D.R.App.P. 35(a)(3), we remand with instructions that, within thirty days from the filing of this opinion, the district court make specific findings of fact on whether Nelson is likely to engage in further acts of sexually predatory conduct and whether Nelson has a present serious difficulty controlling behavior.

         I

         [¶ 2] In 2009, Nelson was convicted of continuous sexual abuse of a child. The underlying conduct for the conviction consisted of Nelson having repeated sexual contact and intercourse with his step-daughter between the time she was nine or ten years old until she was roughly fourteen or fifteen years old. After his conviction for continuous sexual abuse of a child, Nelson was sentenced to ten years in prison with three years suspended. While in prison, Nelson completed sex offender programming. Specifically, Nelson completed a low-intensity sex offender program in 2010 and a high-intensity sex offender program in 2014.

         [¶ 3] The State petitioned the district court to civilly commit Nelson as a sexually dangerous individual on December 2, 2014. The district court held a preliminary hearing on the State's petition on February 6, 2015. On February 10, 2015, the district court found probable cause to commit and ordered Nelson transported to the State Hospital for evaluation and creation of a report. Nelson was evaluated by both the State's expert, Dr. Krance, and Dr. Riedel, an independent expert. Both doctors submitted reports of their evaluations to the district court. The commitment hearing was continued twice before the district court held the hearing on January 6, 2016. Both experts and Nelson testified at the hearing. Dr. Krance testified she diagnosed Nelson with "Unspecified Paraphilic Disorder, Other Specified Personality Disorder with Antisocial Personality and Narcissistic Traits." Dr. Krance also noted Nelson had "Alcohol Use Disorder." Dr. Krance testified she believed Nelson was a sexually dangerous individual. Dr. Riedel testified he did not believe Nelson was likely to engage in further acts of sexually predatory conduct. Dr. Riedel also testified Nelson has "reasonable control" over his behavior and does not meet the requirement of serious difficulty controlling behavior.

         [¶ 4] At the close of the commitment hearing, the district court asked the parties to submit written closing arguments. After both parties submitted their written closing arguments, the district court entered an order on March 8, 2016 finding Nelson was a sexually dangerous individual and ordering Nelson committed to the State Hospital. Nelson filed a notice of appeal on March 28, 2016.

         II

         [¶ 5] On appeal, Nelson argues his substantive due process rights have been violated because he was committed after he already completed a sex offender treatment program while incarcerated. Nelson also argues the State failed to prove he is a sexually dangerous individual. Alternatively, Nelson argues the district court failed to specifically state the facts on which it relied to determine Nelson meets the definition of a sexually dangerous individual.

         A

         [¶ 6] Nelson contends his right to substantive due process under the Fourteenth Amendment was violated because he was civilly committed despite already completing sex offender treatment programs while incarcerated. We reject Nelson's argument. Civil commitment after completion of treatment programs while incarcerated does not violate Nelson's due process rights as long as the State has proven the statutory and constitutional requirements by clear and convincing evidence. Whether an individual received sex offender treatment while incarcerated is only one factor of many which may be considered in making a determination of whether someone is a sexually dangerous ...


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