from the District Court of Dickey County, Southeast Judicial
District, the Honorable Daniel D. Narum, Judge.
D. Neuharth, Dickey County State's Attorney, Ellendale,
ND, for petitioner and appellee; submitted on brief.
R. Butts, Wahpeton, ND, for respondent and appellant;
submitted on brief.
1] Kelly Tanner appeals from a district court order finding
he remains a sexually dangerous individual and denying his
petition for discharge from the North Dakota State Hospital.
Because we conclude the district court order denying
Tanner's petition for discharge is supported by the
record and is not induced by an erroneous view of the law, we
affirm the district court order continuing civil commitment.
2] In 2008, Tanner, age 22, was convicted of sexual assault
for having sexual intercourse with a sixteen-year-old female
in violation of N.D.C.C. § 12.1-20-07. The district
court sentenced Tanner to one year of probation for the
offense. In 2009, Tanner was convicted of failure to register
as a sex offender and was sentenced to five years in prison
with four years and eleven months suspended for two years of
supervised probation. In 2010, Tanner's probation was
revoked, and he was sentenced to one year of incarceration
with two years of supervised probation to follow. Just before
Tanner was released from incarceration, the State petitioned
the district court to civilly commit Tanner as a sexually
dangerous individual. The district court held a preliminary
hearing, ordered an evaluation, and later held an initial
commitment hearing. After the commitment hearing, the
district court found Tanner was a sexually dangerous
individual and ordered civil commitment. Tanner appealed the
order of commitment, and this Court affirmed in Interest
of Tanner, 2012 ND 127, 821 N.W.2d 385.
3] Tanner petitioned for discharge in 2013 and 2014, and the
district court ordered continued commitment on both
occasions. Tanner petitioned for discharge a third time in
September 2015. The State's doctor, Dr. Krance, evaluated
Tanner and filed a report on December 18, 2015. Dr. Krance
updated this report with an addendum on April 11, 2016 and a
second addendum on May 4, 2016. Dr. Benson, an independent
doctor who previously evaluated Tanner, conducted an
evaluation and filed a report on April 12, 2016. The district
court held a hearing on May 10, 2016, at which both Dr.
Krance and Dr. Benson testified. The district court concluded
Tanner remained a sexually dangerous individual and denied
the petition for discharge. Tanner appealed.
4] On appeal, Tanner argues the district court erred by
finding the State had proven Tanner to be a sexually
dangerous individual by clear and convincing evidence.
"We review civil commitments of sexually dangerous
individuals under a modified clearly erroneous standard of
review." Matter of Midgett, 2009 ND 106, ¶
5, 766 N.W.2d 717. "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."
Matter of Wolff, 2011 ND 76, ¶ 5, 796 N.W.2d
644 (citation omitted). We give "great deference to the
court's credibility determinations of expert witnesses
and the weight to be given their testimony."
Id. At a discharge hearing, the State must prove by
clear and convincing evidence the committed individual
remains a "sexually dangerous individual" under
N.D.C.C. § 25-03.3-18(4). Matter of Hehn, 2015
ND 218, ¶ 5, 868 N.W.2d 551. To prove a committed
individual remains a "sexually dangerous individual,
" the State must show three statutory elements:
(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.
Id. See N.D.C.C. § 25-03.3-01(8).
5] This Court has recognized substantive due process requires
additional proof beyond the three statutory elements:
In addition to the three statutory requirements, to satisfy
substantive due process, the State must also prove the
committed individual has serious ...