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In re Kulink

Supreme Court of North Dakota

December 6, 2018

In the Matter of Aaron J. Kulink
v.
Aaron J. Kulink, Respondent and Appellant Leah J. Viste, Assistant State's Attorney, Petitioner and Appellee

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Susan L. Bailey, Judge.

          Leah J. Viste, Assistant State's Attorney, Fargo, N.D., petitioner and appellee.

          Tyler J. Morrow, Grand Forks, N.D., for respondent and appellant.

          OPINION

          Tufte, Justice.

         [¶ 1] Aaron Kulink appeals from an order denying discharge from commitment as a sexually dangerous individual. Kulink argues (1) the district court did not make sufficient findings on the "likely to reoffend" and "serious difficulty controlling behavior" elements and (2) the State did not meet its burden of clear and convincing evidence on the two required elements. We retain jurisdiction under N.D.R.App.P. 35(a)(3) and remand for further proceedings consistent with this opinion.

         I

         [¶ 2] The district court conducted a hearing on Kulink's civil commitment on February 9, 2018. At the hearing, the court heard testimony from Dr. Jennifer Krance and Dr. Gregory Volk. The court denied Kulink's petition for discharge on February 15, 2018.

         II

         [¶ 3] This Court reviews "civil commitments of sexually dangerous individuals under a modified clearly erroneous standard of review." Interest of Nelson, 2017 ND 152, ¶ 3, 896 N.W.2d 923 (quoting Matter of Midgett, 2009 ND 106, ¶ 5, 766 N.W.2d 717). We affirm the district court's order unless it is "induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence." Nelson, at ¶ 3 (quoting Matter of A.M., 2010 ND 163, ¶ 14, 787 N.W.2d 752). When reviewing the district court's order, this Court gives "great deference to the court's credibility determinations of expert witnesses and the weight to be given their testimony." In re Johnson, 2016 ND 29, ¶ 3, 876 N.W.2d 25. To be committed as a sexually dangerous individual, a person must meet the three elements in N.D.C.C. § 25-03.3-01(8):

(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 individual's condition makes them likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.

Nelson, at ¶ 4.

         [¶ 4] "In addition to the three statutory requirements, to satisfy substantive due process, the State must also prove the committed individual has serious difficulty controlling his behavior." Id. In Kansas v. Crane, the Supreme Court explained that "we did not give to the phrase 'lack of control' a particularly narrow or technical meaning. And we recognize that in cases where lack of control is at issue, 'inability to control behavior' will not be demonstrable with mathematical precision." 534 U.S. 407, 412-413 (2002). Although not mathematical, the "inability to control behavior... must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal ...


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