In the Matter of Aaron J. Kulink
Aaron J. Kulink, Respondent and Appellant Leah J. Viste, Assistant State's Attorney, Petitioner and Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Susan L. Bailey, Judge.
J. Viste, Assistant State's Attorney, Fargo, N.D.,
petitioner and appellee.
J. Morrow, Grand Forks, N.D., for respondent and appellant.
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.
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.
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