from the District Court of Stutsman County, Southeast
Judicial District, the Honorable Cherie L. Clark, Judge.
K. Nwoga (argued), Assistant State's Attorney, and
Frederick R. Fremgen (on brief), State's Attorney,
Jamestown, N.D., for petitioner and appellee.
J. Morrow, Grand Forks, N.D., for respondent and appellant.
William Carter appeals from a district court order denying
discharge from commitment as a sexually dangerous individual.
On appeal, he argues the State failed to establish that he is
likely to reoffend or that he has serious difficulty
controlling his behavior. We affirm the district court's
Carter was convicted of gross sexual imposition in 2004. In
2007, the district court ordered Carter's commitment as a
sexually dangerous individual to the Department of Human
Services. In February 2017, Carter filed motions requesting a
discharge hearing and appointment of an independent examiner.
Dr. Erik Fox, the State's evaluator, filed a report in
May and an addendum to that report in September. Dr.
Fox's initial recommendation was for post community
placement; however, the addendum rescinded that
recommendation as a result of new information Dr. Fox
received during the summer of 2017. Dr. Stacey Benson, the
independent examiner, also filed a report. The discharge
hearing was held March 19, 2018. On appeal, Carter argues the
State failed to meet its burden to prove that he is likely to
engage in sexually predatory conduct and that he has
difficulty controlling his behavior.
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. We will affirm the district
court 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."
Id. "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.'"
Matter of Kulink, 2018 ND 260, ¶ 3, 920 N.W.2d
446 (internal citations omitted). To be committed as a
sexually dangerous individual, a person must meet three
statutory elements under 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 [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.
Nelson, at ¶ 4. "In addition to the three
statutory requirements, . . . the State must also prove the
committed individual has serious difficulty controlling his
behavior." Id. (quoting Matter of
Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644). The United
States Supreme Court did not give the phrase "lack of
control" a particularly narrow or technical meaning, nor
is "inability to control behavior" demonstrable
with mathematical precision. Kulink, at ¶ 4
(quoting Kansas v. Crane, 534 U.S. 407, 412-13
(2002)). Although not mathematically precise, the proof of
"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 case." Crane,
at 413. Thus, a "connection [must be found] between the
disorder and the individual's inability to control"
his actions. Nelson, at ¶ 4.
The North Dakota statute "incorporates the
Crane requirement in its definition of sexually
dangerous individual." Kulink, 2018 ND 260,
¶ 5, 920 N.W.2d 446. We interpret the definition to
require "proof of a nexus between the requisite disorder
and dangerousness to encompass proof that the disorder
involves serious difficulty in controlling behavior and
suffices to distinguish a dangerous sexual offender whose
disorder subjects him to civil commitment from the dangerous
but typical recidivist in the ordinary criminal case."
Id. The State must prove each of the three elements
plus the Crane factor by clear and convincing
evidence. Id. Only element three and the
Crane factor are at issue here.
This Court has "recognized the phrase 'likely to
engage in further acts of sexually predatory conduct'
under N.D.C.C. § 25-03.3-01(8), 'means the
individual's propensity towards sexual violence is of
such a degree as to pose a threat to others.'"
Interest of Tanner, 2017 ND 153, ¶ 6, ...