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In re T.A.G.

Supreme Court of North Dakota

May 6, 2019

In the Interest of T.A.G.
v.
T.A.G., Respondent and Appellant Julie Lawyer, Petitioner and Appellee

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge.

          Julie A. Lawyer, Burleigh County State's Attorney, Bismarck, ND, petitioner and appellee.

          Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.

          OPINION

          CROTHERS, JUSTICE.

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

         I

         [¶2] On September 7, 2018, the district court conducted an annual review hearing on T.A.G.'s civil commitment. At the hearing the court heard testimony from Dr. Erik Fox and T.A.G. On October 17, 2018, the court denied T.A.G.'s petition for discharge.

         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. We affirm a 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." 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." 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 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 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.

N.D.C.C. § 25-03.3-01(8).

         [¶4] In addition to the three statutory elements, the State must satisfy substantive due process and prove the committed individual has serious difficulty controlling his behavior. In re Whitetail,2013 ND 143, ¶ 5, 835 N.W.2d 827. 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, 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 ...


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