In the Interest of T.A.G.
T.A.G., Respondent and Appellant Julie Lawyer, Petitioner and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable John W. Grinsteiner, Judge.
A. Lawyer, Burleigh County State's Attorney, Bismarck,
ND, petitioner and appellee.
J. Morrow, Grand Forks, ND, for respondent and appellant.
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.
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.
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).
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