In the Matter of J.M.
J.M., Respondent and Appellant Julie A. Lawyer, Burleigh County State's Attorney, Petitioner and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
A. Lawyer, Burleigh County State's Attorney, Bismarck,
ND, petitioner and appellee.
J. Morrow, Grand Forks, ND, for respondent and appellant.
VANDEWALLE, CHIEF JUSTICE.
J.M. appealed from a district court order denying his
petition for discharge and continuing his commitment as a
sexually dangerous individual. He argues the State did not
prove by clear and convincing evidence his antisocial
personality disorder and sexual disorder were likely to
result in a serious difficulty in controlling his behavior.
On this record we conclude the State did not establish clear
and convincing evidence of a nexus between J.M.'s
disorder and his sexual dangerousness to others. We reverse.
J.M. was civilly committed as a sexually dangerous individual
in October 2005 at the end of his incarceration for a 2001
conviction for gross sexual imposition involving a
nine-year-old victim. J.M. has unsuccessfully petitioned for
discharge several times and has appealed his commitment on
four prior occasions. See Interest of J.M., 2006 ND
96, 713 N.W.2d 518; Matter of J.M., 2011 ND 105, 799
N.W.2d 406; In re J.M., 2013 ND 11, 826 N.W.2d 315;
In re J.M., 2014 ND 118, 859 N.W.2d 929.
In this case, J.M. filed a petition for discharge in June
2017. At the December 1, 2017 hearing, the district court
heard testimony from the State Hospital's expert, Dr.
Byrne, and J.M.'s independent evaluator, Dr. Benson. In
his testimony, Dr. Byrne stated J.M. was likely to engage in
further acts of sexually predatory conduct based on actuarial
tests and his review of J.M.'s records. Dr. Byrne also
found J.M.'s diagnoses are linked to a serious difficulty
in controlling his behavior. During her testimony, Dr. Benson
testified J.M. was not likely to engage in sexually predatory
conduct and no longer met the criteria for a sexually
dangerous individual. Dr. Benson based her testimony on
interviews with J.M. and his family, actuarial tests, and
The district court also received testimony about an incident
where J.M. threw a rock at another resident and an
altercation with another resident investigated by the State
Hospital. The experts disagreed on what these incidents
represented about J.M.'s likelihood to engage in further
acts of sexually predatory conduct. However, both Dr. Byrne
and Dr. Benson stated that aggression remained an issue for
J.M. Additionally, the court received evidence of behavioral
write-ups J.M. received for writing negative comments about
other residents in his journal and withdrawing twelve dollars
more than he was allowed to from the ATM. Nothing in the
record suggests J.M. did anything inappropriate with the
Quoting from Dr. Byrne's report, the district court found
J.M. continues to be a sexually dangerous individual under
N.D.C.C. ch. 25-03.3 and denied J.M.'s application for
Civil commitments of sexually dangerous individuals are
reviewed under a modified clearly erroneous standard. In
Interest of Tanner, 2017 ND 153, ¶ 4, 897 N.W.2d
901. This Court will affirm a district court's order
denying a petition for discharge unless it is induced by an
erroneous view of the law or this Court is firmly convinced
it is not supported by clear and convincing evidence.
Id. This Court gives "great deference to the
court's credibility determinations of expert witnesses
and the weight to be given their testimony."
Id. In cases of conflicting testimony, the district
court is the best credibility evaluator. In re Hehn,
2008 ND 36, ¶ 23, 745 N.W.2d 631.
When a committed individual petitions for discharge, the
State must prove by clear and convincing evidence the
petitioner is still a sexually dangerous individual. N.D.C.C.
§ 25-03.3-18(4). The State must prove three statutory
elements to show the petitioner remains a sexually dangerous
 [the individual] engaged in sexually predatory conduct
and  has a congenital or acquired condition that is
manifested by a sexual disorder, a personality disorder, or
other mental disorder or dysfunction  that makes that
individual likely to engage in further acts of sexually
predatory conduct ...