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In re J.M.

Supreme Court of North Dakota

May 16, 2019

In the Matter of J.M.
v.
J.M., Respondent and Appellant Julie A. Lawyer, Burleigh County State's Attorney, Petitioner and Appellee

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, 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

          VANDEWALLE, CHIEF JUSTICE.

         [¶1] 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.

         I

         [¶2] 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.

         [¶3] 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 dynamic factors.

         [¶4] 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 money.

         [¶5] 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 discharge.

         II

         [¶6] 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.

         [¶7] 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 individual:

[1] [the individual] engaged in sexually predatory conduct and [2] has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction [3] that makes that individual likely to engage in further acts of sexually predatory conduct ...

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