from the District Court of Cass County, East Central Judicial
District, the Honorable Steven L. Marquart, Judge.
Opinion of the Court by Crothers, Justice. Leah J. Viste,
Assistant State's Attorney, Fargo, ND, for petitioner and
J. Morrow, Grand Forks, ND, for respondent and appellant.
R.A.S. appeals from a district court order denying his
petition for discharge and continuing commitment as a
sexually dangerous individual. The order denying R.A.S.'s
petition for discharge is reversed for lack of findings
sufficient to conclude the due process requirement has been
met under Kansas v. Crane, 534 U.S. 407 (2002).
R.A.S. was convicted of gross sexual imposition in 1991 and
sentenced to eight years. In 2001 R.A.S. was convicted of
possession of stolen property, and in 2002 assault on a
corrections officer. As part of the sentence for the
possession of stolen property charge, the district court
recommended R.A.S. receive a mental health evaluation. Before
his scheduled release in 2004, the State successfully
petitioned to commit R.A.S. as a sexually dangerous
individual. In 2007 R.A.S. requested his statutory right to
review his commitment. The district court found R.A.S.
continued to be a sexually dangerous individual. R.A.S.
appealed the finding and this Court remanded because there
were insufficient findings of fact and the district court
used a conclusory statement that the State met its burden of
proof. Matter of R.A.S., 2008 ND 185, ¶¶
7-8, 756 N.W.2d 771. The district court made explicit
findings detailing R.A.S.'s conduct and how it related to
the criteria for establishing a sexually dangerous
individual. We affirmed. Matter of R.A.S., 2009 ND
101, 766 N.W.2d 712. In 2010, 2012, and 2016 R.A.S.
petitioned for discharge and did not appeal the district
court orders denying his petitions.
On May 2, 2018, R.A.S. requested a discharge hearing under
N.D.C.C. § 25-03.3-18. At the January 11, 2019 hearing,
a psychologist testified R.A.S. is likely to engage in
further acts of sexually predatory conduct based on actuarial
tests and review of past conduct. The psychologist testified
to a situation where R.A.S. requested a lower prescribed
level of medication. The State Hospital agreed and revoked
some of R.A.S.'s privileges at the onset of the lower
dosage to determine whether the new dosage met his medical
needs. R.A.S. protested the revocation of privileges by
refusing two doses of his medication, but later agreed to
remain on the higher dosage in return for his privileges
continuing intact. The psychologist testified R.A.S.'s
refusal to twice take the prescribed medication demonstrated
his inability to control his behavior.
The district court used this situation as the basis for
finding R.A.S. is unable to control his behavior. On January
15, 2019, the district court denied R.A.S.'s application
for discharge. R.A.S. timely appealed.
This Court reviews civil commitments of sexually dangerous
individuals under a modified clearly erroneous standard, and
we will affirm the district court's decision unless it is
induced by an erroneous view of the law, or we are firmly
convinced the decision is not supported by clear and
convincing evidence. Interest of Tanner, 2017 ND
153, ¶ 4, 897 N.W.2d 901. At a discharge hearing, the
burden is on the State to prove by clear and convincing
evidence the petitioner remains 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:
" [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 which constitute a danger to the
physical or mental health or safety of others."
N.D.C.C. § 25-03.3-01(8).
The State also must meet substantive due process requirements
by proving the individual has serious difficulty in
controlling his behavior. Tanner, 2017 ND 153,
¶ 5, 897 N.W.2d 901. Consistent with the holding in
Kansas v. Crane, 534 U.S. 407 (2002), the definition
of a sexually dangerous individual requires "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." Interest of
Carter, 2019 ND 67, ¶ 4, 924 N.W.2d 112 (internal
quotation marks omitted). Neither our law nor Kansas v.