Byers v. Voisine (In re Voisine)

915 N.W.2d 647

IN the INTEREST OF Raymond VOISINE

Jonathan Byers, Special Assistant State’s Attorney, Petitioner and Appellee

v.Raymond J. Voisine, Respondent and Appellant

No. 20170442

Supreme Court of North Dakota.

Filed July 18, 2018

Jonathan R. Byers, Office of the Attorney General, Bismarck, ND, petitioner and appellee.

Kent M. Morrow, Bismarck, ND, for respondent and appellant.

Jensen, Justice.

[¶1] Raymond Voisine appeals from an order denying his petition for discharge from treatment as a sexually dangerous individual. We conclude clear and convincing evidence supports the district court’s findings and order and the court did not misapply the doctrine of res judicata. We affirm.

I

[¶2] In 2004, Voisine was incarcerated after he pled guilty to gross sexual imposition for acts involving a six-year-old victim. In Matter of Voisine , 2010 ND 17, ¶¶ 2-4, 777 N.W.2d 908, this Court discussed the underlying facts leading to his incarceration and subsequent commitment as a sexually dangerous individual:

Voisine [was, at that time,] a 65-year-old male with four adult children, R.V., P.P., H.M. and L.K. In 2003, an officer with the North Dakota Bureau of Criminal Investigation executed a search warrant on Voisine’s home for an unrelated firearms charge. During the search, the officer found sexually explicit photographs under the pillow on Voisine’s bed. The photographs pictured H.M., one of Voisine’s three adult daughters. DNA analysis was performed and established with over 99.99 percent certainty that Voisine fathered two children with H.M.

In light of Voisine’s incestuous relations, interviews were conducted with his acquaintances. Voisine’s grandson reported that when he was 6 or 7 years old, he was forced to stroke Voisine’s penis for 5 to 10 minutes. The ex-husband of H.M. reported that Voisine threatened him with a firearm and fathered a child with P.P., Voisine’s adult daughter. Voisine’s ex-wife reported that Voisine beat and threatened her while they were married. The current boyfriend of Voisine’s ex-wife reported that Voisine’s children were sexually abused when they were minors. Voisine’s daughter, L.K., reported that she was born to a 17-year-old mother who was impregnated by a 34-year-old Voisine. L.K. also reported that Voisine physically abused her when she was young and that she once walked in on Voisine unzipping his pants behind a naked and bent-over H.M. L.K. later denied stating H.M. was naked.

Following the investigation, Voisine was charged with gross sexual imposition for sexual contact with his 6- or 7-year-old grandson and with promoting obscenity to a minor for allegedly showing pornography to a second, 9- or 10-year-old grandson who was also Voisine’s son. Voisine pled guilty to gross sexual imposition, and the promotion of obscenity charge was dismissed. He was incarcerated, and upon his release in 2008, the State petitioned to commit him as a sexually dangerous individual. The State alleged that in addition to the sexual contact underlying Voisine’s gross sexual imposition conviction, that Voisine sired three children with two of his daughters, that Voisine sexually abused his daughters as minors, that Voisine conceived a child with a 16-year-old girl in Maine and that Voisine promoted obscenity to a minor by showing pornography to his 9- or 10-year-old grandson/son.

[¶3] After he was released from custody, the district court revoked his probation for failing to complete sex offender treatment while incarcerated. In a post-conviction proceeding, his probation revocation was reversed. Voisine v. State , 2008 ND 91, ¶ 17, 748 N.W.2d 429. The State petitioned to commit Voisine for treatment as a sexually dangerous individual, which the district court subsequently granted. This Court reversed and remanded the case for further proceedings in Voisine , 2010 ND 17, ¶ 15, 777 N.W.2d 908, and after further proceedings summarily affirmed an order committing Voisine for treatment. Interest of Voisine , 2010 ND 241, ¶ 1, 795 N.W.2d 38. The district court denied his subsequent petitions for discharge from commitment, which were affirmed on appeal. See Interest of Voisine , 2012 ND 250, ¶ 1, 823 N.W.2d 786 ; Interest of Voisine , 2014 ND 178, ¶ 2, 859 N.W.2d 930 ; Interest of Voisine , 2016 ND 254, ¶ 24, 888 N.W.2d 781. This Court also summarily affirmed a district court order denying another petition for post-conviction relief from the conviction. Voisine v. State , 2014 ND 98, ¶ 2, 859 N.W.2d 930.

[¶4] In December 2016, Voisine again petitioned the district court for discharge. The court held the review hearing on November 30, 2017, during which the State’s expert, Dr. Peter Byrne, and Voisine’s independent evaluator, Dr. Stacey Benson, testified. Both experts also submitted to the court their respective reports evaluating Voisine. The court subsequently entered an order finding clear and convincing evidence that Voisine continues to meet the statutory criteria and is in need of treatment and rehabilitation as a sexually dangerous individual. The court ordered that he continue to be civilly committed for treatment.

II

[¶5] This Court reviews civil commitments of sexually dangerous individuals under a "modified clearly erroneous" standard of review. Interest of Tanner , 2017 ND 153, ¶ 4, 897 N.W.2d 901. We will affirm a district court’s order denying a petition for discharge unless it is induced by an erroneous view of the law or we are firmly convinced it is not supported by clear and convincing evidence. Id. ; Matter of Wolff , 2011 ND 76, ¶ 5, 796 N.W.2d 644. We accord "great deference to the [district] court’s credibility determinations of expert witnesses and the weight to be given their testimony." Tanner , at ¶ 4 ; Wolff , at ¶ 5.

[¶6] At a discharge hearing, the State must prove by clear and convincing evidence that the committed individual remains a "sexually dangerous individual" under N.D.C.C. § 25-03.3-18(4). Matter of Hehn , 2015 ND 218, ¶ 5, 868 N.W.2d 551. Under N.D.C.C. § 25-03.3-01(8), the State must prove three 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 disorder makes the individual likely to engage in further acts of sexually predatory conduct.

Tanner , 2017 ND 153, ¶ 4, 897 N.W.2d 901. Further, "the United States Supreme Court held that in order to satisfy substantive due process requirements, the individual must be shown to have serious difficulty controlling his behavior." Matter of Hehn , 2008 ND 36, ¶ 19, 745 N.W.2d 631 (citing Kansas v. Crane , 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) ). We therefore construe "sexually dangerous individual" as meaning "proof of a nexus between the requisite disorder and dangerousness encompasses 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." Wolff , 2011 ND 76, ¶ 7, 796 N.W.2d 644 (quoting Interest of J.M. , 2006 ND 96, ¶ 10, 713 N.W.2d 518 ).

III

[¶7] Voisine contends the district court’s findings and order for continued treatment were not supported by clear and convincing evidence. While he concedes the first prong that he engaged in sexually predatory conduct, he challenges the court’s findings on the remaining elements that he has a sexual disorder, personality disorder, or other mental disorder or dysfunction; that he has a high risk of re-offending; and that he has serious difficulty in controlling his behavior. He also contends the court improperly applied the doctrine of res judicata by suggesting it had no authority to override previous court decisions as to the existence of a sexual or mental disorder.

[¶8] Regarding the second prong, Voisine argues that the district court failed to provide a "detailed analysis" to explain the court’s finding that his prior diagnoses of paraphilia, not otherwise specified, was more credible than Dr. Benson’s diagnosis of dysthymia, which she explained as depression. At the hearing the State called Dr. Byrne, who testified that he concurred with Voisine’s prior diagnosis of unspecified paraphilic disorder after reviewing the prior evaluations and his offense history, personally meeting with Voisine, and completing his own SDI re-evaluation report. Dr. Byrne testified that there had been no change in that diagnosis and that Voisine displays antisocial features, not rising to the level of a diagnosis. While Dr. Benson disputes the diagnosis, she agrees he displays antisocial features.

[¶9] Voisine contends the district court erred in concluding he has a sexual disorder because the State failed to provide clear and convincing evidence of a sexual disorder. He essentially challenges the weight and credibility of Dr. Byrne’s testimony and reliance on prior expert opinions, contending Dr. Benson’s diagnosis is correct. Moreover, he argues the court committed reversible error by "blindly" accepting Dr. Byrne’s diagnosis without conducting a rigorous examination and analysis of the existence of a sexual or mental disorder. Voisine suggests the court unduly relied on the findings of previous courts and did not make its own decision on the evidence presented in these proceedings. He contends the court applied res judicata for its finding on the second prong and in its refusal to consider Dr. Benson’s testimony.

[¶10] In Interest of Graham , 2013 ND 171, ¶ 14, 837 N.W.2d 382, we explained that, unlike the first prong, the final three elements for determining a sexually dangerous individual focus on the present or future and "inquire whether a person may change with the passage of time and adherence to treatment." The district court in Graham refused to consider an independent psychologist’s...