Enget v. J.T.N. (In re J.T.N.)

2011 ND 231

807 N.W.2d 570

In the Matter of J.T.N.Wade Enget, State's Attorney, Petitioner and Appellee

v.J.T.N., Respondent and Appellant.

No. 20110067.

Supreme Court of North Dakota.

Dec. 13, 2011.

Wade G. Enget (argued), State's Attorney, Stanley, ND, for petitioner and appellee.

Steven M. Light (argued) and Daniel Edward Hopper (appeared), Fargo, ND, for respondent and appellant.

CROTHERS, Justice.

[¶ 1] J.T.N. appeals a district court order finding he remains a sexually dangerous individual and denying his petition for discharge from the North Dakota State Hospital. J.T.N. argues the district court erred by determining he remains a sexually dangerous individual. We affirm.

I

[¶ 2] In February 2005, the State petitioned to commit J.T.N. as a sexually dangerous individual under N.D.C.C. ch. 25–03.3. J.T.N. was committed to the State Hospital in July 2005. He petitioned for discharge in June 2006. His petition was denied in November 2006. J.T.N. filed a second petition for discharge in October 2007 and withdrew the petition in April 2008. J.T.N. filed a third petition for discharge in January 2009 and withdrew that petition in September 2009. In February 2010, J.T.N. filed the petition at issue in this appeal. The district court held a two-day hearing in November 2010.

[¶ 3] At the hearing, the State called two witnesses, Dr. Robert Lisota, a State Hospital psychologist, and Michelle Richardson, a State Hospital employee. Dr. Lisota testified J.T.N. remained a sexually dangerous individual. Richardson testified she found J.T.N. naked in his room one night during her midnight and 1:00 am rounds and wrote-up J.T.N. for flashing. J.T.N. called five witnesses, Dr. Robert Riedel, an independent psychologist appointed by the district court, and Dr. Terence Campbell, Dr. Stacey Benson, Dr. Luis Rosell and Dr. Joseph Plaud, four psychologists hired by J.T.N. All five of J.T.N.'s experts testified J.T.N. was not a sexually dangerous individual. In February 2011, the district court issued an order finding J.T.N. remained a sexually dangerous individual and continuing his commitment.

II

[¶ 4] “At a discharge hearing, the State has the burden of proving by clear and convincing evidence that the committed individual remains a sexually dangerous individual.” Matter of Midgett, 2010 ND 98, ¶ 7, 783 N.W.2d 27. To meet its burden, the State must prove three statutory elements and establish an additional constitutional requirement that is not a fourth element, but “is a part of the definition of a ‘sexually dangerous individual.’ ” Id. at ¶ 9. Section 25–03.3–01(8), N.D.C.C., defines a “sexually dangerous individual” as:

“an individual [1] who is shown to have engaged in sexually predatory conduct and [2] who 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 which constitute a danger to the physical or mental health or safety of others.”

[¶ 5] In addition, in accordance with the plain language of the statute and to address constitutional due process concerns, this Court “construe[s] the definition of a sexually dangerous individual to mean that 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.”

Matter of G.R.H., 2006 ND 56, ¶ 18, 711 N.W.2d 587.

[¶ 6] This Court applies a “modified clearly erroneous” standard of review to commitments of sexually dangerous individuals under N.D.C.C. ch. 25–03.3. Midgett, 2010 ND 98, ¶ 6, 783 N.W.2d 27.

“We will affirm a trial 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. In reviewing the trial court's order, we give great deference to the court's credibility determinations of expert witnesses and the weight to be given their testimony. The trial court is the best credibility evaluator in cases of conflicting testimony and we will not second-guess the court's credibility determinations.”

Matter of Wolff, 2011 ND 76, ¶ 5, 796 N.W.2d 644 (internal quotations and citations omitted). “When witnesses give conflicting testimony, we do not decide to believe a witness different from the one believed by the district court.” Hill v. Weber, 1999 ND 74, ¶ 12, 592 N.W.2d 585. “A fact finder need not believe the greater number of witnesses.” Id.

III

[¶ 7] J.T.N. argues the district court erred by denying his discharge petition because five of the six experts testified he is not a sexually dangerous individual. He does not contest the findings that he engaged in sexually predatory conduct and that he has an antisocial personality disorder. He argues the findings that he is likely to engage in further acts of sexually predatory conduct and that he has serious difficulty controlling his behavior were clearly erroneous. The State responds that the district court's findings were supported by clear and convincing evidence.

[¶ 8] Claims that a district court improperly relied on the opinion of one expert instead of another challenge the weight the evidence was assigned, not the sufficiency of the evidence. Matter of Hehn, 2008 ND 36, ¶ 22, 745 N.W.2d 631. Because “[e]valuation of credibility where evidence is conflicting is solely a trial court function[,]” this Court will not reweigh expert testimony. Id. at ¶ 23 (quoting Alumni Ass'n v. Hart Agency, Inc., 283 N.W.2d 119, 121 (N.D.1979)). We consistently have declined to “second-guess the credibility determinations made by the trial court” in sexually dangerous individual proceedings. Hehn, at ¶ 23. See Wolff, 2011 ND 76, ¶¶ 5, 13–14, 796 N.W.2d 644; Interest of G.L.D., 2011 ND 52, ¶¶ 5–10, 795 N.W.2d 346; Matter of A.M., 2010 ND 163, ¶¶ 19–21, 787 N.W.2d 752; Matter of Hanenberg, 2010 ND 8, ¶¶ 17–18, 777 N.W.2d 62; Matter of T.O., 2009 ND 209, ¶¶ 8–11, 776 N.W.2d 47; Matter of Vantreece, 2009 ND 152, ¶¶ 4, 18, 771 N.W.2d 585; Matter of A.M., 2009 ND 104, ¶¶ 10, 20, 766 N.W.2d 437; Matter of R.A.S., 2009 ND 101, ¶ 10, 766 N.W.2d 712; Matter of G.R.H., 2008 ND 222, ¶¶ 7, 11, 758 N.W.2d 719; Matter of M.D., 2008 ND 208, ¶¶ 7, 11, 757 N.W.2d 559; Hehn, at ¶¶ 22–24. “We have further explained that a choice between two permissible views of the weight of the evidence is not clearly erroneous.” Wolff, at ¶ 14.

A

[¶ 9] J.T.N. argues the district court erred by finding he is likely to engage in further acts of sexually predatory conduct. “[T]he phrase ‘likely to engage in further acts of sexually predatory conduct’ as used in N.D.C.C. § 25–03.3–13 means that the respondent's propensity towards sexual violence is of such a degree as to pose a threat to others.” Interest of M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473. To determine whether the element is met, experts and courts may “use the fullness of their education, experience and resources available to them in order to determine if an individual poses a threat to society.” Matter of Voisine, 2010 ND 17, ¶ 14, 777 N.W.2d 908 (quoting M.B.K., at ¶ 18). “[A]ll relevant conduct should be considered.” Voisine, at ¶ 14.

[¶ 10] To determine whether J.T.N. was likely to engage in further acts, the district court specified that it “did take in all relevant conduct.” The district court organized J.T.N.'s relevant conduct under three headings: (1) history of offenses, (2) recent conduct and treatment and (3) actuarial testing. Under history of offenses, the district court listed several instances of J.T.N.'s sexual conduct as a juvenile and as an adult, including convictions for gross sexual imposition and sexual assault, instances of sexually predatory conduct not resulting in criminal charges and probation violations due to prohibited sexual conduct. Under recent conduct and treatment, the district court noted J.T.N.'s violations of State Hospital rules, his lack of progress in treatment and his waiver of his 2009 review hearing. The rules violations included possessing a cellular telephone containing pictures of a naked woman's torso, possessing a hand drawing of a woman in lingerie, exposing himself to Richardson and causing a “near riot” by urging other patients not to participate in treatment. Concerning J.T.N.'s treatment, the district court noted J.T.N. was in the lowest level of treatment, was in the highest security area, did not fully cooperate when he attended treatment and believed he did not need sex offender treatment. Finally, under actuarial testing, the district court stated,

“All of the professionals engaged in actuarial testing of [J.T.N.]. The purpose of this actuarial testing is an attempt to objectively quantify the risk of reoffending. The actuarial tests used were the Static–99R as well as the MnSOST–R actuarial test. These tests were not used by all of the experts....

“The experts presented varying percentage estimations as to the likelihood of [J.T.N.] reoffending within a given period of time. This testimony was based mainly upon the Static–99R actuarial as the experts tended to agree the MnSOST recidivism rate estimates were not accurate. However, the experts who administered the tests did seem to agree that the classification and/or categorization of the offender as reached by those tests were accurate. [J.T.N.]'s actuarial scores on the Static–99R, whether a 6 or a 7, ranked him in the high category of risk for recidivism. Likewise, of the three experts who scored [J.T.N.] on the MnSOST–R, he also fell into the high risk category.”

All of the factors cited by the district court were supported by the testimony or the report of at least one psychiatrist testifying at J.T.N.'s discharge hearing.

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