In The Matter Of Christopher James Midgett.State Of N.D. v. Midgett

783 N.W.2d 27

2010 ND 98

In the Matter of Christopher James MIDGETT.State of North Dakota, Petitioner and Appelleev.Christopher James Midgett, Respondent and Appellant.

No. 20090253.

Supreme Court of North Dakota.

June 10, 2010.

Dale Richard Rivard, Assistant State's Attorney, Grand Forks, N.D., for petitioner and appellee.

Troy Robert Morley, Grand Forks, N.D., for respondent and appellant.

SANDSTROM, Justice.

[¶ 1] Christopher Midgett appeals an amended order denying his petition for discharge from commitment as a sexually dangerous individual, claiming the district court erred in finding the State proved by clear and convincing evidence that he has serious difficulty controlling his behavior. We affirm.

I

[¶ 2] In March 2007, Midgett was civilly committed as a sexually dangerous individual, and this Court affirmed the district court's commitment order. Matter of Midgett, 2007 ND 198, ¶¶ 1, 14, 742 N.W.2d 803 ( Midgett I ). In February 2008, Midgett petitioned for discharge. Dr. Lynne Sullivan, a psychologist at the State Hospital, and Dr. Robert Riedel, an independent psychologist, filed reports and testified before the district court. After the discharge hearing, the district court denied Midgett's petition, and he appealed. We concluded the district court failed to make sufficient findings of fact on whether Midgett has serious difficulty controlling his behavior, and we reversed and remanded for detailed findings on that issue. Matter of Midgett, 2009 ND 106, ¶¶ 9-10, 766 N.W.2d 717 ( Midgett II ).

[¶ 3] On remand, the district court found Midgett remains a sexually dangerous individual who is likely to engage in further acts of sexually predatory conduct if released. The court found the State established by clear and convincing evidence that Midgett has serious difficulty controlling his behavior, stating, “Even in the structured setting of the North Dakota State Hospital, Dr. Sullivan indicated that Mr. Midgett has engaged in inappropriate impulsive behavior while awaiting entry into the sex offender treatment program. Until he completes that program and his behavioral impulses are re-assessed, it is simply unknown if he will have gained the ability to control his sexual urges in a non-restrictive community setting.” On appeal, Midgett argues the district court erred in finding the State proved by clear and convincing evidence that he has serious difficulty controlling his behavior.

[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 25-03.3-02. The appeal was timely under N.D.C.C. § 25-03.3-19. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 25-03.3-19.

II

[¶ 5] Midgett argues the State did not prove by clear and convincing evidence that he has serious difficulty controlling his behavior.

[¶ 6] Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard of review. Midgett II, 2009 ND 106, ¶ 5, 766 N.W.2d 717. We will affirm a district court 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.

[¶ 7] 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 A.M., 2009 ND 104, ¶ 8, 766 N.W.2d 437. A sexually dangerous individual is:

[A]n individual who is shown to have [1] engaged in sexually predatory conduct and who [2] has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that [3] 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).

[¶ 8] In addition to the three statutory requirements, to satisfy substantive due process the State must also prove the committed individual has serious difficulty controlling his behavior. Midgett II, 2009 ND 106, ¶ 6, 766 N.W.2d 717. In Kansas v. Crane, 534 U.S. 407, 412-13, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), the United States Supreme Court held the State must prove a committed individual has serious difficulty controlling his or her behavior to sufficiently distinguish the dangerous sexual offender from typical recidivists and to prevent civil commitment from becoming a mechanism for retribution or general deterrence.

[¶ 9] We have said:

[W]e construe 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. We conclude that nexus between the requisite disorder and future dangerousness satisfies the due process requirements of Crane.

Interest of J.M., 2006 ND 96, ¶ 10, 713 N.W.2d 518 (quoting Matter of G.R.H., 2006 ND 56, ¶ 18, 711 N.W.2d 587). The substantive due process requirement is not a “fourth prong” of N.D.C.C. § 25-03.3-01(8), but is a part of the definition of a “sexually dangerous individual.” Matter of Vantreece, 2009 ND 152, ¶ 6, 771 N.W.2d 585.

[¶ 10] In cases where lack of control is an issue, the United States Supreme Court has said:

“[I]nability to control behavior” will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.

Crane, 534 U.S. at 413, 122 S.Ct. 867.

[¶ 11] In addition to the requirement that the State establish a nexus between the requisite disorder and dangerousness, “the district court must specifically state in its memorandum opinion the facts upon which its ultimate conclusion is based.” Matter of Rush, 2009 ND 102, ¶ 10, 766 N.W.2d 720. In Midgett II, 2009 ND 106, ¶¶ 9-10, 766 N.W.2d 717, we concluded the district court failed to make sufficient findings about whether Midgett has serious difficulty controlling his behavior. We said, “The district court did not specifically state the facts upon which it relied or even make a finding on whether Midgett had serious difficulty in controlling his behavior. We conclude the district court did not comply with N.D.R.Civ.P. 52(a) and its findings are inadequate to permit appellate review.” Id. at ¶ 9. We remanded for “detailed” findings on that issue. Id. at ¶ 10.

[¶ 12] On remand, the district court made the following detailed findings:

In addressing the issue as to whether or not Mr. Midgett has serious difficulty controlling his predatory behavior, the trial court has once again reviewed and reconsidered the testimony of Drs. Sullivan and Riedel during the August 20, 2008 hearing as well as considered the expert testimony presented during earlier hearings.

As noted in the trial court's September 16, 2008 Memorandum Decision and Order, Dr. Sullivan testified that the Respondent's continuing impulsivity while at the North Dakota State Hospital included an instance of engaging “in sexual contact with another resident in a secure placement in the community. He repeatedly went to places where he knew he was prohibited from going. That clearly shows failure to plan ahead because he knew he could potentially get into trouble for that.” (Tr. 11). “He demonstrates a lack of remorse by continuing to engage in high risk behavior with regards to children.” (Tr. 11). [Dr. Sullivan] indicated further that a diagnosis of pedophilia and anti-social personality disorders are, according to the DSM, believed to be chronic and life-long disorders. “[In] Pedophilia, for example, the urges and fantasies associated with pedophilia are believed to not ever be able to go into complete remission or to go away completely. They are believed at best to be manageable, to be able to be controlled through therapy techniques.” (Tr. 12). “Similarly, anti-social personality disorder is believed to be a chronic and life-long disorder, again fairly resistant to treatment. And because it is basically a complete way of looking at the world, interacting with the world, and these sorts of things are quite resistant to change. It's difficult to change that and so it's believed to be quite chronic and unremitting.” (Tr. 12-13). Dr. Sullivan then also stated that it is possible for an individual with the right type of treatment to control their disorders. “That's the idea behind cognitive behavioral therapy is to change the thoughts and feelings associated with the world, the way the person sees the world and other people, and ideally there would be more adaptive ways of dealing with others and the world in general and then manage some of those thoughts and feelings.” (Tr. 13). In addressing the risk for further acts of sexually predatory conduct, Dr. Sullivan related that the risk assessment tools she utilized supported her opinion that Mr. Midgett was likely to engage in future acts of sexually predatory conduct unless he successfully completes an intensive cognitive behavior sexual offender treatment program that would lower his risk of re-offending. (Tr. 14-19). She opined further that he could not successfully complete sex offender treatment until he completed a Basic Skills program. According to her testimony, that program is designed for “people that are not cognitively or behaviorally or intellectually ready to do the intensive cognitive or

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