Koppy v. G.L.D. (In re Interest of G.L.D.)

936 N.W.2d 539

In the INTEREST OF G.L.D.

Allen Koppy, State’s Attorney, Petitioner and Appellee

v.G.L.D., Respondent and Appellant

No. 20190179

Supreme Court of North Dakota.

Filed December 18, 2019

Allen M. Koppy, Morton County State’s Attorney, Mandan, ND, petitioner and appellee.

Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.

VandeWalle, Chief Justice.

[¶1] G.L.D. appealed from a district court order denying his petition for discharge from civil commitment as a sexually dangerous individual. We conclude the district court did not make sufficient findings of fact, and we remand for further findings.

I

[¶2] G.L.D. was civilly committed as a sexually dangerous individual in 2007. This Court has affirmed G.L.D.’s commitment. In re G.L.D. , 2016 ND 26, 876 N.W.2d 485 (per curiam); In re G.L.D. , 2016 ND 25, 876 N.W.2d 485 (per curiam); In re G.L.D. , 2014 ND 194, 855 N.W.2d 99 ; In re G.L.D. , 2012 ND 233, 823 N.W.2d 786 (per curiam); In re G.L.D. , 2011 ND 52, 795 N.W.2d 346. G.L.D. petitioned the district court for discharge in April 2016, and a discharge hearing was held in June 2019. At the hearing, Dr. Richard Travis testified for the State. Dr. Travis testified that G.L.D. remains a sexually dangerous individual subject to continued civil commitment. G.L.D. did not call any experts in support of his petition for discharge. At the conclusion of the hearing, the district court orally issued the following findings of fact and conclusions of law:

Thank you. And for the record, the Court does weigh this that the State is the one moving forward, has the burden and that burden beyond a clear and convincing evidence and we go into this Prong 1 as stipulated to.

Prong 2, there is a diagnosis. We had – the diagnosis was testified to. The State had called one expert. No other experts were called. There was some possible impeachment by the respondent attempts, but I find the weight and the credibility of the expert that was called very credible and I'm giving it great weight particularly when we go on to Prongs 3 and 4. And when – I intermingle these a little bit because he testified that it is very likely that [G.L.D.] would reoffend if released into the community. I wrote that down specifically. He said that right before he said, "[G.L.D.] would have serious difficulties controlling his behavior if he was released into the community."

And I'm giving great weight and credibility to the expert in that regard. And when we look at In the Interest of J.M. , which the Court has in front of it, I know that, Mr. Morrow, you had indicated in that 2016 case that just not participating in treatment can't be used. But the Court in your – in this latest case reflects that J.M. not only had not acted out sexually and not had any sexual nature rule violations, he has either completed his sexual offender treatment and made substantial – or made substantial progress since his last evaluation.

The Court goes on to say that the standard is an individual may only be committed when the individual has serious difficulties controlling his or her sexual predatory behavior making that individual a danger to others.

In the case at hand, Dr. Travis said that [G.L.D.] would have serious difficulties controlling his behavior in the community and that he would be very likely to reoffend. So the Court’s making that finding that with the diagnosis and – paraphilia diagnosis with the other two diagnoses and the substance abuse issue that’s been in remission for a long time because of the controlled environment, I'm not really weighing that. There’s been at least, it looks like, 20 years of sobriety here whether it be forced or not, I don't – I'm not weighing that part of it.

What I'm really looking at is the nexus between the diagnosis and the fact that the doctor feels that based on all the circumstances, and that includes behaviors as recent as February where [G.L.D.] refused to take part in providing any more information that may have helped the doctor to make any kind of different diagnosis, his being uncooperative with the – with the doctor, it’s hard for the Court to find any other way than the commitment would have to continue and the State’s met its burden.

[¶3] After it issued its findings, the district court requested the State draft a proposed order that G.L.D. remain civilly committed. The proposed order submitted by the State incorporated by reference the court’s oral findings and did not contain any additional or more specific findings of fact. The court signed the State’s proposed order subjecting G.L.D. to continued civil commitment.

II

[¶4] On appeal, G.L.D. argues the district court made insufficient findings of fact to support its conclusion that G.L.D. is likely to engage in further acts of sexually predatory conduct and has difficulty controlling his behavior.

This Court reviews civil commitments of sexually dangerous individuals under a modified clearly erroneous standard of review. Interest of Nelson , 2017 ND 152, ¶ 3, 896 N.W.2d 923. We affirm a district court’s order unless it is "induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence." Id. When reviewing the district court’s order, this Court gives "great deference to the court’s credibility determinations of expert witnesses and the weight to be given their testimony." In re Johnson , 2016 ND 29, ¶ 3, 876 N.W.2d 25. To be committed as a sexually dangerous individual a person must meet the three statutory 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 individual’s condition makes them 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).

In addition to the three statutory elements, the State must satisfy substantive due process and prove the committed individual has serious difficulty controlling his behavior. In re Whitetail, 2013 ND 143, ¶ 5, 835 N.W.2d 827. In Kansas v. Crane , the Supreme Court explained that "we did not give to the phrase ‘lack of control’ a particularly narrow or technical meaning. And we recognize that in cases where lack of control is at issue, ‘inability to control behavior’ will not be demonstrable with mathematical precision." 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002). Although not mathematical, the "inability to control behavior ... 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." Id. Thus, a "connection between the disorder and the individual’s inability to control" his actions must be found. Nelson , 2017 ND 152, ¶ 4, 896 N.W.2d 923.

North Dakota incorporates the Crane requirement through the definition of sexually dangerous individual, which 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

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