### File d 6 /2 7 /1 9 b y Cle r k o f S u p r e m e Co u r t IN THE S UPREME COURT S TATE OF NORTH DAKOTA

2019 ND 169

In the Matter of

R.A.S.,

---------- Birch P. Burdick, Cass County Petitioner and Appellee State’s Attorney ,

v. R.A.S., Respondent and Appellant

No. 20190016

Appeal f rom the District Court of Cass County , East Central Judicial District, the Honorable Steven L. Marquart, Judge.

REVERSED. Opinion of

the Court by

Crothers, Justice.

Leah J

. Viste, Assistant State’s Attorney , Fargo, ND, f or petitioner and appellee. Ty ler J. Morrow, Grand Forks, ND, f or respondent and appellant.M atter of R.A.S. No. 20190016

Crothers, Justice. [ ¶1] R.A.S. appeals f

rom a district court order deny ing his p etit i o n f or discharge and c ontinuing com m itm ent as a sexually dangerous individual. The order d eny ing R.A.S.’s petition f

or discharge is reversed f

or lack of f

i ndings s uf

f i cient to conclude the d ue process requirem ent has been m e t under Kansas v. C r a n e , 5 3 4 U.S. 407 (2002).

I [ ¶2] R.A.S. was convicted of gross se x u al i m p osition in 1991 and sentenced to eight y ears. In 2 0 0 1 R

. A .S. was convicted of possession o f stolen property , and in 2002 a ssault on a corrections of f i c e r

. As part of t he sentence f or the possession of stolen property charge, the district court r ecom m ended R.A.S. r eceive a m ental health evaluation. B ef

o re his scheduled release in 2004, the S tate successf ully p etitioned to

com m it R.A.S. as a s e x u a lly dangerous individual. In 2007 R.A.S. requested his statutory right to review h i s c om m itm ent. The district court f ound R.A.S. continued
to be a sexually dangerous individual. R.A.S. appealed t he f i ndin g a n d t his Court

rem anded because there w ere insuf f icient f indings of f

act and the district c o urt used

a conclusory statem ent t h a t t h e State m et its burden of proof

. Matter of R .A.S. , 2008 ND 185, ¶¶ 7-8, 756 N .W .2d 771. The d istrict c ourt m ade explicit f indings detailing R.A.S.’s conduct and how it related to the criteria f or e stablishing a sexually dangerous i ndividual. W e af f irm ed. M

a t t er of R.A.S. , 2009 ND 101, 766 N.W .2d 712. In 2010, 2012, and 2016 R.A.S. petition e d f o r d i scharge a nd did not appeal the district court orders deny i ng his petitions. [ ¶3] On May 2, 2 0 18, R.A.S. r e q u e s t e d a discharge hearing under N.D.C.C. § 25-03.3-18. At t he January 11, 2019 hearing, a p sy chologist testif ied R.A.S. is likely
to e ngage in f

urther a c t s o f s exually predatory conduct based on actuarial tests and
1review o f past conduct. The ps y chologist testif ied to a situation where R.A.S. requested a lower prescribed level of m edicat i o n

. T h e State Hospital agreed and revoked som e of R.A.S.’s privileges at t he onset of the l ower dosage t o determ ine whet h e r t h e new d o sage m et his m edical needs. R.A.S. protested the revocation of privileges b y ref

using two doses of h is m edication, but later a greed to rem ain on the higher dosage in return f

or h is privileges continuing intact. T he psy chologist testif ied R.A.S.’s ref

usal to twice take the prescribed m edication dem onstrated h is i nability to control his behavior. [ ¶4] The district court used this situation as the basis f or f inding R.A.S. is unable
to control his behavio r

. O n January 15, 2019, t he district c ourt d enied R .A.S.’s application f

or discharge. R.A.S. tim ely appealed.

I I [ ¶5] T h i s C o u

r t r eviews civil com m itm e nts of sexually dangerous individuals un d e r

a m odif ied clearly erroneous standard, and we will af f i rm the district court’s decision unless it is induced by an e rroneous view of the law, o r we are f irm ly convinced the decision is not s u

pported by clear and convin c i n g e v i dence. I nterest of Tanner , 2017 ND 153, ¶ 4, 897 N.W .2d 9 01. At a d ischarge hearin g , t h e burden is on the State t o prove by clear and convincing evidence t h e p e t i tioner rem ains a sexually dangerous i n d ividual. N.D.C.C. § 25-03.3-18(4). The S tate m ust prove three statutory elem ents to show the petitioner rem ains a sexually dangerous individual: “[ 1] [ the individual] e ngaged in sexually predatory conduct and [ 2 ]

. . . has a congenital or acquired condition that i s ma n i f e s t e d by a sexual disorder, a personality disorder, o r other m ental disorder or dy sf unction [ 3] that m akes t hat individual likely to engage in f urther acts of sexually predatory conduct which constitute a danger to the phy sical or m ental health or saf

ety of others.” N.D.C.C. § 25-03.3-01(8). [ ¶6] The State also m

ust m eet substantive due process requirem ents by proving the individual has serious dif f iculty in controlling his behavior. Tanner , 2017 ND 153,

2¶ 5 , 8 97 N.W .2d 9 01. C onsistent with the h olding in Kansas v. Crane , 534 U.S. 407

(2002), the def

inition o f a sexually dangerous individual requires “proof o f a nexus between the r equisite disorder and dangerousness to encom pass proof t hat the disorder involves serious dif f iculty in controlling behavior and s uf f i ces to distinguish

a dangerous sexual of

f ender w hose disorder subjects him to civil com m itm ent f

rom the dangerous but ty

pical recidivist in the o rdinary crim inal case.” Interest of Carter , 2019 ND 6 7, ¶ 4, 924 N.W .2d 112 (internal quo t a t i o n m arks om itted). N either our law n or Kansas v. C

rane , “require the condu c t evidencing the individual’s serious d i f f iculty in controlling his b ehavior to be sexual in nature.” Matter o f Wo l f f , 2011 ND 76, ¶ 7, 796 N.W .2d 644. [ ¶7] Constitutional cons i d e r a t i ons require a causal connection between the disorder and inabil i t y to control b ehavior, which would likely r esult in f uture sexually predatory conduct. Tanner , 2 017 ND 153, ¶ 5, 897 N.W

. 2 d 901; M a t t e r of J.M. , 2019 ND 125, ¶ 9, 927 N.W .2d 422. The district court m ay consider s exual and nonsexual conduct dem onstrating an i ndividual’s serious d if f iculty controlling behavior, but the presence of a me n t a l d i sorder or condition alone does not satisf y the requirem ent of c l ear and convincing evidence the individual is likely to engage in f urther sexually

predatory

conduct. J.M. , 2019 N D 125, ¶ 9, 927 N.W .2d 4 22. The district c ourt m

ust state the s p e c i f

i c f actual f i ndings used as a base f or legal conclusions, and errs as a m atter of l a w i f t h e f i n dings are insuf

f i cient or do not support the legal conclusions. Id. at ¶ 10.

III [ ¶8] R.A.S. concedes t he State m et its burden o n the f i rst two prongs of N.D.C.C. § 25-03.3-01(8). R .A.S. stipulated to f actor o ne during t h e discharge hearing, conceding he engaged in sexu a l l y p r e d a t o r y c o nduct. R.A.S. acknowledged he suf f ers fr o m s p e cif

ied paraphilic, exhibitionistic, bipolar I, a n d s p e c i fi e d p e r s o n a l i t

y d i s o r d e r s with antisocial and schizoty pal f eatures. T he district court also f ound c lea r a nd convincing evidence of the third prong, that R.A.S. is likely to e ngage in f urther acts 3of sexually predatory conduct, based on actuarial test scores a nd dy n am ic risk f

actors placing R .A.S. at above-average risk of re-of f ending. The psy chologist testif i ed these f actors have caused R.A.S. to act out sexually as recently as 2016. [ ¶9] In a d d i t i o n t o t

h e t h ree statutory requirem ents, s u bstantive due process requires proof R.A.S. has serious d if f iculty controlling his behavior. A district c o urt’s f inding that an individual has serious dif f i culty controlling behavior is def erred to when it is supported by specif

ic f indings dem onstrating t he dif f ic u l t y

. See Interest of G.L.D., 2011 ND 52, ¶ 7, 7 95 N.W

. 2d 346 (serious dif f iculty controlling behavior exis ted when the individual f

requently assaulted staf f a nd peers); Matte r o f W olff , 2011 ND 76, ¶ 9, 7 96 N.W

. 2d 644 (serious dif f iculty controlli ng behavior existed when the i n d i v i d u al y elled prof anities, h ad an explosive t em per, ref used to attend
treatm ent, and acted sexually with a p eer); Matter of M .D., 2012 ND 261, ¶ 10, 825 N.W .2d 838 (serious dif f iculty controlli n g behavior e xisted when individual engaged in a s exual relationship with a peer, s tated h e would t a k e a d v a n t age of a

m inor if he k

new he would not be caught, would u se drugs i f t h e y w ere of f ered to him , and would provide oral sex if som eone cam e to his door and wanted it). [ ¶10] Conversely , e r r o r i s f ound when f

i ndings do not support a decision t hat an individual has s e rious dif f i culty c ontrolling behavior. See Matter of Midgett , 2009 ND 106, ¶ 9, 766 N.W .2d 717 (error by not specif ically stating the f

acts upon which the district court relied or m aking a f inding o n whether petitioner had serious dif f iculty i n c ontrolling his behavior); Interest of Johnson , 2016 N D 2 9 , ¶ 6, 876 N.W .2d 25 (error in m e rely analy zing an individual’s crim inal h istory , not stating the s pecif ic f acts used f

o r reliance, and not m a k ing specif ic f i ndings regarding serious dif f iculty controlling behavior); Matter of J.M. , 2019 N D 125, ¶ 16, 9 27 N.W .2d 422 (error in f inding a m inor rule inf

raction, standing alone, supported a d eterm ination of serious dif

f iculty controlling behavior). [ ¶11] R.A.S argues the f indings here are insuf

f i cient to dem o nstrate he has serious dif f iculty controlling his behavior. The district court f ound “In Novem

ber of 2018, [ R.A.S], without perm ission f r om his doctors, quit taking O lanzapine f or two doses. 4The [ c ]ourt concludes that by intentionally disobey i ng h is obligati o n t o take

Olanzapine, this dem o nstrates [ R.A.S.]’s inability to control his actions.” The district
court did not m ake any f urther f indings sup p o r t i n g R.A.S.’s serious dif f iculty controlling his behavior. W hile the d i s t r i c t court m ay rely on non-sexual c onduct, “[ t]he evidence m

ust c learly show

. . . a s erious dif f i culty in controlling sexually
p r e d a t o ry behavior.” Interest of J.M. , 2006 ND 96, ¶ 10, 713 N.W .2d 5 18. T h e isolated instances of ref

using t wo doses of

prescribed m edication do not establish a serious d i ffi c ulty c ontrolling behavior. Theref ore, t he f inding that R.A.S. i s a sexually dangerous individual is clearly erroneous.

IV [ ¶12] The district court’s order deny ing R.A.S.’s petition f o r d ischarge is reversed and R.A.S shall be released f r om civil com m itm ent. [ ¶13] Daniel J. Crothers Lisa Fair McEvers Jon J. Jensen Jerod E. Tuf

te Gerald W . VandeW alle, C.J.

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