Filed 12/18/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 302

In the Interest of Raymond Voisine, 

Ladd R. Erickson, State’s Attorney, Petitioner and Appellee

v.

Raymond J. Voisine, Respondent and Appellant

No. 20190155

Appeal from the District Court of Sheridan County, South Central Judicial 

District, the Honorable Bruce A. Romanick, Judge.

REVERSED.

Opinion of the Court by Crothers, Justice.

Ladd Erickson, State’s Attorney, Washburn, ND, for petitioner and appellee.

Tyler Morrow, Grand Forks, ND, for respondent and appellant.
1

Interest of Voisine

No. 20190155

Crothers, Justice.

[¶1] Raymond Voisine appeals from a district court order finding he remains 

a sexually dangerous individual. He argues the district court erred by (1) 

granting the State’s request for continuance, (2) not holding a hearing within

365 days of the previous report or within a calendar year, (3) allowing the State 

to file and rely on an expert’s report that was filed late, and (4) finding by clear 

and convincing evidence that Voisine remains a sexually dangerous individual. 

The dispositive issue is whether clear and convincing evidence exists

establishing Voisine remains a sexually dangerous individual. We reverse. 

I

[¶2] “In 2004, Voisine was incarcerated after he pled guilty to gross sexual 

imposition for acts involving a six-year-old victim.” Interest of Voisine, 2018 ND 

181, ¶ 2, 915 N.W.2d 647. In Voisine, at ¶¶ 2-4, 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.
2

“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-yearold grandson/son.

“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.”
3

[¶3] The district court denied his subsequent petitions for discharge from 

commitment, which were affirmed on appeal. See Interest of Voisine, 2018 ND 

181, ¶ 1, 915 N.W.2d 647; Interest of Voisine, 2016 ND 254, ¶ 24, 888 N.W.2d 

781; Interest of Voisine, 2014 ND 178, ¶ 2, 859 N.W.2d 930; Interest of Voisine, 

2012 ND 250, ¶ 1, 823 N.W.2d 786. This Court also affirmed a district court 

order denying post-conviction relief. Voisine v. State, 2014 ND 98, ¶ 2, 859 

N.W.2d 930.

[¶4] On October 9, 2018, Voisine requested a discharge hearing. On October 

17, 2018, the hearing was scheduled for February 1, 2019. On January 30, 

2019, the State requested a continuance. Voisine objected to the continuance. 

On January 31, 2019, the district court continued the hearing until March 25, 

2019. After the hearing, the district court found Voisine remained a sexually 

dangerous individual. Voisine appeals.

II

[¶5] This Court reviews civil commitments of sexually dangerous individuals 

under a modified clearly erroneous standard, and the district court’s decision

will be affirmed unless it is induced by an erroneous view of the law, or we are 

firmly convinced the decision is not supported by clear and convincing 

evidence. Matter of R.A.S., 2019 ND 169, ¶ 5, 930 N.W.2d 162 (citing Interest 

of Tanner, 2017 ND 153, ¶ 4, 897 N.W.2d 901). Great deference is given to the 

district court’s credibility determinations of expert witnesses and the weight 

given to their testimony. Voisine, 2018 ND 181, ¶ 5, 915 N.W.2d 647 (citing 

Tanner, at ¶ 4; Matter of Wolff, 2011 ND 76, ¶ 5, 796 N.W.2d 644).

[¶6] “At a discharge hearing, the State must prove by clear and convincing 

evidence that the committed individual remains a ‘sexually dangerous 
4

individual’ under N.D.C.C. § 25-03.3-18(4).” Voisine, 2018 ND 181, ¶ 6, 915 

N.W.2d 647 (citing 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.”

Voisine, at ¶ 6 (citing 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.’” Voisine, at ¶ 6 (citing Matter of Hehn, 2008 ND 36, 

¶ 19, 745 N.W.2d 631); Kansas v. Crane, 534 U.S. 407, 413 (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.’” Voisine, at ¶ 6 (citing 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 challenges the court’s findings on statutory prongs two and 

three, and the “serious difficulty” factor required under Kansas v. Crane, 534 

U.S. at 413. 

[¶8] “This Court ‘defer[s] to a district court’s determination that an individual 

has serious difficulty controlling behavior when it is supported by specific 
5

findings demonstrating the difficulty.’” Matter of J.M., 2019 ND 125, ¶ 14, 927 

N.W.2d 422 (citing In re Johnson, 2016 ND 29, ¶ 5, 876 N.W.2d 25). Here, the 

finding that Voisine remains a sexually dangerous individual was not 

supported by clear and convincing evidence. 

[¶9] The State bears the burden of showing by clear and convincing evidence 

the risk posed by Voisine is distinguishable “from the dangerous but typical 

recidivist in the ordinary criminal case.” J.M., 2019 ND 125, ¶ 14, 927 N.W.2d 

422 (citing Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644). Notably, the burden is not 

whether an individual remains the same as previous reviews. Regarding the 

Crane factor, “[w]hile the court may rely on actions that are non-sexual in 

nature, ‘[t]he evidence must clearly show . . . a serious difficulty in controlling 

sexually predatory behavior.’” J.M., at ¶ 16 (citing In the Interest of J.M., 2006 

ND 96, ¶ 10, 713 N.W.2d 518). “Lack of progress in treatment alone is 

insufficient to meet this requirement for commitment.” Voisine, 2018 ND 181, 

¶ 21, 915 N.W.2d 647 (McEvers, J., concurring specially, VandeWalle, C.J.,

joined) (citing Johnson, 2016 ND 29, ¶ 7, 876 N.W.2d 25 (emphasis in 

original)). 

[¶10] Two witnesses testified at the discharge hearing. Dr. Benson, Voisine’s 

Independent Examiner, testified Voisine did not meet the second or third 

prongs, or the serious difficulty factor, and therefore Voisine was not a sexually 

dangerous individual. Dr. Byrne concluded Voisine met the second, third and 

serious difficulty factor, and remains a sexually dangerous individual. 

[¶11] The district court largely relied on Dr. Byrne’s testimony and report. 

Regarding the Crane factor, the district court found “Voisine has not made any 

progress in his treatment and that he has not demonstrated that he would be 

able or willing to control his behavior if he were to be released into the 
6

community.” The court’s “serious difficulty” conclusion also was based on 

evidence Voisine has poor peer relations, refuses to admit to his offenses, has 

a lack of concern for his family members, desires to return to a home where 

predatory conduct occurred and to a family which enabled his predatory 

conduct, and he has not worked on plans for behavior modification which would 

give him the ability to control his behavior. The district court also stated, “[t]his 

Court does not believe that Voisine’s participation in treatment has been 

meaningful or substantial. His progress notes indicate that he does not 

participate in any respect.” The district court noted, “Dr. Byrne is of the opinion 

that Voisine demonstrates serious difficulty controlling his behavior and this 

would likely be worse in a less restrictive environment.”

[¶12] Voisine argues the district court’s finding are clearly erroneous. After 

fully reviewing the record, we agree. Dr. Byrne was asked, “[w]hat behavior, 

during this review period, are you pointing to that shows Raymond Voisine 

can’t control his behavior?” Dr. Byrne responded:

“The main issue that I see is his—he is not getting BAs 

[Behavioral Acknowledgments] or RBWs [Resident Behavioral 

Write-ups] as we discussed earlier. There is the concern associated 

with the denial of the offending that is not necessarily scientific 

but more pragmatic and related to treatment—related treatment 

progress and adherence to treatment progress. 

“And then the final thing is, you know, if there—I think I 

inferred from your—your questions, at least that’s what I inferred, 

the medical conditions and/or his age and ability to attend to group 

because it appears that he’s falling asleep and/or putting his hand 

over his head and it’s not that he’s not making progress, it’s that 

he’s not participating in the course of treatment. 

“Those things indicate that because he has a congenitalacquired condition he’s going to have a serious difficulty 

controlling his behavior because he is not acquiring skills to 

manage those—those past problems and also his sexual risk.”
7

[¶13] Voisine’s apparent lack of progress and participation in treatment was a 

significant basis for finding he still was a sexually dangerous individual. The 

record shows the finding that “he does not participate in any respect” is not 

supported. The progress notes in Dr. Byrne’s report state Voisine presented on 

multiple occasions, he was taking a more active role in his treatment and 

progressing. There also were periods where Voisine was stable but stagnant. 

Voisine still appeared to fall asleep in group, but on days when he was noted 

to appear sleeping he also presented and gave feedback to other residents. 

Further, Dr. Byrne testified, “it’s not that he’s not making progress.”

[¶14] Taken as a whole, the evidence does not support the finding Voisine has 

not worked on plans for behavior modification which would give him the ability 

to control his behavior. Regarding RBWs, Dr. Byrne testified “[m]y 

understanding was the only thing was issues of old food found in his room, that 

type of a thing, but nothing significant like in prior review periods.” (Emphasis 

added.) In his report Dr. Byrne noted, 

“Mr. Voisine has not demonstrated any significant overt 

behavioral problems on the unit throughout this review period. 

Perhaps the most appropriate factor to consider when assessing 

‘serious difficulty’ in a residential treatment setting is the 

individual’s progress in treatment over the review period. This 

best answers the question of ‘what has changed’ since they were 

committed or since their last annual review. . . . Mr. Voisine has 

made little progress within treatment. . . Mr. Voisine continues to 

demonstrate ‘serious difficulty’ controlling his behavior and this 

would likely be worse in a less restrictive environment.” 

[¶15] Voisine has two years in highly supervised conditions with only minor 

behavioral write-ups. In July 2018, Voisine received write-ups because staff 

found “excessive garbage, food from the food cart, dirty containers, gallon jug 

with water, pop bottle with soap and water, 2 state rags.” Dr. Byrne and Dr. 

Benson noted this is improved behavior from previous reviews.
8

[¶16] The record shows Voisine participated in treatment and he is not a 

management problem. Instances of having extra food in Voisine’s room do not 

establish a serious difficulty controlling behavior. See In the Matter of R.A.S., 

2019 ND 169, ¶ 11, 930 N.W.2d 162 (“The isolated instances of refusing two 

doses of prescribed medication do not establish a serious difficulty controlling 

behavior.”); J.M., 2019 ND 125, ¶¶ 15-16, 927 N.W.2d 422 (horseplay incident 

with another resident not clear and convincing evidence of serious difficulty); 

Interest of T.A.G., 2019 ND 167, ¶ 11, 930 N.W.2d 166 (“The status in 

treatment and one statement regarding ‘cream pie’ do not establish a serious 

difficulty controlling behavior sufficient to satisfy the Crane due process 

requirement.”).

[¶17] Appearing to fall asleep or putting one’s hand over their head during 

treatment could be evidence supporting a finding that an individual has 

serious difficulty controlling his behavior. However, that isolated conduct over 

a year is not sufficient to establish serious difficulty controlling sexual 

behavior. Moreover, Voisine is a 76-year-old man with a heart condition, he is 

on medication for that heart condition, English is not his first language, and 

on some of the days he appeared to be sleeping in group the treatment notes 

also establish Voisine was participating. The lack of behavioral write-ups,

progress in treatment, and the lack of evidence about how Voisine remains a 

threat runs counter to finding by clear and convincing evidence that Voisine 

has serious difficulty in controlling his sexual behavior.

[¶18] Voisine argues the finding he will not have the ability to control his 

behavior because he denies sexual misconduct occurred is not supported by 

evidence. Dr. Byrne testified he analyzed both static (actuarial test scores) and 

dynamic factors. See R.A.S., 2019 ND 169, ¶ 8, 930 N.W.2d 162 (the district 

court found clear and convincing evidence of the third prong based on actuarial 
9

test scores and dynamic risk factors). In response to the question, “because 

you’re saying denial doesn’t increase risk, correct?” Dr. Byrne testified, “as a 

static factor, no.” Dr. Byrne testified, “And review of the risk literature does 

not indicate in a static sense that denial of offending is actually a risk factor 

which is somewhat counterintuitive, but when we start looking at risk in terms 

of dynamic risk factors, it can become problematic.” Further, Dr. Byrne 

testified that an individual could “deal with things and still deny, such as 

accepting accountability for their risk or their perceived risk and working on 

it.” On cross-examination Dr. Byrne testified, “my knowledge of literature 

would still be that denial of offending in terms of a static risk factor would not 

necessarily impact an individual’s sexual risk level.” Dr. Byrne testified that 

denial is problematic in trying to make progress because if an individual denies 

committing an offense it would be difficult, but not impossible, to create a risk 

plan for preventing an offense. He also testified because he does not see Voisine 

attempting to engage in treatment, Voisine is unable to make progress. When 

specifically asked about the Crane factor, Dr. Byrne testified, “There is the 

concern with the denial of the offending that is not necessarily scientific but 

more pragmatic and related to treatment—related treatment progress and 

adherence to treatment progress.”

[¶19] Dr. Byrne also testified about the dynamic factors relating to Voisine’s 

denial. The notes state, “Mr. Voisine denies any history of sexually offending 

and thus while he states he cares for his family/victims, he continues to 

negatively impact them via his denial.” Further, Dr. Byrne’s note states, “[h]e 

simply maintained denial of offending in this instance” and “Mr. Voisine 

continues to deny his offenses and also his need to be in civil commitment, thus 

holding others, rather than himself, accountable. Such a viewpoint is 

consistent with his loneliness and associated with negative mood states.” Dr. 
10

Byrne also noted, “denial of his conviction make his self-report not credible,” 

and “Mr. Voisine’s history is with a male grandchild and incestuous 

relationship with daughters which he denies and thus has not demonstrated 

any improvement on these [deviant sexual preference factor].” Finally, Dr. 

Byrne notes, 

“[h]is behavior/conduct on the unit appears to have improved, but 

his engagement, participation, and addressing of his treatment 

needs is still similar to that in past reviews, with his denying 

offending, falling asleep, not presenting when scheduled in group. 

Thus, he is not gaining the sexually risk reducing skills and 

interventions to reduce and adaptively manage his sexually risk.” 

[¶20] Dr. Byrne’s dynamic factor notes on denial are not connected to Voisine’s 

ability to control his behavior. They are connected to potential negative 

impacts on family members, loneliness and negative mood states, and 

credibility. The last note which indicates some connection relies on the claim 

Voisine is not participating in treatment. As noted, Dr. Byrne testified Voisine 

made progress in treatment, the record supports that Voisine participated in 

treatment and was progressing. Nonetheless, lack of progress in treatment 

alone is insufficient to meet this requirement for commitment. Voisine, 2018 

ND 181, ¶ 21, 915 N.W.2d 647 (McEvers, J., concurring specially, VandeWalle, 

C.J., joined) (citing Johnson, 2016 ND 29, ¶ 7, 876 N.W.2d 25 (emphasis in

original)). 

[¶21] In 2018 we affirmed an order that Voisine remained a sexually 

dangerous individual based on findings that Justice McEvers in her 

concurrence described as “thin.” Voisine, 2018 ND 181, ¶¶ 19, 21, 915 N.W.2d 

647. Those findings were based on a lack of progress and participation in

treatment, not attending group, and falling asleep during group. In this review 

period the record does not support the conclusion that Voisine was not 

progressing or participating in treatment. Voisine attended group regularly, 
11

and when he was absent there was a legitimate reason like being ill. Evidence 

that a 76-year-old man whose first language is not English, is on medication 

for his heart condition, and sometimes appears asleep in group alone is 

insufficient to meet the requirement for commitment.

[¶22] The record as a whole does not support the finding by clear and 

convincing evidence that Voisine remains a sexually dangerous individual. 

Limited rule infractions and sporadic progress and participation in treatment 

relied on in this case do not establish that the risk posed by Voisine is 

distinguishable “from the dangerous but typical recidivist in the ordinary 

criminal case.” See R.A.S., 2019 ND 169, ¶ 11, 930 N.W.2d 162; J.M., 2019 ND 

125, ¶¶ 15-16, 927 N.W.2d 422; T.A.G., 2019 ND 167, ¶ 11, 930 N.W.2d 166. 

[¶23] The remaining issues and arguments raised by the parties have been 

considered and are unnecessary to our decision or without merit.

IV

[¶24] The order denying Voisine’s petition for discharge is reversed. 

[¶25] Daniel J. Crothers

 Lisa Fair McEvers

 Jerod E. Tufte

 Jon J. Jensen

 Gerald W. VandeWalle, C.J.