### Filed 3/13/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 67

In the Interest of William Joseph Carter
State of North Dakota, Petitioner and Appellee

v. William Joseph Carter, Respondent and Appellant

No. 20180189

Appeal from the District Court of Stutsman County, Southeast Ju dicial District, the Honorable Cherie L. Clark, Judge.

AFFIRMED.
Opinion of the Court by Tufte, Justice

. Joseph K. Nwoga(argued), Assistant State’s Attorney, and Frederick R. Fremgen(on brief), State’s Attorney, Jamestown, N.D., for petitioner and appellee.
Tyler J. Morrow , Grand Forks, N.D., for respondent and appellant.Interest of Carter
No. 20180189

Tufte, Justice. [¶1] William Carter appeals from a district court order denying discharge from commitment as a sexually dangerous individual. On appeal, he ar gues the State failed to establish that he is likely to reoffend or that he has serio us difficulty controlling his
behavior. We affirm the district court’s order.
I [¶2] Carter was convicted of gross sexual imposition in 2004. In2007, the district court ordered Carter’s commitment as a sexually dangerous indiv idual to the Department of Human Services. In February 2017, Carter filed mo tions requesting a discharge hearing and appointment of an independent examiner. D r. Erik Fox, the State’s evaluator, filed a report in May and an addendum to tha t report in September. Dr. Fox’s initial recommendation was for post community placeme nt; however, the
addendum rescinded that recommendation as a result of new information Dr. Fox received during the summer of 2017. Dr. Stacey Benson, the inde pendent examiner, also filed a report. The discharge hearing was held March 19, 2 018. On appeal, Carter argues the State failed to meet its burden to prove that he is likely to engage in sexually predatory conduct and that he has difficulty controlli ng his behavior.
II [¶3] 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 will affirm the district court ord er unless it is “induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convinc ing evidence.” Id. “When reviewing the district court’s order, this Court gives ‘great deference to the court’s credibility de terminations of expert witnesses and the weight to be given their testimony.’” Matter of Kulink , 2018 ND 260, ¶ 3, 920 N.W.2d 446 (internal citations omitted). To be co mmitted as a sexually

1dangerous individual, a person must meet three statutory elemen ts under N.D.C.C. § 25-03.3-01(8) : (1) the individual has engaged in sexually predatory conduct, ( 2) the individual has a congenital or acquired condition that is manif ested by a sexual disorder, a personality disorder, or other mental diso rder or dysfunction, and (3) the individual’s condition makes [the indi vidual] likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.
Nelson , at ¶ 4. “In addition to the three statutory requirements, . . . the State must also prove the committed individual has serious difficulty controlli ng his behavior.” Id. (quoting Matter of Wolff , 2011 ND 76, ¶ 7, 796 N.W.2d 644). The United States Supreme Court did not give the phrase “lack of control” a parti cularly narrow or technical meaning, nor is “inability to control behavior” demon strable with mathematical precision. Kulink , at ¶ 4 (quoting Kansas v. Crane , 534 U.S. 407, 412-13 (2002)). Although not mathematically precise, the proof of “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.” Crane , at 413. Thus, a “connection [must be found] between the disorder and the individual’s inability to control” his actions

. Nelson , at ¶ 4. [¶4] The North Dakota statute “incorporates the Crane requirement in its definition of sexually dangerous individual.” Kulink , 2018 ND 260, ¶ 5, 920 N.W.2d 446. We interpret the definition to require “proof of a nexus between the requisite disorder and dangerousness to encompass proof that the disorder involves ser ious difficulty in controlling behavior and suffices to distinguish a dangerous se xual offender whose disorder subjects him to civil commitment from the dangerous bu t typical recidivist in the ordinary criminal case.” Id. The State must prove each of the three elements plus the Crane factor by clear and convincing evidence. Id. Only element three and
the Crane factor are at issue here.
III

2[¶5] This Court has “recognized the phrase ‘likely to engage in further acts of sexually predatory conduct’ under N.D.C.C. § 25-03.3-01(8) , ‘means the individual’s propensity towards sexual violence is of such a degree as to po se a threat to others.’” Interest of Tanner , 2017 ND 153, ¶ 6, 897 N.W.2d 901 (quoting Matter of Rubey , 2011 ND 165, ¶ 5, 801 N.W.2d 702). [¶6] In its discussion of element three, the district court foun d that both Carter’s Pedophilic Disorder and Anti-Social Personality Disorder contri bute to a likelihood to engage in sexually predatory conduct in the future. Dr. Fox and Dr. Benson diagnosed Carter with pedophilic disorder, with the specifier “ attracted to girls, nonexclusive, but not limited to incest.” The doctors testified pedophilic disorder is a lifelong condition that never goes into remission. Both docto rs found Carter to have antisocial tendencies, but only Dr. Benson diagnosed Carter with Anti-Social Personality Disorder. Dr. Fox tes tified Carter’s antisocial per sonality behavior has not changed in the last twelve years, but because he is a more cons ervative scorer, he did not make the same diagnosis. Dr. Benson also found Carter meets the gender dysphoria requirements and has a history of alcohol abuse. Dr. Fox found grievance thinking partially present in Carter, which indicates he denies accountability to some degree. Dr. Fox scored Carter a 22.1 on the PCL-R (the Hare Psy chopathy Checklist), placing him at the 40th percentile of prisoners. Dr. Benson sco red Carter higher, at 28.2, but still within the moderate range. [¶7] Carter’s history includes several incidents prior to this r eview period that provide context for the experts’ assessment of Carter’s recent behavior. While incarcerated in the penitentiary, Carter possessed photographic cutouts of adolescent and prepubescent girls, some of which he cut out of a newspaper . Dr Fox testified that Carter’s denial of using these for masturbatory stimuli was not credible. At the state hospital in 2014, Carter masturbated to a non-pornographic phot o of his roommate’s nine-year-old niece. The girl depicted was approximately the same age as Carter’s
index offense victim. Both the incident with the cutouts and th e incident with the

3photo of his roommate’s niece could have jeopardized Carter’s s afety if other prisoners had discovered them. [¶8] Within this review period, in the summer of 2017, Carter ha d a 2015 school uniforms catalog which included numerous images of prepubescent children modeling school uniforms. The children depicted in the catalog were simi lar to the girl in the photo which Carter had used as stimulus while in prison. Additi onally, Carter possessed cutouts of young adult women tucked within the catalo g: one in a “sports jersey top” and one in an “underwear or bikini top.” Carter cla ims he was allowed to have the catalog. [¶9] Dr. Fox had originally reco mmended community placement. Although Dr. Fox was initially not concerned with the cutouts, the incident withthe catalog, along with other rule violations discussed below, led Dr. Fox to change hi s recommendation when he wrote the addendum report. Dr. Benson also expressed co ncern that possession of the catalog showed poor judgment on Carter’s part . The district court stated that this incident in 2017 was dispositive to its decisi on to continue
commitment. [¶10] There were other rule violations in July 2017, between Dr. Fox’s initial report and addendum. Carter bought a women’s two-piece swimsuit withou t waiting for a response to his request for permission to purchase it. The two pieces were different sizes; testimony indicated Carter purchased them in a rush because he didn’t want his State escort to find out. Also, Carter possessed more money at once than he was
allowed to have. Dr. Fox was somewhat concerned with the swimsu it purchase in connection with the catalog possession, especially when he lear ned that Carter had been in the Walmart female undergarments section two months pri or to purchasing the swimsuit. Dr. Fox believed it to be a progression from bein g in the wrong section of Walmart, to purchasing the swimsuit without approval, to it being the wrong size. Dr. Fox testified that after Carter’s extensive training, he sh ould have been wiser than to be in the undergarments section.

4[¶11] Dr. Benson agrees there is concern that Carter did not fol low the rules and wait for approval before buying the swimsuit. However, she did not s ee it as “indicative of potential continuation of [Carter’s] pedophilic fantasies.” The catalog was of greater concern to her than the rule violations: “even giving [ Carter] the benefit of the doubt, somebody who has been in treatment and who is advanced a s far as he has, it showed . . . very poor judgment for him to keep a magazine of that nature given the fact that he has masturbated to images of children before and that could be a risky situation for him.” Although she expressed concern, the summer 2017 incident did not
alter Dr. Benson’s recommendation. [¶12] Dr. Fox testified that on the Static-99R evaluation, an as sessment on risk to reoffend, Carter achieved a score of 5. Dr. Fox noted that 85% of sex offenders score lower, 7.4% score the same, and 7.6% score higher. This places Carter at approximately three times the potential recidivism rate of the typical sexual offender who has a median score of 2. There are two categories that further refine the Static-99R: “Routine Norms” and “High Risk/Needs Norms.” To de termine which category to place Carter into, Dr. Fox used Carter’s SRA-FV sco re of 3.38, which indicated he had a “high density for external risk factors” andplaced Carter’s Static99R results in the high risk category. People who fall into thi s group are found to sexually reoffend within five years at a rate of 21.2%, and within ten years at 32.1%. Dr. Fox believes Carter is likely to reoffend because his sexua l compulsivity is present to the point of risking his opportunity to be released from civil commitment by violating the rules while under review for release. [¶13] Dr. Benson does not find Carter likely to reoffend, but sh e testified that neither
is he near the level of a non-o ffender. Dr. Benson found Carter to have a score of 5 on the Static-99R, placing Carter in the above-average category . On the SRA-FV, Dr. Benson scored Carter at 3.22, a score very close to Dr. Fox’s, but did not place Carter in the high risk category because of recent criticism that the high risk category has been receiving. Dr. Benson found Carter to be in the group that has a 15.2% chance to reoffend sexually within five years. Carter placed himself a t a 20% chance to

5reoffend. Although juvenile-only sex offenders typically have alower recidivism rate than adult offenders, Carter is not comparable to other juvenil e-only sex offenders because unlike most juvenile offenders, he has Pedophilic Disor der. Dr. Benson agreed most juvenile sex offenders do not have a paraphilia dis order. The district court was persuaded by Dr. Fox’s testimony and reasoning in usi ng the high risk category. It found Carter had a likelihood to engage in further acts of sexually predatory conduct. We conclude there was clear and convincing evidence supporting the district court’s finding that Carter has a likelihood to en gage in further acts of sexually predatory conduct.
IV [¶14] To satisfy the Crane factor, the “individual must be shown to have serious difficulty controlling his behavior.” In re Hehn , 2008 ND 36, ¶ 19, 745 N.W.2d 631. However, the evidence or conduct showing the “individual’s seri ous difficulty in controlling his behavior” need not be of a sexual nature. Wolff , 2011 ND 76, ¶ 7, 796
N.W.2d 644. [¶15] The district court found the incident with the school unif orms catalog “particularly concerning” and noted that this evidences a patte rn of behavior because Carter has done similar things previously, showing he has a “se rious difficulty in controlling his behavior and managing his compulsions.” The cou rt further noted the fact that Carter was willing to jeopardize his release by colle cting and possessing the images strongly suggests a lack of control over compulsions at the current time. The district court ultimately found Carter has “not demonstrated th at he would be able or willing to control his behavior if he were to be released from the commitment.” Dr. Fox felt all the components of the summer 2017 incident were ca use for concern regarding Carter’s ability to control himself. He noted Carter engaged in risky behavior while on the “verge of being in the community.” The buying of the swimsuit indicated to Dr. Fox there was “thought and planning and recogn ition of the inappropriateness of the behavior . . . [meaning] he wasn’t con trolling his behavior, and [Carter] was [a] higher risk than . . . [Dr. Fox] initiallythought,” and therefore not

6ready for community placement. Dr. Benson found it concerning that Carter requested permission to purchase the swimsuit, yet he “didn’t wait.” This was a rule violation
but also a demonstration of Carter’s lack of control. The court noted the purchase of the swimsuit was not necessarily sexual, but it does show a lac k of impulse control. We conclude the record contains clear and convincing evidence s upporting the district court’s finding that Carter has serious difficulty in controlli ng his behavior.
V [¶16] There is clear and convincing evidence that the three stat utory elements and
the Crane factor were satisfied. We affirm the district court’s order de nying discharge. [¶17] Jerod E. Tufte Daniel J. Crothers Lisa Fair McEvers Jon J. Jensen Gerald W. VandeWalle, C.J.

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