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 Judicial 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 argues the State failed

to establish that he is likely to reoffend or that he has serious difficulty controlling his

behavior. We affirm the district court’s order.

I

[¶2] Carter was convicted of gross sexual imposition in 2004. In 2007, the district

court ordered Carter’s commitment as a sexually dangerous individual to the

Department of Human Services. In February 2017, Carter filed motions requesting a

discharge hearing and appointment of an independent examiner. Dr. Erik Fox, the

State’s evaluator, filed a report in May and an addendum to that report in September.

Dr. Fox’s initial recommendation was for post community placement; however, the

addendum rescinded that recommendation as a result of new information Dr. Fox

received during the summer of 2017. Dr. Stacey Benson, the independent examiner,

also filed a report. The discharge hearing was held March 19, 2018. 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 controlling 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 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.’” Matter of Kulink, 2018 ND

260, ¶ 3, 920 N.W.2d 446 (internal citations omitted). To be committed as a sexually

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dangerous individual, a person must meet three statutory elements 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 manifested by

a sexual disorder, a personality disorder, or other mental disorder or

dysfunction, and (3) the individual’s condition makes [the 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.

Nelson, at ¶ 4. “In addition to the three statutory requirements, . . . the State must also

prove the committed individual has serious difficulty controlling 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 particularly narrow or

technical meaning, nor is “inability to control behavior” demonstrable 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 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.” 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

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[¶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 pose 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 found that both Carter’s

Pedophilic Disorder and Anti-Social Personality Disorder contribute 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 doctors found Carter to have

antisocial tendencies, but only Dr. Benson diagnosed Carter with Anti-Social

Personality Disorder. Dr. Fox testified Carter’s antisocial personality behavior has not

changed in the last twelve years, but because he is a more conservative 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 Psychopathy Checklist),

placing him at the 40th percentile of prisoners. Dr. Benson scored Carter higher, at

28.2, but still within the moderate range.

[¶7] Carter’s history includes several incidents prior to this review 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 photo 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 the incident with the

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photo of his roommate’s niece could have jeopardized Carter’s safety if other

prisoners had discovered them.

[¶8] Within this review period, in the summer of 2017, Carter had a 2015 school

uniforms catalog which included numerous images of prepubescent children modeling

school uniforms. The children depicted in the catalog were similar to the girl in the

photo which Carter had used as stimulus while in prison. Additionally, Carter

possessed cutouts of young adult women tucked within the catalog: one in a “sports

jersey top” and one in an “underwear or bikini top.” Carter claims he was allowed to

have the catalog. 

[¶9] Dr. Fox had originally recommended community placement. Although Dr. Fox

was initially not concerned with the cutouts, the incident with the catalog, along with

other rule violations discussed below, led Dr. Fox to change his recommendation

when he wrote the addendum report. Dr. Benson also expressed concern 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 decision 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 without 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 swimsuit purchase in

connection with the catalog possession, especially when he learned that Carter had

been in the Walmart female undergarments section two months prior to purchasing

the swimsuit. Dr. Fox believed it to be a progression from being 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 should have been wiser than

to be in the undergarments section.

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[¶11] Dr. Benson agrees there is concern that Carter did not follow the rules and wait

for approval before buying the swimsuit. However, she did not see 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 as 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 assessment 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 determine which

category to place Carter into, Dr. Fox used Carter’s SRA-FV score of 3.38, which

indicated he had a “high density for external risk factors” and placed Carter’s Static99R results in the high risk category. People who fall into this 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 sexual 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 she testified that neither

is he near the level of a non-offender. 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 at a 20% chance to

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reoffend. Although juvenile-only sex offenders typically have a lower recidivism rate

than adult offenders, Carter is not comparable to other juvenile-only sex offenders

because unlike most juvenile offenders, he has Pedophilic Disorder. Dr. Benson

agreed most juvenile sex offenders do not have a paraphilia disorder. The district

court was persuaded by Dr. Fox’s testimony and reasoning in using 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 engage 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 serious 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 uniforms catalog

“particularly concerning” and noted that this evidences a pattern of behavior because

Carter has done similar things previously, showing he has a “serious difficulty in

controlling his behavior and managing his compulsions.” The court further noted the

fact that Carter was willing to jeopardize his release by collecting 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 that 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 cause 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 recognition of the

inappropriateness of the behavior . . . [meaning] he wasn’t controlling his behavior,

and [Carter] was [a] higher risk than . . . [Dr. Fox] initially thought,” and therefore not

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ready 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 lack of impulse control.

We conclude the record contains clear and convincing evidence supporting the district

court’s finding that Carter has serious difficulty in controlling his behavior.

V

[¶16] There is clear and convincing evidence that the three statutory elements and

the Crane factor were satisfied. We affirm the district court’s order denying

discharge.

[¶17] Jerod E. Tufte

Daniel J. Crothers

Lisa Fair McEvers

Jon J. Jensen

Gerald W. VandeWalle, C.J.

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