Filed October 29, 2019 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 263

In the Matter of Lawrence Didier

Frederick Fremgen,

Stutsman County State’s Attorney, Petitioner and Appellee

v.

Lawrence Didier, Respondent and Appellant

No. 20190015

Appeal from the District Court of Stutsman County, Southeast Judicial 

District, the Honorable Cherie LaVonne Clark, Judge.

AFFIRMED

Opinion of the Court by McEvers, Justice.

Lilie A. Schoenack, Assistant State’s Attorney, Jamestown, ND, for petitioner 

and appellee.

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

Matter of Didier

No. 20190015

McEvers, Justice.

[¶1] Lawrence Didier appeals from an order denying his petition for 

discharge from civil commitment as a sexually dangerous individual. On 

appeal, Didier argues the district court’s factual basis was insufficient to 

legally conclude he met the substantive due process requirement of the 

inability to control his behavior. Didier also argues he did not receive a fair 

hearing that comports with procedural due process. We affirm.

I

[¶2] Didier has previously been convicted of two counts of sexual assault, 

one count of gross sexual imposition, and one count of indecent exposure

occurring in 1988, 1998, and 2008. After these convictions, in May 2010,

the State petitioned the district court to commit Didier as a sexually 

dangerous individual. In November 2010, the court ordered Didier’s 

commitment pursuant to N.D.C.C. ch. 25-03.3. Didier applied for discharge 

in April 2018. On January 9, 2019, the court held a hearing on his 

application. Dr. Deirdre D’Orazio, a doctor of clinical and forensic 

psychology, completed an annual re-evaluation of Didier. On January 15, 

2019, the court issued an order denying Didier’s application.

II

[¶3] “This Court reviews civil commitments of sexually dangerous 

individuals under a ‘modified clearly erroneous’ standard of review.” In 

Interest of Voisine, 2018 ND 181, ¶ 5, 915 N.W.2d 647. “We will affirm a 

trial court’s order denying a petition for discharge unless it is induced by an 

erroneous view of the law or we are firmly convinced it is not supported by

clear and convincing evidence. We give great deference to the court’s 

credibility determinations of expert witnesses and the weight to be given 

their testimony.” In the Interest of Tanner, 2017 ND 153, ¶ 4, 897 N.W.2d 

901 (citation omitted). We have explained that the district court is “the best 
2

credibility evaluator in cases of conflicting testimony and we will not 

second-guess the court’s credibility determinations.” In re Wolff, 2011 ND 

76, ¶ 5, 796 N.W.2d 644.

[¶4] At a discharge hearing, the State bears the burden of proof to show 

by clear and convincing evidence the committed individual remains a 

sexually dangerous individual. N.D.C.C. § 25-03.3-18(4).

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, 2018 ND 181, ¶ 6, 915 N.W.2d 647 (citing Tanner, 2017 ND 153, ¶ 

4, 897 N.W.2d 901). Additionally, to comport with the statute’s language 

and constitutional substantive due process concerns this Court has stated:

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 (quoting Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644). See also 

Kansas v. Crane, 534 U.S. 407, 411-413 (2002). The court may consider 

sexual and nonsexual conduct demonstrating an individual’s serious 

difficulty controlling behavior, but the presence of a mental disorder or 

condition alone does not satisfy the requirement of clear and convincing 

evidence that the individual is likely to engage in further sexually predatory 

conduct. Matter of R.A.S., 2019 ND 169, ¶ 7, 930 N.W.2d at 162. 

Specifically, we defer to a district court’s determination an individual has 
3

serious difficulty controlling behavior when “it is supported by specific 

findings demonstrating the difficulty.” In re Johnson, 2016 ND 29, ¶ 5, 876 

N.W.2d 25.

III

[¶5] Didier stipulated to elements one and two in the district court. Even 

though these elements were stipulated, the court found clear and convincing 

evidence Didier had previously engaged in sexually predatory conduct. He 

had been convicted of sexual assault in 1988, gross sexual imposition in 

1998, indecent exposure in 2008, and sexual assault in 2008. As to the 

second element, the court found clear and convincing evidence Didier had a 

diagnosis of a congenital or acquired condition that is manifested by a 

sexual disorder. Dr. D’Orazio diagnosed Didier with several disorders, 

including pedophilic disorder, antisocial personality disorder, 

polymorphous sexual compulsivity, intellectual disability, and severe 

alcohol use disorder, which she included in her report and testified to at the 

hearing.

[¶6] Didier does not contend that the State failed to meet its burden on the 

third statutory element that he is likely to engage in further acts of 

predatory conduct. Relying on Dr. D’Orazio’s report and testimony, the 

district court found by clear and convincing evidence that the State had met 

its burden.

[¶7] On appeal, Didier argues there are not sufficient facts to conclude he

remains a sexually dangerous individual. Primarily, Didier argues there 

were insufficient facts to conclude he continues to have an inability to 

control his behaviors, as “the entirety of the evidence resides in past conduct 

or conduct that neither the state itself nor the state’s expert witness offered 

as a factual basis.” A court’s determination an individual has serious 

difficulty controlling behavior is deferred to when “it is supported by specific 

findings demonstrating the difficulty.” Johnson, 2016 ND 29, ¶ 5, 876 

N.W.2d 25. The State argues specific findings demonstrating difficulty does 

not require specific instances of affirmative acts of misconduct and adopting 
4

Didier’s argument would require affirmative acts of misconduct each review 

period.

[¶8] Evidence in the record supports the district court’s finding clear and 

convincing evidence exists that the respondent will have serious difficulty 

controlling his behavior. “To determine whether an individual has serious 

difficulty in controlling behavior, all relevant conduct may be considered.” 

In re J.T.N., 2011 ND 231, ¶ 13, 807 N.W.2d 570. “[C]onduct in proximity 

to the hearing is relevant, the past still has some relevance.” Voisine, 2018 

ND 181, ¶ 18, 915 N.W.2d 647. The court’s findings relied on Dr. D’Orazio’s 

report which mentioned several of Didier’s past offenses that occurred prior

to the review period. In 2008, Didier was convicted for indecent exposure 

and sexual assault. In 2010, he was interviewed for allegedly committing

sexual assault on a cognitively impaired woman. The same year, he 

approached young children in Walmart, and pestered female greeters and 

he twice attended a circus against explicit prohibition from his probation 

officer. The court additionally relied on Dr. D’Orazio’s opinion which 

specifically noted Didier “will have serious difficulty controlling his sexual 

behavior if he is discharged from the hospital at this time.”

[¶9] The district court found Didier’s inability to control his behavior 

persists. The court noted while Didier did not have any formal write-ups in 

the current review period, his inappropriate behavior evidences his inability 

to control his behavior, including his inability to take responsibility for his 

actions, creating excuses, lack of motivation for completion, and lack of 

ability to effectively participate in treatment. The court cited numerous 

examples showing Didier’s inability to control his behavior. Didier gets 

angry and leaves the day room, pouts and slams doors when things do not 

go his way. Didier failed to complete homework assignments, gave 

superficial answers to questions, copied answers from others, and strayed 

off topic. Didier remained uncommitted to his relapse plan, writing down 

answers regardless of whether they fit. He is stagnant in progress toward 

treatment goals. His therapist believed this was due to his lack of 

motivation. On one occasion, in the current review cycle, Didier traded 

notebooks with a peer, receiving a verbal warning that such conduct was 
5

against the rules. When confronted about inappropriate behavior or 

possible rule violations, he refused to accept responsibility. Like Voisine, 

review of the record reflects “more than just lack of progress, it showed a 

lack of participation.” 2018 ND 181, ¶ 21, 915 N.W.2d 647. Taken together, 

both Didier’s past and present conduct, the court’s finding Didier has 

serious difficulty controlling his behavior is not clearly erroneous and is 

supported by clear and convincing evidence. 

IV

[¶10] Didier contends his hearing did not comport with procedural due 

process, as it failed to give him reasonable notice of claims of the opposing 

party and an opportunity to rebut the claims. “Procedural due process 

requires fundamental fairness, which, at a minimum, necessitates notice 

and a meaningful opportunity for a hearing appropriate to the nature of the 

case.” In re G.R.H., 2006 ND 56, ¶ 24, 711 N.W.2d 587 (citation omitted). 

[¶11] Didier did not raise this issue in the district court. “When a party 

fails to raise an issue before the district court, even a constitutional issue, 

we generally will not address the issue on appeal.” In re R.A.S., 2008 ND 

185, ¶ 12, 756 N.W.2d 771 (citation omitted). Didier’s argument was not 

sufficiently developed in the court or supported on appeal for this Court to 

determine its merits. Therefore, we decline to address Didier’s procedural 

due process argument.

V 

[¶12] The district court’s order is affirmed.

[¶13] Lisa Fair McEvers

 Daniel J. Crothers

 Jerod E. Tufte

 Jon J. Jensen

 Gerald W. VandeWalle, C.J.